121 F.Supp.2d 1049 (2000)
Ernest A. "Andy" WEBB
v.
ENSCO MARINE COMPANY and, Defendant/Third-Party Plaintiff,
v.
Martin Terminal, Inc., Defendant/Third-Party Defendant.
No. Civ.A. 1:99-CV-0159.
United States District Court, E.D. Texas, Beaumont Division.
October 11, 2000.
*1050 Richard M. Schechter, Houston, TX, for plaintiff.
Robert M. Klaweter, Houston, TX, for defendant.
Innes Mackillop, White Mackillop & Baham, Houston, TX, for third party defendant.

MEMORANDUM AND ORDER
COBB, District Judge.
In this personal injury suit, Defendant Martin Terminal, Inc. ("Martin Terminal") moves to strike Plaintiff Ernest A. "Andy" Webb's jury demand. Martin Terminal argues that Plaintiff no longer has a right to a jury trial in this case because the remaining claims in this suit do not entitled him to such a trial. Defendant asserts particularly that now that Plaintiff has settle his Jones Act suit against the original defendant, and all that remains is Plaintiff's general maritime law claim against Martin Terminal, the jurisdictional basis for a jury trial no longer exists. Plaintiff contends that this Court's jurisdiction is not based on admiralty but on diversity and, therefore, Plaintiff continues to have a right to a jury trial. Alternatively, Plaintiff argues that even if the Court determines that jurisdiction is based on admiralty, he should be allowed to amend his Complaint to make clear that diversity is the sole basis for the Court's jurisdiction. The Court, having reviewed the parties' motions and other relevant information, concludes that (1) Defendant/Third Party Defendant Martin Terminal's Motion to Strike Plaintiff's Jury Demand should be denied and (2) Plaintiff's Motion for Leave to File a Second Amended Original Complaint should be granted.

I. Facts

Plaintiff Webb originally sued his employer, Ensco Marine Company ("Ensco") under the Jones Act and general maritime law doctrines of unseaworthiness and maintenance and cure. His suit was for injuries sustained aboard the Ensco Navigator, an Ensco operated vessel. After discovery, Plaintiff amended his Original Complaint, adding as a defendant Martin Terminal, the shoreside facility that loaded the Ensco Navigator with cargo the day before the accident. Since Martin Terminal, Plaintiff has settled his claim against Ensco, and this Court has dismissed those causes of action, including the Jones Act. Plaintiff's only remaining claims are those against Martin Terminal for its allegedly negligent acts and omissions.

II. Analysis

There is generally no right to a jury trial when a court hears a case under its admiralty jurisdiction. See Keene v. Bouchard Transportation Co., Inc., 9 F.Supp.2d 764, 765 (S.D.Tex.1998), citing, Durden v. Exxon Corp., 803 F.2d 845, 848-50 (5th Cir.1986). A plaintiff, however, "who has a state common law cause of action that also falls within the federal admiralty jurisdiction may elect to bring the suit either as an admiralty action in federal court, or as a state common law action in state court or in federal court assuming he meets the diversity jurisdiction requirements for federal court." T.N.T. Marine Service, Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 586 (5th Cir.1983). The heart of this dispute is whether language in Plaintiff's First Amended Original Complaint deprives him of his right to trial by jury.
Plaintiff alleges in its live pleading that this Court has jurisdiction under 28 U.S.C. *1051 §§ 1331, 1332, and 1367. (Pl.'s First Am. Compl. ¶ 1.) Plaintiff states that his claim against Ensco is "maintained under the Jones Act, 46 U.S.C. § 688(a), et. seq., and the general maritime law of the United States" and his claim against Martin Terminal is "maintained under the general maritime law." (Pl.'s First Am.Compl. ¶ 6.) Thus, the Court has federal question jurisdiction over the Ensco Jones Act claim and diversity and pendant jurisdiction over the general maritime law claims against Ensco and Martin Terminal. There is no other mention of "maritime" in Plaintiff's Complaint and "admiralty" is not mentioned at all.
Martin Terminal contends that the language in Plaintiff's Complaint represents an invocation of this Court's admiralty jurisdiction. Martin Terminal relies principally on T.N.T. Marine to support its position. In that case, the Fifth Circuit held that "there is no right to a jury trial where the complaint contains a statement identifying the claim as an admiralty or maritime claim, even though diversity jurisdiction exists as well." See T.N.T. Marine, 702 F.2d at 587. T.N.T. Marine also addressed the application of Federal Rule of Civil Procedure 9(h), which is relevant to this case. Rule 9(h) provides:
A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82, and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not. The amendment of a pleading to add or withdraw an identifying statement is governed by the principles of Rule 15....
Fed.R.Civ.P. 9(h). Thus, Rule 9(h) allows a plaintiff to include in his complaint a statement identifying his claim as an admiralty or maritime claim for purpose of Rule 38(e), the jury trial of right. T.N.T. Marine makes several points on Rule 9(h) relevant to this case.
To begin, the first sentence of the rule indicates that the plaintiff may elect to have a suit treated as one in admiralty or diversity "`by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim.'" T.N.T. Marine, 702 F.2d at 587 (citing Fed.R.Civ.P. 9 advisory committee note (1966 amendment)) (emphasis added). The Fifth Circuit concludes on this point that "there is no right to a jury trial where the complaint contains a statement identifying the claim as an admiralty or maritime claim, even though diversity jurisdiction exists as well." Id. The Fifth Circuit then construed the second sentence in 9(h) as making "clear that Rule 38(e) denies a right to trial by jury on any claim that is cognizable only in admiralty, regardless of what the pleading says." Because Plaintiff's claim in this case is not a claim "cognizable only in admiralty," the Court need not consider the second sentence of Rule 9(h).
Martin Terminal argues that Plaintiff's statement in his Complaint that his "claim against Martin Terminal, Inc. is maintained under the general maritime law" is a simple statement that brings his claim under the Court's admiralty jurisdiction. The simple statements in T.N.T. Marine were not radically different from the one made by Plaintiff. The plaintiff in T.N.T. Marine stated that "[t]his is also a suit for breach of maritime contract and maritime tort" and that the complaint against the defendant for "breach of contract, civil and maritime, and for maritime tort avers on information and belief as follows...." T.N.T. Marine, 702 F.2d at 587-88. The Fifth Circuit concluded that these statements were "a simple statement asserting admiralty or maritime claims under the first sentence of Rule 9(h)." Id. at 588. Although this opinion has been criticized as restrictive, see Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1057 (9th Cir. 1997), it is still the law of this circuit. That does not mean that the Court is *1052 mandated to apply T.N.T. Marine's rule in this case.
To butress its position, Defendant cites several cases in addition T.N.T. Marine. None of these cases, however, are directly on point. In Durden, the plaintiff had pleaded both admiralty and diversity jurisdiction. See Durden, 803 F.2d at 849 ("In paragraph VI of the complaint Durden alleges that the `Court is vested with jurisdiction of this matter pursuant to the provisions of ... the General Maritime Law of the United States.'"). The same cannot be said of Plaintiff Webb's complaint. Although the plaintiff in Durden had settled his Jones Act claims with his employer, unlike Plaintiff Webb, the plaintiff then proceeded in rem against the vessel and in personam against the vessel owner for unseaworthiness and negligence. Plaintiff has not sued the vessel in rem in this case. The crux of Durden is that, after the court dismissed the plaintiff's Jones Act claim, the plaintiff's claim against the vessel in rem "invok[ed] the unique power of the admiralty court." Id. at 849. Durden is thus not on point.
Defendant also cites to Teal v. Eagle Fleet, Inc., 933 F.2d 341 (5th Cir.1991), to support the proposition that the invocation of Rule 9(h) need not be formal. In that case, however, the Fifth Circuit found that the plaintiff had done three things to invoke the court's admiralty jurisdiction, none of which have been done in this case. The plaintiff in Teal had (1) titled his complaint as "Complaint Within the Admiralty and Maritime Jurisdiction Pursuant to the General Maritime Law of the United States of America;" (2) stated in his complaint that the "case [was] cognizable under the admiralty and maritime jurisdiction ...;" and (3) pled an in rem action against the vessel involved in the case. Teal, 933 F.2d at 345. None of these "simple statements" have been made in this case.
Gilmore v. Waterman Steamship Corp., 790 F.2d 1244 (5th Cir.1986), is also distinguishable from the facts in this case. There, the plaintiff's original complaint, as well as her first, second, and third supplemental complaints asserted both admiralty and diversity jurisdiction. See Gilmore, 790 F.2d at 1246. The pretrial order also alleged both jurisdictional bases. Because those facts are not present in this case, Gilmore is not helpful. Finally, in Romero v. Bethlehem Steel Corp., 515 F.2d 1249 (5th Cir.1975), the court held that the district court properly denied a plaintiff's request for a jury trial because the plaintiff had persistently designated his negligence and unseaworthiness action as one "in accord with Rule 9(h) of the Federal Rules of Civil Procedure." Id. at 1251. Here, Plaintiff has not clearly invoked the Court's admiralty jurisdiction.
Plaintiff principally cites three cases to support his position that T.N.T. Marine's "restrictive" holding should not apply. First, in Keene v. Bouchard Transportation Co., 9 F.Supp.2d 764 (S.D.Tex.1998), the district court concluded that the plaintiff's "passing reference" to admiralty and maritime jurisdiction in his complaint, his citation of the admiralty jurisdiction statute, and his inclusion of an admiralty claim as one of several pleaded in his complaint did not preclude his right to a jury trial. Id. at 765. The defendants in that case had made the "hyper-technical" argument that, although the plaintiff was entitled to a jury trial on his Jones Act claim, he had waived his right to such a trial on his other claims by invoking the court's admiralty jurisdiction in his complaint. The district court correctly did not agree. A critical distinction between Keene and this case, however, is that, in Keene there was a live Jones Act claim, which gave the plaintiff the right to a jury trial. Id. Plaintiff Webb's Jones Act claim has been dismissed.
Plaintiff also argues that Woosley v. Mike Hooks, Inc., 603 F.Supp. 1190 (W.D.La.1985), recognizes the distinction between identifying the jurisdictional basis for a lawsuit and the substantive law that will govern a claim. Plaintiff contends that the language he uses in his Complaint falls within the latter description and, *1053 therefore, does not invoke the Court's admiralty or maritime jurisdiction. In Woosley, the plaintiff sought recovery from one defendant under the Jones Act and from two more defendants under common law negligence and unseaworthiness under the general maritime law. Id. at 1190-91. The second group of defendants argued that, in the absence of an assertion of a Jones Act claim against them or of complete diversity of citizenship, no independent basis for a jury trial existed. The court, however, was not willing to split up the lawsuit by trying one group of defendants to the court and the other to a jury. The court instead tried all the claims, which arose out of the same transaction or occurrence, to the jury. Id. at 1192. The obvious distinction between Woosley and this case is that there is no live Jones Act claim in this case. Thus, Woosley simply begs the question whether Plaintiff has invoked the admiralty or maritime jurisdiction of the Court.
Finally, Plaintiffs cite to Conti v. Sanko Steamship Company, Ltd., 912 F.2d 816, (5th Cir.1990), for the proposition that even if T.N.T. Marine is applicable to this case, the harshness of the holding compels a court to allow a party to amend its complaint so it is not deprived of its right to a jury trial. In Conti, a longshoreman who was injured in a work-related accident brought an action against the vessel owner. Id. at 816. The plaintiff alleged both admiralty and diversity jurisdiction in his pleadings and demanded a jury trial. In the joint pretrial order, both parties stipulated that there was diversity jurisdiction. Later, upon discovering Conti's "pleading error", the defendant moved to withdraw its stipulation and strike the jury demand. Id. at 817. The district court granted the motion. The Fifth Circuit reversed, concluding that the plaintiff should have been given leave to amend. Because there are more similarities than differences between Conti and this case, the Court exercises its discretion to allow Plaintiff to amend his complaint.
"[L]eave [to amend pleadings] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Martin Terminal concedes that it is in the trial court's discretion to allow a party to amend his pleadings after time has passed for amendment as a matter of right. (Def. Reply Pl.'s Resp. Def.'s Mot. Strike Pl.'s Jury Demand at 4.) Even the T.N.T. Marine court recognized that "Rule 9(h) is not a harsh rule. The liberal procedures for amending complaints found in Rule 15 apply to identifying statements." T.N.T. Marine, 702 F.2d at 588. Also important is that in many of the cases cited by the parties, the plaintiffs had refused to amend their pleadings. See T.N.T. Marine, 702 F.2d at 588 ("the plaintiff chose not to amend its complaint, and it is not entitled to a second trial."); Gilmore, 790 F.2d at 1246 (plaintiff made no attempt to amend her pleadings but instead filed a total of four complaints asserting both admiralty and diversity jurisdiction); Romero, 515 F.2d at 1254 (plaintiff could have obtained jury trial by amending rule 9(h) designation in complaint). There is sufficient basis in this case to allow Plaintiff to amend his Complaint.
In the Joint Pretrial Order in this case, the parties allege that jurisdiction is under 28 U.S.C. §§ 1331, 1332, and 1367 and that jurisdiction is not disputed. There is no mention of admiralty or maritime jurisdiction. See Conti, 912 F.2d at 817; Cf. Romero, 515 F.2d at 1252 (plaintiff not entitled to jury trial where, among other things, the pretrial order stated basis for jurisdiction was "admiralty and maritime"). The only mention of the word "maritime" comes in the stipulations, where both parties stipulate that the substantive law that governs the case is "the general maritime law of the United States." (Joint Pretrial Order at 13.) Also like Conti, this case has been on the jury docket since it was filed over a year and a half ago. Although Martin Terminal is correct when it argues that they could not move to strike the jury demand prior to Plaintiff settling with Ensco, the fact *1054 that all parties have assumed that the case would go to the jury indicates that no party is surprised or prejudiced. Martin Terminal is also correct that Conti was "sandbagged," a fact not present in this case. See Conti, 912 F.2d at 818. Martin Terminal, however, has not shown this Court any evidence that it would be prejudiced by allowing Plaintiff to amend. There is also no prejudice to the Court in allowing the amendment. Plaintiff's motion to amend was filed as soon as Martin Terminal's Motion to Strike was filed. All factors point to granting the amendment and leaving the case on the jury docket.

III. Conclusion

The Court agrees with Martin Terminal that T.N.T. Marine's "simple statement" rule applies to this case. That case, however, recognized that the rules are not applied in a vacuum or without thinking. It also stated specifically that Rule 9(h) is not a harsh rule and that courts should understand that the rules on amending complaints still apply. Because there has been no showing of prejudice to either Martin Terminal or the Court, the best course at this stage is to allow Plaintiff to amend his Complaint.
Defendant/Third Party Defendant Martin Terminal's Motion to Strike Plaintiff's Jury Demand is DENIED. Plaintiff's Motion for Leave to File a Second Amended Original Complaint is GRANTED. It is therefore
ORDERED that this case will be tried to a jury.
ORDERED that Plaintiff's Second Amended Original Complaint is deemed filed.


310 N.W.2d 675 (1981)
Michael E. WOJCIAK, Respondent,
v.
NORTHERN PACKAGE CORPORATION, Defendant and third party Plaintiff, Respondent, and
National Surety Corporation, et al., third party Defendants, Appellants.
No. 81-181.
Supreme Court of Minnesota.
October 9, 1981.
*676 Cragg & Bailly and Gary J. Gordon, Minneapolis, for National Surety Corp. et al.
John T. Anderson, Minneapolis, for Wojciak.
Phillips, Gross & Aaron, Minneapolis, for Northern Package Corp.
Considered and decided by the court en banc without oral argument.
PETERSON, Justice.
Michael Wojciak brought an action in Hennepin County District Court against Northern Package Corporation seeking damages for wrongful discharge, alleged to have been a retaliation for his making a *677 claim for workers' compensation. Northern tendered defense of the action to National Surety Corporation, which had furnished it a standard workers' compensation and employers' liability policy, and to American Insurance Company, which had furnished it a general liability policy. Upon the insurers' refusal to defend, Northern served an answer denying the alleged retaliatory discharge and then commenced a third-party action against the insurers seeking a declaratory judgment that they are required to defend Northern in the Wojciak action and to pay any judgment attained by Wojciak. The insurers interposed answers denying coverage and alleging that the intent of Minn.Stat. § 176.82 (1980), upon which Wojciak based his action, was to deter employers from retaliatory dismissals of employees seeking compensation and that public policy therefore precludes indemnification of such employers by insurance.
Upon cross-motions for summary judgment, the trial court granted Northern's motion, holding that each insurer's policy furnished coverage of Wojciak's claim and required defense of the action by the insurer, that Northern was entitled to be reimbursed for reasonable attorney fees expended in defense of the action, and that Northern was entitled to attorney fees of $4,000 in the third-party action. Both insurers have appealed. We affirm the judgment against National, the workers' compensation insurer, and reverse it against American, having concluded that National's policy required it to defend the Wojciak action and to pay any recovery made by him, that American's policy did not so require, and that the coverage afforded by National is not violative of public policy because of the unique character of the statute authorizing the employee's action and because of the relationship existing between a workers' compensation insurer and its insured.

1. Insurance Coverage and Duty of Defense.

As stated, the Wojciak action was premised upon Minn.Stat. § 176.82 (1980), which provides:
Any person discharging or threatening to discharge an employee for seeking workers' compensation benefits or in any manner intentionally obstructing an employee seeking workers' compensation benefits is liable in a civil action for damages incurred by the employee including any diminution in workers' compensation benefits caused by a violation of this section including costs and reasonable attorney fees, and for punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled. Damages awarded under this section shall not be offset by any workers' compensation benefits to which the employee is entitled. (Emphasis added).
National's denial that its policy extended coverage for any recovery Wojciak might make against Northern requires review of its policy. The pertinent provisions of the policy include the following:
INSURING AGREEMENTS
I. Coverages
Coverage A  Workmen's Compensation. To pay promptly when due all compensation and other benefits required of the insured by the workmen's compensation law.
Coverage B  Employers' Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease. . . .
. . . .
II. Defense, Settlement, Supplementary Payments
As respects the insurance afforded by the other terms of this policy the company shall:
(a) defend any proceeding against the insured seeking such benefits and any suit against the insured alleging such injury and seeking damages on account thereof, even if such proceeding or suit is groundless, false or fraudulent . . . .
. . . .

*678 III. Definitions
(a) Workmen's Compensation Law. The unqualified term "workmen's compensation law" means the workmen's compensation law or workers' compensation law and any occupational disease law of a state designated in Item 3 of the declarations, but does not include those provisions of any such law which provide non-occupational disability benefits.
. . . .
CONDITIONS
. . . .
8. Statutory Provisions  Coverage A. The company shall be directly and primarily liable to any person entitled to the benefits of the workmen's compensation law under this policy. . . .
. . . .
All of the provisions of the workmen's compensation law shall be and remain a part of this policy as fully and completely as if written herein, so far as they apply to compensation and other benefits provided by this policy. . . .
. . . .
16. Terms of Policy Conformed to Statute  Coverage A. Terms of this policy which are in conflict with the provisions of the workmen's compensation law are hereby amended to conform to such law.
Northern's position is that the policy affords coverage of the Wojciak claim and required National to provide a defense in that action because the damages the employee might recover therein are "other benefits required of the insured by the workmen's compensation law" within the meaning of Coverage A and because National agreed to provide defense for such an action in Paragraph II(a), quoted above. National argues that the compensatory and punitive damages sought by Wojciak are not "compensation and other benefits required of the insured by the workmen's compensation law." It relies in part on the definition of compensation in Minn.Stat. § 176.011, subd. 8 (1980):
"Compensation" includes all benefits provided by this chapter on account of injury or death. (emphasis added).
National insists that "other benefits" is exactly the same as "compensation" in its policy definition. It relies on St. Martin v. KLA Enterprises, Inc., 269 N.W.2d 59 (Minn.1978), in which this court stated that compensation and benefits are terms used synonymously in the Workers' Compensation Act. In that case we held that the Special Compensation Fund was required to pay an additional award pursuant to Minn. Stat. § 176.225 (1980) for the employer's refusal to pay compensation and rejected the special fund's argument that the additional compensation was not a "benefit" within the meaning of Minn.Stat. § 176.183, subd. 1 (1980), for which the special fund was liable. We said:
A common-sense reading of the statute shows that the additional compensation provisions are intended to be both a penalty and a benefit, since § 176.225 both penalizes the employer for certain acts and designates the employee as the beneficiary of the employer's penalty payment.
A review of the definitions contained in the Worker's Compensation Act shows that the Court of Appeals was correct in stating that the additional compensation, albeit labeled a penalty [in the headnote to section 176.225], is a "benefit" within the meaning of § 176.183, subd. 1. Section 176.011, subd. 8, defines "compensation" as including "all benefits provided by this chapter on account of injury or death." "Benefits" and "compensation" thus are used synonymously in the statute with the result that the penalty which is designated as "compensation" by § 176.225 is a "benefit" within the meaning of § 176.183.
269 N.W.2d at 61.
In reliance on this decision, National claims that "other benefits" in its policy means in effect "compensation"; it then argues that any recovery the employee obtains from an action brought under Minn. Stat. § 176.82 (1980) cannot be "compensation and other benefits" within the meaning *679 of the policy because that statute provides for recovery of "damages" and "punitive damages" and further provides that they shall not be offset by any "workers' compensation benefits to which the employee is entitled." There is a certain logic in the argument since section 176.82 could have provided that damages "awarded under this section shall not be offset by any other workers' compensation benefits" if such damages were included in the definition of compensation in Minn.Stat. § 176.011, subd. 8 (1980).
We have concluded, however, that "compensation" and "benefits," although used as synonyms in the Workers' Compensation Act, were not so used in the policy. Had they been, there would have been no need for the reference in Coverage A to "other benefits." And, if "compensation" and "benefits" meant exactly the same thing, the word "other" would have no function. Instead, assuming that compensation and benefits are synonymous when they relate to wage loss, medical treatment, vocational rehabilitation, and awards under Minn.Stat. § 176.225 (1980), and resolving reasonable doubt as to the meaning of the policy language in favor of the insured, we construe the policy to encompass such benefits in the word "compensation" and to describe other rights granted an employee by the Workers' Compensation Act, including the right to recover damages under Minn.Stat. § 176.82 (1980), in the phrase "other benefits required of the insurer by the workmen's compensation law." Under this construction the policy coverage extends to any liability imposed on Northern as a consequence of the Wojciak action.[1]
Moreover, the policy requires Northern to defend the Wojciak action since paragraph II(a) provides broadly that the duty to defend extends to "any proceeding against the insured seeking such benefits," and the Wojciak action clearly is such a proceeding.
Having determined that National's workers' compensation and employers' liability policy provided coverage and the duty to defend the Wojciak action, and, as discussed hereinafter, that National cannot avoid these obligations on public policy grounds, we need not engage in a similar analysis of the general liability policy furnished Northern by American because, whether or not coverage might otherwise exist, the policy contains an exclusion expressly stating that it does not apply:
(i) to any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law[.]
Northern's claim that the exclusion was removed from the policy by a subsequent endorsement is entirely without merit. By reason of the unambiguous character of the exclusion, we hold that American's policy neither furnished coverage nor required American to defend the Wojciak action on Northern's behalf.

2. National's Coverage of Statutory Punitive Damages is not Violative of Public Policy.

National urges that we hold that public policy prohibits an employer from insuring against a judgment for "punitive damages not to exceed three times the amount of any compensation benefit to which the employee is entitled," authorized by Minn.Stat. § 176.82 (1980). The issue raised is troublesome in light of the purposes for which punitive damages traditionally have been permitted, to punish a wrongdoer and to deter others from like conduct. Several jurisdictions have held that insurance against punitive damages is violative of public policy. The leading case taking that position is Northwestern Nat. Cas. Co. v. McNulty, 307 F.2d 432 (5th Cir. *680 1962), an action against an intoxicated driver who lost control of his automobile and seriously injured the plaintiff. The McNulty court refused to impose liability on the insurer for punitive damages, saying:
Where a person is able to insure himself against punishment he gains a freedom of misconduct inconsistent with the establishment of sanctions against such misconduct. It is not disputed that insurance against criminal fines or penalties would be void as violative of public policy. The same public policy should invalidate any contract of insurance against the civil punishment that punitive damages represent.
The policy considerations in a state where, as in Florida and Virginia, punitive damages are awarded for punishment and deterrence, would seem to require that the damages rest ultimately as well [as] nominally on the party actually responsible for the wrong. If that person were permitted to shift the burden to an insurance company, punitive damages would serve no useful purpose. Such damages do not compensate the plaintiff for his injury, since compensatory damages already have made the plaintiff whole. And there is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, and considering the extent to which the public is insured, the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the insured.
307 F.2d at 440-41. Several courts have agreed with this view. E. g., American Surety Co. of N.Y. v. Gold, 375 F.2d 523 (10th Cir. 1966); Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964); American Ins. Co. v. Saulnier, 242 F.Supp. 257 (D.Conn.1965); Nicholson v. American Fire & Cas. Ins. Co., 177 So.2d 52 (Fla.App.1965); and LoRocco v. N.J. Mfrs. Indem. Ins. Co., 82 N.J.Super. 323, 197 A.2d 591 (App.Div.1964).
Other courts have disagreed, suggesting that the extent to which the imposition of punitive damages deters wanton, outrageous or malicious conduct is speculative and advancing as grounds for imposing liability on the insurer the insured's reasonable expectation of coverage and the state's public policy favoring complete insurance coverage. See, State v. Glens Falls Ins. Co., 137 Vt. 313, 404 A.2d 101 (1979); Price v. Hartford Acc. & Indem. Co., 108 Ariz. 485, 502 P.2d 522 (1972); Dairyland County Mut. Ins. Co. v. Wallgren, 477 S.W.2d 341 (Tex. Civ.App.1972); Lazenby v. Universal Underwriters Ins. Co., 214 Tenn. 639, 383 S.W.2d 1 (1964).
In spite of the lack of certainty concerning the deterrent effect of punitive damages, we are satisfied that in most instances public policy should prohibit a person from insuring himself against misconduct of a character serious enough to warrant punitive damages. In this case, however, we have concluded that the rule should not be applied. We base our decision in part on the fact that Minn.Stat. § 176.82 (1980), although styling the multiple damages authorized therein as "punitive damages," was enacted not only to punish employers guilty of retaliatory discharges and to deter such conduct by others, but also to afford redress to employees who lose their employment as the consequence of retaliatory dismissal. Thus, the statute reflects as much a concern for employees' welfare as it does a desire to punish employers and deter them from the forbidden conduct. We recognize also that there are differences between a statutory award of multiple damages, which represents a fixed amount and does not necessarily reflect a judgment concerning the culpability of the employer's conduct, and an award of punitive damages at common law, which is assessed by the jury and thus reflects the community's condemnation of a defendant's conduct when it is viewed as wanton, malicious, or outrageous. Cf. Cieslewicz v. Mutual Serv. Cas. Ins. Co., 84 Wis.2d 91, 267 N.W.2d 595 (1978). We recognize also that a compensation insurer, by reason of its relationship to the employer-insured, can exert at least some influence on the latter to refrain from conduct giving *681 rise to claims for the punitive damages allowed by Minn.Stat. § 176.82 (1980). The cumulative weight of these considerations leads us to conclude that coverage for the punitive damages recoverable under this statute is not violative of public policy.
Appellants have urged also that the trial court's award of $4,000 in attorney fees is excessive. Although the award was clearly liberal, we are unable to say that it was an abuse of discretion.
The judgment is affirmed as to National Surety Corporation and reversed as to American Insurance Company.
NOTES
[1]  One policy condition (paragraph 8) expressly states that all provisions of the workmen's compensation law "shall be and remain a part of this policy as fully and completely as if written herein, so far as they apply to compensation and other benefits provided by this policy." (Emphasis added). Another policy condition (paragraph 16) provides that "[t]erms of this policy which are in conflict with the provisions of the workmen's compensation law are hereby amended to conform to such law."


713 N.W.2d 592 (2006)
2006 SD 38
Robert J. WAGNER, Personal Representative of the Estate of Walter L. Brownlee, Sr., Plaintiff and Appellee,
v.
Randy BROWNLEE, Defendant, and
Jeanie Weekley, Defendant and Appellant.
No. 23619.
Supreme Court of South Dakota.
Argued November 9, 2005.
Decided April 12, 2006.
John L. Foley of Foley Law Office, Watertown, South Dakota, Attorney for plaintiff and appellee.
Gregory J. Stoltenburg, Todd D. Boyd of Gunderson, Evenson, Boyd, Knight & Stoltenburg, Clear Lake, South Dakota, Attorneys for defendant and appellant.
*594 ZINTER, Justice.
[¶ 1.] An estate beneficiary sued for interest on an unpaid devise. The beneficiary also sought attorney's fees incurred in litigating a number of estate disputes. We reverse the circuit court's denial of interest on the devise and affirm its award of partial attorney's fees.

Facts and Procedural History
[¶ 2.] This is the second time this case has been appealed to this Court. See In re Estate of Brownlee, 2002 SD 142, 654 N.W.2d 206. As we indicated in the first appeal, Walter L. Brownlee, Sr., died testate on August 17, 1997. His Last Will and Testament was filed for probate on September 3, 1997. Under the will, certificates of deposit, household goods, and other personal property were bequeathed to Jeanie Weekley, his long time companion. The remainder of his probate estate was bequeathed to his children.
[¶ 3.] Prior to his death, Brownlee created and funded a trust for the benefit of his children and grandchildren. He had also transferred several items of personal property to some of his heirs. Soon after his death, disagreements arose between Weekley and Brownlee's children. One dispute involved the validity of the inter vivos transfer of construction equipment that was purportedly given to Brownlee's son. A second disagreement involved the estate's and the trust's respective liability for the estate and the inheritance taxes.
[¶ 4.] As a result of these disputes, Weekley petitioned the circuit court to interpret Brownlee's Last Will and Testament and set aside the purported inter vivos transfer of the construction equipment. Weekley argued that the transfer was an ineffective gift, and therefore, the construction equipment should have been part of the residuary estate. Weekley also asked the court to require the trust to pay the estate and the inheritance taxes. Weekley finally requested the circuit court to determine the nature of the bequest of the certificates of deposit. She contended that her bequest was a specific devise, which would have provided her more favorable treatment in an impending abatement.[1]
[¶ 5.] The circuit court agreed with Weekley on two issues. It ruled that the inter vivos bill of sale to the son was an ineffective transfer of the construction equipment, and therefore, the equipment was part of the residuary estate. It also *595 ruled that the bequest of the certificates of deposit was a specific devise. The circuit court, however, disagreed with Weekley's contention that the trust should pay all of the estate and inheritance taxes. Instead, the circuit court ordered that the federal estate tax should be paid from the residuary estate and that the state inheritance taxes should be paid by each beneficiary according to the value of the property they received.
[¶ 6.] Weekley appealed the circuit court's ruling on the taxes, and Brownlee's son appealed the circuit court's ruling disallowing the transfer of the construction equipment. This Court affirmed the circuit court's disallowance of the transfer of the construction equipment and affirmed the court's apportionment of the state inheritance taxes. However, we modified the circuit court's ruling regarding the federal estate tax. We held that the tax clause of the will was ambiguous, and therefore, the federal estate tax was to be equitably apportioned among all of the beneficiaries under SDCL 29A-3-916. Brownlee, 2002 SD 142, ¶¶ 25, 27, 34, 654 N.W.2d at 212-14.
[¶ 7.] After our decision, the estate initiated this action to recover the construction equipment and to apportion the taxes. Weekley counterclaimed for interest on her unpaid devise of the certificates of deposit.[2] She also sought interest on $25,000 of personal funds that she provided to help administer the estate. She finally sought an award of more than $76,000 in attorney's fees that she incurred in the estate litigation, including the prior appeal. The circuit court heard oral arguments on these issues on February 25, 2004.
[¶ 8.] After oral arguments, but before the circuit court issued its opinion, we decided In re Estate of Holan, 2004 SD 61, 680 N.W.2d 331, and In re Estate of Siebrasse, 2004 SD 46, 678 N.W.2d 822 (Siebrasse III). Weekley claimed that these cases affected the issues that were under consideration. Therefore, she moved to reopen to present additional evidence on the attorney's fees request and to present additional written arguments on her claim for interest. The circuit court granted Weekley's motion. However, after hearing further arguments, the circuit court refused to accept additional evidence relating to the attorney's fees because the court concluded that our recent decisions did not change the law. The court ultimately awarded Weekley only the attorney's fees for setting aside the transfer of the construction equipment because it benefited the estate. The court also denied Weekley's request for interest on her unpaid devise and on the $25,000 she provided to help administer the estate. Weekley appeals, raising the following issues:
1) Whether the circuit court erred in refusing to consider additional evidence after granting Weekley's motion to reopen.
2) Whether the circuit court erred in not awarding Weekley additional attorney's fees.
3) Whether the circuit court erred in determining that Weekley was not entitled to interest on her devise and on the $25,000 of personal funds she advanced to administer the estate.

Analysis and Decision

1) Refusal to consider additional evidence after granting Weekley's motion to reopen
[¶ 9.] The circuit court has discretion to determine whether to reopen a case *596 to permit additional evidence. Brownlee, 2002 SD 142, ¶ 37, 654 N.W.2d at 214. The circuit court's decision will not be disturbed "unless there has been an abuse of discretion." Id. (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994)).
[¶ 10.] Weekley's request to present additional evidence on attorney's fees was based primarily on our intervening decision in Siebrasse III, 2004 SD 46, 678 N.W.2d 822. Weekley argued that Siebrasse III changed the law regarding attorney's fees by adopting the two-prong test used in In re Estate of Hafferman, 442 N.W.2d 238 (S.D.1989). The circuit court, however, declined to consider new evidence because it concluded that Siebrasse III did not establish new law, and therefore, "Weekley was merely presenting evidence [that] could have been presented earlier." Thus, the circuit court denied what it described as Weekley's attempt to get "a second bite of the apple."
[¶ 11.] On appeal, Weekley contends that the two-prong test utilized in Hafferman was not the law in South Dakota during the first hearing and that the two-prong test was reestablished in Siebrasse III. However, a review of our cases and the Uniform Probate Code (UPC) reveals that the Hafferman two-prong test was not reestablished in Siebrasse III. Therefore, the law did not change between the two hearings.
[¶ 12.] The basis for the Hafferman two-prong test was this Court's decision in In re Engebretson's Estate (Engebretson I), 68 S.D. 255, 1 N.W.2d 351 (1941). Engebretson I involved a personal representative's action to recover a deficiency in a land foreclosure. Id. at 257, 1 N.W.2d at 352. Following a ruling adverse to the personal representative, the beneficiaries' attorney successfully challenged the adverse ruling and obtained a favorable recovery for the estate. Id. at 258, 1 N.W.2d at 352. In awarding attorney's fees to the beneficiaries for that recovery, this Court applied the following rule: "It has been held, as a general rule, that an allowance may be made out of the estate of a deceased person for the services of attorneys for beneficiaries where those services were beneficial to the estate." Id. at 260, 1 N.W.2d at 353 (emphasis added). However, the Court, in dicta, also quoted the Michigan Supreme Court, which applied a more limited two-prong test:
A doctrine which permits a decedent's estate to be so charged, should, however, in our opinion, be applied with caution and its operation limited to those cases in which the services performed have not only been distinctly beneficial to the estate, but became necessary either by reason of laches, negligence, or fraud of the legal representative of the estate.
Id. at 261, 1 N.W.2d at 353 (quoting Becht v. Miller, 279 Mich. 629, 638, 273 N.W. 294, 298 (1937)). Although this Court did not expressly adopt Michigan's two-prong test in Engebretson I, the test was used and modified in many of our pre-Siebrasse III cases that involved beneficiary attorney's fees, including Hafferman.[3]
*597 [¶ 13.] Despite a lengthy and conflicting history regarding the applicability of the two-prong test, the South Dakota Legislature clarified the matter in 1995 when it adopted the UPC. The relevant statute governing beneficiary attorney's fees did not contain any reference to a second prong requiring laches, negligence, or fraud. See SDCL 29A-3-720. Rather, for a beneficiary to recover attorney's fees, SDCL 29A-3-720 only required that the beneficiary's services "resulted in a substantial benefit to the estate."
[¶ 14.] After the 1995 adoption of SDCL 29A-3-720, our next opportunity to address this issue came in Siebrasse III, 2004 SD 46, 678 N.W.2d 822, which Weekley relied on in her motion to reopen. In Siebrasse III, we did consider one party's argument that under the two-prong test the estate should pay the beneficiary's attorney's fees. Id. ¶ 26. Therefore, we mentioned the two-prong test but only to address that party's argument. Id. Ultimately, we held that the circuit court did not err in denying attorney's fees, relying solely on the finding that there was no benefit to the estate. Id. ¶ 27 ("Because we see no benefit to the Estate if the entire refund had been awarded ... we see no error in the circuit court's denial of [the] request for attorney fees."). In remanding the case to reconsider another issue that could have resulted in a benefit to the estate, we also directed the trial court to reconsider the issue of attorney's fees under SDCL 29A-3-720, which only imposed the first prongthat the services result in a substantial benefit to the estate. Id. ¶ 29.
[¶ 15.] Consequently, it is apparent that to the extent our pre-Siebrasse III cases arguably imposed a two-prong test, SDCL 29A-3-720 abrogated it. For that reason, we only applied the first prong involving the substantial benefit test in Siebrasse III. Thus, Siebrasse III did not establish new case law reincorporating the two-prong test. The substantial benefit to the estate test was applicable both before and after the circuit court's hearing on Weekley's request for attorney's fees. Because no new law was established, the circuit court correctly concluded that Weekley was not entitled to a second opportunity to present evidence on this issue.

2) Additional attorney's fees.
[¶ 16.] Weekley submitted a request for attorney's fees in the amount of $76,366.98. Weekley claimed this amount represented the attorney's fees she incurred in her efforts to have the conveyance of the construction equipment set aside and to have the dispute over the estate and inheritance taxes determined. Her claim also included appellate attorney's fees incurred in the prior appeal to this Court. The circuit court awarded Weekley all of the attorney's fees that related to her successful effort in having the construction equipment returned to the estate because that recovery was beneficial to the estate. However, the circuit court denied the additional attorney's fees relating to the tax apportionment and her appellate attorney's fees incurred in the first appeal.
[¶ 17.] Our standard of review regarding the circuit court's decision to *598 award or deny attorney's fees is well settled. Attorney's fees are awarded at the discretion of the circuit court. Rock v. Rock, 89 S.D. 583, 589, 236 N.W.2d 191, 194 (1975).
[¶ 18.] Weekley argues that the circuit court abused its discretion because her efforts regarding the tax apportionment also benefited the estate. Although her efforts to have the trust pay the taxes were unsuccessful, and although this Court's interpretation did not enhance the value of the probate estate, Weekley contends that the estate was "benefited" because her efforts resulted in a successful "interpretation of Brownlee's testamentary intent." The circuit court, however, noted that Weekley's efforts on the tax issue did not benefit the estate and that they were for her own financial gain.
[¶ 19.] Although there are some cases supporting Weekley's legal theory regarding the correct interpretation of testamentary intent,[4] we see no abuse of discretion in this case. First, we note that Weekley did not prevail in the prior litigation on her theory that the testator intended the trust to be responsible for all of the estate and inheritance taxes. But, even if Weekley had prevailed, those efforts would have primarily benefited Weekley. Had Weekley been successful on her theory, the estate and inheritance taxes would have been paid by the trust rather than the probate estate. Thus, the beneficiaries under Brownlee's will (Weekley and the children) would not have paid the taxes. Rather, the beneficiaries of the trust (the children and grandchildren) would have paid the taxes. Because Weekley was the only beneficiary that would have avoided any tax liability under her theory, it was not an abuse of discretion for the circuit court to conclude that her efforts were primarily for her own financial gain rather than for the benefit of the estate, notwithstanding any alleged effort to effectuate the testator's intent.
[¶ 20.] With respect to the prior appellate fees, we note that Weekley failed to request those fees from this Court when the matter was before us. SDCL 15-26A-87.3 sets forth the substantive and procedural requirements for an award of appellate attorney's fees. One requirement is that "[t]he motion must be served and filed prior to submission of the action on its merits." SDCL 15-26A-87.3(2). Because Weekley did not file a motion for appellate attorney's fees with this Court prior to submission of the matter on the merits, she failed to satisfy the statutory requirements. Thus, the circuit court did not abuse its discretion in denying those fees.
[¶ 21.] Weekley finally seeks $9,778.50 in appellate attorney's fees for this appeal.[5] As discussed in the following issue, Weekley ultimately prevails only on her claim for interest. Considering the nature and complexity of that issue, we award one-half of her request.

3) Weekley's entitlement to interest on her devise?
[¶ 22.] Weekley contends that the circuit court erred by not awarding interest *599 on her devise of the certificates of deposit and on her advancement to help administer the estate. Weekley relies on two statutory theories: SDCL 21-1-13.1,[6] which provides for interest on "damages," and SDCL 29A-3-904,[7] which mandates interest on "general pecuniary devises." The circuit court denied Weekley's claim for interest under SDCL 21-1-13.1, reasoning that the personal representative had discretion in distributing the estate's assets and that there were insufficient funds to pay Weekley's devise plus interest and attorney's fees. The court essentially concluded that because the personal representative was not obligated to make the distribution at that time, there was no "damage" within the meaning of SDCL 21-1-13.1. With respect to Weekley's claim for interest under SDCL 29A-3-904, the circuit court denied Weekley's request based on the doctrine of the law of the case. The court noted that, in the early stages of this dispute, Weekley argued that the bequest was a "specific" devise in order to obtain preferential treatment during the impending abatement, that Weekley's position was adopted, and that the decision was not reversed on appeal. The circuit court concluded that Weekley should not be allowed to now assert the contrary position that the certificates of deposit were a "general" devise so she could obtain interest under SDCL 29A-3-904.
[¶ 23.] Because Weekley seeks interest under either statute, we need only address her entitlement to recover under SDCL 21-1-13.1. In seeking interest under that statute, Weekley argues that she incurred "damages" due to the personal representative's unreasonable delay in distributing her devise. Weekley points out that over three years have expired since our determination that the construction equipment was to be returned to the estate, yet some of her devise and the $25,000 she provided to help administer the estate remain unpaid.
[¶ 24.] Whether Weekley was entitled to interest under SDCL 21-1-13.1 is *600 a question of law. We review questions of law de novo with no discretion given to the circuit court. Blenner v. City of Rapid City, 2003 SD 121, ¶ 41, 670 N.W.2d 508, 514.
[¶ 25.] SDCL 21-1-13.1 provides, in relevant part: "Any person who is entitled to recover damages ... is entitled to recover interest thereon from the day that the loss or damage occurred ...." (emphasis added). We recently recognized the right to recover interest on such claims in another case involving an alleged delay in the distribution of an estate. We noted that "[i]n determining whether any loss or damage occurred, . . . SDCL 29A-3-703(a) provides: `A personal representative is under a duty to settle and distribute the estate ... as expeditiously and efficiently as is consistent with the best interests of the estate.'" Siebrasse III, 2004 SD 46, ¶ 32, 678 N.W.2d at 830. We then concluded that although the personal representative is entitled to "considerable discretion in such matters," a potential claim for interest under SDCL 21-1-13.1 is possible if the personal representative does not distribute the funds "expeditiously and efficiently." Id. ¶¶ 32-33.
[¶ 26.] In this case, the decedent died on August 17, 1997, and on November 20, 2002, this Court determined that the inter vivos transfer of the construction equipment was an ineffective gift. Thus, it has been eight and one-half years since decedent's death and over three years since our decision requiring that the construction equipment be returned to the residuary estate. It also appears that the recovery of the construction equipment would have provided the estate with sufficient assets to pay the expenses and distribute the assets according to Brownlee's will. However, the estate has been unable to articulate any legitimate reason for the three year delay, including any reason why there has been no repossession, sale, or collection of rent for use of the equipment. Because no justification has been presented for the estate's failure to recover the equipment and pay Weekley's claims as expeditiously and efficiently as is consistent with the best interests of the estate, we believe that Weekley has incurred a loss and has been damaged. Accordingly, Weekley is entitled to interest on the amount of her unpaid devise and on the $25,000 she provided for the administration of the estate.[8]
[¶ 27.] Affirmed in part, reversed in part, and remanded.
[¶ 28.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.
NOTES
[1]  At that time, it appeared there were insufficient funds to pay all expenses, taxes, and devises.
[2]  By this time the certificates of deposit had been converted to cash and used to pay some of the estate's liabilities and expenses.
[3]  South Dakota's chronological history of the two-prong test includes: In re Engebretson's Estate (Engebretson III), 69 S.D. 549, 554, 12 N.W.2d 761, 763 (1944) (awarding attorney's fees under the second prong of the two-prong test); In re Bamberger's Estate, 79 S.D. 85, 89, 108 N.W.2d 50, 52-53 (1961) (modifying the second prong by noting that although the second prong limited recovery of attorney's fees to instances where the services of an attorney were necessary due to "laches, negligence, or fraud" of the personal representative, this Court was only "intending to catalogue types of conduct of an executor which would in fact deprive the estate of effective representation"); Hafferman, 442 N.W.2d at 241-42 (denying an award of attorney's fees because there was no laches, negligence, or fraud attributable to the personal representative, but also stating that the second prong would be satisfied in instances where the personal representative merely "failed to adequately defend the interests of the estate"); In re Estate of Schuldt (Schuldt II), 457 N.W.2d 837, 842 (SD 1990) (stating that Engebretson I did not rely on the second prong and that Bamberger did not impose a requirement of "laches, negligence, or fraud" by the personal representative, "nor does it impose such a requirement today").
[4]  See, e.g., In re Estate of Lewis, 442 So.2d 290, 292 (Fla.Dist.Ct.App.1983) (explaining that the Florida statute that allows attorney's fees for services that benefit the estate "is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in simply effectuating the testamentary intention set forth in the will") (quoting Samuels v. Estate of Lucia S. Ahern, 436 So.2d 1096 (Fla.Dist.Ct.App.1983)).
[5]  Unlike Weekley's request for the prior appellate fees, her request for attorney's fees relating to this appeal complies with SDCL 15-26A-87.3(2) because her motion was filed prior to the submission of the matter on its merits.
[6]  SDCL 21-1-13.1 provides:

Any person who is entitled to recover damages, whether in the principal action or by counterclaim, cross claim, or third-party claim, is entitled to recover interest thereon from the day that the loss or damage occurred, except during such time as the debtor is prevented by law, or by act of the creditor, from paying the debt. Prejudgment interest is not recoverable on future damages, punitive damages, or intangible damages such as pain and suffering, emotional distress, loss of consortium, injury to credit, reputation or financial standing, loss of enjoyment of life, or loss of society and companionship. If there is a question of fact as to when the loss or damage occurred, prejudgment interest shall commence on the date specified in the verdict or decision and shall run to, and include, the date of the verdict or, if there is no verdict, the date the judgment is entered. If necessary, special interrogatories shall be submitted to the jury. Prejudgment interest on damages arising from a contract shall be at the contract rate, if so provided in the contract; otherwise, if prejudgment interest is awarded, it shall be at the Category B rate of interest specified in § 54-3-16.
Prejudgment interest on damages arising from inverse condemnation actions shall be at the Category A rate of interest as specified by § 54-3-16 on the day judgment is entered. This section shall apply retroactively to the day the loss or damage occurred in any pending action for inverse condemnation. The court shall compute and award the interest provided in this section and shall include such interest in the judgment in the same manner as it taxes costs.
[7]  SDCL 29A-3-904 provides:

General pecuniary devises bear interest at the category B rate of interest specified in § 54-3-16 beginning one year after the first appointment of a personal representative until payment, unless a contrary intent is indicated by the will.
[8]  Because we have concluded that Weekley is entitled to interest under SDCL 21-1-13.1, we do not reach Weekley's contention that the circuit court erred in denying her interest under SDCL 29A-3-904.


682 N.E.2d 1191 (1997)
289 Ill. App.3d 835
225 Ill.Dec. 114
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Freddy REYNA, Defendant-Appellant.
No. 3-96-0779.
Appellate Court of Illinois, Third District.
July 8, 1997.
*1192 Robert Agostinelli, Deputy Defender (court-appointed), Office of Stae Appellate Defender, Ottawa, for Freddy Reyna.
Roy A. Sabuco, Alexander H. Beck, Snyder, Sabuco, Aeschliman & Washburn, P.C., Joliet, John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, Will County State's Attorney, Joliet, J. Paul Hoffmann, State's Attorneys Appellate Prosecutor, Ottawa, for the People.
Justice McCUSKEY delivered the opinion of the court:
The defendant, Freddy Reyna, was tried in absentia. Following a joint jury trial he was convicted of robbery (720 ILCS 5/181 (West 1994)) and aggravated battery (720 ILCS 5/124(b)(8) (West 1994)). He was *1193 sentenced in absentia to 28 years' imprisonment.
The defendant appeals, arguing: (1) he is entitled to a new trial because his failure to appear at his original trial was not willful; (2) that prosecutorial misconduct denied him a fair trial; (3) that the trial court improperly considered victim impact statements prepared by the victim's parents; and (4) his sentence was excessive and disparate to that of his co-defendants. For reasons which follow, we affirm the defendant's convictions and sentence.

FACTS
The record reveals that the defendant was released on bond following his arrest. He failed to appear on the morning of his trial, and the cause was continued until the afternoon. That afternoon, the State presented evidence the defendant was willfully avoiding trial. After hearing the evidence, the trial court concluded the State met the statutory burden (see 725 ILCS 5/1164.1 (West 1994)) and ordered the defendant to be tried in absentia.
At the defendant's trial, it was established that on the night of September 13, 1995, the victim, Lee Vinsel, was walking in Joliet. He was approached by the defendant, who asked Vinsel if he belonged to a street gang. When Vinsel said he was not in a gang, the defendant grabbed Vinsel's hat and Walkman cassette player. The defendant then handed the hat and cassette player to co-defendant Johnathan Erickson. Vinsel started to walk away, but he was grabbed from behind by the defendant and pulled down. The defendant kicked Vinsel once. The defendant and Erickson then started punching Vinsel. Codefendant Jose Perez and another man came out of a nearby building and joined the attack. Eventually, Vinsel managed to flee and call the police. The police ultimately returned to the scene of the attack, accompanied by Vinsel. Shortly thereafter, the defendant, Erickson, and Perez were identified by Vinsel and arrested.
Following arguments by counsel, the jury found the defendant guilty of robbery and aggravated battery. The defendant was sentenced in absentia to 28 years' imprisonment. Several days later, the defendant was apprehended by the police. The defendant subsequently filed a motion to reconsider (see 725 ILCS 5/115-4.1(e) (West 1994)). The motion alleged, among other things, that he was absent from trial because of threats made against him by co-defendants Erickson and Perez.
An evidentiary hearing was held on the defendant's motion to reconsider. At the hearing, the defendant's brother-in-law testified he had been told by Erickson and Perez that the defendant would get "his ass whipped" if he went to court. The defendant's brother-in-law further testified that when he told the defendant of these threats, the defendant became scared and moved to another neighborhood in Joliet. The defendant's wife and sister-in-law also testified they had been told of the threats. The trial court denied the defendant's motion to reconsider. The court found the defendant acted willfully in failing to appear. The court further noted that the defendant never contacted his counsel. Finally, the court concluded: "There is no question thatwhether he was in the area and hiding, or whatever, that he still had the opportunity to appear at trial." The defendant subsequently filed this appeal.

ANALYSIS

Trial in absentia

The defendant initially claims he is entitled to a new trial because his failure to appear for trial and sentencing was not willful. The defendant argues that the only reason he failed to appear for his trial was because of threats from his co-defendants.
A defendant who is tried and sentenced in absentia is entitled to a new proceeding if he establishes that his failure to appear was both not his fault and caused by circumstances beyond his control. People v. Hayes, 159 Ill.App.3d 1048, 1051, 111 Ill.Dec. 822, 824-25, 513 N.E.2d 68, 70-71 (1987); 725 ILCS 5/115-4.1(e) (West 1994). The trial court's denial of a new trial to a defendant convicted in absentia will not be reversed unless a manifest abuse of discretion is shown. People v. Bushey, 170 Ill.App.3d 285, *1194 289, 120 Ill.Dec. 708, 711, 524 N.E.2d 738, 741 (1988).
Here, although there was testimony that the co-defendants threatened the defendant, there was no direct testimony that those threats were the reason the defendant failed to appear. The trial court was not required to infer that the defendant's failure to appear was linked to these threats. See People v. Klovstad, 168 Ill.App.3d 444, 448, 119 Ill.Dec. 141, 144, 522 N.E.2d 803, 806 (1988) (holding that the trial court was entitled to disbelieve the defendant's explanation for his absence). Moreover, even if the defendant's failure to appear was because of the threats, the trial court was not required to conclude that the threats constituted sufficient cause allowing the defendant to be absent from trial. People v. Devoe, 163 Ill. App.3d 855, 858, 114 Ill.Dec. 862, 864, 516 N.E.2d 1017, 1019 (1987) (no new proceedings required despite testimony that defendant's absence was a justified attempt to avoid threats to his life). Thus, we cannot say that the trial court erred in concluding that the defendant was not entitled to a new trial.

Prosecutorial Misconduct
The defendant next claims that he was denied a fair trial because of prosecutorial misconduct. Specifically, the defendant argues: (1) the prosecutor presented improper identification testimony; and (2) during closing arguments, the prosecutor improperly commented on the defendant's failure to appear.

Identification Testimony
It is clear from the record that the prosecutor experienced some difficulty when asking the victim to identify the defendant and the co-defendants in photographs. During that line of questioning, defense counsel objected to: (1) the leading nature of the prosecutor's questioning; (2) the lack of foundation; and (3) the fact the photographs had not been shown to defense counsel before they were used to question the victim.
In order for prosecutorial misconduct to warrant reversal, the behavior must be particularly egregious and constitute a material factor in the defendant's conviction. People v. Johnson, 264 Ill.App.3d 1000, 1011, 202 Ill.Dec. 228, 235, 637 N.E.2d 767, 774 (1994). Prosecutorial misconduct may occur when the State ignores a trial court's ruling and continues the line of questioning ruled on by the court. People v. Hobbs, 232 Ill.App.3d 63, 71, 173 Ill.Dec. 148, 153, 596 N.E.2d 772, 777 (1992).
Here, based upon our review of the entire record, we find no error. Although defense counsel's objections were valid, we do not believe the prosecutor was engaging in gamesmanship in an effort to present improper identification testimony. More importantly, it does not appear that the defendant suffered any prejudice as a result of the prosecutor's questioning. We note that after defense counsel objected, the trial court acknowledged the objection and the prosecutor immediately apologized for not previously showing the photographs to defense counsel. The prosecutor then tendered the photographs to defense counsel, stopped using leading questions, and laid an adequate foundation for the photographs. Under these circumstances, we are unwilling to say that the prosecutor engaged in misconduct which would justify a new trial.

Closing Arguments
The defendant next claims that prosecutorial misconduct occurred during closing arguments. The defendant argues that the prosecutor improperly suggested that the defendant had an obligation to testify and prove his innocence. In support of this claim, the defendant points to the following prosecutorial comments:
"I'm not going to go all over the testimony with you. You were here. You heard it. You saw the witnesses. You saw their demeanors when they testified. You saw [co-defendant Perez] when he testified. You heard the pauses between the questions. You heardyou sawyou saw [Perez'] demeanor. I don't think there is anything else that needs to be said on that. Mr. Reyna? Mr. Reyna is not even here. He never even bothered to show up for his own trial. I think the People have proved *1195 their case beyond a reasonable doubt and I ask you to find the defendants guilty." (Emphasis added.)
Prosecutorial comments which imply that the defendant had to show his innocence are improper. People v. Tyson, 137 Ill.App.3d 912, 921, 92 Ill.Dec. 712, 719, 485 N.E.2d 523, 530 (1985); People v. Giangrande, 101 Ill.App.3d 397, 402, 56 Ill.Dec. 911, 916, 428 N.E.2d 503, 508 (1981). The State is barred from misstating the law or making remarks that diminish their burden of proof. People v. Buckley, 282 Ill.App.3d 81, 89, 218 Ill.Dec. 250, 256, 668 N.E.2d 1082, 1088 (1996).
Here, after carefully reviewing the above-noted comments, we believe the prosecutor did not improperly suggest that the defendant had to testify and prove his innocence. Rather, we find the prosecutor's comment to be a brief and permissible reference to the defendant's absence from trial. See People v. Ocasio, 205 Ill.App.3d 157, 162, 150 Ill.Dec. 19, 22, 562 N.E.2d 549, 552 (1990); but see People v. Slaughter, 84 Ill.App.3d 88, 96, 39 Ill.Dec. 467, 474, 404 N.E.2d 1058, 1065 (1980).
Moreover, even if the State's closing argument is construed as suggesting that the defendant had an obligation to testify and prove his innocence, we believe any error would have been cured by the exacting jury instructions given in this case. See People v. Lawler, 142 Ill.2d 548, 564-65, 154 Ill.Dec. 674, 681-82, 568 N.E.2d 895, 902-03 (1991). Those instructions unequivocally stated that: (1) the defendant was presumed innocent; (2) the State had the burden of proving the defendant guilty beyond a reasonable doubt; (3) the defendant was not required to prove his innocence; and (4) the defendant's failure to testify must not be considered in arriving at a verdict. Under these circumstances, we are unable to say that the prosecutor's comments constituted reversible error.

Victim Impact Statement
The defendant next claims that at sentencing the trial court improperly considered victim impact statements prepared by the victim's parents. The defendant argues that the statements should not have been considered because they were irrelevant and prejudicial.
It is well established that the foreseeable consequences of a defendant's actions on a victim and his family are relevant considerations in sentencing. People v. Pavlovskis, 229 Ill.App.3d 776, 782, 172 Ill.Dec. 226, 230, 595 N.E.2d 587, 591 (1992). Therefore, the trial court could consider a statement from the parents addressing the result of the defendant's conduct. Moreover, even if any portion of the victim impact statements addressed irrelevant matter, the trial judge expressly noted that he would give the statements only the consideration that they were due. See People v. D'Arezzo, 229 Ill.App.3d 428, 432, 171 Ill.Dec. 256, 260, 593 N.E.2d 1076, 1080 (1992) (rejecting claim that sentencing judge placed too much emphasis on parents' victim impact statements when judge stated he would disregard improper contents). Under these circumstances, we find no error.

Excessive Sentence
The defendant next argues that the 28-year sentence imposed by the trial court was excessive.
Matters of sentencing are committed to the discretion of the trial court and are entitled to great weight and deference on appeal. People v. Perruquet, 68 Ill.2d 149, 154, 11 Ill.Dec. 274, 276, 368 N.E.2d 882, 884 (1977). In imposing sentence, the court may consider the defendant's criminal record. 730 ILCS 5/553.2(a)(3) (West 1994). Additionally, a court of review may not substitute its judgment for that of the trial judge simply because it might have balanced the appropriate factors differently. People v. Saunders, 236 Ill.App.3d 305, 312, 177 Ill. Dec. 251, 256, 603 N.E.2d 32, 37 (1992).
Here, the defendant was sentenced as a Class X offender because of his prior felony convictions. 730 ILCS 5/553(c)(8) (West 1994). Thus, he was eligible for between 6 and 30 years of imprisonment. 730 ILCS 5/581(a)(3) (West 1994). The defendant was sentenced within the statutory range. The record shows that the trial court properly considered all the evidence in aggravation and mitigation and concluded that *1196 a 28-year sentence was appropriate. After carefully reviewing the record, we see no reason to disturb the trial court's judgment.

Disparate Sentence
The defendant's final argument is that his 28-year sentence was disparate to that of his co-defendants, Erickson and Perez. The defendant notes that Erickson was sentenced to probation and Perez was sentenced to three years' imprisonment.
Similarly situated defendants should not receive grossly disparate sentences. People v. Foster, 199 Ill.App.3d 372, 393, 145 Ill.Dec. 387, 401, 556 N.E.2d 1289, 1303 (1990). However, parity in sentencing is not required for all participants in the same criminal activity. Foster, 199 Ill. App.3d at 393, 145 Ill.Dec. at 401, 556 N.E.2d at 1303. The difference may be justified by the relative character and history of the codefendants, the degree of culpability, rehabilitative potential, or a more serious criminal record. Foster, 199 Ill.App.3d at 393, 145 Ill.Dec. at 401, 556 N.E.2d at 1303.
Here, the record shows that Erickson's sentence was the product of a guilty plea. Therefore, it does not provide a suitable basis for comparison with the sentences of his co-defendants who went to trial. See People v. Michaels, 233 Ill.App.3d 911, 916, 174 Ill.Dec. 455, 458, 599 N.E.2d 1, 4 (1992). Moreover, unlike Erickson and Perez, the defendant: (1) had prior adult felony convictions; (2) was subject to sentencing as a Class X offender because of his prior convictions; (3) failed to appear for trial or sentencing; and (4) instigated the robbery and attack. Thus, the defendant was not similarly situated with his co-defendants and his disparate sentence argument must fail.

CONCLUSION
For the reasons stated, the judgment of the circuit court of Will County is affirmed.
Affirmed.
LYTTON, P.J., and HOLDRIDGE, J., concur.


301 F.2d 359
Julian D. FREEDMAN and Sylvia S. Freedman, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 19192.
United States Court of Appeals Fifth Circuit.
April 10, 1962.
Rehearing Denied June 15, 1962.

Max M. Cuba, Cuba, Harper & Cuba, Atlanta, Ga., for petitioners.
Crane C. Nauser, Chief Counsel, Glen E. Hardy, Atty., Internal Revenue Service, Washington, D. C., Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Lee A. Jackson, Robert N. Anderson, Donald P. Horwitz, Attys., Dept. of Justice, Washington, D. C., for respondent.
Before CAMERON and BELL, Circuit Judges and CARSWELL, District Judge.
BELL, Circuit Judge.

1
The question presented by this appeal is whether the expense of settling a personal injury suit arising out of an accident which occurred while taxpayer was en route from his place of employment to a place of business in which he was a fifty percent partner is deductible as an ordinary and necessary business expense within the purview of § 162(a) of the Internal Revenue Code of 1954.1 And, appellants assert, this is a question of law based on the findings of fact made by the Tax Court.

2
The Tax Court, 35 T.C. 1179, held these expenses (cost of settlement plus attorneys fees) to be too remote from any business activity of the taxpayer to be deductible as ordinary and necessary business expenses. This holding must be upheld insofar as it is a finding of fact, Commissioner of Internal Revenue v. Heininger, 1943, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171, unless clearly erroneous, Rule 52(a), Fed.R.Civ.P., 28 U.S.C.A. and 26 U.S.C.A. § 7482. To substantiate these deductions it was up to appellants to show that they were directly connected with the customary conduct of the business of taxpayer and proximately resulted therefrom. Kornhauser v. United States, 1928, 276 U.S. 145, 48 S.Ct. 219, 72 L.Ed. 505; Deputy v. Du Pont, 1940, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416; and Friedman v. Delaney, 1 Cir., 1948, 171 F.2d 269. Further, it is clear that all expenses of every business transaction are not deductible; only those which relate to carrying on a business, Higgins v. Commissioner, 1941, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783.

3
Thus it is that we must measure by these authorities the contention of appellants that the Tax Court erred as a matter of law in disallowing the deductions.

4
The accident out of which the expenses arose took place while taxpayer was in the process of commuting from his place of employment at the end of the work day to the place of business in which he was a partner to take up work there, and concededly at the time taxpayer was not engaged in his vocation or avocation.

5
This would ordinarily require affirmance but to escape the mandate of these authorities it is urged that the combination of jobs here constitutes a business in and of itself, it following then that these expenses qualified as deductions. The authority cited for this position is Revenue Ruling 55-109, 1955-1 Cum. Bull, 261, construing § 23(a) (1) (A) of the Revenue Code of 1939, predecessor section of 162(a), to authorize members of Reserve Components of the Armed Forces to deduct one-way local transportation expenses in getting from a place of employment to the place of drill where the trip takes place on the same day. This conclusion is reached by treating service in the Armed Forces Reserve as a trade or business, this service and the regular employment as both constituting part of a trade or business, and local transportation expenses in getting from one place of employment to the other as ordinary and necessary expenses incurred in carrying on the combined trade or business.2 In the same breath the Commissioner recognized that the transportation expenses in going from one place of employment to the other are not incurred in discharging the duties of either job or in carrying on the business of either employer; here employer and self-employed.

6
Assuming, without deciding, that this Ruling has sufficient basis, we take it to mean, as it bears on the question before us, that both positions do constitute part of the trade or business but this leaves outstanding the question of whether the expenses here were ordinary and necessary to either part, the employment or the partnership. We hold that it does not mean that commuting from one to the other is a business in and of itself, and thus the question of remoteness was properly before the Tax Court.3

7
The Tax Court held that it could not find that the expenses here were directly connected with or that they proximately resulted from the business of taxpayer, and that they were too remote from any business activity to be considered either ordinary or necessary expenses in carrying on a business within the meaning of § 162(a). These findings not being clearly erroneous, and no error in law appearing, the judgment of the Tax Court of non-deductibility must be and is

8
Affirmed.

Notes:

1
 26 U.S.C.A. § 162(a):
"There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *."

2
 Appellants do not contend that the expenses here are local transportation expenses within the meaning of this ruling

3
 Appellants also rely to some extent on Anderson v. Commissioner, 10 Cir., 1936, 81 F.2d 457, 104 A.L.R. 676, a similar case, except for the fact that Anderson, unlike the taxpayer here who was simply commuting from one business to the other, was engaged in carrying on one of his businesses when the accident occurred


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  April 23, 2012                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

                                                                                Michael F. Cavanagh
                                                                                Marilyn Kelly
  144284                                                                                Stephen J. Markman
                                                                                Diane M. Hathaway
                                                                                Mary Beth Kelly
                                                                                Brian K. Zahra,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                                Justices
            Plaintiff-Appellee,
  v                                                                SC: 144284
                                                                   COA: 306194
                                                                   Oakland CC: 2010-233775-FC
  TORRIE LYNN EMERY,
           Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the November 10, 2011
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

                          I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          April 23, 2012                      _________________________________________
           d0416                                                              Clerk


538 F.2d 1332
UNITED STATES of America, Appellee,v.Donald Lee SMITH, Appellant.
No. 76-1150.
United States Court of Appeals,Eighth Circuit.
Submitted June 21, 1976.Decided July 29, 1976.

Donald Lee Smith, pro se.
J. Stohr (former U. S. Atty.), and Frank A. Bussmann, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before BRIGHT, STEPHENSON and HENLEY, Circuit Judges.
PER CURIAM.

1
Donald Lee Smith appeals from the district court's1 denial, without a hearing of his section 2255 motion in which he charged the government with knowingly using false testimony and suppressing exculpatory evidence.  We affirm.

2
On October 5, 1971, appellant was convicted of robbing the Cass Federal Savings and Loan Association in St. Louis, Missouri, in violation of 18 U.S.C. § 2113(a).  He was sentenced to 20 years imprisonment.  His conviction was affirmed on direct appeal.  United States v. Smith, 464 F.2d 221 (8th Cir. 1972).  In a separate trial shortly thereafter, he was convicted of robbing the Washington Federal Savings and Loan Association.  This conviction also was affirmed.  United States v. Smith, 464 F.2d 222 (8th Cir. 1972).2

3
On October 24, 1975, Smith filed in the district court the instant section 2255 motion.  In the motion he alleged that at the first trial Arthur Shelton, his accomplice in both robberies and a key prosecution witness at both trials, had falsely testified that the government had made no deals with him.  He attached exhibits showing that charges against Shelton relating to the Washington Federal robbery, which had been filed before appellant's trials, were dropped shortly after the conclusion of those trials.  Appellant contended that these exhibits, combined with the testimony of the officials involved, would show that Shelton had perjured himself when he said that the government had made no bargains with him.  Appellant also asserted that the government had knowingly withheld exclupatory material.  He moved to vacate both convictions.

4
The district court assigned the case for review and recommendation to a United States magistrate.  The magistrate recommended that the motion be denied because the matters presented had been decided adversely to appellant on direct appeal.  The district court denied relief, without opinion.  This appeal followed.

5
Inasmuch as the current motion includes the Washington Federal robbery charge which apparently was not included in "certain charges dismissed" mentioned in the previous appeal,3 we pretermit the contention that the matters now presented have already been decided against appellant on direct appeal.

6
Appellant asserts that Shelton testified that "the government had made no deals with him," that this testimony was false, and that the prosecution knew it was false.  If these allegations were true, they might indeed entitle appellant to relief.  See Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); De Marco v. United States, 415 U.S. 449, 94 S.Ct. 1185, 39 L.Ed.2d 501 (1974).

7
The problem with appellant's position is that the statement he attributes to Shelton was never made by him.  At one point in the Cass Federal trial Shelton did admit that several specific charges against him had been dropped.  At no time, however, did he discuss deals or deny that any deals had been made.

8
Without false testimony, there can be no Napue claim.  The testimony alleged to be false in the instant case never occurred.  Appellant's Napue claim thus is clearly without merit.

9
Appellant also asserts that the government denied due process by suppressing exculpatory evidence, in violation of the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  He apparently is contending that evidence of the supposed deal between Shelton and the government relating to the Washington Federal charges was Brady material, and that its nondisclosure so impeded his defense at both trials as to deny due process.

10
One who seeks to make out a Brady claim must show three things: the suppression of evidence, the evidence's favorable character to the accused, and the evidence's materiality.  Moore v. Illinois, 408 U.S. 786, 794-95, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Evans v. Janing, 489 F.2d 470, 475 (8th Cir. 1973); Ogden v. Wolff, 522 F.2d 816, 820 (8th Cir. 1975), petition for cert. filed, --- U.S. ----, 96 S.Ct. 3198, 48 L.Ed.2d ---, (1975); United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976).

11
We conclude that appellant is not entitled to a hearing on his Brady claim because the record conclusively shows that he could not establish the third element of such a claim, the materiality of the evidence allegedly suppressed.  United States v. Agurs, --- U.S. ----, 96 S.Ct. 2392, 49 L.Ed.2d 342, (1976); United States v. Crow Dog, 532 F.2d 1182 (8th Cir. 1976).

12
Evidence of the supposed bargain could be used only to impeach Shelton's testimony.  The test for materiality is whether it could have been used by skilled counsel to develop "a reasonable doubt (of guilt) in the minds of enough jurors to avoid a conviction."  United States v. Crow Dog, supra, 532 F.2d at 1191.  It is obvious that the evidence here could not have been used to create a reasonable doubt at either trial.

13
At both trials, appellant's counsel made thorough attempts to impeach Shelton's testimony.  At the Cass Federal trial, counsel brought out the fact that Shelton had several prior convictions.  He elicited testimony that certain charges against Shelton (including a narcotics charge and a charge of assaulting a police officer) had been dropped.  He showed that charges in a Carbondale bank robbery had been brought against Shelton's companions, but not against Shelton.  Counsel also took the stand and testified that, in his presence, Shelton had once threatened to kill appellant's co-defendant.

14
At the Washington Federal trial appellant's counsel attempted similar impeachment tactics.  Indeed, as we said on appeal, "The record is otherwise replete with derogatory information about Shelton and it is highly doubtful that his credibility could have been more seriously undermined that it was."  United States v. Smith, 464 F.2d 222, 224 (8th Cir. 1972).

15
Despite this wealth of impeachment material at both trials, both juries credited Shelton's testimony and found appellant guilty.  We fail to see how evidence of the dropping of one more set of charges could have affected this result.  We conclude that the evidence allegedly suppressed could not have been used to create a reasonable doubt in the jury's mind, and that materiality, an essential element of a Brady claim, is therefore necessarily absent.

16
Appellant cannot show a denial of due process, either under Napue v. Illinois, supra, or Brady v. Maryland, supra.

17
Affirmed.

1
 The Honorable James H. Meredith, Chief Judge, United States District Court for the Eastern District of Missouri

2
 Additional post-conviction motions have been filed by appellant, i. e., motion to correct an illegal sentence in both cases filed December 12, 1972, denied by Judge Meredith December 15, 1972, and by Judge Webster on March 30, 1973.  Another motion filed June 25, 1974, was dismissed September 17, 1974

3
 See United States v. Smith, supra, 464 F.2d at 222