149 Mich. App. 452 (1986)
386 N.W.2d 213
PEOPLE
v.
ZYSK
Docket No. 84219.
Michigan Court of Appeals.
Decided February 19, 1986.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Graham K. Crabtree, Assistant Prosecuting Attorney, for the people.
*455 John D. Lazar, for defendant on appeal.
Before: CYNAR, P.J., and WAHLS and GRIBBS, JJ.
PER CURIAM.
Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and the unlawful possession of a concealed weapon, MCL 750.227; MSA 28.424. He was sentenced to prison terms of from 8 to 20 years and 1 to 5 years to be served concurrently. Defendant appeals as of right.
The victim was the defendant's ex-girlfriend, 18-year-old Debra Maes. She testified that on the night of June 12, 1983, she was residing in the home of her friend, Jerry Wardlaw. She was asleep in her bedroom when at approximately 3 a.m. she was awakened by the defendant. She agreed to talk with defendant and accompanied him outside where they talked for some time. After they returned to the house, defendant became angry and began threatening Maes with a knife.
At knifepoint and upon defendant's command, she drove defendant to a gas station, then to a nearby park. After parking the car, they walked to an isolated area and defendant ordered her to lie down on a gravel path. Defendant then repeatedly inserted his knife handle into her vagina then forced her to submit to vaginal and anal intercourse. After Maes was permitted to leave the park, she drove to a nearby restaurant where her boyfriend was working. The police were notified and arrived shortly thereafter.
Maes accompanied the officer to the park where she spotted defendant walking along the road. The officer questioned defendant and confiscated his hunting knife, after which defendant was taken to the police station in another squad car. After Maes *456 pointed out the location of the rape, the officer took her to Oakwood General Hospital.
At trial, a nurse testified that she had assumed the care and processing of Maes in the emergency room. The nurse described Maes as very anxious and afraid, crying intermittently, and suffering from severe abdominal muscle tremors. When asked whether Maes was "making up" the rape, the nurse replied that Debbie "was telling the truth" and that she "believed what she [Maes] was telling me".
Defendant argues that it was error for the trial court to permit the witness to state her opinion regarding the complainant's credibility. We note, however, that defendant failed to object to the testimony at trial and our review is limited to whether defendant was subject to manifest injustice. People v Owens, 108 Mich App 600; 310 NW2d 819 (1981), lv den 412 Mich 866 (1981). We concluded that, had there been an objection, a cautionary instruction could have cured any prejudice which may have resulted from the witness's testimony, People v Byrd, 133 Mich App 767; 350 NW2d 802 (1984). No manifest injustice was present in this case.
Defendant next argues that the trial court erred in admitting into evidence the nurse's account of a statement complainant made during her hospital examination. The trial court permitted the statement on the dual bases that it was an excited utterance, MRE 803(2), and that it had been made for purposes of medical treatment or diagnosis, MRE 803(4). The chief question raised by defendant is whether or not the statement, if characterized as an excited utterance, was made before there was time to contrive or misrepresent. People v Gee, 406 Mich 279, 282; 278 NW2d 304 (1979); *457 People v Kreiner, 415 Mich 372; 329 NW2d 716 (1982), reh den 417 Mich 1104 (1983).
While the actual lapse of time between the event and the statement is a significant factor, its significance depends largely on the character of the event. People v Petrella, 124 Mich App 745; 336 NW2d 761 (1983), lv granted on other grounds 419 Mich 922 (1984). When determining the "time for contrivance" requirement, this Court should examine the actual time period that elapsed in conjunction with the victim's emotional state during the time period. People v Carson, 87 Mich App 163; 274 NW2d 3 (1978). Here, the prosecutor presented evidence that Maes remained in a highly excited state during the entire three-hour period before the statement was made. The officers who responded to the report described complainant as very upset. The examining nurse testified that Maes was shaking and crying and experiencing severe abdominal contractions. In addition, the brutal nature of the attack and the accompanying threats support the trial court's determination that complainant remained in an excited state when the statement was made.
Defendant also argues that the medical treatment or diagnosis exception was inapplicable because the statement was not "reasonably pertinent" to either diagnosis or treatment. Recently, in People v Wilkins, 134 Mich App 39, 44; 349 NW2d 815 (1984), lv den 422 Mich 862 (1985), a panel of this Court applied the following two-part test to determine the applicability of the medical treatment exception to the statement made by the young victim of a sexual assault:
"First, the declarant's motive must be consistent with the purpose of the rule; and second, it must be reasonable for the physician to rely on the information in diagnosis and treatment."
*458 We believe that this test was met in the instant case. First, nothing in the record indicates that Maes's statement was made for any purpose other than treatment. Second, the witness testified that getting the victim's account is very important in the treatment of a rape victim. If any error occurred, it was in admitting that part of the statement which identified defendant as the attacker. However, since defendant's identification was not at issue, no prejudice to defendant resulted from the admission. We therefore hold that the statement was properly admitted under either exception.
Defendant also claims as error the allowance of remarks made by the prosecutor during closing argument. He argues that it was improper and prejudicial for the prosecutor to argue to the jury that defendant's presence during the trial gave him an opportunity to fabricate his testimony, we reject defendant's argument on the basis of the Supreme Court's decision in People v Buckey, 424 Mich 1; 378 NW2d 432 (1985), in which the Court held this to be a proper comment on credibility. We also reject defendant's claim regarding the prosecutor's comments as to the testimony of the nurse. Defendant failed to object to the prosecutor's remarks and we find no manifest injustice. People v Duncan, 402 Mich 1; 260 NW2d 58 (1977); People v Johnson, 141 Mich App 622; 368 NW2d 736 (1985).
Defendant next argues that the trial court improperly limited his testimony and his cross-examination of the complainant. At trial, defendant admitted that he had had intercourse with Maes but asserted that it was consensual. In support of his defense, defendant sought to introduce evidence of his past sexual relationship with complainant. A separate record was made in which *459 Maes admitted to previous oral sex and bondage episodes. The trial court ruled that defense counsel could question Maes about previous anal and vaginal sex episodes but refused to admit evidence of the other sexual episodes on the grounds that it was not relevant. Defendant's testimony was likewise circumscribed. Defendant argues that the court's refusal to admit the evidence was error.
The rape-shield statute, MCL 750.520j; MSA 28.788(10), represents a legislative determination that in most instances evidence of a complainant's past sexual conduct is irrelevant and highly prejudicial. People v Arenda, 416 Mich 1; 330 NW2d 814 (1982). Subsection (a) of the statute limits the introduction of evidence of past sexual conduct between the victim and the actor to instances in which the trial court determines that the evidence is material to a fact at issue in the case. The determination of admissibility is within the sound discretion of the trial court. People v Hackett, 421 Mich 338; 365 NW2d 120 (1984). When making its determination, the court should always favor exclusion as long as exclusion does not abridge the defendant's right to confrontation. Hackett, supra, p 349.
Defendant's argument is premised on the assumption that the excluded evidence was probative of his claim that complainant consented to have sexual relations with him on the night in question. However, the prior sexual episodes which defendant sought to have admitted were distinct and unrelated to the brutal acts involved in the charged offense. In People v Williams, 416 Mich 25, 38; 330 NW2d 823 (1982), the Supreme Court rejected a similar claim on the basis that excluded evidence of prior sexual acts between the victim and a solitary defendant had "little or no logical relevance" to the issue of consent when the *460 charged offense involved a "group sexual encounter". Defendant has provided no basis to warrant a different conclusion in the instant case. The excluded evidence of unrelated sexual acts had no relevance to the issue of consent and was highly prejudicial. Moreover, the court admitted evidence of previous sexual conduct which involved the same acts as occurred during the rape. Since there was no other basis to justify the admission, we hold that the trial court did not abuse its discretion in limiting the evidence of prior sexual conduct between the parties.
Defendant raises two additional claims, neither of which is supported by the record. Defendant argues that the court erred in failing to instruct the jury on the hunting knife exemption to the carrying concealed weapons statute. CJI 11:1:12; MCL 750.227; MSA 28.424. However, in order for the instruction to be given, the defendant must offer some evidence that the knife was being used for hunting purposes. People v Wright, 97 Mich App 411; 296 NW2d 46 (1980). A review of the record reveals that defendant failed to meet this burden. Since the evidence did not support the application of the hunting knife exemption, the court did not err in refusing to give the instruction. People v Parker, 133 Mich App 358; 349 NW2d 514 (1984), MCL 768.29; MSA 28.1052.
Defendant also alleges that the prosecutor improperly introduced and commented on prejudicial evidence regarding a prosecution witness's religious affiliation. We note, however, that defense counsel failed to object to any of the questions or to the prosecutor's comments during closing argument. Failure to object at trial precludes appellate review in the absence of manifest injustice. People v Jancar, 140 Mich App 222; 363 NW2d 455 (1985); People v Duncan, supra. Here the record indicates *461 that the evidence was admitted for proper purposes and there is no indication that the witness's religious affiliation was used to bolster his credibility or damage the defendant's. We find no manifest injustice.
Defendant's final claim involves the court's refusal to instruct the jury that, since certain res gestae witnesses were not produced, their testimony could be presumed to be unfavorable to the prosecution's case. CJI 5:2:14. The trial court refused to issue the instruction on the grounds that neither witness could be properly classified as a res gestae witness. We do not believe the trial court's determination was clearly erroneous. People v Carr, 141 Mich App 442; 367 NW2d 407 (1985).
A res gestae witness is one who was an eyewitness to some event in the continuum of the criminal transaction and whose testimony can aid in developing the full disclosure of the facts surrounding the commission of the charged offense. Carr, supra, p 449. The witnesses at issue herein were Jerry Wardlaw, the owner of the house, and Kenneth Coyle, complainant's boyfriend at the time of the rape. According to complainant's testimony, Wardlaw spoke with defendant briefly on the night the rape occurred and, at one point in the conversation, defendant showed Wardlaw the hunting knife. Coyle, on the other hand, was the first person to see complainant after the rape and the person who notified the police.
While the witnesses might have shed some light on the events surrounding the rape, their connection was peripheral. The crime was complete well before Coyle's involvement and had not even begun when Wardlaw was present on the scene. Neither was present during the actual offense and neither could have provided any significant insight *462 into the assault. Accordingly, we do not believe that the court clearly erred in refusing to classify either witness as res gestae.
Furthermore, even if the court's determination was erroneous, we are not persuaded that it would require reversal. Defendant did not deny being at complainant's home, carrying the knife, or having intercourse with complainant. Since neither of the witnesses saw the actual assault, it is difficult to imagine what these witnesses could have added to the defendant's theory of defense. Moreover, both attorneys argued in closing argument that the missing witnesses' testimony could be presumed unfavorable to the prosecution. In light of the theory of defense and the witnesses' tenuous connection to the events, any error committed by the trial court was harmless. People v Doyan, 116 Mich App 356; 323 NW2d 397 (1982); People v Kincaid, 136 Mich App 209; 356 NW2d 4 (1984), lv den 422 Mich 903 (1985).
Affirmed.


     Case: 14-50692      Document: 00512947324         Page: 1    Date Filed: 02/24/2015

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

                                                                              FILED
                                    No. 14-50692                       February 24, 2015
                                 Conference Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PEDRO MARTINEZ,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:13-CR-233-2

Before DAVIS, ELROD, and COSTA, Circuit Judges.
PER CURIAM: *
       The attorney appointed to represent Pedro Martinez has moved for leave
to withdraw and has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Martinez has not filed a response. We have reviewed counsel’s brief and the
relevant portions of the record reflected therein. We concur with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-50692      Document: 00512947324   Page: 2   Date Filed: 02/24/2015

                                 No. 14-50692

Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is
excused from further responsibilities herein, and the APPEAL IS DISMISSED.
See 5TH CIR. R. 42.2.

                                       2


(2008)
Michael MCENTEE, et al
v.
STATE FARM FIRE AND CASUALTY COMPANY.
Civil Action No. 07-4802.
United States District Court, E.D. Louisiana.
February 8, 2008.

ORDER AND REASONS
CARL J. BARBIER, District Judge.
Before the Court is Defendant State Farm Fire and Casualty Insurance Company's ("State Farm") Motion to Dismiss (Rec.Doc.17) all personal injury and mental anguish claims of Plaintiff Vickie Mcentee. This motion, which is opposed, was set for hearing on February 6, 2008 on the briefs. Upon review of the record, the memoranda of counsel, and the applicable law, this Court now finds, for the reasons set forth below, that State Farm's motion should denied.

Background Facts
This action arises out of damages allegedly sustained by Plaintiffs due to Hurricane Katrina. Plaintiff Michael Mcentee timely filed suit against State Farm on August 28, 2007, alleging claims for breach of contract and "mental anguish and/or inconvenience." On December 13, 2007, Mr. Mcentee amended his original Complaint to include his wife, Vickie Mcentee, as Plaintiff. State Farm now moves to dismiss Mrs. Mcentee's claims for personal injury/mental anguish as prescribed.

The Parties' Arguments
State Farm argues that Mrs. Mcentee has failed to state a claim upon which relief can be granted because her claims neither relate back to Mr. Mcentee's original Complaint nor have they been timely filed. As a result, according to State Farm, they have prescribed. State Farm contends that Rule 15(c) of the Federal Rules of Civil Procedure was not "intended for a party to add or change party plaintiffs," citing Newell v. Harrison in support. 779 F.Supp. 388, 391-92 (E.D.La.1991).
Alternatively, State Farm argues that the factors that are to be used by the Court to determine whether a plaintiff can be properly added as a party in an amended complaint are not satisfied in this case. These factors include:
(1) the amended claim arises out of the same conduct, transaction, or occurrence as the original;
(2) the defendant knew or should have known of the existence and involvement of the new plaintiff;
(3) the new and old plaintiffs are sufficiently related so that the added party is not wholly new;
(4) the defendant will not be prejudiced in preparing and conducting his defense. Musgrove v. Glenwood Regional Med. Center, 855 So.2d 984, 987 (La.App. 2d Cir.2003). State Farm argues that neither factor (2) nor factor (4) is satisfied in this case.
According to State Farm, factor (2), knowledge of the "existence and involvement of the new plaintiff," is not satisfied because State Farm was unaware of any personal injury or mental anguish claims by Mrs. Mcentee. The original Complaint did not provide notice of her claims against State Farm, and despite having knowledge of the existence of Mrs. Mcentee, her involvement and potential claims were unknown to State Farm. In support, State Farm cites Musgrove, in which a newly added plaintiffs claims for injuries suffered were disallowed because the claims were not asserted in her husband's original Complaint. 855 So.2d 984.
State Farm also contends that its case will be prejudiced if Mrs. Mcentee's claims are not dismissed. According to State Farm, since special prescriptive exceptions were statutorily provided for claims relating to Hurricane Katrina,[1] permitting a plaintiff to circumvent the extended prescriptive deadline and file later  as Mrs. Mcentee did  would prejudice State Farm's case.
In opposition, Plaintiffs argue that all four factors are met and the amendment does relate back to Mr. Mcentee's original Complaint. Plaintiffs state that State Farm had knowledge of the existence and involvement of Mrs. Mcentee, as evidenced by a letter addressed to both Plaintiffs denying their policy claim. Furthermore, as to any prejudice sustained by State Farm, the amended Complaint was filed three weeks before the deadline to file amended pleadings and the work needed to defend against Mr. Mcentee's claims is the same as that for the Mrs. Mcentee.

Discussion
Federal Rules of Civil Procedure 15(c) sets forth the requirements for an amendment to a pleading to sufficiently relate back to the original pleading. Section (c)(1) provides that "an amendment to a pleading relates back to the date of the original pleading when the law that provides the applicable statute of limitations allows relation back." Therefore, whether Louisiana law allows relation back, and under what circumstances, is determinative.
The Louisiana Supreme Court has delineated a four-factor test when considering whether an amendment relates back to the original pleading:
(1) the amended claim arises out of the same conduct, transaction, or occurrence set forth in the original pleading;
(2) the defendant either knew or should have known of the existence and involvement of the new plaintiff;
(3) the new and the old plaintiffs are sufficiently related so that the added or substituted party is not wholly new or unrelated;
(4) the defendant will not be prejudiced in preparing and conducting his defense.
Giroir v. South La. Med. Center, Div. of Hospitals, 475 So.2d 1040 (La.1985). An analysis of each factor is discussed individually.

A. Arises out of Same Conduct
The conduct or occurrence out of which the original Complaint arose is the alleged mishandling of the Mcentees' policy claim by State Farm. As a result of this mishandling, Mr. Mcentee also claims to have suffered personal injuries in the form of "mental anguish." Mrs. Mcentee makes no claim that is unrelated to the conduct of State Farm described in the original Complaint, and her alleged personal injuries are the same in nature as her husband's.

B. Defendant Knew of the Existence and Involvement of the New Plaintiff
Knowledge of the existence of Mrs. Mcentee is not contested by State Farm, but her involvement, particularly her personal injuries suffered, is. Whether a personal injury claim by a new plaintiff can relate back to the original complaint is central here, since the only aspect of Mrs. Mcentee's involvement that is challenged is her personal injuries.
In Giroir, the recorded visitations of children with the decedent in the case was sufficient notice to the defendants that the children could become party to a survivor or wrongful death action based upon the decedent's death. Giroir, 475 So.2d at 1045. Musgrove, a case in which the claims of a new plaintiff for loss of consortium were dismissed, is easily distinguished. 855 So.2d 984. Most significantly, claims that flow directly from the conduct or occurrence have been found to relate back over claims that are indirect, such as loss of consortium.
In the instant case, Mrs. Mcentee was a named insured on the policy and also received a letter addressed to both her and her husband denying their policy claim. Therefore, State Farm not only knew of Mrs. Mcentee's existence, but was also aware of her involvement, specifically addressing to her a letter of significant importance.
Furthermore, the claims asserted by Mr. Mcentee are the same claims Mrs. Mcentee now asserts as a direct result of State Farm's conduct. It is reasonable to conclude that State Farm should have known that she would suffer injuries similar to her husband. Therefore, this Court determines that Mr. Mcentee's filing of the original Complaint was sufficient notice to State Farm that Mrs. Mcentee was involved in the claims underlying this action.

C. Sufficiently Related
As husband and wife, Mr. and Mrs. Mcentee are sufficiently related. In Giroir, the court found that the children of the plaintiff, the decedent's surviving spouse, were sufficiently related to the husband's (i.e., their father's) claim. Accordingly, this Court determines that a wife is sufficiently related to her husband for purposes of an amended Complaint alleging the same nature of damages as those in the original Complaint.

D. Prejudice
The primary purposes of prescriptive statutes are to provide economic and psychological security and protection from stale claims. Giroir, 475 So.2d at 1045. In this case, since the original Complaint was timely filed, State Farm was alerted to the Plaintiffs intention to seek judicial relief before the prescriptive deadline. Although Mrs. Mcentee was added after the deadline, the claims asserted by Mrs. Mcentee arose out of the same conduct or occurrence as Mr. Mcentee's claims. The work that State Farm would need to perform to defend against Mr. Mcentee's claims is the same preparation that would be required to defend against Mrs. Mcentee's claims. Any investigation or discovery that had been completed by the time the amendment was filed would be relevant and useful in the defense against Mrs. Mcentee.
Although it may be argued that the personal injury and/or mental anguish suffered by Mrs. Mcentee is different than that suffered by Mr. Mcentee, and would therefore require more preparation, the nature of the work is the same and the additional investigation or discovery is not sufficiently prejudicial to State Farm's case. Therefore, this Court determines that all claims asserted by Mrs. Mcentee relate back to the filing of the original Complaint. Accordingly,
IT IS ORDERED that State Farm's Motion to Dismiss (Rec.Doc.17) is hereby DENIED.
NOTES
[1]  The Legislature statutorily extended the deadline to file claims related to Hurricane Katrina until September 1, 2007. See La. Rev.Stat. 22:658.3.


519 N.E.2d 146 (1988)
Michael E. LEE, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).
No. 82S00-8611-CR-985.
Supreme Court of Indiana.
February 18, 1988.
*147 David M. Shaw, Mitchell, Staser & Shaw, Evansville, for appellant.
Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Deputy Atty. Gen., Indianapolis, for appellee.
SHEPARD, Chief Justice.
Appellant Michael E. Lee was tried before a jury and convicted of two counts of forgery, a class C felony, Ind. Code § 35-43-5-2 (Burns 1985 Repl.). The jury also determined that he was an habitual offender, Ind. Code § 35-50-2-8 (Burns 1985 Repl.). The trial judge sentenced Lee to thirty-two years imprisonment.
On direct appeal, Lee raises three issues:
1) Whether the trial court erred in admitting an impermissibly suggestive photographic line-up;
2) Whether the trial court erred in admitting improperly certified habitual offender documents, and
3) Whether the trial court erred in allowing a witness to identify Lee as the person convicted of a prior felony when the identification was assisted by a photograph not in evidence.
The evidence at trial showed that Lee twice attempted to cash stolen and forged checks at two Evansville grocery stores. Clerks from both stores identified Lee from a photographic line-up and later in court as the person who attempted to cash the checks.

I. Photographic Array
Before trial, Lee moved to suppress the witnesses' identification, arguing that it was based on an unduly suggestive array of photographs. The trial court denied the motion. Both witnesses identified Lee in court and testified about their earlier identification of his photograph without objection. When the State offered the array of photographs, Lee objected based on his earlier motion to suppress. The objection was overruled and the photographs were admitted.
The State correctly argues that Lee has waived any error in his identification. Two witnesses identified Lee as the perpetrator without objection. By failing to object to that in-court identification and the testimony about the photographic line-up, Lee afforded the trial judge no opportunity to reconsider his ruling on the motion to suppress. The later admission of the photographic array was merely cumulative.
In any event, an objection would have been unavailing. "A photographic array is impermissibly suggestive when it raises a substantial likelihood of misidentification given the totality of the circumstances." Dumbsky v. State (1987), Ind., 508 N.E.2d 1274, 1277. This line-up consists of photographs of seven black males, all of similar age and general appearance. Lee points to the fact that the subjects of *148 the other photographs are more slightly built than he. Given that Lee stands six feet three inches and weighs 272 pounds, the Evansville Police Department would find it a difficult task to assemble subjects any more similar in appearance than the ones contained in this array. Additionally, the photographs depict only the head and shoulders of the subjects. From this view, the differences in height and weight are not obvious.
Lee also argues that the contrast in tone makes his picture appear darker than the others, rendering the array impermissibly suggestive. Each photograph in the array varies slightly in tone from the others; we cannot say that this variance was conducive to a misidentification.
Finally, Lee contends that his darker complexion draws undue attention to his picture. It is true that some of the photographs depict individuals with lighter complexions. As a practical matter, a photographic array cannot contain photographs of individuals identical in appearance. This line-up contains photographs of individuals meeting the same general description. It is not impermissibly suggestive and conducive to a mistaken identification.
For the first time, appellant argues in his brief that the trial court improperly admitted the array because the photographs were obviously mug shots and the jury could infer from them his prior criminal history. While this allegation is also waived because Lee did not object at trial on this basis, such an objection would have been unsuccessful. Though the pictures do depict the traditional frontal and profile views common to mug shots, the State sought to minimize this effect. The identification information was covered with tape and the background of the photographs does not indicate that the individuals were incarcerated. See Ashley v. State (1986), Ind., 493 N.E.2d 768. The court properly admitted the photographs.

II. Habitual Offender Documents
To prove that Lee was an habitual offender, the State offered exhibits L-1 and L-2, court records showing that Lee pled guilty to forgery and was sentenced on that conviction in 1977, and exhibits F-1 and F-2, court records which showed that Lee again pled guilty to forgery and was sentenced in 1980. Appellant objected to the admission of the documents on the basis that the certification was improper.
The certification on both documents reads:
I, Helen L. Kuebler, Clerk of the Vanderburgh Superior Court, do hereby certify that the above is page 1 of a 2 page official document designated as a minute, and is a full, complete and accurate copy of said minute, pertaining to Michael E. Lee, which is on file with and in the custody of my office in Order Book 14 on page 411.
Lee challenges this certification, arguing that the documents are order book entries, not minutes. This misidentification, he says, is fatal to the certification.
County Clerk Helen Kuebler testified that order book entries are taken from the minutes. She explained, "[W]e copy from the minutes taken in the courtroom onto an order book and that is a certified copy of that order book entry which was taken from the minutes of the court." This sufficiently identified the documents as copies of official records in the custody of the clerk. The trial court properly admitted the exhibits.

III. Habitual Offender Identification
To prove Lee's identity as the individual convicted of forgery in 1977 and 1980, the State presented the testimony of Evansville Police Officer Kenneth Macken. Macken was the charging officer in both of these prior convictions. He identified Lee in court as the person charged with both crimes.
Macken indicated that his identification was based, at least in part, on a 1977 photograph of Lee which he had seen prior to his testimony. This photograph was not produced or offered. Lee moved to strike Macken's identification testimony because it was opinion evidence and because it was hearsay.
*149 On appeal, Lee argues that the best source of identification evidence was the photograph seen by Macken and not Macken's opinion that the individual pictured in the photograph was Lee. He asserts that the photograph should have been produced and offered into evidence.
This argument assumes that Macken's identification was based solely on the earlier photograph. Viewed most favorably to the judgment, however, the record reveals that Macken was the investigating officer in 1977, personally saw Lee then, remembered him from that time, and identified him in court as the person charged with forgery. Macken had an independent basis for the identification. Any discrepancy in this identification goes to its weight, not its admissibility. The credibility of Macken's identification was for the jury to determine. Barger v. State (1984), Ind., 466 N.E.2d 725.
Moreover, while either a photograph of the person convicted of an underlying offense, Bray v. State (1982), Ind., 443 N.E.2d 310, or identification by someone with personal knowledge, Craig v. State (1985), Ind., 484 N.E.2d 566, may be sufficient to identify appellant, neither method of proof is preferred to the exclusion of the other. Identification based on a witness' personal knowledge cannot be excluded on an objection that a photograph is the best evidence.
The judgment of the trial court is affirmed.
DeBRULER, GIVAN, PIVARNIK and DICKSON, JJ., concur.


to

FILED

UNITED STATES DISTRICT COURT

FoR THE DISTRICT oF CoLUMBIA APR 2 5 2073
Clerk y .
Caurr§ fo*r t.hD/st'rict& gankr

) e D/strlct ar Co,gglil;";
DAVID EARL WATTLETON, )
)
Petitioner, )
)

v § civil A¢ti@n N@. 13 t,l587
CHARLES E. SAMUELS, et cll., )
)
Respondents. )
)
MEMORANDUM OPINION

This matter is before the Court on the petitioner’s application to proceed in forma
pauperis and his pro se petition for a writ of mandamus. The Court will grant the application
and dismiss the petition.

Petitioner asserts an entitlement to "needed medical treatment for a mental disorder
which has been diagnosed by health care providers," and he alleges "that a combination of
inappropriate hospital culture [at the Federal Medical Center in Rochester, Minnesota], the denial
of access to the courts, and hostile hospital conditions prevents him from obtaining appropriate
psychological/psychiatric care and treatment consistent with statutory and constitutional
standards." Pet. at l-2 (page numbers designated by the Court). He demands "a transfer to
another institution that is not affiliated with or controlled by" the Federal Bureau of Prisons. Id.

at3.

Mandamus relief is proper only if "(l) the plaintiff has a clear right to relief; (2) the
defendant has a clear duty to act; and (3) there is no other adequate remedy available to
plaintiff." Council of and for the Blz`nd of Delaware Counly Valley v. Regan, 709 F.2d 1521,
1533 (D.C. Cir. 1983) (en banc). The party seeking mandamus has the "burden of showing that
[his] right to issuance of the writ is ‘clear and indisputable."’ Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Bankers Lzfe & Cas. Co. v. Holland, 346
U.S. 379, 384 (1953)). This petitioner fails to meet his burden, particularly because he fails to
demonstrate the absence of any other available remedy. Petitioner has been found not guilty of
federal crimes by reason of insanity, see Um`ted States v. Wattleton, 296 F.3d 1184, 1187 (1 lth
Cir. 2002) ("The defendant David Earl Wattleton was indicted for making bomb threats, in
violation of 18 U.S.C. § 844(e), and the jury rendered an insanity verdict. At a post-verdict
hearing pursuant to 18 U.S.C. § 4243(d), the district court determined that Wattleton was not
eligible for release."), and the court which ordered his commitment "at any time may . . . modify
or eliminate the regimen of medical, psychiatric, or psychological care or treatment." 18 U.S.C.
§ 4243(f).

The petition for a writ of mandamus will be denied. An Order accompanies this

Memorandum Opinion.

DATE: /

M(. l/), V?l} Un 1Zr;;;i:1jg@


39 F.3d 1186
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.The BLACKFEET TRIBE OF the BLACKFEET INDIAN RESERVATION,Plaintiff-Appellant,v.Janet JESSUP, Administrator of the Gaming Control Division;Marc Racicot, Governor of the State of Montana;  Andy Poole,Deputy Director of the Department of Commerce;  JudyBrowning, Chief of Staff for Policy and Legal Affairs;  andthe State of Montana, Defendants-Appellees.
No. 94-35079.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 3, 1994.*Decided Nov. 8, 1994.

1
Before:  BEEZER and FERNANDEZ, Circuit Judges, and ORRICK,** Senior District Judge.

ORDER

2
The matter is REVERSED and REMANDED for further proceedings in the district court in accordance with this court's decision in  Spokane Tribe of Indians v. Washington State, 28 F.3d 991 (9th Cir.1994).

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

**
 The Honorable William H. Orrick, Senior United States District Judge for the Northern District of California, sitting by designation


126 Ariz. 184 (1980)
613 P.2d 848
The STATE of Arizona, Appellee,
v.
John Lee SPRATT, Appellant.
No. 2 CA-CR 1937.
Court of Appeals of Arizona, Division 2.
May 21, 1980.
Rehearing Denied June 25, 1980.
Review Denied July 15, 1980.
*185 Robert K. Corbin, Atty. Gen., by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee.
Anthony J. Abruzzo, Tucson, for appellant.
OPINION
HOWARD, Judge.
Appellant, convicted by a jury of two counts of armed robbery and two counts of aggravated robbery, was given concurrent prison sentences.[1]
Briefly, the robberies occurred at two convenience markets in Tucson. Walter Vann, a quadriplegic, started the investigation which led to the arrest of appellant when he telephoned the police and informed them of a conversation he overheard which indicated appellant and two juveniles had committed the robberies. Subsequently, police officers confiscated items used in the robberies from appellant's sister who had removed them from appellant's truck.
Appellant has presented 10 questions for review, none of which merits reversal.
Pursuant to A.R.S Sec. 13-4102, the state took the deposition of Vann, who was then living in Winslow, Aizona, on the ground that it believed he was so sick or infirm as to be unable to attend the trial. When his deposition was taken, he was cross-examined by the appellant's attorney. At the trial, an investigator for the county attorney's office laid the foundation for admission of the deposition. An attempt had been made to videotape the deposition but because of poor lighting, it was largely unsuccessful although the court was able to observe that Mr. Vann was quadriplegic.
The investigator described Mr. Vann's physical appearance and based upon his observations was of the opinion that Mr. Vann could not take care of himself. Over a hearsay objection, the investigator was permitted to testify that Mr. Vann told him that he could not come to Tucson because *186 he required 24 hours a day nursing care, that his mother was attending him at the time and she could not leave her job and come with him to Tucson. He stated that he wore a diaper-like device, could not control his bowel movements and required people to change him. He stated that he spent most of his time in a wheelchair and could not withstand prolonged riding in a vehicle or airplane in a sitting position. When the investigator asked him whether he would be able to travel if the state were to transport him by a vehicle with somebody in attendance, Mr. Vann replied that since the travel time to Tucson would be between six and seven hours, the discomfort would be too much for him. The investigator also stated that he inquired of public safety facilities as to transporting by airplane and no airplanes were available.
After hearing the foundation laid by the state and the objections of appellant, the trial court allowed portions of Mr. Vann's deposition into evidence. See Rule 19.3(c), Arizona Rules of Criminal Procedure.
Appellant first contends that the trial court violated his right to confrontation as provided in the Sixth Amendment to the United States Constitution by allowing a deposition into evidence. This contention is clearly without merit. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
His second argument is that the trial court erred in allowing hearsay evidence as to the unavailability of the witness. This is not correct. Rule 104(a) of the Rules of Evidence, states:
"Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence, shall be determined by the court ... In making a determination, it is not bound by the rules of evidence except those with respect to privileges."
See also, Howard v. Sigler, 454 F.2d 115 (8th Cir.1972) and State v. Williams, 554 S.W.2d 524 (Mo. App. 1977).
Since the admissibility of the deposition was a preliminary question involving the admissibility of evidence, the rules concerning hearsay did not apply.
Appellant contends he was twice placed in jeopardy because the trial court declared a mistrial and ordered him to be tried a second time. The mistrial occurred when defense counsel, while cross-examining a state's witness, revealed that one of the juveniles involved in the robbery had been found not guilty by the juvenile court. He contends that if error was committed, it was not of such a great magnitude as to have caused the court to grant a mistrial. We do not agree. Defense counsel's question was improper and the trial judge exercised sound discretion in granting the mistrial. See Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
Appellant's next argument concerns the sufficiency of the evidence. Pursuant to A.R.S. Sec. 13-604(K), there was an allegation of dangerousness in the use of deadly weapons, a gun in one instance and a knife in another. A firearm is a deadly weapon unless it is permanently inoperable. See A.R.S. Sec. 13-105(9) and (12). The evidence showed that the revolver used in one of the robberies was missing a pin which held the barrel in line with the revolver's cylinder. Although the weapon could be fired, it would probably blow up in the process. Appellant contends that this evidence shows that the weapon was not deadly. We do not agree. At the most, it shows that it was temporarily inoperable, but not permanently so. State v. Fisher, 126 Ariz. 50, 612 P.2d 506 (1980).
He next contends that there was no evidence that at one of the robberies he exhibited a knife. This contention is without merit since A.R.S. Sec. 13-604(G) and (K) do not require, for the purpose of enhancement, that one personally be in possession of the deadly weapon. The only requirement is that the felony involved the use or exhibition of a deadly weapon. Since appellant was an accomplice he is criminally accountable for the conduct of the others involved. See A.R.S. Secs. 13-301 and 303.
*187 Appellant also argues that the verdict was not justified by the evidence because the jury disregarded the testimony of his witnesses and believed the testimony of the state's witnesses, some of whom were persons with prior felony convictions. This argument is without merit.
Michael Bacon, a juvenile who was one of the participants in the robberies and who testified against appellant, testified that he had an athletic scholarship to attend Northern Arizona University. On cross-examination, he was asked how he was getting back to Flagstaff after the trial. He stated that he was going to fly back. He was then asked if he was entitled to the payment of transportation as part of his athletic scholarship. The state objected to the question as being irrelevant and the court sustained the objection stating: "I don't think that shows that he is biased or anything else." Appellant contends that the court, by sustaining the objection, unlawfully limited his right to cross-examine the witness and deprived him of an impartial trial. He also claims that the court's statement in ruling on the objection constituted a comment on the evidence. We do not agree. The right to cross-examine does not mean the right to ask irrelevant questions. The trial court did not state that Michael Bacon was an unbiased witness. It merely stated that the question was irrelevant. This did not constitute a comment on the evidence.
After one of the victims, Patricia Brent, had testified, she was excused and a recess was taken. Approximately 10 minutes later, the state moved to reopen its direct examination of Patricia Brent which the court granted. Appellant contends this is error. We do not agree. The order of conduct of the trial is up to the sound discretion of the trial court. We do not perceive that it abused its discretion.
Appellant asserts the trial court departed from its role of neutrality during the further examination of Patricia Brent. The prosecutor had told the trial court that he wished to ask the victim about two items. He asked her about one item and did not ask her about the other. The trial court stated, "I thought there were two items?" The prosecutor then went on to ask about the other item. The trial court did not depart from its proper role by asking the question.
Appellant contends that the trial court erred in allowing hearsay evidence to impeach the testimony of Walter Vann in his deposition. We do not agree, since the testimony was offered for impeachment purposes and not to prove the truth of the words spoken.
The trial court refused, on surrebuttal, to allow a witness to testify that at a prior time appellant had told her he was innocent. Appellant contends that the statement was admissible since it was not hearsay by virtue of Rule 801(d), Arizona Rules of Evidence. This rule states:
"A statement is not hearsay if
(1) Prior statements by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ..."
Since there was no express or implied charge against appellant of recent fabrication or improper influence or motive, the cited rule is inapplicable. Nor was the testimony admissible under Rule 803(24), as an exception to the hearsay rule. This rule allows the court to admit evidence which, inter alia, although hearsay has equivalent circumstantial guarantees of trustworthiness as the other exception set forth in Rule 803. Appellant's statements of innocence do not rise to such a level.
One of the jurors was observed by the court and appellant's counsel to be sleeping or nodding during the trial. Although there was an extra juror, appellant refused to enter into any stipulation concerning the sleeping juror and made no motion whatsoever concerning her. Subsequently, *188 one of the members of the jury was drawn as the alternate juror. Both the sleeping juror and another juror whom appellant claimed had been laughing during the trial were allowed to participate. Appellant now claims that he did not receive a fair and impartial trial. We do not agree. Any error was waived by defense counsel refusing to take curative action while he still had an opportunity to do so. He was aware of the matter before submission but refused to stipulate to exclude the sleeping juror by naming her as an alternate. Appellant did nothing to either juror and cannot now claim error.
The allegation of the dangerous nature of the offense which was set forth in the indictment stated that Counts III and IV of the indictment involved the use of a gun. The evidence at trial showed that a knife and a gun were both used in the offenses set forth in Counts III and IV. The state moved to amend the indictment to allege that a knife and gun were used in the commission of each count stated in Counts III and IV and the motion was granted. Appellant contends that this was error. We do not agree. The charging part of the indictment stated:
"On or about the 21st day of December, 1978, JOHN LEE SPRATT robbed PATRICIA J. BRENT while armed with a deadly weapon to wit: a gun and a knife ..."
The robbery set forth in Count IV is clearly the same one set forth in Count III. The allegation of dangerousness attached to the indictment put appellant on notice that the state considered Counts III and IV to be of a dangerous nature, but the knife was apparently inadvertently omitted from the allegation. Appellant contends that he did not have adequate notice that the state was contending that a knife was also used in the commission of the robbery set forth in Counts III and IV in relation to the allegation of the dangerous nature of the offense. We do not agree. The indictment returned by the grand jury put appellant on notice that the state was contending that a gun and knife were both used. Furthermore, appellant has not pointed to any prejudice resulting from the amendment.
The court received a message from the foreman of the jury requesting a copy of the transcript of the trial and depositions. Although defense counsel was willing to provide the jurors with a copy of the depositions that were admitted into evidence, the court refused to do so telling the jurors that they would have to rely on their memory of the testimony. Appellant contends the trial court erred in not providing the jury with the depositions which had been admitted into evidence. When the trial court told him that it proposed to send a note telling the jurors to rely on their memory, defense counsel made no objection. Assuming arguendo, that the trial court should have provided the jurors with the requested depositions, any error was waived by defense counsel's failure to object.
Affirmed.
HATHAWAY, C.J., and RICHMOND, J., concur.
NOTES
[1]  In Counts I and II, armed robbery and aggravated robbery, the victim was Patty Paden. In Counts III and IV, the victim was Patricia Brent.


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                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 01-4839
MICHAEL A. CLARK,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
         for the Eastern District of Virginia, at Richmond.
                  Robert E. Payne, District Judge.
                           (CR-00-244)

                      Submitted: July 31, 2002

                      Decided: October 9, 2002

    Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

                            COUNSEL

Charles Arthur Gavin, BLACKBURN, CONTE, SCHILLING &
CLICK, P.C., Richmond, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. CLARK
                             OPINION

PER CURIAM:

   Michael Clark was convicted by a jury of possession with intent to
distribute crack cocaine, see 21 U.S.C. § 841; possession of crack
cocaine and powder cocaine, see 21 U.S.C. § 844; possession of an
unregistered sawed-off shotgun, see 26 U.S.C. § 5861(d); and posses-
sion of a firearm despite a previous felony conviction, see 18 U.S.C.
§ 922(g)(1). The district court sentenced Clark to a total term of 262
months imprisonment. Clark appeals, claiming that the district court
erred in denying two motions to suppress evidence and that, in any
event, the evidence was insufficient to support his conviction on the
firearms counts. We affirm.

   In May 2000, Richmond police officer Jason Yarema submitted an
application for a search warrant for Clark’s residence at 2504 Wise
Street. The supporting affidavit stated that a reliable confidential
informant (CI) had provided information that, within the past 72
hours, he had seen an individual known as "Face" (later identified as
Clark) at 907 Mosby Street with a quantity of crack cocaine and mari-
juana. According to the CI, the crack was packaged in small quanti-
ties for street distribution and was for sale. The CI said that "Face"
was supplying crack cocaine to "Pap," who lived at 907 Mosby Street,
and that he had seen "Face" at that address "on a regular basis" with
crack cocaine, marijuana, and firearms. The CI also said that he had
been at "Face’s" residence and had seen "Face" in possession of crack
cocaine packaged for sale, as well as a handgun and a shotgun. The
CI said that "Face" previously owned a green Ford Taurus but now
drove a blue Ford Taurus.

   Based on detailed directions given to them by the CI, Yarema and
another officer began surveillance of Clark’s residence at 2504 Wise
Street. The officers observed a blue Ford Taurus parked in front; they
also observed Clark get in the car and drive to 907 Mosby Street.
Clark stayed in the apartment approximately five minutes and then
drove away.

   Later that day, two other Richmond police officers stopped Clark
for a traffic violation, independently of the ongoing investigation of
                        UNITED STATES v. CLARK                         3
Clark’s suspected drug activities. Clark was arrested for driving with
a suspended license, and a search incident to his arrest revealed a
small quantity of marijuana and $1200 in cash. This information was
later relayed to Yarema and included in the affidavit in support of the
search warrant.

   Officer Yarema obtained search warrants for Clark’s residence and
the blue Ford Taurus he was driving when stopped the day before.
Clark was arrested shortly after leaving his residence; a search inci-
dent to his arrest revealed 5.879 grams of crack cocaine, .647 grams
of powder cocaine, and a total of $1566 in cash. After Clark was
given his Miranda warnings, he told the officers that he had a shotgun
with ammunition in his bedroom, an unloaded pistol on top of his
refrigerator, and a hand grenade in his living room. He also told the
officers that he had been selling cocaine to pay his bills, including his
mortgage. A search of Clark’s residence pursuant to the warrant
revealed the guns and hand grenade in the locations described by
Clark, as well as miscellaneous paraphernalia of drug distribution.

   Clark moved to suppress the evidence taken from his residence on
the grounds that the search warrant was invalid because the informa-
tion provided by the confidential informant was stale and did not
demonstrate a nexus between the residence and the items to be seized.
Clark also claimed that he was coerced into making incriminating
statements by the officers’ threats to call child protective services if
he did not cooperate. Clark filed a second motion to suppress the evi-
dence, arguing that the traffic stop made the day before the search
warrant was issued—and upon which the search warrant was partially
based—was illegal. The district court denied both motions.

   This court reviews the district court’s factual findings on a denial
of a motion to suppress for clear error and its legal conclusions de
novo. See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
We construe the evidence in the light most favorable to the party who
prevailed below. See United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).

   "Great deference is to be given a magistrate’s assessment of the
facts when making a determination of probable cause. Our inquiry is
directed to whether the magistrate had a substantial basis for his con-
4                       UNITED STATES v. CLARK
clusion that probable cause existed." United States v. Williams, 974
F.2d 480, 481 (4th Cir. 1992) (per curiam) (citations omitted). As it
pertains to search warrants, probable cause exists when there is "a fair
probability that contraband or evidence of a crime will be found in a
particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Whether
probable cause exists must be determined by looking to the totality of
the circumstances surrounding the search. See id.; see also United
States v. Clyburn, 24 F.3d 613, 617 (4th Cir. 1994) (explaining that
"a totality-of-the-circumstances analysis . . . considers the informant’s
reliability and the basis of the informant’s knowledge").

   Based on our review of the record, we find that there is substantial
evidence in the record supporting the issuance of the warrant here.
The confidential informant’s information was partially corroborated
by the surveillance of Clark’s residence; further, his information
regarding Clark’s previous ownership of a green Ford Taurus was
verified through DMV records. See United States v. Lalor, 996 F.2d
1578, 1581 (4th Cir. 1993) ("Corroboration of apparently innocent
details of an informant’s report tends to indicate that other aspects of
the report are also correct.").

   Clark argues that the information provided by the informant was
stale in that the affidavit failed to identify any dates when the CI had
been at 2504 Wise Street. See United States v. McCall, 740 F.2d
1331, 1335 (4th Cir. 1984) (explaining that "time is a crucial element
of probable cause"). However, as the district court noted, the CI stated
that he had seen Clark at the Mosby Street residence within the past
72 hours with crack cocaine packaged for distribution. And, on the
day before the issuance of the warrant, the police observed Clark
leave his residence and drive to the Mosby Street address where the
transaction occurred.

   Next, Clark argues that the affidavit failed to provide a nexus
between his residence and the items to be seized. However, the affida-
vit stated that the CI had been inside Clark’s residence and had seen
firearms and crack cocaine packaged for distribution. As the district
court noted, it was reasonable to infer that Clark kept drugs and fire-
arms at his residence given the most recent observations of him with
drugs both on his person after his first arrest and at the Mosby Street
address.
                        UNITED STATES v. CLARK                          5
   Clark also claims that the traffic stop was illegal and any informa-
tion obtained as a result of the stop should have been suppressed. A
traffic stop of a vehicle is permissible if the officer has probable cause
to believe a traffic violation has occurred or a reasonable suspicion of
unlawful conduct. See Whren v. United States, 517 U.S. 806, 809-10
(1996); Rusher, 966 F.2d at 875. Accordingly, when an officer
observes even a minor traffic offense, a stop of the vehicle is permis-
sible. See United States v. Hassan El, 5 F.3d 726, 730 (4th Cir. 1993).
This is so even if the officer suspects the vehicle’s occupants of some
other criminal activity, and the stop remains valid even if the officer
would have ignored the traffic violation but for his other suspicions.
See id. It is undisputed that Clark’s vehicle did not display a valid
City of Richmond decal on the windshield, as required by law. The
district court concluded as a factual matter that the officers verified
that the car was registered in Richmond before they stopped the car,
see J.A. 236-37, and the district court therefore determined that the
stop was valid. Because the district court’s factual findings are not
clearly erroneous, Clark’s challenge to the traffic stop fails.

   Finally, Clark maintains that the district court erred in denying his
motion to suppress incriminating statements he made at the time of
his arrest. Clark alleges that he was coerced into making the state-
ments because the officers threatened to have child protective services
take his children (who were passengers in the vehicle) if he failed to
cooperate. However, the district court, after hearing testimony from
Clark and the officers, specifically discredited Clark’s testimony, and
Clark cannot show that this factual finding was clearly erroneous.

   Clark also avers that the evidence was insufficient to support the
two firearms convictions because, at the time of his arrest, he was not
in actual possession of the weapons. However, neither § 5861(d) nor
§ 922(g)(1) require proof of actual or exclusive possession; construc-
tive or joint possession is sufficient. See United States v. Gallimore,
247 F.3d 134, 136-37 (4th Cir. 2001); United States v. Jackson, 124
F.3d 607, 610 (4th Cir. 1997). The Government may prove construc-
tive possession by presenting evidence that the defendant exercised
dominion and control over the item or had the power to exercise
dominion and control. See Jackson, 124 F.3d at 610. The Govern-
ment’s evidence that Clark knew the location of the weapons prior to
6                     UNITED STATES v. CLARK
the search is sufficient to establish constructive possession of the
weapons.

   Accordingly, we affirm Clark’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

                                                       AFFIRMED


Opinion filed September 25, 2008

Opinion filed September
25, 2008

                                                                        In The

    Eleventh
Court of Appeals
                                                                   __________

                                                             No.
11-08-00065-CV
                                                                    __________

                                   IN THE INTEREST OF R.G.B.R., A CHILD

                                  On
Appeal from the 29th Judicial District Court

                                                      Palo
Pinto County, Texas

                                                  Trial
Court Cause No. C41891

                                              M
E M O R A N D U M   O P I N I O N

This
is an accelerated appeal from the trial court=s
order terminating appellants=
parental rights.  We affirm.
Background
Facts
Lisa
Anna Rendon and Gustovo Barboza, Jr., appellants, are the parents of R.G.B.R.
The Department of Family and Protective Services filed a Petition for
Protection of a Child for Conservatorship and for Termination in Suit Affecting
the Parent-Child Relationship.  The trial court entered an order allowing for
emergency removal of the child.  The department implemented a service plan for
appellants with the goal of reunification.  Rendon and Barboza failed to comply
with the service plan, and the department sought termination of their parental
rights.

After
a bench trial, the court entered an order terminating both Rendon=s and Barboza=s  parental rights to the
child.  The trial court found by clear and convincing evidence that Rendon:
(1)
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endangered the physical or emotional well-being of the child B Tex. Fam. Code Ann. ' 161.001(1)(E)
(Vernon Supp. 2008);
(2)
failed to comply with the provisions of a court order that specifically
established the actions necessary for Rendon to obtain the return of the child
who has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child=s
removal from the parents under Chapter 262[1]
for the abuse or neglect of the child B
Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon
Supp. 2008); and       (3) used a controlled substance, as defined by Chapter
481[2]
of the Health and Safety Code, in a manner that endangered the health and
safety of the child, and (1) failed to complete a court-ordered substance abuse
treatment program, or (2) after completion of a court-ordered substance abuse
treatment program continued to abuse a controlled substance B Tex. Fam. Code Ann. ' 161.001(1)(P)
(Vernon Supp. 2008).
The
trial court further found by clear and convincing evidence that Barboza:
(1)
knowingly placed or knowingly allowed the child to remain in conditions or
surroundings that endanger the physical or emotional well-being of the child B Tex. Fam. Code Ann. ' 161.001(1)(E)
(Vernon Supp. 2008); and
            (2)  failed to comply with the provisions of a court order that
specifically established the actions necessary for Barboza to obtain the return
of the child who has been in the permanent or temporary managing
conservatorship of the Department of Family and Protective Services for not
less than nine months as a result of the child=s
removal from the parents under Chapter 262 for the abuse or neglect of the
child B  Tex. Fam. Code Ann. ' 161.001(1)(O) (Vernon
Supp. 2008).

Barboza=s Statement of Points
Barboza
did not preserve any issues for review on appeal because he did not file a
statement of points as required by Tex.
Fam. Code Ann. '
263.405(b), (b-1) (Vernon Supp. 2008).  The statute provides:
(b)
Not later than the 15th day after the date a final order is signed by the trial
judge, a party who intends to request a new trial or appeal the order must file
with the trial court:
(1)
a request for a new trial; or

(2)
if an appeal is sought, a statement of the point or points on which the party
intends to appeal.

(b-1) The statement under Subsection (b)(2) may be combined
with a motion for a new trial.
The statute
further provides in relevant part:
The appellate court may not consider any issue that was not
specifically presented to the trial court in a timely filed statement of the
points on which the party intends to appeal or in a statement combined with a
motion for new trial.
Tex. Fam. Code Ann. ' 263.405(i) (Vernon Supp.
2008).
In
this case, the order of termination was signed on January 28, 2008.  Barboza
filed a notice of appeal on February 15, 2008.  Barboza did not file a
statement of points stating the issues on which he intends to appeal.  The
statute is clear that a party who does not file a statement of the points on
appeal does not preserve any issues for appeal.  Section 263.405(b); In re
M.N., 230 S.W.3d 248, 249 (Tex. App.CEastland
2007, pet. filed), rev=d
& remanded on other grounds, No. 07-0698, 2008 WL 3991189 (Tex. Aug.
29, 2008).  Not only does the party waive those issues, but the statute also
prohibits the appellate court from considering any issues that are not
contained in a statement of points on appeal.  In re M.N., 230 S.W.3d at
249-50.  Because we cannot consider Barboza=s
issues on appeal, we affirm the portion of the judgment that terminates his
parental rights to R.G.B.R.
Rendon=s Issues on Appeal

Rendon
asserts on appeal that the trial court erred in determining that she committed
one or more acts prohibited under Tex.
Fam. Code Ann. '
161.001(1) (Vernon Supp. 2008).  She also asserts that the trial court erred in
determining that termination of Rendon=s
parental rights was in the best interest of the child.
Standard
of Review
Due
process requires that the grounds for termination be established by clear and
convincing evidence. In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002)
(citing Santosky v. Kramer, 455 U.S. 745, 769 (1982)); In re J.P.H.,
196 S.W.3d 289, 292 (Tex. App.CEastland
2006, no pet.). This requires a measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established.  In re J.P.H., 196 S.W.3d at
292.
When
conducting a legal sufficiency review, we review all of the evidence in the
light most favorable to the finding to determine whether a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.
City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005); In re J.F.C.,
96 S.W.3d at 266; In re J.P.H., 196 S.W.3d at 292. We must assume that
the factfinder resolved disputed facts in favor of its finding if a reasonable
factfinder could do so.  Phillips v. Tex. Dep=t of Protective & Regulatory Servs.,
149 S.W.3d 814, 817 (Tex. App.CEastland
2004, no pet.).
When
conducting a factual sufficiency review, we review the entire record, including
evidence in support of and contrary to the judgment, and give due consideration
to evidence the trial court could have found to be clear and convincing.  In
re C.H., 89 S.W.3d 17, 25 (Tex. 2002).  We then determine whether the
evidence is such that a factfinder could form a firm belief or conviction that
grounds for termination exist.  Id.  We also consider whether any
disputed evidence is such that a reasonable factfinder could not have resolved
that disputed evidence in favor of its finding.  Id.
Grounds
for Termination
Rendon
asserts in her brief that extenuating circumstances made it impossible for her
to comply with the court=s
order establishing the actions necessary for her to obtain the return of
R.G.B.R.  She admits to not completing the individual counseling sessions but
states that her failure to complete the sessions was due to the counselor
terminating her sessions.  She does not offer any argument as to why she did
not complete the other requirements of the order.

Rendon
does not challenge the trial court=s
finding on the other two grounds supporting termination; specifically that she
knowingly placed the child in an environment that endangered the physical and
emotional well-being of the child and that she used a controlled substance in a
manner that endangered the child.  Only one finding alleged under Section
161.001(1) is necessary for a judgment of termination.  In re D.M., 58
S.W.3d 801, 813 (Tex. App.CFort
Worth 2001, no pet.); In re S.F., 32 S.W.3d 318, 320 (Tex. App.CSan Antonio 2000, no pet.).
Because Rendon does not challenge the trial court=s
finding on the above two grounds, we overrule her first issue on appeal.
Best
Interest of the Child
In
parent-child termination proceedings, there is a strong presumption that the
child=s best interest
is usually served by keeping him with his natural parents.  Wiley v.
Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); In re D.M., 58 S.W.3d at
814.  The Texas Supreme Court has recognized several factors to consider in
determining whether termination is in a child=s
best interest.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
These include (1) the desires of the child; (2) the emotional and physical
needs of the child now and in the future; (3) the emotional and physical danger
to the child now and in the future; (4) the parental abilities of the
individuals seeking custody; (5) the programs available to assist those
individuals to promote the best interest of the child; (6) the plans for the
child by these individuals or by the agency seeking custody; (7) the stability
of the home or proposed placement; (8) the acts or omissions of the parent that
may indicate the existing parent-child relationship is not proper; and (9) any
excuse for the acts or omissions of the parent.  Id. at 371-72.   This
list of factors is not exhaustive, and no single consideration is controlling.
In re D.M., 58 S.W.3d at 814.
Courtney
Davis, a caseworker with Child Protective Services, testified that R.G.B.R. was
removed from the care of Rendon and Barboza due to their drug use.  Davis
testified that the apartment where the child was living before removal was
infested with cockroaches and cockroach nests.  She testified that there were
bags of trash everywhere and that the oven was on with the door open to heat
the apartment.  She further testified that  R.G.B.R. had not eaten in four
days.  She also stated that, at the time of trial, Rendon and Barboza lived in
a motel and did not have suitable and stable housing.

Davis
testified that Rendon was to complete a plan of service that included parenting
classes, psychological evaluations, drug assessments, anger management,
homemaking skills classes, and individual counseling.  Davis stated that Rendon
completed a drug assessment and the recommended twenty-eight day inpatient
program.  Davis further testified that Rendon relapsed and was admitted into a
second twenty-eight day inpatient program.  Rendon completed the twenty-eight
day program and extended her stay for fourteen more days.  Davis testified that
Rendon was released from rehab in December.  Davis also testified that Rendon
had used drugs throughout the case and that she had only been clean for two months.
Davis testified that Rendon had completed a psychological assessment but did
not follow through with any of the recommendations from that assessment.  Davis
further testified that Rendon had not completed parenting classes or anger
management classes.
            Davis
testified that R.G.B.R. was living with his paternal grandmother and that she
wants to adopt him.  Davis testified that, due to Rendon=s extensive drug use and her inability to
complete the programs offered, she had failed to demonstrate that she could
make the changes necessary to parent R.G.B.R.  Davis recommended termination of
Rendon=s parental
rights.
Rendon
testified that she has abused drugs for twenty-six years.  She testified that
she completed two twenty-eight day inpatient programs.  Rendon testified that
the last time she tested positive for drugs and the last time she used drugs
was October 5, 2007.
Rendon
testified that she had a thirteen-year-old and fifteen-year-old who lived with
her mother because of her incarceration.  She testified that she raised those
children A[o]ff and
on.@  R.G.B.R. was six
years old.  Rendon had been incarcerated for fourteen months since R.G.B.R.=s birth.  Rendon testified
that she would be able to care for R.G.B.R A[o]nce
we get stable and get on our feet.@
Rendon testified that she was working on her drug problem by taking it one day
at a time.   Rendon testified that she and Barboza currently live in a motel in
Fort Worth.  She further testified that Texas Inmate Services was helping them
find an apartment and that they hope to be out of the motel by mid-February.
Rendon testified that she had been working at Denny=s for two and one-half weeks.

The
evidence demonstrates that Rendon was not providing R.G.B.R. with a stable and
secure home environment or meeting his emotional and physical needs.  R.G.B.R.
was removed from a roach-infested apartment that was not heated properly, and he
had not been fed in four days.  Further, there was no evidence that she would
be able to sustain a stable and suitable environment in the future.  Rendon and
Barboza were living in a motel.  They hoped to be in an apartment by mid-
February.  At the time of trial, Rendon had only been out of rehab and clean
for two months and had only been employed for two and one-half weeks.  R.G.B.R.
was in a stable environment outside of Rendon=s
care, and his paternal grandmother wanted to adopt him.
Based
on this evidence, the trial court did not err in finding that termination of
Rendon=s parental
rights was in R.G.B.R.=s
best interest.  We overrule appellant=s
second issue on appeal.
Conclusion
We
affirm the judgment of the trial court.

RICK STRANGE
JUSTICE

September 25,
2008
Panel consists of:  Wright, C.J.,
McCall, J., and Strange, J.

[1]Tex. Fam. Code Ann. ch. 262 (Vernon 2002 & Supp. 2008).

[2]Tex. Health & Safety Code
Ann. ch. 481 (Vernon 2003 & Supp.
2008).


181 F.2d 718
12 Alaska 671
NORDGREN,v.UNITED STATES.
No. 12294.
United States Court of Appeals Ninth Circuit.
April 24, 1950.

Howard D. Stabler, Juneau, Alaska, for appellant.
P. J. Gilmore, Jr., U.S. Attorney, Stanley D. Baskin, Asst. U.S. Attorney, Juneau, Alaska, for appellee.
Before HEALY, BONE and POPE, Circuit Judges.
HEALY, Circuit Judge.

1
Appellant was indicted and convicted under 18 U.S.C.A. § 91, 1946 ed.,1 of offering and giving to one MacKenzie, a fishery patrol agent of the Fish and Wildlife Service of the Department of the Interior, alleged to be a person acting for an on behalf of the United States in an official function, a bribe with the intention of inducing MacKenzie to refrain from reporting that appellant had fished for salmon illegally in a closed area.  He was sentenced to imprisonment for a period of fourteen months and fined the sum of $200.  His brief on appeal specifies six errors, not all of which need be noticed.

2
His first contention is that the evidence failed to prove the offense charged in that MacKenzie was not shown to be a 'person acting for or on behalf of the United States in any official function.'  The contention was advanced on the trial as one of law, that is, it appears predicated not so much on infirmities in the evidence as on appellant's construction of the statute.  There was no objection to the form of the proof as to MacKenzie's status, nor was there any dispute concerning the facts bearing thereon.  It was shown that he was employed during the period from June 18 to August 22, 1948, by the Fish and Wildlife Service of the Department of the Interior as a fishery patrol agent, being hired by one Ralston, the head law enforcement officer of the Service.2  He was administered an oath of office and his salary was paid by Treasury check.  The Service transported him by steamer on June 22 to Red Fish Bay, Baranof Island, and picked him up there at the termination of his work, a boat owned by the Service being left with him for his use in the interim.  His duties were to observe the part of the Bay extending from the Second Narrows northerly to the Bay's head where a stream enters, that being an area officially closed to salmon fishing; to see that no one fished there; and to report to the Service any persons who fished in the forbidden area.  He testified that 'nothing much was said' to him 'about arresting anybody,' and he seems not to have felt that he had authority to apprehend offenders.

3
Appellant calls attention to the provisions of 48 U.S.C.A. § 227 to the effect that all employees of the Service, 'designated by the Director, shall be considered as peace officers and shall have the same powers of arrest of persons and seizure of property' as have United States Marshals or their deputies.  The point attempted to be made is that, since the evidence did not show that MacKenzie was appointed by the Director, he did not possess the powers of a peace officer and could not therefore be considered as performing an official function in the sense of the statute.  However, the statute speaks of 'officers' and 'persons' in the disjunctive.  It is not thought that an agent of the Service, performing the duties MacKenzie was authorized to discharge, need by designated by the Director or vested with the powers of a peace officer in order to bring his function within the statutory language.  MacKenzie might, and did, exercise official functions apart from the making of arrests.

4
It is argued that MacKenzie's status was not different from that of the employee involved in Krichman v. United States, 256 U.S. 363, 41 S.Ct. 514, 515, 65 L.Ed. 992.  Krichman bribed a baggage porter employed at the Pennsylvania terminal in New York City to induce him to deliver a trunk containing furs.  At that time (during the first World War) the Pennsylvania road was being operated by a Director-General under presidential proclamation, as were all the railroads in the country.  The question was whether the porter was a person acting for the United States in an official function.  The court thought that the act aims to punish the bribery of those 'exercising official functions under or by the authority of a department or office of the government.'  It observes that the statute was passed long before there was any thought of taking over the railroads, and that this was a circumstance to be considered in determining whether the situation was one intended to be dealt with by Congress.  The government's situation in respect of the railroads was likened to its relations with wholly owned corporate entities, such as the Emergency Fleet Corporation.  The court was of opinion that to include the baggage porter among those performing official functions for the United States was, in the circumstances, giving to the statute too broad an application.3

5
The decision is of no help to appellant.  His case is more nearly akin to United States v. Birdsall, 233 U.S. 223, 34 S.Ct. 512, 58 L.Ed. 930, which had to do with the bribery of special agents of the Bureau of Indian Affairs employed in connection with the suppression of the liquor traffic among the Indians, that is to say, exercising functions under or by authority of a regular and long-established executive department.  In the Birdsall case the statutory language was given a broad construction as applied to persons in that category.  Consult, also, United States v. Ingham, D.C., 97 F. 935.

6
Appellant made timely objection to and has assigned as error the giving of an instruction that MacKenzie was 'a person acting for and on behalf of the United States in the function of conserving and protecting the commercial salmon fisheries of Alaska, under and by authority of the Department of the Interior.'  The vice of the instruction is said to be that it charged the jury as a matter of law that MacKenzie was of the class of persons described in the statute, whereas the question whether he was or not should at the least have been left to the jury.  We think the charge was not error.  There was, as already indicated, no controversy as to the facts pertaining to the functions MacKenzie was performing, and the charge did not misdescribe his duties.  Moreover appellant did not ask for an instruction submitting to the jury the question whether MacKenzie was performing an official function.  The court in the course of its charge repeatedly informed the jury that it was their sole province to determine the facts.

7
Another claim is that the court was in error in refusing to admit proof of appellant's acquittal of charges of illegal fishing in the closed waters of Red Fish Bay on August 10, 15 and 16, 1948.  On the trial of the instant case MacKenzie testified to appellant's having fished in those waters on one or the other or on several of those dates, as presumably he had done in the illegal fishing case.  The point made is that evidence of the acquittal on the charge of illegal fishing would tend to contradict MacKenzie's testimony in the bribery prosecution, or might be considered by the jury as having adverse effect on his credibility.  We see little force in the argument.  Evidence as to what disposition another jury had made of a different charge was without value since it can not be known what consideration induced their verdict.  Such evidence is not only without real worth but its admission would have a positive tendency to confuse or mislead the jury.  The court charged that 'testimony has been admitted showing, or tending to show that the defendant fished and unlawfully in Red Fish Bay.  This evidence was admitted not to prove that the defendant violated the fisheries law, but to be considered by you in determining, in connection with all the other evidence, whether the defendant committed the crime charged in the indictment.'  This instruction, we think, appropriately covered the situation.

8
Finally appellant complains of a matter not called to the attention of the court during the progress of the trial.  He contends that on the basis of MacKenzie's testimony the latter was or might fairly be thought an accomplice; that the question whether or not he was such should have been submitted to the jury, and the latter instructed, in line with a statute of Alaska,4 that a conviction may not be had upon the uncorroborated testimony of an accomplice.

9
Briefly, MacKenzie's testimony touching the point was this.  On August 9, 1948, appellant and two other men came in a fishing boat through the Narrows and anchored near MacKenzie's camp.  Appellant approached MacKenzie and spoke of the fish- 'about a thousand sockeye in the mouth of the creek.'  Later that day appellant came to MacKenzie's tent and said something to the effect that MacKenzie would be given a share, that there was no reason why he could not make four hundred fifty or five hundred dollars for himself, to which MacKenzie replied, 'O.K.'  On the occasion of the first encounter MacKenzie had informed appellant that he was a fishery patrol agent, formerly known as Stream Watchman.  On August 12, having again put in an appearance, appellant approached MacKenzie, showed him a fish slip and said, 'We are giving you one-sixth,' and handed MacKenzie two one hundred dollar bills.  He obtained also MacKenzie's address and said he would send the rest of the money after the last trip.

10
MacKenzie was a man of 63 years of age.  He testified that during the period in question he was the only agent of the Service at Red Fish Bay; that he had no means of communication or of travel other than the outboard motor boat that had been left with him; that the boat was not good for rowing, and that he had not been able to start the motor supplied for it.  He said that on August 9 he refused appellant's invitation to go on board the latter's boat for coffee, believing that appellant intended to fish in the closed waters, and that he, MacKenzie, did not want to talk with him.  On the 12th, when appellant came the second time, MacKenzie says he felt, as before, uneasy about the presence and purposes of the three men.  Accordingly he decided that he would agree to any proposition they had to offer until he got away from there.  He said that appellant and his two crewmen were 'great big husky guys and they wanted them fish'; that he was afraid they would put a rock around his neck and sink him in the Bay; and that he took the money offered and tried to get along until he could get away from the locality.  On cross-examination he said that after he took the money he was not afraid any more, that everything seemed to be quite friendly.

11
His testimony is, further, that when the Service vessel 'Scoter' came on August 21 to pick him up, he reported the bribery to Captain Harndin of the vessel soon after going aboard; and that upon the ship's arrival at Sitka on August 22nd he at once reported the affair to Agent Hillsinger of the Service at the latter's office, turning over to him the two bills.5  These were the first opportunities he had to report the incidents occurring in the Bay either to officials of the Service or to any other law enforcement agencies.  MacKenzie's testimony concerning his reporting the affair was confirmed on the trial both by Harndin and by Hillsinger.  We gather that his report was the inspiration for the prosecution for violation of the fisheries law as well as for the lodging of the bribery charge.

12
Naturally appellant when on the stand denied that any bribe was offered or given, so that the sole evidence on the point was that of MacKenzie.  As already indicated, appellant did not suggest the accomplice theory during the course of the trial and made no request for instructions such as he now claims should have been given.

13
We need not decide whether the court, had it been asked to do so, might properly have submitted the matter to the jury.  In a criminal case where the propriety of a request on a particular subject is doubtful, it is usually thought the better practice to instruct out of an abundance of precaution.  The federal appellate courts, mindful of the requirements of Rule 30 of the Criminal Rules, 18 U.S.C.A., seldom reverse for failure to give instructions in the absence of a seasonable request, and will do so only if the omission appears to have been so seriously prejudicial as to lead the court to believe that the accused was not given a fair trial.  In this instance we are unable to discern any prejudice.  A study of the record leaves no impression that MacKenzie may have been criminally corrupt or that his conduct was motivated by an evil intent.  Even if it be assumed that his professed motives were rationally open to suspicion, it would not be difficult to find in this record substantial corroboration of his testimony concerning the bribery.

14
Affirmed.

1
 The provisions of the statute, so far as pertinent, are as follows:
'Sec. 91.  (Criminal Code, section 39.)  Bribery of United States officer.  Whoever shall promise, offer, or give, or cause or procure to be promised, offered, or given, any money or other thing of value * * * to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the Government thereof, * * * with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined' etc.

2
 The departmental regulations specify the officials authorized to employ stream watchmen or patrol agents.  See Sec. 1.16 Title 15, Code of Federal Regulations.  For statutory authority see 5 U.S.C.A. § 43.  For the authority conferred on the Department to supervise and control the Alaska fisheries consult 48 U.S.C.A. § 220-248b

3
 The statute was reenacted in a revised form as Sec. 201 of Title 18, effective Sept. 1, 1948, to keep pace with the present ramifications of the executive branch.  Consult Reviser's Notes

4
 Section 66-13-59, Alaska Compiled Laws, 1949.  We think it unnecessary to consider whether this territorial statute governs in a prosecution for violation of an act of Congress

5
 The bills were introduced in evidence at the trial