391 F.3d 799
John T. MARTIN, Petitioner-Appellant,v.Edward PEREZ, Respondent-Appellee.
No. 03-6384.
United States Court of Appeals, Sixth Circuit.
Submitted: December 6, 2004.
Decided and Filed: December 13, 2004.

ON BRIEF: Frances E. Catron, United States Attorney, Lexington, Kentucky, for Appellee. John T. Martin, Indianapolis, Indiana, pro se.
Before: MARTIN and MOORE, Circuit Judges; BELL, Chief District Judge.*
OPINION
MOORE, Circuit Judge.

1
Petitioner-Appellant John T. Martin ("Martin") appeals the district court's denial of his § 2241 petition for a writ of habeas corpus. Martin asserts that he is actually innocent of the federal crime of arson as set forth in 18 U.S.C. § 844(i) because the property he bombed lacked a sufficient connection to interstate commerce. In light of the testimony introduced during the district court's evidentiary hearing which indicates that the property damaged by Martin's bomb was a rental property, we AFFIRM the district court's denial of Martin's § 2241 petition for a writ of habeas corpus.

I. BACKGROUND1

2
In May 1996, Martin was indicted on charges of arson, possession of an unregistered explosive device, obstruction of justice, and making false statements to federal investigators based on his actions in connection with the detonation of a pipe bomb at a private residence (the "Residence") in Madison, Indiana. Pursuant to a plea agreement, Martin pleaded guilty to the arson and obstruction-of-justice charges, and the government dismissed the possession of an unregistered explosive device and false-statement counts. In December 1996, the U.S. District Court for the Southern District of Indiana sentenced Martin to 108 months' imprisonment, three years' supervised release, and restitution to Carol Horton (the Residence's owner), Horton's insurance company, and Horton's son, James Bowyer ("James"), who had been living at the Residence at time of the bombing.

3
Relying on the Supreme Court's decision in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Martin appealed his conviction to the U.S. Court of Appeals for the Seventh Circuit, asserting that his conduct lacked the nexus to interstate commerce necessary to sustain a federal conviction. The Seventh Circuit denied the appeal, concluding that Martin's guilty plea barred a sufficiency-of-the-evidence inquiry and that Martin had stipulated to the interstate-commerce nexus in his plea. See United States v. Martin, 147 F.3d 529, 533 (7th Cir.1998).

4
In February 1999, Martin filed a motion in the Southern District of Indiana for correction of judgment, which that court treated as Martin's first § 2255 motion for collateral relief. The sole claim asserted in this filing was that Martin had pleaded guilty to a crime he did not commit (i.e., obstruction of justice) because the stipulated facts contained in the plea agreement differed from those in the indictment. The Southern District of Indiana denied relief, concluding that the argument had been procedurally defaulted, that the argument had been waived by Martin's guilty plea, and that the obstruction-of-justice charge could be sustained based on the stipulated facts in the plea agreement. Both the Southern District of Indiana and the Seventh Circuit rejected Martin's request for a certificate of appealability.

5
During the pendency of his first motion, Martin filed a motion to dismiss the indictment for lack of jurisdiction and an "Administrative Notice" requesting relief from conviction in the Southern District of Indiana. That court classified both filings as § 2255 petitions and dismissed them on the ground that the Seventh Circuit had not granted Martin permission to file a second or successive § 2255 petition. In June 2000, Martin sought leave from the Seventh Circuit to file a second or successive § 2255 petition. The request for leave, citing Lopez and the Supreme Court's then-recently published decision in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), asserted that the Residence lacked a sufficient connection to interstate commerce. After considering this argument, the Seventh Circuit denied Martin's request for leave to file a second or successive § 2255 motion.

6
In July 2000, Martin filed a "Petition for Writ of Habeas Corpus" in the U.S. District Court for the Eastern District of Kentucky, which had jurisdiction over Martin's place of confinement. The Eastern District of Kentucky construed the filing as a § 2255 motion challenging conviction and transferred the case to the Southern District of Indiana. The Southern District of Indiana then dismissed the motion for failure to obtain permission from the Seventh Circuit to file a second or successive § 2255 motion.

7
In February 2001, Martin filed a "Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241" in the Eastern District of Kentucky, again raising the interstate-commerce issue. The Eastern District of Kentucky classified the petition as a second or successive § 2255 petition and dismissed the petition without prejudice. Martin appealed to this court, and in Martin I, we concluded that Martin's claim fell within § 2255's savings clause and thus could be asserted via a § 2241 habeas corpus petition. See Martin I, 319 F.3d at 803-05. We remanded the case to the Eastern District of Kentucky so that an evidentiary hearing could be held to determine whether the Residence was a rental property such that Martin could be held criminally liable for its bombing pursuant to 18 U.S.C. § 844(i).

8
In October 2003, the Eastern District of Kentucky convened an evidentiary hearing as directed by this court. Martin was first called to the stand, but his testimony did not reveal any specific facts bearing on the question of whether the Residence was a rental property. Two witnesses for the government then testified.

9
Carol Horton first explained that, at the time of the bombing, she and her sister jointly owned the Residence, which had been their mother's home prior to her death. Because her sister lived in New York, Horton had primary responsibility for maintaining the property. After a period of vacancy following Horton's mother's death, the Residence was occupied by Horton's oldest son, James. Horton stated that James paid her $200.00 per month in rent and that he was responsible for maintaining the Residence, although she was financially responsible for repairing the property after the bombing. Horton admitted that she did not issue receipts to James for his rent payments and that she had not listed the rent payments as income on her tax returns, apparently because the rent payments were less than the monthly mortgage payments on the Residence. At some point following the bombing, James moved out of the Residence, and the home was then occupied by James's brother, Edward Bowyer, and his wife. Horton stated that Edward paid $300.00 in monthly rent and that she did list these rent payments on her 1997, 1998, and 1999 tax returns. In 1999, Horton's sister deeded her interest in the Residence to Horton, and Horton sold the property. At no time during her ownership of the Residence did Horton herself live in the home.

10
The government also called Sharon Jackson, the Assistant United States Attorney who had investigated the bombing and negotiated Martin's plea. Jackson stated that the federal investigators were aware at the time Martin was indicted that the Residence was owned by Horton and occupied by her son James. Jackson then explained that, at the time of the investigation, the Supreme Court's decision in Jones had not yet been decided, and Seventh Circuit case law focused on factors other than status as a rental property in determining whether a nexus to interstate commerce existed.

11
Based on the testimony presented during the evidentiary hearing, the Eastern District of Kentucky ruled that Martin had failed to sustain his burden of proving that the Residence lacked the requisite connection to interstate commerce necessary for conviction under § 844(i). Martin timely appealed to this court.

II. ANALYSIS
A. Section 2241 Habeas Corpus Relief

12
This court has jurisdiction over Martin's appeal from the Eastern District of Kentucky's judgment denying his § 2241 petition for a writ of habeas corpus, see 28 U.S.C. § 2253(a), and we review the district court's decision de novo. Rosales-Garcia v. Holland, 322 F.3d 386, 400-01 (6th Cir.) (en banc), cert. denied, 539 U.S. 941, 123 S.Ct. 2607, 156 L.Ed.2d 627 (2003); see also United States v. Laton, 352 F.3d 286, 290 (6th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 812 (2004) (reviewing de novo the determination of whether property affects interstate commerce because it is a mixed question of law and fact).

13
Because Martin's petition for a writ of habeas corpus has been classified as a § 2241 petition falling within the scope of § 2255's savings clause, Martin must demonstrate his actual innocence in order to obtain relief. See Bannerman v. Snyder, 325 F.3d 722, 724 (6th Cir.2003) ("The savings clause may only be applied when the petitioner makes a claim of actual innocence.") (citing Martin I, 319 F.3d at 804). To establish that he is actually innocent, Martin "must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks and citation omitted). When evaluating Martin's claim of actual innocence, we must consider all of the available evidence, including the testimony adduced at the district court's evidentiary hearing.2 See id. at 623-24, 118 S.Ct. 1604 ("It is important to note in this regard that `actual innocence' means factual innocence, not mere legal insufficiency. In other words, the Government is not limited to the existing record to rebut any showing that petitioner might make. Rather, on remand, the Government should be permitted to present any admissible evidence of petitioner's guilt even if that evidence was not presented during petitioner's plea colloquy and would not normally have been offered before our decision in Bailey.") (citation omitted).

14
B. Section 844(i)'s Interstate Commerce Requirement

15
Title 18 U.S.C. § 844(i) provides for the imposition of federal criminal sanctions against any person who "maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." We conclude that Martin is not actually innocent of violating § 844(i) because the Residence is a rental property and its bombing satisfies § 844(i)'s requirement that the damaged property be "used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce."3

16
In Russell v. United States, 471 U.S. 858, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985), the Supreme Court held that the arson of a two-unit apartment building could be prosecuted under § 844(i) because the building was a rental property. In so holding, the Court noted that, although § 844(i) "only applies to property that is `used' in an `activity' that affects commerce," "[t]he rental of real estate is unquestionably such an activity." Id. at 862, 105 S.Ct. 2455. As the Court explained, its determination that rental property satisfied the interstate-commerce requirement did not depend "on the connection between the market for residential units and `the interstate movement of people'" because "the local rental of an apartment unit is merely an element of a much broader commercial market in rental properties." Id. The Court also pointed to the statute's legislative history, which "suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home." Id.

17
According to Martin, the Supreme Court's ruling in Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), nevertheless requires a conclusion in this case that the Residence lacks a sufficient nexus to interstate commerce. In Jones, the Court held that " § 844(i) does not reach an owner-occupied residence that is not used for any commercial purpose," even if the owner-occupied residence's utilities had interstate connections4 or the residence's mortgage and insurance contracts involved out-of-state parties. Id. at 852, 855-57, 120 S.Ct. 1904. As the Court explained, § 844(i)'s requirement that the property be used in an activity affecting commerce "is most sensibly read to mean active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce." Id. at 855, 120 S.Ct. 1904. The Jones Court did not purport to overrule Russell, however; indeed, the Court distinguished its prior decision by pointing to the "dispositive fact" in Russell that the "[p]etitioner was renting his apartment building to tenants at the time he attempted to destroy it by fire." Id. at 853, 120 S.Ct. 1904 (internal quotation marks and citation omitted).

18
Based on the evidence presented during the district court's evidentiary hearing, we conclude that the district court did not err in finding that the Residence had a sufficient nexus to interstate commerce to support Martin's § 844(i) conviction. During the evidentiary hearing, Carol Horton testified that James paid her $200.00 a month in rent, that the Residence was owned in part by her sister who resided in New York, and that Horton herself never occupied the Residence. Although Horton was unable to produce any corroborating documentation such as rent receipts or tax returns showing that James did in fact pay rent, the burden rests with Martin in this § 2241 proceeding to prove that, based on this evidence, no reasonable juror could find that the Residence constituted rental property. By failing to present any evidence affirmatively disproving James's payment of rent or showing that Horton did occupy the Residence at the time of the bombing, Martin has failed to carry his burden.

III. CONCLUSION

19
Because the evidence proffered by the government during the district court's evidentiary hearing indicates that the Residence was a rental property, and because Martin did not present any evidence suggesting that the Residence was an owner-occupied private residence, Martin has failed to establish that he is actually innocent of violating 18 U.S.C. § 844(i). Thus, we AFFIRM the district court's judgment denying Martin's § 2241 petition for a writ of habeas corpus.

Notes:

*
 The Honorable Robert Holmes Bell, Chief District Judge of the United States District Court for the Western District of Michigan, sitting by designation

1
 A more detailed summary of this case's factual and procedural history is included in this court's opinion inMartin v. Perez, 319 F.3d 799, 800-02 (6th Cir.2003), hereinafter referred to as "Martin I."

2
 We note that Martin's indictment does not specify upon what ground the grand jury based its finding of a sufficient interstate-commerce nexus. Thus, Martin's indictment does not narrow the range of interstate-commerce connections that we may consider in this case

3
 Martin contends that if § 844(i)'s interstate-commerce requirement is not satisfied, then the Southern District of Indiana lacked the subject matter jurisdiction necessary to convict him. Such an assertion, however, mischaracterizes § 844(i)'s interstate-commerce requirement. As we explained inUnited States v. Rayborn, 312 F.3d 229, 231 (6th Cir.2002), "[a]lthough the interstate commerce requirement is frequently called the `jurisdictional element,' it is simply one of the essential elements of § 844(i). It is not jurisdictional in the sense that it affects a court's subject matter jurisdiction." See also United States v. Laton, 352 F.3d 286, 290 (6th Cir.2003), cert. denied, ___ U.S. ___, 124 S.Ct. 2906, 159 L.Ed.2d 812 (2004).

4
 It is true that, at the time Martin was convicted, the government's theory of an interstate-commerce nexus rested on the Residence being served by an interstate-utility company. Indeed, in the plea agreement, Martin did not stipulate to an interstate-commerce nexus generally, but rather only to the fact that "several utilities connected with the residence ... were utilities which affected commerce or moved in interstate commerce." Joint Appendix at Exhibit D (Plea Agreement at 6). As we noted above, however, Martin's indictment did not specify a particular interstate-commerce-connection theory, and when evaluating a claim of actual innocence, our review is not limited to the record as it existed at the time of conviction. Thus, the fact that the government is asserting a different basis for establishing a connection to interstate commerce during Martin's § 2241 proceeding does not alter our analysis


346 F.Supp.2d 851 (2004)
Ricky WILLIAMSON and Cindy Williamson Plaintiffs
v.
FLEETWOOD HOMES OF MISSISSIPPI, INC. and Patrick Home Center Defendants
No. CIV.A.4:04 CV 69-M-B.
United States District Court, N.D. Mississippi, Greenville Division.
November 23, 2004.
Ralph E. Chapman, Chapman, Lewis & Swan, Clarksdale, MS, for Ricky Williamson, Cindy Williamson, Plaintiffs.
Roland F. Samson, III, Samson & Powers, PLLC, Gulfport, MS, for Fleetwood *852 Homes of Mississippi, Inc., Patrick Home Center, Inc., Defendants.

ORDER
MILLS, District Judge.
This cause comes before the court on plaintiffs' motion [5-1] to remand this case to the Circuit Court of Sunflower County. Defendants have responded in opposition to the motion, and the court, having considered the memoranda and submissions of the parties, concludes that the motion is not well taken and should be denied.
On November 19, 1999, plaintiffs filed this action in the Circuit Court of Sunflower County, seeking recovery for breaches of implied and express warranties arising out of their purchase of an allegedly defective mobile home from defendants. On March 11, 2004, defendants removed the case to this court, on the basis of federal question jurisdiction, see 28 U.S.C. § 1331. Plaintiffs have moved to remand, arguing that they seek recovery solely under state law and that federal question jurisdiction therefore does not exist in this case.
In alleging that federal question jurisdiction exists, defendants acknowledge that plaintiffs state no federal claims on the face of their complaint. Defendants note, however, that in response to a request for admissions, plaintiffs refused to admit that they would not seek damages under the Magnuson-Moss Warranty Act, 15 U.S.C.A. § 2301, et seq in an amount exceeding the $50,000 amount in controversy requirement set forth in that Act. Indeed, plaintiffs responded that they "may seek damages through any legal means," and defendants argue that this response constitutes "other paper" making this case removable under 28 U.S.C. § 1446(b). The court agrees.[1]
It is well established that, under the well-pleaded complaint rule, "federal jurisdiction exists only when a federal question is presented on the face of plaintiffs properly pleaded complaint." Terrebonne Homecare, Inc. v. SMA Health Plan, Inc., 271 F.3d 186, 188 (5th Cir.2001) (quoting Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). "When a plaintiff has a choice between federal and state law claims, she may proceed in state court on the exclusive basis of state law, thus defeating the defendant's opportunity to remove." Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir.2001). Thus, if plaintiffs had chosen to proceed solely under state law, then it is plain that federal question jurisdiction would not exist in this case. However, the fact that plaintiffs specifically refused to admit that they would not seek damages under the Magnuson-Moss Act leads this court to conclude that federal question jurisdiction exists in this case.
This is not a case in which defendants sought to "trick" plaintiffs into admitting that federal question jurisdiction exists. To the contrary, defendants submitted a very simple and straightforward question to plaintiffs: whether they admitted that they did not seek damages under the Magnuson-Moss Act in an amount sufficient to implicate that Act's amount in controversy requirement. Faced with this simple question, plaintiffs refused to admit that they would not seek damages under the Act; to *853 the contrary, they specifically reserved their right to recover under "any legal means." It may well be that plaintiffs were attempting to play a clever jurisdictional game in this case, but the court has little patience for such games in response to clear and concise discovery requests such as those submitted by defendants. The court concludes that federal question jurisdiction exists in this case and that the Magnuson-Moss Act's $50,000 amount in controversy is met. The motion to remand will therefore be denied.
Based on the foregoing, it is ordered that plaintiffs' motion to remand [5-1] is denied.
NOTES
[1]  Plaintiffs argue that this case was not timely removed, but this argument lacks merit. Plaintiffs served their admissions response upon defendants on February 25, 2004, and defendants removed the case on March 9, 2004. It is apparent that the admissions response constituted "other paper" giving rise to federal jurisdiction, and defendants properly removed the case within thirty days of receiving notice of this "other paper." See 28 U.S.C. § 1446(b).


851 F.2d 1420
Johnsonv.Marlin Drilling
NO. 87-4580
United States Court of Appeals,Fifth Circuit.
JUL 12, 1988

1
Appeal From:  W.D.La.

2
AFFIRMED.


7 Wn. App. 726 (1972)
502 P.2d 1037
THE STATE OF WASHINGTON, Respondent,
v.
ROBERT LOUIS HUTTON, Appellant.
No. 632-2.
The Court of Appeals of Washington, Division Two.
November 2, 1972.
Lembhard G. Howell (of Howell & Watson) and Edward E. Gibson, for appellant.
Smith Troy, Prosecuting Attorney, and Ed Schaller, Jr., Deputy, for respondent.
PETRIE, C.J.
Defendant, Robert Louis Hutton, appeals from a judgment and sentence entered subsequent to a jury verdict of guilty as to each of three counts in an information filed against him. Count 1 charged that on December 23, 1969 he distributed an amphetamine to another. Count 2 charged that on January 18, 1970 he had an amphetamine in his possession. Count 3 charged him with having committed the crime of second-degree assault on January 18, 1970 by assaulting the town marshal of the town of Rainier, Washington "with a weapon or instrument likely to produce bodily harm, to-wit: a garden rake, and further did prevent and resist the lawful apprehension and detention of himself."
The defendant contends (1) with respect to counts 1 and 2, that the state has failed to prove the corpus delicti because there is insufficient evidence in the record to establish the substance allegedly distributed or possessed was, in fact, an amphetamine; and (2) with respect to count 3, that there is insufficient evidence in the record to establish the arresting officers had probable cause to arrest him without a warrant. We agree  and conclude, therefore, that this cause should be remanded with instruction to dismiss all three counts of the information.
[1, 2] We note, preliminarily, that a challenge to the sufficiency of the evidence admits the truth of the evidence of the party against whom the challenge is made and all *728 inferences that can reasonably be drawn from that evidence, and requires that the evidence be interpreted most strongly against the challenger and in the light most favorable to the opposing party. State v. Etheridge, 74 Wn.2d 102, 443 P.2d 536 (1968). On the other hand, the existence of a fact cannot rest upon guess, speculation or conjecture. State v. Carter, 5 Wn. App. 802, 490 P.2d 1346 (1971). In order to support a determination of the existence of a fact, evidence thereof must be substantial, i.e., it must attain that character which would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. State v. Zamora, 6 Wn. App. 130, 491 P.2d 1342 (1971). Whether or not there is substantial evidence is a question of law for the court. State v. Zamora, supra.
In order to establish the corpus delicti in counts 1 and 2 the state presented two witnesses: One, an informant to whom the alleged contraband had been distributed; the other, a psychiatrist who had no personal knowledge of any of the circumstances or events involved in counts 1 and 2.
Considering the testimony in the light most favorable to the state, Peggy Slaughterback, the informant, testified that on December 23, 1969, the defendant gave her  and she ingested into her system both by swallowing and sniffing  a wine bottle cap full of a white, flaky substance which had been in a plastic bag; that she initially became tired for about 10 to 15 minutes and thereafter experienced a "tingling feeling"; that she did "not really" know what the substance was, only that she had "heard" it was speed. When asked to describe the tingling sensation, she said "Oh, all over, felt light. My head started tingling." This sensation, she said, lasted 12 to 15 hours. Further, she testified, on January 18, 1970 she met the defendant, asked him "for some speed", and he gave her a substance which had been in a plastic bag. She ate a quantity of the substance which she described as "Not very much, just about a bottom of a beer capful" [sic]. After she ate the substance she got "a little high" and experienced feelings similar to what *729 she had experienced on December 23, "but not as bad." She believed she was taking speed.
Dr. James Bremner, a board certified psychiatrist, testified that an amphetamine has a distinctive stimulant effect upon the nervous system; that a typical effect includes stimulation where dosage is not excessive; that when taken in excessive dosage, which occurs in cases of illicit usage, it causes an extreme state of excitation, restlessness, cardiac palpitation, inability to relax, rest or sleep over long periods of time, thus leading to exhaustion; and that after-effects include depression, even suicidal depression. Physical appearance of amphetamine in its raw state, he testified, can be a white, powder form. A common term for amphetamines, he said, is "speed." He had never examined Peggy Slaughterback and does not know of his own knowledge whether or not she had any drugs. He was never asked to express an opinion  indeed, we have no way of knowing whether or not he had an opinion  as to whether or not the substance which she allegedly received from the defendant on either December 23, 1969 or January 18, 1970, was an amphetamine. By way of a somewhat negative opinion he did state, however, that an average person who ingested a wine bottle cap full of caffeine would experience a stimulant effect for a few hours, but the stimulant effect would not be extreme nor would it include a tingling sensation.
[3] In our opinion, the foregoing recital of the testimony, most favorable to the state, together with any reasonable inferences therefrom, falls considerably short of the quantum of proof necessary to permit a jury to consider whether or not to convict as to counts 1 and 2 of the information. Whether or not a given substance is an amphetamine is not within the ordinary ken of a layman. See State v. Hink, 6 Wn. App. 374, 492 P.2d 1053 (1972). Hence the normal method of proof is through the opinion of an expert who has either examined the substance or who otherwise is presented with a factual foundation upon which to base an opinion. Clearly, in this case, Dr. Bremner, although qualified, was not asked to express any opinion as *730 to the identity of the substance. Such failure invites a motion to strike. State v. Golladay, 78 Wn.2d 121, 470 P.2d 191 (1970). Miss Slaughterback had no expertise which would in any sense qualify her to express an opinion. See State v. Emmett, 77 Wn.2d 520, 463 P.2d 609 (1970). Indeed, she specifically disavowed any expertise in this field.
The fact that Miss Slaughterback believed she was taking speed, or that she had asked the defendant for speed is not evidence that the substance she received or ingested was speed. We have already alluded to her testimony that she "heard" the substance was speed. The probative quality of that testimony is extremely suspect. Indeed, we deem it valueless. The testimony arose during direct examination by the prosecutor. An objection to a question, asking her if she had an opinion as to what she was taking, was sustained by the trial court. A second attempt, which however, followed immediately after the initial, successfully challenged effort, resulted in the following testimony:
Q Do you know what the substance was?
A No, not really. I can't say that I did  only from what I heard, and seeing it then.
Q What did you hear?
A That it was speed.
(Italics ours.) Objection to this latter testimony was not specifically reasserted, but it followed immediately after the trial court refused to permit her to express an opinion. The distinction, if there is one, between whether she had an "opinion" and whether she "knew" what the substance was, would appear in this context to be a distinction without a difference. Previously, in her testimony, the trial court had sustained an objection to similar testimony on the basis that it was hearsay evidence. The fact that someone had told her the substance was speed does not in any manner qualify her to testify that it was speed. Her statement was neither the opinion of a qualified expert nor was it a layman's conclusionary statement. See State v. Wigley, 5 Wn. App. 465, 488 P.2d 766 (1971); State v. Zamora, supra. It should never have been permitted to remain for consideration *731 by the jury. People v. McLean, 56 Cal.2d 660, 365 P.2d 403, 16 Cal. Rptr. 347 (1961). Furthermore, neither the state nor the defendant urge its consideration by this court. Both parties appear to consider it as not having been available for consideration by the jury.
Notwithstanding the failure of the state to produce any "opinion" of an expert that the substance was an amphetamine, the state, in its brief and at oral argument, insists that the totality of the chain of circumstantial evidence leads to the reasonable inference, which the jury could permissibly draw  that the substance allegedly distributed and possessed by the defendant was an amphetamine. In support of this position the state directs our attention to two cases from other jurisdictions. People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (1958); People v. Tipton, 124 Cal. App.2d 213, 268 P.2d 196 (1954). These cases do not support the state's contention. In each case the identity of the drug or poison was established by the use of opinion evidence.
[4] There is, of course, ample authority for the proposition that the identity of the drug, in a possession or distribution case, can be established by circumstantial evidence. People v. Chrisman, 256 Cal. App.2d 425, 64 Cal. Rptr. 733 (1967) (and cases cited therein); People v. Kenny, 36 App. Div.2d 477, 320 N.Y.S.2d 972 (1971); People v. Robinson, supra. Ordinarily, however, not only prudence but necessity as well would dictate that some expression of opinion through expertise, acquired through education or experience, be expressed to support the identity of the substance possessed or distributed. A rare exception to this rule of necessity is People v. Nelson, 82 Ill. App.2d 236, 225 N.E.2d 820 (1967). In Nelson, the defendant was charged with acquisition of drugs by fraud and deceit. The court held the identity of the drugs (medicinal preparations) had been established, without chemical analysis or other opinion evidence, upon the uncontroverted evidence that the substance purchased by the defendant was manufactured by reputable pharmaceutical companies under accepted standards of *732 narcotics concentration, packaged and labeled by such companies under statutory requirements indicating kind, quantity and form of narcotic drug contained therein, and distributed by such companies, through normal trade channels, ultimately to the defendant in the original of such containers. We find, in the case at bench, no such chain of circumstantial evidence which would obviate the necessity of some valid expression of opinion as to the identity of the substance possessed or distributed by Mr. Hutton.
[5, 6] We consider next the sufficiency of the evidence to support a conviction under count 3 of the information. We note initially that count 3 charges the defendant with having violated both subsection (4) and subsection (6) of RCW 9.11.020[1] Where an offense may be committed by different means, an information may charge in one count all means that are not repugnant to each other. State v. Parmenter, 74 Wn.2d 343, 444 P.2d 680 (1968). No repugnancy is suggested in this information. When one count of an information alleges the commission of an offense by more than one means, insufficiency of the evidence to support one of the means is fatal to a verdict of guilty, unless the jury has been instructed that their verdict must be unanimous as to any one of the alternative means charged. State v. Golladay, supra. No such instruction was given in the case at bench.
With that preliminary note, we examine the sufficiency of the evidence to support that part of the information which alleged that Mr. Hutton "did prevent and resist the lawful apprehension and detention of himself." The essential element, which the defendant contends is deficient in *733 the record, is proof that this apprehension was lawful. The officers who attempted to arrest him did so without the benefit of a warrant of arrest. The key issue, therefore, is whether the officers had probable cause to effect the arrest. Ordinarily, that issue is a constitutional fact decided by the court as a prerequisite inquiry determinative of whether or not a defendant has been deprived of a constitutional right. State v. Doe, 6 Wn. App. 978, 497 P.2d 599 (1972). In the instant case, however, where the issue is injected into the trial by reason of the charging part of the information, the factual issue necessarily becomes one for the jury to decide.
The state's evidence attempting to establish the lawfulness of the defendant's arrest centers on the testimony of the then Undersheriff of Thurston County, Tony Sexton. At the direction of Officer Sexton a deputy sheriff and the town marshall of Rainier attempted to arrest Mr. Hutton on January 18, 1970. The probable cause to arrest Mr. Hutton is based upon the knowledge which Mr. Sexton possessed. Our review of the sufficiency of the evidence to support the issue of probable cause is based, therefore, upon examination of testimony which Mr. Sexton presented to the jury. We cannot speculate  any more than could the jury  what additional information, if any, lay hidden in the mind of Mr. Sexton at the time he ordered Mr. Hutton's arrest.
Examining the record in the light most favorable to the state we detect the following fact pattern. Mr. Sexton had a background of law enforcement activity dating back to 1961, coupled with attendance at and certification by several law enforcement educational courses of study, including a course of study at the Federal Bureau of Narcotics and Drugs Training School in Washington, D.C. At the time he testified, he was responsible for processing the bulk of alleged drug and narcotic violations in Thurston County. On January 17, 1970 he issued instructions to Deputy Sheriff William McCluskey and to Town Marshal Glenn Pettit to arrest Robert Hutton on the charge of unlawful distribution of a dangerous drug. He directed the order to arrest *734 Mr. Hutton on the basis of knowledge conveyed to him by Peggy Slaughterback and also "knowing that Mr. Hutton has a history of this type of activity." He explained that the latter knowledge was based upon "a prior marijuana charge."
Mr. Sexton talked to Miss Slaughterback for "an hour and a half or longer" on January 17, 1970; he took a statement from her, which she signed after it had been transcribed. He had that statement in his possession when he testified, but it was not presented to the court or the jury. In response to the question as to whether or not, at the time he issued the arrest order, he believed that Mr. Hutton had committed the crime of unlawful dispensing of a dangerous drug, he responded, "Yes, I did." We are not particularly enlightened, from the testimony of Miss Slaughterback, what she told Mr. Sexton, except as follows:
Q Did Tony Sexton suggest you attempt to get some stuff off Bob?
A He did mention it.
and:
Q On the 18th now, Peggy, when you saw Bob Hutton, you informed him that Pettit was going to arrest him for drugs or something to that effect?
A Yes. I just said something about, "the heat's on,"...
[7] One of the more recent, definitive definitions of probable cause in this jurisdiction is contained in State v. Todd, 78 Wn.2d 362, 365, 474 P.2d 542 (1970) as follows:
In order to be justified in arresting without a warrant, an officer must believe and must have good reason to believe that a person has committed or is about to commit or is in the act of committing a felony. Not only must the officer have a real belief that the person is guilty, but that belief must be based upon reasonable grounds. Proper cause for arrest has often been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.
*735 The standard of probable cause should be given a non-technical application, i.e., it is to be applied in the light of everyday experience, rather than according to strict legal formulae. State v. Baxter, 68 Wn.2d 416, 413 P.2d 638 (1966). Probable cause must, however, be a belief formulated in the mind of the arresting officer based upon facts and circumstances. State v. Darst, 65 Wn.2d 808, 399 P.2d 618 (1965).
From the recital and analysis of the testimony set forth above, we are not apprised of one single fact which Miss Slaughterback presented to Mr. Sexton which would assist him in formulating a belief that probable cause existed to arrest this defendant. Certainly, the knowledge that Hutton had previously been subjected to a marijuana charge in the past is insufficient to form the basis for ordering his arrest on January 17, 1970 for unlawful distribution of a dangerous drug. As a result, the jury was left to speculate entirely as to what information Mr. Sexton had before him on January 17, 1970. The state's burden is more stringent than that. We must conclude that the record reveals an insufficiency of evidence to support an essential element of the crime with which the defendant was charged. In view of this conclusion, and in view of the trial court's failure to instruct the jury that their verdict must be unanimous as to either alternative means of committing the crime of second-degree assault, the jury's verdict must be reversed as to count 3 of the information. State v. Golladay, supra.
Reversed and remanded with instructions to dismiss all three counts of the information.
PEARSON and ARMSTRONG, JJ., concur.
NOTES
[1]  RCW 9.11.020 defines second-degree assault, in part, as follows:

"Every person who, under circumstances not amounting to assault in the first degree
"...
"(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm; or
"...
"(6) Shall assault another with intent ... to prevent or resist ... the lawful apprehension or detention of himself ...
"...
"Shall be guilty of assault in the second degree ..."


433 F.2d 813
Application of Paul V. BROWER and John F. Fuzek.
Patent Appeal No. 8360.
United States Court of Customs and Patent Appeals.
November 25, 1970.

Donald E. Gillespie, Research Triangle Park, N. C., attorney of record, for appellant. Rudolph S. Bley, Elizabethton, Tenn., Ellsworth H. Mosher, Arlington, Va., Stevens, Davis, Miller & Mosher, Arlington, Va., of counsel.
S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents, Fred W. Sherling, Washington, D. C., of counsel.
Before RICH, ALMOND, BALDWIN and LANE, Judges, and RE, Judge, United States Customs Court, sitting by designation.
BALDWIN, Judge.

1
This is an appeal from the decision of the Patent Office Board of Appeals finally refusing to accord claims 1, 2, 9-12, 19 and 20 in appellants' application1 the benefit of an earlier filing date under 35 U.S.C. § 120 and sustaining the rejection of those claims under 35 U.S.C. § 102 as unpatentable over an intervening patent to Howsmon, et al.2 Ten claims in the application stand allowed.

THE INVENTION

2
The claims at issue are directed to a process for producing viscose rayon fibers and other regenerated cellulosic products having improved dry strength. It appears from the record that such products are ordinarily made by first treating naturally-occurring cellulosic materials, such as wood pulp or cotton linters, with a caustic soda solution and carbon disulfide to form a thick, syrupy solution. This caustic solution, or viscose, is then extruded into the desired shape and the cellulose "regenerated" by directing the extruded material into an acid coagulating bath, most commonly containing sulfuric acid as well as certain salts such as zinc sulfate and sodium sulfate.3 The process of the rejected claims involves incorporating into the viscose before the extrusion step a small quantity of low molecular weight polyalkylene glycol. Claims 1-2 and 11-12 recite the process of producing "improved cellulosic products" by "modifying a high maturity viscose" through the incorporation of the polyalkylene glycol. Claims 19-20 are drawn to a "high maturity viscose solution * * * containing * * * a polyalkylene glycol." Claims 9-10 recite a process for producing viscose rayon. Because of its particular pertinency in this appeal, we hereby reproduce claim 9 as representative of the claimed invention (paragraphing ours):

3
9. A process for the production of viscose rayon which comprises

4
preparing a spinning solution consisting essentially of viscose and from about 0.5% to 1% of a polyethylene glycol having an average molecular weight of about 400 to 7500,

5
and extruding while stretching the resultant viscose at a salt point of about 7.5 to 9 into an acid spin bath comprising sulfuric acid, sodium sulfate and from about 4% to 15% by weight of zinc sulfate,

6
said percentage of said polyethylene glycol being based on the cellulose content of the viscose, and said amount of said polyethylene glycol being sufficient to produce a regenerated cellulosic product having a substantially increased dry strength over that obtained without said polyethylene glycol, said dry strength being at least about 3.83 grams per denier.

BACKGROUND

7
The record indicates that a number of claims in appellants' parent application, which defined subject matter essentially similar to that of claims 9 and 10 on appeal here, were allowed in that application as a result of appellants being awarded priority in an interference contest with the parent application of the Howsmon, et al. reference patent. After ex parte examination of the parent application had been re-instituted, the other claims therein (drawn to subject matter corresponding generally to that of claims 1, 2, 11, 12, 19 and 20 in the present case), were rejected by the examiner (on grounds not relevant here) as not being in compliance with 35 U.S.C. § 112. This rejection was brought before the Board of Appeals and was reversed on the specific grounds relied on by the examiner. However, the board then proceeded to apply to the claims a new ground of rejection based on section 112, which ground, it pointed out, was also applicable to those claims which previously had been allowed. The board's reasoning was as follows:

8
our study of the specification has led us to conclude that appealed claims 33, 34, 41, and 42 are too broad and fail to define appellants' invention properly (35 U.S.C. 112) for an entirely different reason.

9
Claims 33, 34, 41, and 42 specify only the polyalkylene glycol additive, whereas the other appealed claims require a water soluble viscose coagulant in addition to the polyalkylene glycol. As we read appellants' specification, the use of these two additives in combination is essential to appellants' process and product, and the use of the polyalkylene glycol alone, is not appellants' invention. [Emphasis ours.]

THE PARENT APPLICATION

10
To appreciate the position taken by the board in that first appeal, one must consider the disclosure of the original specification. We believe that the tenor of that disclosure is readily indicated by the following statement taken from the initial paragraphs of the parent specification:

11
According to the present invention, a method for preparing and spinning a modified viscose has been discovered which requires very few changes to existing spinning procedures. We have discovered that a so-called normal viscose (7.0% cellulose (wood pulp) and 6.0% alkali, for example) can be modified by the addition thereto of a small amount of a compound from the class of polyalkylene glycols, including derivatives and mixed polymers thereof, in conjunction with the addition of a water soluble salt of the type which would function as a coagulant for the viscose in an aqueous solution thereof. When viscose so modified is spun under the optimum conditions prescribed a greatly improved product has been found to result.

12
While the compounds which we prefer to employ from the above classes are not, each in themselves, new to the rayon art, it was completely unexpected that their combined use in the amounts indicated as additives to viscose would produce a yarn having the improved qualities found to exist. [Emphasis added.]

13
The rest of the disclosure text is similarly directed. Thus, later on it is stated:

14
In more detail, my invention comprises the modification of a so-called normal viscose by the addition thereto of a polyalkylene glycol such as "Carbowax 4000", in an amount in excess of the normally accepted amounts required to prevent spinnerette incrustation, together with a water soluble salt such as sodium sulfide in an amount in excess of that normally produced as a by-product in the dexanthation and regeneration of the viscose when such "by-product" salts are selected for use. [Emphasis added.]

15
Illustrative examples are then provided of the "manner and mode of carrying out the present invention and the highly desirable improvements in the yarn properties which result from the addition of the additives to the viscose of the present invention prior to spinning." The first twelve of these examples disclose the use of both additives. Three additional working examples are then set out showing the preparation of a viscose with, respectively, no additives, the polyethylene glycol only, and sodium sulfide only.4 Of particular interest is the opening sentence of example 14:

16
To further illustrate the necessity of incorporating both additives to the viscose to achieve the improved results, a 7% cellulose, 6% caustic soda viscose was prepared employing 37% CS2 with .25% Carbowax 4000 being added to the viscose at the time of mixing.

17
Finally, the concluding paragraphs of the disclosure contain the following statement:

18
It should be pointed out, however, that under the spinning conditions as set forth in the above examples, the salt plus the polymeric glycol are both required in the viscose to achieve high tenacity since only slight, if any, improvements in tenacity results from the addition of one or the other to the viscose under the spinning conditions prescribed herein, as will be observed by the previously set forth comparative examples.

THE PRESENT APPLICATION

19
There is no dispute that the claims now on appeal fully satisfy the requirements of 35 U.S.C. § 112. Appellants have altered the language of their specification so that it now reflects their obvious intent to have the addition of the polyalkylene glycol alone regarded as the principal feature of their invention with the inclusion of the water soluble salt being preferred, but not necessary. For example, the new opening sentence of example 14 (the body of the example is unchanged) now reads:

20
To illustrate the substantially improved results obtained by the use of a polyalkylene glycol alone over the results obtained without the polyalkylene glycol, a 7% cellulose, 6% caustic soda viscose was prepared employing 37% CS2 with .25% Carbowax 4000 being added to the viscose at the time of mixing.

21
However, because of the fact that the parent case had been held limited in its disclosure to the use in the process of a viscose containing both additives and that the rejected claims in the parent case had been held "unduly broad" because of that limited disclosure, the examiner and the board determined that the claims in the present application were not entitled to the date of the parent case. The present claims were therefore rejected on the basis of the disclosure of the intervening patent issued to Howsmon, et al. on subject matter not included in the interference.

OPINION

22
The single issue in the present appeal, as we see it, is simply whether appellants' parent application satisfies the requirements of 35 U.S.C. § 1205 so as to provide a basis for antedating the unquestionably anticipatory disclosure of the Howsmon, et al. patent. We believe that it does.

23
Our review of the complete disclosure of appellants' parent application as outlined supra has satisfied us that the board's rejection in that first case might have had some merit. The claims there rejected do, indeed, appear to have been "unduly broad." However, with the benefit of the enlightenment provided by our recent decisions in this area, it is now clear that those claims, if too broad, were so only in the sense that they encompassed more than appellants' manifestly regarded as their invention. Compare, In re Prater, 415 F.2d 1393, 56 CCPA 1381 (1969); In re Borkowski, 422 F.2d 904, 57 CCPA (1970). As such, they would be in clear contravention of the requirements of the second paragraph of section 112.

24
In this regard, it is imperative to note that section 120 specifies that the previously filed application, the filing date of which is to be accorded to subsequent applications, must disclose the invention "in the manner provided by the first paragraph of section 112." (Emphasis ours). This means only that the invention claimed in the subsequent application must be disclosed in the earlier application "in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same."

25
Considering the disclosure of appellants' parent application in this light, we find that it contains an enabling disclosure of the invention now claimed. Granted, that disclosure indicates that at least the specific narrow invention of claims 9-10 is not a preferred one. Nevertheless, we have no doubt that the disclosure would still teach one having ordinary skill in this art how to make and use the claimed invention. Section 120 of the statute requires nothing more in this respect.

26
From our reading of the original disclosure in the parent case, we find it evident that appellants concluded that while either of the two viscose adjuvants improved the dry strength of the final product, the combination of the two together provided the quantitative enhancement of properties thought necessary to convince the Patent Office of the unobviousness of their contribution. It is also equally obvious, as noted by the solicitor at oral hearing, that the original broad claims were present in the case as a result of an attorney's desire to obtain the broadest possible protection for his client. It later on transpired that appellants had been too restrictive in their judgment of patentable merit. The Patent Office determined that not only the claims reciting both adjuvants but also those reciting polyalkylene glycol alone defined unobvious subject matter. In amending their disclosure to its present form in order to redirect the thrust of its teaching and pressing for allowance of the claims on appeal, appellants were merely attempting to obtain protection for what the Patent Office had already concluded was properly due them. We find this to be perfectly in accord with the provisions of 35 U.S.C. § 120.

27
The decision of the Board of Appeals is reversed.

28
Reversed.

Notes:

1
 Serial No. 463,947, filed June 14, 1965, entitled "Process of Spinning Viscose."

2
 U. S. Patent 3,182,107, issued May 4, 1965, on an application filed December 18, 1956, which in turn was a continuation-in-part of an application filed November 3, 1954

3
 Of course, the industrial process involves several other steps not critical to our understanding of the invention. Of some pertinence here, however, is an ageing step, wherein the viscose "ripens" before it is extruded. Evidently the riper the viscose, the easier it coagulates. A commonly used measure of the degree of ripeness of the viscose is the "salt-point"

4
 Assertions by the solicitor to the contrary notwithstanding, we think it indisputable that these examples teach that the addition of either additive gives some improvement over the properties demonstrated in the example in which nothing was added to the viscose

5
 "An application for patent for an invention disclosed in the manner provided by the first paragraph of section 112 of this title in an application previously filed in the United States by the same inventor shall have the same effect, as to such invention, as though filed on the date of the prior application, if filed before the patenting or abandonment of or termination of proceedings on the first application or on an application similarly entitled to the benefit of the filing date of the first application and if it contains or is amended to contain a specific reference to the earlier filed application."


In the United States Court of Federal Claims
                           OFFICE OF SPECIAL MASTERS

*********************
MARTIN D. CASPER,         *                          No. 14-197V
                          *
              Petitioner, *                          Special Master Moran
                          *
v.                        *                          Filed: July 28, 2015
                          *
SECRETARY OF HEALTH       *                         Stipulation; influenza (“flu”)
AND HUMAN SERVICES,       *                         vaccine; Acute Disseminated
                          *                         Encephalomyelitis (“ADEM”).
              Respondent. *
*********************
Lisa A. Roquemore, Esq., Rancho Santa Margarita, CA, for Petitioner;
Michael Milmoe, United States Dep’t of Justice, Washington, DC, for Respondent.

                              UNPUBLISHED DECISION1

       On July 23, 2015, respondent filed a joint stipulation concerning the petition
for compensation filed by Martin D. Casper on March 10, 2014. In his petition,
Mr. Casper alleged that the influenza (“flu”) vaccine, which is contained in the
Vaccine Injury Table (the “Table”), 42 C.F.R. §100.3(a), and which he received on
or about October 19, 2012, caused him to suffer Acute Disseminated
Encephalomyelitis (“ADEM”). Petitioner further alleges that he suffered the
residual effects of this injury for more than six months. Petitioner represent that
there has been no prior award or settlement of a civil action for damages on his
behalf as a result of his condition.

      Respondent denies that the flu vaccine caused petitioner’s alleged ADEM or
any other injury and further denies that his current disabilities are a sequela of a
vaccine-related injury.

       1
         The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this decision on its website. Pursuant to Vaccine Rule 18(b),
the party has 14 days to file a motion proposing redaction of medical information or other
information described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special
master will appear in the document posted on the website.
      Nevertheless, the parties agree to the joint stipulation, attached hereto as
“Appendix A.” The undersigned finds said stipulation reasonable and adopts it as
the decision of the Court in awarding damages, on the terms set forth therein.

        Damages awarded in that stipulation include:

        A lump sum of $200,000.00 in the form of a check payable to petitioner,
        Martin D. Casper. This amount represents compensation for all
        damages that would be available under 42 U.S.C. § 300aa-15(a).

       In the absence of a motion for review filed pursuant to RCFC, Appendix B,
the clerk is directed to enter judgment in case 14-197V according to this decision
and the attached stipulation.2

        Any questions may be directed to my law clerk, Mary Holmes, at (202) 357-
6360.

        IT IS SO ORDERED.

                                                     s/Christian J. Moran
                                                     Christian J. Moran
                                                     Special Master

        2
          Pursuant to Vaccine Rule 11(a), the parties can expedite entry of judgment by each
party filing a notice renouncing the right to seek review by a United States Court of Federal
Claims judge.
                                                2
Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 1 of 5
Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 2 of 5
Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 3 of 5
Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 4 of 5
Case 1:14-vv-00197-UNJ Document 35 Filed 07/23/15 Page 5 of 5


968 F.2d 1047
UNITED STATES of America, Plaintiff-Appellee,v.Robert Sain McHENRY, Defendant-Appellant.
No. 91-4190.
United States Court of Appeals,Tenth Circuit.
July 6, 1992.

David J. Jordan, U.S. Atty., and Wayne T. Dance, Asst. U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.
Michael W. Jaenish, Salt Lake City, Utah, for defendant-appellant.
Before SEYMOUR, ANDERSON, and BALDOCK, Circuit Judges.
BALDOCK, Circuit Judge.

1
Defendant-Appellant Robert Sain McHenry appeals the sentence imposed on him by the district court, arguing that when the court reduced his criminal history category from category VI to category I, it should also have reduced his offense level accordingly.   Because we conclude we lack appellate jurisdiction, this case is dismissed.

2
In July 1990, Defendant pled guilty to possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1).   As part of the plea, defendant acknowledged two prior felony drug convictions in Florida in 1981 and 1984.   The district court determined that defendant was a career offender pursuant to U.S.S.G. § 4B1.1 and set his offense level at 35.   It further concluded that defendant's criminal history category was VI.   Defendant was sentenced to 292 months in prison followed by eight years supervised release.

3
Defendant appealed that sentence.   Because it was unclear from the record whether the district court understood it had discretion to depart downward in defendant's criminal history category, this court vacated the sentence and remanded the case.  United States v. McHenry, 936 F.2d 584 (10th Cir.1991) (Westlaw).   Upon remand, the district court reduced defendant's criminal history category from category VI to category I and sentenced him to 168 months imprisonment followed by an eight-year term of supervised release.   Defendant now argues in this appeal that when it reduced his criminal history category from category VI to category I, the district court should likewise have reduced his base offense level from 35 to 26.

4
It is established law in this circuit, and in every circuit which has considered the jurisdictional issue, that an appellate court does not have jurisdiction to review a district court's discretionary refusal to depart downward from the sentencing guidelines.  United States v. Soto, 918 F.2d 882, 883 & n. 2 (10th Cir.1990) (citing cases);  see also United States v. Fox, 943 F.2d 1218, 1218 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 218, 116 L.Ed.2d 176 (1991);  United States v. Bromberg, 933 F.2d 895, 896 (10th Cir.1991);  United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 206, 112 L.Ed.2d 166 (1990);  United States v. Richardson, 901 F.2d 867, 870 (10th Cir.1990) (citing cases);  United States v. Davis, 900 F.2d 1524, 1528-30 (10th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 155, 112 L.Ed.2d 121 (1990).

5
Casting departure-related decisions as misapplications of the guidelines will not cure this jurisdictional defect.  Bromberg, 933 F.2d at 896.

6
[I]f we were to interpret section 3742(a)(2) to allow appeals for departure-related decisions as incorrect applications of the guidelines, we would render section 3743(a)(3) redundant.   Because Congress could not have intended such a specific provision to be mere surplusage, we conclude that Congress did not intend for departure-related decisions, including refusals to depart, to be appealable under section 3742(a)(2).

7
Davis, 900 F.2d at 1529 (quoting United States v. Franz, 886 F.2d 973, 978 (7th Cir.1989));  see also United States v. Hazel, 928 F.2d 420, 423 (D.C.Cir.1991).

8
Defendant here does not complain that the district court failed to depart from the guidelines but that the scope of the departure was inadequate.   Neither a failure to depart, nor the extent of the departure when one occurs, confers jurisdiction on this court.  Bromberg, 933 F.2d at 896;  see also Hazel, 928 F.2d at 424.

9
Defendant argues that we should apply the analysis outlined by this court in United States v. White, 893 F.2d 276 (10th Cir.1990).  White, however, involved a defendant's challenge to an upward departure by the sentencing court and thus did not present the jurisdictional problem present here.

10
We hold we lack jurisdiction to hear defendant's claim under 18 U.S.C. § 3742.   This appeal is therefore DISMISSED.


785 F.2d 317
Russellv.Victor Valley Joint Union High School Dist.
83-6327
United States Court of Appeals,Ninth Circuit.
1/24/86

1
C.D.Cal.

AFFIRMED


TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00046-CV

Lori L. Legere, Appellant

v.

David Legere, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-03-007363, HONORABLE RHONDA HURLEY, JUDGE PRESIDING

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

		Appellant Lori L. Legere appeals from a district court order denying her claims for
child support and discovery sanctions against her ex-husband, appellee David Legere, and awarding
David attorney's fees against her. (1)  We will affirm the district court's order.

FACTUAL AND PROCEDURAL BACKGROUND
		Lori and David had a minor child of their marriage.  When they divorced in 2003,
Lori was appointed sole managing conservator with the exclusive right to designate the child's
residence, and David was appointed possessory conservator and ordered to pay child support.  In
July 2007, after Lori filed a motion to increase David's monthly child-support obligation, she and
David entered into an agreed order that, among other things, set David's child-support obligation
at $900 per month through July 2008.  Thereafter, the agreed order required that David was to submit
information regarding his monthly income each July and that his child-support obligation would
equal 20% of his monthly income unless he failed to submit the required information, in which case
his monthly obligation would default to $1,030 per month. (2)
		David later filed suit to modify his child-support obligation, seeking to reduce
his monthly payment on the basis that he had recently lost his job.  During the pendency of
the proceeding, the district court issued two temporary orders that changed the amount of
David's child-support obligation.  The first, signed in March 2009, retroactively reduced David's
April and May 2008 payments from $900 to $259.73, set his August 2008 through January 2009
payments at $600 per month and his payments thereafter--i.e., beginning February 2009--at
$259.73 per month.  The district court also found that David was in arrears on his child-support
payments in the amount of $719.46 and ordered him to pay Lori this amount.  The second temporary
order, signed in October 2009, changed David's monthly support payments to $600 per month
beginning, retroactively, August 1, 2009.  This order also required David to pay $620 in back
payments to Lori by October 30, 2009.
		In September 2010, Lori served David with discovery requests and, after he failed to
respond to those requests, filed a motion to compel, further requesting sanctions and attorney's fees.
Shortly before the hearing on Lori's motion to compel, David nonsuited his modification claim. 		A few months later, Lori filed a "Motion to Confirm Child Support Arrearage,"
asserting that David's failure to pay his $900 monthly child-support obligation as required under the
terms of the 2007 agreed order had left him in arrears in the amount of $9,861.62 for the period
between February 2, 2009, and December 31, 2010.  A hearing was held, and the district court's
subsequent order reflects that the parties presented evidence and that a court reporter was present.
Following the hearing, the district court issued an order stating that--

	"[N]o child support arrearage exists and David Legere's current child support
balance is $0.00 (zero dollars)";

	"David Legere's child support obligation should continue pursuant to the
July 20, 2007 Order of the Court[] at the rate of $900 per month";

	"Lori Legere's request for sanctions and attorney's fees is DENIED and any
and all claims by Lori Legere are DISMISSED"; and

	Lori Legere must pay David's attorney's fees in the amount of $2,500.

The district court subsequently made findings of fact and conclusions of law that essentially
restate the contents of its order.  It is from this order that Lori now appeals.

ANALYSIS
		Lori challenges the district court's order in four issues.  First, she complains that the
district court's holding that David owed her no child-support arrearage was predicated, in her view,
on the March and October 2009 temporary orders.  This was error, she asserts, because those
temporary orders had been voided by David's nonsuit.  In her third issue, Lori challenges what she
perceives as the district court's dismissal or denial of her request for discovery sanctions and
attorney's fees merely because, in her view, David had nonsuited his case.  In her second issue, Lori
challenges the sufficiency of the evidence supporting the district court's holding that David's future
monthly child-support obligation was $900 under the 2007 agreed order.  Specifically, she argues
that the evidence was insufficient to support a finding that David had provided the required salary
information, such that his obligation should have defaulted to $1,030 per month.  In her fourth and
final issue, Lori asserts that the evidence was insufficient to support the district court's attorney's
fee award against her
		At the outset, we note that Lori has not requested or obtained a reporter's record
from the hearing on her motion to confirm an arrearage.  The district court's order states that it heard
evidence at this hearing, and there is nothing in the record to the contrary.  Lori does not deny that
the district court heard evidence, either, although she asserts that "there was no hearing conducted
in which a court reporter was present."  (Emphasis added.)  However, the district court's order
explicitly states that a court reporter was, in fact, present to record the proceedings (as would be
required unless excused by agreement of the parties, see Tex. R. App. P. 13.1) and, in any event, Lori
has not preserved error with respect to any complaint that the hearing went forward without a
court reporter present.  See id. R. 33.1.  Consequently, we may not presume that the hearing was non-evidentiary, and Lori had the burden of requesting and bringing forward a reporter's record from
that hearing in support of her appeal.  See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d
777, 783 (Tex. 2005) (holding that appellate court may presume that "pretrial hearings are
nonevidentiary absent a specific indication or assertion to the contrary," but "[i]f the proceeding's
nature, the trial court's order, the party's briefs, or other indications show that an evidentiary hearing
took place in open court, then a complaining party must present a record of that hearing to establish
harmful error") (citing Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992))).  Lori's failure to do
so requires us to presume that the omitted evidence supports the district court's ruling.  See
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex. 1990); Bailey v. Gallagher, 348 S.W.3d
322, 325 (Tex. App.--Dallas 2011, pet. denied); Thomas v. Thomas, 902 S.W.2d 621, 626
(Tex. App.--Austin 1995, writ denied).  This presumption is ultimately fatal to Lori's issues
on appeal.
		Lori's first issue, as noted, presumes that the district court relied on the March and
October 2009 temporary orders in determining the amount of child support David owed.  Relying
on these temporary orders was erroneous, she argues, because the effect of David's nonsuit was to
place the parties in the same position they were in before he filed his suit--i.e., before any of the
temporary orders that modified his child-support obligations.  See Crofts v. Court of Civil Appeals,
362 S.W.2d 101, 104 (Tex. 1962) (noting that nonsuit "places the parties in the position that they
were in before the court's jurisdiction was invoked just as if the suit had never been brought");
Hagberg v. City of Pasadena, 224 S.W.3d 477, 484 (Tex. App.--Houston [1st Dist.] 2007, no pet.)
("When a party nonsuits a legal action, the parties are put back in the same positions as before
the filing of the suit." (citing id.)).  But the district court's order does not purport to rely on
the temporary orders in finding that there was no arrearage; to the contrary, it simply states
that "no child support arrearage exists."  And while the district court prepared findings of fact
and conclusions of law, these do not further illuminate the bases for the court's order, and do not
mention the temporary orders.  Lori does not complain of, and has not preserved error concerning,
any omitted or additional findings.  For these reasons, the substance of Lori's first issue reduces to
a question of whether there was sufficient evidence to support the district court's finding that
no arrearage existed.  Given the lack of a reporter's record, we must presume that the evidence
supported the finding--i.e., that there was evidence that David had paid whatever child support
he had legally owed.  See DeSantis, 793 S.W.2d at 689; Bailey, 348 S.W.3d at 325; Thomas,
902 S.W.2d at 626.  We overrule Lori's first issue.
		We must overrule Lori's third issue for similar reasons.  Lori asserts in her third issue
that the district court improperly relied on David's nonsuit to deny her motion for sanctions.
Specifically, she argues that the district court's decision to deny her motion violated rule 162's
provision that nonsuits "have no effect on any motions for sanctions . . . pending at the time of
the [nonsuit]."  See Tex. R. Civ. P. 162.  But this argument again incorrectly assumes that the
district court relied on David's nonsuit to deny this motion.  The order, however, merely denies
Lori's request for sanctions and attorney's fees without explanation.  It does not purport to rely on
David's nonsuit and, significantly, there are any number of bases on which the district court could
have relied to deny this motion.  See id. R. 215.1 (setting forth bases for discovery sanctions).  Nor
do the court's findings and conclusions indicate that it relied on David's nonsuit in denying Lori
relief.  Thus again, the substance of Lori's issue reduces to a question of evidentiary sufficiency and,
given the lack of a complete record, we must presume that the evidence in the omitted record
supports at least one basis for denying Lori's motion.  See DeSantis, 793 S.W.2d at 689; Bailey,
348 S.W.3d at 325; Thomas, 902 S.W.2d at 626.  Accordingly, we overrule Lori's third issue.
		The absence of a reporter's record likewise controls our disposition of Lori's
remaining issues, both of which challenge the sufficiency of the evidence supporting factual
determinations by the district court.  In her second issue, Lori asserts that the district court's finding
that David's future child-support payments were to be $900 per month under the 2007 agreed order
is erroneous because the "record is legally and factually insufficient" to support a finding that David
provided the appropriate financial documents required by the 2007 agreed order.  (Emphasis added.)
But there is no evidentiary record here and, as a result, we must presume that evidence in the missing
record supports not only the finding that David provided the required financial information, but
also any other finding that would support the district court's child-support determinations. (3) See
DeSantis, 793 S.W.2d at 689; Bailey, 348 S.W.3d at 325; Thomas, 902 S.W.2d at 626.  Likewise,
and for the same reasons, we reject Lori's fourth issue on appeal that the evidence was insufficient
to support the district court's award of attorney's fees.  Accordingly, we overrule Lori's second and
fourth issues.

CONCLUSION
		Having overruled each of Lori's issues, we affirm the district court's judgment.

						__________________________________________
						Bob Pemberton, Justice
Before Justices Puryear, Pemberton and Henson
Affirmed
Filed:   August 29, 2012
1.   Because the parties share a common surname, we will refer to them by their first names
for clarity.
2.   The relevant portion of the 2007 agreed order reads as follows:

		IT IS ORDERED that David Legere is obligated to pay and shall pay to Lori
L. Legere child support of $900.00 per month, with the first payment being due and
payable on August 1, 2007 and a like payment being due and payable on the first day
of each month thereafter until July 31, 2008.

		IT IS ORDERED that David Legere shall send a copy of a current paystub
showing his year-to-date income to [Lori's attorney] on or about July 1, 2008.
[Lori's attorney] shall, using the Attorney General child support charts, calculate 20%
of David Legere's net income to determine the new child support amount to begin
on August 1, 2008.  If David Legere fails to send such paystub to [Lori's attorney]
in July 2008, David Legere is ORDERED to pay and shall pay to Lori L. Legere child
support of $1030.00 per month, with the first payment being due and payable on
August 1, 2008 and a like payment being due and payable on the first day of each
month thereafter . . . .  If David Legere sends the paystub as ordered, [Lori's attorney]
shall calculate the appropriate child support amount as set forth above and shall send
such calculation to David Legere.  In such case, David Legere is ORDERED to pay
and shall pay to Lori L. Legere child support the new amount of child support . . . .
3.   We also note that Lori asserted in her arrearage motion that $900 per month in child
support was the correct "amount and frequency of obligation" as of the date of the motion.  To that
extent, the district court's finding here comports with her own pleadings.


                                                      STATE OF WEST VIRGINIA
                                                    SUPREME COURT OF APPEALS

                                                                                FILED
In re T.M. and K.M.                                                             November 21, 2018
                                                                                EDYTHE NASH GAISER, CLERK
No. 18-0537 (Cabell County 17-JA-272 and 17-JA-273)                              SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA

                                                          MEMORANDUM DECISION
         Petitioner Mother E.M., by counsel Steven M. Wright, appeals the Circuit Court of
Cabell County’s May 7, 2018, order terminating her parental rights to T.M. and K.M.1 The West
Virginia Department of Health and Human Resources (“DHHR”), by counsel Mindy M. Parsley,
filed a response in support of the circuit court’s order and a supplemental appendix. The guardian
ad litem (“guardian”), Allison K. Huson, filed a response on behalf of the children in support of
the circuit court’s order. On appeal, petitioner argues that the circuit court erred in terminating
her parental rights on the sole basis of her incarceration.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         In October of 2017, the DHHR filed a petition alleging that petitioner was incarcerated
and her children were without a suitable caretaker. The DHHR alleged that the children were
initially placed with their grandmother, however the grandmother failed a drug screen and the
DHHR moved to take custody of the children. The DHHR further alleged that petitioner
neglected her children by engaging in criminal behavior and that her abuse of controlled
substances negatively affected her ability to care for the children. Petitioner waived her
preliminary hearing.

       The circuit court held an adjudicatory hearing in December of 2017 and, upon testimony
and representations of counsel, found that petitioner neglected her children through her substance
abuse and her failure to support the children emotionally and financially. The circuit court

              1
         Consistent with our long-standing practice in cases with sensitive facts, we use initials
where necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va.
254, 773 S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013);
State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183
W.Va. 641, 398 S.E.2d 123 (1990).

                                                                   1

further adjudicated petitioner as an abusing parent based on her illegal substance abuse and
incarceration. The circuit court set the case for a dispositional hearing.

         At the dispositional hearing in February of 2018, the circuit court heard testimony from
the DHHR in support of termination of petitioner’s parental rights. According to a DHHR
worker, petitioner was incarcerated for third-offense shoplifting and given an indeterminate
sentence of one to three years. The DHHR worker testified that petitioner was unable to
participate in services to rectify her substance abuse as a result of her incarceration. On cross-
examination, petitioner’s counsel asked whether the DHHR would reconsider if petitioner was
accepted into an accelerated parole program. The worker agreed that petitioner would have more
time to comply with services if released early; however there was no indication that petitioner
had been accepted to that program. To the best of that worker’s knowledge, petitioner would not
be eligible for parole until July of 2018. The worker further explained the children had no
appropriate family members for placement or temporary guardianship. Finally, the worker
testified that termination of petitioner’s parental rights was appropriate based on the children’s
age, petitioner’s criminal history and prior incarcerations, and the lack of other appropriate care
givers. Petitioner did not testify.

        Ultimately, the circuit court found that petitioner had a serious substance abuse issue
before incarceration and was unable to participate in a case plan to rectify that issue. As a result,
the circuit court found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected in the near future and that termination was in the best
interest of the children. Accordingly, the circuit court terminated petitioner’s parental rights in its
May 7, 2018, order. Petitioner now appeals that order.2

              The Court has previously established the following standard of review:

                      “Although conclusions of law reached by a circuit court are subject to de
              novo review, when an action, such as an abuse and neglect case, is tried upon the
              facts without a jury, the circuit court shall make a determination based upon the
              evidence and shall make findings of fact and conclusions of law as to whether
              such child is abused or neglected. These findings shall not be set aside by a
              reviewing court unless clearly erroneous. A finding is clearly erroneous when,
              although there is evidence to support the finding, the reviewing court on the entire
              evidence is left with the definite and firm conviction that a mistake has been
              committed. However, a reviewing court may not overturn a finding simply
              because it would have decided the case differently, and it must affirm a finding if
              the circuit court’s account of the evidence is plausible in light of the record
              viewed in its entirety.” Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223,
              470 S.E.2d 177 (1996).

              2
         The children’s respective fathers’ parental rights were also terminated below. According
to the parties, the permanency plan for the children is adoption in their current foster placement.

                                                               2

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). Upon our review, this Court
finds no error in the proceedings below.

        On appeal, petitioner argues that the circuit court erred in terminating her parental rights
on the sole basis of her incarceration. According to petitioner, the circuit court considered only
the fact that she was incarcerated and violated this Court’s prior holdings in doing so. Although
we acknowledge that the circuit court considered petitioner’s incarceration as a factor for
termination of her parental rights, we disagree with petitioner that it was the only factor that the
circuit court considered.

        It is clear from the record that both petitioner’s substance abuse and her incarceration
were primary concerns of the circuit court. Although petitioner attempts to disregard the circuit
court’s consideration of petitioner’s substance abuse as “lip service,” the evidence presented
showed that the circuit court found petitioner abused controlled substances and she took no steps
to remedy that issue. Additionally, petitioner was convicted of her third shoplifting offense and
the DHHR initially alleged that petitioner previously needed child care due to her incarceration.
This indicates a pattern of criminal behavior that previously required another individual to care
for the children. This is especially concerning given that the person chosen to care for the
children by petitioner at the outset of this case tested positive for controlled substances. Finally,
the DHHR worker testified that petitioner needed to remedy multiple issues, including her
substance abuse, housing, and mental health treatment, before she could adequately take care of
the children. Yet, petitioner’s incarceration limited her opportunity to improve in those areas.

        Petitioner also argues that West Virginia Code § 49-4-604(b)(6) did not require that the
circuit court terminate her parental rights. West Virginia Code § 49-4-604(b)(6) provides that a
circuit court may terminate parental rights upon findings that “there is no reasonable likelihood
that the conditions of neglect or abuse can be substantially corrected in the near future” and that
termination is necessary for the welfare of the children. Additionally, West Virginia Code § 49-
4-604(c)(3) provides that no reasonable likelihood that the conditions of neglect or abuse can be
substantially corrected exist when the “abusing parent . . . [has] not responded to or followed
through with a reasonable family case plan or other rehabilitative efforts[.]”

        As mentioned above, the circuit court found that petitioner’s parenting was neglectful in
multiple areas. Further, the record shows that petitioner needed to participate in some
intervention in order to remedy those issues. Petitioner argues that she was not given an
opportunity to remedy those issues and would have access to residential substance abuse
treatment while she is incarcerated. However, we note that petitioner did not move for an
improvement period at any time throughout the proceedings nor did she actually pursue those
services while in prison in order to remedy the issues. The record is devoid of any evidence that
petitioner attended or planned to attend any services to better her parenting. Although
petitioner’s incarceration limited the DHHR’s ability to provide services, petitioner offered no
evidence that she availed herself of the services that were available to her. Therefore, the circuit
court correctly found that there was no reasonable likelihood that the conditions of abuse and
neglect could be substantially corrected.

                                                 3

        Additionally, termination of petitioner’s parental rights was in the best interests of the
children and necessary for their wellbeing. As mentioned above, petitioner’s pattern of criminal
behavior previously required a second party to care for the children. Additionally, the children
were placed with a substance abuser as a result of petitioner’s choice of care takers before the
filing of this petition. Further continuation in petitioner’s custody would likely lead to the same
exercise in poor judgement without some intervention through services. Finally, we have
previously held that

               “[C]ourts are not required to exhaust every speculative possibility of
       parental improvement . . . where it appears that the welfare of the child will be
       seriously threatened, and this is particularly applicable to children under the age
       of three years who are more susceptible to illness, need consistent close
       interaction with fully committed adults, and are likely to have their emotional and
       physical development retarded by numerous placements.” Syl. Pt. 1, in part, In re
       R.J.M., 164 W.Va. 496, 266 S.E.2d 114 (1980).

Syl. Pt. 4, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011). In this case, K.M. and T.M. are
young children who have already been subject to multiple placements as a result of petitioner’s
criminal activity. Accordingly, we find no error in the circuit court’s termination of petitioner’s
parental rights.

       For the foregoing reasons, we find no error in the decision of the circuit court, and its
May 7, 2018, order is hereby affirmed.

                                                                                Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment

DISSENTING:

Justice Elizabeth D. Walker

                                                4