171 N.W.2d 775 (1969)
184 Neb. 726
READY SAND AND GRAVEL COMPANY, a Nebraska Corporation, now known as All-Mix Concrete and Gravel Co., a Nebraska Corporation, Appellant,
v.
L. S. CORNETT, Appellee.
No. 37229.
Supreme Court of Nebraska.
November 7, 1969.
*777 Schmid, Ford, Snow, Green & Mooney, Keith I. Frederick, Omaha, for appellant.
Alfred A. Fiedler, Omaha, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
CARTER, Justice.
This is a suit in equity to reform a real estate sales agreement and to reduce the price to the number of acres represented as being sold. Claim is also made for attorneys' fees and expenses incurred in unsuccessful litigation with a third party claiming by adverse possession a part of the land conveyed. The trial court found for the defendant and plaintiff has appealed.
On March 31, 1960, Arthur H. Schultz and wife entered into an agreement with Kenneth J. Weiman, Verna L. Cornett, and John R. Atkins in which the Schultzes agreed to sell to Weiman, Cornett, and Atkins the following described real estate: "The North One half (N½) of the Southeast One Fourth (SE¼) of Section Eighteen (18), and Government Lot 3 in Section 18, all in Township 15 North, Range 10 East of the 6th P.M. And the accreation (sic) thereto," for the sum of $37,000. Subsequently L. S. Cornett acquired the interest of the purchasers, Cornett thereby becoming the sole owner of the interest in the real estate by virtue of the sale contract. The record further discloses that Cornett was the sole owner of all the stock amounting to 500 shares of Ready Sand and Gravel Company, now All-Mix Concrete and Gravel Company, which Cornett sold to William C. Patterson and Gus Graske by an agreement executed on December 31, 1965. The stock transaction appears to be of little importance here although the agreement recites that it is an integral part of the land transaction. On December 23, 1965, Cornett assigned to Ready Sand and Gravel Company all his right, title, and interest in and to the land contract of March 31, 1960, and the real estate described therein which was described the same as in the contract of sale of March 31, 1960. The closing date for completing the sale from Cornett to Patterson and Graske was December 31, 1965. Cornett refused to extend the date for closing the sale. On December 22, 1965, Patterson and Graske, with their counsel, met in the law office of defendant's counsel, with defendant and his counsel present, and the latter prepared a sales agreement covering the sale of stock and indemnities, protecting *778 against existing liabilities of the corporation, and covering the terms of the land contract as well. Patterson insisted that it be made clear as to the number of acres they were getting. Graske also insisted that the number of acres being sold be specified. One of plaintiff's counsel, Dwyer, testified that the words, "Containing 125 acres plus accretion ground," were added by mutual agreement to the tentative contract for the very purpose of fixing the acreage sold to mean that there were 125 acres plus the accretion ground. Another attorney representing the plaintiff corroborated this testimony. On the other hand, Cornett testified that he intended to sell only his interest in the Schultz-Cornett sale contract and, knowing that there was in excess of 125 acres with the accretion lands included, he agreed to the amendment of the sale contract by inserting, "Containing 125 acres plus accretion ground." Defendant's attorney did not testify. It appears clear to us that the sales agreement after the amendment was added meant that Cornett contracted to sell 125 acres and any and all accretions thereto. While the evidence was in conflict as to the intention of the parties in making the amendment, the intention of the parties as manifested by the amended contract was clear and unequivocal that defendant agreed to sell and Patterson and Graske agreed to purchase 125 acres of land and, in addition thereto, all accretion ground. The change thus made was carried into the final closing agreement of December 31, 1965.
Subsequent to the execution of the sales agreement Graske caused a survey of the land to be made. The survey showed that the north half of the southeast quarter and government Lot 3, all in Section 18, contained 119.15 acres. In a subsequent and separate suit, it was decreed that one Fred L. Lydick, by adverse possession, was the owner of 5.92 acres lying along the south side of the north half of the southeast quarter and government Lot 3.
In the sales agreement for the sale of stock, dated December 31, 1965, it was provided in part as follows: "The Seller hereby guarantees payment of and will save the Buyers, * * * free and harmless of and from all demands, claims, actions or causes of action, assessments, losses, damages and attorneys fees by reason of any claims obligations, debts, demands or liabilities existing as against the Corporation or the real estate described in paragraph 6 above, except the interest described therein, prior to and including the date of this agreement, or thereafter coming into being by reason of any state of facts existing prior to and including the date of this agreement or arising or growing out of this transaction, * * *." Plaintiff asserts that Ready Sand and Gravel Company brought a suit to quiet the title to the 5.92 acres south of the south fence line against Lydick with an unsuccessful result. It is contended that attorneys' fees of $750 and surveying fees of $584, in addition to costs amounting to $46, are within the contract of guaranty. Cornett contends that these items are not within the guaranty for the reason that the suit was brought by Ready Sand and Gravel Company and was not within the guaranty for the reason that it was affirmative and not defensive. This defense was highly technical. The quiet title action was necessary to determine the right of ownership and use, and is within the intent of the guaranty.
On May 2, 1966, and before the quiet title action was determined, Graske caused the survey of the lands involved to be made, as above stated. The survey showed that the north half of the southeast quarter and government Lot 3, according to the surveyor's legal descriptions, contained 119.15 acres. The area lost by adverse possession south of the south fence line was 5.92 acres, leaving 113.23 acres exclusive of accretion lands. The accretion lands lying between the dike on the west line of Lot 3 and the Platte River amounted to 19.78 acres. The total number of acres *779 including the accretion lands and excluding the 5.92 acres lost by adverse possession is 133.01 acres. It is clear from the undisputed facts that the issues of this case must be determined from the contract of the parties as gleaned from the numerous documents offered in evidence in the case.
The evidence shows that the Schultz-Cornett sale contract made no mention of the number of acres. Nor did the assignment of this contract by Cornett to Ready Sand and Gravel Company specify the number of acres being assigned. On December 22, 1965, a contract prepared by Cornett's attorney, covering the sale of stock and the real estate, contained the legal description of the real estate as follows: "No. ½ of the S.E.¼ of Section 18 and the Governments (sic) Lot 3 in Section 18, all in Township 15 N., Range 10 East of the 6th P.M. and the accreation (sic) thereto, Douglas County, Nebraska." After the question of the number of acres being conveyed was raised and discussed, as hereinbefore related, the parties by agreement added the following to the legal description: "Containing 125 acres plus accreation (sic) ground." In a document designated "AGREEMENT FOR SALE OF STOCK," bearing date of December 31, 1965, the real estate was described as follows: "The North ½ of the Southeast ¼ of Section 18 and the Government Lot 3 in Section 18, all in Township 15 North, Range 10 East of the 6th P.M. and the accretion thereto in Douglas County, Nebraska, containing at least 125 acres, plus accretion ground." The last-mentioned contract is the final closing contract and expresses the meeting of the minds of the parties in completing the stock and land transaction.
It seems clear to us that the foregoing description means that Cornett contracted to sell the north half of the southeast quarter and government Lot 3, plus the accretion ground. Cornett's testimony that the words, "plus the accretion ground," were intended to convey future accretions is rather specious in view of Cornett's long experience as a real estate dealer and the fact that future accretions attach as a matter of law. We conclude that the amended descriptions were a representation that the north half of the southeast quarter and government Lot 3 contained 125 acres.
Defendant asserts as a defense that where a mistake of the parties in conveying real estate relates to the identity of the property itself, reformation cannot be had. As a general proposition of law this is true. See 45 Am.Jur., Reformation of Instruments, s. 38, p. 604. The rule is stated in Lippire v. Eckel, 178 Neb. 643, 134 N.W.2d 802, as follows: "Where a mistake of the parties relates to the identity of the property itself, reformation may not be had. However, where there is no mistake as to the identity of the land intended to be conveyed, but there is a mistake in the description of it, equity may reform the instrument to conform to the true intention of the parties."
There is no mistake asserted here as to the legal description of the land intended to be conveyed. The mistake, if there be one, is as to the meaning of the representation of the number of acres warranted or represented to be within the legal description of the north half of the southeast quarter and government Lot 3, all in Section 18. It appears that $17,000 of the purchase price had not been paid to the Schultzes after the payment of which amount a warranty deed was to be furnished by the Schultzes. The sale contract provided that Ready Sand and Gravel Company would assume the $17,000 and receive the warranty deed from the Schultzes upon its payment. It was also agreed that Cornett would deliver a quitclaim deed to the real estate to the purchasers. The giving of the quitclaim deed by Cornett under these circumstances and the acceptance of a quitclaim deed by the purchasers *780 from Cornett does not play any part in the determination of the liability for contractual representations and warranties of Cornett, or his liability under the indemnifying provisions of the closing contract of sale. It is our conclusion that the trial court was in error in denying relief to the plaintiff and dismissing its action.
Under the findings as herein made, we have determined that the description of the lands sold after the amendment mutually agreed upon is plain and clear that Cornett agreed to convey the north half of the southeast quarter and government Lot 3 containing at least 125 acres plus the accretion ground. There is no evidence in this record of a mutual mistake. This precise issue does not appear to have been directly raised and certainly it was not assigned as error. Mistake as a ground for reformation of an instrument must be mutual, otherwise a reformation of the instrument reformed would be the equivalent of making a new contract for the parties which the courts may not do. The petition filed in the instant case resembles a suit for specific performance by the purchasers with abatement of the purchase price. "In actions by a vendee for the specific performance of a contract for the sale of real estate, where it appears that the vendor is unable to make a complete or perfect title, or that there is a deficiency in the quantity of land contracted to be sold, the general rule is that the vendee, if he so elects, is not only entitled to have the contract specifically performed to the extent of the vendor's ability to comply therewith by requiring him to give the best title he can or convey what he has, but he may compel the vendor to convey his defective title or deficient estate, and at the same time have a just abatement out of the purchase price for the deficiency of title, quantity, or quality of the estate to compensate for the vendor's failure to perform the contract in full. The vendee, in other words, may waive full performance and accept such title as the vendor is able to give, and if he chooses to do so, he has a right to that and to an abatement, and the court will not hear the objection, by the vendor, that the purchaser cannot have the whole. * * * The measure of abatement should be such portion of the purchase price as the relative value of the land lost bears to the purchase price of the whole tract. At any event, abatement should be made upon the basis of the contract price." 49 Am.Jur., Specific Performance, s. 105, p. 123. See, also, Melin v. Woolley, 103 Minn. 498, 115 N.W. 654, 22 L.R.A.,N.S., 595; McFarlane v. Dixon, 176 Wis. 652, 187 N.W. 671, 48 A.L.R. 1. Whether or not an action for the reformation of the contract for the sale of real estate is established by the evidence, the petition states a cause of action for equitable relief. Pursuant to the principle that a court of equity once having properly acquired jurisdiction in a suit for equitable relief will make a complete adjudication of all matters properly presented and involved in the case, the court ordinarily will grant such relief, legal or equitable, as justice and equity may require.
There is no evidence in this record as to the per acre value of the lands sold. It cannot be assumed in view of the evidence that the accretion lands west of the dike are of the same value as the lands east thereof. We can find no way to assess damages or abate the deficiency against any unpaid part of the purchase price. It is the opinion of this court that the costs and attorneys' fees incurred in the case of Ready Sand and Gravel Company v. Cornett, Schultz, and Lydick, docket 589, No. 137, of the records of the district court for Douglas County, are subject to the indemnity provisions of the contract bearing date of December 31, 1965, if the procedural provisions of that contract have been complied with, a matter that we do not here decide.
*781 The judgment of the district court is reversed and the cause remanded for further proceedings consistent with this opinion.
Reversed and remanded for further proceedings.


                                                            FILED
                                                             OCT 01 2014
 1                          NOT FOR PUBLICATION
                                                         SUSAN M. SPRAUL, CLERK
                                                           U.S. BKCY. APP. PANEL
 2                                                         OF THE NINTH CIRCUIT

 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                         )      BAP No.     CC-13-1311-KuDaKi
                                    )
 6   FLASHCOM, INC.,                )      Bk. No.     12-16351
                                    )
 7                       Debtor.    )      Adv. No.    12-01339
     _______________________________)
 8                                  )
     CAROLYN A. DYE, Liquidating    )
 9   Trustee,                       )
                                    )
10                       Appellant, )
                                    )
11   v.                             )      MEMORANDUM*
                                    )
12   ANDRA SACHS; ASHBY ENTERPRISES,)
     INC.; MAX-SINGER PARTNERSHIP, )
13                                  )
                         Appellees. )
14   _______________________________)
15                 Argued and Submitted on September 18, 2014
                             at Pasadena, California
16
                             Filed – October 1, 2014
17
                 Appeal from the United States Bankruptcy Court
18                    for the Central District of California
19            Honorable Robert N. Kwan, Bankruptcy Judge, Presiding
20
     Appearances:      David R. Weinstein of Weinstein Law Firm APC
21                     argued for appellant Carolyn A. Dye, Liquidating
                       Trustee; Gerald M. Serlin of Benedon & Serlin LLP
22                     argued for appellees Myles Sachs,** Ashby
23
24        *
           This disposition is not appropriate for publication.
     Although it may be cited for whatever persuasive value it may
25   have (see Fed. R. App. P. 32.1), it has no precedential value.
26   See 9th Cir. BAP Rule 8013-1.
          **
27         On February 10 2014, after this appeal was fully briefed,
     Counsel for the appellees filed a notice of suggestion of death
28                                                         continue...
 1                  Enterprises, Inc. and Max-Singer Partnership.
 2
     Before: KURTZ, DAVIS*** and KIRSCHER, Bankruptcy Judges.
 3
 4                              INTRODUCTION
 5        Flashcom Inc.’s chapter 111 liquidating trustee Carolyn A.
 6   Dye appeals from an order denying in part her motion for entry of
 7   a $9 million stipulated judgment.     Dye asserted that she was
 8   entitled to entry of the judgment against Andra Sachs and the
 9   other appellees in accordance with a “buyout option” in the
10   parties’ settlement agreement.    Dye claimed that, under the
11   buyout option, Sachs was granted the option of either paying
12   $62,500 or having entered against her and the other appellees the
13   $9 million stipulated judgment.    Because Sachs did not timely pay
14   the $62,500 buyout option amount, Dye contended that she was
15
16        **
           ...continue
     of Andra Sachs. On September 15, 2014, the Orange County
17   Superior court appointed Myles Sachs as the Special Administrator
18   for purposes of representing the decedent’s estate at oral
     argument in this appeal. Based on the Superior Court
19   appointment, Myles Sachs filed a motion seeking to substitute
     into this appeal as a party in place of Andra Sachs. Because the
20   Superior Court appointment expired by its own terms as of the
     close of business on the date of oral argument, Myles Sachs’
21
     motion is ORDER DENIED, except to the extent of permitting him to
22   represent the decedent’s estate at the September 18, 2014 oral
     argument.
23
          ***
            The Honorable Laurel E. Davis, Bankruptcy Judge for the
24   District of Nevada, sitting by designation.
25        1
           Unless specified otherwise, all chapter and section
26   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
     all "Rule" references are to the Federal Rules of Bankruptcy
27   Procedure, Rules 1001-9037. All “Civil Rule” references are to
     the Federal Rules of Civil Procedure, and all “Evidence Rule”
28   references are to the Federal Rules of Evidence.

                                       2
 1   entitled to enter and enforce the $9 million stipulated judgment.
 2        The bankruptcy court determined that, under California law,
 3   the buyout option constituted an unenforceable penalty.     We agree
 4   with that determination.     We further hold that the bankruptcy
 5   court had inherent authority to modify the court-approved
 6   settlement agreement to limit the amount of the stipulated
 7   judgment to the amount of damages Dye actually suffered as a
 8   result of Sachs’ nonpayment of the $62,500.     On this record, the
 9   bankruptcy court correctly exercised that authority.
10        However, the bankruptcy court misconstrued California law
11   when it excluded from the $62,500 judgment prejudgment interest
12   on and after April 1, 2012.     This limited aspect of the court’s
13   decision must be vacated, and the matter must be remanded so that
14   the court can amend the judgment to provide for prejudgment
15   interest up to the date of entry of the judgment.
16            Accordingly, we AFFIRM IN PART, VACATE IN PART, AND REMAND
17   WITH INSTRUCTIONS.
18                                    FACTS
19        Andra and her husband Brad2 founded Flashcom, an internet
20   service provider, in 1998. Initially, the Sachses were Flashcom’s
21   only shareholders.     However, in June 1999, the Sachses
22   relinquished their sole ownership and control of Flashcom when
23   they agreed to sell shares of Flashcom preferred stock to certain
24   venture capital companies.
25        In February 2000, Andra and Flashcom reached an agreement
26
27
          2
           We refer to the Sachses by their first names for ease of
28   reference. No disrespect is intended.

                                        3
 1   pursuant to which Flashcom redeemed a substantial portion of
 2   Andra’s Flashcom shares in exchange for $9 million.    Flashcom
 3   paid the $9 million to Andra by wire transfer on February 23,
 4   2000.
 5        Later that same year, in December 2000, Flashcom commenced a
 6   chapter 11 bankruptcy case in the Central District of California
 7   and, roughly a year later, confirmed a chapter 11 liquidating
 8   plan.    Under the plan, Dye was appointed to serve as liquidating
 9   trustee.
10        In July 2002, Dye filed a complaint against Brad, Andra, the
11   venture capital companies holding Flashcom shares, and others.
12   The complaint stated several different claims for relief.    Some
13   of them were resolved by summary judgment motions, while others
14   were resolved after trial.    And yet others were resolved, at
15   least in part, by means of the settlement from which this appeal
16   arose.    The two claims relevant to the settlement and this appeal
17   are Dye’s third and fourth claims for relief seeking to avoid and
18   recover as a preference the $9 million stock redemption in favor
19   of Andra.
20        Meanwhile, also in July 2002, Brad filed a personal
21   chapter 7 bankruptcy case in the Southern District of Florida,
22   and Robert Furr was appointed to serve as the chapter 7 trustee
23   in that case.    Furr initiated his own litigation against Andra
24   and her affiliated companies (collectively, “Andra Parties”).
25        On November 1, 2005, the California bankruptcy court entered
26   an order pursuant to Rule 9019(a) approving the settlement
27   between Furr, Dye and the Andra Parties.    On June 14, 2006, the
28   Florida bankruptcy court entered a similar settlement approval

                                       4
 1   order.
 2        The settlement, referred to as the “Global Settlement
 3   Agreement,” was global in the sense that it addressed and
 4   resolved the litigation then pending between Furr, Dye, and the
 5   Andra Parties.   On the other hand, the settlement was not global
 6   as it did not fully dispose of all of the claims as against all
 7   of the defendants in Dye’s adversary proceeding.
 8        The settlement provided for Andra to pay Furr $500,000 on
 9   the “Approval Date” (as defined in the agreement) and another
10   $250,000 within six months of the Approval Date.3
11        In addition to these payments, Andra agreed to sign two
12   stipulated judgments, one known as the “Dye Avoidance Judgment”
13   and the other known as the “Dye Liability Judgment.”   The Dye
14   Avoidance Judgment declared that the $9 million wire transfer
15   paid to Andra was avoided as a preferential transfer under
16   § 547(b).   The Dye Liability Judgment provided pursuant to
17   § 550(a) for the joint and several liability of the Andra Parties
18   for the $9 million preferential transfer.
19        The settlement provided for the immediate entry of the Dye
20   Avoidance Judgment but did not permit Dye to immediately record
21   the Dye Avoidance Judgment or to take any immediate action with
22   respect to the Dye Liability Judgment.   Rather, both stipulated
23   judgments were subject to Andra’s right to exercise what was
24
25        3
           While these payments were directly payable to Furr, they
26   also stood to benefit Flashcom’s creditors. Post-settlement, Dye
     expected to be by far the largest creditor of Brad’s bankruptcy
27   estate, so the lion’s share of any distribution from Brad’s
     bankruptcy estate ultimately was expected to end up in Dye’s
28   hands for the benefit of Flashcom’s creditors.

                                      5
 1   known as the “Dye Buyout Option” as described in paragraphs 9 and
 2   10 of the settlement.   In essence, if Andra timely paid the
 3   amount specified in the Dye Buyout Option, such payment would
 4   satisfy any and all liability of the Andra Parties to Dye and the
 5   Flashcom bankruptcy estate.     If Andra did not timely pay the Dye
 6   Buyout Option amount, then Dye was entitled to record the Dye
 7   Avoidance Judgment and to take all action necessary to enforce
 8   the Dye Liability Judgment.
 9        The timing and amount of the payment due under the Dye
10   Buyout Option were governed by two complex paragraphs, which
11   stated as follows:
12        10.   Dye Buyout Option.
13             a. The payment due under the Dye Buyout Option
          shall be $50,000 if, within 36 months of the Approval
14        Date, Dye receives at least $2,000,000 from the [non-
          settling] defendants in the in the [sic] Dye v. Andra
15        Adversary Proceeding . . . (collectively, "Other
          Defendants"). Such $50,000 payment shall be due within
16        60 days after Dye receives, and notifies Andra that she
          has received, at least $2,000,000 from the Other
17        Defendants.
18             b. The payment due under the Dye Buyout Option
          shall be $62,500 if Dye's recovery against the Other
19        Defendants in the Dye v. Andra Adversary Proceeding
          within 36 months of the Approval Date is less than
20        $2,000,000 (including if there is no such recovery at
          all). Such $62,500 payment shall be due within the
21        earlier of (i) the end of the 37th month after the
          Approval Date or (ii) such time as there is a final
22        resolution of the Dye v. Andra Adversary Proceeding by
          entry of a judgment or an order approving a settlement
23        agreement.
24   Global Settlement Agreement at ¶ 10.
25        As for the Approval Date, the settlement agreement defines
26   it as:
27        [T]he first business day following the tenth day after
          the entry of the later of the two orders of the
28        respective Bankruptcy Courts approving this Agreement,

                                        6
 1        so long as no stay of either of those orders has been
          entered prior to that date, provided that an
 2        irrevocable escrow of $500,000 has been made with
          Shulman Hodges & Bastian LLP (the "Escrow Agent") prior
 3        to the hearing on the settlement by Andra. . . . If
          such a stay is entered, the Approval Date will be the
 4        first business day after the stay is dissolved or
          otherwise becomes ineffective, as long as the Agreement
 5        has not been materially changed by a court in the
          interim. If such a change has occurred, proceedings
 6        upon this Agreement will be determined in accordance
          with that ruling.
 7
 8   Id. at ¶ 2.
 9        In a vacuum, and without the benefit of knowing (as we do)
10   what actually transpired, these paragraphs were nebulous at best
11   and nonsensical at worst.   Nonetheless, the critical dates for
12   the Dye Buyout Option were not overwhelmingly difficult to
13   calculate in light of the events that actually transpired –
14   events that all could have been ascertained by monitoring the
15   dockets in the relevant bankruptcy cases and adversary
16   proceeding.   The following is a summary of the key events and the
17   critical dates they generated.
18   •    First, the Approval Date was June 26, 2006 (the first
19        business day following ten days after the Florida bankruptcy
20        court’s June 14, 2006 approval of the settlement).
21   •    Second, the deadline for fixing the amount of the Dye Buyout
22        Option payment was June 26, 2009 (36 months following the
23        Approval date).
24   •    Third, by June 26, 2009, Dye had not obtained either any
25        settlement with or any judgment against the non-settling
26        defendants; such a settlement or judgment would have been a
27        prerequisite to any recovery along the lines contemplated in
28        subparagraph 10(a) of the settlement agreement.

                                      7
 1   •    Fourth, given the absence of the requisite recovery of at
 2        least $2 million by June 26, 2009, the timing and amount of
 3        the Dye Buyout Option payment were controlled by
 4        subparagraph 10(b) of the settlement agreement.
 5   •    And fifth, under the events as they transpired, subparagraph
 6        10(b) required payment of $62,500 by no later than July 31,
 7        2009 (the end of the 37th month following the approval
 8        date).
 9   See Stipulation of Facts (June 21, 2012) at ¶¶ 5, 9-10.
10        In 2006, Andra timely paid $750,000 to Furr in accordance
11   with the terms of the settlement agreement.   However, Andra did
12   not timely make the Dye Buyout Option payment.
13        Dye did not demand payment, serve any notice, or otherwise
14   communicate with any of the Andra Parties in July 2009 or
15   thereafter, until January 2012, when Dye’s counsel, David
16   Weinstein, contacted the Andra Parties’ former counsel, James
17   Bastian, and informed him of Dye’s contention that the Andra
18   Parties were liable for the full $9 million in accordance with
19   the settlement agreement and the stipulated judgments.    In
20   response, Bastian advised Weinstein that he no longer represented
21   the Andra Parties.
22        In March 2012, Dye filed a motion requesting that the
23   California bankruptcy court enter the Dye Liability Judgment
24   against the Andra Parties based on Andra’s failure to make the
25   Dye Buyout Option payment.   After receiving her service copy of
26   the motion, Andra more than once offered to pay $62,500 in
27   satisfaction of her obligations under the settlement agreement,
28   but Dye declined these offers based on her contention that the

                                      8
 1   Andra Parties were liable for the full $9 million.
 2        For the next year, the parties litigated the issue of
 3   whether Dye was entitled to entry of the $9 million judgment.
 4   The parties filed numerous briefs, declarations, exhibits and
 5   evidentiary objections.   Among other things, Andra argued that
 6   the $9 million stipulated judgment constituted an unenforceable
 7   penalty under California law.   Andra also argued that she was
 8   entitled to equitable relief from the court-approved settlement
 9   and the stipulated judgments.   To paraphrase Andra, the following
10   facts and circumstances justified equitable relief:
11   •    Andra timely paid $750,000 of the approximately $800,000 in
12        agreed-upon settlement payments.
13   •    Andra was ready, willing and able to pay the final remaining
14        $50,000 or $62,500 settlement installment on the
15        settlement’s Approval Date, but Dye insisted on a deferred
16        final payment at some future date to be determined in
17        accordance with the complex formula set forth in the
18        settlement; Dye refused to permit Andra to make the final
19        payment on or around the Approval Date.
20   •    Weinstein told Bastian during settlement negotiations that
21        Dye did not intend/expect4 to enforce a $9 million judgment
22
          4
23         This was one of the few factual disputes between the
     parties. Dye insisted that Weinstein never used the word
24   “intend” but rather merely said that Dye did not “expect” that
     she ever would be in a position to enforce the $9 million
25   judgment because she expected Andra to exercise the Dye Buyout
26   Option. Regardless, it is plain from the record that no one –
     not the bankruptcy court and certainly neither of the parties –
27   thought at the time of settlement that the $9 million judgment
     ever would be entered or enforced. The implications of this lack
28                                                         continue...

                                      9
 1        against the Andra Parties but instead sought to use the
 2        settlement agreement and the stipulated judgments as a means
 3        of advancing Dye’s claims against the non-settling
 4        defendants.
 5   •    Once the settlement had been approved, Dye filed a series of
 6        motions against the non-settling defendants predicated upon
 7        the Andra Parties’ admissions set forth in the settlement
 8        agreement and the stipulated judgments.
 9   •    The Dye Buyout Option provisions in the settlement
10        agreement, which governed the payment of the final $50,000
11        or $62,500 settlement installment were confusing and did not
12        identify a specific future date for payment, but rather
13        required the Andra Parties to calculate the future payment
14        date by ascertaining and considering a number of different
15        factors and variables.
16   •    Dye never apprised the Andra Parties of the status of the
17        remainder of her adversary proceeding against the non-
18        settling parties, which was one of the variables for
19        determining the amount and timing of the Dye Buyout Option
20        payment.
21   •    Dye never demanded payment of the $62,500 at the time when
22        Dye claims it was due, nor at any point for two and a half
23        years thereafter.
24   •    In March 2012 and thereafter, Dye refused Andra’s repeated
25        offer to pay the final $62,500.
26
          4
27         ...continue
     of expectation and reliance regarding the $9 million judgment is
28   discussed infra.

                                    10
 1   •    Dye admitted that, when the settlement agreement was entered
 2        into, she had no expectation of entering or enforcing the
 3        Dye Liability Judgment.
 4        The bankruptcy court advised the Andra parties at one of the
 5   hearings that, if they wanted the court to consider granting
 6   equitable relief from the court-approved settlements, they would
 7   need to file a formal motion seeking that relief under Civil
 8   Rule 60(b).   The Andra Parties thereafter filed a motion framing
 9   their pre-existing request for equitable relief within the rubric
10   of Civil Rule 60(b)(6).
11        The court held a number of hearings and ultimately issued
12   two separate memorandum decisions, the latter of which it
13   subsequently amended.
14        In the first memorandum decision, the bankruptcy court
15   determined that, although California law was not binding, the
16   court could consider California law on liquidated damages in
17   addressing the Andra Parties’ request for equitable relief.    The
18   court also determined that the Dye Buyout Option was an
19   unenforceable penalty under Cal. Civ. Code § 1671(b).   The court
20   further determined that, based on all of the circumstances
21   presented, Civil Rule 60(b) was a timely and appropriate means
22   for addressing the Andra Parties’ request for equitable relief.
23   Based on these determinations, and on all of the circumstances,
24   the bankruptcy court held that the Andra Parties were entitled to
25   equitable relief and that Dye only was entitled to entry of a
26   stipulated judgment in the amount of $62,500 plus interest.
27        In its supplemental memorandum decision, as amended, the
28   bankruptcy court elaborated on the particular circumstances that

                                     11
 1   led it to conclude that it would be inequitable to permit Dye to
 2   enter and enforce the $9 million judgment.   The key facts and
 3   circumstances posited by the Andra Parties were largely
 4   uncontroverted, and the court essentially adopted virtually all
 5   of those facts and circumstances as part of its own findings.
 6        But the bankruptcy court’s findings went even further than
 7   the Andra Parties’ factual recitations.   The court inferred from
 8   the contents of the settlement agreement and from both parties’
 9   accounts of what they said, did and thought during the
10   negotiation of the settlement agreement that Dye and Weinstein
11   intentionally structured the settlement, the Dye Buyout Option
12   and the stipulated judgments to set up the Andra Parties for
13   failure.   The court explained that Weinstein knew from his
14   settlement discussions with Bastian that Bastian planned to
15   discontinue his representation of Andra soon after the settlement
16   agreement was approved and that Andra likely would be
17   unrepresented after that point and likely would be left trying to
18   figure out for herself the complex provisions of the Dye Buyout
19   Option.
20        The following comments of the court are representative of
21   the court’s findings:
22        These perverse circumstances at best represented a
          “perfect storm” that [the Andra Parties] are liable for
23        a judgment 10 times more than what they settled for (or
          144 times what remained due), which was in violation of
24        applicable state contract law as an unreasonable and
          unenforceable penalty, or at worst, a “trap for the
25        unwary” set by [Dye] and her counsel, who intentionally
          insisted that the settlement agreement provide for no
26        notice to [the Andra Parties] of the last settlement
          payment when it became due and who expected that [the
27        Andra Parties were] not likely to [be] represented by
          counsel . . . after the settlement was approved. The
28        court can discern no rational basis for the complicated

                                     12
 1        settlement payment structure of the Dye Buyout Option
          of the Global Settlement Agreement, inconsistent notice
 2        provisions, and Trustee’s failure to give any notice of
          the amount due [once] the amount was fixed other than
 3        to trap the unwary [Andra Parties] into paying the full
          judgment amount. There is no other legitimate
 4        collection purpose for the so-called Dye Buyout Option
          because [the Andra Parties] wanted to make an early
 5        payment of the full settlement amount as evidenced by
          their payment of $750,000 of the either $800,000 or
 6        $812,500, over 90% of the settlement amount due, and
          based on Andra Sachs’ uncontroverted statements in her
 7        declarations [that she was] ready, willing and able to
          pay the balance when [she] entered into the settlement
 8        in 2005.
 9   Amd. Supp. Mem. Dec. (June 24, 2013) at 22:14-23:3.
10        Based on the bankruptcy court’s two memorandum decisions, it
11   entered an order which partially granted Dye’s motion, but only
12   to the extent of providing for the entry of the Dye Liability
13   Judgment in the amount of $62,500 plus interest.    The court
14   thereafter entered the $62,500 judgment.    In that judgment, the
15   court cut off the accrual of prejudgment interest as of April 1,
16   2012.     According to the court, Andra’s offer to pay $62,500 as of
17   that date was sufficient to relieve the Andra Parties of any
18   further liability for prejudgment interest.
19        Dye timely appealed.
20                                JURISDICTION
21        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
22   §§ 1334 and 157(b)(2)(F), and we have jurisdiction under
23   28 U.S.C. § 158.
24                                   ISSUES
25        1.    Did the bankruptcy court commit reversible error when it
26   granted equitable relief to the Andra Parties and modified the
27   terms of the parties’ court-approved settlement agreement to
28   limit Dye to a stipulated judgment in the amount of $62,500 plus

                                       13
 1   interest?
 2        2.   Did the bankruptcy court commit reversible error when it
 3   cut off the accrual of prejudgment interest on the $62,500 as of
 4   April 1, 2012?
 5                           STANDARDS OF REVIEW
 6        We review the bankruptcy court’s grant of equitable relief
 7   for an abuse of discretion.    See Zurich Am. Ins. Co. v. Int'l
 8   Fibercom, Inc. (In re Int'l Fibercom, Inc.), 503 F.3d 933, 939,
 9   945 (9th Cir. 2007).
10        A bankruptcy court abuses its discretion when it applies an
11   incorrect legal rule, or when the factual findings supporting its
12   decision are illogical, implausible or without support in
13   inferences that may be drawn from facts in the record.    United
14   States v. Hinkson, 585 F.3d 1247, 1261–62 & n. 21 (9th Cir. 2009)
15   (en banc).
16        The issue concerning the accrual of prejudgment interest
17   turns upon the effectiveness of Andra’s tender of the $62,500.
18   This question, in turn, required the bankruptcy court to construe
19   state law, which construction we review de novo.    See Trishan
20   Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 426-27 (9th Cir. 2011).
21        We can affirm on any ground supported by the record.
22   Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008).
23                                 DISCUSSION
24        Dye contends on appeal that the bankruptcy court’s decision
25   contravened binding Ninth Circuit authority.    Relying on
26   Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338 (9th
27   Cir. 1981), Dye argues that the bankruptcy court erred in two
28   distinct ways.   According to Dye, the court should not have

                                       14
 1   considered state contract law principles in the process of
 2   granting relief to the Andra Parties and also should not have
 3   permitted the Andra Parties to request that relief roughly seven
 4   years after the court entered an order approving the parties’
 5   settlement agreement.
 6        Dunnahoo is inapposite.   Dunnahoo involved an entered
 7   consent judgment and the efforts of one of the parties to the
 8   consent judgment to enforce it as entered.   Here, Dye was seeking
 9   to enforce a court-approved settlement agreement and to cause the
10   bankruptcy court, in accordance with the settlement agreement, to
11   enter a stipulated judgment signed by the adverse party (Andra)
12   but not previously entered.    Because the stipulated judgment at
13   issue – the Dye Liability Judgment – was not previously entered,
14   it was not final, and hence neither Dunnahoo nor Civil Rule 60(b)
15   were applicable to the Dye Liability Judgment.   See Civil
16   Rule 60(b) (stating that this Civil Rule applies to “final”
17   judgments, orders and proceedings).
18        A different Ninth Circuit case, one that neither of the
19   parties cited, is more helpful to us in resolving this appeal.
20   See A & A Sign Co. v. Maughan, 419 F.2d 1152 (9th Cir. 1969),
21   cited with approval in Meyer v. Lenox (In re Lenox), 902 F.2d
22   737, 740 (9th Cir. 1990).
23        In Maughan, A & A Sign Co. performed some construction work
24   for the debtor prior to the debtor's bankruptcy filing and
25   claimed a materialmen's lien under Arizona law after the debtor
26   filed bankruptcy.   Subsequent settlement negotiations between the
27   bankruptcy trustee and A & A resulted in them entering into a
28   compromise stipulation pursuant to section 27 of the Bankruptcy

                                      15
 1   Act (11 U.S.C. § 50),5 which stipulation was approved by the
 2   district court.   419 F.2d at 1154.
 3        The stipulation effectively provided: (1) that A & A held a
 4   duly-perfected materialmen's lien under Arizona law; (2) that the
 5   lien secured the reasonable value of the services and materials
 6   furnished by A & A, less a specified sum paid in exchange for
 7   A & A's release of its lien against one of three parcels of real
 8   property; and (3) that A & A continued to hold a valid and
 9   enforceable materialmen's lien against the other two parcels of
10   real property in the approximate amount of $14,000.   Id.
11        Several months after the compromise stipulation was approved
12   by the district court, the bankruptcy trustee filed a motion
13   seeking to modify the compromise stipulation.   According to the
14   trustee, he had not intended in entering into the stipulation to
15   permit A & A to retain its lien as against both parcels of real
16   property and the language in the stipulation permitting A & A to
17   retain its lien as against both parcels was inadvertent on the
18   part of the trustee.   A & A opposed the motion and presented
19   contrary evidence indicating that its retention of the lien as
20   against both parcels was a critical term of the stipulation that
21   it bargained for.   Id. at 1154-55.
22        The district court granted the trustee's motion, but the
23   Ninth Circuit reversed because, on the record presented, there
24   was no evidence or legal basis that would permit the bankruptcy
25
          5
26         11 U.S.C. § 50 was similar to current Rule 9019 and
     provided in relevant part that a bankruptcy trustee "may, with
27   the approval of the court, compromise any controversy arising in
     the administration of the estate upon such terms as he may deem
28   for the best interest of the estate."

                                     16
 1   court to excise one term of the compromise stipulation over the
 2   objection of one of the parties but leave the remainder of the
 3   compromise stipulation in tact.    Id. at 1155-56.     Even though the
 4   Ninth Circuit reversed, the Ninth Circuit held in relevant part
 5   that bankruptcy courts have the inherent equitable power to
 6   modify their prior orders, including orders approving compromise
 7   stipulations.   Id. at 1155.   The Ninth Circuit further opined
 8   that the district court’s modification of the compromise
 9   stipulation could have been sustained over A & A’s objection “had
10   there been findings supported by substantial evidence warranting
11   reformation of the stipulation.”       Id. at 1156.
12        In short, Maughan stands for the proposition that bankruptcy
13   courts have inherent equitable authority to modify or vacate
14   compromise stipulations if circumstances so justify.       Maughan
15   further stands for the proposition that basic contract law
16   principles – like contract reformation – are relevant and can be
17   considered.
18        Maughan is binding Ninth Circuit law.       It has not been
19   overruled or superseded by statute.       Moreover, In re Lenox, cited
20   above, indicates that Maughan’s teachings continue to be vital,
21   relevant and valid today.   Given the similarity between the
22   compromise provision contained in section 27 of the Bankruptcy
23   Act and Rule 9019, which currently governs compromises in
24   bankruptcy cases, we know of no reason why we are not bound to
25   follow Maughan.
26        Only one small aspect of Maughan appears outdated.       Maughan
27   indicated that orders approving compromises are interlocutory
28   orders, whereas under the “pragmatic approach” to the finality of

                                       17
 1   bankruptcy court orders, orders approving compromises are now
 2   treated as final orders for appeal purposes.      See Expeditors
 3   Int'l v. Citicorp N. Am. (In re Colortran), 218 B.R. 507, 510
 4   (9th Cir. BAP 1997).   Nonetheless, decisions following Maughan
 5   and In re Lenox have established that the bankruptcy court’s
 6   inherent authority to modify and vacate its prior orders exists
 7   even when such orders are final.      See, e.g., In re Int'l
 8   Fibercom, Inc., 503 F.3d at 945; Heritage Pac. Fin., LLC v.
 9   Montano (In re Montano), 501 B.R. 96, 114 n.15 (9th Cir. BAP
10   2013); see also In re Lenox, 902 F.2d at 740 (“although [Civil
11   Rule] 60(b) refers to relief from final orders, it does not
12   restrict the bankruptcy court's power to reconsider any of its
13   previous orders when equity so requires.”).
14        The Ninth Circuit only has identified one general limitation
15   on the bankruptcy court’s inherent authority to modify, vacate or
16   reconsider its prior orders.   The bankruptcy court only may do so
17   to the extent that no intervening rights have vested in reliance
18   thereon.   See In re Lenox, 902 F.2d at 739-40 (citing Chinichian
19   v. Campolongo (In re Chinichian), 784 F.2d 1440, 1443 (9th Cir.
20   1986)).    In In re Int'l Fibercom, Inc., the Ninth Circuit refined
21   this vested rights limitation.   503 F.3d at 944-45.     The Ninth
22   Circuit there ruled that, so long as the objecting party has not
23   detrimentally relied on the aspect of the order that is being
24   subjected to clarification or modification, the bankruptcy court
25   can exercise its equitable powers.      Id.
26        Here, we have found no evidence in the record that Dye
27   detrimentally relied on the Dye Buyout Option provisions
28   purporting to entitle her to enter the $9 million judgment.        In

                                      18
 1   fact, Dye admitted that, at the time she entered into the
 2   settlement agreement, she never expected to be able to enter or
 3   enforce the $9 million judgment.     Moreover, the only action that
 4   Dye apparently has taken in furtherance of her purported
 5   entitlement to the $9 million judgment is the litigation she has
 6   initiated seeking to enter the judgment.    However, assuming a
 7   particular litigation position based on the provision in question
 8   does not constitute the type of reliance or “vested rights” that
 9   would preclude the bankruptcy court from exercising its inherent
10   authority.   See, e.g., In re Lenox, 902 F.2d at 739 (no
11   preclusive reliance where creditor opposed plan confirmation and
12   appealed therefrom based on terms of prior court-approved
13   stipulation); In re Int'l Fibercom, Inc., 503 F.3d at 937-38 (no
14   preclusive reliance where creditor initiated relief from stay,
15   administrative claim, summary judgment and appeal proceedings all
16   based on agreed-upon terms set forth in the debtor’s contract
17   assumption motion, which the court previously granted by entered
18   order).
19        There is one other limitation that the Ninth Circuit
20   sometimes has recognized regarding the bankruptcy court’s
21   inherent authority to modify one of its prior orders.
22   Ordinarily, the court cannot exercise its modification authority
23   over the objection of the adverse party by excising one provision
24   of the parties’ stipulation but leaving the rest of the parties’
25   stipulation in tact.   Maughan, 419 F.2d at 1155; see also
26   Stephens Institute v. N.L.R.B., 620 F.2d 720, 725-26 (9th Cir
27   1980)(recognizing the same rule and the same limitation in a non-
28   bankruptcy civil case).

                                     19
 1        Even so, this anti-modification limitation is itself
 2   equitable in nature, and the Ninth Circuit has refused to apply
 3   it when the proponent’s own inequitable conduct instigated the
 4   dispute.   Stephens Institute, 620 F.2d at 725-26.      On this
 5   record, and in light of the bankruptcy court’s uncontested
 6   findings that Dye refused Andra’s offers to pay the $50,000 or
 7   62,500 on the Approval Date, insisted on the complex payment
 8   provisions set forth in the Dye Buyout Option, and intentionally
 9   structured these provisions in the hopes of setting up the Andra
10   Parties for failure, Dye is in no position to invoke this anti-
11   modification limitation.    See id.
12        There is a separate and independent reason why the anti-
13   modification limitation does not apply here.       As indicated in
14   Maughan, 419 F.2d at 1156, this limitation does not apply where
15   the application of contract law principles support the
16   modification.   Here, the bankruptcy court determined under
17   California contract law that the Dye Buyout Option was an
18   unenforceable penalty provision.      We agree.   As stated by the
19   California Supreme Court:
20        A liquidated damages clause will generally be
          considered unreasonable, and hence unenforceable under
21        [Cal. Civil Code] section 1671(b), if it bears no
          reasonable relationship to the range of actual damages
22        that the parties could have anticipated would flow from
          a breach. The amount set as liquidated damages must
23        represent the result of a reasonable endeavor by the
          parties to estimate a fair average compensation for any
24        loss that may be sustained. In the absence of such
          relationship, a contractual clause purporting to
25        predetermine damages must be construed as a penalty. A
          penalty provision operates to compel performance of an
26        act and usually becomes effective only in the event of
          default upon which a forfeiture is compelled without
27        regard to the damages sustained by the party aggrieved
          by the breach. The characteristic feature of a penalty
28        is its lack of proportional relation to the damages

                                      20
 1        which may actually flow from failure to perform under a
          contract.
 2
 3   Ridgley v. Topa Thrift & Loan Ass'n, 17 Cal.4th 970, 977 (1998)
 4   (citations and internal quotation marks omitted).6
 5        Here, there was no rational relationship between the $62,500
 6   Dye Buyout Option payment and the $9 million judgment.   When
 7   evaluating the validity of a liquidated damages clause in a
 8   settlement agreement, the appropriate measure of damages for
 9   nonpayment of the settlement amount ordinarily is tied to the
10   amount due under the settlement agreement and not to the amount
11   originally sought by the plaintiff in its complaint.   See
12   Greentree Fin. Grp., Inc. v. Execute Sports, Inc.,
13   163 Cal.App.4th 495, 499-500 (2008).
14        There is no evidence in the record here to support Dye’s
15   implicit assertion on appeal that her original preference claim
16   of $9 million is an appropriate measure of her damages resulting
17   from the non-payment of the $62,500 Dye Buyout Option amount.   To
18   the contrary, Dye’s compromise motion effectively represented
19   that the payments provided for in the settlement agreement
20   constituted a fair and reasonable recovery for Flashcom’s
21
          6
           While Dye has argued on appeal that the bankruptcy court
22
     should not have considered state contract law principles in the
23   process of granting the Andra Parties’ request for equitable
     relief, both parties seem to agree with the bankruptcy court’s
24   assessment that, to the extent state law does apply to this
     matter, California law governs. Because Dye has not argued that
25   any other state’s law should govern, she has waived this
26   argument. See Christian Legal Soc'y v. Wu, 626 F.3d 483, 487–88
     (9th Cir. 2010) (“We review only issues [that] are argued
27   specifically and distinctly in a party's opening brief.”);
     Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th Cir.
28   2010) (same).

                                    21
 1   creditors on account of the $9 million preference claim.
 2   Moreover, Dye made this representation with the admitted
 3   expectation that she never would be in a position to enter or
 4   enforce the $9 million judgment.
 5        Dye argues that the Dye Buyout Option was not a liquidated
 6   damages provision at all, but rather was a true option.     In other
 7   words, according to Dye, the Dye Buyout Option presented the
 8   Andra Parties with two bona fide alternatives: (a) either pay
 9   $62,500, or (b) be subject to liability for a $9 million
10   judgment.    This argument lacks merit.   The California Supreme
11   Court has made it clear that, when considering whether a
12   provision constitutes an unenforceable liquidated damages
13   provision or a valid alternate means of performance, substance
14   should prevail over both the form and the wording of the
15   agreement.    See Ridgley, 17 Cal.4th at 979-80.   As Ridgley
16   stated:
17        We have consistently ignored form and sought out the
          substance of arrangements which purport to legitimate
18        penalties and forfeitures. Looking to the substance
          rather than the form of the disputed provision, we
19        agree with the superior court and the Court of Appeal
          dissenter that it was invalid because it was intended
20        to, and did, operate as a penalty for late payment.
          However one describes its form, the intent and effect
21        of the disputed provision here was that any late
          payment or other default by plaintiffs would result in
22        a severe penalty . . . .
23   Id. (citations and internal quotation marks omitted).
24        Here, what Dye phrased as an option was nothing more than a
25   penalty.    No rational person would willingly choose the so-called
26   “alternate performance” of liability under the $9 million
27   judgment especially when, as here, it is undisputed that the
28   adverse party was ready, willing and able to pay the $62,500 Dye

                                      22
 1   Buyout Option amount.   Furthermore, it is telling that Dye sought
 2   to enforce the Dye Buyout Option precisely as a penalty – as a
 3   consequence of Andra’s failure to timely pay the Dye Buyout
 4   Option amount.
 5        Nor can Dye escape this result by referencing the fact that
 6   the parties eschewed terminology like “breach” and “damages”.
 7   Dye’s argument is wholly at odds with Ridgley’s mandate that
 8   substance should control over the form and wording used by the
 9   parties.
10        Relying on Schneider v. Verizon Internet Servs., Inc.,
11   400 F. App’x 136, 138 (9th Cir. 2010), Dye contends that the
12   relative benefits and burdens of the alternatives must be weighed
13   at the time the agreement is entered into.   But Schneider is an
14   unpublished decision and its facts are distinguishable.
15   Schneider dealt with the issue of whether an early termination
16   fee constituted a penalty or a bona fide alternative to
17   performance.   No one here has attempted to characterize the Dye
18   Buyout Option as the equivalent of an early termination fee, nor
19   would the record support such a characterization.
20        Also relying upon Schneider, Dye asserts that the only way
21   to properly measure whether the Dye Buyout Option constitutes an
22   unenforceable penalty is to measure the $9 million judgment
23   against Dye’s original preference claim and Andra’s risk of
24   liability thereunder.   This assertion runs afoul of Greentree
25   Fin. Grp., Inc. and our discussion of that case above, in which
26   we concluded that there was no rational basis here for tying the
27   consequences for non-payment of the Dye Buyout Option amount to
28   the stated amount of Dye’s preference claim.

                                     23
 1        Dye further points out that the Andra Parties knew and fully
 2   understood the potential risks associated with the Dye Buyout
 3   Option and that the settlement agreement was a commercial
 4   transaction entered into by sophisticated parties who at the time
 5   were both represented by counsel.    This much is true.
 6   Nonetheless, the California courts have made it clear that
 7   sophisticated parties engaged in commercial transactions are not
 8   exempt from the protections afforded under Cal. Civil
 9   Code § 1671(b).   See Ridgley, 17 Cal.4th at 981 n.5; Harbor
10   Island Holdings v. Kim, 107 Cal.App.4th 790, 799 (2003).
11        Our decision upholding the bankruptcy court’s ruling
12   limiting Dye to a $62,500 judgment is consistent with contract
13   reformation principles – the exact same principles referenced in
14   Maughan, 419 F.2d at 1156.   As discussed in the facts section
15   above, at the time the settlement was entered into and approved,
16   the parties did not expect that the Dye Liability Judgment ever
17   would be enforced.   Indeed, at that time, the express purpose and
18   motivation underlying the Dye Liability Judgment was to use it
19   against the non-settling defendants and not against the Andra
20   Parties.   After Dye lost her litigation against the non-settling
21   defendants, Dye’s motivation regarding how she wanted to use the
22   Dye Liability Judgment obviously changed, and the explicit terms
23   of the Dye Buyout Option facilitated Dye’s change in motivation.
24        But application of contract reformation principles here
25   would prevent Dye from successfully acting upon her changed
26   motivation.   As explained in Maughan: “[r]eformation is an
27   appropriate remedy to correct a written instrument when the words
28   it contains do not express the meaning the parties agreed upon

                                     24
 1   . . . .”   Id. at 1556.    See also Restatement (Second) Contracts
 2   § 155 (1981).   In short, at the time of settlement, the parties
 3   never really meant for the Dye Liability Judgment ever to be
 4   enforced against the Andra Parties.     Even though the settlement
 5   agreement as written appears to permit such enforcement, contract
 6   reformation principles could be invoked to conform the written
 7   instrument to the parties’ actual expectations at the time of
 8   contract formation.
 9        We acknowledge that contract reformation was not put at
10   issue by the parties.     Even so, we find the above contract
11   reformation analysis instructive because of its role in Maughan
12   and because it would lead to the same result as that reached by
13   declaring the $9 million judgment an unenforceable penalty.
14        We also acknowledge that, at oral argument, Dye’s counsel
15   indicated that the bankruptcy court excluded some of the parties’
16   evidence pursuant to Evidence Rule 408.     But it is difficult to
17   reconcile any such exclusion with the bankruptcy court’s findings
18   and factual statements, many of which appear to hinge on events
19   that transpired during settlement negotiations.     Regardless,
20   Evidence Rule 408 does not impede our analysis.     Dye did not
21   address Evidence Rule 408 or the court’s evidentiary exclusion
22   rulings in her appeal briefs, so she has forfeited any issue
23   relating thereto.   See Christian Legal Soc'y, 626 F.3d at 487–88;
24   Brownfield, 612 F.3d at 1149 n.4.      More importantly, it is well
25   established that Evidence Rule 408 does not exclude evidence
26   related to a settlement when it is offered for the purposes of
27   interpreting or enforcing the settlement.     See Advisory Committee
28   Notes accompanying 2006 amendments to Evidence Rule 408 (citing

                                       25
 1   Coakley & Williams v. Structural Concrete Equip., 973 F.2d 349,
 2   353-54 (4th Cir. 1992)); see also Cates v. Morgan Portable Bldg.
 3   Corp., 780 F.2d 683, 691 (7th Cir. 1985) ("Obviously a settlement
 4   agreement is admissible to prove the parties' undertakings in the
 5   agreement, should it be argued that a party broke the
 6   agreement.").
 7        Most of Dye’s other arguments on appeal concern whether the
 8   bankruptcy court correctly relied upon Civil Rule 60(b) to grant
 9   the Andra Parties relief from the terms of the court-approved
10   settlement agreement.   In light of our analysis and holding that
11   the bankruptcy court’s decision can be affirmed as an appropriate
12   exercise of the court’s inherent authority under § 105(a), we
13   need not reach Dye’s Civil Rule 60(b) issues, and we decline to
14   address them.
15        Somewhat unrelated to her Civil Rule 60(b) issues, Dye
16   argues that the bankruptcy court abused its discretion by
17   suggesting to the Andra Parties that they should file a motion
18   pursuant to Civil Rule 60(b) seeking equitable relief from the
19   court-approved settlement agreement.   This so-called suggestion
20   was made at a hearing on Dye’s motion held on October 31, 2012.
21   However, rather than providing legal advice to the Andra Parties
22   regarding what they needed to do to prevail, the entirety of the
23   hearing transcript reflects that the court and the Andra Parties’
24   counsel were engaged in a lengthy colloquy during which one of
25   the concerns the court raised was whether it could grant
26   equitable relief – relief that the Andra Parties already had
27   informally requested in their briefs in opposition to Dye’s
28   motion – in the absence of a formal motion.

                                     26
 1        Rather than attempting to give legal advice, the bankruptcy
 2   court appears to have been merely expressing its concern that the
 3   Andra Parties needed to present their pre-existing request for
 4   equitable relief in a procedurally proper format.   In any event,
 5   even if there were some sort of error or abuse of discretion
 6   associated with the court’s so-called suggestion that the Andra
 7   Parties needed to file a formal Civil Rule 60(b) motion, any such
 8   error was harmless, and we must ignore harmless error.   Van Zandt
 9   v. Mbunda (In re Mbunda), 484 B.R. 344, 355 (9th Cir. BAP 2012).
10   The bankruptcy court did not need a formal motion from the Andra
11   Parties in order to grant them equitable relief from the court-
12   approved settlement.   Rather, under the court’s inherent
13   authority, the court sua sponte could grant such relief.     See
14   § 105(a); see also In re Lenox, 902 F.2d at 740 (“Although
15   FRCP 60(b) provides that a court may relieve a party from a final
16   order upon motion, it does not prohibit a bankruptcy judge from
17   reviewing, sua sponte, a previous order.”).
18        There is one final issue we must address.   The court
19   determined that Dye was not entitled to prejudgment interest on
20   the $62,500 on and after April 1, 2012.   According to the court,
21   on or about that date, Andra’s belated offer to make the $62,500
22   payment and Dye’s refusal thereof cut off Dye’s entitlement to
23   prejudgment interest, per Cal. Civ. Code § 1504, which provides:
24        [a]n offer of payment or other performance, duly made,
          though the title to the thing offered be not
25        transferred to the creditor, stops the running of
          interest on the obligation, and has the same effect
26        upon all its incidents as a performance thereof.
27        The bankruptcy court acknowledged that the following
28   requirements ordinarily apply before an offer of payment can cut

                                     27
 1   off the accrual of interest:
 2        (1) full performance; (2) at a proper time and place;
          (3) made by the debtor or someone on her behalf; (4) to
 3        the creditor or some authorized person; (5) at a place
          appointed by the creditor; (6) timely;
 4        (7) unconditional; and (8) offer made in good faith.
 5   Amd. Supp. Mem. Dec. (June 24, 2013) at 34:20-23 (citing
 6   1 Witkin, Summary of California Law, Contracts, § 771, at
 7   pp. 861-862 (10th ed. 2005 and 2013 Supp.)).
 8        The court further acknowledged that Andra’s tender did not
 9   fully comply with these requirements.      Nonetheless, the court
10   concluded that Andra’s tender was sufficient to cut off
11   prejudgment interest because of Dye’s failure to give Andra
12   notice of when the Dye Buyout Option payment was due.      The court
13   reasoned that, under Cal. Civ. Code § 1511,7 Dye’s failure to
14
          7
15            Cal. Civ. Code § 1511 provides:

16        The want of performance of an obligation, or of an
          offer of performance, in whole or in part, or any delay
17        therein, is excused by the following causes, to the
          extent to which they operate:
18
19        1. When such performance or offer is prevented or
          delayed by the act of the creditor, or by the operation
20        of law, even though there may have been a stipulation
          that this shall not be an excuse; however, the parties
21        may expressly require in a contract that the party
          relying on the provisions of this paragraph give
22
          written notice to the other party or parties, within a
23        reasonable time after the occurrence of the event
          excusing performance, of an intention to claim an
24        extension of time or of an intention to bring suit or
          of any other similar or related intent, provided the
25        requirement of such notice is reasonable and just;
26
          2. When it is prevented or delayed by an irresistible,
27        superhuman cause, or by the act of public enemies of
          this state or of the United States, unless the parties
28                                                         continue...

                                       28
 1   give notice excused Andra from full compliance with the tender
 2   requirements.
 3        On appeal, Dye in essence argues that the bankruptcy court
 4   incorrectly invoked Cal. Civ. Code § 1511 to excuse Andra’s full
 5   compliance with the tender requirements.    We agree with Dye on
 6   this point.   Dye had no duty, contractual or otherwise, to give
 7   Andra notice of the timing or amount of the Dye Buyout Option
 8   payment.   California cases excusing an improper or delayed tender
 9   of performance based on the adverse party’s conduct are
10   predicated on the adverse party having some sort of unmet duty
11   under the parties’ agreement or, in the alternative, on the
12   adverse party affirmatively acting in some way, after the
13   agreement was entered into, to effectively prevent timely and
14   proper tender in accordance with parties’ agreement.    See, e.g.,
15   Pierce v. Lukens, 144 Cal. 397, 401-02 (1904); Ninety Nine Invs.,
16   Ltd. v. Overseas Courier Serv. (Singapore) Private, Ltd.,
17   113 Cal.App.4th 1118, 1135-36 (2003); Connolly v. Lake Cnty.
18   Canning Co., 95 Cal.App. 768, 771-72 (1928).
19        Here, in contrast, it is undisputed that Dye had no duty
20   under the settlement agreement to give Andra any notice unless
21   Dye recovered more than $2 million from the non-settling
22   defendants (which she did not).    Nor is there anything in the
23
          7
24         ...continue
          have expressly agreed to the contrary; or,
25
26        3. When the debtor is induced not to make it, by any
          act of the creditor intended or naturally tending to
27        have that effect, done at or before the time at which
          such performance or offer may be made, and not
28        rescinded before that time.

                                       29
 1   record indicating that Dye ever led Andra to believe that she
 2   would give Andra notice of the timing or amount of the Dye Buyout
 3   Option payment.
 4        The bankruptcy court’s ruling suggests that it believed that
 5   the same law, circumstances and equities that permitted it to
 6   limit the consequences arising from Andra’s failure to timely pay
 7   the Dye Buyout Option amount somehow also permitted the court to
 8   cut off prejudgment interest.   We disagree.   Dye’s entitlement to
 9   prejudgment interest was governed not by the settlement agreement
10   but instead by Cal. Civ. Code §§ 1504 and 1511, and the
11   bankruptcy court’s ability to limit this entitlement was
12   restricted by the terms of those statutes as construed by the
13   California courts.
14        Accordingly, the bankruptcy court erred when it cut off the
15   accrual of prejudgment interest on and after April 1, 2012.   We
16   thus will vacate this limited aspect of the court’s ruling and
17   will remand with the instruction that the bankruptcy court on
18   remand should amend its judgment to include prejudgment interest
19   up to the date of entry of the judgment, June 24, 2013.
20                               CONCLUSION
21        For the reasons set forth above, we AFFIRM the bankruptcy
22   court’s decision, except for the court’s ruling on prejudgment
23   interest.   This limited aspect of the court’s decision is VACATED
24   AND REMANDED WITH INSTRUCTIONS, as set forth above.
25
26
27
28

                                     30


                  UNITED STATES COURT OF APPEALS

                          FOR THE EIGHTH CIRCUIT

                                     No. 97-3407

United States of America,                     *
                                              *
             Appellee,                        *
                                              *      Appeal from the United
             v.                               *      States District Court for
                                              *      the Eastern District of
Roger David Rolett,                           *      Arkansas
                                              *
             Appellant.                       *

                            Submitted:   February 10, 1998
                               Filed:    July 30, 1998

Before RICHARD S. ARNOLD, 1 Chief Judge, HANSEN, Circuit Judge, and
LIMBAUGH,2 District Judge.

      1
        The Hon. Richard S. Arnold stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on April 17,
1998. He has been succeeded by the Hon. Pasco M. Bowman II.
      2
        The Hon. Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri, sitting by designation.
LIMBAUGH, District Judge

       Appellant was charged with conspiracy to commit a murder in aid of
racketeering in violation of 18 U.S.C. § 1959(a)(5) in Count I of the indictment and in
Count II was charged with murder in aid of racketeering in violation of 18 U.S.C. §
1959(a)(1)and 2. A jury convicted appellant of Count I, the conspiracy count, and
found appellant not guilty of Count II, the murder count.

       On this appeal, appellant raises three assignments of error. The first is that the
district court3 erroneously admitted Rule 404(b) evidence. Second, the district court
erroneously denied motions for judgment of acquittal and for a new trial because of
insufficient evidence to support the verdict as to Count I. The third assignment is that
the district court should have sustained the motion for judgment of acquittal as the
verdict of guilty on Count I was inconsistent with the verdict of not guilty as to Count
II. We affirm.

       Appellant and Charles Edwin “Butch” Davidson were both charged in Counts
I and II of a superseding indictment. Before trial, the government dismissed Davidson
pursuant to an agreement whereby he would cooperate and testify against appellant.

      At the trial, the parties stipulated that there was in existence, from February 1989
to February 1995, a racketeering criminal enterprise directed by Davidson. The
enterprise was engaged in auto theft, arson, insurance fraud, drug distribution,
intimidation and murder in and around White County, Arkansas, and the activities of
the enterprise affected interstate commerce.

      Davidson testified extensively concerning the racketeering, criminal enterprise

      3
          The Hon. George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.
and the circumstances surrounding the murder of Marlene Holt. The body of Holt has
never been found.

      Davidson also stated he had previously been convicted of a RICO charge and
for murder for hire of Daryl Cooperwood. His sentence in these cases was life
imprisonment without possibility of release, plus an additional term of 999 months
incarceration.

        During his testimony, Davidson stated that he had been running a body shop and
car lot and was involved in stolen trucks. He would take the trucks apart, disassemble
them and use the parts on wrecks, switching vehicle identification numbers. He labeled
this operation as a chop-shop enterprise. Davidson stated that his stepson, Tim
Scarbrough, and appellant would steal trucks for him as a part of his chop-shop
operation. Davidson also testified that he would operate as a fence by buying stolen
property and reselling it. He stated that Tim Scarbrough and appellant were
burglarizing houses and then bringing him stolen property to sell. This included TVs,
VCRs, microwaves and guns.

        At that point in Davidson’s testimony, defendant moved for a mistrial because
of the introduction in evidence of the thefts and burglaries. The argument was that this
evidence was inappropriate in a murder trial or in a charge of conspiracy to commit
murder in aid of racketeering. The trial court considered the evidence as that
contemplated by Rule 404(b) of the Federal Rules of Evidence. The request for a
mistrial was denied but the court elected to give a cautionary instruction. The court
told the jury that Davidson had testified about certain acts of conduct involving
appellant, that is stealing property, breaking into homes and delivering guns and
television sets to Davidson. The court stated that the evidence was being received for
a limited purpose and it was not being received to show the character of appellant or
to show that appellant acted in accordance with any alleged characterization, but that
it was being received to show motivation, intent, knowledge, mode and manner of

                                          -3-
operation, the absence of mistake or accident or the relationship between the appellant
and Davidson. The court told the jury that the members could receive this information
for those limited purposes only, and not to pinpoint the character of appellant.

        Davidson later testified about events involving Tim Scarbrough buying marijuana
from an undercover officer. Davidson stated that Scarbrough attempted to steal some
of the evidence of the marijuana offense. He stated that Scarbrough broke into the
Drug Task Force office in Searcy, Arkansas and stole all of the files and records. He
stated that appellant was with him at the time of the theft. At that point, appellant again
moved for a mistrial and the court denied it and offered again to give the same
cautionary instruction given earlier as to the Rule 404(b) evidence. Counsel for
appellant did not feel it was necessary to restate the cautionary instruction, so none was
given and the request for mistrial was denied.

      Appellant argues that the introduction of this evidence violated Rule 404(b) of
the Federal Rules of Evidence and that the district court, therefore, erred in denying the
motion for a mistrial. Appellant urges the court to find that the other acts allegedly
performed by him were not similar in kind to the acts charged and the prejudice of this
testimony far outweighed the probative value of the evidence.

       Although both parties treated the evidence of other acts as Rule 404(b) evidence,
this court finds that such evidence is “intrinsic evidence” which is inextricably
intertwined as “an integral part of the immediate context of the crime charged.” U.S.
v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995). U.S. v. Williams, 95 F.3d 723, 730,
731 (8th Cir. 1996).

       The superseding indictment as to Count 1 sets out as an introduction that from
in or about March 3, 1992 to in or about February 1995, Davidson and others
constituted an enterprise as defined in 18 U.S.C. § 1959(b)(2); that is, a group of
individuals associated in fact, which engaged in, and the activities of which affected

                                           -4-
interstate commerce. The purposes of the enterprise included enriching the members
of the enterprise through, among other things, drug trafficking, arson, auto theft and
fraud, and preserving and protecting the power of the enterprise through use of
intimidation, threats, violence, arson and murder. It was alleged that the enterprise
employed people, known and unknown to the Grand Jury, to carry out acts for
Davidson. The enterprise, “called the Davidson Enterprise” through its members and
associates engaged in racketeering activity as defined in 18 U.S.C. § 1959(b)(1) and
1961(1), that is, acts involving murder and arson in violation of the Arkansas Criminal
Code and acts indictable under 18 U.S.C. § 1958 and other sections. The indictment
charged in addition that in or about July 1992 through September 1992 in the Eastern
District of Arkansas, Davidson and appellant conspired with each other as
consideration for the receipt of, and as consideration for a promise and agreement to
pay something of pecuniary value from the Davidson Enterprise, and for the purpose
of maintaining and increasing their position in the enterprise, which was engaged in
racketeering activity, to cause the death of Marlene Holt by way of murder, in violation
of Arkansas laws, thereby violating 18 U.S.C. § 1959(a)(5).

      Although the parties stipulated that there was, in existence, a racketeering,
criminal enterprise directed by Davidson which was engaged in auto theft, arson,
insurance fraud, drug distribution, intimidation and murder it was relevant for the
government to offer evidence that appellant was involved, not only in the conspiracy
to cause the death of Marlene Holt, but to offer proof that appellant, himself, was a
member of the conspiracy and of the racketeering enterprise.

       Section 1959(a) of 18 U.S.C. provides that “whoever as consideration for the
receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary
value from an enterprise engaged in racketeering activity, or for the purpose of gaining
entrance to or maintaining or increasing position in an enterprise engaged in
racketeering activity, murders, . . . any individual in violation of the laws of any state
or the United States or attempts or conspires so to do, shall be punished . . .”

                                           -5-
       In order to prove its case against appellant, the government had to prove that
there was an enterprise engaged in racketeering activity and that the enterprise gave or
promised consideration to appellant and Davidson to commit a murder, or to conspire
to commit a murder. While it was not necessary to prove that appellant was himself
a part of the enterprise engaged in racketeering activity, it was certainly relevant to
produce evidence suggesting that he and Davidson worked together in the enterprise
engaged in racketeering activity as alleged in the indictment. Racketeering activity,
among other things, includes trafficking in certain motor vehicle or motor vehicle parts.
18 U.S.C. § 1961. This includes obliterating, tampering or altering motor vehicles, or
motor vehicle parts, including engaging in chop-shop operations. 18 U.S.C. § 2321 and
§ 2322.

       The evidence that appellant and Tim Scarbrough were engaged with Davidson
in a chop-shop operation, and that appellant was stealing materials to further that
operation was certainly relevant to prove that there was an enterprise engaged in
racketeering activity and that this enterprise provided the consideration to appellant and
Davidson to conspire to commit murder. The stipulation of the parties that there was
an enterprise engaged in racketeering activity would not preclude the government from
introducing further evidence concerning the nature and extent of the enterprise and the
nature and extent of the racketeering activity.

       Since the evidence of the other acts is intrinsic evidence which is inextricably
intertwined as an integral part of the immediate context of the crime charged, it was not
error for the trial judge to allow this evidence to come before the jury, and to refuse the
request for a mistrial.

       Even if the other acts evidence was not intrinsic evidence, inextricably
intertwined as an integral part of the immediate context of the crime charged, it was
properly admitted as Rule 404(b) evidence.

                                           -6-
      The test for admission of other act evidence under Rule 404(b) requires a
showing that: 1. The evidence of the other act must be relevant to a material issue; 2.
The other act must be similar in kind and reasonably close in time to the crime charged;
3. The other act must be proved by a preponderance of the evidence; and, 4. The
probative value of the evidence must not be outweighed by its prejudice. U.S. v.
Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).

       Evidence of appellant’s association with Davidson in the chop-shop operation
and stealing of vehicles as a part of that activity was relevant to a material issue in the
case in that the racketeering activity enterprise had to be established in order to have
some entity to provide consideration to those accused of conspiring to cause the death
of Marlene Holt. All of appellant’s illegal activities with Davidson helped to establish
the existence of the enterprise which was engaged in racketeering activity and
appellant’s association with that enterprise.

       Although the other acts complained of were not similar to murder or a conspiracy
to commit murder, they were a part of the enterprise which was engaged in racketeering
activity. There is no dispute that they were close in time to the crime charged.

      Although Davidson was a convicted felon, there was no reason to dispute his
testimony about the other acts of appellant and there was no evidence to suggest that
Davidson had misspoken when he described the other acts.

     Finally, the court determines that the probative value of the other acts evidence
was more probative than prejudicial.

        The trial court is vested with broad discretion in determining whether to admit
wrongful act evidence. This court has consistently viewed Rule 404(b) as one of
inclusion, permitting admission of other crimes, wrongs or bad acts material to an issue
at trial unless the evidence tends to prove only the defendant’s criminal disposition.

                                           -7-
Shoffner, 71 F.3d at 1432, Arcoren v. U.S., 929 F.2d 1235, 1243 (8th Cir. 1991). The
trial court gave a proper Rule 404(b) instruction at the time the evidence was elicited
and there was ample independent evidence to support the verdict. We find the district
court did not abuse its discretion in admitting the bad acts evidence. U.S. v. Mosby,
101 F.3d 1278, 1282 (8th Cir. 1996).

       Appellant next contends that there was insufficient evidence to convict him of
conspiracy to commit murder in aid of racketeering. On review of the conviction, we
must view the evidence in the light most favorable to the government and give the
government the benefit of all reasonable inferences. The charge can be proved by
direct evidence or wholly by circumstantial evidence and inference or by both.
Williams, 95 F.3d at 732. If any rational trier of fact could have found guilt beyond a
reasonable doubt, this Court must affirm. U.S. v. Searing, 984 F.2d 960, 963, 964 (8th
Cir. 1993).

        Although the body of Marlene Holt has never been found, various witnesses
testified that appellant told them he had killed her. This evidence came from Davidson,
Paula Scarbrough, Bill Scarbrough, Tim Scarbrough and Melvin Redman. Holt’s
mother, brother and others testified that they have not seen Holt since Labor Day of
1992. In August of 1992, Davidson and Holt were living together at Davidson’s home.
Davidson voluntarily entered a residential facility for psychiatric and addiction
problems in North Little Rock, Arkansas sometime in late August or early September
of 1992. Before Davidson left for the hospital, he told appellant to keep an eye on his
place while he was gone. Other witnesses, while visiting Davidson, informed him
about shootings, partying and a lot of traffic going on at his house. Thereafter,
Davidson told appellant to get rid of his problem because Holt was strung out on drugs,
was acting erratic and Davidson was concerned that Holt might tell about his
involvement in a murder-for-hire. Davidson and appellant discussed overdosing Holt,
and Davidson promised to give a Chevrolet truck to appellant for taking care of the
problem. Later, appellant told Davidson that he had killed Holt as requested.

                                         -8-
       Melvin Redman, a friend of Davidson, testified that appellant told him he had
taken care of Marlene Holt for Davidson and that Davidson owed him a truck for the
deal he had done. Tim Scarbrough also testified that appellant said Davidson was to
give him a truck for killing Holt.

        The jurors had sufficient evidence to support the verdict of the jury as to Count
I of the indictment. The agreement between Davidson and appellant to conspire to
murder Holt need not have been in writing and need not have been successful. There
was both direct and circumstantial evidence to support the verdict, and it should not be
disturbed because the body of Holt has not been located, nor should the verdict be
disturbed because the testimony of some of the witnesses may have been suspect. It
is up to the jury to pass upon the credibility of witnesses and the weight to be given
their testimony. U.S. v. Slaughter, 128 F.3d 623, 627 (8th Cir. 1997).

       Appellant’s final argument that the verdict of guilty as to Count I was
inconsistent with the verdict of not guilty as to Count II is without merit. As stated, the
appellant was found not guilty of the charge of murder in aid of racketeering, but was
found guilty of the charge of conspiracy to commit a murder in aid of racketeering. The
statute provides that when someone has received pecuniary value from an enterprise
engaged in racketeering activity and, in consideration of that value, murders any
individual in violation of the laws of any state or the United States “or attempts or
conspires so to do, shall be punished . . . . “ 18 U.S.C. § 1959(a).

       The jury could have found that appellant attempted to murder Marlene Holt or
conspired with others to murder Marlene Holt and be guilty of violation of the statute
even though Holt may not have been murdered. It is not necessary for the government
to prove that the conspirators actually succeeded in accomplishing their unlawful plan.
Manual of Model Jury Instructions for the District Courts of the Eighth Circuit,
Instruction No. 5.06E(1996). U.S. v. Nicoll, 664 F.2d 1308, 1315 (5th Cir.) cert. den.,
457 U.S. 1118, 102 S.Ct. 2929, 73 L.Ed.2d 1330 (1982).

                                           -9-
       The Court finds, therefore, that the verdicts are not inconsistent. On the basis
of the evidence, the jury could have found that no murder was committed and acquitted
appellant on Count II while, at the same time, finding him guilty of the conspiracy count
to conspire to murder in Count I and these findings would not be inconsistent.

        Even if the jury findings were inconsistent, appellant is not entitled to reversal
of the judgment on the Count on which he was convicted, if there is sufficient evidence
to support a finding of guilt, O’Dell v. Armontrout, 878 F.2d 1076, 1080 (8th Cir.
1989), Aggers v. U.S., 366 F.2d 744, 746, 747 (8th Cir. 1966), U.S. v. West, 549 F.2d
545, 553 (8th Cir. 1977), Batsell v. U.S., 403 F.2d 395, 400 (8th Cir. 1968), cert. den.,
89 S.Ct. 865 (1969). In Aggers, defendants Aggers and Coates were jointly tried on
three counts. Count I and II charged the defendants with illegal sales of heroin on
different dates. Count III charged defendants with conspiracy to receive, conceal, buy
and sell heroin, knowing the same to have been illegally imported. Aggers was found
guilty on all three counts. Coates was found not guilty on Count I and guilty on Count
III and there was a mistrial as to Count II. Thus, in Aggers, defendant Coates was
found guilty of the conspiracy count and not guilty of the substantive count. The same
result was reached by the jury here as appellant was convicted on the conspiracy count,
and not on the substantive count.

       The converse result was reached in West. There, the defendant was convicted
on substantive counts and acquitted on the conspiracy count. In both Aggers and West,
the Court determined that even if the verdicts were inconsistent, the defendants were
not entitled to reversal on the Count on which each was convicted. The same reasoning
is applicable here.

      We affirm the judgment of the district court.

                                          - 10 -
A true copy:

               Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

                                    - 11 -