                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS January 13, 2009

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court

    XING LIN,

                Petitioner-Appellant,

    v.                                                 No. 07-1484
                                              (D.C. No. 1:07-CV-01957-LTB)
    MICHAEL CHERTOFF, Secretary,                         (D. Colo.)
    United States Department of
    Homeland Security; MICHAEL B.
    MUKASEY, Attorney General, United
    States Department of Justice;
    ROBERT MATHER, District Director,
    United States Citizenship and
    Immigration Services; DOUGLAS
    MAURER, District Director, United
    States Immigration and Customs
    Enforcement, and any other person
    having said Petitioner in custody,

                Respondents-Appellees.

                            ORDER AND JUDGMENT *

Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.

*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Petitioner-appellant, Xing Lin, is a Chinese citizen currently in removal

proceedings and being detained by respondents-appellees the Department of

Homeland Security (“DHS”) and the Bureau of Immigration and Customs

Enforcement (“ICE”) (collectively the “Government”). He filed a petition for

habeas corpus in the district court, challenging the existence of the removal order

pursuant to which he was being held. The district court concluded the REAL ID

Act of 2005, 8 U.S.C. § 1252(a)(5), deprived it of jurisdiction and dismissed the

petition. Mr. Lin appeals.

      The Government has filed a motion to dismiss the appeal as moot. In

June 2008, it initiated new removal proceedings against Mr. Lin and now

concedes that the initial removal order it sought to enforce “can no longer be

effectuated to remove him.” Aplee. Br. at 26. Thus, the Government argues

there is no longer a case or controversy, and this court therefore lacks

jurisdiction. We wonder why the Government waited so long to initiate new

proceedings in light of its expressed intent to “avoid protracted litigation.”

Id. at 9. Nonetheless, we agree the initiation of new removal proceedings

resolves the controversy giving rise to this appeal, and we therefore dismiss the

appeal for lack of jurisdiction.

                                          -2-
                                          I.

      Mr. Lin arrived in the United States from China in 1992, seeking asylum

and restriction on removal. On December 8, 1994, an immigration judge (“IJ”)

issued an oral decision denying his applications for relief and ordering that

Mr. Lin be returned to China (“1994 Removal Order”). Although the decision

was affirmed by the Board of Immigration Appeals, Mr. Lin remained in the

country and subsequently filed an application for adjustment of status. While that

application was pending, he applied for advance parole so that he could visit his

ailing mother in China. On August 28, 1996, his request was granted, and shortly

thereafter, Mr. Lin went to China. He returned to the United States on

October 21, 1996. Pursuant to the terms of his advance parole, he was authorized

to stay for one year. Although he has not been successful in any of his

applications for adjustment of status in the ensuing ten years, Mr. Lin has

remained in the United States.

      In September 2007, ICE officers arrested Mr. Lin pursuant to the 1994

Removal Order. 1 Days later, Mr. Lin filed a petition in the district court for

habeas corpus under 28 U.S.C. § 2241. He argued that under section 101(g) of

the Immigration and Nationality Act (“INA”), he self-executed the 1994 Removal

1
      This was the second time ICE arrested him. He was first arrested in
November 2006, but was released the following April, apparently because ICE
could not obtain travel documents for his return to China.

                                         -3-
Order when he departed the U.S. for China in 1996. 2 Therefore, he reasoned,

there was no longer a removal order to authorize his arrest and detention. Among

other requests, he demanded new removal proceedings before an IJ. In an order

dated November 14, 2007, the district court agreed with Mr. Lin in dicta, but held

the REAL ID Act deprived it of jurisdiction to issue a ruling. 3 It therefore

granted Mr. Lin’s request for a stay of removal pending appeal, but dismissed the

habeas petition.

      Mr. Lin filed a timely notice of appeal on November 16, 2007. In June

2008, the Government initiated new removal proceedings and served Mr. Lin with

a Notice to Appear, charging him with staying beyond the terms of his advance

parole. The new charges do not rely on or mention the 1994 Removal Order.

Mr. Lin responded with a motion to terminate the proceedings in the immigration

court. He argued the Government could not begin new proceedings while

2
      Section 101(g) states:

      For the purposes of this chapter any alien ordered deported or
      removed (whether before or after the enactment of this chapter) who
      has left the United States, shall be considered to have been deported
      or removed in pursuance of law, irrespective of the source from
      which the expenses of his transportation were defrayed or of the
      place to which he departed.

8 U.S.C. § 1101(g).

3
      The REAL ID Act, inter alia, vests jurisdiction over challenges to final
orders of removal solely in the courts of appeal. See 8 U.S.C. § 1252(a)(5);
Hem v. Maurer, 458 F.3d 1185, 1188 n.3 (10th Cir. 2006).

                                         -4-
simultaneously seeking to remove him under the 1994 Removal Order.

On August 12, 2008, the IJ denied Mr. Lin’s motion. While he did not explicitly

address the validity of the 1994 Removal Order, the judge concluded Mr. Lin was

a “self-removal” under the INA. Accordingly, he saw no barrier to going forward

with new removal proceedings.

      In the meantime, the Government filed its motion to dismiss this appeal for

lack of jurisdiction, claiming that it is no longer detaining Mr. Lin under the 1994

Removal Order, but under the new charges. It reasons that the controversy giving

rise to this lawsuit was the enforceability of the 1994 Removal Order, and thus,

the case became moot upon the initiation of new removal proceedings based on

new charges. And it makes the following concessions concerning the

enforceability of the challenged order:

      •      “The 1994 Order can no longer be effectuated to remove [Mr. Lin].”
             Aplee. Br. at 26.

      •      “DHS cannot remove him pursuant to the 1994 Order.” Id.

      •      “DHS is now precluded by the Immigration Judge’s August 12, 2008
             Order from removing [Mr. Lin] pursuant to the 1994 order of
             exclusion.” Id. at 41.

      Mr. Lin opposes the Government’s motion to dismiss and argues that

exceptions to the mootness doctrine apply to permit our exercise of jurisdiction.

                                          -5-
He seeks an order from this court declaring the 1994 Removal Order to have been

fully executed and of no further force or effect. 4

                                           II.

      “Mootness is a threshold issue because the existence of a live case or

controversy is a constitutional prerequisite to federal court jurisdiction.”

Chihuahuan Grasslands Alliance v. Kempthorne, 545 F.3d 884, 891 (10th Cir.

2008) (quotation omitted). We have “no power to give opinions upon moot

questions or declare principles of law which cannot effect the matter in issue and

the case before it[.]” Id. Accordingly, “[o]nce a controversy ceases to exist, the

action is moot and this court lacks jurisdiction to adjudicate the matter.” Id.

(quotation and alteration omitted). A case becomes moot “if an event occurs

while a case is pending on appeal that makes it impossible for the court to grant

any effectual relief whatever to the prevailing party.” Prier v. Steed, 456 F.3d

1209, 1213 (10th Cir. 2006) (quotations omitted).

      There are, of course, exceptions to the mootness doctrine, including one for

cases that “are capable of repetition, yet evading review,” Unified Sch. Dist.

No. 259 v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1147 (10th Cir. 2007),

which Mr. Lin invokes here. This exception, however, only applies in

4
      Mr. Lin also urges us to deny the Government’s motion as untimely under
10th Cir. R. 27.2(A)(3)(a). We decline to do so, however, because the
Government has shown good cause for its lateness given the timing of the new
removal proceedings. We also note the Government filed its motion to dismiss
within days of serving Mr. Lin with the new Notice to Appear.

                                           -6-
extraordinary situations and occurs when the following prerequisites are met:

“(1) the duration of the challenged action must be too short to be fully litigated

prior to its cessation or expiration; and (2) there must be a reasonable expectation

that the same complaining party will be subjected to the same action again.”

Id. (quotation omitted); Kempthorne, 545 F.3d at 892. Mr. Lin argues this case

satisfies both requirements. Taking them in reverse order, he claims that absent

a declaration that the 1994 Removal Order has been executed, there is nothing to

stop the Government from trying to enforce it in the future. And he fears the

Government could deport him so quickly he would not have a chance to file

a challenge.

      This scenario seems highly unlikely. As set forth above, the Government

has explicitly conceded in this case that Mr. Lin may not be removed under the

1994 Removal Order and it has pledged not to seek enforcement of that order.

Furthermore, it initiated new proceedings against Mr. Lin, which an IJ allowed to

proceed based in part on Mr. Lin’s prior self-removal under 8 U.S.C. § 1101(g).

To invoke this exception to the mootness doctrine, Mr. Lin must do more than

merely speculate about future possibilities. He must show a “‘reasonable

expectation’ or ‘demonstrated probability’ that [this] same controversy will recur”

between him and the Government. Murphy v. Hunt, 455 U.S. 478, 482 (1982).

A “mere physical or theoretical possibility” of its recurrence, which is the extent

of Mr. Lin’s argument, is not enough to avoid mootness. See id. As for the

                                          -7-
short-duration requirement, in the unlikely event the Government does try to

enforce the 1994 Removal Order, there is no reason to believe Mr. Lin would not

have ample opportunity to mount a challenge. Even if, as he hypothesizes, the

Government were to try to expedite his travel documents, that would not preclude

him from filing a habeas petition and stay motion. As evidenced in this case,

such documents can be filed immediately upon or shortly after his arrest. In sum,

we conclude Mr. Lin’s challenge to the 1994 Removal Order “does not present an

issue with an inherent time limit such that it would necessarily evade review in

future litigation.” Disability Rights, 491 F.3d at 1148 (quotation omitted).

      Mr. Lin also seeks to invoke an exception to the mootness doctrine, which

“traces to the principle that a party should not be able to evade judicial review, or

to defeat a judgment, by temporarily altering questionable behavior.” Disability

Rights, 491 F.3d at 1149 (quotation omitted). Therefore, a case is rarely mooted

by “a defendant’s voluntary cessation of an alleged illegal practice which the

defendant is free to resume at any time.” Kempthorne, 545 F.3d at 892. This

exception applies unless the defendant can meet the “formidable burden of

demonstrating that it is absolutely clear the allegedly wrongful behavior could

not reasonably be expected to recur.” Disability Rights, 491 F.3d at 1149

(quotations omitted).

      Mr. Lin argues this exception applies because the Government is free to

break its promise at any time and resume its efforts to enforce the 1994 Removal

                                          -8-
Order. We disagree. The Government has met its burden of demonstrating it will

not take such action. It has conceded in the plainest terms that the 1994 Removal

Order is defunct. Based on that fact, it initiated new removal proceedings, and

the presiding IJ concluded that Mr. Lin self-executed the 1994 Removal Order.

Under these circumstances, we hold that removal proceedings based on the 1994

Removal Order cannot reasonably be expected to recur. The voluntary cessation

exception is therefore inapplicable.

      We therefore GRANT appellees’ motion to dismiss, DISMISS the appeal

for lack of jurisdiction, and VACATE that portion of the district court’s

November 14, 2007, order dismissing Mr. Lin’s habeas petition.

                                               Entered for the Court

                                               John C. Porfilio
                                               Circuit Judge

                                         -9-


             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                    AT NASHVILLE               FILED
                                  APRIL SESSION, 1998
                                                                  April 23, 1998

                                                              Cecil W. Crowson
                                                             Appellate Court Clerk
STATE OF TENNESSEE                         )   C.C.A. NO. 01C01-9707-CR-00254
                                           )
      Appellee,                            )   WILSON COUNTY
                                           )
VS.                                        )   (No. 96-0580 Below)
                                           )
THOMAS CONGDON,                            )   The Hon. J. O. Bond
                                           )
      Appellant.                           )   (Vandalism under $500)

FOR THE APPELLANT:                         FOR THE APPELLEE:

J. ROBERT HAMILTON                         JOHN KNOX WALKUP
Stallings, Hamilton & Fox, P.A.            Attorney General and Reporter
225 East Main Street
Lebanon, TN 37087                          GEORGIA BLYTHE FELNER
                                           Assistant Attorney General
                                           Cordell Hull Building, Second Floor
                                           425 Fifth Avenue North
                                           Nashville, TN 37243-0493

                                           TOM P. THOMPSON, JR.
                                           District Attorney General

                                           ROBERT N. HIBBETT
                                           Assistant District Attorney General
                                           111 Cherry Street
                                           Lebanon, TN 37087

OPINION FILED _______________________

AFFIRMED

TERRY L. LAFFERTY, SPECIAL JUDGE
                                       OPINION

              The defendant, Thomas Congdon, appeals as of right pursuant to T.R.A.P.

3 from his conviction for vandalism under $500. On appeal, the defendant argues that the

evidence was insufficient to support the verdict and that the trial court erred by denying his

motion to sever offenses. We disagree and affirm the judgment.

              The proof showed that the defendant’s ex-wife, Connie Hay, and her father-

in-law, Paul Hay, were standing inside the criminal justice center in Lebanon, Tennessee,

looking down at the parking lot on March 20, 1996. Both saw the defendant walk over to

Connie Hay’s 1994 Nissan Centra, which was parked next to Paul Hay’s vehicle, check the

license plate on Connie Hay’s vehicle, and then walk closely up the side of the vehicle on

the passenger side. Connie Hay testified that the defendant had an object in his hands.

When Connie Hay and Paul Hay went down to the parking lot, they discovered a long

scratch along the passenger side of the vehicle. Connie Hay estimated the damage at

approximately $500. According to the local newspaper, it had snowed most of that day.

Based on this proof, the jury convicted the defendant of vandalism under $500. Although

a second indictment is not included in the record, it appears that the defendant was also

indicted for vandalism under $1000. The proof regarding this offense concerned damage

to Michael Hay’s vehicle on December 26, 1995. The jury found the defendant not guilty

of this offense.

              On appeal, the state is entitled to the strongest legitimate view of the

evidence and to all reasonable inferences which might be drawn therefrom. State v.

Cabbage, 571 S.W.2d 832, 836 (Tenn. 1978). When the sufficiency of the evidence is

challenged, the relevant question for the appellate court is whether, after reviewing the

evidence in a 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Williams, 657 S.W.2d 405,

410 (Tenn. 1983); T.R.A.P. 13(e). In the present case, the proof overwhelmingly supports

                                              1
the jury’s verdict.

               The defendant also argues that the offenses should have been severed and

he should have been tried separately for each offense. Although the jury acquitted the

defendant of vandalism under $1000, he argues that the “carry-over effect” of the other

charge seriously affected his right to a fair trial and an impartial jury. We disagree.

               Pursuant to Tenn. R. Crim. P. 14, (b)(1), if two or more offenses have been

joined or consolidated for trial pursuant to Rule 8(b), the defendant shall have a right to a

severance of the offenses unless the offenses are part of a common scheme or plan and

the evidence of one would be admissible upon the trial of the others. A trial court’s denial

of a motion for severance does not constitute reversible error unless a defendant shows

that he was clearly prejudiced. State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App.

1989). In the present case, the trial court instructed the jury that the defendant was

charged in two separate indictments, that each indictment was a separate and distinct

offense, and that the jury must decide each crime charged separately on the evidence and

law applicable to it. Although the defendant argues that the carry-over between the

indictments seriously prejudiced him, the jury instructions were clear and comprehensive.

Moreover, given the jury's not guilty verdict on the offense of vandalism under $1000, it is

clear that the jury understood their instructions and gave individualized consideration to

each offense. See State v. Wiseman, 643 S.W.2d 354, 362-63 (Tenn. Crim. App. 1982).

Accordingly, we affirm the trial court.

                                              TERRY L. LAFFERTY, SPECIAL JUDGE

CONCUR:

GARY R. WADE, JUDGE

THOMAS T. WOODALL, JUDGE

                                             2


973 P.2d 8 (1999)
Matt TORNETTA, Appellant,
v.
ALLSTATE INSURANCE COMPANY, Respondent.
No. 41305-8-I.
Court of Appeals of Washington, Division 1.
January 19, 1999.
*9 Steven J. Chance, Bellingham, WA, for Appellant.
Rick J. Wathen, Clarke, Bovingdon, Cole, Seattle, WA, for Respondent.
APPELWICK, J.
Matt Tornetta appeals the trial court's summary judgment dismissal of his bad faith, consumer protection act and contract claims against his insurer, Allstate Insurance Company.

FACTS
Matt Tornetta had both auto and renter's insurance through Allstate. Approximately two weeks after purchasing the renter's insurance, Tornetta's car was stolen and several items were stolen from it. At the time he purchased the renter's policy, Tornetta had also purchased optional coverage for certain jewelry items. Coverage on two items of jewelry would be effective only upon Allstate's receipt of certified appraisals. This optional coverage went into effect the same day the car was stolen.
Allstate paid for damages to the car under the auto policy. Tornetta filed a claim for the stolen contents of the car under his renter's policy. After three months of investigation, Allstate denied the claim. During the investigation Allstate interviewed Tornetta three times, spoke with the jeweler from whom Tornetta had requested an appraisal for the jewelry, spoke with and received documentation from both Jerry's Loans (regarding value of the jewelry) and Sports Car International (regarding the tires and wheels, for which Tornetta claimed he paid extra). Allstate had the following information prior to denying coverage:
 Tornetta twice told them he was the only person residing at the insured premises before finally admitting he had two roommates. Tornetta later claimed he had told the agent who sold him the policy that he had two roommates and that the agent told him not to worry, he'll just write one big policy instead of three.
 He twice told them he was currently employed at Hart's Athletic Club before finally admitting that he had not worked there in several months.
 He first told them he had paid for the Rolex watch with cash and the credit from another Rolex he traded in. He later told them that $1,000 of the watch's price was charged to his girlfriend's credit account.
*10  He first told them the shotgun was a gift from a friend. He later told them he got the shotgun in trade for a handgun from an acquaintance whom he did not know well. He told them he did not have the address or phone number of this acquaintance, but later said he had phoned the man immediately after the theft to let the man know he should complete the registration paperwork so the gun would no longer be registered in the acquaintance's name (in the event the stolen gun was later used in a crime).
 He told them that the main reason he took out renter's insurance was because he had spent a lot of money on wheels, rims and accessories for the car. The dealer told Allstate that the car had been sold with the wheels and rims.
 Allstate had a receipt from Jerry's Loan showing the jewelry was purchased four days before the theft for $1440, not the $4000 value Tornetta claimed. Although an Allstate adjuster had information suggesting that the receipt was incorrectly dated, putting them on notice that it might be falsified, Allstate confirmed in a follow-up letter to Tornetta that one of the reasons for denial of the claim was the discrepancy in the value of the jewelry. Tornetta claims he provided a certified appraisal for the jewelry, but no such appraisal is in evidence. After Allstate denied coverage, and upon Tornetta's request, Jerry's Loans advised Allstate that the receipt had been falsified. They said Tornetta had come into their store four days before the theft and asked for an appraisal, telling them the jewelry had already been stolen.
Allstate denied coverage based upon the policy, which provides "We do not cover any loss or occurrence in which any insured person has concealed or misrepresented any material fact or circumstance." Based upon the above information, Allstate concluded in a letter dated January 26, 1996, that Tornetta had misrepresented and concealed material facts, including but not limited to:
... information regarding the date of the claim, information regarding the facts and circumstances surrounding the claim, information regarding the ownership and the purchase of various items of property involved in the claim, information regarding prior loss history, information regarding the items claimed and value associated therewith, and information regarding the amount of the loss.
When Tornetta asked Allstate for more specific reasons for their denial of his claim, Allstate obliged, citing Tornetta's failure to disclose certain insurance claims, misrepresenting information about a prior auto break-in claim, misrepresentation about his employment status, and auto accessories which Tornetta claimed he purchased from Car Toys but for which Car Toys had no record of transaction. Upon Allstate's denial of the claim, Tornetta brought suit, alleging breach of contract, bad faith, negligence and violation of the Consumer Protection Act (CPA). The bad faith, negligence and CPA claims were dismissed on summary judgment in February 1997. Eight months later the trial court dismissed the contract claims on summary judgment. This appeal timely followed.

ANALYSIS
The appellate court reviews summary judgment orders de novo, engaging in the same inquiry as the trial court and assuming facts most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982); Gingrich v. Unigard Sec. Ins. Co., 57 Wash.App. 424, 428, 788 P.2d 1096 (1990). The burden is on the moving party to show there is no genuine issue of material fact. Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977).
Reasonableness of Allstate's Investigation and Denial of Coverage
Tornetta argues that the issue of the reasonableness of Allstate's investigation is not properly before this court. He argues that the reasonableness of Allstate's investigation is a coverage or contract issue and that because Allstate did not appeal the trial court's denial of its summary judgment as to those issues, the court's denial of summary judgment became the law of the case as to coverage and contract issues. As further *11 support for this theory, Tornetta claims he prevailed in arbitration on the issue of the reasonableness of Allstate's investigation and that Allstate also failed to appeal the arbitration order. Tornetta essentially argues that an order denying a motion for summary judgment becomes the law of the case.
Tornetta's theory is not persuasive. Neither the arbitration award, nor any evidence of an arbitration proceeding, is included in the record and we therefore do not consider this argument. RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wash.2d 801, 819, 828 P.2d 549 (1992). Nor can we agree that any order denying summary judgment becomes the law of the case absent a direct appeal in advance of a final order and judgment. Denial of a summary judgment motion is neither appealable nor final. Zimny v. Lovric, 59 Wash.App. 737, 740, 801 P.2d 259 (1990); Sea-Pac Co., Inc. v. United Food & Commercial Workers Local Union 44, 103 Wash.2d 800, 801-02, 699 P.2d 217 (1985). A final order from which no appeal is taken becomes the law of the case. State v. Sponburgh, 84 Wash.2d 203, 208, 525 P.2d 238 (1974). The final order in this case was entered October 1997, when the trial court granted Allstate's summary judgment motion as to the coverage and contract issues. That order, a final order, was timely appealed, placing before this court the issue of the reasonableness of Allstate's investigation. The law of this case has therefore not yet been established.
We need not, however, determine whether Allstate's investigation was reasonable. Tornetta's fraud in obtaining the renter's policy and during the investigation of his claim prevents him from recovering under the policy and under the CPA.
An Insured's Fraud or Bad Faith
The insurance policy which Allstate issued to Tornetta provided that it was void if obtained by misrepresentation, fraud or concealment of material fact. The trial court found that Tornetta misrepresented and concealed material facts with the intent to deceive in the policy application. Tornetta argues that the court improperly considered the application in making its determination. RCW 48.18.080(1) provides that an application for an insurance policy is inadmissible unless a copy of the application was attached to the policy when issued and delivered. There is no evidence in the record that the application was attached to the policy. However, Tornetta offered the document into evidence pursuant to ER 904. In the absence of a timely objection, a document offered pursuant to ER 904 is deemed admitted. Miller v. Arctic Alaska Fisheries, 133 Wash.2d 250, 253, 944 P.2d 1005 (1997). Tornetta argues that he offered the application into evidence prior to Allstate raising the issue of his misrepresentation on the application, and that he may not have offered the document had he known that Allstate would offer that defense. However, Tornetta provided two interviews, a statement under oath, and declarations in the summary judgment motions in which he admitted the information contained in the application. The information in the application was thus before the court, even without the application, so Tornetta suffers no harm in the admission of the application. Nor will this court create a rule limiting the scope of admissibility of a document so that a litigant may perpetrate a fraud. There is no issue of material fact as to Tornetta's intent to deceive Allstate in policy application. The policy was therefore void.
Tornetta argues that his bad faith and CPA claims may go forward in the absence of coverage. Our Supreme Court has so held in the recent opinion Coventry Assoc. v. American States Ins. Co., 136 Wash.2d 269, 961 P.2d 933(1998). In Coventry the insurer conceded it acted in bad faith, while the insured conceded there was no coverage as a matter of law. The court held that an action for bad faith or CPA may still lie, but the insured must establish it was harmed. In the first party coverage context, no rebuttable presumption of harm arises. Coventry, 136 Wash.2d at 284, 961 P.2d 933. If bad faith is found, damages are limited to "the consequential damages to the insured as a result of the insurer's breach of its contractual and statutory obligations." Coventry, 136 Wash.2d at 284, 961 P.2d 933. Tornetta provides *12 no evidence of such consequential damages.
Nor may a plaintiff who has engaged in fraud pursue a bad faith or CPA claim. An insured's fraud is dispositive in such a case. "[T]he purpose of the CPA will not be served by awarding damages, attorney fees, and costs to [an insured] after he tried to perpetrate a fraud on [the insurer].... We need not further punish [the insurer] when to do so would provide a windfall to one guilty of fraud." Mutual of Enumclaw Ins. Co. v. Cox, 110 Wash.2d 643, 652, 757 P.2d 499 (1988); Wickswat v. Safeco Ins. Co., 78 Wash.App. 958, 970-71, 904 P.2d 767 (1995).
Attorney Fees
Tornetta requests attorney fees on appeal, citing Olympic Steamship Co. v. Centennial Ins. Co., 117 Wash.2d 37, 811 P.2d 673 (1991). Attorney fees under Olympic Steamship are available only when the insured prevails. Tran v. State Farm Fire and Cas. Co., 136 Wash.2d 214, 961 P.2d 358 (1998); Greengo v. Public Employees Mutual Ins. Co., 135 Wash.2d 799, 959 P.2d 657 (1998). Because he does not prevail on appeal, Tornetta is not entitled to attorney fees.
We affirm the trial court's decision.
KENNEDY, C.J., and GROSSE, J., concur.


50 F.3d 18
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Valentin VIZCARRA-CORONEL, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 94-70324.
United States Court of Appeals, Ninth Circuit.
Submitted March 21, 1995.*Decided March 23, 1995.

Before:  SNEED, POOLE, and BRUNETTI, Circuit Judges.

1
MEMORANDUM**

2
Valentin Vizcarra-Coronel petitions for review of a Board of Immigration Appeals' (BIA) order affirming the Immigration Judge's (IJ) order of deportation.  Vizcarra-Coronel alleges that the deportation proceedings violated due process.  We have jurisdiction under 8 U.S.C. Sec. 1105a(a) and we deny the petition.

3
The due process clause applies to deportation proceedings.  Baires v. INS, 856 F.2d 89, 90-91 (9th Cir.1988).

4
Vizcarra-Coronel first argues that the IJ violated his right to due process by denying his motion for a continuance.

5
On December 15, 1993, Vizcarra-Coronel entered a guilty plea to possession of cocaine in state court.  On January 12, 1994, he was sentenced to three years of probation on the condition that he serve ninety days in jail.  The deportation hearing was held on March 10, 1994 while Vizcarra-Coronel was serving his custodial sentence.  Vizcarra-Coronel sought a continuance so that he could collaterally attack his guilty plea.  Because the guilty plea had been entered with the assistance of counsel and no petition was pending at that time, the IJ denied the request.  The IJ further noted that if Vizcarra-Coronel successfully attacked his conviction, he could move to reopen the deportation proceedings.

6
A conviction may be considered for deporation purposes even though it is subject to collateral attack.  Grageda v. United States INS, 12 F.3d 919, 921 (9th Cir.1993).

7
Here, Vizcarra-Coronel had not filed a direct appeal or a collateral attack.  Because Vizcarra-Coronel entered a guilty plea, his grounds for attack were limited.  See People v. Gonzalez, 13 Cal.App.4th 707, 714 (1993) (a defendant who enters a guilty plea can appeal only jurisdictional issues);  People v. Goodrum, 228 Cal.App.3d 397, 400-01 & nn. 4 & 5 (1991) (defendant may file a collateral attack to invalidate a guilty plea based on fraud or a misunderstanding of facts).  Therefore, we discern no error in the denial of the continuance.  See Grageda, 12 F.3d at 921 (IJ properly denied motion to continue because conviction was final after alien exhausted right to direct appeal and the pending collateral attack did not impact the finality of the conviction);  Hernandez-Almanza v. United States Dep't of Justice, INS, 547 F.2d 100, 103 (9th Cir.1976) (conviction was final when defendant entered guilty plea and waived direct appeal).

8
Vizcarra-Coronel also argues that the IJ deprived him of due process by denying him the opportunity to seek discretionary relief from deportation under 8 U.S.C. Sec. 1182(c).  This argument lacks merit.  One of the requirements for such relief is seven consecutive years of lawful domicile in the United States.  8 U.S.C. Sec. 1182(c).  "The seven-year period runs from the date when the alien is admitted for permanent residence."  Avila-Murrieta v. INS, 762 F.2d 733, 734 (9th Cir.1985).  Here, Vizcarra-Coronel admitted that he attained permanent residence status on October 16, 1989.  Therefore, when the IJ found that "based on his being a permanent resident only since 1989, [Vizcarra-Coronel] is ineligible for any relief whatsoever under the Immigration laws," the IJ correctly disposed of this issue.  See Raya-Ledesma v. INS, 42 F.3d 1263 (9th Cir.1994).

9
Vizcarra-Coronel next argues that the BIA violated his due process rights by depriving him of a reasonable opportunity to file an appellate brief.  We disagree.

10
The regulations allow the appealing party to file a brief "within the time fixed."  8 C.F.R. Sec. 3.3(c) (1994).  When the IJ transmitted the testimony of record to Vizcarra-Coronel on April 4, 1994, the due date for Vizcarra-Coronel's brief was April 19.  Vizcarra-Coronel did not submit a brief until May 18.  The BIA received the brief on May 24, but by that time, the BIA had disposed of the appeal.

11
Vizcarra-Coronel disregarded the due date for filing a brief and he does not explain why he failed to meet the deadline.  Vizcarra-Coronel did not take advantage of the regulation that allows an extension of time for good cause.  See id.   Moreover, Vizcarra-Coronel cannot establish prejudice because the BIA reviewed the record and considered the issue listed in the notice of appeal.  Therefore, we conclude that the briefing schedule did not violate Vizcarra-Coronel's due process rights.

12
Finally, Vizcarra-Coronel argues that the BIA violated his due process rights by failing to enunciate reasons for dismissing the appeal.  This contention lacks merit because the BIA affirmed for the reasons stated by the IJ.  See Ramirez-Gonzalez v. INS, 695 F.2d 1208, 1212-13 (9th Cir.1983).

13
PETITION DENIED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  9th Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


739 F.Supp. 867 (1990)
DUBIED MACHINERY COMPANY, Plaintiff,
v.
VERMONT KNITTING CO., INC., Defendant.
No. 85 Civ. 8610 (PKL).
United States District Court, S.D. New York.
June 12, 1990.
*868 Warshaw Burstein Cohen Schlesinger & Kuh, New York City (Martin R. Lee, Jeffrey H. Weinberger, of counsel), for plaintiff.
Lisman & Lisman, Burlington, Vt., (E. William Leckerling, of counsel), Cohen, Shapiro, Polisher, Shiekman and Cohen, Philadelphia, Pa. (Alan M. Lerner, of counsel), Hall, Dickler, Lewler, Kent and Friedman, New York City (Leonard Wagman, of counsel), for defendant.

OPINION AND ORDER
LEISURE, District Judge.
This is an action for breach of a sales contract and for replevin, with jurisdiction of this Court based on diversity of citizenship. Defendant has counterclaimed, alleging breach of warranty, and other counterclaims. Plaintiff has now moved for judgment on the pleadings on the first, third, sixth, and ninth causes of action pursuant to Fed.R.Civ.P. 12(c), or, in the alternative, for summary judgment on those causes of action pursuant to Fed.R.Civ.P. 56.

BACKGROUND
Plaintiff Dubied Machinery Company, Inc. ("Dubied") is a New York corporation which is in the business of selling and servicing commercial knitting equipment, including the computers and software necessary to operate such equipment. Defendant Vermont Knitting Company ("VKC") was a Vermont corporation that was in the *869 business of manufacturing sweaters and other knitted garments.
In or about September 1984, Norton Davis ("Davis"), president of VKC, contacted Dubied regarding the possible purchase of knitting machinery by VKC. Two days after that conversation, Davis and his wife met with Robert Schneider, the president of Dubied. During this meeting, Schneider showed Davis and his wife four knitting mills in the New York City area that used Dubied knitting equipment. About a month after the tour of the mills, VKC ordered two Jet-3 knitting machines (the "Jet-3 machines") and one Jet-3F knitting machine from Dubied, as well as a computer and software to run the knitting machines. See Affidavit of Martin R. Lee, Esq., sworn to on March 15, 1990, Exh. 1.
Two of the Jet-3 machines were delivered to VKC in late May, 1985, some months after their original order date. The computer and software were delivered in August 1985. Plaintiff's Statement of Undisputed Facts, ¶ 7. While VKC was awaiting delivery of the Jet-3 machines, Dubied loaned a used Jet-2 knitting machine (the "Jet-2 machine") to VKC to allow VKC to continue production while it awaited the Jet-3 machines. It appears that the Jet-3F knitting machine was never delivered.[1] Also, from April to September 1985, Dubied supplied VKC with goods and services related to the operation and maintenance of knitting equipment. None of the equipment or services have been paid for, except for nominal downpayments.
Defendant asserts that none of the Dubied equipment it received ever worked properly, and thus prevented defendant from operating its business in an efficient fashion. In particular, defendants claim that the Jet-3 machines were improperly installed, required constant maintenance and failed to operate consistently. Defendant further asserts that the Jet-2 machine was in poor condition when delivered and required substantial modification before it became useful to the company.
The instant action was filed on October 31, 1985. In late November 1987, defendant filed for protection under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. The bankruptcy litigation has been converted to a liquidation under Chapter 7 of the Bankruptcy Code, and remains pending in the District of Vermont. The bankruptcy court issued an order granting relief to the present parties from an automatic stay of litigation so that they might pursue their claims and counterclaims in this Court. By order dated February 21, 1989, this Court denied defendant's motion to transfer this action to the United States District Court for the District of Vermont. Subsequently, plaintiff filed the instant motion.[2]

DISCUSSION
Plaintiff has moved for judgment on the pleadings, or, in the alternative, for summary judgment. A motion for judgment on the pleadings under Fed.R.Civ.P. 12(c) must be decided solely on the pleadings before the Court, plus any materials implicitly or explicitly incorporated by reference into those pleadings. See Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir.1985). A party is entitled to judgment on the pleadings under Rule 12(c) "only if it has established `that no material issue of fact remains to be resolved and that [it] is entitled to judgment as a matter of law.'" Juster Associates v. Rutland, 901 F.2d 266, 269 (2d Cir.1990), quoting 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1368, at 690 (1969). Where the Court is confronted with matters outside of *870 the pleadings that it wishes to consider, it should treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56. See Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir.1990); National Association of Pharmaceutical Mfrs., Inc. v. Ayerst Laboratories, 850 F.2d 904, 911 (2d Cir.1988).
Fed.R.Civ.P. 12(c) requires that when a court decided to treat a motion to dismiss as one for summary judgment, "all parties shall be given reasonable opportunity to present all materials made pertinent to such motion by Rule 56." Rule 12(c). See Ayerst, supra; Villante v. Department of Corrections, 786 F.2d 516, 521 (2d Cir.1986). In the instant case, defendant was on notice that the Court might choose to consider the instant motion as one for summary judgment, as plaintiff framed its motion as one for both judgment on the pleadings and for summary judgment. Further, the material submitted by defendant's current counsel was of the type relevant only to a motion for summary judgment. Given the volume and relevance of the non-pleading material submitted in conjunction with this motion, the Court chooses to consider the instant motion as one for summary judgment.
Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "`Summary judgment is appropriate when, after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.'" Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10 (2d Cir.1989), (quoting Murray v. National Broadcasting Co., 844 F.2d 988, 993 (2d Cir.), cert. denied, 488 U.S. 955, 109 S.Ct. 391, 102 L.Ed.2d 380 (1988)).
The substantive law governing the case will identify those facts which are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.... While the materiality determination rests on the substantive law, it is the substantive law's identification of which facts are crucial and which facts are irrelevant that governs." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there does indeed exist a genuine issue for trial." Id. at 249, 106 S.Ct. at 2511; see also R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107 (2d Cir.), cert. denied sub nom. Thomas J. Lipton, Inc. v. R.C. Bigelow, Inc., ___ U.S. ___, 110 S.Ct. 64, 107 L.Ed.2d 31 (1989). The party seeking summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion" and identifying which materials it believes "demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); see also Trebor Sportswear Co. v. Limited Stores, Inc., 865 F.2d 506, 511 (2d Cir.1989). "[T]he burden on the moving party may be discharged by `showing' that is, pointing out to the district courtthat there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 477 U.S. at 325, 106 S.Ct. at 2554.
Indeed, once a motion for summary judgment is properly made, the burden then shifts to the nonmoving party, which "must set forth facts showing that there is a genuine issue for trial." Anderson, supra, 477 U.S. at 250, 106 S.Ct. at 2511. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citations omitted).

A) Goods Sold and Delivered
The Court is faced with a complex civil procedure problem by defendant's pleading *871 in response to plaintiff's claims, and by defendant's less than thorough response to the instant motion. Defendant has filed, and plaintiff has answered, extensive counterclaims alleging, inter alia, breach of warranty and fraudulent misrepresentation on the part of plaintiff in relation to the Jet-3 machines. Defendant has failed to plead explicitly any affirmative defenses to plaintiff's claims. Fed.R.Civ.P. 8(c) requires that affirmative defenses be pled in the answer to the complaint, or they are deemed waived. See Fed.R.Civ.P. 8(c); United States on behalf of Maritime Admin. v. Continental Illinois Nat'l Bank & Trust Co., 889 F.2d 1248, 1253 (2d Cir. 1989); Wade v. Orange County Sheriff's Office, 844 F.2d 951, 955 (2d Cir.1988).
However, in the spirit of the liberal pleading requirements of the Federal Rules of Civil Procedure, Rule 8(c) states, "[w]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the Court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation." The purpose of this portion of the Rule "is to allow a court to ignore improper designations in order to interpret a pleading in accordance with its true character." Bozsi Limited Partnership v. Lynott, 676 F.Supp. 505, 516 (S.D.N.Y.1987). See also Morris v. Homco International, Inc., 853 F.2d 337, 342 (5th Cir.1988) ("The purpose of Rule 8(c) ... is to inform the court and the parties how the case will be tried."). "The misdesignation provision in Rule 8(c) reflects the conscious attempt by the draftsmen to ignore pleading technicalities; it also promotes the liberality with which courts generally construe pleadings under the federal rules." 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1275 at 326 (1969).
In the instant case, defendant's counterclaims include allegations that could be pled as affirmative defenses or as counterclaims. In particular, defendant's allegations of fraudulent misrepresentation and breach of warranty could act as affirmative defenses to plaintiff's contract claims for goods sold and delivered. Indeed, defendant in its papers in opposition to plaintiff's instant motion have indicated that its counterclaims should also be read as affirmative defenses. See Defendant's Memorandum of Law at 2. The Court finds that, pursuant to Rule 8(c), such a reading of defendant's counterclaims is appropriate. Plaintiff has been on notice since the filing of the original answer and counterclaims of defendant's allegations. It is just such a provision of notice that is the goal of Rule 8(c). Where a plaintiff has been made aware of the defendant's theory of the case, as plaintiff was here, it would be counter to the language and spirit of Rule 8(c) to fail to recognize an affirmative defense simply because it was labeled solely as a counterclaim.[3]
In light of the defenses to plaintiff's contract claims for goods sold and delivered pled in the form of a counterclaim, the Court finds that there are genuine issues of material fact going to the merits of plaintiff's claims. In particular, there is evidence, in the form of the affidavit of Norton Davis that officials of Dubied made false representations regarding the performance of the Jet-3 machines. Affidavit of Norton Davis, sworn to on November 29, 1989 ("Davis Aff."), ¶¶ 5, 18. Further, there are factual issues regarding the performance of the Jet-3 machines actually delivered to VKC. Davis Aff., ¶ 19, Exh. A.
Plaintiff urges the Court to enter summary judgment on its contract claims on the basis that the goods were delivered and accepted, and that evidence of the delivery and of an agreed-upon price has been placed before the Court. Plaintiff correctly points out that defendant has not challenged plaintiff's assertions of delivery, acceptance and price. Plaintiff cites a number of cases for the proposition that where a party has shown that goods were actually sold and delivered, summary judgment *872 should be granted for that party, even in the face of a claim for set-off by the opposing party. See Delta Tanning Corp. v. Samber Leather Fashions, Ltd., 654 F.Supp. 1285 (S.D.N.Y.1987); T.S.I. 27, Inc. v. Berman Enterprises, Inc., 115 F.R.D. 252 (S.D.N.Y.1987); Electro-Catheter Corp. v. Surgical Specialties Instrument Co., 587 F.Supp. 1446 (D.N.J.1984). However, in none of the cases cited was the Court faced with an affirmative defense going to the viability of the contract relationship or to the satisfactory nature of the goods. Thus these cases are not controlling in the instant motion. The Court finds that there are genuine issues of material fact as to the first, third and sixth causes of action.

B) Replevin
Plaintiff's ninth cause of action is for replevin[4] of the Jet-2 machine which was lent to VKC and has never been returned.[5] To establish a cause of action under CPLR Article 71, plaintiff "must show that [it] has an immediate and superior right to possession of the [goods]." De Weerth v. Baldinger, 658 F.Supp. 688 (S.D.N.Y.), rev'd on other grounds, 836 F.2d 103 (2d Cir.1987), cert. denied, 486 U.S. 1056, 108 S.Ct. 2823, 100 L.Ed.2d 924 (1988). Indeed, in a replevin action, "`the issue is strictly whether plaintiff or defendant has the superior possessory right.'" Wurdeman v. Miller, 633 F.Supp. 20, 22 (S.D.N.Y.1986), citing Honeywell Information Systems, Inc. v. Demographic Systems, Inc., 396 F.Supp. 273, 275 (S.D.N.Y.1975).
In the instant case, the Jet-2 machine was indisputably loaned to VKC solely for the purpose of providing VKC some manufacturing capacity while awaiting the late delivery of the Jet-3 machines. Title in the Jet-2 machine has remained in Dubied during the entire time the machine has been in the possession of VKC. Indeed, VKC does not claim any title or right to the Jet-2 machine, except as security for satisfaction of its counterclaims against Dubied.[6] VKC's would certainly have a valid security interest in the Jet-2 machine if one or more of its counterclaims related to that machine. However, all of the counterclaims relate solely to the Jet-3 machines. The Jet-2 machine is never mentioned in the counterclaims.
"[T]here are defenses which, if asserted in good faith, will defeat [] an application [for replevin] pending trial." Scutti Pontiac, Inc. v. Rund, 92 Misc.2d 881, 884, 402 N.Y.S.2d 144, 147 (Sup.Ct.1978). Indeed, a defendant in a replevin action is "entitled to present any good faith defense ... that it has a superior possessory right to the [goods at issue]." F. & M. Schaefer Corp. v. Electronic Data Systems Corp., 430 F.Supp. 988 (S.D.N.Y.1977), aff'd without opinion, 614 F.2d 1286 (2d Cir.1979). However, "the mere assertion of a defense or counterclaim will not defeat the right to an order of seizure." Scutti Pontiac, supra, 402 N.Y.S.2d at 147. While there is a paucity of caselaw on what defenses are effective against replevin action, "[a] claim of fraud in the inducement can in some circumstances defeat a replevin motion." General Motors Acceptance Corp. v. Berg and Duffy, 118 Misc.2d 525, 527, 460 N.Y. S.2d 899, 901 (Sup.Ct. Nassau Co.1983).
However, VKC's only defenses and counterclaims in this action relate to the Jet-3 machines, not to the Jet-2 machine. While those counterclaims might act as a defense to a replevin action against the Jet-3 machines delivered to VKC, they cannot act as a defense to the action related to the Jet-2 machines. The factual *873 questions raised by defendant's counterclaims do not affect its obligation to return the Jet-2 machine. A party cannot simply seize another's property and defend against an action to recover that property on the grounds that it is security for other claims that party has against the owner. Cf. Centurion Reinsurance Co. v. Singer, 810 F.2d 140, 145 (7th Cir.1987). Even if VKC had pled in its counterclaims that the Jet-2 machine failed to perform properly, it would not be a sufficient defense to the instant replevin action. "[E]ven taking defendants' allegations of poor equipment performance as true, defendant fails to state a valid defense to a replevin action where, as here, performance was not a condition [on the loan of the Jet-2 machine]." Honeywell Information Systems, Inc. v. Demographic Systems, Inc., 396 F.Supp. 273, 275 (S.D.N.Y.1975). Defendant's alleged security interest in the Jet-2 machine due to its counterclaims regarding the Jet-3 machines is not sufficient to defeat plaintiff's replevin action. Accordingly, plaintiff's motion for summary judgment on its ninth cause of action is granted.
It is not clear from plaintiff's pleading under what section of CPLR Article 71 plaintiff is proceeding in its effort to regain possession of the Jet-2 machine. CPLR 7101 provides a remedy for determining right to possession, but does not automatically provide for seizure of the goods at issue. See McLaughlin, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR C7101:1 et seq. An explicit action for seizure must be brought to obtain an order requiring that the sheriff seize the goods in question. In the instant case, plaintiff has requested only that the Court adjudge it as the owner of the Jet-2 machine and entitled to immediate possession thereof, and that Dubied either be allowed to take possession of the machine or have it delivered to it. If delivery is not possible, plaintiff demands that the value of the machine be awarded as damages. Second Amended Complaint, ¶ 62I. Plaintiff's request for recovery is within the scope of Article 71. The Court finds that plaintiff is the owner of the Jet-2, and is entitled to possession thereof.

CONCLUSION
Plaintiff's motion for summary judgment on the first, third, and sixth causes of action is denied. Plaintiff's motion for summary judgment on the ninth cause of action is granted.
Plaintiff shall contact the Court within twenty (20) days of this order to set a time convenient to the parties and the Court for a pre-trial conference in this matter.
SO ORDERED.
NOTES
[1]  It is not clear from the record what became of the Jet-3F machine ordered by VKC.
[2]  During the submission period of this motion, defendant was represented by the firm of Lisman & Lisman, which filed opposition papers to plaintiff's motion only after a substantial delay. Subsequent to the submission of the motion, defendant relieved Lisman & Lisman as its counsel and retained the firm of Cohen, Shapiro, Polisher, Shiekman and Cohen. Upon formally appearing in the case, defendant's new counsel requested permission to reopen the record on this motion. By order dated January 31, 1990, the Court allowed a limited reopening of the record. Plaintiff's responding papers to the new material submitted by defendant were filed on March 15, 1990.
[3]  It is permissible to label a response to a plaintiff's cause of action as both an affirmative defense and as a counterclaim.
[4]  The common law remedy of replevin is now controlled by N.Y.Civ.Prac.L. & R. ("CPLR") Article 71.
[5]  It appears that the Jet-2 machine at issue has been removed by the bankruptcy trustee for VKC from defendant's Vermont facility and has been placed in storage in South Carolina. See Affidavit of Douglas J. Wolinsky, sworn to on August 3, 1989, ¶ 2.
[6]  On June 7, 1989, the bankruptcy trustee for VKC filed a Notice of Intent to Abandon Property regarding the Jet-2 machine. The abandonment was opposed by Dubied and by Davis, and thus the abandonment was apparently not completed. The status of the abandonment proceeding has no impact upon the outcome of the instant motion.


253 A.2d 622 (1969)
Hugh D. AUCHINCLOSS
v.
HALLORAN CONSTRUCTION CO. OF RHODE ISLAND.
No. 538-Appeal.
Supreme Court of Rhode Island.
May 21, 1969.
Albert Lisker, Milton Bernstein, Patrick O'N. Hayes, for plaintiff.
Martin M. Zucker, for defendant.

OPINION
PAOLINO, Justice.
This is a civil action to recover damages for the destruction of a windmill by a fire caused by the defendant's negligence. The *623 cause was heard before a justice of the superior court sitting without a jury and resulted in a decision for the plaintiff in the amount of $1,212 plus interest and costs. The case is before this court on the plaintiff's appeal from the judgment entered on the basis of the trial justice's decision. The grounds of the appeal are that the trial justice committed prejudicial error in excluding certain testimony and that he erred in finding that the plaintiff failed to prove the value of the windmill at the time of the loss by a fair preponderance of the evidence.
The pertinent facts follow. On October 27, 1965, plaintiff was the owner of a large estate in the city of Newport known as "Hammersmith Farm." Among the various buildings on the estate was a wooden windmill which was about 100 years old. Prior to the installation of the Newport water system, the windmill was used to pump and store water for the estate and for a certain period of time thereafter it was used as an emergency water system. Long before October 27, 1965, the structure had ceased to be used as a windmill. All of the machinery, including the electric pump which had been used to pump water, had been removed from the building and it was no longer serving as a reservoir for water or as an auxiliary water system.
The plaintiff desired to move the windmill from its existing foundation to another location approximately one quarter of a mile from its original site. He planned to put the windmill in a state of good repair on a new foundation, to erect an addition to it when it was removed to its new location, to provide suites of rooms for his guests in the addition, and to install an elevator. He hired Mrs. Anna M. Tillinghast of Portsmouth, a landscape architect and architectural designer, to draw the plans and make arrangements for the repair, removal and relocation of the windmill. As the agent for the plaintiff she hired Alfred P. Venancio, a general contractor, to do certain work to prepare the structure for removal to the new site. Mr. Venancio testified that it needed a few sills and some reshingling, and he estimated that it would cost approximately $1,500 to put the building in reasonably good condition. In accordance with plaintiff's directions he did certain repair work on the building to prepare the building for moving, but he never completed the work.
Mrs. Tillinghast also entered into a contract with defendant agreeing to pay defendant the sum of $2,300 for removing the wind vane, shafting and I-beams under the water tank, jacking up the building so that another contractor could replace necessary timbers preparatory to the moving of the building, moving the building to the new location, and placing the building upon a foundation to be erected by another contractor. The contract included an express agreement by defendant "* * * to properly safeguard the windmill building from any damage to the same in moving it and to pay the cost of repairing any damage that may result to the building while being moved and placed on said foundation."
On October 27, 1965, while defendant's employees were burning some piping inside the windmill with an acetylene torch, a fire broke out which totally destroyed the windmill. As a result of the fire plaintiff brought the present action claiming that the fire was caused by the negligence of defendant's employees and that as a result thereof he sustained money damages.
At the hearing in the superior court plaintiff presented evidence that, although the windmill was somewhat weatherworn, at the time of the fire it was basically still a sound structure; that it would have cost approximately $1,500 to put the building in a state of good repair by replacing certain sills that had decayed and by replacing missing shingles; that, in addition to the age of the building, it was a significant part of the family heritage and of great value to the owner and to the public in general; that it was the symbol of the estate and was depicted on the iron gates of the entranceway to the estate; that it was *624 used by the family and others as a subject of paintings and was mentioned in several publications dealing with the history of Newport; and that it was used as a navigational aid to seamen and navigators entering Newport Harbor and was even depicted on their charts.
Mr. Venancio testified in substance as follows. After the fire he gave an estimate for the cost of constructing a new mill. His cost estimate was $18,125 for framing and boarding the structure, $4,475 for the new foundation in the new location, and $5,000 for shingling and window framing. He worked from plans given him by Mrs. Tillinghast, which were the original plans of the old mill. He received payment of those amounts from plaintiff as well as $860 for the work he performed in preparing the building for removal prior to the fire and $352 to remove the debris after the fire. Aside from his statement that he worked off the plans of the old building, there is nothing in his testimony showing that the new building was the same size as the old one, but his testimony does show that the new structure was erected for occupancy by human beings and that it included certain features not possessed by the old windmill.
Mrs. Tillinghast testified for plaintiff. Her testimony, insofar as here pertinent, follows. She had the original plans of the old building which plaintiff had turned over to her. She had engaged Mr. Venancio to erect the new foundation. She gave the dimensions of the old building but admitted in cross-examination that these figures were only her estimates. She gave Mr. Venancio the original construction drawings of the mill and asked him to give her an estimate. He gave an estimate of $22,650 which was for reproducing the old mill "To the extent that the old mill existed." This estimate did not include everything that was in the old building, such as the shingles and the windows. Rather, it was to be framed and boarded. The additional cost for the windows and the shingles was $5,000. Mrs. Tillinghast obtained another estimate from one William Singleton. His estimate according to Mrs. Tillinghast was $22,000 to reconstruct the old mill for framing and boarding, exclusive of the shingling and windows. She also stated that the new mill was bigger than the old one.
We note here that there was no other testimony from any other witness as to the dimensions of the old building or the new building. Mrs. Tillinghast's testimony with respect to measurements was based solely on her estimates and on her recollection from her memory of the plans. She stated she did not have the plans of the old mill in court, that she had been looking for them, and had not come across them. The plaintiff presented no evidence on the question of depreciation.
The plaintiff claims he is entitled to $21,675 plus the $860 expended for the preparatory work and $352 expended for the cost of removing the debris. He arrives at this figure in the following manner. The price of reproduction of the building was $22,650 for framing and boarding of the structure plus $5,000 for shingling and windows. Included in this figure was the cost of a foundation which was not damaged by fire. That amount was $4,475. By deducting from the total of $27,650 the cost of the foundation and $1,500, which was the cost of putting the building in good repair, plaintiff arrived at the figure of $21,675.
After the hearing the trial justice rendered a decision wherein he found that the fire was caused by defendant's negligence and that consequently plaintiff was entitled to recover damages from defendant. He reviewed the evidence with particular reference to the testimony of Mr. Venancio and Mrs. Tillinghast. He also referred to plaintiff's exhibit No. 2, the specification setting forth the work that was to be done in preparing the building for removal to the new location. He found that plaintiff had maintained his burden of proving entitlement to recovery for the payments of $860 and $352 which he had made to Mr. *625 Venancio for the work of preparing the building for removal prior to the fire and for the removal of the debris after the fire. However, with respect to the value of the structure he concluded that there was not enough evidence before him on which he could render a decision as to damages.
In discussing Mr. Venancio's testimony, as substantially corroborated by that of Mrs. Tillinghast, as to the cost of reconstructing the building on a different site, he pointed out that the evidence showed that the new building was different in size from the old windmill. He also noted that there was no evidence of market value of the building on the day of the fire, and that because of the nature of the building, there could not be any for the reason that there would not be evidence of comparable sales of windmills in this locale. He then stated that where the character of the property is such as to not be susceptible to the application of the doctrine of market value based upon comparable sales, resort is had to the current cost-of-reproduction-less-depreciation rule of damages, in which the element of depreciation must be taken into account. After discussing the latter rule, he held in effect that plaintiff had presented no evidence on the question of depreciation, except the testimony that the building was 100 years old, and that this was not enough. Accordingly, he ordered that judgment be entered for plaintiff only for the sum of $1,212, which represented $860 for the cost of preparing the building for removal and $352 for the cost of removing the debris.
The plaintiff has discussed at great length the various rules governing the recovery of damages for the tortious destruction of property. He talks about the diminution-of-value rule, the restoration or cost-of-repair rule, and the value-to-the-owner rule. He concedes that the diminution-of-value rule has no application in this case because that rule is based on the fact that the property has market value and he admits that a windmill in this part of the country has no market value. But he argues, as we understand his brief, that either the restoration or cost-of-repair rule, or the value-to-the-owner rule, apply to the facts of this case.
The trial justice based his decision squarely on his finding that there was insufficient evidence from which he could determine the value of the windmill. The plaintiff contends that the trial justice erred in so finding. We have examined the record keeping in mind what we said only recently in DeSpirito v. Bristol County Water Co., 102 R.I. 50, 53-54, 227 A.2d 782, 784 that "* * * the law is always concerned that an injured party shall be fully compensated for whatever injury he may have sustained." In DeSpirito, we applied the value-to-the-owner rule to certain articles of personal property which had been damaged by the negligence of the water company. Our examination of the transcript convinces us that the trial justice was justified in concluding that there was not enough evidence before him on which he could render a decision as to damages to the windmill without just taking a figure from the air. In our judgment this is so whether we apply the restoration or cost-of-repair rule, or the value-to-the-owner rule.
Because of the difference in size of the two structures, the estimates of the cost of the new building are of no help in determining the cost of restoration of the old building. The plaintiff presented no evidence of the dollar value of the building just before the fire. Nor did he meet the test of the value-to-the-owner rule as set forth in DiSpirito, supra. On the view we take, we do not reach the question of depreciation or the plaintiff's objections to the evidentiary rulings. The award of $860 for the preparatory work and $352 for the removal of the debris was warranted.
The appeal of the plaintiff is denied and dismissed, and the judgment appealed from is affirmed.


Affirmed and Opinion filed December 16, 2003

Affirmed and Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals
____________

NO. 14-02-01172-CR
____________

HECTOR J. ESPITIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd
District Court
Harris County, Texas
Trial Court Cause No. 898,187

O P I N I O N
Appellant, Hector J. Espitia, was
convicted by a jury of aggravated sexual assault of a child.  The jury sentenced appellant to eight years= confinement in the Institutional
Division  of the Texas Department of
Criminal Justice and assessed a fine of $10,000.  On appeal, appellant challenges the factual
sufficiency of the evidence supporting his conviction.  We affirm.

In March of 1995, the complainant, then ten years old, was an
overnight guest of appellant=s daughter.  The
complainant testified at trial describing repeated visits by appellant during
which she was abused.  She began by
explaining that she awoke sometime during the night to discover that her pants
and underwear had been removed and were on the floor.  The complainant put her pants and underwear
on and returned to bed.  Through an open
door, the complainant stated that she could see appellant standing in his
bedroom.  Sometime later, appellant
entered his daughter=s bedroom and removed the complainant=s pants and underwear.  The complainant testified that she pretended
to be asleep while appellant lowered his own pants and placed his penis inside
her vagina.  She stated that the contact
did not last very long, but it was very painful.  After appellant left the bedroom, the
complainant got dressed again.
Thereafter, however, the complainant testified that appellant reentered
the bedroom, turned her over, removed her pants and underwear, and placed his
penis in her anus.
The complainant did not cry out during appellant=s visits to the bedroom and her
friend, appellant=s daughter, never awoke during the assault.  After dressing, the complainant, feigning
stomach pain, went into the living room to call her mother on the
telephone.  When questioned by appellant
as to what she was doing, the complainant said her stomach hurt and that she
had been having bad dreams.  Appellant
allowed the complainant to call her mother, who subsequently picked her
up.  Upon returning home, the complainant
noticed blood in her underwear; however, the complainant did not tell her
mother about the assault.
In March 2000, six years later, the complainant  told her boyfriend about the abuse.  At his insistence, the complainant told her
mother about the abuse.  The complainant=s mother then confronted appellant
and his wife.  Appellant denied the
abuse.  After discussions with the family
priest and attorney, the complainant decided to notify the authorities.  In October 2001, the complainant filed a
complaint against appellant with the Houston Police Department and an
investigation was launched. In addition to the police questioning, the
complainant received counseling from the Houston Area Women=s Center and was subjected to medical
exams. An indictment was returned in February 2002 charging appellant with
sexual assault.  The indictment alleged
the assault was perpetrated when appellant penetrated the complainant=s sexual organ and anus with his
sexual organ.

In two points of error, appellant contends the trial court
erred in denying his motion for instructed verdict because the evidence is factually
insufficient to establish penetration of the complainant=s sexual organ and anus.  However, a motion for an instructed verdict
is an attack on the legal sufficiency of the evidence.  Garcia v. State, 17 S.W.3d 1, 4 (Tex.
App.CHouston [1st Dist.] 1999, pet. ref=d).
It is inappropriate, therefore, to assert the trial court erred in
denying a motion for instructed verdict because the evidence was factually
insufficient.  Because appellant seeks
only a reversal, and not an acquittal, we will construe appellant=s issues as a conventional attack on
the factual sufficiency of the evidence.

When reviewing claims of factual insufficiency, it is our
duty to examine the fact-finder=s weighing of the evidence.
Clewis v. State, 922 S.W.2d 126,
133-34 (Tex. Crim. App. 1996).  There are two ways in
which evidence can be factually insufficient: (1) the evidence is so weak as to
be clearly wrong or manifestly unjust, or (2) the finding of a vital fact is so
contrary to the great weight and preponderance of the evidence as to be clearly
wrong.  Zuliani
v. State, 97 S.W.3d 589, 593 (Tex. Crim. App.
2003).  Determining which standard
applies depends upon whether the complaining party had the burden of proof at
trial.  Id.  If the complaining party did not have the
burden of proof, then the Amanifestly unjust@ standard applies.  Id.
On the other hand, if the complaining party had the burden of proof,
then the Aagainst the great weight and
preponderance@ standard applies.  Id.
Under the Texas Court of Criminal Appeals= modified approach, if the defendant
challenges the factual sufficiency of the elements of the offense, even though
the State had the burden of proof, we must review the evidence using both
standards.  Id.  Thus, when reviewing factual sufficiency
challenges, we must determine Awhether a neutral review of all of the evidence, both for and
against the finding, demonstrates that the proof of guilt is so obviously weak
as to undermine confidence in the jury=s determination, or the proof of
guilt, although adequate if taken alone, is greatly outweighed by contrary
proof.@
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim.
App. 2000).
One means of committing aggravated sexual assault is if a
person intentionally or knowingly causes the penetration of the anus or sexual
organ of a child by any means.  Tex. Pen. Code Ann. ' 22.021(a)(1)(B) (Vernon Supp.
2003).

Appellant first argues that an absence of physical evidence
makes the evidence factually insufficient to show he penetrated the complainant=s vagina or anus.  The record reflects that the complainant had
engaged in consensual sex sometime before the medical examination was
performed.  The medical examination
revealed the complainant had sustained some vaginal trauma; however, the examining
physician was unable to conclude whether the trauma was the result of a rape or
consensual sex.  In regard to anal
penetration, appellant cites the nonspecific findings of the anal examination.    Additionally, appellant reminds this court
that he denied assaulting the complainant when confronted by her mother and
testified in his own defense, both on direct and cross examination, that he did
not assault the complainant.
Notwithstanding the lack of physical evidence, the record
contains testimony supporting the jury=s verdict.  The complainant testified that appellant
penetrated both her sexual organ and her anus with his sexual organ.  Moreover, Officer Frost of the Houston Police
Department=s Sexual Abuse Unit explained
that a Adelayed outcry@ by victims of sexual abuse is
common because victims often fear they will not be believed.  Julia Wolf, Director of Therapy Services for
the Children=s Assessment Center, testified
that  delayed disclosure by a victim of
abuse does not mean the victim is lying.
Renee Vandervennent, a Houston Area Women=s Center counselor, testified
that the complainant=s continuing nightmares and
fear are consistent with sexual abuse.
Finally, Dr. Lahoti, the examining physician,
described the complainant=s Atearful and withdrawn@ demeanor during the physical
examination.  She also explained that it
is not uncommon for a sexual abuse victim to have a normal physical exam.
Appellant does not direct us to any authority indicating that physical evidence
is a necessity to sustain a conviction.
In fact, the Court of Criminal Appeals has previously held that a victim=s testimony, alone, is
sufficient evidence of penetration.  Garcia
v. State, 563 S.W.2d
925, 928 (Tex. Crim. App. 1978).[1]

With respect to factual sufficiency, appellant cites the
aforementioned facts to show that he did not assault the complainant.  The jury, however, is the sole judge of the
facts, the credibility of witnesses, and the weight to be given the
evidence.  Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim.
App. 2000); Beckham v. State, 29 S.W.3d 148, 152 (Tex. App.CHouston [14th Dist.] 2000, pet. ref=d).
Therefore, the jury may believe or disbelieve all or part of any witness=s testimony.  Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim.
App. 1995).  Reconciliation of any
conflicts in the evidence falls within the exclusive province of the jury.  Heiselbetz
v. State, 906 S.W.2d
500, 504 (Tex. Crim. App. 1995).
The jury was entitled to determine the weight to be given the
evidence and the credibility of the witnesses and whether or not to believe the
testimony of any witness.  By its
verdict, the jury apparently chose to believe the complainant=s version of the events, not the
appellant=s.
Appellant argues that it is a manifest injustice to allow this
conviction to stand; however, a jury=s verdict is not manifestly unjust
merely because it resolved conflicting views in favor the State.  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim.
App. 1997).  Viewing the evidence without the prism of in
the light most favorable to the prosecution, we find the evidence factually
sufficient to support the verdict.
Appellant=s point of error is overruled.
The judgment of the trial court is affirmed.

/s/      J. Harvey Hudson
Justice

Judgment
rendered and Opinion filed December 16, 2003.
Panel
consists of Justices Yates, Hudson, and Fowler.
Do Not
Publish C Tex. R. App. P. 47.2(b).

[1]  Similarly, the State points out that
the Code of Criminal Procedure does not impose a corroboration requirement on
offenses perpetrated against persons age 17 or under.  Tex.
Code Crim. Proc. Ann. Art. 38.07(b) (Vernon
Supp. 2003).


701 F.2d 819
UNITED STATES of America, Plaintiff/Appellee,v.John DOE, (Juvenile), Defendant/Appellant.
No. 82-1406.
United States Court of Appeals,Ninth Circuit.
Submitted and Argued Nov. 1, 1982.Decided March 17, 1983.

Gerald T. McFadden, San Diego, Cal., for defendant/appellant.
Maria T. Arroyo-Tabin, Asst. U.S. Atty., argued; Peter K. Nunez, U.S. Atty., Maria T. Arroyo-Tabin, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff/appellee.
Appeal from the United States District Court for the Southern District of California.
Before GOODWIN, HUG, and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:

1
Appellant Doe was adjudged a juvenile delinquent for knowingly and willfully transporting illegal aliens from Mexico into the United States.  He appeals the adjudication on two bases:  alleged violations of the Federal Juvenile Delinquency Act (the "Act")1 and a Fourth Amendment claim.  We affirm.

Facts

2
On April 28, 1982, at about 11:00 p.m., Border Patrol Agent Justice noticed Doe's vehicle, a 1973 Plymouth, driving southbound in San Onofre State Park.  This is a route used by illegal aliens to walk around the San Clemente checkpoint.  Agent Justice saw two occupants in the car and noticed the car was riding high.  A few minutes later he saw the same car returning northbound on the same road.  The car was riding low and contained two or three occupants.  He radioed this information to fellow agents.

3
Responding agents observed Doe's vehicle, and noticed that the car appeared heavily laden and that the male driver and female passenger appeared extremely nervous.  Doe pulled away when the agents' car approached.  The agents caught up to his car and turned on their red lights.  Doe disregarded the signal and continued to speed up the highway.  Finally, he crashed into a concrete wall, tried to flee on foot, and was apprehended.  Six people in the vehicle were illegal aliens from Mexico.

4
Doe was arrested, fingerprinted, photographed, and held in a detention facility.  The government agents did not notify Doe's parents.  Doe's mother, who lives in Tijuana, Mexico, was notified of her son's arrest by a defense investigator.

5
The next morning, April 29, agents transported Doe to another detention center, where he was questioned at about 11:00 a.m.  Material witnesses were interviewed at about 1:00 p.m.  Doe was taken to the metropolitan correctional center that afternoon.  He appeared before a magistrate for arraignment at 9:00 a.m. the following morning, April 30, when an information was filed charging him with juvenile delinquency under 18 U.S.C. Sec. 5032 (1976) for unlawful transportation of illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(2) (1976).  Doe was tried on stipulated facts and adjudged a juvenile delinquent.

Fourth Amendment Claim

6
Regardless of whether we apply a clearly erroneous standard, United States v. Post, 607 F.2d 847, 849 (9th Cir.1979), or conduct an independent review, United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir.1976), we hold that the district court did not err in denying Doe's motion to suppress evidence obtained from the stop of appellant's car.  The border patrol agents lawfully stopped the car on the founded suspicion it harbored aliens illegally.   See United States v. Roberts, 470 F.2d 858, 859 (9th Cir.1972), cert. denied, 413 U.S. 920, 93 S.Ct. 3071, 37 L.Ed.2d 1042 (1973).  We stress that only the facts known to the agents before they turned on their red signal lights may be considered by the court in determining whether founded suspicion existed.   United States v. Morrison, 546 F.2d 319, 320 (9th Cir.1976).  Those facts are:  the area is used to avoid the San Clemente checkpoint;  the car drove south riding high and returned heavily laden;  and the agents who stopped the car sufficiently identified it by color and kind as the one to which the first agent alerted them.

7
In United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir.1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974), this court held there was founded suspicion where the car was riding low, the driver was alone, and the model of the car had been used before to smuggle aliens in a floor compartment.  There was also founded suspicion in United States v. Roberts, where the car was ninety miles from the Mexican border, the route it was driving was used frequently to bypass a checkpoint, the rear of the car was riding low, and someone was slouched down in the front passenger's seat.  470 F.2d at 859.  The district court's denial of the motion to suppress is affirmed.

Juvenile Delinquency Act

8
Doe argues on appeal that the information should have been dismissed by the trial court for three alleged violations of the Act.2   First, Doe's parents were not immediately notified by border patrol agents of Doe's arrest.  Second, Doe was fingerprinted and photographed without a judge's consent. Third, Doe was detained for an unreasonably long time before appearing before a magistrate.

9
Section 5033 of the Act provides that whenever a juvenile is taken into custody for a delinquent act, the arresting officer shall immediately notify the juvenile's parents.3   Failure to notify may also give rise to a constitutional violation on due process grounds.   In re Gault, 387 U.S. 1, 31, 34, 87 S.Ct. 1428, 1445, 1447, 18 L.Ed.2d 527 (1967);  see also McKeiver v. Pennsylvania, 403 U.S. 528, 532, 91 S.Ct. 1976, 1980, 29 L.Ed.2d 647 (1971).

10
The government argues it was impractical to locate and notify Doe's parents, since Doe is an illegal alien from Tijuana, Mexico.  The facts of Doe's unlawful entry into the United States and his mother's foreign residence do not automatically excuse deviation from the Act.  Reasonable efforts should be made to notify the parents of any juvenile taken into custody.  For those juveniles whose parents live outside the United States, if it is not feasible to notify a parent or guardian, the government could alternatively notify a foreign consulate in the United States.

11
In Gault, the arresting officer did not notify the parents when their son was taken into custody.  His mother heard her son had been arrested and went to the detention home, where she was orally informed of a hearing scheduled for the next day.  The only written notice the parents received was a note on plain paper from an officer delivered three or four days later, advising them of "further Hearings" on their son's delinquency.  The Court held such notice inadequate.  Protection of due process requires that notice "must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded."    Id. 387 U.S. at 33, 87 S.Ct. at 1446.

12
We recognize that in some circumstances, such as those present in Gault, failure to notify may so impair a defendant's ability to prepare for a hearing as to constitute a deprivation of due process rights.  Implication of constitutionally protected rights might occur, for example, where no notice is given, or the notice does not set forth in writing the specific charge or factual allegations which the defendant must face at the hearing.  Id.  Where such lack of, or inadequate, notice does not allow a defendant reasonable opportunity to prepare, the juvenile's due process rights have been violated.  There is no denial of due process, however, where the arresting officer's failure to notify has no adverse effect on the fundamental fairness of the proceedings and where the purpose of the Act's notification provision, to guard the juvenile's due process rights, has been met.  That is the case here.  Counsel for Doe conceded that the government's failure to notify Doe's mother immediately had no adverse effect on the fairness of the adjudication proceeding, since she was immediately contacted by defense counsel.  Moreover, the government voluntarily declined to use the statement Doe made before his arraignment.  Thus the prosecution did not benefit from the fact that the government did not act immediately to notify Doe's mother.

13
Other circuits have also rejected a per se rule requiring reversal where the Act's notice requirement is technically violated, but the violation does not infringe upon the juvenile's right to due process of law.  In United States v. Watts, 513 F.2d 5 (10th Cir.1975), the Tenth Circuit characterized the notice requirement as a "safeguard" established to protect due process rights.  Where the government's actions technically violate that safeguard, the court must step in to inquire whether in fact the juvenile's due process rights were violated by failure to notify.  Id. at 8;  see also United States v. White Bear, 668 F.2d 409, 412 (8th Cir.1982) (notice requirement is an "additional safeguard" to insure that due process rights are not violated).

14
Doe also alleges a violation of section 5038(d)(1) of the Act.  Under this section, fingerprinting and photographing anyone under 18 years of age requires the written consent of a judge.  18 U.S.C. Sec. 5038(d)(1) (1976).  The government says it fingerprinted and photographed Doe pursuant to Immigration and Naturalization Service ("INS") regulations which direct INS agents to fingerprint and photograph every alien 14 years of age or older.4

15
There is a clear conflict between the Act and the INS regulations.  Where an administrative regulation conflicts with a statute, the statute controls.   Pacific Northwest Bell Telephone Co. v. United States, 378 F.Supp. 297, 298 (W.D.Wash.1974);  73 C.J.S. Public Administrative Bodies and Procedure Sec. 103 (1951).  Here, however, the technical violation of the Act does not require reversal.  The government agents acted in good faith under regulations they believed authorized their actions.  Taking appellant's prints and picture was not a serious intrusion of appellant's Fourth Amendment rights.  In United States v. Sechrist, 640 F.2d 81 (7th Cir.1981), the Seventh Circuit held that taking fingerprints does not entail a "significant invasion of one's privacy."    Id. at 86.  The court cited Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676 (1969), where the Supreme Court recognized that detention for fingerprinting may constitute a much less serious intrusion than other police practices.

16
The Act does not provide a specific remedy for violation of section 5038(d)(1).  In the past we have declined to specify the appropriate remedy for violation of the section, see United States v. Duncan, 570 F.2d 292, 293 (9th Cir.1978), and we do so again.  The action did not amount to a constitutional violation, and Doe can seek to have the records expunged.   See Menard v. Saxbe, 498 F.2d 1017, 1023 (D.C.Cir.1974) (judicial remedy of expunction exists to vindicate substantial rights);  Sullivan v. Murphy, 478 F.2d 938, 968 (D.C.Cir.), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973).  The trauma Doe might have suffered by being printed and photographed was at most minimal.  Violation of this section does not require reversal.

17
Finally, we are confronted with the issue of whether an unreasonable length of time passed between Doe's arrest and arraignment.  Section 5033 of the Act provides that a juvenile taken into custody for an alleged act of delinquency shall be taken before a magistrate "forthwith," and in no event shall be detained for longer than a "reasonable period" before appearing before a magistrate.  18 U.S.C. Sec. 5033 (1976).  The district court found there was no unreasonable delay between appellant's arrest sometime after 11:00 p.m. on April 28 and his appearance before a magistrate the morning of April 30.  Whether we review the district court's conclusion for clear error, or conduct an independent review, see United States v. One Twin Engine Beech Airplane, 533 F.2d at 1107-09, we affirm the district court's finding that it was not an unreasonable delay "under the circumstances".

18
Other courts have afforded relief to juvenile appellants in cases involving a shorter period of delay.   See United States v. Binet, 442 F.2d 296 (2d Cir.1971);  United States v. Glover, 372 F.2d 43 (2d Cir.1967).  In those cases, however, the courts were bound by the predecessor statute to Sec. 5033, which provided that detention could not be for a longer period than "necessary" to produce the juvenile before a magistrate.5   The legislative history of Sec. 5033 as amended provides no clue as to why the language of the statute was changed.   United States v. Smith, 574 F.2d 707, 710 (2d Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 581, 58 L.Ed.2d 659 (1978).

19
The particular facts in this case persuade us that the delay here was reasonable.  The government made a good faith effort to arraign Doe as soon as possible, but no magistrate was available until the morning of April 30.  The agents were extremely busy the day Doe was taken into custody, and they had to give priority to more urgent cases, including a woman in late pregnancy and women with infants and small children.  Only because of these exigencies, and the fact that the government did not use the pre-arraignment statement Doe made, are we willing to say here that the juvenile appeared before a magistrate "forthwith."    Under less urgent circumstances, the government should give priority to the arraignments of juveniles in custody.

20
Although the government deviated from the literal demands of the statute, its technical violations were not causally related to Doe's adjudication as a juvenile delinquent.  The government's actions do not individually or cumulatively constitute grounds for reversal.  Accordingly, we affirm.

21
AFFIRMED.

1
 Federal Juvenile Delinquency Act, ch. 645, Secs. 5031-5037, 62 Stat. 857 (1948) (codified as amended at 18 U.S.C. Secs. 5031-5042 (1976))

2
 The Act does not by its own terms specify a remedy for violation of its provisions.  Since we affirm the adjudication, we do not reach the issue of available remedies in this case

3
 The statute reads in pertinent part:
Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer ... shall immediately notify the Attorney General and the juvenile's parents, guardian, or custodian of such custody.  The arresting officer shall also notify the parents, guardian, or custodian of the rights of the juvenile and of the nature of the alleged offense.
18 U.S.C. Sec. 5033 (1976).

4
 The regulation states:
Every alien 14 years of age or older against whom proceedings are commenced under this part shall be fingerprinted.  Any such alien, regardless of his age, shall be photographed if a photograph is required by the district director, acting district director, deputy district director, or officer in charge authorized to issue an order to show cause.

8
 C.F.R. Sec. 242.4 (1982).  See also 8 C.F.R. Sec. 264.1(f) (1982)

5
 The statute used to read in pertinent part:
Whenever a juvenile is arrested for an illeged [sic] violation of any law of the United States, the arresting officer shall immediately notify the Attorney General.
If the juvenile is not forthwith taken before a committing magistrate, he may be detained ....
In no case shall such detention be for a longer period than is necessary to produce the juvenile before a committing magistrate.
Federal Juvenile Delinquency Act, ch. 645, Sec. 5035, 62 Stat. 857, 858 (1948) (current version at 18 U.S.C. Sec. 5033 (1976)).
It now reads:
The juvenile shall be taken before a magistrate forthwith.  In no event shall the juvenile be detained for longer than a reasonable period of time before being brought before a magistrate.
18 U.S.C. Sec. 5033 (1976).


916 N.E.2d 978 (2009)
HEDBACK
v.
STATE.
No. 48A02-0903-CR-254.
Court of Appeals of Indiana.
November 20, 2009.
ROBB, J.
Disposition of Case by Unpublished Memorandum Decision Affirmed.
DARDEN, J., concurs.
MATHIAS, J., concurs.