768 N.E.2d 971 (2002)
Rasoull ALEXANDER, Appellant-Defendant,
v.
STATE of Indiana, Appellee.
No. 49A02-0105-CR-324.
Court of Appeals of Indiana.
May 30, 2002.
*972 David Becsey, Zeigler Cohen & Koch, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Joseph A. Samreta, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION
SULLIVAN, Judge.
Following a bench trial, Rasoull Alexander was convicted of Unlawful Possession of a Firearm by a Serious Violent Felon,[1] a Class B felony, and Carrying a Handgun Without a License,[2] a Class A misdemeanor. Upon appeal, Alexander presents one issue for our review: whether his convictions violate the Double Jeopardy Clause of the Indiana Constitution.
We affirm in part and reverse in part.
At approximately 9:00 p.m. on December 31, 1999, Indianapolis police officers responded to a call of shots being fired. The individual firing the shots was described as a black male wearing a black hat. Upon arriving at the location identified in the call, the officers observed an individual matching the description getting into a car parked along the side of the street. The officers stopped this individual before he got into the vehicle, and as the officers approached him, they observed two individuals sitting in the front seat of the car, one of whom was Alexander, who was sitting on the passenger side. The officers also observed two handguns, later identified as a .44 caliber revolver and a 9mm handgun, lying on the front seat between Alexander and the other individual. Alexander was unable to produce a permit for either of the guns.
Alexander was charged with Count I, unlawful possession of a firearm by a serious violent felon, Count II, possession of cocaine and a firearm, Count III, possession of cocaine, and Count IV, carrying a handgun without a license.[3] On March 21, 2001, Alexander was tried by bench trial. At the conclusion of the evidence, the trial court found Alexander guilty of unlawful possession of a firearm by a serious violent felon as a Class B felony and of carrying a handgun without a license, as a Class A misdemeanor. The trial court sentenced Alexander to ten years imprisonment on the former and one year on the latter *973 conviction, the sentences to run concurrently.
Upon appeal, Alexander argues that his conviction and sentence for carrying a handgun without a license should be vacated because they violate double jeopardy considerations. Specifically, Alexander maintains that there is a reasonable possibility that the trial court used the same evidentiary facts to establish that he carried a handgun without a license and to establish that he unlawfully possessed a firearm as a serious violent felon.
Indiana's Double Jeopardy Clause is embodied in Article 1, Section 14 of the Indiana Constitution, which provides, "No person shall be put in jeopardy twice for the same offense." Our Supreme Court has concluded that this provision "was intended to prevent the State from being able to proceed against a person twice for the same criminal transgression." Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999). In addition to the traditional notion that double jeopardy bars subsequent prosecution, our Supreme Court has construed Indiana's Double Jeopardy Clause as also prohibiting multiple punishments. Id.
In Richardson, our Supreme Court established a two-part test for analyzing double jeopardy claims. Specifically:
"two or more offenses are the `same offense' in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Id. at 49.
The statutory elements test and the actual evidence tests are separate considerations under the double jeopardy analysis. Id. at 53. Thus, even where the statutory elements define the offense as capable of being committed by disparate acts, the convictions may nonetheless constitute a violation of double jeopardy "if the actual evidence presented at trial demonstrates that each offense was not established by separate and distinct facts." Castillo v. State, 734 N.E.2d 299, 303 (Ind.Ct.App. 2000), reh'g denied, trans. granted, summarily aff'd, 741 N.E.2d 1196 (Ind.2001). See also Richardson, 717 N.E.2d at 53.
When a defendant challenges his convictions under the actual evidence prong of the Richardson analysis, the defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish one offense may also have been used to establish a second challenged offense. 717 N.E.2d at 53.[4] "The Richardson actual evidence test was carefully and deliberately crafted to provide a general formulation for the resolution of all actual evidence test claims." Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002).
Nonetheless, in Spivey, the Court found it necessary to clarify the Richardson actual evidence test, stating that the actual evidence test "is not merely whether the evidentiary facts used to establish one of the essential elements of one offense may also have been used to establish one of the essential elements of a second challenged offense." 761 N.E.2d at 833 (emphasis in original). The Court further stated that there is no double jeopardy violation when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense. Id. In other words, the court indicated that *974 there will be a double jeopardy violation only where the evidentiary facts establishing all of the essential elements of one offense also establish all of the essential elements of a second challenged offense.
Notwithstanding the manner in which Spivey seems to phrase the Richardson actual evidence test, in application our Supreme Court has consistently overturned convictions upon double jeopardy grounds where the evidentiary facts establishing an essential element of one offense also establish all of the essential elements of the second challenged offense. Indeed, this is the import of the holding in Richardson itself.
In Richardson, the evidence presented at trial established that the defendant, along with two other individuals, hit the victim from behind with a beer bottle and knocked him to the ground. The three men then repeatedly kicked and beat him. While two of the men held the victim down, the third individual took the victim's billfold from his pocket. Before the three men left, they pushed the victim's body over the side of a bridge. The Court considered this evidence and concluded that there was "a reasonable possibility that the evidentiary facts used by the jury to establish the essential elements of robbery were also used to establish the essential elements of the class A misdemeanor battery." Richardson, 717 N.E.2d at 54.
We begin by noting that in Richardson, the evidentiary facts establishing all of the essential elements of the aggravated battery conviction could not have established all of the essential elements of robbery, in that the beating itself would not have established the taking element of the robbery conviction. However, where the reverse is considered, as did the Richardson court, looking first at the evidentiary facts establishing all of the essential elements of robbery and then at the evidentiary facts establishing all of the essential elements of battery, the Court held that there was a double jeopardy violation.
Be that as it may, upon closer review, implicit in the Richardson Court's holding is that the double jeopardy violation did not result from the facts establishing all of the essential elements of robbery, but only those facts which established the serious bodily injury element of the Class A robbery charge and also all of the essential elements of the battery charge. In Richardson, the Court indicated that had actual evidence been presented to prove that the post-robbery conduct of pushing the victim off of the bridge resulted in serious bodily injury, then such may have constituted a factually separate battery justifying a separate conviction. From this, we infer that the Court was not concerned with the facts establishing all of the essential elements of robbery, but rather those evidentiary facts which established only one of the essential elements of the robbery conviction, that is, the serious bodily injury enhancement. Thus, while at a more general level it could be said that the facts establishing all of the essential elements of the robbery conviction also establish all of the essential elements of the battery conviction, such is an unclear statement given the Court's own analysis. In Richardson, it was but one evidentiary fact, i.e. the beating, which established an essential element of the robbery conviction and all of the essential elements of the aggravated battery conviction which constituted double jeopardy.
Similarly, in Spears v. State, 735 N.E.2d 1161 (Ind.2000), reh'g denied, the defendant was charged with murder and robbery, enhanced to a Class A felony because it resulted in serious bodily injury, which was alleged as the death which formed the basis for the murder conviction. In addressing the double jeopardy implications of the two convictions using the Richardson actual evidence test, the Court stated, "there is at least a reasonable possibility *975 if not a near certaintythat the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing an essential element of robbery as a Class A felony." Id. at 1165 (emphasis supplied). In other words, the evidence establishing the serious bodily injury element of the robbery conviction also established all of the essential elements of the murder conviction. The Court's language again implies that where a fact or set of facts establishes an essential element of one offense and also all of the essential elements of a second offense, there is a double jeopardy violation.
In Logan v. State, 729 N.E.2d 125 (Ind. 2000), the Court again considered a challenge to two convictions under the Richardson actual evidence test. After considering the evidence presented at trial, the Court concluded that the same evidence used to support the murder conviction was also used to elevate the conviction for robbery to a Class A felony. Id. at 136. Again, we may infer from the Court's holding that where the evidentiary facts establishing an element of one challenged offense also establish all of the essential elements of a second challenged offense, then the convictions cannot stand together.
In yet another case, Hampton v. State, 719 N.E.2d 803 (Ind.1999), the Court again considered a defendant's actual evidence challenge to his convictions for murder and robbery as a Class A felony. The Court stated that "[t]he same evidence that supported the murder conviction, the act of stabbing, may have also been used to convict Defendant of robbery as a Class A felony." Id. at 809 (emphasis supplied). In Hampton, one could conclude that the Court simply looked at one evidentiary fact, i.e. the act of stabbing, and because such established the essential elements of murder and was a common evidentiary fact necessary to prove an essential element of the robbery conviction, concluded that the convictions violated double jeopardy principles.[5]
*976 In the two and one-half years since the Richardson decision, the Court has routinely applied the Richardson actual evidence test such that where the facts establishing an essential element of one offense also establish all of the essential elements of a second challenged offense, the two convictions standing together violate double jeopardy.
If we interpret Spivey to indicate that our Supreme Court intended to change the manner in which the Richardson actual evidence test is to be applied, one may observe that the Court's "new" phrasing of the Richardson actual evidence test may, in some situations, be nothing more than a repetition of the statutory elements test. We do not perceive that to be the Supreme Court's intent. Thus, we are faced with a dilemmawhether to follow the example set forth in the application of double jeopardy principles or follow the Supreme Court's phrasing of the Richardson/Spivey actual evidence test. It is our view that the former is the more reasonable course to follow.
In the case at bar, Alexander asserts that the general nature of the charging information, and the broad, nonspecific way the case was prosecuted and argued, i.e., without specific reference to separate guns for separate crimes, support his argument that each offense was not established by separate and distinct facts. Alexander also directs us to the trial court's statement made at the conclusion of the evidence:
"Under the theory of constructive possession, which is where this case falls, obviously what the State would have to show is knowledge of the weapon or contraband and a present ability to exert dominion, control or assert some possessory interest over the item. It strains credibility to suggest that Mr. Alexander would not have known that they [i.e. the handguns] were there. Both the police officers, as they walked up to the vehicle, looked through the windows and saw the weapons lying in the bench seatnothing apparently obstructing them from seeing them. The knowledge could even be inferredassuming that the statement attributable to Mr. Alexander was in fact made that he knew they were therebut he didn't own them. That might have been a response from someone not understanding constructive possessionbelieving that if it wasn't his weapon, that he could not be *977 held accountable for it. So, I think the knowledge ishas been shown clearly. Knowledge that the weapon was there. The proximityI've had testimony that it was lying in the middle of the bench seat. I've had testimony that it was up against his leg or very near him within a foot of him." Transcript at 55 (emphasis supplied).
Alexander asserts that the trial court's statement indicates that the trial court used the same evidentiary facts to establish the essential elements of unlawful possession of a firearm by a serious violent felon and also to establish the essential elements of carrying a handgun without a license.
To convict Alexander of unlawful possession of a firearm by a serious violent felon, the State was required to prove that Alexander was (1) a serious violent felon,[6] (2) who knowingly or intentionally, (3) possessed a firearm.[7]See I.C. § 35-47-4-5(c). As to the carrying a handgun without a license charge, the State was required to prove the essential elements of I.C. § 35-47-2-1, i.e. that Alexander (1) carried a handgun,[8] (2) in any vehicle.[9]See Woods v. State, 768 N.E.2d 1024 (Ind. Ct.App. 2002). But see Collier v. State, 715 N.E.2d 940 (Ind.Ct.App. 1999) (holding that violation of the statutory provision prohibiting possession of a handgun without a license requires only possession of a deadly weapon), trans. denied. The State was not required to prove that Alexander did not possess a valid license to carry the handgun because such is not an essential element of the crime, but rather proof of a valid license is a defense. See Washington v. State, 517 N.E.2d 77, 79 (Ind.1987); Fields v. State, 676 N.E.2d 27, 31 (Ind.Ct. App.1997) (Sullivan, J., dissenting), trans. denied.
Prior to trial, Alexander admitted to a prior felony conviction characterized as a "serious violent felony" under I.C. § 35-47-4-5(b), thereby conceding that he was a serious violent felon within the ambit of I.C. § 35-47-4-5(a). At trial, the State presented evidence that there were two handguns lying on the front seat of the car next to Alexander. From this evidence the trial court found Alexander guilty of the two charged offenses.
Our review takes into consideration the statement the trial court made at the conclusion of the evidence. Although the trial court did in passing note that there were multiple weapons, i.e. "they," "them," "weapons," found on the seat of the car, it appears that the trial court focused upon only one of the weapons in finding Alexander guilty of both crimes. Tr. at 55. After reciting the evidence, the trial court concluded that Alexander had knowledge of "the weapon" in that there was testimony that "it" was lying in the middle of the front seat and that "it" was very near his person. Id. The trial court then, without hesitation, entered convictions on both counts. From this statement, it appears *978 that the trial court relied upon only one of the handguns, which were found lying on the front seat of the car next to Alexander, in finding that Alexander constructively possessed a handgun. This evidence was used to prove both an essential element of the unlawful possession of a firearm by a serious violent felon, i.e. that Alexander possessed a firearm, and all of the essential elements of carrying a handgun without a license, i.e. that Alexander carried a handgun in the vehicle.
Moreover, the general nature of the charging information, and the broad, nonspecific way the case was prosecuted and argued militates in favor of finding that there is a reasonable possibility that the same evidence was used to establish an essential element of one offense and all of the essential elements of the other offense. Indeed, the charging information for both offenses closely tracks the statutory language and refers only to "a handgun." Appendix at 30. Further, in the presentation of its case, the State failed to demonstrate how the offenses were supported by separate and distinct facts. Additionally, in its closing argument, the State failed to distinguish between the evidence as it related to either of the charges. See Carroll v. State, 740 N.E.2d 1225, 1232 (Ind.Ct. App.2000) (acknowledging that when considering double jeopardy claims, the reviewing court may consider evidence presented at trial and closing arguments of counsel), trans. denied. While we generally presume that the trial court knows and follows the law, here, in its findings, the trial court failed to distinguish between the evidence it used to support the two convictions.
Therefore, we hold that Alexander has demonstrated that there is a reasonable possibility that the evidentiary facts used to establish an essential of his conviction for unlawful possession of a firearm by a serious violent felon, i.e. that he constructively possessed a firearm, were also used to establish that he possessed a handgun without a license. Therefore, we remand to the trial court with instructions to vacate Alexander's conviction and sentence for carrying a handgun without a license.
We affirm the Class B felony conviction but remand with instructions to vacate Alexander's conviction and sentence for carrying a handgun without a license.
KIRSCH, J., and ROBB, J., concur.
NOTES
[1]  Ind.Code § 35-47-4-5 (Burns Code Ed. Supp.2001).
[2]  Ind.Code § 35-47-2-1 (Burns Code Ed. Repl.1998); Ind.Code § 35-47-2-23(c) (Burns Code Ed. Repl.1998).
[3]  Prior to the bench trial, the State dismissed Counts II and III.
[4]  The Richardson Court couched the test in terms of the essential elements of the two offenses being considered.
[5]  Numerous other cases decided by our Supreme Court have reached results upon the facts of those cases which lead to the inescapable conclusion that when the evidentiary fact or facts necessary to prove an essential element of one offense also establish all of the essential elements of a second challenged offense, the offenses violate the Indiana Constitution's prohibition against double jeopardy. See Johnson v. State, 749 N.E.2d 1103 (Ind. 2001) (holding that convictions violated double jeopardy because the same evidence that supported murder conviction also established the serious bodily injury element of burglary offense); Fosha v. State, 747 N.E.2d 549 (Ind. 2001) (holding that evidence of the overt act alleged in the conspiracy to commit murder charge, i.e. the shooting, was also used to establish essential elements of murder); Roby v. State, 742 N.E.2d 505 (Ind.2001) (holding that the State used the same evidence to establish the essential elements of murder and the serious bodily injury element of Class B felony neglect); Burnett v. State, 736 N.E.2d 259 (Ind.2000) (holding that there was a reasonable possibility that the same evidence of a stabbing used by the jury to establish the serious bodily injury element of aggravated battery as a Class B felony was also used to establish the substantial risk of death element of robbery as a Class A felony); Grace v. State, 731 N.E.2d 442 (Ind.2000) (holding that defendant's convictions for murder and robbery as a Class A felony could not stand together because they were based upon the same bodily injury to the same victim), reh'g denied; Lowrimore v. State, 728 N.E.2d 860 (Ind.2000) (concluding that evidence of the same serious bodily injury, i.e. a broken neck, was used to establish not only the murder charged but also the essential element of robbery as a Class A felony), reh'g denied; Lundberg v. State, 728 N.E.2d 852 (Ind.2000) (holding that it was reasonably possible that the jury relied upon the same evidence to establish the essential elements of murder and the overt act of the conspiracy charge); Mitchell v. State, 726 N.E.2d 1228 (Ind.2000) (holding that there was a reasonable possibility that the evidence offered to prove the resulting serious bodily injury for neglect as a Class B felony was used to establish the essential elements of murder), reh'g denied; Marcum v. State, 725 N.E.2d 852 (Ind.2000) (holding that there was at least a reasonable possibility, if not a near certainty, that the jury used the same evidentiary fact to prove an essential element of conspiracy to commit burglary and also the essential elements of the auto theft), reh'g denied; Cutter v. State, 725 N.E.2d 401, 410 (Ind.2000) (concluding that "it is highly likely that the same evidence that constituted the essential elements of murder ... was included among the evidence establishing the `using or threatening the use of deadly force' element of rape as a Class A felony.") (emphasis supplied), reh'g denied; Turnley v. State, 725 N.E.2d 87, 91 (Ind.2000) (holding that "there is at least a reasonable possibilityindeed a high probability that the jury used the same evidentiary fact ... to prove an essential element of the conspiracy to commit murder (the overt act) and also the essential element of murder.") (emphasis supplied); Chapman v. State, 719 N.E.2d 1232 (Ind.1999) (holding under the Richardson actual evidence test that convictions for murder and robbery as a Class A felony violated double jeopardy where the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing the essential elements of robbery as a Class A felony); Wise v. State, 719 N.E.2d 1192 (Ind. 1999) (finding a double jeopardy violation where the same evidence used by the jury to establish the essential elements of murder was also included among the evidence establishing the essential elements of arson as a Class A felony because it resulted in serious bodily injury to someone other than the defendant).
[6]  A "serious violent felon" is a person who has been convicted of committing a serious violent felony in Indiana. I.C. § 35-47-4-5(a). A "serious violent felony" includes "dealing in ... cocaine." I.C. § 35-47-4-5(b) (effective July 1, 1999). Here, Alexander stipulated to an August 14, 1996 conviction for Dealing in Cocaine, a Class B felony.
[7]  A firearm is defined as "any weapon that is capable of or designed to or that may readily be converted to expel a projectile by means of an explosion." Ind.Code § 35-47-1-5 (Burns Code Ed. Repl.1998).
[8]  A handgun is defined as "any firearm ... [d]esigned or adapted so as to be aimed and fired from one (1) hand, regardless of barrel length." Ind.Code § 35-47-1-6 (Burns Code Ed. Repl.1998).
[9]  Violation of I.C. § 35-47-2-1 is a Class A misdemeanor. See Ind.Code § 35-47-2-23(c) (Burns Code Ed. Repl.1998).


272 F.2d 517
106 U.S.App.D.C. 288
Edgar W. GRAHAM, Appellantv.Alfred C. RICHMOND, Commandant of the United States CoastGuard, Appellee.
No. 14636.
United States Court of Appeals District of Columbia Circuit.
Argued March 6, 1959.Decided Nov. 5, 1959.

Mr. Leonard B. Boudin, New York City, with whom Mr. David Rein, Washington, D.C., was on the brief, for appellant.
Mr. Cecil R. Heflin, Attorney, Department of Justice, with whom Mr. Homer H. Kirby, Jr., Attorney, Department of Justice, was on the brief, for appellee.
Before FAHY, DANAHER and BURGER, Circuit Judges.
FAHY, Circuit Judge.

1
Appellant, a merchant seaman and marine engineer, applied to the Commandant of the United States Coast Guard, the appellee, who was in charge of administering the applicable regulations, for a validated document required to enable him to secure employment on board vessels of the United States Merchant Marine, a private industry.1  The application consisted in part of fourteen questions, to be answered by the applicant in writing under oath.  Appellant refused to answer three of the questions, stating they were violative of his constitutional rights, particularly under the First Amendment, and were so vague as to make accurate answers impossible.  His application was refused further consideration, thus precluding him from obtaining employment in the Merchant Marine.  Appellant then asked for a specific statement of charges and a hearing but was informed that his request was premature.  He sued in the District Court for a judgment declaring that he was eligible for such employment, and for related relief.  During the pendency of the suit appellee substituted for the original three unanswered questions three others of like but narrower scope.  Appellant declined to answer the substituted questions on the same grounds and again requested a statement of reasons and a hearing.  Neither was granted.2  Appellee moved for summary judgment.  The court ruled that since appellant had refused to answer questions appellee had a right to ask, appellee need proceed no further with the application.  Appellant's complaint was dismissed and he appeals.

2
The eleven questions appellant answered inquired as to his arrest or conviction of certain offenses, his advocacy of treason, sedition, espionage or sabotage, the giving of aid or comfort to any person involved in such offenses, his association with any person who had committed such acts, his employment by or on behalf of a foreign government, his being subject to or under the influence of a foreign government, whether he had relatives or associates living in certain countries, whether he advocates or supports or ever advocated or supported the overthrow or alteration of the government of the United States by force or by any unconstitutional means, his association with any person who had done so, and whether he had ever disclosed without authority any military or government information to any foreign government or person not authorized to receive it.  He answered each of these eleven questions in the negative.

3
The three unanswered questions, in their substituted form, are:

4
'12.  Are you now subscribing or have you subscribed within the past five years to the 'Daily Worker,' 'Peoples World,' or to 'Political Affairs'?  Answer 'YES,' or No.' ..............  If your answer is 'YES,' give full particulars.

5
'13.  Are you now or have you been engaged within the past ten years in the sale, gift, publication or distribution of any written or printed matter prepared, produced or published by the Communist Party or by any of its branches or agents, or by Russia, China, Bulgaria, Hungary, East Germany, Poland, Roumania, Lithuania, Latvia, Estonia, or Czechoslovakia?  Answer 'YES' or 'NO.' ..............  If your answer is 'YES,' give full particulars.

6
'14.  Are you now or have you ever been a member of, or affiliated in any way with any of the organizations set forth below?  Answer 'YES' or 'No.' ..............  If your answer is 'YES,' give full particulars.

7
'Communist Party, United States of America and sub-divisions and branches

Abraham Lincoln Brigade
International Workers Order
Civil Rights Congress

8
Labor Youth League.'

9
Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, involved a Department of Defense security clearance program for employees of a private manufacturer producing goods for the armed services of the United States.  The program was held to affect the liberty and property of the employee protected from unreasonable governmental interference by the Due Process Clause of the Fifth Amendment.  The hearing procedures applied to Mr. Greene omitted the traditional safeguards of confrontation and cross-examination in the process of fact finding.  Concerned as to whether this omission could be reconciled with due process of law, the Court refrained from deciding this grave question and held the program invalid as administered in Mr. Greene's case because there was no clear authorization by Congress or the Executive for the Department of Defense to have created a security program under which an employee might lose his job through proceedings conducted without the right of confrontation and cross-examination.

10
In this light we inquire whether the Magnuson Act,3 upon which the Merchant Marine screening program before us ultimately rests, has authorized the appellee to deny appellant private employment in that industry merely because he refused to answer the three questions.

11
The Act authorizes the President, upon making a certain finding, to institute measures and issue rules and regulations to safeguard vessels, harbors, ports and waterfront facilities against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, and to employ such departments, agencies, officers and instrumentalities of the United States as the President may deem necessary.  Under this authority the President on October 20, 1950, issued Executive Order No. 10173, by which he approved regulations designed to safeguard against the dangers mentioned in the Act.4  The regulations provide inter alia that employment shall be conditioned upon the applicant receiving a validated document from the Commandant of the Coast Guard, and laid down a standard to guide the Commandant, namely, that the Commandant shall be satisfied that the character and habits of the applicant 'are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.'  The regulations also provide that the form, conditions, and manner of issuance of the validated document shall be as the Commandant prescribes.  Pursuant to this Presidential authority the Commandant promulgated regulations.  33 C.F.R. 121.01-121.29 (Supp.1959).  One of these is entitled 'Standards,' set forth in full in the margin.5  Upon receipt of a complete application, (see 121.05) and such further information as the Commandant may require in case the application as first submitted is deemed insufficient, there are detailed provisions for processing the application (ibid.), in the course of which notice is given the applicant if the Commandant is not satisfied that his character and habits of life are such as to authorize the belief that his presence on board would not be inimical to the security of the United States.  (121.07) The notice is to contain a statement of reasons, as specific as the interests of national security shall permit, with pertinent information such as names, dates, and places, in such detail as to permit reasonable answer.  (121.11) Written answer may be filed, including statements, affidavits by third parties, or such other documents or evidence as the applicant deems pertinent.  (Ibid.) Thereupon a committee shall prepare an analysis of the information and make recommendations for action by the Commandant.  If he is still not satisfied under the prescribed standard he is to refer the matter to a board.  (121.19) The applicant may appear before the board in person or by counsel or representative of his choice, may present testimonial and documentary evidence, and may cross-examine any witness appearing before the board.  The board 'shall reach its conclusion and base its determination on information presented at the hearing, together with such other information as may have been developed through investigations and inquiries or made available by the applicant * * *.'  (Ibid.) The recommendation of the board, with the complete record, shall be sent to the Commandant.  If his decision is adverse he must notify the applicant of his refusal to issue the document and that an appeal may be taken to an appeal board at Coast Guard Headquarters in Washington.  (121.23) If upon receipt of the appeal board's recommendation the Commandant is still not satisfied under the prescribed standard he shall notify the applicant that his appeal is denied.  (121.25) Should the Commandant, during any of these procedures, reach a favorable decision the document necessary for employment shall be issued.6

12
It will be seen that in these comprehensive regulations of the President and Commandant there is nothing to the effect that refusal to answer any of the questions contained in the questionnaire shall in and of itself cause rejection of an application.  Such a result is not even remotely suggested by the Magnuson Act, the Executive Order, or the regulations of the President or of the Commandant.  The basic standard for employment clearance, set forth by both President and Commandant, is, as we have shown, that 'the Commandant is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States.'  Yet appellant's right to employment was never measured by this standard, notwithstanding the absence of any provision relieving the Commandant of the necessity of applying it.  Moreover, the regulations make clear that should the Commandant not be satisfied short of a hearing that the standard is met, then a hearing shall be had.  As noted earlier, appellant twice requested a hearing but none was granted.

13
We assume, as was decided in Parker v. Lester, 9 Cir., 1955, 227 F.2d 708, that the Magnuson Act validly authorizes a screening of persons seeking employment in the American Merchant Marine; and we assume also that in the screening process the three unanswered questions are relevant.  But what is relevant is not here conclusive.  One relevant factor is to be considered with whatever else is relevant.7  As the Commandant's own brief in this court points out, had the three questions been answered affirmatively appellant would not automatically have been disqualified, since the answers would merely have been taken into consideration by the Commandant in reaching a decision.  We think it equally true that a refusal to answer the three questions for the reasons appellant assigned does not automatically disqualify him.  It is nowhere so provided in the Act, Executive Order, or regulations.  Here the Commandant by regulation has wholly failed to provide for rejection of an application short of a hearing if the Commandant is not satisfied without a hearing as to the security qualifications of the applicant.  Since he has not provided that an applicant who refuses to answer certain questions shall be entitled to no further consideration, the applicant was entitled to the processing of the application in the manner which the regulations do provide.  Service v. Dulles, 1957, 354 U.S. 363, 386, 387, 77 S.Ct. 1152, 1 L.Ed.2d 1403, teaches us that so long as the regulations remain unchanged and the Commandant has provided for notice of reasons, answer and a hearing in order to permit him to make the determination he is required to make, he is bound by his own regulations.  In this processing a critical factor may turn out to be the applicant's refusal to answer certain questions.  But any such factor must be weighed with all other evidence which might tend to satisfy the Commandant that the presence of the applicant on shipboard would not be inimical to the security of the United States.  Perhaps the applicant can submit cogent reasons for his failure or refusal to answer the questions.  Perhaps the Commandant will find unsatisfactory such reasons or explanations as may be offered.  Even though he cannot satisfy the Commandant, 'he is entitled to the opportunity to try. * * * At least he will have been afforded that due process required by the regulations in such proceedings.'  United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 268, 74 S.Ct. 499, 504, 98 L.Ed. 681.  The situation may be analogized to that referred to by Mr. Justice Frankfurter, concurring in part in Vitarelli v. Seaton, 1959, 359 U.S. 535, 547, 79 S.Ct. 968, 976, 3 L.Ed.2d 1012, 'if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.'

14
Reversed and remanded for further proceedings not inconsistent with this opinion.

15
BURGER, Circuit Judge (dissenting).

16
In view of the appellant's original failure and subsequent refusal to answer concededly pertinent questions authorized by the screening process, I cannot see how the majority reaches its result.

17
The Communist invasion of South Korea, involving as it did and still does the maintenance of supply lines of vast proportions to South Korea, brought about the enactment of the so-called Magnuson Act, which provided that whenever the President finds that the security of the country is in danger by reason of actual or threatened war, or subversive activities, he is authorized to issue rules and regulations to guard the United States Merchant Marine from sabotage or subversion.  The President is also authorized to designate officers to carry out the authority of the Act.  Under this authority, President Truman signed Executive Order 10173 in 1950 and amended it in 1951 by Executive Order 10277 and in 1952 by Executive Order 10352.  In these orders he cited the threatened security by reason of subversive activities and ordered that 'No person shall be issued a document required for employment on a merchant vessel of the United States * * * (unless) the Commandant (Coast Guard) is satisfied that the character and habits of life of such person are such * * * that the presence of the individual on board would not be inimical to the security of the United States * * *.'  We are bound at the outset by the premise that the emergency declared by President Truman in 1950, 1951, 1952, with respect to this subject, is still operative, valid and pressing.

18
Acting under this authority, the Coast Guard issued regulations which set up the form of application and procedures for processing applications and provided that applications be signed under oath.  Among other questions asked by the Coast Guard questionnaire was the following:

19
'14.  Are you now, or have you ever, been, a member of, or affiliated or associated with in any way * * * (the) Communist Party, U.S.A, its subdivisions, (etc.) * * *.'

20
Appellant failed to answer this question and, after being afforded a second opportunity to answer it in substantially the same form, refused to do so, contending that the Coast Guard is without authority to question him about possible Communist Party membership as a condition of granting him a license as a steam engineer on United States Merchant Marine vessels.  The majority opinion does not question the Government's authority to question Graham regarding possible Communist affiliations.  Indeed, it specifically concedes that the questions are relevant.  It is clear therefore, to all of us, that possible membership in the Communist Party is a proper subject of inquiry.  The paradox is that in the face of conceding the pertinency of the questions, the majority nonetheless holds that Graham may refuse to answer, and notwithstanding this refusal, the Coast Guard must nevertheless go through the process of a hearing despite Graham's default.

21
I confess inability to follow these steps.  For if the questions be authorized and pertinent, which is recognition that the information to be gained from their answers is necessary to any decision the Coast Guard may make, why should the Coast Guard be compelled by this court to take any further action until the questions are answered?

22
The fallacy in the majority's position and reasoning is best illustrated when we remember that the Coast Guard did not, and does not, 'refuse' Graham his license, nor is it correct to characterize its action as a 'rejection.'  It simply refuses to act upon an admittedly incomplete application.1  The regulations clearly indicate that before any license is to issue, the applicant must supply information 'sufficiently complete' so that a determination as to his qualifications can be made.2  It is only after such data has been submitted that the Coast Guard is authorized to make any determination or take any action.  It is simply not accurate to say, as the majority does, that 'the Commandant by regulation has wholly failed to provide for rejection of an application short of a hearing * * *.'  The precise opposite is explicitly provided in the regulations:

23
'Upon receipt of a complete application and such further information as the Commandant may have required in those cases where the application, as first submitted, was not deemed sufficient, a committee * * * shall prepare an analysis of the information available to the Commandant and make recommendations for action by the Commandant.' Reg. 121.05(e), 33 C.F.R. 121.05(e).

24
This seems to me explicit authority for the Commandant to refuse to act on anything less than a 'complete application,' and to this date the applicant has not submitted a complete application even though afforded a second opportunity to do so.  Whatever action the Commandant may later take, or the correctness of any determination he may make as to this applicant, or the constitutionality of the standards prescribed in the Executive Orders, are all questions for the future, but until Graham properly applies for a license there is nothing for the Coast Guard to act upon.

25
The majority cites Greene v. McElroy, 1959, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, as pertinent.  But that case has no application here.  There the Supreme Court simply held that in a hearing upon fitness for private employment in the performance of government defense contracts, the courts will not read into the statute or order a congressional or executive intent to deny the employee confrontation and cross examination of sources of adverse information, the Executive Order and the statute being silent on these points.  That question never arises here, since Graham did not comply with the preliminary administrative procedures essential to invoke a hearing and the controlling regulations are not silent.  Graham has not now been, and never was denied his right to a hearing or to confront anyone who may testify against him.  He can have his hearing literally at once by simply answering the questions, and the Coast Guard has so informed him.3

26
There is nothing novel or unconstitutional in the refusal by an administrative body to process an incomplete application.  It has long been the law, and this court has expressly held, that a person seeking a license or privilege must 'establish those qualifications for the license which would make its grant serve the public interest, and this necessarily presupposes a frank, candid, and honest disclosure of the facts as to (his) qualifications deemed by the commission essential to enable the commission to act within its powers.'4  Thus we have held specifically that an applicant must supply the required data when seeking a license before he has any rights.5  And in a proceeding for an F.C.C. license, the Eastern District Court (three judges) of New York has said that an applicant must fully supply pertinent data as to character, in the absence of which the F.C.C. can deny a license to a person refusing to so disclose.6  In the instant case the Coast Guard has not denied anything, but has merely refused to process the application because the applicant refuses to give pertinent data necessary for its determination, and which if given might cause the license to be granted at once.  A license may not be affirmatively denied without a hearing, under the regulations.

27
The courts have uniformly described as long-settled the proposition that where an administrative procedure is authorized, those who seek privileges or licenses under it must exhaust their administrative remedies before the courts are granted judicial review.  See National Lawyers Guild v. Brownell, 1955, 96 U.S.App.D.C. 252, 257, 225 F.2d 552, 557, certiorari denied, 1956, 351 U.S. 927, 76 S.Ct. 778, 100 L.Ed. 1457.  In the recent case of National Council of American-Soviet Friendship, Inc. v. Brownell, 1957, 100 U.S.App.D.C. 116, 119, 243 F.2d 222, 225, this court dealt with a situation where the appellant had refused to proceed with the hearing authorized by statutes and regulations, but challenged the action under which they were listed as 'subversive.'  Pointing out that the designation as 'subversive' was not final, (precisely as the action of the Coast Guard is not final here) we said:

28
'Rather, appellants insist that they may default and still continue to litigate. * * *  The plight of the appellants is of their own choice and of their own making.'

29
Elsewhere in the opinion we point this up, saying:

30
'it is 'the long-settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Ibid.

31
Here the appellant, far from 'exhausting' his administrative steps, has not even completed the preliminary step to invoke the proceedings established by the regulations.  Under our own pronouncements, Graham should not be permitted 'to default and still continue to litigate.'

32
Appellant is seeking a license for employment on a merchant vessel under conditions which can be fully as important to national security as if he were seeking service in the Navy, and any suggestion that he cannot be asked about his possible Communist affiliation or that he should receive the aid of the courts in the face of two refusals to answer is without precedent in the law governing administrative processes.  Similarly, I am unable to understand the concept that the President and the Commandant of the Coast Guard may not require that this question be answered as a preliminary step of the process of applying for a license.  How can we say that questions may be asked, as the majority does by conceding pertinency and the authority to ask them, and then hold that no answer be required as a condition to any consideration of the application?

33
On the tenuous authority of United States ex rel. Accardi v. Shaughnessy, 1954, 347 U.S. 260, 268, 74 S.Ct. 499,7 the majority commands that a hearing be held on appellant's application, even though it is incomplete, for the sole reason that 'perhaps the applicant can submit cogent reasons for his failure or refusal to answer the questions.'  I agree with the majority that this can be the only purpose for such a hearing since Graham has already supplied all other pertinent information needed by the Coast Guard.  However, a moment's reflection reveals the futility, as well as the absence of need for, any hearing or any 'further processing.'  Common experience denies that these unanswered questions lend themselves better to oral than to written answers.  Indeed, I suggest the contrary is true.

34
Moreover, the record is crystal clear that Graham at all times was-- and indeed still is-- free to submit to the Coast Guard whatever 'cogent reasons' he had for his silence on the critical subject of Communist Party connections.  The Coast Guard, scrupulously following its own regulations which explicitly give the Commandant discretion to call for additional information 'under oath in writing or orally,' afforded Graham an opportunity to remedy his initial refusal to answer, and he refused.  Hence there has been no want of opportunity to set forth reasons, cogent or otherwise, for his default.

35
The truth of the matter is that Graham has already explained his refusal on his first questionnaire.  Item 15 of the application stated:

36
'(Use this space to explain Items 1 through 14.  Show item numbers to which answers apply.  Attach a separate sheet if there is not enough space here.)'

In this space Graham responded:

37
'On items 12, 13 & 14 I cannot, in good conscience, submit answers because I am positive that the questions are violative of my rights under the Bill of Rights of the U.S. Constitution, in particular, the First Amendment thereof.  Furthermore those questions are so vague as to make accurate answers impossible.'

38
He refused to avail himself of a second opportunity to give anything more than this explanation.8  These answers demonstrate that what he wants is not to give reasons and explanations but to make constitutional and legal arguments which only his lawyers can make for him.  Indeed appellant's counsel, who is experienced and sophisticated in the so-called 'loyalty' and 'security' cases, has acted for appellant in carrying on the correspondence with the Coast Guard in its efforts to get answers to questions 12, 13 and 14.  See note 1, supra.  We cannot regard his responses as the work of an inarticulate layman who needs a hearing in order to make his position known.  For this purpose no hearing is required or even useful unless the majority is prepared to read into the regulations and Executive Order or the statute a proviso that oral argument must be allowed to counsel.  We should also bear in mind that Graham has not asked for a hearing but for a license.

39
For these reasons I am unwilling to exercise judicial power to command the Executive Branch to perform the useless formality of a hearing on a patently incomplete application in the face of an unambiguous regulation which contains exactly what the majority says it omits.  In refusing 'to submit under oath in writing (as requested by the Commandant) * * * such further information as may be required' Graham has failed to perform a condition precedent to any action by the Coast Guard.  In effect the majority opinion would shift to the Coast Guard the burden of fashinoing for itself an investigating agency to discover highly pertinent information concerning an applicant which the applicant can and should promptly supply.  In the early critical period of any new national emergency which would call for swift expansion of our Merchant Marine, this majority interpretation would place upon the Coast Guard an intolerable if not an impossible burden never intended by Congress and not warranted in the law relating to licensing procedures of any kind.

40
I suggest that were we confronted with an applicant who, seeking a taxi license, refused to answer an application question as to whether he had ever been convicted of reckless driving or drunken driving, we would summarily admonish the applicant that he was not 'entitled to judicial relief * * * until the prescribed administrative remedy has been exhausted.'  See National Council of American-Soviet Friendship, Inc. v. Brownell, supra.9

41
I would affirm the District Court.

1
 The requirement of a validated document did not apply to vessels of less than 100 tons, but we think the availability of this employment without the document is immaterial

2
 This was solely because of the refusal of appellant to answer the three questions.  Thus, under date of June 11, 1958, the Commandant wrote appellant when substituting the three questions:
'Upon receipt of your complete answers to these amended questions and the certification thereof, your application will be reviewed and if the Commandant is unable to satisfy himself at that stage of the administrative process with regard to your eligibility for validation, you will receive a 'statement of reasons,' notice an opportunity for hearing pursuant to regulations promulgated for such purpose.'

3
 This Act provides, 40 Stat. 220 (1917), as amended by 64 Stat. 427-428 (1950), 50 U.S.C. 191, 194 (1952), 50 U.S.C.A. 191, 194
'(50 U.S.C. 191 (1952)).  Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States, the President is authorized to institute such measures and issue such rules and regulations--
'(b) to safeguard against destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the jurisdiction of the United States.'
(50 U.S.C. 194 (1952)).  'The President may employ such departments, agencies, officers, or instrumentalities of the United States as he may deem necessary to carry out the purpose of this chapter.'

4
 Executive Order No. 10173, 15 Fed.Reg. 7005, 7007-08 (Oct. 20, 1950), U.S.Code Cong.Service 1950, p. 1661, as amended by Executive Order No. 10277, 16 Fed.Reg. 7537-38 (Aug. 2, 1951) U.S.Code Congressional and Administrative News 1951, p. 1073 and Executive Order No. 10352, 17 Fed.Reg. 4607 (May 21, 1952), U.S.Code Congressional and Administrative News 1952, p. 1056, provides in pertinent part:
'Subchapter A-- General
'Part 6-- Protection and Security of Vessels, Harbors, and Waterfront Facilities
'Subpart 6.10-- Identification and Exclusion of Persons From Vessels and Waterfront Facilities
'6.10-1 Issuance of documents and employment of persons aboard vessels.  No person shall be issued a document required for employment on a merchant vessel of the United States nor shall any person be employed on a merchant vessel of the United States unless the Commandant is satisfied that the character and habits of life of such person are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States: Provided, That the Commandant may designate categories of merchant vessels to which the foregoing shall not apply.
'6.10-3 Special validation of merchant marine documents.  The Commandant may require that all licensed officers and certificated men who are employed on other than the exempted designated categories of merchant vessels of the United States be holders of specially validated documents.  The form of such documents, the conditions, and the manner of their issuance shall be as prescribed by the Commandant.  The Commandant shall revoke and require the surrender of a specially validated document when he is no longer satisfied that the holder is entitled thereto.'

5
 33 C.F.R. 121.03 (Supp. 1959):
'Standards.  Information concerning an applicant for special validation endorsement for emergency service, or a holder of such endorsement, which may preclude a determination that his character and habits of life are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, shall relate to the following:
'(a) Advocacy of the overthrow or alteration of the Government of the United States by unconstitutional means.
'(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abetting another to commit such an act.
'(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States.
'(d) Deliberate unauthorized disclosure of classified defense information.
'(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, group, or combination of persons designated by the Attorney General pursuant to Executive Order (No.) 10450, as amended (5 U.S.C.A. 631 note).'

6
 The procedures we have outlined are incorporated in amended regulations adopted after the decision of Parker v. Lester, 9 Cir., 1955, 227 F.2d 708, which struck down the hearing procedures theretofore in effect

7
 See Briehl v. Dulles, 101 U.S.App.D.C. 239, 275, 248 F.2d 561, 597 (dissenting opinion of Judge Fahy).  Reversed on broader grounds, Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204

1
 In a letter of February 19, 1958, the Coast Guard's position was made amply clear to Graham's attorneys.  That letter states, in part:
'In view of the fact Mr. Graham had not previously made application for a validated merchant mariner's document an evaluation of his case is necessary * * *.  In regard to the evaluation, no further action can be taken until such time as Mr. Graham answers Items 12, 13, and 14 of the questionnaire * * *.'

2
 Coast Guard Regulations 121.05(a), (b), 33 C.F.R. 121.05(a), (b) hold that any person seeking a license may make application for it under oath, and 'if an application * * * does not contain replies sufficiently complete in his judgment (Commandant's) for a determination whether the character and habits of life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, the Commandant, in an effort to avoid additional proceedings through credible explanation or to confine further inquiry to matters tending to prove or disprove unfavorable information, shall notify the applicant to submit under oath in writing or orally such further information as may be required for such determination.'  Reg. 121.05(d), 33 C.F.R. 121.05(d).  Under this regulation the Commandant requested Graham to submit 'further information' in writing, and appellant refused

3
 In a letter to Graham dated June 11, 1958, the Coast Guard slightly amended the questions in issue, and stated:
'Upon receipt of your complete answers to these amended questions and the certification thereof, your application will be reviewed and if the Commandant is unable to satisfy himself at that stage of the administrative process with regard to your eligibility for validation, you will receive a 'statement of reasons', notice and opportunity for hearing pursuant to regulations promulgated for such purpose.'

4
 Great Western Broadcasting Ass'n v. Federal Communications Commission, 1937, 68 App.D.C. 119, 121, 94 F.2d 244, 246 construing applications for a broadcasting license from the F.C.C

5
 Briehl v. Dulles, 1957, 101 U.S.App.D.C. 239, 252, 248 F.2d 561, 574: 'There is nothing new or novel about requiring an applicant for a permit or a license to supply pertinent information under oath.  Applicants for radio licenses and air route certificates must do so, and applicants for marriage licenses, voting privileges, and business permits must also.  And, failing to supply toe required data, the applicant cannot exercise his right.'  While this case was subsequently reversed sub. nom.  Kent v. Dulles, 1958, 357 U.S. 116, 78 S.Ct. 1113, on the grounds that the questions there propounded were not authorized by the applicable statutes and regulations, it must be remembered that the majority here concede the pertinence of the questions before us.  In this light, the quoted words of the Briehl case still retain their vitality and are binding on us

6
 Mester v. United States, D.C., 70 F.Supp. 118, 122, affirmed per curiam, 1947, 332 U.S. 749, 68 S.Ct. 70, 92 L.Ed. 336

7
 The Accardi case is not in point for it contained no issue of failure to utilize or exhaust administrative remedies.  The Supreme Court held simply that a habeas corpus petitioner was entitled to a hearing in the District Court to prove his allegations that the Attorney General's listing of him as an undesirable alien he 'planned to deport,' constituted a direction by the Attorney General to his own Board of Immigration Appeals, thus foreclosing any exercise of the Board's discretion.  The complete quotation, part of which is relied upon in the majority opinion, is as follows: 'Of course, the (petitioner) may be unable to prove his allegation before the District Court; but he is entitled to the opportunity to try.'  Thus the Accardi holding has no relation to when and for what purpose an administrative hearing is mandatory.  It simply restates faimiliar law that a habeas corpus petitioner is entitled to a hearing on allegations which, if true, would entitle him to relief

8
 In a letter dated June 24, 1958, Graham stated:
'In our view questions 13 and 14 as amended are still subject to the defect of vagueness which I noted in the original questionnaire.  Further with respect to each of the three questions, 12, 13 and 14, I am of the opinion expressed by me on November 19, namely:
"On items 12, 13 and 14 I cannot, in good conscience submit answers because I am positive that the questions are violative of my rights under the Bill of Rights of the United States Constitution, in particular the First Amendment thereof."

9
 See also Beard v. State Board, 1931, 111 Cal.App. 559, 295 P. 1052; Carville v. Smith, 1947, 211 Ark. 491, 201 S.W.2d 33


                                                                                Opinions of the United
1998 Decisions                                                                                States Court of Appeals
                                                                                for the Third Circuit

4-2-1998

United States v. Marmolejos
Precedential or Non-Precedential:

Docket 96-1735

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1998

Recommended Citation
"United States v. Marmolejos" (1998). 1998 Decisions. Paper 67.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/67

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1998 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed April 2, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1735

UNITED STATES OF AMERICA

v.

FREDDIE MARMOLEJOS,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 90-442-2)

Argued: January 30, 1998

Before: SCIRICA, ROTH, AND RENDELL, Circuit Judges

(Opinion Filed: April 2, 1998)

       Stephen Robert LaCheen
       Anne M. Dixon (ARGUED)
       Lewis Tower Building, 31st Floor
       225 South 15th Street
       Philadelphia, PA 19102
        Attorneys for Appellant

       Walter S. Batty, Jr.
       Amy L. Kurland (ARGUED)
       Office of the United States Attorney
       615 Chestnut Street, Suite 1250
       Philadelphia, PA 19106
        Attorneys for Appellee
OPINION OF THE COURT

RENDELL, Circuit Judge:

This appeal raises the issue of whether the defendant,
Freddie Marmolejos, is entitled to relief under 28 U.S.C.
S 2255 and resentencing by the district court, in light of a
post-sentencing amendment to the application notes to
S 2D1.1 of the United States Sentencing Guidelines.
Because we hold that the amendment clarified the existing
application note, rather than effecting a substantive change
in the law, Marmolejos is entitled to relief and resentencing.
Accordingly, we will reverse the district court and remand
for resentencing with consideration given to the amendment
to the application note.

I.

In June 1991 Marmolejos was convicted of conspiracy to
distribute cocaine in violation of 21 U.S.C. S 846. The jury
found him not guilty of possession with intent to distribute
cocaine under 21 U.S.C. S 841. The evidence showed that
he had negotiated a purchase of 5.00 kg of cocaine but had
delivered only 4.96 kg at the time of the sale. Using this
5.00 kg figure, the district court sentenced Marmolejos in
October 1991 to 126 months in prison, based upon the
version of Application Note 12 to U.S.S.G. S 2D1.1 that was
in effect at that time. After we affirmed the conviction in
August 1992, Marmolejos challenged his sentence by filing
a petition in March 1995 for habeas relief under 28 U.S.C.
S 2255. However, the district court denied the motion and
we affirmed.

In April 1996 Marmolejos then filed a second S 2255
habeas motion for relief from the district court's judgment.1
He contended that his sentencing offense level should have
_________________________________________________________________

1. Marmolejos was not subject to the new restrictions on successive
habeas petitions contained in the Antiterrorism and Effective Death
Penalty Act of 1996, because his second habeas petition was filed five
days prior to the April 24, 1996, date on which the Act took effect.

                               2
been based solely on the 4.96 kg of cocaine he actually
distributed, rather than on the 5.00 kg of cocaine he
intended to distribute as a member of the conspiracy. The
difference was weighty, for Marmolejos's sentence could
have been reduced by five to twenty-nine months if he was
correct.2 In support of his claim, Marmolejos argued that
Amendment 518 to the Guidelines, which changed
Application Note 12 effective November 1, 1995, should
apply to his offense, and that he should be resentenced so
that the amendment could be applied in sentencing him.
The district court, though, rejected Marmolejos's contention
and denied both his habeas motion and his motion for
reconsideration, holding that the amendment was not to be
given retroactive effect. Marmolejos then filed an appeal,
which we agreed to consider. We have jurisdiction over the
appeal pursuant to 28 U.S.C. S 2253(a), and we exercise
plenary review of the district court's ruling. See United
States v. Higgins, 128 F.3d 138, 139 (3d Cir. 1997); United
States v. Roman, 121 F.3d 136, 140 (3d Cir. 1997), cert.
denied, 118 S. Ct. 722 (1998).

II.

A.

Section 2D1.1 of the Sentencing Guidelines establishes
the base offense level for defendants who act as parties to
an agreement or conspiracy to sell narcotics, based upon
the quantity of drugs involved. Application Note 12 to
S 2D1.1 addresses the method of determining the
appropriate quantity if the offense involves negotiation to
traffic in narcotics.3 Prior to November 1995, Application
Note 12 provided as follows:
_________________________________________________________________

2. The 4.96 kg figure which Marmolejos posited yields a base offense
level of thirty, whereas the 5.00 kg figure on which he was sentenced
yields a level of thirty-two. The guideline range for a base offense level
thirty with a criminal history category of one is 97-121 months. U.S.
Sentencing Guidelines Manual S 5A (1998). Thus, because Marmolejos
was sentenced to 126 months in prison, his sentence could have been
reduced by anywhere from five to twenty-nine months.

3. The parties have not challenged, nor do we address, the district
court's reliance on this application note in determining the appropriate

                               3
       In an offense involving negotiation to traffic in a
       controlled substance, the weight under negotiation in
       an uncompleted distribution shall be used to calculate
       the applicable amount. However, where the courtfinds
       that the defendant did not intend to produce and was
       not reasonably capable of producing the negotiated
       amount, the court shall exclude from the guideline
       calculation the amount that it finds the defendant did
       not intend to produce and was not reasonably capable
       of producing.

U.S. Sentencing Guidelines Manual app. C at 858 (1998).

Attempting to follow this application note in sentencing
Marmolejos, the district court used "the weight under
negotiation" -- namely, 5.00 kg -- as the relevant quantity.
However, four years after Marmolejos was sentenced,
Amendment 518 to the Guidelines deleted the language of
Application Note 12 and inserted a new set of instructions
in its place. As amended, the application note now reads:

       In an offense involving an agreement to sell a
       controlled substance, the agreed-upon quantity of the
       controlled substance shall be used to determine the
       offense level unless the sale is completed and the
       amount delivered more accurately reflects the scale of
       the offense. For example, a defendant agrees to sell 500
       grams of cocaine, the transaction is completed by the
       delivery of the controlled substance - actually 480
       grams of cocaine, and no further delivery is scheduled.
       In this example, the amount delivered more accurately
       reflects the scale of the offense. In contrast, in a
       reverse sting, the agreed-upon quantity of the
       controlled substance would more accurately reflect the
       scale of the offense because the amount actually
       delivered is controlled by the government, not by the
       defendant. If, however, the defendant establishes that
       he or she did not intend to provide, or was not
_________________________________________________________________

sentence for Marmolejos. It appears that because of the unusual facts
here -- namely, that Marmolejos was convicted of conspiracy but
acquitted of the underlying offense -- negotiation to traffic is the most
apt description of Marmolejos's offense.

                               4
       reasonably capable of providing, the agreed-upon
       quantity of the controlled substance, the court shall
       exclude from the offense level determination the
       amount of controlled substance that the defendant
       establishes that he or she did not intend to provide or
       was not reasonably capable of providing.

Id. (emphasis added).

Marmolejos argues that this new language "clarifies" the
prior guideline in that it provides for the test in a completed
distribution, which his was, so as to clear up the ambiguity
that previously existed due to the Sentencing Commission's
failure to provide for completed distributions in the
application notes. He maintains further that if we agree
that this is a clarifying amendment, we should remand for
resentencing so as to give the sentencing court the
opportunity to consider the additional clarifying language.

Marmolejos's argument is based on the established
principle that a post-sentencing amendment to a
sentencing guideline or its comments should be given effect
if it "clarifies" the guideline or comment in place at the time
of sentencing. If, however, the amendment effects a
substantive change in the law, the defendant does not reap
the benefit of the new provision. See U.S. Sentencing
Guidelines Manual S 1B1.11(b)(2) (1998); Isabel v. United
States, 980 F.2d 60, 62 (1st Cir. 1992) (holding that this is
the rule in "virtually all circuits"); United States v.
Ofchinick, 877 F.2d 251, 257 n.9 (3d Cir. 1989).

The district court did not employ this test, but, rather,
held that because Amendment 518 was not listed in
S 1B1.10 of the Guidelines -- which specifies the
amendments that are to have retroactive effect -- the
change had no impact on Marmolejos's sentence. Yet the
law is clear that "courts can give retroactive effect to a
clarifying (as opposed to substantive) amendment
regardless of whether it is listed in U.S.S.G. S 1B1.10."
United States v. Capers, 61 F.3d 1100, 1109 (4th Cir.
1995), cert. denied, 116 S. Ct. 1830 (1996). Moreover, as
Marmolejos has noted and as the government has
conceded, S 1B1.10 is not relevant to our consideration of
the instant S 2255 motion, because Marmolejos does not

                                5
base his motion on a post-sentence amendment lowering
the guideline range applicable to his offense. He seeks
review only of whether the court used the proper drug
quantity in calculating his prison term. Therefore, the sole
question before us is whether Amendment 518 has, by its
terms, clarified the existing commentary in the Guidelines
or substantively changed its meaning. If the former,
Marmolejos's petition for habeas relief should be granted
and the district court should consider the amendment at a
resentencing hearing. If the latter, Marmolejos's motion
should be denied and the amendment should be given no
effect.

B.

There is no bright-line test for determining whether an
amendment to the Guidelines "clarifies" the existing law;
"these categories [are] unclear, and as is usually the case,
there are factors supporting either side." United States v.
Prezioso, 989 F.2d 52, 53 (1st Cir. 1993) (citation omitted).
Among other things, the courts look to the language of the
amendment, United States v. Nissen, 928 F.2d 690, 694-95
(5th Cir. 1991), the amendment's purpose and effect,
Capers, 61 F.3d at 1110, and "whether, as a matter of
construction, the guideline and commentary in effect at
that time is really consistent with the amended manual."
United States v. Bertoli, 40 F.3d 1384, 1405 (3d Cir. 1994).

Under the former version of Application Note 12, the
Sentencing Commission had addressed only "the weight
under negotiation in an uncompleted transaction" as the
basis to calculate the applicable amount for sentencing,
unless the defendant "did not intend to produce and was
not reasonably capable of producing" this amount. U.S.
Sentencing Guidelines Manual app. C at 858 (1998)
(emphasis added). The prior text of the application note
provided no guidance as to what amount of drugs a court
should consider in sentencing a defendant convicted of
participating in a completed transaction. Thus, the terms of
the previous application note were facially ambiguous; the
note spoke only to uncompleted deals.

By contrast, the amended commentary provides that "the
agreed-upon quantity of the controlled substance shall be

                               6
used to determine the offense level unless the sale is
completed and the amount delivered more accurately
reflects the scale of the offense." Id. As a result, Application
Note 12 now specifies that the actual weight delivered,
rather than the weight under negotiation, should be used
for calculating a defendant's sentence if the sale was
completed. Marmolejos argues that this change fills a
textual void in the language of the commentary and clarifies
the Guidelines by resolving the ambiguity created by the
preceding version of the application note.

Marmolejos's argument that the removal of the ambiguity
renders the amendment a clarification is buttressed by the
opinion of the only other circuit to have addressed this
issue. In United States v. Felix, 87 F.3d 1057 (9th Cir.
1996), the defendant, like Marmolejos, argued for
application of Amendment 518 so that his sentence would
be calculated with reference to the amount of drugs
actually delivered, rather than by reference to the weight of
the drug sale he had negotiated. The Ninth Circuit noted
that the "prior version of Application Note 12 was silent as
to the amount of cocaine to be considered in a completed
transaction," and concluded that "until Application Note 12
was amended, the appropriate weight of drugs to consider
in a completed transaction was ambiguous; a court might
sentence on the amount under negotiation or the amount
delivered." Id. at 1060. Thus, it, too, held that "by
specifying the weight to consider in a completed
transaction, the current version of Application Note 12
clarifies the Guidelines, and should be given retroactive
effect." Id.4
_________________________________________________________________

4. Felix also found support for this conclusion in a statement from the
Sentencing Commission regarding Amendment 518. The Sentencing
Commission had written that Amendment 518 was adopted, in part,
because "[d]isputes over the interpretation of this application note have
produced much litigation." U.S. Sentencing Guidelines Manual app. C at
860 (1998). Felix concluded that this demonstrated that Amendment 518
was intended to clarify an ambiguity under the prior commentary. 87
F.3d at 1060. However, a review of the eight cases cited in the comment
reveals that the "disputes" referred to a circuit split concerning the
burden of proof in S 2D1.1, not to disputes as to the calculation of drug
quantities as such. Consequently, unlike the Felix court, we do not find
the Sentencing Commission's comments helpful in resolving the issue
before us.

                               7
The government advances two arguments in support of
its view that the amendment effected a substantive change
in the law, rather than a clarification. First, the government
claims that Amendment 518 substantively changed the
Guidelines because it revised the note in a way that
conflicted with the developing caselaw. Most courts
construing the prior version of Application Note 12 had held
that a court should use the negotiated amount of drugs
when calculating the base offense level for a defendant
involved in a completed transaction. See, e.g., United States
v. Buggs, 904 F.2d 1070, 1078 (7th Cir. 1990); United
States v. Alvarez-Cardenas, 902 F.2d 734, 736 (9th Cir.
1990); United States v. Alston, 895 F.2d 1362, 1369-71
(11th Cir. 1990).5 Therefore, the government argues, the
amendment necessarily changed the law by requiring the
courts to consider the actual amount of narcotics sold,
rather than the amount negotiated, when sentencing
defendants convicted of participating in completed deals.

Our answer to this, however, is that merely because the
courts were resolving an ambiguity in the prior law by
supplying a meaning that was neither stated in, nor clear
from, the language of the application note, does not mean
that the new wording has fashioned a substantive change
to the Guidelines. In fact, one could posit that quite the
opposite was the case -- that the new language was
fashioned to clarify the ambiguity made apparent by the
caselaw. In any event, while Amendment 518 may alter the
practice of the courts in construing S 2D1.1, and may even
reverse the caselaw interpreting Application Note 12, it is
the text of the amendment -- not the courts' gloss on that
text -- that ultimately determines whether the amendment
is a clarification or a substantive revision.6
_________________________________________________________________

5. In fact, most of these courts simply assumed that Application Note 12
required using the negotiated quantity in completed transactions, writing
that "[u]nder the sentencing guidelines, the amount of the drug being
negotiated, even in an uncompleted distribution, shall be used to
calculate the total mount [sic] in order to determine the base level."
United States v. Perez, 871 F.2d 45, 48 (6th Cir. 1989).

6. It should be noted that the evolving caselaw would be viewed
differently if the new language raised ex post facto issues by resulting
in
an increase in the defendant's sentence. Here, however, we have no ex
post facto concerns, because application of Amendment 518 would
reduce, rather than increase, Marmolejos's term of imprisonment.

                               8
We explored a similar dilemma in United States v.
Joshua, 976 F.2d 844 (3d Cir. 1992), where we held that a
court could consider a change to a guideline's text despite
the fact that it mandated a result different from that
reached by a prior panel. The defendant in Joshua argued
that the district court should have used an amendment to
U.S.S.G. S 4B1.2 clarifying the definition of a "crime of
violence" to lower his sentence under the Guideline's career
offender provisions. The difficulty was that,
"[u]nfortunately, this amendment to the commentary
urge[d] us to interpret the guideline in a manner
inconsistent with two recent decisions of this court." Id. at
852. Nevertheless, after reviewing the Sentencing
Commission's role in the statutory scheme, we concluded
that the Commission, like an administrative agency, has
the authority to overturn precedent in order to clarify an
ambiguity in the law and to promote uniformity in the
application of a statute. Id. at 855. Indeed, "[w]here a prior
panel of this court has interpreted an ambiguous statute in
one way, and the responsible administrative agency later
resolves the ambiguity another way, this court is not bound
to close its eyes to the new source of enlightenment." Id.7
Therefore, we do not view the inconsistency between the
caselaw and the amendment to Application Note 12 as
requiring a conclusion that the amendment works a
substantive change.

We are similarly unpersuaded by the government's
second contention -- that the commentary to Amendment
518 evinces an intent to create a substantive change in the
_________________________________________________________________

7. The Supreme Court has since disagreed in part with the analogy we
employed in Joshua, writing that the Sentencing Commission's
commentary in the Guidelines is more "akin to an agency's interpretation
of its own legislative rules," rather than to an agency's construction of
a
federal statute that it administers. Stinson v. United States, 508 U.S.
36,
44-45 (1993). Nevertheless, Sentencing Commission commentary still
remains "controlling authority," id. at 45, that is to be applied in all
but
the most limited circumstances. Id. at 38. Therefore, we believe that the
basic principle of Joshua remains good law; because of the Sentencing
Commission's broad power to interpret the Guidelines, clarifying
amendments should be considered by the sentencing court despite any
conflict with established precedent, unless ex post facto concerns are
present.

                               9
law. The Sentencing Commission's explanation of
Amendment 518 states that "this amendment revises the
Commentary to S 2D1.1 to provide that in a case involving
negotiation for a quantity of a controlled substance, the
negotiated quantity is used to determine the offense level
unless the completed transaction establishes a different
quantity." U.S. Sentencing Guidelines Manual app. C at
860 (1998) (emphasis added). The government asserts that
the Sentencing Commission used the word "revises" to
illustrate that Amendment 518 effected a substantive
change. Had the Commission intended merely to clarify the
existing guideline, the government argues, it would have
used the term "clarifies" rather than the term "revises," as
it did in drafting several other amendments.

We disagree. As an initial matter, the manner in which
the Commission describes a guideline amendment is not
dispositive. As we made clear in Bertoli, "our own
independent interpretation of the pre-amendment language
is controlling," 40 F.3d at 1407 n.21, and the mere fact
that an amendment is referred to as a clarification or a
revision is ordinarily of slight import to our analysis.

Additionally, the Commission's use of the term "revises"
in this instance reveals little about the intended effect of
Amendment 518. The Commission states that Amendment
518 "revises the Commentary to S 2D1.1," to which we
respond: of course it does. It "revises" the commentary in
the same way that every amendment revises the
commentary -- by changing, altering, or modifying the text.
The amendment does not say that it `revises the method by
which the courts determine the correct quantity of drugs
for sentencing purposes under S 2D1.1,' or that it revises
the calculation of drug quantities under the Guidelines.
Rather, it states simply that it "revises the Commentary"
language itself. Therefore, we do not believe that the
Commission's use of the term "revises" informs our decision
as to whether its intent was to substantively change the
law.

The line between a clarification and a revision may be a
fine one, but we believe the difference can be discerned in
this case. Amendment 518 does not change the method for
calculating amounts involved in uncompleted sales, but

                               10
merely clarifies the proviso for completed ones. Accordingly,
we conclude that Amendment 518 to the Sentencing
Guidelines represents a clarification of the previous
application note, because it fills a void and resolves an
ambiguity in S 2D1.1 regarding the proper weight of drugs
for a court to consider in sentencing a defendant involved
in a completed narcotics transaction.

III.

The district court's Orders dated June 11, 1996, and
July 29, 1996, will be REVERSED, the judgment of
sentence will be VACATED, and the cause will be
REMANDED for resentencing and other proceedings
consistent with this opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               11


861 F.2d 224
AMERICAN TITLE INSURANCE COMPANY, a Florida Corporation,Plaintiff-Appellant,v.LACELAW CORPORATION, doing business as Charter Title, aNevada Corp.;  Crowell, Crowell, Crowell & Susich,Ltd., a Nevada Corp.;  William Crowell,Jr., Defendants-Appellees.
No. 87-2456.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 12, 1988.Decided Nov. 9, 1988.

Douglas K. Fermoile, Reno, Nev., for plaintiff-appellant.
James M. Walsh, Henderson & Nelson, Reno, Nev., for defendants-appellees.
Appeal from the United States District Court for the District of Nevada.
Before PREGERSON, BOOCHEVER and BEEZER, Circuit Judges.
BOOCHEVER, Circuit Judge:

OVERVIEW

1
Plaintiff, American Title Insurance Company (American) appeals the district court's judgment in favor of defendant Lacelaw, dba Charter Title, (Charter).  At the conclusion of a bench trial the district court found that American failed to prove by a preponderance of the evidence that Charter breached its agency agreement by relying on a Trustee's Sale Guarantee (TSG) as a basis for title.  In its trial brief, Charter's attorneys stated that "Charter had used an earlier Trustee's Sale Guarantee as a starter."    American claims the district court erred by not treating this statement as a binding judicial admission.  American also claims that the evidence clearly showed that Charter had used a TSG in violation of its agency agreement.  We affirm.

FACTS

2
American, a Florida corporation, is a title insurance company licensed to do business in Nevada.  Charter is a Nevada title and escrow company.  In 1980, American and Charter entered into a title agency agreement allowing Charter to sell American policies in exchange for payment of a percentage of its escrow fees.

3
American bore primary responsibility for any loss, but Charter had to pay the first $5,000 loss per policy regardless of the cause of the loss.  According to the agency agreement, Charter would be liable for the entire loss if it breached the agreement, which included local bulletins from American, or intentionally or wilfully departed from ordinary industry practice.  It is not disputed, however, that Charter would not be liable for the entire loss if Charter used a prior policy as a starting point, or negligently missed an encumbrance on title when conducting a full title search.

4
Local bulletin number one established guidelines stating when a prior policy could be used as the basis for a title search.  The local bulletin authorized American agents to use a prior policy when insuring nonresidential property "not exceeding $1,000,000, and the amount of the new policy should not exceed the prior policy by more than 200%."    Local bulletin number one also provided:

5
An interim title insurance binder, commitment, preliminary report of title or a similar document of American Title or any other company should never be used as a basis of title.

6
(emphasis added).

7
Charter issued an American Title Insurance Policy on property purchased by Eldon E. and Sherry B. Nygaard.  The property was encumbered by a June 3, 1983 Deed of Trust in favor of John Titus for $34,000.  The policy issued by Charter did not list the Titus Deed of Trust as an exception.  At the time of the sale the Titus Deed of Trust was in default.  When Titus commenced foreclosure proceedings on his Deed of Trust, American paid Titus $37,370.23 in order to establish the Nygaard's title as insured.  Pursuant to the agency agreement, Charter paid American the first $5,000 of the title loss.

8
At trial, American claimed that Charter breached the title agency agreement and local bulletin by basing the Nygaards' title policy on a 1984 TSG, a limited title document and not a policy as required by the local bulletin.  Charter denied this allegation in its answer.  Charter stated in its trial brief however, "In researching the title to the subject property, Charter had used an earlier Trustee's Sale Guarantee as a 'starter' ".

9
American did not enter this statement into evidence at trial, nor did it object to Charter's presentation of evidence that contradicted this statement.  In its motion for a new judgment, American first argued that Charter's trial brief statement constituted a binding admission.  The district court found that a TSG was similar to an interim title insurance binder and committment within the meaning and prohibition of local bulletin number one, but despite the statement in Charter's trial brief, found that the search started with an earlier title policy.

DISCUSSION
I. JUDICIAL ADMISSION

10
American claims that the district court failed to apply the law of judicial admissions to the following statement contained in Charter's trial brief:

11
In researching the title to the subject property, Charter had used an earlier Trustee's Sale Guarantee as a "starter."    The use of such starters is common practice within the industry.  It amounts to using the title search associated with an earlier policy or similar document issued on the same piece of property, and then searching title forward from that date.  In using this procedure, the Titus Deed of Trust was not found.

12
Because federal jurisdiction is based on diversity of citizenship, this court must apply the substantive law of Nevada.  See Interform Co. v. Mitchell, 575 F.2d 1270, 1274 (9th Cir.1978).  The admissability of evidence, however, is generally a procedural matter governed by the Federal Rules of Evidence.  9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2405 (1971).  "[U]nder federal law, stipulations and admissions in the pleadings are generally binding on the parties and the Court.  Not only are such admissions and stipulations binding before the trial court, but they are binding on appeal as well."    Ferguson v. Neighborhood Housing Services., 780 F.2d 549, 551 (6th Cir.1986) (citations omitted).  "Judicial admissions are formal admissions in the pleadings which have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact."    In re Fordson Engineering Corp., 25 B.R. 506, 509 (Bankr.E.D.Mich.1982).  Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.  See White v. Arco/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir.1983);  Fordson, 25 B.R. at 509.

13
American argues statements contained in a trial brief are judicial admissions.  A statement in a complaint, answer or pretrial order is a judicial admission, as is a failure in an answer to deny an allegation.  See, e.g., Smith v. Chapman, 436 F.Supp. 58, 62 (W.D.Tex.1977), aff'd, 614 F.2d 968 (5th Cir.1980);  White, 720 F.2d at 1396.    This court has never decided whether statements of fact contained in briefs or other memoranda constitute judicial admissions.

14
For purposes of summary judgment, the courts have treated representations of counsel in a brief as admissions even though not contained in a pleading or affidavit.  United States v. One Heckler-Koch Rifle, 629 F.2d 1250, 1253 (7th Cir.1980);  10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2723, pp. 64-66 (1983) (admissions in opponent's brief can be used to determine there is no genuine issue of fact, since they are functionally equivalent to "admissions on file").  Nevertheless, one court has concluded that inadvertent statements of fact made by counsel in briefs or memoranda should not be conclusively binding on the client in a summary judgment motion.  Hub Floral Corp. v. Royal Brass Corp., 454 F.2d 1226, 1228-29 (2d Cir.1972).  The court held that a statement made by counsel in a memorandum of law "did not rise to the level of a 'judicial admission.' "    Id. at 1228.

15
The Tenth Circuit holds that briefs are not pleadings or part of the record, and statements in briefs may be considered admissions in the court's discretion.  See Plastic Container Corp. v. Continental Plastics of Oklahoma, Inc., 607 F.2d 885, 906 (10th Cir.1979), cert. denied, 444 U.S. 1018, 100 S.Ct. 672, 62 L.Ed.2d 648 (1980); Lockert v. Faulkner, 574 F.Supp. 606, 609 n. 3 (N.D.Ind.1983).  We agree and hold that statements of fact contained in a brief may be considered admissions of the party in the discretion of the district court.

16
In this case the district court did not abuse its discretion in refusing to treat the statement as a binding judicial admission.  American did not introduce the statement into evidence or object to the introduction of contradictory testimony.1   The first time American clearly raised this question was in its motion for a new judgment.

17
Normally, failure to contend that an opposing party's admission barred entry of conflicting evidence is a waiver of the argument that the issue was conclusively settled.  See White, 720 F.2d at 1396;  Shell v. Parrish, 448 F.2d 528, 530 (6th Cir.1971) (Superseded pleading must be offered into evidence for opponent to use admission therein);  see also Stacy v. Aetna Casualty & Sur. Co., 484 F.2d 289, 293-94 (5th Cir.1973).

18
American claims that Charter's position at trial was not inconsistent with the alleged admission.  Two witnesses on behalf of Charter testified, however, that a TSG was not the basis for title.  James Lyon, a Charter representative, testified that a 1980 American policy was the basis for title.  Linda Frink, the former president of Charter, testified she did not believe a TSG was used.

19
This testimony clearly contradicts Charter's alleged admission in its trial brief.  American did not oppose the introduction of this evidence or offer the admission into evidence.  Instead, American waited and raised this issue for the first time in its motion for a new judgment.  The district court did not abuse its discretion by refusing to treat the statement as a binding judicial admission at that stage in the proceedings.

II. THE DISTRICT COURT'S FINDINGS OF FACT

20
The district court found that American failed to prove that Charter's search started with the TSG.  American claims that the overwhelming evidence at trial showed that a TSG had been used as the basis of title.  We review a lower court's findings of fact under the clearly erroneous standard.  Fed.R.Civ.P. 52(a);  see also Allen v. Steele, 759 F.2d 1469, 1470 (9th Cir.1985) (citing Anderson v. City of Bessemer, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).  An appellate court must accept the lower court's findings of fact unless upon review the appellate court "is left with the definite and firm conviction that a mistake has been committed."    United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948);  Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir.1985) (citing Sutton v. Atlantic Richfield Co., 646 F.2d 407, 412 (9th Cir.1981)).  Due regard is given to the opportunity of the trial court to judge the credibility of the witnesses.  Id., (citing Sutton, 646 F.2d at 411).

21
American had the burden of proving that Charter relied solely on a TSG as the starting point of its title search.  Humphrey v. Sagouspe, 50 Nev. 157, 254 P. 1074, 1076 (1927) (Burden of proof was on the buyer claiming breach of contract);  see also Continental Casualty Co. v. Summerfield, 87 Nev. 127, 131, 482 P.2d 308, 310 (1971).  While there was conflicting evidence whether Charter used the TSG as a starter, James Lyon testified that the Charter employee commenced the search with a title policy issued prior to the 1984 TSG.  Moreover, Linda Frink, former president of Charter, testified at least one basis for the search was a prior title policy.

22
The trial court did not clearly err in finding that American failed to meet its burden of proof that the search started with the TSG.

23
The judgment is AFFIRMED.

1
 American contended it raised this question at trial during the cross-examination of the former president of Charter.  The transcript, however, clearly demonstrates that American merely alluded to this statement, but did not introduce it into evidence


176 F.3d 492
U.S.v.Shouman*
NO. 97-5135
United States Court of Appeals,Eleventh Circuit.
March 11, 1999

1
Appeal From:  S.D.Fla. , No.95-00938-CR-JAL

2
Affirmed.

*
 Fed.R.App.P. 34(a); 11th Cir.R. 34-3