Opinion issued June 30, 2016

                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00736-CR
                           ———————————
                ESSEABASI SAMUEL WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 263rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1455285

                                  OPINION

      Appellant, Esseabasi Samuel Williams, pleaded guilty to the offense of

engaging in a group criminal activity, concerning the fraudulent use of identifying

information, with an agreement that punishment would not exceed 30 years in
prison.1 Following a presentence investigation, the trial court found Appellant

guilty and sentenced him to 30 years in prison. In one issue on appeal, Appellant

asserts that the trial court erred in denying his motion to quash the indictment for

fraudulent use of identifying information based on his argument that Texas Penal

Code section 32.51 is facially unconstitutional.

      We affirm.

                                    Background

      On January 22, 2015, Appellant was indicted for working with others to

fraudulently misuse identifying information. The indictment read as follows:

      Esseabasi Samuel Williams, [Appellant], . . . on or about January 23,
      2013, did then and there unlawfully, with intent to establish, maintain
      and participate in a combination, and in the profits of a combination,
      . . . commit the offense of Fraudulent Use of Identifying Information,
      namely, in that he did unlawfully with the intent to defraud and harm
      another, obtain, possess, and use . . . identifying information, namely,
      the name, date of birth, and social security number of [names
      omitted], hereafter called the Complainant, without the Complainant’s
      consent.

      Appellant filed a motion to quash the indictment, asserting Penal Code

section 32.51 is an overbroad, content-based restriction on speech.2 The trial court

denied Appellant’s motion. Following the denial, Appellant pleaded guilty, and

1
      See TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).
2
      Appellant also alleged, in his motion, that the statute is unconstitutionally vague
      and violates the Dormant Commerce Clause, but he does not raise these issues on
      appeal.

                                           2
was sentenced to 30 years in prison. Appellant timely filed his notice of appeal the

same day. Appellant now appeals. In one issue, Appellant challenges the trial

court’s denial of his motion to quash the indictment.

                         Motion to Quash the Indictment

A.    Standard of Review

      We review de novo a trial court’s ruling on a motion to quash an indictment.

See State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). Likewise, we

review the constitutionality of a criminal statute de novo. See Ex parte Lo, 424

S.W.3d 10, 14 (Tex. Crim. App. 2013).

B.    Legal Principles

      In assessing a constitutional challenge, the statute is presumed to be valid

and the challenging party bears the burden to prove its unconstitutionality. Id. at

15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). While a general

facial challenge requires the challenger to show the statute is unconstitutional in all

its applications, under the First Amendment’s “overbreadth” doctrine, a law may

be unconstitutional on its face even if it might have some legitimate applications.

State v. Johnson, 475 S.W.3d 860, 864–65 (Tex. Crim. App. 2015).                   The

overbreadth of a statute must prohibit a substantial amount of protected expression

relative to the statute’s plainly legitimate sweep. Ex parte Perry, 483 S.W.3d 884,

902 (Tex. Crim. App. 2016) (citing United States v. Williams, 553 U.S. 285, 292,

                                          3
128 S. Ct. 1830, 1838 (2008)). In addition, the danger that the statute will be

unconstitutionally applied must be realistic and not based on fanciful hypotheticals.

Id.

      Additionally, when a criminal law restricts speech based upon content, the

usual presumption of validity is reversed, and the government must rebut the

presumption that a content-based restriction is invalid. Ex parte Lo, 424 S.W.3d at

15. If one must consider the content of the speech to decide if the speaker violated

the law, then the regulation is content-based. Id. at 15 n.12.

C.    Analysis

      Appellant asserts that the trial court erred in failing to quash his indictment

for fraudulent use of identifying information. He contends that Penal Code section

32.51(b), the statute upon which his conviction was based, is an overbroad,

content-based restriction on speech, and therefore violates the right to free

expression of personal views guaranteed by the First Amendment.             See U.S.

CONST. amend. I; TEX. PENAL CODE ANN. § 32.51(b) (Vernon Supp. 2015).

      Appellant acknowledges that this Court recently rejected the same

arguments concerning Penal Code section 32.51 in Horhn v. State, 481 S.W.3d 363

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).3         Consequently, we follow

3
      The Texas Court of Criminal Appeals refused petition in Hohrn on April 27, 2016.
      Horhn v. State, 481 S.W.3d 363 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d).

                                          4
Horhn and affirm the trial court’s denial of Appellant’s motion to quash the

indictment.

      1.      Penal Code section 32.51

      Appellant     argues   that   Penal       Code   section   32.51(b)   is   facially

unconstitutional. Section 32.51 provides as follows:

      (b) A person commits an offense if the person, with the intent to harm
      or defraud another, obtains, possesses, transfers, or uses an item of:

              (1) identifying information of another person without the other
              person’s consent;

              (2) information concerning a deceased natural person, including
              a stillborn infant or fetus, that would be identifying information
              of that person were that person alive, if the item of information
              is obtained, possessed, transferred, or used without legal
              authorization; or

              (3) identifying information of a child younger than 18 years of
              age.

TEX. PENAL CODE ANN. § 32.51(b). The Penal Code further defines “identifying

information” to mean “information that alone or in conjunction with other

information identifies a person,” including name, date of birth, or government-

issued identification number, among other types of information. Id. § 32.51(a)(1).

The Penal Code also defines “harm” as meaning “anything reasonably regarded as

loss, disadvantage, or injury. . . .” Id. § 1.07(a)(25) (Vernon Supp. 2015).

                                            5
      2.    Section 32.51(b) Does Not Implicate the First Amendment and Is
            Not Unconstitutional as Decided in Horhn

      In Horhn, this Court held that Penal Code section 32.51(b) does not

implicate the free speech guarantees of the First Amendment. Horhn, 481 S.W.3d

at 373–74. Initially, we explored the distinction between expressive conduct, such

as photographs and visual recordings, and non-communicative conduct, such as

harassing people by telephone. Id. While expressive conduct implicates the First

Amendment, non-communicative conduct does not. Id. at 373–75. Here, we are

concerned with how prohibited conduct fits into this schema.

      Prohibited conduct can be divided into conduct intended to communicate

and conduct intended to harm or harass. Id. Conduct is intended to communicate,

and implicates the First Amendment protections, “if (1) there was an intent to

convey a particularized message, and (2) the likelihood was great that the message

would be understood by those who viewed it.”          Id. at 373 (citing Ex parte

Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014)).             In other words,

prohibited conduct implicates the First Amendment if the statute proscribes

conduct intended to communicate an understandable message. Id. If, conversely,

the defendant intends their conduct to harm or harass, then the statute focuses on

the non-communicative part of the interaction, or the manner of communication,

even if the conduct includes spoken words. Id. at 374–75 (citing Scott v. State, 322

S.W.3d 662, 669–70 (Tex. Crim. App. 2010), abrogated on other grounds by

                                         6
Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). Statutes prohibiting the

harmful manner of communication do not implicate the First Amendment. Id. at

375.

       In Horhn, we ultimately held that Penal Code section 32.51 regulates non-

communicative conduct, which is not protected by the First Amendment. Id. at

375–76. Considering the statute’s language, we held that section 32.51 requires

the specific intent to harm or to defraud and does not specifically reference spoken

words or other communicative conduct. Id. “The type of conduct prohibited by

section 32.51(b)—obtaining, possessing, transferring, or using identifying

information with the intent to harm or defraud—is conduct that is ‘essentially non-

communicative, even if the conduct includes spoken words.’” Id. (quoting Scott v.

State, 322 S.W.3d at 670); see TEX. PENAL CODE ANN. § 32.51(b). The statute

focuses on conduct not to target acts of expression, but to address the harms

resulting from identity theft.   Id. at 366, 375.    Thus, we concluded that the

regulated conduct is essentially non-communicative and does not implicate First

Amendment protections. Id. at 375–76. We further conclude, even if section

32.51(b) did regulate communicative conduct, however, that conduct would not be

protected by the First Amendment because it invades another’s privacy interests to

harm them. Id. at 375.

                                         7
      Appellant argues that section 32.51(b) unconstitutionally criminalizes the

use of identifying information in political attacks and for leverage in negotiations.

See TEX. PENAL CODE ANN. § 1.07(a)(25) (defining harm as “anything reasonably

regarded as a loss, disadvantage, or injury.”). He provides the following examples

of conduct that would be prohibited: releasing a birth certificate to prove a

candidate’s ineligibility for office; using voter registration records to prove an

opponent voted in the other party’s primary; providing criminal or bankruptcy

records to the news media; and using a person’s criminal record for concessions in

a divorce proceeding. Contrary to Appellant’s assertion, however, the Court of

Criminal Appeals has recognized that the statute’s purpose is to prevent identity

theft because it is included within the Fraud subchapter of the Texas Penal Code.

Jones v. State, 396 S.W.3d 558, 562–63 (Tex. Crim. App. 2013). The statute’s

purpose is not to criminalize the use of identifying information in political attacks

or for leverage in negotiations. See id. Thus, these examples do not meet the intent

requirement of the statute, which is to harm or to defraud another. See id.; see also

Horhn, 481 S.W.3d at 376.

      Because in Horhn, we concluded that section 32.51(b) does not implicate the

First Amendment, we likewise concluded that the “statute is not overbroad because

it does not reach ‘a substantial amount of constitutionally protected conduct.’” Id.

at 376 (citing Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

                                         8
489, 494, 102 S. Ct. 1186, 1191 (1982); Garcia v. State, 212 S.W.3d 877, 889

(Tex. App.—Austin 2006, no pet.)). We also held that “because section 32.51(b)

does not implicate the First Amendment it is not a content-based restriction on

speech.” Id. (citing Ex parte Thompson, 442 S.W.3d at 334).

      Because he raises the same arguments rejected in Horhn, we conclude that

Appellant failed to show that section 32.51(b) is facially unconstitutional. Horhn,

481 S.W.3d at 376; see also Ex parte Lo, 424 S.W.3d at 15; Rodriguez, 93 S.W.3d

at 69. We hold that the trial court did not err in denying Appellant’s motion to

quash the indictment.

      We overrule Appellant’s sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.

                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Higley, Bland, and Massengale.

Publish. TEX. R. APP. P. 47.2(b).

                                         9


                                                             [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  June 15, 2007
                               No. 06-11622                    THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                       D. C. Docket No. 05-00028-CR-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

SYLVESTER MIDDLETON, JR.,

                                                             Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                                 (June 15, 2007)

Before BIRCH, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Sylvester Middleton, Jr., appeals his conviction for possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2). On appeal, Middleton asserts that, after being taken into custody, he

refused to sign the waiver form indicating that he was waiving his constitutional

rights under Miranda.1 Middleton contends that, because he did not waive his

rights to remain silent and to counsel, the district court erred by allowing the

government to introduce into evidence his post-arrest statement that the firearm

belonged to him. He also argues that the government failed to meet its burden of

demonstrating that he knowingly and intelligently waived his rights. Upon review,

we conclude that it can be inferred from the totality of the circumstances that

Middleton did, in fact, knowingly and voluntarily waive his rights under Miranda.

Therefore, we conclude that the district court did not err in denying his motion to

suppress his post-arrest statement. Accordingly, we AFFIRM his conviction.

                                    I. BACKGROUND

      A federal grand jury indicted Middleton for possession of a firearm and

ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924

(a)(2). Middleton’s criminal record indicated that he had prior felony convictions

for, among other charges, possession of marijuana. Testimony at Middleton’s jury

trial established that, in the early morning hours of 24 October 2004, an officer

      1
          Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).

                                                2
patrolling a Huddle House parking lot heard a series of gunshots and saw a car

exiting the parking lot at a high speed. The officer pursued the vehicle with his

patrol vehicle’s blue lights flashing, traveling at a speed of 75 to 80 miles per hour.

The driver ignored the officer’s attempts to get him to pull over. After crashing

into a building, the driver exited the car and ran. Another officer pursued and

seized the driver, Middleton, and took him into custody. Subsequently, officers at

the scene discovered a firearm 10 to 15 feet from where Middleton had been

arrested. Investigator Claude Tilman Wade later testified that Middleton stated,

during subsequent interrogation at the police station, that the firearm belonged to

him.

       Prior to trial, Middleton filed a motion to suppress his post-arrest statement

that the firearm was his, claiming that it was unclear from the record whether

Investigator Wade had continued to question him at the police station after he had

requested an attorney. He argued that if he had invoked his right to an attorney

before his alleged admission had occurred, suppression of the statement was

warranted under Miranda and its progeny. The government responded that the

evidence would demonstrate that Middleton invoked his right to counsel after he

made his inculpatory admission.

       At the suppression hearing, Middleton testified that he first spoke with

                                           3
Investigator Wade at the police department, subsequent to his arrest, and that

Investigator Wade did not tape the interview or take notes. Middleton also stated

that Investigator Wade never warned him or advised him that he had the right to

remain silent and to have an attorney present. Middleton testified that when

Investigator Wade asked him about the shooting, Middleton stated that he did not

know anything about it. Middleton stated that he asked for an attorney after

Investigator Wade told him that somebody had made a statement implicating him

in the shooting. He denied that he ever admitted to possessing a gun. Middleton

testified that it was not the first time that he had been arrested, and he knew not to

talk to the police. On cross-examination, Middleton testified that he was aware of

his rights under Miranda, and that he had exercised them by not making a

statement to Investigator Wade, other than to state that he knew nothing about the

shooting.

      Investigator Wade, who was called by Middleton for the purpose of cross-

examination, testified that he took brief notes that served as the basis of a report

summarizing the interrogation. He testified that Middleton was in fact advised of

his Miranda rights, but refused to sign a rights acknowledgment and waiver form,

and that he requested counsel on his way back to the jail–after having made his

inculpatory statement about owning the firearm found at the scene. Investigator

                                           4
Wade testified that Middleton had asked for an attorney at the conclusion of the

interview, when they “were almost out the door leaving the office.” R2 at 17.

Specifically, Investigator Wade explained that he told Middleton at the conclusion

of their interview that, if Middleton wished to talk to him later, he would bring him

back to the station to make a formal statement, but that Middleton declined and

then requested a lawyer, which was the first time that he had done so.

      On direct examination by the government, Investigator Wade testified that

Middleton was cooperative and that “[t]here was no outward indication that he

should not be interviewed.” Id. at 19. Investigator Wade reiterated that he read

Middleton his Miranda warnings by going through a standard form that lists the

Miranda rights “step by step.” Id. at 20-21. He testified that, after advising and

explaining these rights, he asked Middleton if he understood his rights, to which

Middleton replied that he did, but that he would not sign anything. Investigator

Wade then stated that he told Middleton that the police had video evidence of him

throwing the gun–a statement which was not true–and that Middleton then

voluntarily admitted that the gun was his, but that he did not want to talk about the

shooting. Upon hearing this information, Investigator Wade stated that he then

told Middleton that “there were some other people there and there might be some

circumstances that come up” that would make Middleton want to discuss the facts

                                          5
surrounding the shooting, to which Middleton responded that he did not want to

make a statement. Id. at 22. Investigator Wade testified that he was about to take

Middleton back to the jail, because he did not want to discuss the incident. As they

were getting ready to leave, Investigator Wade stated that Middleton repeatedly

said, “look who got shot . . . . [w]hat if they had a gun?” Id. at 23. Investigator

Wade responded that, if Middleton wanted to make a statement, Investigator Wade

was ready to take it down. Middleton then declined, stating, for the first time, that

he wanted to talk to a lawyer first.

      In deciding on Middleton’s suppression motion, the district court noted that

there were “some sharp difference[s]” in Middleton’s and Investigator Wade’s

accounts of the interrogation, but that Investigator Wade reduced his notes into an

incident report and gave a “clear and cogent account of the interview which seems .

. . to be more likely true than not true.” Id. at 25. Finding that the Miranda

warnings had been given and that Middleton had made a subsequent incriminating

statement, the district court denied Middleton’s motion to suppress his admission.

Following a jury trial, Middleton was convicted and sentenced to 120 months of

imprisonment.

                                  II. DISCUSSION

      “A district court’s ruling on a motion to suppress presents a mixed question

                                           6
of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999)

(citation omitted). We accept the district court’s factual findings as true unless the

findings are shown to be clearly erroneous. United States v. Ramirez-Chilel, 289

F.3d 744, 749 (11th Cir. 2002) (citation omitted). All facts are construed in the

light most favorable to the prevailing party below–in this case, the government.

See United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000) (citation

omitted).

      “Credibility determinations are typically the province of the fact finder

because the fact finder personally observes the testimony and is thus in a better

position than a reviewing court to assess the credibility of witnesses.”

Ramirez-Chilel, 289 F.3d at 749 (citation omitted). We have held that a “trial

judge’s choice of whom to believe is conclusive on the appellate court unless the

judge credits exceedingly improbable testimony.” Id. (citations, alterations, and

quotations omitted). That is, a district court’s credibility determination is entitled

to deference “unless [its] understanding of the facts appears to be unbelievable.”

Id. (citation and quotations omitted).

      We review the district court’s application of the law to the facts de novo.

United States v. Barbour, 70 F.3d 580, 584 (11th Cir. 1995) (citation omitted).

“The district court’s ultimate conclusion on the voluntariness of a confession, or

                                           7
the waiver of Miranda rights, raises questions of law to be reviewed de novo.” Id.

(citations and quotation omitted).

       It is well-established that the government “may not use statements, whether

exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the

privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S. Ct. at 1612.

A waiver of rights under Miranda may be explicit, or it may be implied by the

defendant’s actions and words. See North Carolina v. Butler, 441 U.S. 369, 373-

76, 99 S. Ct. 1755, 1757-59 (1979).

      The threshold inquiry in determining whether a waiver of Miranda rights is

valid is whether the defendant was informed of his Miranda rights. Barbour, 70

F.3d at 585 (citations omitted). Next, we examine whether a defendant’s waiver of

Miranda rights was voluntary, knowing, and intelligent. Id. (citation omitted).

First, the relinquishment of one’s Miranda rights must have been “voluntary in the

sense that it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception.” Id. (citation omitted). Second, “the waiver

must have been made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Id. (citation

omitted). “Only if the ‘totality of the circumstances surrounding the interrogation’

                                           8
reveal both an uncoerced choice and the requisite level of comprehension may a

court properly conclude that the Miranda rights have been waived.” Id. (citation

omitted).

      The district court’s threshold determination that Middleton was read his

Miranda rights involved an underlying determination as to Investigator Wade’s

credibility. That is, Investigator Wade testified that he read and explained to

Middleton his rights, and the district court, finding this testimony to be credible,

accepted that version of events as true. This finding was made despite Middleton’s

testimony that Investigator Wade never gave him Miranda warnings. Upon

review, we conclude that district court did not clearly err in determining that

Investigator Wade’s testimony on this point was credible and accepting it as true,

because: 1) Investigator Wade had corroborative notes of the interview with

Middleton, which indicated that the Miranda warnings were given; 2) Investigator

Wade testified that it was his standard practice to read the Miranda warnings to

interviewees from a prepared form that he kept his office; and 3) there was nothing

in the record showing that Investigator Wade’s version of events was “exceedingly

improbable.” See Ramirez-Chilel, 289 F.3d at 749. Indeed, on appeal, Middleton

does not appear to challenge the district court’s ultimate finding that Investigator

Wade’s testimony was credible. Accordingly, we conclude that the threshold

                                           9
showing that Middleton was advised of his Miranda rights has been satisfied.

      We further conclude that the totality of the circumstances establishes that

Middleton voluntarily waived his Miranda rights. Investigator Wade testified that

Middleton was cooperative during the interview, and that there was no outward

indication that Middleton should not have been interrogated. Middleton indicated

that he had been arrested before and was aware of his rights under Miranda.

Moreover, construing the evidence in a light most favorable to the government and

accepting Investigator Wade’s testimony as true, the record demonstrates that

Middleton made a voluntary statement–admitting ownership of the gun–after he

had been given Miranda warnings, and that he did not request counsel until after he

made that statement, as he was preparing to leave Investigator Wade’s office.

Investigator Wade repeatedly testified at the suppression hearing that, after the

Miranda warnings had been given, Middleton stated that the weapon was his but

that he did not want to talk about the shooting. This evidence demonstrates that

Middleton was advised of his rights under Miranda, that he understood those

rights, and that he impliedly waived those rights by his subsequent conduct during

the interview. See, e.g., United States v. Cardwell, 433 F.3d 378, 389-90 (4th Cir.

2005) (“Because [the defendant] had been fully informed and indicated his

understanding of his Miranda rights, his willingness to answer [the officer]’s

                                          10
question is as clear an indicia of his implied waiver of his right to remain silent as

we can imagine.” (citation omitted)).

      Nor does the fact that Middleton made his admission after indicating that he

would not sign the rights waiver form suggest that his inculpatory admission was

somehow coerced or that it was involuntary. We have made clear that the refusal

to sign a rights waiver form, without more, does not establish the absence of an

effective waiver under Miranda. See United States v. Dowd, 451 F.3d 1244, 1250-

51 (11th Cir. 2006). Indeed, we have held that a defendant may voluntarily make

statements (thereby impliedly waiving his Miranda rights), even in the wake of his

refusing to sign a written waiver of rights. See id. (concluding that where a

defendant “continued talking immediately after declining to sign the waiver” and

“did not suggest even equivocally that he wished to cease questioning,” the

defendant impliedly waived his Miranda rights, notwithstanding his failure to sign

the waiver form). Here, Middleton refused to sign the waiver form, but then

continued talking with Investigator Wade and made a voluntary statement to him

concerning his ownership of the gun. As in Dowd, the fact that Middleton declined

to sign the written rights waiver form is not dispositive, where the totality of the

circumstances suggests an implied waiver of his rights.

      Nor is Middleton’s statement involuntary because there was some trickery

                                           11
involved in eliciting it. We have stated that “[i]t is clear [] that the police’s use of a

trick alone will not render a confession involuntary.” United States v. Castaneda-

Castaneda, 729 F.2d 1360, 1362-63 (11th 1984) (citations omitted); see id.

(holding that defendant’s waiver was voluntary, where agents told him that his

wife had already confessed when she had not). Although Middleton’s admission

was made after being told that the police had evidence that it did not actually have,

this single interrogation trick–in the absence of any other aggravating

circumstances suggesting coercion on the part of Investigator Wade–does not

automatically render Middleton’s waiver involuntary. See id. at 1363. This is

especially so where the totality of the evidence otherwise establishes that the

statement was voluntarily made, free from any coercion. See id. Because, taken as

a whole, the totality of the circumstances supports the inference that Middleton

voluntarily waived his Miranda rights, the district court did not err in denying his

motion to suppress. Accordingly, we affirm Middleton’s conviction.

                                 III. CONCLUSION

       Because the district court found testimony that Middleton had been read his

rights pursuant to Miranda to be more likely credible than not, and because there

was evidence that Middleton was aware of his rights and the consequences of the

decision to abandon them, it can be inferred from the totality of the circumstances,

                                            12
including his post-arrest conduct, that Middleton knowingly and voluntarily

waived his rights under Miranda. The district court, therefore, did not err in

denying his motion to suppress his admission that he possessed a firearm.

AFFIRMED.

                                          13


20 Ariz. App. 388 (1973)
513 P.2d 677
Pauline D. GUTIERREZ, Appellant,
v.
Raymond GUTIERREZ, Appellee.
No. 2 CA-CIV 1389.
Court of Appeals of Arizona, Division 2.
September 4, 1973.
*389 Machmer, Schlosser & Meitz, Ltd. by Gerald A. Machmer, Phoenix, for appellant.
Nell W. Burt, Douglas, for appellee.
KRUCKER, Judge.
Raymond Gutierrez instituted an action for absolute divorce in the Superior Court of Cochise County. His wife answered and counterclaimed for an absolute divorce. From the decree of divorce entered December 5, 1972, the wife has appealed.
The appellant first asserts that the divorce decree should be declared void because the trial court failed to wait the five days required by Rule 58(d), Rules of Civil Procedure, 16 A.R.S. for objections to the form of judgment. The decree was signed and entered December 5 and a copy sent to appellant's attorney on the same day.
Failure to comply with the five-day rule, however, is not reversible error absent a showing of prejudice. Rexing v. Rexing, 11 Ariz. App. 285, 464 P.2d 356 (1970). Appellant claims prejudice did occur because of two aspects of the language in the decree. First, she claims the minute entry ordered divorce for the husband, whereas the decree granted a divorce to each party from the other, i.e., a Brown decree.[1] Second, she claims that at the hearing the judge ordered repayment of a loan by the husband in installments of "not less than $75.00 per month" whereas the decree ordered a flat "$75.00 per month."
Prejudicial error is error which substantially affects the rights and obligations of appellant as to result in a miscarriage of justice, Kyne v. Eustice, 215 Cal. App.2d 627, 30 Cal. Rptr. 391 (1963), and the burden is on appellant to establish such prejudice. Dykeman v. Ashton, 8 Ariz. App. 327, 446 P.2d 26 (1968). Here there is no such showing. As stated in Brown supra, failure to indicate fault in a decree, while providing satisfaction to defendant, does not render a divorce decree invalid.
At any rate, since there is nothing in the record to indicate that appellant withdrew her counterclaim for divorce, there is no basis whatsoever in the claim that she would be prejudiced by language implying she sought the divorce.
Appellant secondly contends that there was insufficient evidence to support the divorce because of inadequate corroboration. This claim also is without merit. In a divorce action only slight corroboration is necessary when there is no suspicion of collusion. Kennedy v. Kennedy, 93 Ariz. 252, 379 P.2d 966 (1963). The ground on which the husband here based his divorce action was that he and his wife had not lived or cohabited together as husband and wife for five or more years. A.R.S. § 25-312, subsec. 7. He so testified *390 to that effect. His wife also testified that she and her husband had not cohabited for 19 or 20 years. Since the testimony of the party seeking the divorce can be corroborated by the admissions of the other party (the wife herein), Lundy v. Lundy, 23 Ariz. 213, 202 P. 809 (1922); Stark v. Stark, 32 Ariz. 392, 259 P. 401 (1927), there was sufficient evidence to justify granting the divorce.
Affirmed.
HATHAWAY, C.J., and HOWARD, J., concur.
NOTES
[1]  A Brown decree dissolves the bonds of matrimony without awarding either party the divorce. This type of decree was first approved in Arizona in Brown v. Brown, 38 Ariz. 459, 300 P. 1007 (1931).


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789 F.Supp. 989 (1992)
Mitchell SHANDS, Don Key, and Forrest Busch, Plaintiffs,
v.
CITY OF KENNETT, Warren Karsten, John Mallott, Jerry Talley, John Vardell and Jingo Cole, Defendants.
No. S 89-0088 C.
United States District Court, E.D. Missouri, Southeastern Division.
March 19, 1992.
*990 Jim R. Bruce, Kennett, Mo., for plaintiffs.
Stephen P. Sokoloff, Sharp & Sokoloff, Kennett, Mo., for all defendants.
Mark J. Pelts, Pelts, Stokley & Turnbow, Kennett, Mo., for defendants Karsten and Mallott.

JUDGMENT
LIMBAUGH, District Judge.
On April 10, 1989, plaintiffs were terminated as volunteer fire fighters for the City of Kennett, Dunklin County, Missouri. On June 1, 1989, plaintiffs filed suit against all defendants requesting damages arising from the termination and for a variety of other kinds of relief. Various allegations of liability were set out in the complaint.
The case was tried to a jury and after verdicts, judgment on November 30, 1991 was entered in favor of plaintiff Mitchell Shands against defendants for actual damages in the sum of Four Thousand Five Hundred and no/100 Dollars ($4,500.00) together with punitive damages in the sum of Fifty Thousand and no/100 Dollars ($50,000.00).
Judgment was also entered in favor of plaintiff Don Key against defendants for actual damages in the sum of Seven Thousand Three Hundred and no/100 Dollars ($7,300.00) and punitive damages in the sum of Seventy-Five Thousand and no/100 Dollars ($75,000.00).
Judgment awarding actual damages in favor of Forrest Busch against all defendants was also entered in the sum of Five Thousand and no/100 Dollars ($5,000.00) together with an additional sum of Fifty Thousand and no/100 Dollars ($50,000.00) as punitive damages.
Several matters are before the Court. The first is the request of all plaintiffs for reinstatement as fire fighters for the City of Kennett on a volunteer basis.
The second is for attorney fees, costs and other relief to which the plaintiffs may be entitled.
Defendants have requested a new trial or in the alternative for judgment notwithstanding the verdict.
After reviewing the file and the motion for a new trial, and response thereto by plaintiffs, the Court determines that there was no prejudicial error committed in the trial of the case, and accordingly, the request for a new trial should be denied.
The Court next considers the motion of all defendants for judgment notwithstanding the verdict. In considering the defendants' motion for JNOV, the Court must give great credence to the jury verdict, giving it the benefit of all reasonable inferences and taking all the evidence tending to support the verdict. In order to sustain a motion for JNOV for the defendants, all the evidence must point one way, in their favor, and it must not be susceptible to any reasonable inferences supporting the jury's verdict. Rellergert v. Cape Girardeau County, Missouri, 924 F.2d 794, 797 (8th Cir.1991), aff. 724 F.Supp. 662 (E.D.Mo.1989). Nonetheless, in order to sustain the verdict, it must be supported by substantial evidence and a mere scintilla is not enough. Singer Co. v. E.I. du Pont, de Nemours and Co., 579 F.2d 433, 440 (8th Cir.1978).
With this standard in mind, we review the evidence. The City of Kennett is the county seat of Dunklin County, Missouri, located in the Southern portion of the Bootheel. Although a few full-time fire fighters formed a nucleus for fire protection, most of the Kennett fire department was composed of volunteers. During the time in issue, there were seven full-time *991 fire fighters and 24 volunteers for a total of 31. Even though the 24 volunteers were called volunteer fire fighters, they received $10.00 pay per fire call, irrespective of the seriousness of the fire. They also received $10.00 for every training session which they attended. The volunteer fire fighters ranged from attending 60% to 95% of the fires.
There are generally 140 to 160 fire calls annually and 24 training sessions; thus, if a fire fighter answered 130 calls per year and attended 20 meetings, he would receive annually the sum of $1,500.00 remuneration from the City.
Bill McMahan was the fire chief from 1980 to the end of 1988. In 1986, in addition to the fire chief, there were two captains and in 1988, rather than two captains, there was one captain and an assistant chief.
Kennett operates under Missouri law with a mayor/council style of government, and the members of the council are elected and assigned to oversee certain committees. There was a fire committee which was in existence in 1988 and 1989. The committee was composed of three members of the council with defendant Jerry Talley being the chairman, and defendants John Vardell and Jerry Repstock being the other members. Although Repstock was originally named as a defendant, he died May 14, 1990, purportedly from causes not related to this case, and his name was removed as a party-defendant.
The fire committee generally handled all of the affairs of the fire department and their actions and recommendations usually were approved by the City Council. Some of the witnesses testified that there was an internal power struggle going on over the years between the fire fighters and the fire committee, and the City Council. Other witnesses denied this type of power struggle.
In late 1988, the fire committee, on its own, determined that the fire department needed upgrading and in order to do this, the committee felt that the department should have a professional, full-time fire chief. In October of 1988, advertisements for a chief were published and defendant John Mallott, a non-Kennett resident, was hired by the fire committee. Mallott had substantial experience as a professional firefighter and before January 1, 1989 was a full-time fire fighter for the City of Sikeston, Scott County, Missouri.
Five persons on the existing fire fighting staff had applied for the job, as did others, and following the hiring of defendant Mallott there was substantial concern expressed among the fire fighters. The fire fighters were irritated because they were not consulted by the fire committee concerning the new organization and the method of selection of a new fire chief. There were several meetings and plaintiffs and others threatened to resign. At one time, a substantial walkout was considered but on reflection and reevaluation by plaintiffs and others, the walkout was averted.
Defendant Mallott took over his duties January 2, 1989, and reorganized the force to some extent. He appointed an assistant chief, two captains and five lieutenants, all from the existing staff. Some of the five persons on the staff who had applied for Mallott's job filled the position of captain or lieutenant.
During January, February and March of 1989, Mallott began to acquire fire-fighting equipment from surplus commodities. Apparently, the items were acquired for a reasonable sum or by gift, and some may have been used equipment. There was apparently little or no communication between Chief Mallott and the fire fighters with respect to these acquisitions. At various meetings, the fire fighters expressed concern over the Chief's practice as they felt that some of the equipment the Chief had acquired was not safe or was outmoded.
In addition, the fire fighters were concerned about the lack of an expert on the force who could be available during a fire to disconnect electric meters. Many of the men felt that an electrician or a fire fighter, trained in this type of work, should be employed, so that if electricity was ever a problem during a fire, it could be resolved by having the expert available. Apparently, *992 there was not a great deal of conversation, if any, concerning all of these matters between the Chief and the men.
David Horton had been a volunteer fire fighter for the City of Kennett between the years 1982 and 1986. He resigned in 1986 because he was somewhat disenchanted with the department operation. After Chief Mallott was employed, Horton changed his mind and felt that he would like to be reinstated as a volunteer fire fighter. He submitted an application to Chief Mallott who indicated an interest in reinstating Horton. Sometime in March 1989, Chief Mallott issued a formal request to the council to reinstate Horton as a volunteer fire fighter. The plaintiffs and other fire fighters became aware of Horton's application and submission to the council and discussed it at various times.
Following these discussions, plaintiff Busch met for breakfast with one of the councilmen, Bill Wilson, as they were friends. The meeting occurred at McCormick's Steak House on March 31, 1989. There is some question as to whether anyone else was present other than Busch and Wilson.
At the breakfast, Busch discussed with Wilson the application of David Horton for reinstatement. Busch testified that he told Wilson that the employment of Horton should be postponed because additional time was needed to consider various safety features such as the recent equipment purchases by the Chief and the need to have someone disconnect meters at all fires. Accordingly, Busch requested that at the council meeting Wilson move to table the application of David Horton for a limited period of time. Wilson testified that at the meeting, Busch asked him to table because they had been having problems with David Horton.
In any event, Wilson agreed to move to table Horton's application, but suggested to Busch that he should contact another councilman for the purpose of having a "second" to the motion. The next day, Saturday, April 1, 1989, many of the fire fighters met at the fire station for breakfast which they did occasionally. Perhaps 21 or 22 fire fighters were present including all plaintiffs and Bob Holder, another volunteer fire fighter. At the meeting, there was a general discussion about the acquisition of the surplus equipment and the need to have someone available to disconnect meters at fires and also the application of David Horton for reinstatement. Busch indicated that he had discussed the matter with councilman Wilson who had agreed to move to table the application of Horton when it was to be presented at the next council meeting. Considerable discussion was had as to obtaining another councilman to "second" the motion to table.
Plaintiff Key suggested that councilman Cole was his friend and that they should contact him about "seconding" Wilson's potential motion. Busch also indicated that he was a friend of Cole and several persons decided to visit Cole to discuss the matter with him.
After breakfast on April 1, 1989, all of the plaintiffs and Bob Holder went to see Cole at his Kennett place of business. They talked with him about fire department affairs, and reiterated their concern about safety, the acquisition of the surplus equipment, the need to have someone on the force available to disconnect electric meters at a fire, and the pending application of David Horton.
Plaintiff Key told Cole that councilman Wilson had agreed to move to table the Horton application for two weeks, and indicated that they needed a "second" and asked Cole if he would "second" Wilson's anticipated motion. After some discussion, Cole refused to "second" the motion, although when the meeting was actually held, he changed his mind and did "second" the motion.
Cole testified that the plaintiffs and Holder told him that they had no complaint about David Horton and his abilities as a fire fighter, but they simply wanted Chief Mallott to know he could not always get his way. They felt that tabling the motion of Horton would show this to the Chief. Plaintiffs denied the motivation portion of Cole's testimony, but did state that they *993 had no complaint with David Horton and his abilities.
The council met April 4, 1989 and councilman Wilson did move to table the application for reinstatement of David Horton as a fire fighter. Cole seconded the motion and both voted in favor of the motion, but all other council members voted against the motion to table, and the motion was defeated. Thereafter, the application was voted on and the council voted to reinstate David Horton as a fire fighter. Following the meeting, Wilson told Chief Mallott of the discussion between Busch and himself, the fire fighters meeting of April 1st and the meeting of plaintiffs and Holder with Cole.
After the council meeting of April 4, 1989, there was some publicity about Horton's reinstatement. David Horton and his brother, Bob, by happenstance, met in Bill's Barbeque Shop in Kennett and discussed the publicity. David understood that the publicity was from the newspaper, and Bob Horton understood that it was a radio broadcast. In each situation, the report was that the reinstatement of David created some controversy at the council meeting because David Horton was reported to be a trouble maker. Plaintiff Shands was also in the restaurant and overheard the conversation and then participated in it. David told Shands that he was concerned because he felt his former fire fighter colleagues did not want him. Shands assured both Hortons that the motion to table, and the discussion at the council meeting was not personally lodged against David, but was to show Chief Mallott that he could not always get his way before the council. At a subsequent fairness hearing, plaintiff Shands was asked about the conversation with the two Hortons, and he said that "if those boys say that's what I said, I guess I did."
After further investigation into the matter following the council meeting of April 4, 1989, Chief Mallott felt that it was necessary to terminate the plaintiffs and Bob Holder. He approached the members of the fire committee and was only able to reach Talley and Repstock as Vardell could not be located. Mallott indicated to Talley and Repstock that the plaintiffs and Holder had gone behind his back and were disrupting the operation of the department. Talley and Repstock agreed with Chief Mallott and as two of the three members of the committee could decide this matter, it was decided to follow the recommendation of the Chief in the absence of the third member, Vardell.
In the interim, Chief Mallott had also discussed the matter with Mayor Karsten on May 9th. The mayor told the chief that he would consent to terminating the plaintiffs and Holder from their jobs as volunteer fire fighters provided that the fire committee consented.
After obtaining the approval of the Mayor and two of the three members of the fire committee, Chief Mallott issued written notifications of termination to the plaintiffs and to Bob Holder on April 10, 1989. The reasons given for the terminations were "misconduct and insubordination."
Thereafter, the terminations and events leading up to them were aired on radio, television and in the newspaper. At 7:00 a.m., April 11, 1989, plaintiff Busch was in a Kennett cafe having breakfast and showed his termination letter to Jeff Wheeler, manager of the local radio station. Wheeler had a talk radio show and shortly after this reported what had happened on his show. In the radio show, he did not report that he had received this information direct from plaintiff Busch. The matter was also presented on a nearby television news broadcast in Paragould, Arkansas and numerous articles were written in the Kennett Daily Dunklin Democrat. It was even reported in a news story on KFVS-TV in Cape Girardeau.
Linda Redeffer, a reporter for the newspaper, spoke with plaintiff Busch about the problem and he told her he was fired for insubordination. Defendant Talley and Karsten told her they were concerned about an audit of the Fire Department suggesting the possibility of an impropriety, and Talley indicated that he had received threatening phone calls such as someone indicating they would slash his tires.
*994 Chief Mallott told her that the reason for the termination was "insubordination to a standing city policy."
Plaintiff Shands told her he was going to run Chief Mallott out of town, like he did the former city manager.
All of the plaintiffs in their testimony stated that they had no animosity to Chief Mallott, and that they felt they got along with him quite well before their termination. Some witnesses testified that the relationship between Chief Mallott and the fire fighters was good. Others testified that it was hostile throughout the three months and 10 days he was chief before the terminations.
Irrespective of plaintiff Shands' testimony that he had no animosity to the chief, he admitted that he had stated he would spend $10,000.00 to get even and get Chief Mallott fired.
The entire affair created a considerable amount of furor in Kennett. The City Council, either at the request of plaintiffs or on its own, convened a town hall type of meeting on April 18, 1989 for the purpose of allowing plaintiffs and any one else to express an opinion about the layoffs.
All of the plaintiffs and Bob Holder attended that meeting together with their counsel, Jim R. Bruce.
Bob Holder read a prepared statement wherein he objected to his termination and that of the plaintiffs. All of the members of the council were present as was Chief Mallott and the Mayor. As the main spokesman, Holder testified that he felt he and the plaintiffs had the opportunity at this meeting to tell their story. There was a substantial crowd of townspeople at the meeting, and it was covered by radio, television and press. The Mayor announced that anyone who wanted to talk could do so, and there would be no time limits. Attorney Bruce and the plaintiffs were allowed to question anyone who made a statement and they did.
Either shortly before or after this town meeting, plaintiffs and Holder felt that they should disseminate their point of view and they bought a newspaper ad in the Daily Dunklin Democrat setting out their position. At some point during these proceedings, Holder told the newspaper reporter, Redeffer, that he felt Chief Mallott was on an ego trip. Chief Mallott was also interviewed on television, and there presented his point of view.
Thereafter, request was made to reinstate the plaintiffs and Bob Holder, and this was considered at a regular council meeting on May 4, 1989. This evolved into a meeting similar to the one on April 18, 1989, except that it was a partially closed session. Only the councilmen were present as was Chief Mallott and all of the plaintiffs, Holder and counsel Bruce. Again, the parties talked before the council and attorney Bruce was allowed to ask questions of anyone who talked and everyone apparently was able to have input as to their feelings concerning the terminations and potential reinstatements. At a later meeting on May 16th, in closed session, the council elected not to reinstate the plaintiffs and Holder.
No one complained at the April 18th or the May 4th meeting that they were not allowed to talk or ask questions, nor did anyone complain about the methodology of conducting both meetings.
The case was submitted to the jury on two theories. The first was that the defendants violated plaintiffs' first amendment rights by discharging them because they exercised their rights of freedom of speech, association and petition. The second theory was a breach of plaintiffs' fourteenth amendment rights wherein a public employee is discharged and the employer makes false and stigmatizing charges against the employee in connection with the discharge. Under these circumstances, the employee is entitled to have a "name clearing hearing" in order to afford him due process. The jury found for the plaintiffs and against the defendants on both theories of recovery and awarded actual and punitive damages.
With respect to the fourteenth amendment claim, the Court instructed the jury as follows:

*995 Your verdict must be for the plaintiffs on their Fourteenth Amendment due process claim if you believe:
FIRST, that plaintiffs were discharged from the employment with the City of Kennett;
SECOND, that city officials, including defendants Talley, Karsten or Mallott, made statements which in the eyes of the public suggested, implied or created the false impression that plaintiffs had taken money, manipulated figures on fire reports, slashed tires, made threatening telephone calls or received payment from the city for services when none had been performed;
THIRD, that such statements were made in connection with plaintiffs' discharge from employment with the City of Kennett;
FOURTH, that plaintiffs requested a hearing to clear their names;
FIFTH, that defendants City of Kennett, and defendants Karsten, Cole, Vardell and Mallott failed to provide plaintiffs a public hearing and a meaningful opportunity to confront the evidence against them and to clear their names.
SIXTH, plaintiffs suffered damages as a result of the denial.
The Court also instructed the jury that due process is required when a public employee is discharged and the employer publicly makes false and stigmatizing charges against the employee in connection with the discharge. The Court told the jury further that the term "stigmatizing" means "that which seriously damages one's standing and associations in the community or which substantially forecloses other opportunity for employment."
There was extensive media coverage of the incidents surrounding the layoffs. Certain conclusionary comments by members of the media derogatory to the plaintiffs were asserted by plaintiffs to come directly from defendants. Defendants, on the other hand, claimed such comments were not made by them, but were statements by the reporters and journalists themselves.
There is further substantial difference of opinion as to whether or not statements or charges made seriously damaged any of the plaintiffs' standing or associations in the community or substantially foreclosed other opportunity for employment. This is a voluntary fire department and there was little or no evidence to show that what was done prevented any of the plaintiffs from having other opportunity for employment. Plaintiff Busch lives five miles north of Kennett and has been in the area for 25 to 30 years. He is in the insurance and real estate business and does some home construction work. There was no testimony to suggest that any of his businesses had suffered as a result of the incidents in question.
Plaintiff Shands worked for Arkansas-Missouri Power and Light Company for 32 years as a foreman, and has retired from that job and now has a local electric business. There is nothing to show that his current business has suffered as a result of the incident. Plaintiff Don Key has been a Kennett resident for 40 years. He has owned and operated Don's Supply Shop for 28 years. Again, there is nothing in the evidence to show that his business has suffered because of the termination.
The Court finds therefore that it could determine as a matter of law that there is no substantial evidence upon which the jury could have determined that the plaintiffs have been stigmatized by the events that happened. There is no evidence to show that they suffered economic damage or lost any opportunity for employment.
Nonetheless, more importantly, even if the Court were to determine that plaintiffs were entitled to due process hearings because of their discharge, as a matter of law the due process was, in fact, afforded all plaintiffs.
The Court's verdict director instruction told the jury that one of the elements that they must find in favor of the plaintiffs in order to return a verdict for plaintiffs on their fourteenth amendment claim was:
Defendants City of Kennett and defendants Karsten, Cole, Vardell and Mallott failed to provide plaintiffs a public hearing and a meaningful opportunity to confront *996 the evidence against them and to clear their names.
Generally, the parties do not dispute the proposition that if a person's name, reputation, honor or integrity is at stake because of what a governmental entity may be doing to that person, notice and an opportunity to be heard are essential. Due process would accord an opportunity to refute any charges made. The purpose of such due process which is notice and hearing is to provide the person an opportunity to clear his name. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The parties disagree that the defendants afforded plaintiffs a public hearing and a meaningful opportunity to confront the evidence against them and to clear their names.
Plaintiffs suggest that they were entitled to notice and a meaningful opportunity to respond to the charges and then for the issue to be decided by an impartial decision-maker. In support of this proposition, the plaintiffs first cite Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). This case is not precisely on point as it determines what type of due process is required in a pre-termination situation. Nonetheless, there are some comments made in Cleveland which are pertinent in connection with any kind of due process availability. In Cleveland, the court suggests that there be notice and opportunity for hearing appropriate to the nature of the case. Id. at 542, 105 S.Ct. at 1493. "The essential requirements of due process and all that respondents seek or the Court of Appeals requires are notice and an opportunity to respond." Id. at 546, 105 S.Ct. at 1495.
Plaintiffs also cite as support for their position Brady v. Gebbie, 859 F.2d 1543 (9th Cir.1988). The Brady case did, in fact, address the fundamental need for due process when a liberty interest is involved. Where a person has been deprived of a liberty interest without due process, the hearing required must provide the aggrieved party with an opportunity to clear his name. Brady v. Gebbie, at 1554.
Where a property interest is involved, something additional is ordinarily required such as an impartial decision-maker. The present case does not involve a property interest. Robinson v. City of Montgomery City, 809 F.2d 1355, 1356 (8th Cir.1987) aff. 651 F.Supp. 493 (E.D.Mo.1986); Armer v. City of Salem, 861 F.2d 514 (8th Cir.1988).
Thus, considering all of the favorable evidence to plaintiffs in this case, could the jury have found that the plaintiffs were deprived of an opportunity to clear their names? I believe not.
One week after discharge, the plaintiffs were entitled to be present at a public meeting at which the Mayor, City Council and the City Attorney were present. Plaintiffs' counsel was also present as was the press and numerous interested local citizens. The Mayor allowed anyone to comment that desired to do so, and he placed no time restriction on the comments.
The Mayor first allowed Bob Holder to make a prepared statement on behalf of himself and the plaintiffs. This statement was elaborate and carefully worked out, and set out all of the concerns of the plaintiffs and Holder. It attempted to refute any impropriety or wrongdoing or inappropriate conduct on the part of the plaintiffs.
Other plaintiffs made oral presentations, and various members of the council and interested citizens made presentations. After each presentation the Mayor allowed attorney Bruce to question that person concerning his or her statement. All in all, there was a complete disclosure by all parties as to what had happened, albeit some of the statements may not have been satisfactory to the parties involved. The Court concludes, therefore, that this meeting in and of itself satisfied due process requirements where an alleged liberty interest had been lost as had been asserted here. The parties had ample time to prepare, everyone was present, and the parties and counsel had a full opportunity to participate.
That hearing was bolstered by still another hearing on May 4, 1989 at a closed session of the council. Although the session was closed, plaintiffs and their attorney were present, and again, all of the *997 interested parties had an opportunity to express their views about the events in question and plaintiffs and their counsel again, were allowed to participate fully, and allowed to make whatever statements they desired. Plaintiffs, therefore, had every opportunity to clear their names which is all that is required to meet their due process rights. Judgment notwithstanding the verdict shall therefore be entered in favor of defendants on the fourteenth amendment claim.
The Court's verdict director instruction on plaintiffs' first amendment claim was as follows:
Your verdict must be for the plaintiffs on their first amendment freedom of speech and petition claim if you believe:
1. The plaintiffs exercised their first amendment right of freedom of speech and petition by speaking on matters relating to the fire department;
2. The exercise of their first amendment rights of freedom of speech was a substantial or motivating factor in the decision of the defendants to discharge plaintiffs from employment or their refusal to reinstate plaintiffs following their discharge;
3. The private statements to Councilman Cole did not unduly interfere with the plaintiffs' ability to perform their duties in the fire department or cause any actual or potential disruption to the fire department in the performance of its functions;
4. Plaintiffs suffered damages as a result of the denial of their first amendment rights.
5. That defendants would not have dismissed or refused to reinstate plaintiffs except for the fact that they had exercised their first amendment rights.
Although the substantial testimony in the case is that the plaintiffs and Bob Holder were terminated because they opposed some of the policies of the Chief and attempted to manipulate the City Council to postpone the Chief's decision to employ David Horton, it is conceivable that the jury could have inferred that the plaintiffs were terminated because of their exercise of speaking rights. The jury conceivably could have determined that plaintiffs were terminated because of various statements made about their safety concerns, the purported inadequacy of the surplus equipment the Chief was buying and the lack of attention to employing an electrician-type fire fighter. The Court, however, cannot find evidence even when considered in the light most favorable to plaintiffs that "the private statements to Councilman Cole did not unduly interfere with the plaintiffs' ability to perform their duties in the fire department or cause any actual or potential disruptions to the fire department in the performance of its functions."
The meeting with Cole undermined the entire operation of the fire department. It indicated a complete lack of regard for rank on behalf of the plaintiffs, and suggested that they would proceed at any cost to have their way. They did just that and attempted to manipulate Chief Mallott's bosses, that is, the City Council, by making arrangements with friends of the fire fighters on the council to delay proposals advanced by Chief Mallott.
Chief Mallott was the Chief. Although he may not have had a proper rapport with his men, and some of his methods might not have been acceptable to all, he was still the Chief. His authority should not be subject to question unless he was violating the law or not following a policy of the city or was himself acting in such a devious way that would disrupt the activities of the department and make the department unmanageable. Was the Chief to run the fire department as governed by the council and the fire committee, or were the plaintiffs and some of the men running the department?
The verdict director instruction was tendered by the plaintiffs and generally submits the law properly in cases of this nature. A public employee certainly has the right of free speech at all times, however, it is not without some restraints. Pickering v. Board of Education of Township High School, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). There is simply no evidence in plaintiffs' favor to suggest anything *998 else that the purpose of the meeting with Cole and others was to undermine and challenge the Chief's authority.
In addition, the evidence shows as a matter of law that defendants had the right to terminate plaintiffs. The limited First Amendment interest of plaintiffs did not require that defendants tolerate action which defendants reasonably believed would disrupt the office of the Fire Chief, undermine his authority, and destroy close working relationships between the Chief and his men. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Judgment notwithstanding the verdict, therefore, should also be entered in favor of the defendants on plaintiffs' first amendment claim.
Although it is unnecessary in view of the foregoing holdings to consider the question of damages, the Court notes that there was simply no evidence to support a submission of a punitive claim against defendants.
JUDGMENT IS THEREFORE ENTERED in favor of all defendants and against plaintiffs on all their claims, notwithstanding the verdict reached by the jury.
IT IS FURTHER ORDERED that all other motions in this case not heretofore ruled on are determined to be moot in light of this judgment.


830 F.2d 193
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Brenda J. DEPRIEST, Plaintiff-Appellant,v.DEPARTMENT OF HUMAN SERVICES OF the STATE OF TENNESSEE,Defendant-Appellee.
No. 86-5920
United States Court of Appeals, Sixth Circuit.
October 1, 1987.

Before WELLFORD, MILBURN and DAVID A. NELSON, Circuit Judges.
PER CURIAM.

1
This is an appeal from a district court judgment dismissing the plaintiff's Title VII claim.  The plaintiff contends that the defendant employer has not shown that it could not reasonably accommodate her religious observances without suffering 'undue hardship' within the meaning of 42 U.S.C. Secs. 2000e-2(a)(1) and 2000e(j) (1976).  Because we agree with the district court that the defendant did make the necessary showing of undue hardship, we shall affirm the district court's judgment.

2
The plaintiff, Mrs. Brenda DePriest, was hired by the Department of Human Services of the State of Tennessee on November 1, 1977.  In February of 1978 she began working in the Child Support Unit of Region V.  The plaintiff was a member of the Worldwide Church of God, and she wished to participate in certain religious observances of that church that were scheduled to be held at the Lake of the Ozarks, Missouri, between sunset on October 15, 1978, and sunset on October 23 of that year.  On September 18, 1978, the plaintiff asked her supervisor, Mrs. Schmidt, to approve a request for leave from work on October 2 and 11, and October 13 through 24.  Under the terms of her employment with the Department of Human Services, the plaintiff was entitled to accumulate one day of annual paid leave and one day of paid sick leave during each month that she worked for the Department.  At the time of her request the plaintiff had already taken all of her accumulated annual and sick leave, 22 days, and had used an additional three days of special unpaid leave.

3
Mrs. Schmidt discussed the request with her own supervisor, and with the latter's concurrence granted the plaintiff leave for October 2 and 11, but denied the request for leave from October 13 through 24.  The plaintiff offered to work overtime at her regular rate of pay both before and after the trip, but this proposal was not accepted.  She then stated that she felt compelled to attend the observance in Missouri and would do so even without approval of her leave request.  She was warned that her employment would be terminated if she did.  The plaintiff nevertheless made the trip to Missouri.  When she returned, she found a letter from the Commissioner of the Department of Human Services terminating her employment effective October 23, 1978.

4
In July of 1981 the plaintiff filed a complaint under 42 U.S.C. Sec. 2000e, alleging discrimination on the basis of her religion.  Upon joint motion of the parties the case was placed on the court's 'retired' docket pending the conclusion of two state proceedings, one for denial of unemployment benefits and one (before the Tennessee Civil Service Commission) challenging the termination.  The case was restored to the district court's active docket on March 4, 1985, after the state proceedings had been decided adversely to the plaintiff.  After assignment to a magistrate, both parties filed motions for summary judgment.  The magistrate concluded that the plaintiff had established a prima facie case of religious discrimination and that an evidentiary hearing was necessary.

5
The magistrate found, following such a hearing, that the Child Support Unit consisted of only two persons, the plaintiff and Mrs. Schmidt.  The plaintiff was the only secretary in the office, and there was testimony that it would take approximately two weeks to train someone else to perform the plaintiff's job.  The plaintiff's previous absences had resulted in a small backlog of work in the unit.  Mrs. Schmidt and her superior, Mrs. Oliver, testified that if the plaintiff had not exhausted all of her accumulated leave, the requested leave probably would have been granted.  They also stated that it might not have been because of the backlog.

The magistrate concluded that

6
'The department attempted to accommodate plaintiff's request by granting her leave for October 2 and 11, but simply could not withstand her further absence for another ten working days, in light of her previous leave record and its resulting backlog.  Under the circumstances, her request for leave for October 13 through 24 could not be reasonably accommodated, and the department's denial of said request did not violate Title VII.'

7
The district court adopted the magistrate's report and recommendation, noting also that Mrs. Schmidt and Mrs. Oliver had testified that the office 'was under pressure on federal and state levels to ensure that progress was taking place on a then recently instituted program with the Child Support Unit . . .. Specifically, it appears that defendant was concerned that a portion of the AFDC grant could be forfeited if the program failed to show sufficient progress.'  The court credited the testimony of Mrs. Schmidt and Mrs. Oliver that training a temporary replacement for the plaintiff would have taken approximately two weeks, and that an offer by the plaintiff to work overtime before and after the leave had been rejected because much of the plaintiff's work required the assistance of Mrs. Schmidt, who would have been required to work overtime as well.  The court concluded that

8
'defendant was unable to make reasonable accommodations to plaintiff's leave request without undergoing 'undue hardship' as that term has been judicially defined.  The options available to the defendant included training another individual to fill in for plaintiff during her absence, leaving plaintiff's position vacant during her absence, or permitting plaintiff to work overtime before and/or after her trip.  Each of these alternatives posed more than a de minimis harm to defendant.'

9
The district court dismissed the complaint, and the plaintiff appealed.

10
42 U.S.C. Sec. 2000e-2(a)(a) makes it unlawful for an employer 'to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . ..'  42 U.S.C. Sec. 2000e(j) defines 'religion' as including 'all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.'

11
The Supreme Court has construed this language as requiring the employer to bear no more than a de minimis burden or cost in order to accommodate the employee's religious practice.  Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977).

12
The identified options through which the defendant might have accommodated the plaintiff included training another individual to perform the plaintiff's work during her absence, permitting the plaintiff to work overtime before and after her trip, and leaving the position vacant, with Mrs. Schmidt possibly doing some of the plaintiff's work.  The district court correctly found that each of these alternatives would have imposed more than a de minimis burden on the defendant.

13
The plaintiff's supervisors testified that it would probably have taken two weeks to train someone to perform the plaintiff's duties.  We agree with the district court that this would have constituted more than a de minimis burden.  The second alternative, the undisputed testimony indicated, would have required Mrs. Schmidt to work overtime.  This alternative would have imposed a substantial burden on Mrs. Schmidt, and thus on the defendant.  The third alternative would have resulted in an accumulation of work to be added to the existing backlog, and if Mrs. Schmidt were to have done some of the plaintiff's work, Mrs. Schmidt's own work would have suffered.

14
The plaintiff makes several arguments in support of her assertion that any hardship suffered would not have been 'undue.'  First, she points to testimony that a person having enough seniority to be eligible for 36 days a year of annual and sick leave would not have been disqualified for the position held by the plaintiff.  Based on this testimony the plaintiff asserts that her requested leave would have imposed no more hardship on the defendant than the defendant would have been willing to suffer had the plaintiff had more accumulated leave.  Mrs. Oliver testified, however, that even if someone holding the plaintiff's position had accumulated leave available, she might not be permitted to take it at a particular time if the workload did not permit it.

15
The plaintiff also points to the fact that Mrs. Schmidt herself had earlier taken six consecutive weeks of maternity leave.  The plaintiff contends that this shows the unit would not have suffered unduly if the plaintiff had been given the shorter leave she requested.  As Mrs. Schmidt testified, however, she had made plans for her absence and had 'stayed in contact by phone during that time period that [she] was off so that questions could be answered . . ..'

16
The plaintiff further notes that following her discharge her position was vacant for twenty-four days before the defendant transferred someone else into it.  The fact that the defendant might have been burdened less by allowing the plaintiff to take the leave than by dismissing her does not suggest, however, that the burden imposed by a leave would not have been significant.

17
Next, the plaintiff contends that the defendant did not make the required effort to accommodate her religious observance.  Citing McDaniel v. Essex International, Inc.  (I and II), 571 F.2d 338 (6th Cir. 1978), and 696 F.2d 34 (6th Cir. 1982), and Draper v. United States Pipe and Foundry Co., 527 F.2d 515 (6th Cir. 1975), the plaintiff appears to urge that merely considering possible accommodations and concluding that all will cause undue hardship cannot constitute a sufficient attempt to accommodate.  This contention clearly lacks merit.

18
In Draper, although the court stated that it was 'somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that never has been put into practice,' the court expressly conceded that 'it is possible for an employer to prove undue hardship without actually having undertaken any of the possible accommodations.'  527 F.2d at 520.  In McDaniel II the court expressed the employer's burden as one of showing that 'an accommodation . . . would have involved undue hardship,' 696 F.2d at 37 (emphasis supplied), not of showing that it did cause undue hardship.  Surely Congress did not intend that an employer must actually undertake an accommodation that will inevitably cause undue hardship.

19
Under the circumstances of this case, the employer simply did not have much flexibility.  The unit in which the plaintiff worked consisted of only two people.  It is uncontested that no one else performed the same duties as the plaintiff, and there was no possibility of moving the plaintiff to another shift or another position.  Mrs. Oliver testified that she and Mrs. Schmidt 'talked this over carefully' and concluded not only that the plaintiff had used more than her alloted annual leave, but also that 'two more weeks would put us in very bad shape.'  We agree with the district court that the defendant has shown it would have suffered undue hardship if it had granted the plaintiff's request for leave.

20
Finally, we find no merit in the plaintiff's contention that the defendant discriminated against her by failing to apply the State's progressive discipline policy.  The rules provide that an employee absent from work for more than three consecutive business days without approval shall be considered as having resigned.  Tenn. Civil Service Rules and Regulations Chapter 1120-2-2-2.13(4).  The plaintiff's unapproved absence for more than three consecutive business days constituted a resignation.

21
The district court's judgment is AFFIRMED.  The defendant's request for damages under Federal Rule of Appellate Procedure 38 is denied.


543 U.S. 832
HAYESv.CHATMAN, WARDEN.
No. 03-10379.
Supreme Court of United States.
October 4, 2004.

1
Super. Ct. Hancock County, Ga. Certiorari denied.


258 F.3d 727 (8th Cir. 2001)
FIRST NATIONAL BANK OF LEWISVILLE, ARKANSAS, PLAINTIFF - APPELLANT,v.FIRST NATIONAL BANK OF CLINTON, KENTUCKY, DEFENDANT - APPELLEE.
No. 00-2001
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Submitted: February 16, 2001Filed: July 20, 2001

Appeal from the United States District Court for the Western District of Arkansas.
Before Bowman, Heaney, and Loken, Circuit Judges.
Loken, Circuit Judge.

1
The issue in this diversity action is whether a federal court in Arkansas has personal jurisdiction over a Kentucky bank whose only contact with Arkansas was to issue a cashier's check payable to an Arkansas bank and then, it is alleged, wrongfully dishonor the check. The district court1 dismissed the action for lack of personal jurisdiction, concluding that this contact was insufficient to permit the exercise of personal jurisdiction consistent with the Due Process Clause. We affirm.

2
Kentucky residents Joseph and Amy Reddick contracted with D & D Builders, Inc. ("D & D"), an Arkansas contractor, to construct an improvement on the Reddicks' property in Kentucky. The Reddicks' bank, First National Bank of Clinton, Kentucky ("FNB Clinton"), disbursed $126,000 of construction loan proceeds by issuing its cashier's check payable jointly to D & D and its bank, First National Bank of Lewisville, Arkansas ("FNB Lewisville"). FNB Clinton delivered the check to the Reddicks in Kentucky, and they delivered it to D & D as partial payment for work performed in Kentucky. D & D endorsed the check and delivered it to FNB Lewisville in Arkansas.

3
FNB Lewisville presented the check for payment by placing it into the Federal Reserve System for collection. FNB Clinton refused to honor the check, claiming an improper endorsement. After representatives of the two banks discussed the endorsement issue by telephone, FNB Lewisville endorsed the check as requested and again presented it for payment. At the request of the Reddicks, who alleged fraud by D & D, FNB Clinton again dishonored its cashier's check. FNB Lewisville commenced this diversity action in the Western District of Arkansas, alleging wrongful dishonor. The district court granted FNB Clinton's motion to dismiss for lack of personal jurisdiction. See FED. R. CIV. PROC. 12(b)(2). We review that ruling de novo. Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d 1382, 1384 (8th Cir. 1996).

4
FNB Lewisville has the burden of establishing the district court's in personam jurisdiction under Arkansas law and the Due Process Clause of the Fourteenth Amendment. Because the Arkansas long-arm statute extends jurisdiction over nonresidents to the maximum extent permitted by the Due Process Clause, see ARK. STAT. ANN. § 16-4-101, our inquiry hinges on whether the exercise of personal jurisdiction over FNB Clinton would comport with due process. See Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8th Cir. 1992). Due process requires sufficient "minimum contacts" between the defendant and the forum State so that "maintenance of the suit does not offend traditional notions of fair play and substantial justice." World-Wide Volkswagen Corp. v. Woodsen, 444 U.S. 286, 291-92 (1980). "[I]t is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Hanson v. Denckla, 357 U.S. 235, 253 (1958). Defendant's contacts must be more than "random, fortuitous, or attenuated." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985).

5
In this case, FNB Clinton maintains no office or other place of business in Arkansas, is not registered to do business in Arkansas, does not solicit customers or accounts from residents of Arkansas, and has neither bank accounts nor property in Arkansas. FNB Clinton's only contacts with Arkansas relating to this action were issuing a cashier's check jointly payable to two Arkansas residents and telephone communication with FNB Lewisville regarding proper endorsement of the check. The telephone calls add nothing to the quality of these contacts. See, e.g., Burlington Indus., Inc. v. Maples Indus., Inc., 97 F.3d 1100, 1103 (8th Cir. 1996); Scullin Steel Co. v. National Ry. Utilization Corp., 676 F.2d 309, 314 (8th Cir. 1982). The issue, then, is whether issuance of a cashier's check payable to an out-of-state payee subjects the issuing bank to personal jurisdiction in the payee's forum for a claim of wrongful dishonor. Somewhat surprisingly, the parties have not cited, and we have not found, any reported case addressing this issue.

6
A cashier's check is a check drawn by a bank on its own account. In Uniform Commercial Code terminology, "the drawer and the drawee are the same bank or branches of the same bank." ARK. STAT. ANN. § 4-3-104(g). Under the Uniform Commercial Code, a cashier's check is payable at the drawee bank's place of business. ARK. STAT. ANN. § 4-3-111. Presentment, that is, a demand that the instrument be paid, "must be made at the place of payment if the instrument is payable at a bank in the United States." ARK. STAT. ANN. § 4-3-501(b)(1).

7
FNB Clinton issued its cashier's check in Kentucky and delivered the check to its Kentucky customers in Kentucky. The check was payable at FNB Clinton's place of business in Kentucky. The check was presented for payment there through the Federal Reserve System, and FNB Clinton dishonored the check in Kentucky. Moreover, the underlying transaction was a loan to finance a construction project in Kentucky. The only relationship between these transactions and Arkansas was that the construction contractor and its bank were Arkansas residents, which was a mere fortuity from the standpoint of FNB Clinton's role in issuing the cashier's check. In these circumstances, we agree with the district court that FNB Clinton did not purposefully avail itself of the privilege of conducting business in Arkansas and therefore its contacts with that State were insufficient to subject it to personal jurisdiction in an Arkansas court. As the Supreme Court of Missouri said in dismissing for lack of personal jurisdiction a claim against a Nebraska bank for not paying drafts submitted for collection by a Missouri bank, permitting the case to go forward in Missouri "would mean that a nonresident bank could be sued in Missouri for acts wholly performed in the state of its residence in the usual course of conducting its banking business." State ex rel. Bank of Gering v. Scoenlaub, 540 S.W.2d 31, 35 (Mo. banc 1976).

8
FNB Lewisville argues that FNB Clinton is subject to personal jurisdiction in Arkansas because this case is comparable to a hypothetical we posed in Moog World Trade Corp. v. Bancomer, S.A., 90 F.3d at 1387. In Moog, we held that a foreign bank that issued a commercial letter of credit did not thereby subject itself to jurisdiction in Missouri, where the letter of credit beneficiary resided, even though the beneficiary's draw was dishonored by a confirming bank in Missouri. But we suggested that, had the confirming bank honored the beneficiary's draw, "we have little doubt that the Missouri long-arm statute would confer personal jurisdiction over" the foreign bank in a suit by the confirming bank for breach of the foreign bank's contractual obligation to reimburse the confirming bank. 90 F.3d at 1387. FNB Lewisville argues that it is analogous to the confirming bank in our hypothetical and therefore can sue FNB Clinton in Arkansas for failing to pay the cashier's check. But the two situations are not analogous for personal jurisdiction purposes. In our hypothetical in Moog, the foreign bank both issued the commercial letter of credit and contracted for the services of a local confirming bank, to be performed in the confirming bank's forum State. In contrast, FNB Clinton did not solicit FNB Lewisville's involvement in the transaction or contract for its services in Arkansas. FNB Clinton simply undertook to pay FNB Lewisville (or any other holder) in Kentucky in accordance with the terms of the instrument. In our view, a foreign bank with no other contacts with Arkansas does not subject itself to personal jurisdiction in Arkansas courts simply by issuing a cashier's check that is ultimately delivered to an Arkansas bank as co-payee.

9
The judgment of the district court is affirmed.

NOTE:

1
  The HONORABLE HARRY F. BARNES, United States District Judge for the Western District of Arkansas.


226 P.3d 718 (2010)
233 Or. App. 621
STATE
v.
GONZALES.
A139065
Court of Appeals of Oregon.
February 17, 2010.
Affirmed without opinion.