148 Cal.App.2d 747 (1957)
THE PEOPLE, Respondent,
v.
FLULCHER GRIMES, Appellant.
Crim. No. 3243.
California Court of Appeals. First Dist., Div. One.
Feb. 27, 1957.
 Richard M. Frisk, under appointment by the District Court of Appeal, for Appellant.
 Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, John S. McInerny, Deputy District Attorney, and J. F. Coakley, District Attorney (Alameda), and Zook Sutton, Deputy District Attorney, for Respondent.
 WOOD (Fred B.), J.
 Charged with violations of sections 288 and 288a of the Penal Code defendant was found guilty of the latter, not guilty of the former. He assigns a number of errors of law in support of his appeal.
 (1) Was the asking of certain questions of defendant's character witnesses prejudicial misconduct on the part of the prosecutor?
 Three of defendant's witnesses testified that his reputation for chastity, virtue and morality is good.
 Upon cross-examination, defendant's first character witness was asked the following questions: (1) Have you heard that he [defendant] was arrested with a sailor on June 3d this year and was seen by officers going into the bushes at 2:30 in the morning at Aquatic Park, have you heard that? (2) And did you also hear, that when they came out of the bushes that the sailor, the young sailor and the defendant they went into the defendant's car and sat there for several hours, had you heard that? (3) Now, did you also hear, that when the defendant was arrested he was with this sailor and the sailor's pants were unzipped, did you hear that? (4) And did you also hear that the sailor told the police officers that he was propositioning him for a blow job, did you hear that?
 Each of the other two character witnesses was asked substantially *749 the same questions, in the same order. Each of the three answered "No" to each of the four questions.
 The only objection which defendant's counsel  [fn. *] interposed was that the questions did not touch upon the trait of character here involved. In the case of the first witness, he made this objection to questions (1) and (2), not to (3) or (4); in the case of the second witness, he objected only to questions (1), (2) and (3), not to (4); in the case of the fourth witness, he interposed this objection to each of the four questions.
 We think the objection was not good. Each question appears to have a bearing upon one of the traits involved.
 The vice of this line of questioning was that of going into the details of the hypothetical report concerning defendant and the sailor and of continuing with further questions on the subject, with each witness, after getting a negative answer to the first question, thus improperly bringing such matters to the jury's attention, with emphasis by repetition. (See People v. Burwell, 44 Cal.2d 16, 35 [279 P.2d 744], [what is proper cross-examination in the absence of a showing of bad faith]; People v. Gin Shue, 58 Cal.App.2d 625, 634 [137 P.2d 742], [the "prosecution is confined to the answer given by the witness, and can inquire no further into the matter"]; People v. Neal, 85 Cal.App.2d 765, 769-771 [194 P.2d 57], [improper "to include in the question the alleged details."].) No objection on these grounds was made. Nor did defendant's counsel, at the trial, object that these questions were asked in bad faith and without a factual basis. (See People v. White, 43 Cal.2d 740, 744 [278 P.2d 9], [challenge as to prosecutor's good faith and asserted lack of factual basis for the questions; heard and determined outside the presence of the jury].)
 Defendant's present counsel urges that the deputy prosecutor's persistent and detailed interrogation of these character witnesses was so flagrant a flaunting of long established principles of the law as to constitute prejudicial misconduct despite the failure of defendant's then counsel to interpose appropriate objections. That is a point which appears to have great merit. [1] "The failure to make a timely and sufficient objection is of no moment where a grave matter of public policy is involved. Counsel for the defense do not bear the entire burden of protecting the constitutional rights *750 of their client." (People v. Rodriguez, 58 Cal.App.2d 415, 421 [136 P.2d 626]. See also People v. Asavis, 22 Cal.App.2d 492, 499-500 [71 P.2d 307].) However, it is not necessary to decide this question in view of our conclusion that upon other grounds, presently to be discussed, the judgment must be reversed. We are confident that upon a new trial, if one is had, the prosecution will not again go beyond the limits prescribed by law for the interrogation of character witnesses.
 [2] (2) Did the court err in not informing the jury of the limited function of the questions which the prosecutor put to defendant's character witnesses?
 We refer to the four questions, above discussed, which the prosecutor asked of each of defendant's three character witnesses.
 Defendant's counsel failed to request an instruction on this subject. Was the court under a duty to give such an instruction in the absence of a request therefor? We think so, under the circumstances of this case.
 [3] In a criminal case, "the trial judge is required to instruct the jury of his own motion upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence. (People v. Putnam, 20 Cal.2d 885, 890 [129 P.2d 367]; see also People v. Bender, 27 Cal.2d 164, 176 [163 P.2d 8]; People v. Warren, 16 Cal.2d 103, 116 [104 P.2d 1024]; People v. Scofield, 203 Cal. 703, 709 [265 P. 914].)" (People v. Buffum, 40 Cal.2d 709, 724 [256 P.2d 317].)
 In People v. Bentley, 131 Cal.App.2d 687 [281 P.2d 1] this principle was specifically applied to the need of a jury for advice as to the limited purpose and use of questions put to a character witness concerning reports of other offenses or of misconduct inconsistent with the possession of a good reputation: "... it is highly important that the jurors understand that the purpose of the inquiry is merely to test the worth of the opinions the witnesses have expressed as to the reputation of the accused. Such questioning by the prosecutor carries an implication that such rumors have been in existence and would naturally cause the accused to be suspect of grievous wrongdoing or perhaps of other crimes. It is necessary that the jurors should put out of their minds all questions as to the truth of the rumors or charges, and yet they cannot know the limited purpose of the cross-examination unless it is explained to them."
 "The defendant did not request such an instruction and *751 none was given. One should have been given of the court's own motion. It was especially necessary because of the course of the trial after defendant had denied the accusations with relation to other children but we think a cautionary instruction should be given in every case in which such cross- examination is permitted." (Pp. 691-692.)  [fn. *]
 The need for such an instruction in the instant case was more than usually compelling, especially because of the improperly repetitive and detailed nature of the questions; emphasized by one of the instructions on evidence corroborative of an accomplice's testimony, an instruction which came very close to telling the jury they might consider as evidence in the case the reports of misconduct suggested by these questions.
 (3) Were the instructions upon corroboration of the testimony of an accomplice misleading?
 In respect to the count which charged a violation of section 288a of the Penal Code, the jury was given the question whether the prosecuting witness was an accomplice, as well as the question whether the defendant was guilty or innocent of the crime charged.
 Concerning the need for evidence corroborating the testimony of an accomplice, the jury was instructed in the terms of CALJIC Number 822 as it appears in the permanent volume of that work, supplemented by the paragraph which appears on page 200 of the 1953 Pocket Supplement. The latter reads as follows, as given in this case: "The corroborating evidence required by the law may be circumstantial as well as direct, and the entire conduct of the accused, himself, both as a witness in his own behalf and at times other than at the trial as shown by the evidence, along with all other evidence in the case may be looked to for corroborative circumstances."
 [4a] This quoted paragraph, in the absence of advice concerning the limited purpose of the questions asked concerning reports of the conduct of defendant and the sailor, well could have misled the jury to believe that the facts seemingly implied by those questions could be considered by the jury in determining the guilt of the accused. *752
 The references to "circumstantial" evidence, the "entire conduct" of the accused on the witness stand and at other times than at the trial, "along with all other evidence in the case" (in the absence of an instruction as to the limited evidentiary value of the questions asked of the character witnesses) well could lead a layman to believe that the "reported" conduct of defendant and the sailor was evidence in the case, to be weighed with the rest of the evidence in determining the guilt or innocence of the defendant.
 The People say that this instruction was a correct statement of the law, a standard instruction, and "obviously directed toward the appellant's testimony in his own behalf, his demeanor as a witness, and the inconsistent statements he had given the police at the time of his arrest." It was not "obviously" thus limited in scope, purpose and application, as we have seen. Moreover, if the "demeanor" of the defendant as a witness is sufficient corroboration, the corroboration requirement could hardly ever fail to be satisfied. [5] We should not forget that corroborating evidence must do more than raise a suspicion of guilt. It must in some degree implicate the defendant and, to be sufficient the "evidence 'must relate to some act or fact which is an element of the offense.' " (People v. Santo, 43 Cal.2d 319, 327 [273 P.2d 249].)
 The conduct of the defendant as indicated by the evidence in this case revealed only that the defendant had meetings and conversations with the prosecuting witness. It did not reveal, for example, any contradictory statements by the defendant that would have any significant bearing upon corroboration, as we read the record.
 We note in passing that the instruction under discussion was formulated in response to a statement appearing in People v. Brickman, 119 Cal.App.2d 253 [259 P.2d 917]. (See editorial note in CALJIC, 1953 Pocket Supplement, p. 200.) The Brickman case involved a violation of the narcotics law, possession of marijuana. The defendant said to the officers, " ' What will I get,' " then denied that the " ' stuff' " was his, and later said to a cosuspect " ' I am sorry ... It is all my fault. I did it. I am responsible for the whole thing ... It is all my stuff ...' " (Pp. 256 and 257 of 119 Cal.App.2d), to mention a few of his out-of-court statements. Concerning their value as corroboration, the court said: "The above mentioned extrajudicial declarations of appellant, tending as they did to connect him with *753 the commission of the crime charged, constituted sufficient corroboration to sustain the conviction," assuming but not deciding that certain witnesses were accomplices. (P. 262.)
 Later on in the opinion, discussing the sufficiency of the evidence to support the judgment, the court among other things said: "In the case now before us, the record reflects that appellant admitted to the police officers that he had purchased the marijuana, that he had planned to resell it, and that he had placed it in Castle's trousers because there was no other place to hide it. He also stated that the reason the marijuana was still in the house was that 'it wasn't moving very fast.'"
 "When these statements are considered with other evidence in the case, and looking at all the evidence in a light most favorable to the prosecution, as we must do on appeal in a criminal case (People v. Newland, 15 Cal.2d 678, 681 [104 P.2d 778]; People v. Kristy, 111 Cal.App.2d 695, 698 [245 P.2d 547]) the conclusion seems inevitable that appellant had possession of the marijuana and that such possession had not been abandoned." (P. 263.)
 We observe that there the court was applying the law to the particular facts of that case, by no means undertaking to write an instruction for general use. The instructions given and refused were not in the record upon that appeal and accordingly were not considered. Their correctness was assumed.
 However, we are not especially concerned with the correctness of the instructions on corroborative evidence in relation to the purpose for which they were given. The jury found that the prosecuting witness was not an accomplice and the defendant does not challenge that finding.
 We are concerned with the portion of those instructions which we have quoted and its impact upon the jury in respect to other aspects of the case and the likelihood of its misleading them to make an improper use of the suggestions given them by the series of questions which the prosecutor put to defendant's character witnesses. (See People v. Rogers, 22 Cal.2d 787, 806-807 [141 P.2d 722], and People v. Smittcamp, 70 Cal.App.2d 741, 745-749 [161 P.2d 983].)
 [4b] The combined effect of this instruction and the failure to advise the jury of the limited scope of those questions as evidence is such that we cannot say that but for these a different verdict would have been improbable.
 (4) Was it error for the trial court to permit the prosecution *754 to amend the information by adding a charge under section 288 of the Penal Code?
 [6] The original information charged only a violation of section 288a of the code.
 The amendment was made on the first day of the trial, but two weeks prior thereto the prosecutor had orally informed defendant's counsel of his intention to amend. Both counts involved the same transaction and the same proof, the difference being that section 288a involved the accomplice question and section 288 did not.
 Allowance of such an amendment has ample legal sanction. (People v. Evans, 39 Cal.2d 242, 249 [246 P.2d 636]; Parks v. Superior Court, 38 Cal.2d 609, 611- 613 [241 P.2d 521].) Nor was there any abuse of discretion under the circumstances of this case.
 The judgment and the order denying a new trial are reversed.
 Peters, P. J., and Bray, J., concurred.
NOTES
[fn. *]  *. He is represented by different counsel upon this appeal.
[fn. *]  *. Respondent invokes People v. White, supra, 43 Cal.2d 740, on this point. But the court in that case did not hold it was proper for the trial court not to instruct on this subject. Instead, it said: "Under the circumstances defendant would appear to have suffered no prejudice." (P. 745.)


                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          JUN 20 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

IHOR CHANDRYCKI JASON,                           No. 12-35070

               Plaintiff - Appellant,            D.C. No. 3:11-cv-05697-RBL

  v.
                                                 MEMORANDUM *
GROUP HEALTH COOPERATIVE INC;
et al.,

               Defendants - Appellees.

                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                              Submitted June 10, 2013 **

Before:        LEAVY, HAWKINS, and BERZON, Circuit Judges.

       Ihor Chandrycki Jason appeals pro se from the district court’s judgment

dismissing his action alleging negligence, inadequate care, false imprisonment, and

fraud claims related to the denial of medical care to him as a Medicare patient. We

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Manzarek v. St.

Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008), and may affirm

on any ground supported by the record, Johnson v. Riverside Healthcare Sys., LP,

534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

      Dismissal of Jason’s action was proper because Jason failed to allege a

cognizable claim under the federal Emergency Medical Treatment and Active

Labor Act (“EMTALA”), see Baker v. Adventist Health, Inc., 260 F.3d 987, 99-

932 (9th Cir. 2001) (medical malpractice is not actionable under the EMTALA),

and because there is no private right of action under 18 U.S.C. § 1347, which

defines a party’s criminal liability for Medicare fraud, see Cort v. Ash, 422 U.S. 66,

78-80 (1975) (“a bare criminal statute, with absolutely no indication that civil

enforcement of any kind was available to anyone” does not give rise to an implied

civil cause of action).

      Jason’s contentions regarding defendants’ allegedly false assertions in their

briefs and the district court’s alleged failure to address his pending motion for

summary judgment are unpersuasive.

      AFFIRMED.

                                           2                                    12-35070


       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         MICHAEL SWAYZE,
                             Appellant,

                                     v.

                        STATE OF FLORIDA,
                             Appellee.

                              No. 4D18-1631

                          [August 23, 2018]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel,
Judge; L.T. Case No. 16-11544CF10A.

  Michael Swayze, Perry, pro se.

  No appearance required for appellee.

PER CURIAM.

  Affirmed.

GROSS, MAY and KUNTZ, JJ., concur.

                          *          *          *

  Not final until disposition of timely filed motion for rehearing.


624 F.2d 1099
Daughertyv.Califano
78-3485
UNITED STATES COURT OF APPEALS Sixth Circuit
6/16/80

1
W.D.Ky.

VACATED AND REMANDED


899 F.2d 1221
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Jackie H. CAMPBELL, Jr., Plaintiff-Appellant,v.Luther TOWNLEY, Clinic/Hospital Administrator of MorganCounty Regional Correctional Facility, Defendant-Appellee.
No. 89-5741.
United States Court of Appeals, Sixth Circuit.
April 9, 1990.

1
Before BOYCE F. MARTIN, Jr. and NATHANIEL R. JONES, Circuit Judges;  and ROBERT E. DeMASCIO, Senior District Judge.*

ORDER

2
This pro se Tennessee prisoner appeals the district court's summary judgment dismissing his civil rights claim filed under 42 U.S.C. Sec. 1983.  Additionally, plaintiff requests the appointment of counsel.  The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.  Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed.  Fed.R.App.P. 34(a).

3
Seeking monetary, declaratory and injunctive relief, plaintiff sued the defendant alleging an eighth amendment claim for inadequate medical care.  Specifically, he alleged that he has been denied medical treatment for a pre-existing anxiety disorder.  He also alleged that, although a tumor was found in his right lung, no medical treatment has been offered.  Lastly, he complained that due to his medical condition, he has been assigned to "Longline # 6," a limited duty work assignment and is forced to sit all day on a concrete pad in the sun without water.  He alleged that as a result of the conditions on "Longline # 6," he has suffered pain in his back and kidney area, as well as stiffness in his joints.  The defendant moved for summary judgment, yet plaintiff failed to file a response.  The district court entered a memorandum opinion and order granting summary judgment in favor of the defendant.

4
Upon review, we conclude that summary judgment was proper because there were no genuine issues of material fact and the defendant was entitled to judgment as a matter of law.   See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).  To succeed with an eighth amendment claim based on inadequate medical care, a plaintiff must allege that the defendant was deliberately indifferent to a serious medical need.   See Estelle v. Gamble, 429 U.S. 97, 104 (1976).  Allegations of medical malpractice or negligent diagnosis and treatment are not cognizable under Sec. 1983.   See Estelle, 429 U.S. at 106;  Birrell v. Brown, 867 F.2d 956, 958 (6th Cir.1989).  Where a plaintiff has received some medical attention, this court will not second-guess the judgment of medical professionals.   Estelle, 429 U.S. at 107.

5
In the instant case, the record shows that plaintiff was seen on a variety of occasions by physicians and other medical personnel for various medical complaints.  The record further shows that plaintiff received extensive x-ray examinations with regard to the tumor found in his right lung, and that he received medication on a regular basis for his anxiety disorder.  Plaintiff thus failed to present a genuine issue of deliberate indifference to serious medical needs.

6
Moreover, summary judgment was proper because the defendant was entitled to judgment as a matter of law.  Defendant demonstrated through documented proof that he has no responsibility with respect to plaintiff's health-related work classification, the conditions on "Longline # 6," or plaintiff's course of medical treatment.  Plaintiff has not alleged any acts taken by the defendant by which plaintiff was prevented from receiving medical care or for which the defendant should be held responsible for the conditions alleged on "Longline # 6."    A complaint which fails to allege that a defendant encouraged or actually participated in a constitutional violation will be dismissed as to that individual.   See Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir.), cert. denied, 469 U.S. 845 (1984).

7
Finally, we conclude that, under the circumstances of this case, the district court did not commit reversible error in granting summary judgment before giving plaintiff ten days notice thereof under Fed.R.Civ.P. 59(c).  Plaintiff has not demonstrated prejudice by the action of the district court in granting summary judgment nor has he demonstrated that he could have produced evidence sufficient to resist summary judgment had ten days notice been given.   See Routman v. Automatic Data Processing, Inc., 873 F.2d 970, 971 (6th Cir.1989);  Harrington v. Vandalia-Butler Bd. of Educ., 649 F.2d 434, 436 (6th Cir.1981).  Thus, the district court's failure to comply with the notice requirement of Rule 56(c) was harmless error.

8
Accordingly, the request for counsel is hereby denied, and the district court's judgment is affirmed pursuant to Rule 9(b)(5), Rules of the Sixth Circuit.

*
 The Honorable Robert E. DeMascio, Senior U.S. District Judge for the Eastern District of Michigan, sitting by designation


            Case: 17-13088   Date Filed: 09/04/2018   Page: 1 of 7

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13088
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:16-cr-00377-KOB-SGC-1

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

SHANNON GOBER,

                                                          Defendant-Appellant.

                       ________________________

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

                             (September 4, 2018)

Before ED CARNES, Chief Judge, MARTIN, and JILL PRYOR, Circuit Judges.

PER CURIAM:
              Case: 17-13088     Date Filed: 09/04/2018   Page: 2 of 7

      A jury found Shannon Gober guilty on a single count of possession with

intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He

contends that the evidence was insufficient to support his conviction.

      On December 29, 2015, Josh Moore, a special agent with the Drug

Enforcement Administration, assisted the Cullman County Narcotics Enforcement

Team with the execution of a search warrant at the residence of Britton Hyde. The

officers found methamphetamine inside Hyde’s residence, and he told the officers

that he would cooperate with them and identify his source of supply. Hyde

identified Gober as his source. Hyde testified that starting in the summer of 2015

he bought methamphetamine from Gober about twice a week, usually in two to

three ounce quantities. Sometimes Hyde paid for the drugs (the price fluctuated

from $900 to $1400 an ounce), but most of the time he would buy the drugs on

credit, sell them, and then pay Gober back with the proceeds. Hyde told the

officers that he would visit Gober at his residence — a trailer park located on

property owned by Gober’s girlfriend’s father, Butch Cicero (Cicero lived in a

house on that property) — to buy the drugs.

      Because Hyde was willing to cooperate, the officers decided to have him

make a controlled purchase of methamphetamine from Gober. The officers had

Hyde call Gober to set up the transaction; Gober did not answer the first few calls,

                                          2
              Case: 17-13088     Date Filed: 09/04/2018    Page: 3 of 7

but when he did answer he told Hyde to “come on by.” There was no mention of

drugs during the call.

      To prepare Hyde for the controlled purchase, the officers searched him and

his vehicle to make sure that he did not have any drugs. Hyde had $1400 of his

own money, which he owed to Gober for a previous drug deal, and the officers

allowed him to keep that money. The officers also equipped Hyde with a

recording device so that they could record and listen to the transaction, and they

also hid a video recorder in his vehicle. The officers took out an anticipatory

search warrant on Gober’s trailer.

      On the day of the controlled purchase, the officers followed Hyde to Gober’s

trailer to ensure that he did not stop and buy drugs anywhere else (he did not).

They parked as close as possible to Gober’s trailer, but because of where it was

located (at the end of a long driveway, surrounded by trees) the officers could not

watch the transaction. They could hear what was going on through Hyde’s

recording device.

      Hyde testified at trial that when he arrived at Cicero’s property, the gate to

the property was closed. Cicero opened the gate and let Hyde in. Gober was not

there, so Hyde used the bathroom in Cicero’s house and then talked with Cicero

outside of his house. About an hour later, Hyde saw Gober walk through the open

gate and Gober asked him whether he was there for anything. Hyde replied that he

                                          3
              Case: 17-13088     Date Filed: 09/04/2018   Page: 4 of 7

was there to pick up. Gober took a bag of methamphetamine out of his car, a blue

Ford Taurus, went into the house with Hyde, weighed an ounce of

methamphetamine on a scale, put the ounce quantity in a bag, and gave the bag to

Hyde. Hyde paid Gober $1400 for the ounce of methamphetamine, and Gober told

Hyde that he still owed him $3500 for earlier drug purchases. After the deal,

Hyde put the larger bag of methamphetamine back into the car.

      The government played the audio recording of the transaction at trial, and

the recording corroborated Hyde’s account of the drug buy. For instance, on the

recording Hyde told Cicero that the gate to the property was locked. After Gober

arrived and asked if he was getting something for Hyde, Hyde replied that he

needed “one.” Gober told Hyde that it would cost $1400, and after Hyde paid that

amount Gober said that he still owed $3500.

      When Hyde returned from the transaction, he gave an investigator the bag of

methamphetamine he purchased. The officers executed the search warrant for

Gober’s trailer and also searched the Ford Taurus. Inside its trunk the officers

found a shotgun and a box with digital scales and methamphetamine inside. A

forensic chemist tested the substance from the bag Hyde purchased and the

substance found in the car trunk and confirmed that they were both

methamphetamine; the bag purchased by Hyde contained about one ounce and the

amount recovered from the Taurus totaled about eight ounces.

                                          4
                 Case: 17-13088        Date Filed: 09/04/2018        Page: 5 of 7

       After the government rested its case, Gober moved for a judgment of

acquittal under Federal Rule of Criminal Procedure 29 on the grounds that there

was insufficient evidence to show that Gober knowingly possessed and intended to

distribute the methamphetamine. The court denied that motion. The defense

called James Roberts, who testified about selling the Ford Taurus to Hyde. 1 The

defense rested its case and renewed its motion for a judgment of acquittal. The

court denied that motion and the jury found Gober guilty. The court sentenced him

to 137 months imprisonment.

       Gober argues that there was insufficient evidence to support his conviction

because the government’s investigation was flawed and Hyde was not a credible

witness. As for the government’s allegedly flawed investigation, he relies on

several facts that Special Agent Moore admitted to on cross-examination,

including: investigators usually use marked money to make controlled buys, but

did not do that in this case (Hyde used his own money); the DEA typically enters

into written agreements with informants and runs background checks on them but

did not do that with Hyde because he was used for only one day; the investigators

did not submit the scales for fingerprint analysis; and the investigators determined

that the tag on the Taurus was registered to a woman but did not contact her
       1
           Hyde testified that he purchased the Ford Taurus for Gober in summer of 2015 (about
four to five months before the controlled purchase). Hyde purchased the car for cash and
received a title and bill of sale. Hyde testified that he saw the car parked next to Gober’s trailer
at least three or four times before the day of the controlled purchase. In exchange for the car,
Gober reduced the amount of money Hyde owed him for methamphetamine purchases.
                                                  5
                Case: 17-13088   Date Filed: 09/04/2018   Page: 6 of 7

because the tag was expired. And as for Hyde’s credibility, Gober points to the

following as evidence that his testimony was not trustworthy: Hyde admitted that

he had 11 felony drug cases pending against him at the time of trial; he had been

convicted for writing a bad check; and he admitted that before he was in custody

he used methamphetamine every day, which would have altered his memory and

ability to recall facts.

       Those arguments fail. “We review de novo whether there is sufficient

evidence to support a jury’s verdict in a criminal trial,” and we “view the evidence

in the light most favorable to the government and resolve all reasonable inferences

and credibility evaluations in favor of the jury’s verdict.” United States v. Doe,

661 F.3d 550, 560 (11th Cir. 2011). Gober cross-examined Moore about the

alleged flaws in the government’s investigation, which meant that the jury was able

to take those alleged flaws into account when considering all of the evidence at

trial. And despite any alleged flaws in the investigation, there was more than

enough evidence to establish that Gober knowingly possessed the

methamphetamine and intended to distribute it. See United States v. Williams, 865

F.3d 1328, 1344 (11th Cir. 2017) (“In order to convict a defendant for possession

with intent to distribute a controlled substance, the government must prove

knowing possession and an intent to distribute.”) (quotation marks omitted).

Hyde’s testimony about the drug transaction established that Gober kept the

                                          6
               Case: 17-13088     Date Filed: 09/04/2018    Page: 7 of 7

methamphetamine in the car, retrieved it from the car to sell some of it to Hyde,

weighed the proper amount, and then accepted payment. The audio recording

confirmed Hyde’s testimony. And the forensic examiner’s test confirmed that it

was methamphetamine that Hyde purchased from Gober and that the substance in

Gober’s car was also methamphetamine. Taken in the light most favorable to the

government, the evidence permitted a reasonable jury to find that Gober knowingly

possessed methamphetamine and intended to distribute it.

      As for Hyde’s credibility, it “is well established that credibility

determinations are the exclusive province of the jury.” United States v. Calderon,

127 F.3d 1314, 1325 (11th Cir. 1997) (quotation marks and alterations omitted).

“For testimony of a government witness to be incredible as a matter of law, it must

be unbelievable on its face,” which means that it must relate to facts that the

“witness physically could not have possibly observed or events that could not have

occurred under the laws of nature.” Id. (quotation marks and alterations omitted).

That is not the case here. And Hyde’s shady past does not make his testimony

incredible. See id. (“[T]he fact that the witness has consistently lied in the past,

engaged in various criminal activities, and thought that his testimony would benefit

him does not make his testimony incredible.”) (quotation marks and alterations

omitted).

      AFFIRMED.

                                           7


568 F.3d 752 (2009)
Bruce KAMM, an individual; Invision Ltd., a New York corporation, Plaintiffs-Appellees,
v.
ITEX CORPORATION, a Nevada corporation, Defendant-Appellant.
No. 07-35079.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted November 18, 2008.
Filed June 15, 2009.
*753 James M. Shore, Stoel Rives LLP, Seattle, WA, Stephen A. Redshaw, Stoel Rives LLP, Portland, OR, for the appellant.
Nicholle Y. Winters (argued), Thomas R. Johnson and Christopher L. Garrett (on the brief), Perkins Coie LLP, Portland, OR, for the appellees.
Before: W. FLETCHER and RAYMOND C. FISHER, Circuit Judges, and CHARLES R. BREYER,[*] District Judge.
WILLIAM A. FLETCHER, Circuit Judge:
Bruce Kamm and Invision Ltd. (collectively "Plaintiffs") sued ITEX Corporation ("ITEX") on a contract in Oregon state court. ITEX filed a notice to remove the suit to federal district court based on diversity of citizenship. Thirty-one days later, Plaintiffs moved to remand to state court based on a forum selection clause in the contract. The district court granted Plaintiffs' motion to remand.
ITEX appeals, contending that under 28 U.S.C. § 1447(c) Plaintiffs were required to file their remand motion within thirty days of the filing of ITEX's notice of removal. Plaintiffs contend that because their motion to remand is based on a forum selection clause, it is not subject to the thirty-day requirement of § 1447(c). We agree with Plaintiffs and affirm the remand to state court.

I. Background
ITEX provides a marketplace for barter transactions. In February 1992, Plaintiffs entered into an Independent Retail Brokerage Service Agreement (the "Brokerage Agreement") with ITEX under which Plaintiffs were permitted to operate a brokerage on ITEX's barter exchange. ITEX terminated the Brokerage Agreement, and Plaintiffs sued ITEX in Oregon state court claiming breach of contract and breach of the duty of good faith and fair dealing.
*754 On July 7, 2006, ITEX filed a notice of removal in the state court based on diversity jurisdiction. Defendant ITEX is a Nevada corporation. Plaintiff Kamm is a citizen of New York, and Plaintiff Invision is a New York corporation. More than $75,000 is in controversy. Thirty-one days later, on August 8, 2006, Plaintiffs moved in the federal district court to remand the case to state court based on a forum selection clause in the Brokerage Agreement. The forum selection clause provides:
10.9 VENUE. Any action brought by any party to this Agreement shall be filed and venue shall be in the courts of the State of Oregon.
ITEX argued that 28 U.S.C. § 1447(c) required Plaintiffs to file their remand motion within thirty days of the filing of ITEX's motion to remove. It is undisputed that Plaintiffs filed their remand motion thirty-one days after the filing of ITEX's motion to remove. The district court held that § 1447(c) and its thirty-day time limit do not apply to motions to remand based on a forum selection clause. The district court granted Plaintiffs' motion to remand, and ITEX timely appealed.

II. Standard of Review
"We review de novo a district court's decision to remand a removed case.... We also review de novo a district court's interpretation and construction of a federal statute." Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 (9th Cir.2006) (citations omitted).

III. Discussion
This appeal involves two closely related subsections of 28 U.S.C. § 1447. Section 1447(d) provides, "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...." The Supreme Court has held that the prohibition against review in § 1447(d) applies only to the two grounds specified in § 1447(c). Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 342-43, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), superseded by statute on other grounds, 28 U.S.C. § 1447(c). Those grounds are a lack of subject matter jurisdiction and a "defect." Section 1447(c) provides, in relevant part:
A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
There is no suggestion in the case before us that the district court did not have subject matter jurisdiction. It is undisputed that there is diversity jurisdiction under 28 U.S.C. § 1332. Further, the Supreme Court has held that a forum selection clause does not deprive a federal court of subject matter jurisdiction. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 12, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).
The only question is whether a forum selection clause that requires that an action be brought in state rather than federal court is a "defect" within the meaning of § 1447(c). If the forum selection clause is a "defect," we have no jurisdiction to review the district court's remand order, and a motion to remand based on that defect must be made within thirty days of filing the notice of removal in state court. To state the matter the other way around, if the forum selection clause is not a "defect," we have jurisdiction to review the district court's order despite § 1447(d), and a motion to remand based on the forum selection clause is not subject to the thirty-day time limit of § 1447(c).
*755 For the reasons that follow, we hold that a forum selection clause is not a "defect" within the meaning of § 1447(c). We therefore hold that we have jurisdiction over this appeal, and we affirm the district court's remand order.
Before 1996, § 1447(c) provided,
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.
§ 1447(c) (1995) (emphasis added). We have held that the pre-1996 version of § 1447(c) did not apply to motions to remand based on forum selection clauses. See Ferrari, Alvarez, Olsen & Ottoboni v. Home Ins. Co., 940 F.2d 550, 553-54 (9th Cir.1991); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-77 (9th Cir.1984).
An amendment adopted in 1996 changed "any defect in removal procedure" to simply "any defect." We have not revisited whether § 1447(c) applies to motions to remand based on forum selection clauses since it was amended. However, at least four other circuit courts have determined that a forum selection clause is not a "defect" within the meaning of the current version of § 1447(c). See Am. Soda, LLP v. U.S. Filter Wastewater Group, Inc., 428 F.3d 921, 924(10th Cir.2005); Cruthis v. Metropolitan Life Ins. Co., 356 F.3d 816, 818 n. 1 (7th Cir.2004); Autoridad de Energia Electrica de P.R. v. Ericsson Inc., 201 F.3d 15, 17 (1st Cir.2000); Snapper, Inc. v. Redan, 171 F.3d 1249, 1260 (11th Cir.1999); see also Cook v. Wikler, 320 F.3d 431, 435 n. 5 (3d Cir.2003) (stating that the Third Circuit's pre-1996 holding that forum selection clauses are not subject to § 1447(c) "does not appear to [be] disturb[ed]" by the 1996 amendment).
Our analysis of the current version of § 1447(c) starts with the statute's plain language. See Tahara v. Matson Terminals, Inc., 511 F.3d 950, 953 (9th Cir.2007). The term "defect" is not defined in § 1447(c) or associated statutory provisions dealing with removal. The sixth edition of Black's Law Dictionary, which was the current version when the statute was amended, defines "defect" as "[t]he want or absence of some legal requisite; deficiency; imperfection; insufficiency." Black's Law Dictionary 418 (6th ed.1990). Webster's Third New International Dictionary defines "defect" as "want or absence of something necessary for completeness, perfection, or adequacy in form or function." Webster's Third New International Dictionary 591 (1993).
ITEX argues that we must read "defect" broadly because Congress amended § 1447(c) to cover a "defect," not merely a "defect in removal procedure." We recognize that Congress in 1996 intended to broaden § 1447(c), but we do not read the term "defect" as broadly as ITEX would have us do. Congress could have changed § 1447(c) to cover a motion to remand the case on "any basis" or "any ground," but instead kept the narrower term "defect."
It is relatively clear from context that "defect" refers to a failure to comply with the statutory requirements for removal provided in 28 U.S.C. §§ 1441-1453. In three cases, we have held that the failure to comply with removal requirements in these sections is a "defect" under § 1447(c). In Schmitt v. Insurance Co. of North America, 845 F.2d 1546, 1549, 1551 (9th Cir.1988), superseded by statute on other grounds, 28 U.S.C. § 1447(c), we held that failure to comply with the time limit provided in § 1446(b) for filing a petition for removal in state court is a *756 defect under § 1447(c). In Vasquez v. North County Transit District, 292 F.3d 1049, 1062 (9th Cir.2002), we held that removal in violation of the prohibition in § 1445(c) against removing workers' compensation claims arising under state law is a defect under § 1447(c). Finally, in Wild Oats Markets, 456 F.3d at 939, we held that a failure to comply with the requirement of § 1441(b) that a removing defendant not be a citizen of the state in which the state court suit is filed is a defect under § 1447(c).
A forum selection clause operates outside of the various requirements for removal specified in §§ 1441-1453. The existence of such a clause does not render removal "defective" as we have understood that term in our cases decided under § 1447(c). Instead, a forum selection clause is similar to other grounds for not exercising jurisdiction over a case, such as abstention in favor of state court jurisdiction under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and related abstention cases, or a refusal to exercise supplemental jurisdiction and a resulting remand to state court under 28 U.S.C. § 1367(c). The Supreme Court has explicitly held that remands based on abstention and a refusal to exercise supplemental jurisdiction are not covered by § 1447(c). See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (abstention); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 355 n. 11, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (supplemental jurisdiction); see also Kircher v. Putnam Funds Trust, 547 U.S. 633, 640, 126 S.Ct. 2145, 165 L.Ed.2d 92 (2006) (discussing Quackenbush without stating that it is no longer good law following the 1996 amendment of § 1447(c)).
Shortly after the passage of the 1996 amendment, the Eleventh Circuit engaged in a careful extended analysis of § 1447(c). See Snapper, 171 F.3d at 1254-59. The court concluded that Congress did not intend "defect" to include a forum selection clause that specified a state rather than a federal court. It noted that courts had stretched the meaning of "procedure" in the pre-1996 version of § 1447(c) to cover rules traditionally not categorized as procedural, such as the forum defendant rule of § 1441(b). Id. at 1258. By removing the qualifying term "procedure" in 1996, Congress freed courts to read the term "defect" to cover motions to remand based on non-procedural statutory requirements for removal such as the forum defendant rule. As we stated in Wild Oats Markets, "by substituting `defect other than lack of subject matter jurisdiction,' for `defect in removal procedure,' Congress sought to ensure that even the `more substantive' removal defects, such as [forum defendant] § 1441(b) violations, were subject to the 30-day time limit." 456 F.3d at 939.
There is little legislative history on the 1996 amendment, probably because the House Judiciary Committee "viewed the bill as technical and noncontroversial, and it received broad bipartisan support." H.R. REP. No. 104-799, at 2 (1996), U.S.Code Cong & Admin.News 1996, pp. 3417, 3418 ("House Report"). The House Report merely stated that the earlier version of § 1447(c) was "not entirely clear," and that the 1996 amendment "clarifies the intent of Congress." Id. As the Eleventh Circuit noted in Snapper, if Congress intended "defect" to cover all grounds for remand other than subject matter jurisdiction, the 1996 amendment would have been a "radical departure from well-established law and practice." 171 F.3d at 1259; see also id. at 1256-57 & nn. 15, 16 & 17 (collecting cases showing courts' unanimous holdings that forum selection clauses, abstention, and supplemental jurisdiction were not covered by the pre-1996 version of § 1447(c)). Indeed, if the word *757 "defect" in the post-1996 version of § 1447(c) includes all grounds for remand other than lack of subject matter jurisdiction, the post-1996 version would have overruled two then-recent Supreme Court cases, Quackenbush and Carnegie-Mellon University. There is absolutely no indication in the legislative history of the 1996 amendment that Congress intended such a result.
We therefore hold that a forum selection clause is not a "defect" within the meaning of § 1447(c) and that the thirty-day statutory time limit does not apply to a motion to remand based on a forum selection clause. This is not to say, however, that a district court lacks the discretion to deny such a motion if it is not raised on a timely basis. As the Eleventh Circuit observed in Snapper, "[p]rior to the enactment of the statutory limitation, motions to remand were required to be brought within a reasonable time frame." 171 F.3d at 1257 n. 18. We agree with the Eleventh Circuit that this rule still applies to remand motions not governed by § 1447(c). See id.; see also Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1213 n. 8 (3d Cir.1991) ("[A] district court in the proper exercise of its discretion may deny as untimely a non-procedural-defect, non-jurisdictional motion to remand if made at an unreasonably late stage of the federal litigation.").
In our view, there are good policy reasons to impose a statutory time limit on a motion to remand based on a forum selection clause, whether that limit be thirty days or some other period. The parties are, or should be, aware of a forum selection clause at the outset of the litigation. There are good reasons to resolve early in the litigation the question of what forum will decide the case, and there are equally good reasons, where practicable, to have a bright-line rule prescribing the time within which a motion to remand should be filed. But we may not rewrite § 1447(c) to suit our own view of good policy. That is, of course, a task for Congress. As § 1447 is now written, it simply does not contain a time limit for a motion to remand to state court based on a forum selection clause.

Conclusion
We hold that we have jurisdiction under § 1447(d) to hear ITEX's appeal of the district court's remand order. We further hold that the thirty-day time limit of § 1447(c) does not apply to a motion to remand based on a forum selection clause specifying state rather than federal court as the appropriate forum. Plaintiffs' motion to remand was therefore not untimely. We affirm the district court's order remanding this case to Oregon state court.
AFFIRMED.
NOTES
[*]  The Honorable Charles R. Breyer, United States District Judge for the Northern District of California, sitting by designation.


Filed 9/14/16 J.K. v. Superior Court CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE

J.K.,
         Petitioner,
v.                                                                       A149099
THE SUPERIOR COURT OF SONOMA
COUNTY,                                                                  (Sonoma County
                                                                         Super. Ct. No. SFL-073895)
         Respondent;
K.K.,
         Real Party in Interest.

         Petitioner J.K., mother (Mother) of R.K. and I.K (minors), filed a petition for writ
of mandate and/or prohibition challenging the Sonoma County Superior Court’s July 29,
2016 order granting father’s (K.K. or Father) request for sole legal and physical custody
of the minors, authorizing relocation of the minors from California to Colorado where
Father resides, and prohibiting Mother from visiting with minors pending further hearing.
Mother sought writ relief in this court from the court’s July 29th order, alleging that the
trial court issued its order without notice, depriving her of the opportunity to be heard
and/or to present evidence. We, therefore, stayed the superior court’s order and requested
informal briefing on an expedited basis. Father failed to file his opposition to the petition
by the date set forth in our August order. Consequently, and for the reasons set forth
below, we now order the superior court to vacate its July 29, 2016 order, and instruct it to

                                                             1
enter a new order denying Father’s July 28th ex parte request for sole custody of minors,
relocation of the minors and prohibition of visitation between minors and Mother.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Mother and Father married in 2002 and had two children, R.K. and I.K. They
separated in 2009. Between 2008 and 2009 various restraining orders were issued against
Father, who apparently suffers from bi-polar disease, to protect the children and/or
Mother from him. Mother alleges that in 2008 Father was adjudged to be a negligent and
abusive parent.
       Since 2010 Mother and the children have lived in Sonoma County — usually, but
not always, with the maternal grandparents. Father has visited with the children in Santa
Rosa a few times, but has only been sporadically involved in the children’s lives for the
last six years. The parents were divorced in February 2016 in Adams County, Colorado;
the judgment made no provisions for the children because the Colorado court found it
lacked jurisdiction over the children.
       Mother traveled with the minors to Colorado for a visit in July 2016, where they
had contact with Father. Father alleges that during this visit he observed that Mother was
high on drugs. He also alleges that Mother was traveling with a homeless friend who,
while watching the children, left them at a “meth house.” Mother’s friend later informed
Father that Mother was a drug addict. When Father asked Mother whether she was high,
she “rag[ed] out of control,” forced the children to get into the car, and sped away with
them. After Mother left, Father was unable to locate the children and he became
concerned for their safety. Father asked the Santa Rosa police department to conduct a
welfare check with regard to the children at Mother’s parents home. The Santa Rosa
Police conducted a welfare check, as requested, and informed Father that the children
were safe with their maternal grandparents and Mother.
       On July 28, 2016, Father filed a temporary, ex parte request in the Sonoma County
Superior Court seeking sole physical and legal custody of the children. The next day,
without notice to Mother, the superior court awarded Father temporary physical custody
of the children, directed that Mother have no visitation with the children pending a

                                             2
hearing, permitted the Father to remove the children to Colorado, and set a hearing for
September 15, 2016. On August 9, 2016, Mother’s request to set aside the temporary
orders was denied. On August 12, her request to modify or stay the move-away order
and to advance the hearing was also denied.
         On August 22, 2016 Mother petitioned this court to issue a writ of mandate and/or
prohibition directing the lower court to vacate its move-away order and, pending
consideration of the petition, to stay that order. We temporarily stayed the superior
court’s order prohibiting Mother from visiting the children and permitting the Father to
remove the children to Colorado; we also requested informal briefing on an expedited
basis, and gave notice, pursuant to Palma v. U.S. Industrial Fasteners, Inc. (1984) 36
Cal.3d 171, 180 that, if appropriate, we might issue a peremptory writ in the first
instance. Finally, we directed the Clerk of the Court to notify the parties telephonically
and/or via facsimile of our order. Father filed no opposition to the petition.
                                      DISCUSSION
         Family Code, section 3063 states: “In conjunction with any ex parte order seeking
or modifying an order of custody, the court shall enter an order restraining the person
receiving custody from removing the child from the state pending notice and a hearing on
the order seeking or modifying custody.” (Fam. Code, § 3063 (italics added).) Under the
plain language of the statute, a court must enter an order restraining the party receiving
custody of a child from removing the child from this state pending a noticed hearing on
the custody issue. Mother alleges that she received no notice of a hearing prior to the
superior court’s ex-parte order allowing Father to remove the children to Colorado. In
addition, Father has filed no opposition to Mother’s petition nor has he submitted
evidence to dispute Mother’s claim. Thus, we find that the superior court’s move-away
order clearly violates the clear and unambiguous requirement of Family Code, section
3063.1

1
       Mother makes additional arguments as to why the order is defective: that the
superior court did not adhere to the statutory deadline for setting the subsequent hearing
and the superior court declined to issue an automatic 30-day stay, pursuant to section
                                              3
       Our resolution here is based on a procedural defect — the failure to provide notice
to Mother — and Father’s failure to oppose the petition. Although that is sufficient to
resolve the limited question before us — the validity of the superior court’s move-away
order — it does not resolve the underlying factual questions: regarding the custodial
rights of parents and the best interest and safety of the children with respect to parents’
custodial rights. The Colorado court issuing the divorce decree has not assumed
jurisdiction over the children and there are serious allegations regarding the fitness of
either parent to care for the children. We have no basis to, and, thus, express no opinion
about the validity of any of those allegations.
       Because the need for relief is obvious, no opposition to the petition has been filed,
and the issue involves child custody — an area which frequently demands quick
resolution and expedited writ procedures. (See Jane J. v. Superior Court (2015) 237
Cal.App.4th 894, 909.) We conclude that issuance of a peremptory writ in the first
instance is appropriate. (See Palma v. U.S. Industrial Fasteners, Inc., supra, 36 Cal.3d at
pp. 177-180; Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [peremptory writ in the first
instance is appropriate where entitlement to the relief requested is conceded or where
there has been clear error under well-settled principles and undisputed facts].)

                                      DISPOSITION
       For the reasons stated herein, the superior court is ordered (1) to vacate those
portions of its July 29, 2016 order in Kidd v. Kidd, Sonoma County Superior Court
Family Law Division Case No. 073895, which grants sole legal and physical custody of
the minors to Father, prohibits Mother from visiting the children and permits Father to
remove the children from California and take them to Colorado; (2) to issue a new order
denying Father’s request to remove the children from California; (3) to consider what, if
any, investigation or measures need to be taken to safeguard the children’s well-being;
and (4) to order that those measures be taken. Our decision shall not in any way limit the

917.7 of the Code of Civil Procedure. Because we decide this writ on the basis of the
notice issue and the lack of any opposition, we need not address these additional issues.
                                              4
superior court’s discretion to enter any and all appropriate orders after conducting a
properly noticed hearing. The decision of this court is final immediately as to this court.
(Cal. Rules of Court, rule 8.490(b)(2)(A).)
///
///
///

                                                  _________________________
                                                  Jenkins, J.

We concur:

_________________________
Pollak, Acting P. J.

_________________________
Siggins, J.

J.K. v. Superior Court of Sonoma County, A149099

                                              5


525 F.2d 819
UNITED STATES of America, Plaintiff-Appellee,v.Clyde Winton JENKINS, Defendant-Appellant.
No. 74--1033.
United States Court of Appeals,Sixth Circuit.
Argued Oct. 8, 1974.Decided Nov. 12, 1975.

Jay Fred Friedman, Memphis, Tenn.  (Court appointed--CJA), for defendant-appellant.
Thomas F. Turley, U.S. Atty., Larry E. Parrish, Asst. U.S. Atty., Memphis, Tenn., for plaintiff-appellee.
Before CELEBREZZE and MILLER, Circuit Judges, and O'SULLIVAN,* Senior Circuit Judge.
PER CURIAM:

1
Defendant-Appellant Clyde Winton Jenkins appeals from his conviction by a jury on the first count of a two-count indictment1 which charged him with violation of 21 U.S.C. § 846, conspiracy to commit various offenses defined in the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq.

2
Jenkins raises five claims of error, each of which is discussed below.

3
We affirm.

I. The Search Warrant

4
Appellant first asserts that the District Court erred in denying his motion to suppress two firearms obtained from his residence in Muskogee, Oklahoma in a search authorized by a United States magistrate.  Specifically, it is said that the affidavit presented to the magistrate in support of the search warrant which he issued was insufficient to establish probable cause.

5
The document complained of was sworn to by Aaron C. Elliott, a Special Investigator of the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury on March 13, 1972, the same date on which the warrant issued and was executed.  It first described the 'Clyde Jenkins Premises' as a specified address as well as three automobiles (including a 'black over white Pontiac bearing Okla 72 license MG 9593') said to be parked there, and then stated that the objects of the search were 'firearms,' naming 'a Colt Diamondback revolver and an M--1 Carbine with a pistol grip.'  It further related as follows:

6
'Prior to March 1, 1972, I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins had a M--1 Carbine with a pistol grip in the trunk of his black and white Pontiac Grand Ville.  Clyde Jenkins is a man known to me as a convicted felon who has been convicted of narcotics and liquor violations.  On March 1, 72 I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins had an Enforcer (a .30 cal carbine with a pistol grip) in his possession and the informant further stated the gun came from a burglary in Kansas.  During the week of March 6, 1972, I received information which I believed from an informant who had in the past furnished reliable information that Clyde Jenkins was armed and had access to a gun at all times.  The informant further stated that Clyde sometimes had his wife Shirley carry his gun for him.  On March 10, 1972, I received information from Asst. U.S. Atty. Larry Parrish in Memphis, Tennessee that Clyde Jenkins had been seen carrying a Colt Diamondback revolver in Memphis by a Federal Undercover Agent working under the direction of Mr. Parrish.  Mr. Parrish said that he could provide a witness to testify as to Jenkin's (sic) possession of the gun.  Mr. Parrish further stated that an arrest warrant would be issued for Jenkins on or about March 13, 1972 by the Federal District Court in Memphis, Tennessee.'

7
It is undisputed by the parties that in performing his obligation to make an independent assessment on the issue of probable cause, a magistrate may rely upon hearsay information received by an affiant from an informant.2 It is appellant's contention, however, that the above described affidavit is faulty because it does not meet the standards enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States,  393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).  In the former case, which concerned a warrant based wholly upon an informer's tip, the Supreme Court set forth a 'two-pronged' standard for testing the sufficiency of affidavits which contain such hearsay.  The first prong requires that the magistrate be informed of some of the underlying circumstances on which the informant's conclusion was based, and the second prong requires that the affidavit show some of the underlying circumstances from which the affiant concluded that the informant (who need not be identified) was credible or his information reliable. 378 U.S. at 114, 84 S.Ct. 1509.  And the latter case, Spinelli, supra, teaches generally that when an informer's tip is found wanting under Aguilar, the other allegations in the affidavit which corroborate the hearsay report should be considered, and the affidavit is to be deemed sufficient if it can fairly be said that the tip '. . . when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's tests without independent corroboration'.  393 U.S. at 415, 89 S.Ct. at 588.

8
In the case at hand, the information within Elliott's personal knowledge was limited to the fact that Jenkins had previously been convicted of a felony.3 All of the remaining information was provided to Elliott by others, to wit: (1) 'an informant' and (2) 'Asst U.S. Attny Larry Parrish.'

9
Examining these sources in sequence, and taking the tips from the informant as a group, it is evident that the statements which originated with the informant satisfy the second branch of the Aguilar test, for the general believability of such a source may be satisfactorily established before a magistrate by the affiant's declaration that the informant has in the past given accurate information.  United States v. Kidd, 407 F.2d 1316, 1317 (6th Cir. 1969).  And, while there is nothing explicit in this portion of the affidavit which could be construed as revealing to the magistrate the means by which the informant reached his conclusions, there is a significant amount of detail which suggests personal observation and from which an independent judicial officer 'could reasonably infer that the informant had gained his information in a reliable way.'4 Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589.

10
We now turn to the tip first provided by a 'Federal Undercover Agent,' and relayed to the affiant by an Assistant United States Attorney in Memphis, Tennessee.  In attacking this portion of the affidavit appellant's principal claim is that as 'double hearsay' it is somehow per se ineligible to be considered in a probable cause determination.  We disagree, and hold that, subject to the Supreme Court's criteria outlined above, hearsay upon hearsay may be so considered by a magistrate.  United States v. Kleve, 465 F.2d 187, 191--93 (8th Cir. 1972); United States v. Smith, 462 F.2d 456, 459--60 (8th Cir. 1972).

11
Alternatively, Jenkins asserts that the hearsay conveyed to the affiant by an Assistant U.S. Attorney did not meet constitutional standards with respect to the originator of the information.  In our view, the declaration that the original source was an eyewitness to the event described provides a sufficient basis for validating the conclusion conveyed in the tip (the first branch of the Aguilar test).  On the other hand, we recognize that the description of the original source as a 'Federal Undercover Agent working under the direction of Mr. Parrish,' is not a precise one and would not compel a magistrate to find in favor of the source's general believability (the second branch of the Aguilar test), but we believe that it could have a tendency to do so.5

12
In light of this discussion, we do not hesitate to say that the affidavit here at issue is considerably less than ideal.  However, in determining whether a search warrant should issue, the magistrate deals only with probabilities rather than certainties.  Draper v. United States, supra, 358 U.S. at 313, 79 S.Ct. 329, and deference is to be accorded an independent judicial officer's finding of probable cause, with doubtful cases governed largely by the preference which our legal system gives to warrants.  Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Ventresca, 380 U.S. 102, 108--109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States ex rel. Saiken v. Bensinger, 489 F.2d 865, 866 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974).  Moreover, the Supreme Court has stated that its decisions in Aguilar, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and other cases on this subject

13
'. . . reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract.  If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion.  They are normally drafted by nonlawyers in the midst and haste of a criminal investigation.  Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.  A grudging or negative attitude by reviewing courts towards warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.'  United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746.

14
We conclude that the tips here at issue adequately, if marginally, meet the standards expressed in Aguilar v. Texas, supra, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, as explicated in Spinelli v. United States, supra, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and were properly includable in the probable cause calculus along with the affiant's personal knowledge of Jenkins' felony record.  And, mindful of our obligation to eschew the 'totality of the circumstances' approach to this problem condemned in Spinelli, supra, 393 U.S. at 415, 89 S.Ct. 584, we are still convinced that the declarations in the affidavit were sufficient to permit a neutral magistrate to find that weapons which were evidence of a crime would probably be found at appellant's residence.  Accordingly, the motion to suppress was correctly denied.

II. Evidentiary Rulings

15
Jenkins' second contention is that an official prison record which was read, in part,6 to the jury and an Enforcer firearm which was also admitted into evidence were unduly prejudicial or unnecessarily cumulative in nature or both.  However, it is important to note that much of the other evidence presented to the jury was in the form of tape recordings and the two items here complained of were received for the limited purpose of identifying a speaker on the tape who made statements concerning a prison term he had spend at Fort Leavenworth and an Enforce weapon which he owned.

16
In overseeing the presentation of evidence to a jury, a District Judge must, in the exercise of his sound discretion weigh probative value against the possibility of undue prejudice to the defendant.  On appeal, evidentiary rulings will be disturbed only in the event of a grave abuse of discretion, United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181, 1186 (1973), and upon the record before us we find no such abuse.

III. Testimony of Government Witnesses

17
Thirdly, in the same vein as his second contention, Jenkins argues vigorously that two instances of testimony by Government witnesses on direct examination amounted to 'character assassination' and 'insinuation of criminal activity other than that referred to in the indictment.'  The first such instance occurred when a federal agent testified that the weapon which was the subject of Count II of the indictment was discovered in a flight bag which also contained 'miscellaneous tools' as well as 'some gloves and ski masks.'  (Tr. 349).  This testimony was the subject of the following colloquy at the bench out of the hearing of the jury:

18
MR. FRIEDMAN (Defense Counsel): I don't know what they purpose of that last comment (sic), Mr. Parrish (Government counsel) knew that information was going to come out, and I object to it, I am very unhappy about it.

19
THE COURT: What do you want me to do?

20
MR. FRIEDMAN: Well, I'm about halfway tempted to ask for a mistrial, this is prejudicial and improper, he knows what is coming out, this is to prejudice the jury about this man being involved in some other crimes, and it has no probative value to this particular inquiry, and I think it is a deliberate attempt to prejudice this man's rights in front of this jury.

21
MR. PARRISH (Government Counsel): For the record--

22
MR. FRIEDMAN: I would ask the Court to admonish Mr. Parrish not to let it happen again.

23
THE COURT: Mr. Friedman, I don't believe that Mr. Parrish did that.

24
Whether he knew it I can't say, but he asked whether there were any clothes in the bags and the witness brought this out.  I don't know whether he knew or not.  Let's--

25
MR. FRIEDMAN: Your Honor, a lawyer won't ever put a witness on that he didn't know what he would testify to.

26
THE COURT: I've seen that happen by the government and defense both.

27
MR. FRIEDMAN: I know for the government--

28
THE COURT: Mr. Friedman, let him make a statement for the record.

29
MR. PARRISH: For the record, as an officer of this court, I can state that I had no knowledge anything about ski masks would come out.  I didn't know any black leather bags.  I knew this gun and holster was found in the residence, and when I asked and he said black leather bags I was inquirying (sic) to see if they were traveling type bags and if there was clothing in them.  However, ski masks are nothing more than clothing, and I think the jury is not likely to be prejudice (sic) by the fact that there was ski masks there and they may think he was going skiing.

30
MR. FRIEDMAN: I have made my motion.

31
THE COURT: I'm not going to admonish Mr. Parrish, and I don't have anything else before the Court.

32
MR. FRIEDMAN: I want the Court to have my impression of the credibility of the last statement.

33
THE COURT: All right.

34
(Tr. 350--51).

35
A fair reading of this exchange is that no motion to strike the agent's testimony was made despite the fact that the Court afforded the defense ample opportunity to do so.  Moreover, in light of the circumstances, we believe that even if an admonishment should have been made or if reference to items other than the gun in the flight bag should have been stricken, the error in not doing so was harmless.  Fed.R.Crim.P. 52(a).

36
The second instance of testimony here assigned as error need not be discussed in detail, except to say that it comprised brief mention by witness Cordelia Stone of Jenkins' association with narcotics transactions other than those involved in the instant indictment.  Appellant's brief indicates that a motion to strike this testimony was made, but the record shows that it was brought up belatedly at a bench conference during the testimony of the second witness to take the stand after Mrs. Stone had been excused.7 Despite its manifest untimeliness, the District Judge entertained the motion and overruled it on the ground that the testimony showed 'willingness and intent to join this conspiracy that he (Jenkins) is charged with in Count I.'  (Tr. 435).

37
It is true, of course, that, as a general matter, evidence of misconduct not charged in an indictment is not admissible at trial, but, where, as here, such evidence tends logically to prove an element of the offense charged, an exception is made to the general rule.  Grant v. United States,255 F.2d 341, 342 (6th Cir. 1958), cert. denied, 358 U.S. 828, 78 S.Ct. 48, 3 L.Ed.2d 68 (1958).  We believe that the District Judge's disposition of appellant's motion to strike was an appropriate application of this exception.

IV. The Informer

38
The Government's principal witness at trial was Robert Thurston Davis, a convicted felon with a long criminal record, who, after being arrested on another charge, revealed to the Federal Bureau of Investigation that he had participated in certain criminal activities then under investigation.  In return for protection and financial support, (Tr. 122 and 1222) Davis agreed to cooperate with law enforcement officials in investigations then being conducted, and in so doing, he performed a variety of functions which included living in an apartment (provided by the Government) (Tr. 122) which he knew to be under photographic and electronic surveillance and wearing a radio apparatus strapped to his body for the purpose of transmitting his conversations with criminal suspects.  It was from the radio and other electronic devices that the tape recordings used as evidence in this case were derived.

39
During the course of his direct and cross-examination, the jury was made fully aware of these and many other detailed facts about Davis' background and his dealings as an informer.

40
On appeal, Jenkins urges that Davis' testimony was tainted because he had been shown to be a 'pathological liar' and that the Government was guilty of bad faith in using such a witness.

41
The record indeed shows that in a prison psychological report prepared some nine years before the trial in this cause, Davis was described as an antisocial personality and a pathological liar, but the record also shows that the report was voluntarily brought to the attention of the trial judge by the prosecution (Tr. 796) and that it was made available to the defense and later admitted into evidence as an official record at the urging of the defense (Tr. 1185) over the objection of the Assistant United States Attorney (Tr. 797, 1426--27).  Moreover, appellant's expert witness, a physician and psychiatric resident, was permitted to define extensively for the jury the medical terms used in the report, and he testified, inter alia, that a pathological liar 'lies as part of his life style.'  (Tr. 1464).

42
We conclude that appellant's broadside allegations of prosecutorial misconduct are unfounded and that evaluation of Davis' testimony was a matter of credibility for the trier of fact.  See e.g., United States v. Hoffa, 349 F.2d 20, 38 (6th Cir. 1965), aff'd 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

V. Voiceprint and Polygraph Evidence

43
The last assignment of error relates to the District Judge's rulings on admissibility of voiceprint and polygraph evidence; the former, proffered by the Government, was admitted, while the latter, proffered by the defense, was not.  Appellant's basic positions are: (1) that voiceprint analysis is so unreliable as to be inadmissible, but (2) since it was ruled admissible below, the District Court should have admitted the tendered polygraph evidence as well.  We disagree with the first proposition and, in light of the nature of the defense tender, need not reach the second.

44
The voice identification put at issue by appellant was made by Lt. Ernest W. Nash of the Michigan State Police, who compared voiceprints8 derived from tape recordings of an unknown speaker with voiceprints derived from a taped voice exemplar given by Jenkins and concluded that, in his opinion, the unknown speaker was Jenkins.  (Tr. 262--63).

45
This Court has recently held that voiceprint analysis falls into the category of scientific evidence and that its admissibility is a matter within a trial judge's discretion.  United States v. Franks, 511 F.2d 25, 33 (6th Cir. 1975).  Applying that standard to the instant case, we hold that the District Court committed no error, for, as in Franks, the expert here was accepted as such only after an extensive inquiry into his qualifications and the reliability of the scientific process which he used.  The record before us makes it clear that the required foundation was properly laid and that Lt. Nash's background and training, as well as the accuracy of the voiceprint method of analysis were subjected to detailed scrutiny on lengthy direct examination and on rigorous cross-examination.  Having heard the expert testify, the jury was entitled to weigh the voice identification evidence along with other evidence properly received.

46
As a final matter, it is sufficient to say that appellant's arguments concerning admissibility of polygraph (lie detector) evidence need not be considered, since the defense proffer was, by its terms, directed solely to Count II of the indictment (the firearms count) on which the jury returned a verdict of not guilty.  (Tr. 1373--74).

47
Accordingly, the judgment of the District Court is affirmed.

*
 Judge O'Sullivan participated in this per curiam opinion prior to his death

1
 Appellant was acquitted on the second count of the indictment which charged interstate transportation of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)

2
 The 1972 amendments to the Federal Rules of Criminal Procedure, which became effective shortly after the time of the events here at issue added the following sentence to Rule 41(c): 'The finding of probable cause may be based upon hearsay evidence in whole or in part.'  The Notes of the Advisory Committee on Rule describe this addition as 'current law.'

3
 This information, of course, constitutes an objective datum and is fundamentally different from the simple 'assertion of police suspicion' which was rejected in Spinelli, supra, 393 U.S. at 418--19, 89 S.Ct. 584.  In any event appellant has not challenged its use here

4
 This was essentially the situation in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), cited with approval in Spinelli, 393 U.S. at 416, 89 S.Ct. at 589, in support of the following proposition:
'In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.'
Draper had the additional feature that the particulars provided by the confidential informant were confirmed by independent police surveillance of the suspect involved.

5
 The identity of the 'Agent' was not put at issue by defense counsel at the hearing on the motion to suppress.  In his brief, appellant asserts that the 'Agent' was in fact one Robert Thurston Davis, a principal witness at the trial and a 'criminal who was turning evidence for the government,' rather than a government employee as the appellation 'Agent' might imply.  We believe, that even if the words 'Federal Undercover Agent' were discounted entirely and the source were treated simply as an informant, working under the direction of Mr. Parrish, our ultimate conclusions as to general believability and the lawfulness of the search would not be affected; and, therefore, we need not reach the issue of misrepresentation by the government which Jenkins impliedly raises before this Court

6
 The form related the length of Jenkins' sentence at Leavenworth, Kansas, on a prior conviction; but the nature of the underlying offense was not revealed to the jury

7
 The motion appears in the transcript more than 20 pages after Mrs. Stone's testimony ended.  (Tr. 433)

8
 Lt. Nash testified that the technique known as sound spectrography or voiceprint analysis involves use of an electronic device (spectrograph) which, when activated by a human voice, produces graphic representations of the unique accoustical characteristics of that voice.  The graphs are traced on paper by a stylus and are called 'voiceprints' or, more formally, 'spectrograms.'  Comparison of spectrograms is used as a basis for determining whether or not the accoustical patterns of an unknown voice match those of a known speech sample


500 So.2d 1296 (1986)
Johnny Ray COX
v.
STATE.
6 Div. 21.
Court of Criminal Appeals of Alabama.
October 14, 1986.
Rehearing Denied November 12, 1986.
Certiorari Denied January 23, 1987.
*1297 Jerry N. Quick, Trussville, for appellant.
Charles A. Graddick, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 86-270.
McMILLAN, Judge.
The appellant, Johnny Ray Cox, was found guilty of the offense of manslaughter and sentenced to 25 years in the penitentiary pursuant to the Habitual Felony Offender Act. The deceased, Buddy French, was shot by a rifle in the presence of three witnesses. When the police arrived at the house, the appellant answered the door and stated that he did not know what had happened because he had been in the back of the house; however, he indicated that two black males had been present earlier. At trial, two witnesses to the incident, the deceased's ex-wife and the appellant's ex-wife, both testified. The decedent's ex-wife, Dianne Hall, testified for the State that the deceased and the appellant, having left the house several hours earlier, arrived with the deceased appearing to be intoxicated while the appellant appeared sober. The deceased started to leave and Ms. Hall followed him outside, afraid that he was going to take her car. An argument ensued and the appellant walked outside and calmed the deceased. The appellant then went to bed and the deceased entered the house and told Ms. Hall that she would have to leave; whereupon the appellant's wife and the deceased's sister, Brenda Cox, informed the deceased that Ms. Hall was not going to have to leave. Ms. Hall testified that during this conversation, she was on her knees by the couch and although she was not certain of the ensuing events, the deceased attempted to choke her and left red marks on her neck. Ms. Hall stated that at this point she heard Brenda Cox yell, "No Johnny" and saw Ms. Cox's arm going up in the air and then she heard a shot. The deceased stood up and challenged the appellant to "do that again." Ms. Hall testified *1298 that she again heard Brenda Cox yell "No Johnny" and another shot ensued. She stated that she observed the deceased grab his stomach and fall to the floor. Brenda Cox testified for the defense to substantially the same facts. She further testified that after the shooting, the appellant gave her the gun and told her to put it in the trunk of her car, which she did. She testified that later, when the police allowed her to leave the scene of the crime, the appellant told her to throw the gun away, so she threw it in a pond in Blount County, where it was later recovered.

I
The appellant contends that the evidence presented against him does not support a conviction for manslaughter and that his motion for judgment of acquittal should have been granted by the trial court. Specifically, he argues that the evidence does not show that he acted out of the heat of passion. Nor was there a showing of the legal provocation necessary to arouse such heat of passion.
"`"Mere words, no matter how insulting, never reduce a homicide to manslaughter. Manslaughter is the unlawful killing of a human being without malice; that is, the unpremeditated result of passion-heated bloodcaused by a sudden, sufficient provocation. And such provocation can, in no case, be less than an assault, either actually committed, or menaced under such pending circumstances as reasonable to convince the mind that the accused has cause for believing, and did believe, he would be presently assaulted, and that he struck, not in consequence of a previously formed design, general or special, but in consequence of the passion suddenly aroused by the blow given, or apparently about to be given." * * *' Reeves v. State, 186 Ala. 14, 65 So. 160, 161." Easley v. State, 246 Ala. 359, at 362, 20 So.2d 519, 522 (Ala.1944). Thus, the mere appearance of imminent assault may be sufficient to arouse heat of passion. "To constitute adequate legal provocation, it must be of a nature calculated to influence the passions of the ordinary, reasonable man. Other than discovered adultery, courts have reached different conclusions as to what factual situations are embraced within this doctrine." Biggs v. State, 441 So.2d 989, 992 (Ala.Cr.App.1983). As the commentary to § 13A-6-3, Code of Alabama 1975, indicates, "What constitutes adequate legal provocation is not defined but remains, as previously, for judicial interpretation. The trial court must, as a preliminary question, decide as a matter of law whether offered evidence of provocation has any tendency to prove mitigating circumstances; when so construed and admitted, the questions of sufficient provocation and cooling time are then solely for the jury." This court has previously addressed this issue and held that "[w]hether heat of passion was sufficiently proven was for the jury to determine. Such has long been the law of this state, e.g. Ex parte Sloane, 95 Ala. 22, 11 So. 14 (1891)." Geter v. State, 468 So.2d 197, 198 (Ala.Cr.App.1985).
Under the present facts, the appellant fired the first shot during a fight between his wife, the deceased's ex-wife, and the deceased. The deceased then verbally threatened the appellant and made a movement towards him, whereupon the appellant shot the deceased in the stomach, which resulted in his death. The jury could have reasonably found that the appellant believed that he was about to be assaulted, and, therefore acted out of the heat of passion. Conflicts in the evidence presented at trial are for the jury to resolve. Duncan v. State, 436 So.2d 883 (Ala.Cr. App.1983), cert. denied, 464 U.S. 1047, 104 S.Ct. 720, 79 L.Ed.2d 182 (1984). "`A verdict of conviction will not be set aside on the ground of insufficiency of the evidence, unless, allowing all reasonable presumptions for its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince this Court that it was wrong and unjust.'" Duncan v. State, supra, at 904, quoting Johnson v. State, 378 So.2d 1164, 1169 (Ala.Cr.App.), cert. quashed, 378 So.2d 1173 (Ala.1979).

*1299 II
The appellant contends that the circumstantial evidence presented at trial would not support the finding of intent to the exclusion of any reasonable hypothesis that he was not guilty. He further alleges that there was "more than enough" evidence presented to the jury for it to have found that the shooting was accidental and that his conduct was not intentional.
According to § 13A-2-2 of the Code of Alabama 1975: "A person acts intentionally with respect to a result or conduct described by statute defining an offense, when his purpose is to cause that result or engage in that conduct." The requisite intent in a murder charge "may be inferred from the character of the assault, the use of a deadly weapon, and all other attending circumstances surrounding the death of the deceased." Swann v. State, 412 So.2d 1253, 1359 (Ala.Cr.App.1982). "The killing in this case was not accidental. A killing is not accidental when the act causing death is done intentionally. Lewis v. State, 96 Ala. 6, 10, 11 So. 259 (1891). Any contention that the death was accidental `ignores the nature of the enterprise that the defendant... [w]as engaged in.' Sanders v. State, 16 Ala.App. 511, 513, 79 So. 504 (1918)." Phelps v. State, 435 So.2d 158, 165 (Ala.Cr.App.1983). It cannot be said that the appellant failed to perceive that the deceased's death might result if he was shot by the appellant. See Quates v. State, 439 So.2d 199, 202 (Ala.Cr.App.1983).
Furthermore, the State presented attendant circumstances that tended to show the appellant's intent and guilty conscience, among them his instructions to his wife to dispose of the gun in a pond near her parents' house and his lie to the police indicating that two black men had been there earlier and were responsible for the killing. The State's evidence concerning the events of the offense is sufficient to show that the appellant intended or realized the consequences of his actions; therefore, the trial court acted properly in submitting this case to the jury. "Where there is evidence from which the jury may by fair inference find the defendant guilty, the trial court should submit the case to the jury to determine the weight it will give the evidence, and this court should not disturb the verdict." Giles v. State, 440 So.2d 1237, 1239 (Ala.Cr.App.1983).

III
The appellant contends that there was a reasonable theory from the evidence to justify the charge of criminally negligent homicide and that the trial judge should have charged the jury on that offense. The appellant's defense submitted that the shooting was accidental and, therefore, he contends that an accidental killing may support a conviction for criminally negligent homicide. While it is true that the "safer" practice is to charge upon all degrees of homicide, Silvey v. State, 485 So.2d 790, 793 (Ala.Cr.App.1986), the appellant failed to properly preserve this issue for appellate review, because no exceptions or objections were timely made. In the present case, when the court finished giving its charge to the jury and asked if there were any exceptions, the defense counsel responded that he had none. Under Rule 14, Alabama Temporary Rules of Criminal Procedure, the burden is on the defendant to advise the trial judge of his objections to the jury charge, stating his grounds, before the jury retires. Averette v. State, 469 So.2d 1371, 1376 (Ala.Cr.App.1985). Matters which are not objected to at the trial level cannot be considered for the first time on appeal. Moore v. State, 415 So.2d 1210, 1217 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982); Ex parte Washington, 448 So.2d 404, 406 (Ala.1984); Singletary v. State, 473 So.2d 556, 576 (Ala.Cr.App.1984); Johnson v. State, 421 So.2d 1306, 1311 (Ala.Cr.App. 1982).

IV
The appellant argues that the three prior convictions used by the State were improperly raised for both purposes of impeachment and purposes of enhancement under the Habitual Felony Offender Act. Specifically, *1300 the appellant claims that the burden is on the State to prove that the convictions were not youthful offender convictions.
As to these prior convictions used for purposes of enhancement, the record indicates that the appellant was sentenced pursuant to five previous offenses in 1973, and, as the trial judge indicates, the appellant was 21 years old at that time. Furthermore, this court has recently stated, per Presiding Judge Bowen, "[y]outhful offender rights under a prior conviction cannot be raised at the sentencing hearing of a habitual felony offender but may be challenged by a petition for writ of error coram nobis. Jones v. State, 431 So.2d 1367, 1372 (Ala.Cr.App.1983), followed in Ex parte Scott, 460 So.2d 1371, 1374 (Ala.1984)." Goodwin v. State, [Ms. 6 Div. 55, September 9, 1986] (Ala.Cr.App.1986).
As to these prior convictions used for the purpose of impeachment, the trial court ruled that two of the five previous convictions were not for crimes involving moral turpitude and thus could not be used for purposes of impeachment; however the other three convictions were appropriate. We cannot find any authority to indicate that the State bears the burden of proving that the convictions are not youthful offender convictions. Even though "it has been held that a juvenile court adjudication cannot be introduced to impeach a witness even if the adjudication was for a crime involving moral turpitude," C. Gamble, McElroy's Alabama Evidence, § 145.01(4) (3d ed. 1977), the Alabama Supreme Court has indicated that where the record does not disclose whether the conviction or adjudication against the appellant was under the statutory provision precluding an adjudication in the juvenile court from being treated as a "conviction", it has not been shown that the trial court erred in overruling the appellant's objection to evidence showing his prior convictions. Crenshaw v. Alabama Freight, Inc, 287 Ala. 372, 252 So.2d 33 (Ala.1971). "In the absence of a showing that the adjudication against [the party was under such] statute, no reason appears to hold that the evidence here complained of was not admissible." Id. Although Crenshaw is a civil case, the reasoning therein is appropriate to the case at bar in that there is no legal presumption that a conviction wherein application for youthful offender has been made is presumed to have been granted. The previous Alabama case law tends to indicate that it is incumbent upon the defense to raise the allegation that the previous offense should have been inadmissible under the protective statute for youthful offender adjudication. Once the defense has raised this contention, it is incumbent upon the State to rebut it. In evaluating a claim brought against the introduction of evidence of a prior adjudication as a youthful offender, this court initially determines whether the movant has standing to prohibit the other party from delving into a juvenile record. See Thompson v. State, [Ms. 6 Div. 799, April 8, 1986] (Ala.Cr.App.1986); Lynn v. State, 477 So.2d 1365 (Ala.Cr.App.1984), reversed, 477 So.2d 1385 (Ala.1985); Hammac v. State, 44 Ala.App. 459, 212 So.2d 849 (Ala.Cr.App.1968). "[W]e note that the Supreme Court in Davis v. Alaska, 415 U.S. 308 at 319, 94 S.Ct. 1105 at 1111, 39 L.Ed.2d 347, recognized the State's interest in protecting and preserving the anonymity of a juvenile offender," Hunt v. State, 453 So.2d 1083, 1087 (Ala.Cr.App.1984); however, under certain circumstances, "we think that the State's policy interest in protecting the confidentiality of a youthful offender's record must yield to the public's right to the integrity of the judicial system." Thomas v. State, 445 So.2d 992, 995 (Ala.Cr. App.1984) (wherein a guilty plea as a youthful offender was admitted to contradict the witness's testimony that he did not commit that offense). See also Thompson v. State, [Ms. 6 Div. 799, April 8, 1986] (Ala.Cr. App.1986) (wherein the trial court properly denied the appellant's motion for mistrial upon the State's impeachment of the appellant by reference to a youthful offender conviction, when the record was not clear that the impeachment was made by reference to a youthful offender conviction and *1301 the trial judge acted promptly by instructing the jury to disregard the testimony).
In this case, the appellant made no claim that he was granted youthful offender status. He merely asserts that it is the State's burden to prove that these offenses were not youthful offender convictions. The appellant cites no authority for this claim, nor do we find any support for the argument.
AFFIRMED.
All the Judges concur.