311 A.2d 873 (1973)
Leon I. JOHNSON, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
October 4, 1973.
Richard Allen Paul and Paul M. Lukoff, Asst. Public Defenders, and Donald W. Huntley, Wilmington, of counsel, for defendant below, appellant.
Richard R. Wier, Jr., State Prosecutor, for plaintiff below, appellee.
*874 HERRMANN, C. J., and CAREY and DUFFY, JJ., sitting.
DUFFY, Justice:
Defendant was found guilty of murder in the second degree and sentenced to imprisonment for life. On this appeal he seeks reversal on four separate grounds which are considered seriatim.

I
The principal witness against the defendant was his former wife, who was in an apartment with the victim at the time of the shooting. Several times during the trial she became emotionally upset while testifying and on each occasion the Trial Judge ordered a recess so that she had an opportunity to regain control of herself. Defendant argues that his motion for mistrial should have been granted because the witness was "continually hysterical", thus denying him due process in that her emotional display rendered it impossible for the jury to return an impartial verdict.
The record does not provide factual support for that conclusion; it shows, rather, that there were three separate interruptions of the witness' testimony, all during direct examination; it is undisputed that they lasted a total of no more than twenty minutes (in a five-day trial). The rulings by the Trial Judge indicate a reasonable concern for the witness in light of his responsibility to provide a fair trial for defendant. The rulings were well within the Court's discretion. Further, we note that the interruptions of which defendant complains did not occur during cross-examination nor was that in any way limited by the emotional condition of the witness.

II
Defendant's former wife had also testified against him in the Municipal Court in another proceeding. In the trial of this case, defendant offered the testimony of the lawyer who represented him in the Municipal Court for the purpose of showing whether "her means of identification indicated to him [the attorney] any bias or prejudice" which she had against defendant. Defendant's offer was to have the attorney give his opinion based on the testimony of the witness in the Municipal Court. The Superior Court quite properly rejected the offer of the attorney's opinion. State v. Freeman, 245 La. 665, 160 So.2d 571 (1964); Hendrix v. State, 200 Md. 380, 90 A.2d 186 (1952); 31 Am.Jur.2d, Expert and Opinion Evidence §§ 161, 162.

III
During cross-examination a defense witness testified about prior arrests of defendant and he argues that he was thereby irreparably prejudiced. With limited exceptions, the State may not show a defendant's prior trouble with the law, specific criminal acts or ill name among his neighbors. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). We have examined the testimony of which defendant complains and we conclude that it does not come within the Michelson rule. The statements were not elicited by the prosecution, they were volunteered by the witness and singly and cumulatively they were harmless. In any event, any error was cured by the careful cautionary instructions given to the jury by the Court during the course of trial.

IV
Defendant argues that the Trial Judge erred in permitting a juror to serve after it was established that the juror knew one of the witnesses for the prosecution. When it was called to the attention of the Court that a juror was acquainted with the key witness for the State, the Trial Judge conducted an inquiry into possible bias of the juror, during which it was revealed that the witness and the juror had attended the same high school some eight or ten years ago. There had been no close social contact then and no contact of any kind since then.
The decision as to whether to excuse a juror is within the sound discretion of the Trial Court. Howard v. State, Del. Supr., 303 A.2d 653 (1973); Dumire v. *875 State, Del.Supr., 278 A.2d 836 (1971). We have examined the transcript and we conclude that there was no abuse of discretion by the Trial Judge.

V
In its brief the State asks this Court to make rulings with respect to appropriate jury instructions on alibi and prior statements made by a defendant to the police. We decline to do so. In Henry v. State, Del.Supr., 298 A.2d 327 (1972), we approved (on the State's application) a jury instruction (on circumstantial evidence) which was not directly involved in the appeal; but there the instruction was actually given by the Trial Court. Here, the State asks for a ruling on instructions which were requested but not given and the difference is important and determinative. We decline to make the requested ruling.

* * *
The judgment of the Superior Court is affirmed.


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 95-2301

RONNIE L. WHITLEY,

                                            Plaintiff - Appellant,

          versus

BLACK & DECKER (U.S.) INCORPORATED,

                                              Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle, District
Judge. (CA-95-23-5-BO(2))

Submitted:   December 19, 1995            Decided:   April 12, 1996

Before WILKINSON, Chief Judge, WILKINS, Circuit Judge, and BUTZNER,
Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Ronnie L. Whitley, Appellant Pro Se. Laura Broughton Russell,
POYNER & SPRUILL, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals from the district court's order dismissing

this employment discrimination action for insufficiency of process,

insufficiency of service of process, and lack of jurisdiction. We

have reviewed the record and the district court's opinion and find

no abuse of discretion and no reversible error. See Despain v. Salt
Lake Area Metro Gang Unit, 13 F.3d 1436, 1439 (10th Cir. 1994).

Accordingly, although we decline to address whether the complaint

was filed within the limitations period, we affirm the dismissal of

this action for failure to effect service upon the Defendant. 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

                                2


65 F.3d 174
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.Juanito GUINTU, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 94-70451.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Aug. 7, 1995.Decided Aug. 24, 1995.

Before:  HALL, WIGGINS and KLEINFELD, Circuit Judges.

1
MEMORANDUM*

2
Juanito Guintu appeals the BIA's reversal of the Immigration Judge's decision to grant Mr. Guintu a discretionary waiver of deportation under 8 U.S.C. Sec. 1251(f).  Because there was no substantial evidence of fraud presented, separable from the fraudulent use of a false name and papers when Mr. Guintu entered the country initially, there was no substantial evidence on the record as a whole that could justify the BIA's decision under controlling precedent in this circuit.

3
In 1979, when he was about nineteen, Mr. Guintu paid about $1000 U.S. dollars for false papers to get in to the United States.  The papers he obtained were in the name of Cecilio Riodil.  In order to perpetuate the disguise used to gain entry to the United States, Mr. Guintu continued to use the name Riodil.  He used the name Riodil when he applied in 1983 for a new alien registration card from the INS, in 1983, 1984 and 1985, when applying for the Alaska Permanent Fund Dividend, and on his federal income tax forms.  When Mr. Guintu's wife became pregnant with their son, they wanted their son to have his true name, so they divorced and remarried under Mr. Guintu's true name.  The divorce was a clumsy means of accomplishing a name change;  the marriage remained intact.  Now at age 34, Mr. Guintu faces deportation because his attempt to begin using his true name again, on a petition for naturalization in the name Guintu, exposed his use of a false name when he entered this country years ago.

4
Our decisions in four cases require that in exercising its discretion whether to waive deportation under 8 U.S.C. Sec. 1251(f), the initial fraud on entry, and fraud arising from that initial fraud, must be disregarded.  The initial fraud and its interwoven sequelae make the alien deportable, but under our precedents are not among the equities to be weighed in deciding whether to deport a deportable alien who is in a category for which waiver is allowed.  In Delmundo v. INS, 43 F.3d 436 (9th Cir.1994), we held that the alien's obtaining a driver's license, social security card and voter registration card in a false name all "arise from her initial fraud in establishing a false identity when she first entered the country," id. at 441, so could not be held against her on the waiver of deportation issue.  In Braun v. INS, 992 F.2d 1016 (9th Cir.1993), we reversed a denial of waiver of deportation, because the subsequent fraud "boils down to nothing more than his fraudulent entry," id. at 1021, which could not be considered as an adverse factor in a waiver of deportation proceeding.  In Yang v. INS, --- F.3d ---- (9th Cir.1995), the subsequent frauds were "inextricably intertwined" with the initial fraudulent entry, so we held that the subsequent frauds could not properly be considered.  In Alquisalas v. INS, --- F.3d ---- (9th Cir.1995), we concluded that without en banc reconsideration, we were bound by Delmundo, Braun, and Yang to reverse the INS decision where frauds not separable from the initial entry fraud were considered by the BIA.

5
The only act arguably separate from the fraud at the time of initial entry which the BIA considered was Mr. Guintu's applications, in 1984-1986, for Alaska Permanent Fund dividends.  This program distributed to all residents of Alaska, even felons in prison, pro rata shares of the earnings thrown off by savings from royalties on oil extracted from Alaska state lands.  This was not a welfare program or a program limited to a class of residents.  The statute provided for distribution of the money to any "state resident" who was "physically present" in Alaska for at least 24 months.  AS 43.23.005(a)(1), (2).

6
The BIA decision says that Mr. Guintu obtained his permanent fund dividends by falsely representing that he was a resident alien.

7
Although his two fraudulent entries would be waived by a 241(f) waiver, he engaged in an additional 7-year period of fraud which would preclude such a grant in the exercise of discretion.  He continued to use a fraudulent identity for almost 7 years, obtaining state funds to which he was not entitled in that name by falsely stating that he was a resident alien, and entering into a marriage in that name.

8
The evidence in the record does not support this characterization.  The Alaska permanent fund application form did not ask whether the applicant was a legal resident alien.  It says that to be eligible, "you must be present in the state and intend to remain permanently."   Mr. Guintu certified under penalty of perjury that he was and intended to remain an Alaska resident under this definition.  His physical presence in Alaska, and his intention and desire to remain in Alaska permanently, have not been put at issue.

9
The only material on the form which furnishes any basis for the BIA's characterization of fraud is that the "adult's status" box on the form includes a line, which Mr. Guintu checked, saying that he was an "Alaska resident alien" and giving his alien registration number.  Mr. Guintu was in fact an Alaska resident alien, but under the false name of Riodil.  The state administrative agency in charge of permanent fund enforcement had issued a regulation that "[a]n alien with resident alien status ... is eligible to receive a permanent fund dividend."  15 AAC 23.615(d).  The Alaska Supreme Court held, one judge dissenting, some years after Mr. Guintu obtained his permanent fund dividends, that the regulation was consistent with the statute.  State Dept. Revenue v. Cosio, 858 P.2d 621 (Alaska 1993).

10
We conclude that Mr. Guintu's application for the permanent fund dividends could not properly be treated as a separable fraud, for two reasons.  First, he did not demonstrably commit any fraud by applying.  The application form which he signed defined him as an Alaska resident, and the permanent fund awarded dividends to all persons physically present in the state, much as a dividend on corporate stock goes to all shareholders regardless of their legal status in other respects.  Second, the only fraudulent aspect of his application for a permanent fund dividend was his continued use of the false identity he had assumed on his initial entry into the United States.

11
Without considering Mr. Guintu's continued use of the false name of Riodil, and without considering Mr. Guintu's permanent fund applications as separable fraudulent conduct, there was no evidence whatsoever which could be properly weighed against Mr. Guintu's equities in considering discretionary relief from deportation.  Congress provided for discretionary waiver of deportation despite willful fraudulent entry, at 8 U.S.C. Sec. 1251(f).  It is hard to imagine a case more likely to be what Congress had in mind than a person who has married, had a child, worked productively in a restaurant, paid taxes, avoided any criminal involvement, bought a house, and lived an upstanding life as an American for sixteen years after his entry, with no subsequent fraud separable from his use of false papers to gain entry.  On this record, denial of waiver was an abuse of discretion.  Under Braun, 992 F.2d at 1021, the BIA determination is therefore reversed, and the case is remanded with direction to grant the waiver.

12
REVERSED.

*
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD

     CYNTHIA A. METIVIER,                            DOCKET NUMBER
                   Appellant,                        CH-0351-14-0772-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: December 21, 2016
                 Agency.

             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Cynthia A. Metivier, Esquire, Woodbury, Minnesota, pro se.

           Gavin M. Frost, Esquire, and Deborah S. Charette, Esquire, Washington,
             D.C., for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s action separating her by reduction in force (RIF).
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                               2

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review.     Therefore, we DENY the petition for review and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         The agency separated the appellant by RIF from her GS-0905-15
     Attorney‑Advisor position with the agency’s Office of Hearings and Appeals
     (OHA), White Earth Land Settlement Act (WELSA) Hearings Division, in
     Minneapolis (Bloomington), Minnesota. Initial Appeal File (IAF), Tab 7 at 17,
     35-37, 77, 92‑94, 112-13. On appeal to the Board, the appellant asserted that the
     agency abolished her position based on reasons personal to her, misinformed her
     about her eligibility to participate in the Career Transition Assistance Plan, failed
     to select her for a different position, included her position in the wrong
     competitive area, incorrectly calculated her service computation date, and took
     numerous actions against her other than her separation by RIF in reprisal for
     whistleblowing. IAF, Tab 20 at 2, 4-6. She also claimed that her separation was
     based on sex discrimination, reprisal for whistleblowing, and retaliation for filing
     grievances and equal employment opportunity (EEO) complaints. Id. at 11-14.
¶3         After a hearing, the administrative judge affirmed the agency’s action. IAF,
     Tab 43, Initial Decision (ID) at 1, 37. The administrative judge found that the
     agency proved by preponderant evidence that the RIF was taken for a legitimate
                                                                               3

     reason, namely, a reorganization arising from budget constraints due to
     sequestration; properly applied RIF regulations in abolishing the appellant’s
     position because the agency no longer required an Attorney-Advisor to work
     exclusively on WELSA cases; proved that it properly separated the appellant
     based on her retention standing, competitive area, and service computation date;
     and did not mislead her about her eligibility to participate in career transition
     assistance programs. ID at 7-15. The administrative judge also found that the
     appellant did not prove her claims of discrimination based on sex and EEO
     activity, retaliation for filing grievances, and reprisal for whistleblowing .   ID
     at 15-36. The administrative judge noted that the appellant did not exhaust her
     administrative remedy before the Office of Special Counsel (OSC) and therefore
     abandoned her possible claims in an individual right of action (IRA) appeal
     involving her reassignment, significant change in duties and working conditions,
     performance rating, and suspensions. ID at 28 n.13.
¶4        The appellant asserts on review that the administrative judge improperly
     failed to consider her motion for sanctions against the agency for misconduct,
     including the agency’s attempts to coerce and retaliate against her witnesses.
     Petition for Review (PFR) File, Tab 1 at 8. The appellant contends that witness
     P.H. overheard the agency’s representative shouting at the appellant before her
     testimony, which made P.H. uncomfortable, and that P.H., her supervisor, and the
     agency’s representative discussed issues without the appellant’s knowledge such
     as whether P.H. would travel to Minnesota when she testified or would testify via
     videoconference from Washington, D.C., the type of transportation P.H. used to
     travel to Minnesota, and whether P.H. had asked the appellant to call her before
     other witnesses, even though the agency representative knew the answer because
     the order of witnesses already had been determined.      Id. at 9.   The appellant
     asserts that, after she filed her motion for sanctions, P.H.’s supervisor suspended
     P.H.’s ability to telework, instructed her to turn over her Government cell phone,
     informed her that she was deactivating the service, reassigned P.H.’s job
                                                                               4

     functions and assignments to others, and told her that she could no longer take her
     computer or use Wi-Fi while traveling to provide testimony.         Id. at 10.     The
     appellant contends that the administrative judge later disregarded P.H.’s
     testimony and unfairly referred to it as “bitter.” Id. at 11. The appellant asserts
     that another witness changed the prior sworn testimony he gave to an EEO
     investigator after speaking with the agency’s representative. Id.
¶5         The appellant filed a motion for sanctions below asserting that the agency’s
     representative engaged in the behavior described above. IAF, Tab 36 at 4-7. As
     a sanction, the appellant requested that the administrative judge prohibit the
     agency’s representative from further representing the agency.        Id. at 7.     The
     written record does not show that the administrative judge ruled on the motion.
     IAF, Tabs 37-43. To the extent that the administrative judge failed to rule on the
     appellant’s motion, such a failure was nonprejudicial error.         See Jarrard v.
     Department of Justice, 113 M.S.P.R. 502, ¶ 11 n.1 (2010) (finding that it was
     error for an administrative judge not to rule on a motion to strike).              An
     adjudicatory error that is not prejudicial to a party’s substantive rights provides
     no basis for reversal of an initial decision.    Panter v. Department of the Air
     Force, 22 M.S.P.R. 281, 282 (1984). As set forth below, we find that any error
     by the administrative judge in failing to address the appellant’s motion for
     sanctions did not prejudice her substantive rights.
¶6         An administrative judge may impose sanctions upon a party, including
     drawing an inference in favor of the requesting party, as necessary to serve the
     ends of justice.      Bernstein v. Department of the Army, 82 M.S.P.R. 375, ¶ 7
     (1999). Such a sanction also may involve excluding or limiting a representative’s
     participation   for    contumacious   conduct   or    conduct   prejudicial   to   the
     administration of justice.      5 C.F.R. § 1201.43(d).    The Board has required
     evidence showing that an agency official threatened a witness with adverse
     consequences, such as disciplinary action, or suggested that a witness either not
     testify or not testify truthfully before the Board will find that the agency official
                                                                               5

     intimidated that witness.    Bernstein, 82 M.S.P.R. 375, ¶ 12. We find that the
     allegations set forth above, even if true, do not rise to the level of witness
     intimidation, contumacious conduct, or conduct prejudicial to the administration
     of justice. See West v. U.S. Postal Service, 44 M.S.P.R. 551, 560-61 (1990). In
     any event, the appellant has not shown that the denial of her motion affected her
     substantive rights because she does not suggest how the witnesses in question
     would have testified absent such alleged intimidation. See De Bow v. Department
     of the Air Force, 97 M.S.P.R. 5, ¶ 11 (2004). Thus, the appellant has not shown a
     basis for imposing a sanction in this case.
¶7         The appellant also contends that the administrative judge erred when she
     denied as irrelevant the appellant’s request for J.R., O.F., and J.W. as witnesses,
     all of whom were deciding officials in either the disciplinary actions taken against
     her or her performance appraisals, and her request for E.W., who w as the primary
     contact for the RIF.    PFR File, Tab 1 at 11.       The appellant asserts that the
     administrative judge then improperly referred to statements from J.R., O.F., and
     J.W. in the initial decision, even though the appellant did not have an opportunity
     to cross-examine them. Id. at 11-12. She also contends that the administrative
     judge did not respond to her motion to clarify the summary of a prehearing
     conference. Id. at 8, 12.
¶8         The appellant asserted that J.R., O.F., J.W., and E.W. would testify to the
     “contents of [their] sworn affidavit[s] and the events surrounding the disciplinary
     actions taken against the Appellant.”         IAF, Tab 19, Part A at 29.        The
     administrative judge granted four witnesses who had been requested by both
     parties, five additional witnesses requested by the agency, and three additional
     witnesses requested by the appellant. IAF, Tab 20 at 16 -17. The administrative
     judge denied the request for J.R., O.F., J.W., and E.W. as irrelevant. Id. at 17.
¶9         An    administrative    judge    has    wide    discretion   under    5 C.F.R.
     § 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their
     testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
                                                                               6

      Service, 27 M.S.P.R. 322, 325 (1985). Here, the appellant did not indicate in her
      prehearing submission that these witnesses’ hearing testimony would differ from
      their affidavit testimony. Moreover, the summary of the prehearing conference
      did not identify any disciplinary actions taken against the appellant as issues in
      the case, except to the extent that they could form the basis for an IRA appeal,
      IAF, Tab 20 at 1-14, and the appellant did not object to the administrative judge’s
      rulings on witnesses, see Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581
      (1988) (finding that the appellant’s failure to timely object to the administrative
      judge’s rulings on witnesses precluded his doing so on petition for review). The
      administrative judge noted that the appellant indicated that she had not requested
      corrective action from OSC, id. at 10, and ultimately found that the appellant
      abandoned her whistleblowing claim, ID at 28 n.13. Thus, we find no abuse of
      discretion by the administrative judge in denying these witnesses. Although the
      appellant asserts that the administrative judge did not respond to her motion to
      clarify the summary of the prehearing conference, it is not clear from the
      appellant’s motion what she sought to have clarified asid e from possible
      questions regarding deadline dates. IAF, Tab 21 at 4-5. Any such ambiguity is
      not relevant to the issues on review.
¶10         The appellant also asserts that the administrative judge did not cite to Hillen
      v. Department of the Army, 35 M.S.P.R. 453 (1987), or refer to the factors for
      determining credibility set forth in Hillen. PFR File, Tab 1 at 13. She contends
      that, contrary to her supervisor’s unsupported testimony that production in the
      WELSA office declined sharply in April 2013 without paralegal support, thereby
      justifying the reassignment of new cases away from the appellant to an
      administrative law judge in Salt Lake City, Utah, the appellant continued to
      maintain similar production numbers, with only 18 fewer cases produced between
      fiscal years 2012 and 2013. Id. The appellant asserts that her supervisor testified
      falsely that she lowered the appellant’s performance appraisal due to, among
      other things, the appellant saying to her that a paralegal was “unable to learn,”
                                                                               7

      “not normal,” and “seemed like a child with a disability” ; the appellant asserts
      that she did not attribute negative statements to the paralegal, did not make false
      claims, and was not uncooperative.       Id. at 13-14.   In particular, the appellant
      asserts that statements her supervisor made in her pre-fiscal year (FY) 2012
      appraisals of the appellant and to an EEO investigator regarding the contents of
      the FY 2012 appraisal conflict with the findings made by the administrative judge
      in the initial decision. Id. at 14. The appellant further contends that, contrary to
      her supervisor’s testimony that the appellant objected to using the support staff in
      Salt Lake City, the exhibit cited by the administrative judge did not support that
      testimony. Id. at 15. She also asserts that her supervisor’s testimony that the
      appellant was disrespectful and argumentative during a teleconference was
      contradicted by testimony and evidence from a legal assistant, P.H., and the
      appellant. Id.
¶11        The administrative judge found that in May 2014, the agency directed the
      appellant’s   supervisor   to   reduce   the   OHA’s     budget   by   $474,000   and
      approximately four full-time equivalent positions (FTEs). ID at 8; IAF, Tab 7 at
      83; Hearing Transcript Day 1 (HTD1) at 35-38. The appellant does not dispute
      this finding on review. The record also reflects that the appellant’s supervisor
      determined that other offices within her control could not absorb the loss of
      FTEs, but the WELSA division, which consisted of the appellant and another
      individual at the time, was a stand-alone office that was expensive, handled a
      relatively small case load, and could be eliminated because the Salt Lake City
      office could absorb WELSA work without additional FTEs. HTD1 at 42 -43. We
      find that the administrative judge correctly determined that the agency’s decision
      to reorganize by closing the WELSA office was not arbitrary or irrationa l under
      the circumstances, and that Federal agencies have broad management discretion
      to act to avoid a budgetary deficit. ID at 8‑10; see Waksman v. Department of
      Commerce, 37 M.S.P.R. 640, 645 (1988), aff’d sub nom. Harris v. Department of
      Commerce, 878 F.2d 1447 (Fed. Cir. 1989) (Table); cf. Einboden v. Department
                                                                               8

      of the Navy, 802 F.3d 1321, 1325-26 (Fed. Cir. 2015) (holding that a furlough
      promotes the efficiency of the service when it is a reasonable management
      solution to the financial restrictions placed on the agency). The agency, not the
      Board, is responsible for deciding whether to retain or abolish particular positions
      during a RIF and how to accommodate a shortage of funds.             Waksman, 37
      M.S.P.R. at 645-46.      Regarding the appellant’s performance appraisal, the
      administrative judge correctly found that, even if the appellant’s appraisal had
      been rated superior, rather than minimally successful for FY 2012, it did not
      make a difference in the appellant’s retention standing for purposes of the RIF.
      ID at 12-13; see Hearing Transcript Day 2 at 210-14.         The appellant’s other
      arguments do not demonstrate error in the administrative judge’s determination
      that the agency showed by preponderant evidence that the RIF was bona fide and
      not personal to the appellant. ID at 8-10.
¶12        The appellant also asserts that her supervisor had discriminatory animus
      because she verbally opposed a settlement agreement into which the appellant had
      entered, gave her a minimally successful performance appraisal for FY 2012
      based on information she later admitted was unsubstantiated, initiated two
      unfounded disciplinary actions against the appellant suspending her for 3 and 5
      days, respectively, and directed her to attend weekly teleconferences at which she
      was harassed and verbally abused.      PFR File, Tab 1 at 17-18.       Further, the
      appellant contends that her supervisor was only an “Acting Director” who should
      not have initiated restructuring actions but who instead should have been a
      “caretaker,” a tribal council chairwoman objected to moving the WELSA office to
      Salt Lake City, and similarly situated male employees were retained.          Id. at
      19-20, 23.
¶13        The administrative judge found that the appellant did not show that her
      supervisor placed false information in her FY 2012 performance evaluation, the
      appellant’s evidence regarding her prior disciplinary actions did not establish a
      motive for sex discrimination, the legal assistant who attended the weekly
                                                                               9

      teleconferences did not substantiate the appellant’s claim that the appellant’s
      supervisor defamed, threatened, and abused her, P.H.’s testimony did not support
      a finding of sex discrimination because she did not testify that the appellant’s
      supervisor treated women any differently from men, and the appellant was not
      similarly situated to male employees who were not separated because they either
      held a different position, occupied a different grade level, or held a position that
      the agency determined it needed to retain. ID at 18‑21. Although the appellant
      contends that her supervisor opposed the term of the settlement agreement
      requiring the agency to appoint the appellant to a position in the Twin Cities area,
      the record reflects that the appellant’s supervisor acknowledged that the matter
      had been decided, but merely expressed her view that it was not financially
      advantageous to open a new office in that location.         HTD1 at 81-83.       The
      appellant has not identified on review any evidence showing that her supervisor
      lacked the authority to recommend or implement the restructuring changes at
      issue in this case, even as an acting director. In fact, although an acting director
      typically may not have taken bold, major restructuring actions, the then-Deputy
      Assistant Secretary testified that she came to him with restructuring ideas
      “because of the crisis that we were in and my . . . pressure to all of the offices to
      really . . . scrub every opportunity,” and that such recommendations from the
      appellant’s supervisor were “exactly what I was hoping to see from all of my
      offices.” HTD1 at 147-48, 161-62. The appellant has identified no evidence on
      review showing that the agency’s decision to abolish her position, despite any
      initial objection from a tribal chief as to the WELSA office’s location, was based
      on discrimination.
¶14         In adjudicating the appellant’s discrimination claim, the administrative
      judge applied the evidentiary standards set forth in Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015), and observed that the appellant
      sought to prove her claim with circumstantial evidence using a “mosaic” theory of
      discrimination. ID at 17. Regardless of the characterization of evidence relating
                                                                               10

      to the discrimination claim, we find that the administrative judge properly
      considered the evidence as a whole in finding that the appellant did not prove that
      discrimination based on sex or retaliation based on prior EEO activity was a
      motivating factor in her separation by RIF.        See Gardner v. Department of
      Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 30-31 (2016).
¶15         Finally, the appellant contends that the agency should have selected her for
      an administrative judge position with the Indian Board of Appeals, and that her
      supervisor harmed her selection prospects by informing the selecting official that
      the appellant had filed a grievance and an EEO complaint. PFR File, Tab 1 at 24.
      The appellant also asserts that, because the agency transferred her function to
      Salt Lake City, it should have transferred her to the Salt Lake City competitive
      area without a change in the tenure of her employment. Id. at 26-27.
¶16         The appellant has not shown that her nonselection for another position is
      relevant to the merits of her separation by RIF or her affirmative defenses.
      Moreover, whether the agency should have applied the transfer of function
      regulations set forth at 5 C.F.R. part 351, subpart C was not identified as an issue
      in this case.   IAF, Tab 20 at 1-6.     Because the appellant did not raise this
      argument regarding transfer of function below, and she has not shown that it is
      based on new and material evidence not previously available despite her due
      diligence, we need not address it for the first time on review.        See Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In any event, we find
      that no transfer of function occurred in this case. A “function” is “all or a clearly
      identifiable segment of an agency’s mission (including all integral parts of that
      mission), regardless of how it is performed.” 5 C.F.R. § 351.203. A “transfer of
      function,” in relevant part, is “the transfer of the performance of a continuing
      function from one competitive area and its addition to one or more other
      competitive areas, except when the function involved is virtually identical to
      functions already being performed in the other competitive area(s) affected.” Id.
      No transfer of function occurred in this case because the agency’s Salt Lake City
                                                                               11

      office was already performing an adjudication function, including processing
      WELSA cases. IAF, Tab 7, Part 4 at 14, 18; HTD1 at 32-34, 168-69; see Mullen
      v. Department of the Navy, 76 M.S.P.R. 590, 597 (1997).
¶17        Accordingly, we deny the petition for review and affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method requiring a
      signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after your
      receipt of this order. If you have a representative in this case, and your
      representative receives this order before you do, then you must file with EEOC no
                                                                               12

later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court‑appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision conc erning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U .S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
                                                                               13

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,   at   our    website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.            Additional
information about other courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.


162 Wis.2d 142 (1991)
469 N.W.2d 638
MAYFAIR CHRYSLER-PLYMOUTH, INC., Plaintiff-Respondent,
v.
Nick BALDAROTTA, Legal Custodian of Records of the Wisconsin Department of Revenue and Wisconsin Department of Revenue, Defendants-Appellants-Petitioners.
No. 89-0985.
Supreme Court of Wisconsin.
Argued March 26, 1991.
Decided May 23, 1991.
*148 For the defendants-appellants-petitioners the cause was argued by Robert W. Larsen, assistant attorney general, with whom on the briefs was Donald J. Hanaway, attorney general.
For the petitioner-respondent there was a brief by Jeffrey A. Kremers, Diane Slomowitz and Fox, Carpenter, *149 O'Neill & Shannon, S.C., Milwaukee and oral argument by Mr. Kremers.
WILLIAM A. BABLITCH, J.
The issue presented involves Wisconsin's Open Records Law. The question is whether the Department of Revenue must, in essence, reveal the name of an informant who was promised anonymity by field auditors for the Department of Revenue (Department) in exchange for information regarding certain actions by the informant's employer, Mayfair Chrysler-Plymouth, Inc. (Mayfair). The Department seeks review of a court of appeals' decision which affirmed the circuit court's mandamus judgment compelling the Department to permit Mayfair to inspect certain records in the Department's custody relating to the Department's audit of Mayfair's tax returns. The Department denied access to portions of the records on the ground that the records would reveal the name of a confidential informant who had been given a pledge of confidentiality by the Department in exchange for the information. The court of appeals held that the Department's stated reason for the denial was insufficient to overcome the general presumption of access to public records in Wisconsin. We hold that the Department's denial was legally specific. In addition, we hold that the denial was legally sufficient because the harm to the public interest from the disclosure of portions of records which would reveal the identity of a confidential informant who received a pledge of confidentiality outweighs the public interest in disclosing these records. Accordingly, we reverse the decision of the court of appeals.
On January 13, 1988, the plaintiff, Mayfair, submitted a written request to the Department pursuant to sec. 19.35, Stats.,[1] to inspect and copy certain records in the *150 Department's possession. These records, which had been provided by a former employee of Mayfair, consisted of checks and business records which related to alleged accounting procedures and practices of Mayfair. The Department denied Mayfair's request on the ground that the information was not a "record" as defined in sec. 19.32(2). In response Mayfair initiated this action for mandamus relief, seeking release of the records pursuant to sec. 19.37(1)(a).[2]
*151 The circuit court held a telephone conference between the parties on June 15, 1988, in which the Department agreed to provide Mayfair redacted copies of documents it held relating to Mayfair's business practices. These copies were edited to delete any references which would suggest the identity of the ex-employee informant who provided the information to the Department. This sanitization erased all numeric figures from the documents creating, in effect, blank forms. At this time, the Department also provided the circuit court with unredacted copies of the documents for in camera review.
Mayfair then sent a supplemental request to the Department seeking all records, including check stubs, cancelled checks and timecards, and other business records which were received from any source other than Mayfair. The Department denied this request, stating that it could provide no additional information because it had given a "pledge of confidentiality . . . to the informant, [and] the department must continue to deny access to portions of records which may identify the informant."[3]
*152 The Department also identified Steven Koritzinsky and Brian Ertmer as the field auditors from the Department who had had contact with the informant. Mayfair deposed Koritzinsky and Ertmer regarding those contacts. At his deposition, Koritzinsky recalled the Department's initial contact with the informant:
I was working at a taxpayer's office in a room, and he [the informant] walked into the room and first of all asked me if I was a field auditor with the Wisconsin Department of Revenue, and I told him that yes, I was. And he asked me or he told me he had some information, but before he said anything, he wanted to know if it would be given in confidence and if I had the power to give him a pledge of confidentiality.
Koritzinsky also testified as follows:
Q: Please continue with what happened after he asked you whether you had the authority to give a pledge of confidentiality.
A: I told him that I would give a pledge of confidentiality that would bind the department, and I said that, you know, we discussed, you know, preliminary discussions. He was saying, well, what does this entail, you know, giving me the impression that if I *153 hadn't given the pledge of confidentiality, he would not have given me any information.
Q: Tell me as best you recall the exact words that he used when he first came into the room and after he asked if you were, in fact, a field auditor for the Wisconsin Department of Revenue?
A: I can tell you that it went something like this, that he had some information and that he would not disclose it unless we gave a pledge that we would not disclose his name in any proceedings.
* * * *
Q: Tell me again what he asked for by was of a pledge of confidentiality?
A: Well, he did not want his name revealed in any way, shape, or form.
Regarding the scope of the pledge, Koritzinsky told the informant that the Department would not disclose who he was or provide documents that would give away his identity.
Ertmer met with the informant after he was assigned the audit of Mayfair. Ertmer told the informant that the information he provided would be kept confidential. The informant was never asked by Ertmer if he would provide the documents without a pledge of confidentiality. Ertmer acknowledged at the deposition that the documents provided by the informant could have been obtained by subpoena of Mayfair's records.
Mayfair then moved for summary judgment seeking release of the records on the ground that the Department's reasons for denying the request were not legally sufficient. The circuit court granted Mayfair's request for summary judgment and writ of mandamus, and *154 awarded damages of $100.00, statutory costs, and reasonable attorney's fees.
The court of appeals affirmed, concluding that "the reasons asserted by the department were insufficient as a matter of law to support the denial of access to the records. . . . " Mayfair Chrysler-Plymouth, Inc. v. Baldarotta, 154 Wis. 2d 793, 795, 453 N.W.2d 922 (1990). The court emphasized that the Department had violated Mayfair's "`absolute right to inspect a public document in the absence of specifically stated sufficient reasons to the contrary.'" Id. at 802 (quoting Newspapers, Inc. v. Breier, 89 Wis. 2d 417, 427, 279 N.W.2d 179 (1979)). Judge Gartzke dissented, arguing that because of the Department's law enforcement functions, the Department must be able to protect confidential informers who rely on its pledge of confidentiality.
This case presents two issues. The first issue is whether the Department's denial of access to portions of its records, on the ground that the information would reveal the identity of a confidential informant who provided information to the Department under a pledge of confidentiality, satisfies the standards of legal specificity required by Wisconsin's Open Records Law, secs. 19.31-.39, Stats., and our prior decisions. The second issue, which arises only if the Department's denial was legally specific, is whether the existence of the Department's pledge of confidentiality to the informant was a legally sufficient reason for denying access to records that overcomes the public policy presumption in favor of access to public records.
[1]
Both of these issues require us to apply Wisconsin's Open Records Law and prior substantive common law principles constructing the right to inspect public records to the facts of this case. "The duty of the custodian is to *155 specify reasons for nondisclosure and the court's role is to decide whether the reasons asserted are sufficient." Breier, 89 Wis. 2d at 427. "Whether harm to the public interest from inspection outweighs the public interest in inspection is a question of law." Id. This court reviews questions of law independently, without deference to the trial court.
We hold that by stating that the requested records would reveal the identity of a confidential informant who had been given a pledge of confidentiality, the Department stated a legally specific reason for denying Mayfair's record request. The stated reason of informant confidentiality implies obvious and well-known public policy interests in effective law enforcement that carry sufficient meaning and import for the requester to understand the basis for the denial. We also hold that the denial was legally sufficient because the harm to the public interest from disclosure of portions of records which would reveal an informant's identity outweighs the public interest in disclosing these records.
[2]
The Wisconsin Open Records Law reflects the common law principles favoring access to public records that have long been recognized in Wisconsin. The strong public policy favoring access is stated in sec. 19.31, Stats.:
Declaration of policy. In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employes who represent them. Further, providing persons with such information is declared to be an essential function of a representative government *156 and an integral part of the routine duties of officers and employes whose responsibility it is to provide such information. To that end, ss. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.
[3-5]
The right to inspect records is not, of course, absolute. In some instances, the custodian should deny access to public records because the harm to the public interest from inspection outweighs the public interest in inspection. Breier, 89 Wis. 2d at 427; State ex rel. Youmans v. Owens, 28 Wis. 2d 672, 681, 137 N.W.2d 470 (1965). Access should also be denied where there is a clear statutory exception or an existing common law limitation to the general presumption favoring the right of inspection of public records. Breier, 89 Wis. 2d at 426; Hathaway v. Green Bay School Dist., 116 Wis. 2d 388, 395-96, 342 N.W.2d 682 (1984). The existence of a statutory exception or common law limitation indicates that the legislature or this court has predetermined that the harm to the public interest from inspection outweighs the benefits. "Thus, the general presumption of our law is that public records shall be open to the public unless there is a clear statutory exception, unless there exists a limitation under the common law, or unless there is an overriding public interest in keeping the public record confidential." Hathaway, 116 Wis. 2d at 397.
[6, 7]
In addition to the substantive standards which protect the public's interest in having access to public records, this court has imposed procedural standards for custodians to follow when considering a public records *157 request to preserve the integrity of the public records law. When a demand to inspect public records is made, the custodian must weigh the competing interests involved and determine whether permitting inspection would result in harm to the public interest that outweighs the recognized public interest in inspecting public records. Breier, 89 Wis. 2d at 427. If the custodian determines that the records request should be denied, then he must state the specific policy reasons that he relied on to make that determination. Breier, 89 Wis. 2d at 927; Youmans, 28 Wis. 2d at 682. In addition, sec. 19.35(4)(b), Stats., requires that "[i]f an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written requested."
[8]
The court of appeals in Milwaukee Journal v. Call, 153 Wis. 2d 313, 317, 450 N.W.2d 515 (Ct. App. 1989), recognized that these procedural and substantive standards established by our prior decisions essentially comprise a two-step procedure for reviewing public records cases:
First, we must decide if the trial court correctly assessed whether the custodian's denial of access was made with the requisite specificity. Second, we determine whether the stated reasons are sufficient to permit withholding, itself a two-step analysis. Here, our inquiry is: (1) did the trial court make a factual determination supported by the record of whether the documents implicate the public interests in secrecy asserted by the custodians and, if so, (2) do the countervailing interests outweigh the public interest in release. (Citations omitted.) *158 We adopt this framework for analyzing the question of whether a custodian's denial of access can be sustained by the reviewing court.
Under the Call test, the threshold issue is whether the custodian has stated legally specific reasons for denying the records request. Because the development of the specificity requirement in our prior decisions is important to understanding its purpose and application, we first discuss several of the cases in which we have addressed this standard.
We established in Youmans, 28 Wis. 2d at 682, that any denial of a public records request must "state specifically the reasons for this denial." The request in Youmans was for reports concerning an investigation into alleged police misconduct that had been compiled by the Waukesha City Attorney for the mayor of Waukesha. The request was denied on the grounds that the reports were attorney work product and that their disclosure "would be harmful to the public interest." Id. at 683. We concluded that there was no authority to support the work product theory and that the stated justification that disclosure would be harmful to the public interest was the equivalent of offering no reason at all for denying the request. Id. at 683-84. Because no prior Wisconsin case had required the reasons for denial to be specially stated, we remanded the case to allow the defendant to advance more specific reasons for denying the request. Id. at 685a.
Our first opportunity to apply the standards established in Youmans, was in Beckon v. Emery, 36 Wis. 2d 510, 513-14, 153 N.W.2d 501 (1967), in which a police chief refused to produce requested police reports on the grounds that the reports were "confidential" and that access to them "would not be in the public interest." We held that this denial did not provide specific reasons for *159 denying inspection and that the stated justifications were no more than legal conclusions. In addition, we emphasized the following factors:
In the instant case the failure of the custodial officer to state with specificity his reasons for withholding public records made it impossible for the courts to make the contemplated review. No doubt a number of plausible and perhaps valid reasons for withholding these documents could have been specified and, if so specified, the trial court might after the determination outlined in Youmans have upheld the police chief's determination. But no reason was given, and form the record it is obvious that no attempt was made by the chief of police or his representatives to comply with Youmans and its rationale. Id. at 518.
Thus, Beckon stressed that specific policy reasons are necessary to provide a basis for the courts to review the denial and to ensure that the custodian does not arbitrarily reject requests without applying the substantive standards established by this court. Because no specific reasons were given for denying inspection in Beckon, we granted the writ of mandamus compelling the production of the reports. Id.
The final case we consider is Breier, 89 Wis. 2d at 421, in which the police chief refused to disclose to the press and the public the charges upon which suspects were arrested on the grounds that disclosures may cause "personal and economic harm" to the individual's arrested. We stated that to deny a request for inspection the custodian "must state specific public-policy reasons for the refusal." Id. at 427. We also emphasized that:
It is not the trial court's or this court's role to hypothesize reasons or to consider reasons for not allowing inspection which were not asserted by the *160 custodian. If the custodian gives no reasons or gives insufficient reasons for withholding a public record, a writ of mandamus compelling the product of the records must issue. Id.

We concluded that the police chief had stated specific public-policy reasons by asserting his concern for the personal and economic welfare of arrested suspects if the fact of the arrest became known to others. We construed this reasoning as implicating a concern for the reputation of arrested citizens, which we held was a legitimate public-policy interest. Id. at 429. We held, however, that while the denial was legally specific, the writ of mandamus should be granted because "as a matter of law . . . the harm to the public interest in the form of possible damage to arrested persons' reputations does not outweigh the public interest in allowing inspection of the police records which show the charges upon which arrests were made." Id. at 440.
[9]
These three cases demonstrate the two primary reasons for requiring the custodian's denial of a records request to state specific policy reasons. First, the specificity requirement provides a means of restraining custodians from arbitrarily denying access to public records without weighing whether the harm to the public interest from inspection outweighs the public interest in inspection. Second, specific policy reasons are necessary to provide the requester with sufficient notice of the grounds for denial to enable him to prepare a challenge to the withholding and to provide a basis for review in the event of a court action. The specificity requirement is, therefore, procedural in nature. The focus at this stage is not on whether the custodian was correct in denying the inspection request; it is on whether the custodian *161 has fulfilled his obligation to the public to provide a meaningful and reviewable response to the request.
Mayfair asserts that the Department's denial, which relied solely on the pledge of confidentiality given to its informant, failed to state any "specific public policy reasons" as required by Breier and should be rejected on that basis. Mayfair argues that although the Department has asserted that a denial based on informant confidentiality implies a public interest in efficient and effective law enforcement, these reasons cannot be considered by this court under Breier because the Department never made reference to law enforcement interests in its denial and the Department was not acting as a law enforcement agency. In addition, Mayfair argues that the Department's sole reliance upon informant confidentiality is as unspecific as the reasons rejected by this court in Beckon. Mayfair asserts that, as in Beckon, the written denial in the present case was not sufficiently specific because it did not provide any foundation from which to evaluate the substantive merits of the Department's denial. We disagree.
We conclude that the Department's stated reason for denying Mayfair's request was sufficiently specific because it satisfied the purposes of the specificity requirement. Unlike the "reasons" stated in Youmans and Beckon, the Department's denial provided Mayfair with sufficient notice of the basis for the denial. By stating that the request was being denied because a pledge of confidentiality has been given to an informant who provided information to the Department, the Department made it known that its decision was controlled by the obvious and well-known public interest in effective law enforcement that is served by providing informants with confidentiality.
*162 Contrary to Mayfair's assertion, the reason for denying the request in this case was in no way analogous to the police chief's reasons in Beckon that the report was "confidential" and its release "would be contrary to the public interest." The reasons stated in Beckon were legal conclusions that provided no inkling of what facts were being relied on to deny the request or of the type of public interest implicated by the records request. By contrast, the Department's reason for denying the request in this case informed Mayfair that the records were not accessible because they would reveal the name of a confidential informant who had received a pledge of confidentiality. Thus, the denial apprised Mayfair of the underlying facts affecting the Department's decision and focused Mayfair's attention on whether the public interest in maintaining the confidentiality of informants outweighed that of access to public records.
[10]
Under these circumstances, we cannot say that the Department arbitrarily denied the records request or failed to provide sufficient notice of the basis for the denial to enable Mayfair to choose a course of action. The denial identified that there was a pending audit of Mayfair, informed Mayfair of the type of records involved, explained that the information was deleted solely out of concern for maintaining pledges of confidentiality to informants, and identified the Department employees who dealt with the informant. The denial stated a legitimate policy interest in maintaining pledges of confidentiality to informants. This information was more than sufficient to permit Mayfair to make an informed decision whether to challenge the denial and to provide a basis for the court to review the sufficiency of *163 the denial.[4]
Moreover, Mayfair's strict interpretation of Breier's requirement that public policy reasons must be specifically stated in the denial ignores the purpose of the specificity requirement. Where the public policy reasons behind the stated reason for the denial are obvious and well-known, as in this case, we will not refuse to consider the merits of the denial. And while, as we said in Breier, we will not "hypothesize" reasons why disclosure would be harmful to the public interest or consider additional reasons not asserted in the denial, such hypothesizing is unnecessary in a case such as this where the arguments supporting the reason for the denial are obvious to all. The stated reasons for the denial must be specific, but they need not state the obvious.
[11]
Because the Department's custodian cited reasons that carried sufficient meaning and import to allow Mayfair to understand the basis for the denial, we conclude that the merits of the Department's denial should be considered. We refuse to exalt form over substance when the basic purposes of the specificity requirement *164 have been met. Accordingly, we hold that the Department's denial in this case was sufficiently specific.
[12]
The second issue is whether the existence of the Department's pledge of confidentiality to the informant was a legally sufficient reason for denying access to the records that overcomes the public policy presumption in favor of access to public records. The Call test provides a two-step analysis for making this determination. The reviewing court must first determine whether the circuit court made a factual determination supported by the record of whether the documents implicate the public interests in confidentiality asserted by the custodian. The reviewing court must also determine whether the countervailing interests in confidentiality outweigh the public interest in release.
[13]
We first address the question of whether the circuit court made a determination supported by the record regarding whether the public policy interest in informant confidentiality asserted by the custodian in this case is in fact implicated by the records withheld by the Department. Our review of the withheld documents confirms the circuit court's implicit finding that their release would divulge the name of the confidential informant who provided the records. The informant's name could easily be determined through the information contained on the checks, earnings statements, time cards, etc. that the Department obtained from the informant and withheld from Mayfair.
We next address the question of whether the asserted interests in preserving the confidentiality of the informer who was given a pledge of confidentiality outweigh the recognized public interest in the release of public records. As we noted above, the question of *165 whether harm to the public interest from inspection outweighs the public interest in inspection is a question of law, which this court reviews independently. See Breier, 89 Wis. 2d at 427.
The Department contends that no balancing of interests is necessary in this case because this court established in Stelloh v. Liban, 21 Wis. 2d 119, 124 N.W.2d 101 (1963), that, as a matter of law, the government has a privilege to provide confidentiality to informants in both civil and criminal contexts. The Department argues that Stelloh created a common law limitation applicable to public records requests that controls the outcome of this case. We do not agree that the government has such a blank check.
In Stelloh, 21 Wis. 2d at 119, which involved a civil action against police for false arrest, we held that the police had a privilege to withhold the identity of a confidential informant whose information the police relied upon to justify their arrest of the plaintiff. We based our decision on the need to encourage citizen participation in law enforcement:
The plaintiff admits, as well he must, that there exists a privilege based on public policy on behalf of the government not to disclose the names of the informers. This is a general rule in criminal cases. 8 Wigmore, Evidence (McNaughton rev.), p. 761, sec. 2374; see also Anno. 76 A.L.R. (2d) 262. The basis for the privilege is grounded upon the duty of every citizen to aid in the enforcement of the law. To encourage such citizen participation in law enforcement, it is essential the informer's identity not be disclosed. Regardless of the informer's motive, he is entitled to protection for `himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution *166 actions against him.' Wigmore, Evidence, supra, page 762. Id. at 125.
We further stated in Stelloh, 21 Wis. 2d at 127, that "the privilege of nondisclosure of identity applies to a civil suit for the same reason it exists in a criminal action."
The public policy interest in informant confidentiality is also reflected in sec. 905.10(1), Stats.,[5] which provides the government with a privilege to refuse to disclose the identity of an informant who has furnished investigative information to a law enforcement officer or member of a legislative committee or its staff. The Federal Advisory Committee's Note to Fed. R. Evid. 510, on which sec. 905.10, is based, states that "[a]lthough the tradition of protecting the identity of informers has evolved in an essentially criminal setting, noncriminal law enforcement situations involving possibilities of reprisal against informers fall within the purview of the considerations out of which the privilege originated." See 59 Wis. 2d R 146 (1974).
We do not agree with the Department that there is an established common law limitation that permits any government agency to withhold public records based on the fact that a pledge of confidentiality has been given to a confidential informant for the purpose of obtaining information. Stelloh only contemplated the use of informants by law enforcement officers, as does sec. 905.10, Stats. Moreover, Stelloh was not a public records request that required the countervailing interests in secrecy and disclosure to be weighed against each other.
*167 [14, 15]
Nevertheless, we are persuaded, for the same policy reasons that controlled our decision in Stelloh, that government agencies that are engaged in a law enforcement function may refuse to disclose portions of records that would reveal the names of confidential informants who have been given a valid pledge of confidentiality. The confidential informant enhances law enforcement efforts by providing information about criminal and noncriminal law violations that often cannot be obtained through conventional investigation methods. The efficiency of law enforcement efforts is served by focusing the attention of investigators upon suspected offenders. The informant may also be in a position to provide evidence and insight into the alleged violations. As Stelloh emphasizes, however, all these advantages to efficient and effective law enforcement would be lost if informants were not adequately protected from the stigma and potential harm of public disclosure of their identities. For this reason, we hold as a matter of law that where criminal or noncriminal law enforcement interests are at stake, the need to maintain the integrity of the government's pledges of confidentiality to informants may on balance outweigh the public's interest in having access to portions of records that could identify a confidential informant.[6]
*168 We therefore turn to the ultimate question: does the Department's pledge of confidentiality in this case outweigh the public's interest in having access to what would otherwise be public records? Mayfair vigorously challenges the Department's use of the pledge, echoing the view expressed by the circuit court and the court of appeals that "`allowing a custodian to hand out pledges of confidentiality freely, with no explanation or showing of necessity, is contrary to the legislative policy objectives of the Open Records Law.'" Mayfair, 154 Wis. 2d at 799.
[16]
Mayfair emphasizes that the Wisconsin Attorney General has repeatedly and consistently ruled that for a pledge of confidentiality to warrant nondisclosure under the Act the pledge must satisfy the following four criteria:
First, there must have been a clear pledge made. Second, the pledge should have been made in order to obtain the information. Third, the pledge must have been necessary to obtain the information.
Finally, even if a pledge of confidentiality fulfills these criteria, thus making the record containing the information obtained clearly within the exception, the custodian must still make an additional determination in each instance that the harm to the public interest that would result from permitting inspection outweighs the great public interest in full inspection of public records. 60 Op. Atty. Gen. 284, 289 (1971).
This test has since been reiterated in succeeding Attorney General Opinions. See 74 Op. Atty. Gen. 14, 15 (1985); 63 Op. Atty. Gen. 400, 407-08 (1974); 61 Op. *169 Atty. Gen. 361, 365 (1972). We conclude that these four criteria serve as an appropriate basis for our review.
Mayfair asserts that none of these factors were met by the Department, contending that the Department agreed to issue the pledge without making any base inquiries as to: the nature of the informant's purported information; whether such information could be obtained through alternate sources; whether any information would in fact be obtainable from the informant absent the issuance of a pledge; the scope of the pledge itself; or the extent to which the public interest would be offended by the issuance of the pledge.
We agree with Mayfair that the attorney general's four-prong test provides a valuable framework for evaluating the validity of a pledge of confidentiality. The circuit court applied this test and determined that while the Department had satisfied the first two prongs of the test, they had not satisfied the third and fourth prongs. We agree with the circuit court with respect to the first two factors. We conclude that the circuit court did not apply the proper standard with respect to the third and fourth prongs of the test. We find that the Department satisfied the four factors necessary to establish a valid pledge of confidentiality.
The first three factors of the test are established by Steven Koritzinsky's testimony indicating that he told the informant that he would give him a pledge of confidentiality after the informant had first informed Koritzinsky that he would not provide information if it could not be given in confidence.
The circuit court and the court of appeals erroneously determined that the third factor, which requires that the pledge was necessary to obtain the information, was not met because Mayfair's records could have been obtained by subpoena rather than directly from the *170 informer. The lower courts' interpretation of this factor ignores the distinct probability that no information at all would have been obtained from the informant if the Department had not met his initial request for confidentiality. The only reason the Department knew who to look at, what records to look at, and what to look for is because the informant told them. The Department's subpoena authority would have been useless if the informant never told them who or what he suspected. The Department would never have known that the target was Mayfair, much less what to look for at Mayfair. The evidence provided by the informant gave the Department a basis for determining whether the informant's allegation was of any merit and targeted Mayfair and the specific files of Mayfair's that needed to be examined by the Department's auditors. In addition, if Mayfair had not provided complete records to the Department, the informant's documents may also have served to alert the Department of that fact. Based on the above, we conclude that the circuit court was in error in determining that the third factor was not met.
The fourth prong of the test, requiring the custodian to make an additional determination in each instance that the harm to the public interest that would result from permitting inspection outweighs the great public interest in full inspection, is likewise met. Mayfair argues that the Department never conducted the weighing required by the fourth prong of the test. We disagree.
[17]
The record reveals that the informant emphasized to the Department's auditor, Steven Koritzinsky, that he would not give any information to the Department if his name would be revealed in "any way, shape, or form." Implicit in the Department's refusal to permit full inspection of the records because of its pledge of confidentiality *171 is the obvious and well recognized public interest in effective law enforcement that is served by providing informants with confidentiality and maintaining that confidentiality. Anonymous sources at times provide the only source for valuable information. Although the public may be well served by knowing the name of the informant in any particular case, the public in many instances is better served by obtaining the information from an informant at the expense of not learning the informant's identity. Much valuable information could be lost to law enforcement if it became known to potential informants that promises of confidentiality were meaningless. That is the obvious judgment made by the Department in this case, and we will not reverse it. There may be cases in which the overriding public interest in inspection compels disclosure, but this is not such a case.
[18, 19]
We conclude that the Department's denial of Mayfair's record request satisfied the requirements of Wisconsin's Open Records Law because it was legally specific and legally sufficient. By informing Mayfair that their request was being denied because a pledge of confidentiality had been given to a confidential informant who had provided the records, the Department adequately communicated that the denial was based on the obvious and well-known law enforcement interests served by confidential informants. Thus, the Department satisfied its obligation to Mayfair to not arbitrarily deny the request without providing reasons specific enough for Mayfair to understand the basis for the denial. The denial was legally sufficient because the harm to the public interest in effective law enforcement from disclosing portions of records that could reveal the identity of a confidential informant outweighs the public *172 interest in inspection of those records. We also conclude it is in the public interest to permit the Department to provide pledges of confidentiality to citizens who may not otherwise step forward to assist law enforcement efforts. Therefore, we reverse the decision of the court of appeals.
By the Court.The decision of the court of appeals is reversed.
NOTES
[1]  19.35 Access to records; fees. (1) RIGHT TO INSPECTION. (a) Except as otherwise provided by law, any requester has a right to inspect any record. Substantive common law principles construing the right to inspect, copy or receive copies of records shall remain in effect. The exemptions to the requirement of a governmental body to meet in open session under s. 19.85 are indicative of public policy, but may be used as grounds for denying public access to a record only if the authority or legal custodian under s. 19.33 makes a specific demonstration that there is a need to restrict public access at the time that the request to inspect or copy the record is made.

* * *
(4) TIME FOR COMPLIANCE AND PROCEDURES. (a) Each authority, upon request for any record, shall, as soon as practicable and without delay, either fill the request or notify the requester of the authority's determination to deny the request in whole or in part and the reasons therefor.
(b) . . .If an authority denies a written request in whole or in part, the requester shall receive from the authority a written statement of the reasons for denying the written request. Every written denial of a request by an authority shall inform the requester that if the request for the record was made in writing, then the determination is subject to review by mandamus under s. 19.37(1) or upon application to the attorney general or a district attorney.
[2]  Enforcement and penalties. (1) MANDAMUS. If an authority withholds a record or a part of a record or delays granting access to a record or part of a record after a written request for disclosure is made, the requester may pursue either, or both, of the alternatives under pars. (a) and (b).

(a) The requester may bring an action for mandamus asking a court to order release of the record. The court may permit the parties or their attorneys to have access to the requested record under restrictions or protective orders as the court deems appropriate.
[3]  The Department's letter of denial provided in full:

On July 6, 1988, I received your letter of July 1, 1988, requesting access to records relating to pending audits of Mayfair Chrysler-Plymouth, Inc. which have been received from sources other than Mayfair.
I am informed that you have already been provided with copies of the types of records which are responsive to your request and are in the possession of the department, except those copies are edited to delete content which would directly or circumstantially identify a confidential informant who provided information to the department. In respect to the pledge of confidentiality given by department employes to the informant, the department must continue to deny access to portions of records which may identify the informant.
Enclosed as Exhibit A is a copy of the notes of department employe Brian Ertmer who obtained the records under a pledge of confidentiality. The remainder of the records are business records of Mayfair received from the informant. Exhibits B, C and D are representative of those records. Since the disclosure of virtually any entries on the records would tend to reveal the identity of the informant, all such entries have been deleted. Exhibits B, C and D are representative of the extent to which the department must delete information in honor of its pledge of confidentiality to the informant.
[4]  Furthermore we note that although the court of appeals has not directly addressed the question of whether informant confidentiality alone is a sufficiently specific reason for denying access to records, it has strongly suggested that informant confidentiality is a sufficiently specific reason for denying a request. See Call, 153 Wis. 2d at 318. ("Prejudice to an ongoing criminal investigation, crime detection and informant confidentiality are all specific public policy reasons for confidentiality that meet the specificity requirement."); Journal/Sentinel, Inc. v. Aagerup, 145 Wis. 2d 818, 826, 429 N.W.2d 779 (Ct. App. 1988) (indicating that there was an overriding public interest in preserving secrecy when information might reveal an informer's identity).
[5]  905.10 Identity of informer. (1) RULE OF PRIVILEGE. The federal government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
[6]  This holding is not dependent on the government agency establishing that the informant would suffer adverse consequences from disclosure of his identity. If the informant has received a pledge of confidentiality in exchange for information, the agreement should not be broken on the basis of the circuit court's view that the informant did not need to seek the pledge of confidentiality for which he bargained. In the present case, the potential adverse consequences to the informant from disclosure are unknown, but, as Judge Gartzke noted in his dissent, "[t]he tenacity with which Mayfair seeks that name should give the informer concern."


579 F.2d 747
UNITED STATES of America, Appellee,v.Alvaro BURGOS and John Burgos, Defendants-Appellants.
Nos. 984, 930, Dockets 78-1018, 78-1019.
United States Court of Appeals,Second Circuit.
Argued May 19, 1978.Decided July 20, 1978.

Peter J. Byrnes, Mineola, N. Y., for defendant-appellant Alvaro burgos.
Irving Anolik, New York City, for defendant-appellant John Burgos.
Marc Marmaro, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., for S. D. New York; Richard D. Weinberg, Asst. U. S. Atty., New York City, of counsel), for appellee.
Before KAUFMAN, Chief Judge, and MULLIGAN and VAN GRAAFEILAND, Circuit Judges.
VAN GRAAFEILAND, Circuit Judge:

1
John Burgos, Alvaro Burgos, and Herbert Quiceno were convicted of conspiracy to distribute or to possess with intent to distribute 3788 grams of cocaine, in violation of 21 U.S.C. §§ 841 and 846.  John and Alvaro have appealed.  We affirm as to Alvaro and reverse as to John.

2
On the evening of May 25, 1977, Special Agent Lopez of the Drug Enforcement Administration and Umberto Trujillo, a confidential informant, met Quiceno and Alvaro Burgos at an apartment occupied by two women, one of whom was Marianela Garcia.1  After some discussion with Quiceno and Alvaro, Lopez arranged to buy five kilograms of cocaine the next day for $165,000.

3
At 8:00 p. m. on May 26th, Lopez and Trujillo drove to the vicinity of the apartment building, which had been placed under surveillance by other DEA agents.  Lopez told Trujillo to go to the apartment and tell Quiceno that Lopez was outside in the car with the money and wanted Quiceno to bring the cocaine down.  Trujillo went into the building and, upon his return, informed Lopez, that Garcia, Alvaro, and Quiceno were in the apartment awaiting delivery of the cocaine.  Lopez told Trujillo to go back and ask Quiceno to come down so that Lopez could talk with him.  While Trujillo was gone, a yellow Volkswagen, with two male occupants, double-parked for several minutes about 100 feet from the apartment building and then left.  Shortly thereafter, Trujillo returned with Quiceno, and Lopez showed them the money as evidence of his good faith.  They agreed to make the transfer at a spot closer to the apartment building, provided this met with Alvaro's approval.  As Quiceno was getting out of the car, he told Lopez that he had people in the vicinity to make sure the deal went smoothly.  Meanwhile, the Volkswagen had returned; and, when another car pulled out, it parked in a spot directly in front of the building.

4
A few minutes later, Quiceno and Trujillo returned, and Lopez drove them around the corner to the spot agreed on for the transfer.  Garcia then came out of the building carrying a white plastic shopping bag which contained the cocaine.  She stopped briefly at the Volkswagen, leaned into the car on the passenger's side and then continued on toward Lopez' car.  Alvaro followed a short distance behind.  He too paused at the Volkswagen where he dropped off a blue shoulder bag.  In the meantime, Garcia had put the shopping bag in Lopez' car and was returning to the apartment, stopping again en route at the Volkswagen.  When Alvaro arrived to pick up the money, he and Quiceno were arrested.

5
The two occupants of the Volkswagen were apprehended also.  However, only one of them, John Burgos, was tried, and his conviction must be reversed because the evidence against him was insufficient to support the jury's verdict.  The Government argues that the jury might reasonably have inferred that the cocaine was brought in the Volkswagen and taken to the apartment in the blue shoulder bag, and that John Burgos, Alvaro's brother, was acting as a lookout.  These inferences are not supported by competent proof.  Despite surveillance by Government agents, no one saw anything taken from the Volkswagen to the apartment.  The blue shoulder bag, when taken from the Volkswagen at the time of the arrests, contained only a pair of pants and a shirt.  The only non-hearsay evidence linking John to the conspiracy was his presence in the vicinity of the aborted drug transfer.2  This was not enough.  United States v. Steinberg, 525 F.2d 1126, 1134 (2d Cir. 1975), Cert. denied,  425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed. 794 (1976); United States v. Ragland, 375 F.2d 471, 477-78 (2d Cir. 1967), Cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968); Cf. United States v. Garguilo,310 F.2d 249, 253 (2d Cir. 1962).  Accordingly, his conviction cannot stand.

6
Alvaro Burgos does not challenge the sufficiency of the evidence to convict him, but argues that his conviction was flawed by errors in the trial.  He contends first that a statement he gave to an Assistant United States Attorney should not have been admitted into evidence.  After his arrest, Alvaro was taken to DEA headquarters.  En route, a Spanish-speaking agent gave him his Miranda warnings.  At headquarters, after Alvaro had been advised again of his rights, he gave the agent a statement.  Following this, he was taken to the detention center.  The next morning, he was taken to the United States Attorney's office where he was interrogated by an Assistant United States Attorney at about 1:00 p. m.  After being apprised for the third time of his constitutional rights, Alvaro gave a statement that was substantially the same as the one he had given on the previous evening.  The interrogation concluded at about 1:40, and Alvaro was taken before a Magistrate at 2:00.

7
Alvaro now contends that his youth, lack of formal education, and inability to speak English made the foregoing process so intimidating as to taint his confession.  There is no indication in the record, however, of any psychological coercion.  When the Assistant United States Attorney asked Alvaro if he had any complaints about how the arresting agents had treated him, Alvaro replied that they had treated him very well.  He was interrogated in Spanish on two occasions, neither of which exceeded forty minutes, and the statements he gave were consistent with each other.  The lapse of fifteen hours between Alvaro's arrest at 11 p. m. and his appearance before the Magistrate at 2:00 p. m. the next day did not, standing alone, require the exclusion of his voluntary confession.  United States v. Warme, 572 F.2d 57, 61 n. 3 (2d Cir. 1978); United States v. Ortega, 471 F.2d 1350, 1362 (2d Cir. 1972), Cert. denied, 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409 (1973); United States v. Marrero, 450 F.2d 373, 377-78 (2d Cir. 1971), Cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972).  This is not a case where the accused was threatened, tricked, or cajoled into waiving his rights.  See United States v. Duvall, 537 F.2d 15, 24 (2d Cir.), Cert. denied, 426 U.S. 950, 96 S.Ct. 3173, 49 L.Ed.2d 1188 (1976).  The trial judge found that there had been great solicitude for Alvaro's rights, and this finding was not clearly erroneous.  See United States v. Friedman, 558 F.2d 1125 (2d Cir. 1977).

8
Alvaro's other contentions require little discussion.  The district court's refusal to sever his trial from that of Quiceno was not an abuse of discretion under the guidelines set forth in United States v. Taylor,562 F.2d 1345, 1362-63 (2d Cir.), Cert. denied, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977) & 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d 124 (1977).  The district court did not err in refusing to give a "missing witness" instruction as to the informant Trujillo, who was made available to defense counsel both for interview and for testimony.  See United States v. Erb, 543 F.2d 438, 444-45 (2d Cir.), Cert. denied, 429 U.S. 981, 97 S.Ct. 493, 50 L.Ed.2d 590 (1976).

9
The district judge instructed the jury that under the conspiracy charge, the Government need not prove that the defendants actually possessed or distributed the cocaine, the gist of the offense being the agreement to do so.  The Government contends that the offense of simple possession, 21 U.S.C. § 844, was not, therefore, "an offense necessarily included in the offense charged."  Fed.R.Crim.P. 31(c).  See Waker v. United States, 344 F.2d 795, 797-98 (1st Cir. 1965); 2 C. Wright & A. Miller, Federal Practice and Procedure § 515 at 374-75.  But see United States v. Whitaker, 144 U.S.App.D.C. 344, 349, 447 F.2d 314, 319 (1971).  We need not reach this issue, however, because the defendants were entitled to a lesser-included-offense charge only if it was warranted by the evidence.  Here the evidence clearly pointed to the conclusion that the cocaine was for distribution, not mere possession.  United States v. Marin, 513 F.2d 974, 977 (2d Cir. 1975).

10
There was no prejudicial disparagement of Alvaro's counsel by the trial judge.  Nor did the judge abuse his discretion in denying Alvaro a continuance because Alvaro retained new counsel two weeks prior to the date set for trial.  See United States v. Hall, 448 F.2d 114 (2d Cir. 1971), Cert. denied, 405 U.S. 935, 92 S.Ct. 971, 30 L.Ed.2d 810 (1972).

11
Alvaro Burgos received a fair trial.  His conviction is affirmed.  The conviction of John Burgos is reversed, and the matter is remanded to the district court with instructions to dismiss the indictment.

1
 Garcia was indicted also, but was a fugitive at the time of trial

2
 Proof that Alvaro and Garcia stopped briefly at the Volkswagen in which Alvaro's brother, John, was sitting falls far short of making John a participant in their illegal conspiracy