575 F.2d 485
UNITED STATES of America, Plaintiff-Appellee,v.Samuel Robert SINK and John Edward Grim, Jr., Defendants-Appellants.
No. 77-5317.
United States Court of Appeals,Fifth Circuit.
June 8, 1978.

James M. Russ (Court-appointed), Orlando, Fla., for Samuel Robert sink.
Harry L. Roen (Court-appointed), Orlando, Fla., for John Edward Grim.
John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Mark Horwitz, Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, THORNBERRY and CLARK, Circuit Judges.
PER CURIAM:

1
Samuel Robert Sink and John Edward Grim were convicted on conspiracy and substantive counts of uttering counterfeit currency.  On appeal they have raised three points.  They first contend that evidence introduced at their trial should have been suppressed because it was discovered through an unconstitutional search.  Their second contention is that there was insufficient evidence to support their conviction.  Finally, they argue that the trial court erred in failing to require production of the case report prepared by the investigating agent, a report which Sink and Grim contend must have been produced under the Jencks Act.  Because resolution of the third contention requires further proceedings in the district court, we will not consider the first two points at this time.

2
At trial one of the government's witnesses was Sharon Rhoden.  Prior to her testimony the defendants' counsel asked whether the government had any material which either the Jencks Act, 18 U.S.C. § 3500, or Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), required that it produce.  The prosecuting attorney stated that the government had already provided all the required material.  Later in the trial one of the agents responsible for investigating the case revealed that he had prepared a memorandum report which included a summary of his activities as well as summaries of interview with witnesses, among them Sharon Rhoden.  Counsel for the defendants again requested that the court require the production of this report.  The trial court denied the request without examining the report.  That denial was based upon the prosecutor's description of the report as an internal government document, a type of report which the trial court said was not covered by the Jencks Act.  The court did direct that copies of the report be filed with the court and sealed.  After the completion of the trial this court directed that the exhibit be unsealed.  Once counsel saw the report they renewed their objection to the failure to produce the report.

3
As this court explained in United States v. Judon, 567 F.2d 1289, 1291 (5th Cir. 1978), "The Jencks Act requires the government in any criminal prosecution brought by the United States to produce, after a witness called by the government has testified on direct examination, any statement of the witness in the possession of the government which relates to the subject matter as to which the witness has testified."  Here the summary of the interview with Rhoden clearly relates to the testimony which she gave at trial.  But that relationship alone does not satisfy the requirements of the Jencks Act.  Before the government is required to produce the summary it must also be a "statement" as defined by 18 U.S.C. § 3500(e).

4
Because we do not have the original of the report we cannot determine whether any part of the report, including the three pages headed "Synopsis of verbal statements by Sharon Rhoden," would fit into either of the definitions in section 3500(e).  The copy filed with the court appears to be incomplete because the synopsis does not contain a summary of the complete sequence of events that led to this prosecution.  Moreover, the copy appears to have been made from an original that was cut into segments rather than from complete pages.  In addition, the report which was filed with the court was addressed to the United States Attorney for the Middle District of Florida.  During the trial, however, the prosecutor described the report as one that the investigating agent prepared and sent to his superiors in the Secret Service in Washington.  Thus, it is not certain that the report on file is the report described at the trial.

5
Those uncertainties require us to remand the case to the district court for further proceedings in light of this opinion and of our decision in United States v. Judon, supra.  See also Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961).  The district court should conduct whatever proceedings it deems necessary to allow it to determine whether the Jencks Act required the government to produce all or any parts of the report included as the court's exhibit 3 or such other report as the proof may establish to have been described at trial.  The court should supplement the record with a transcript of any hearing that is held and with supplementary findings of fact.  This court retains jurisdiction of the appeal for all other purposes.


512 F.2d 420
1975-1 Trade Cases   60,292
L. W. UMPHRES, Plaintiff-Appellant,v.SHELL OIL COMPANY, Defendant-Appellee.
No. 73-4006.
United States Court of Appeals,Fifth Circuit.
April 30, 1975.Rehearing and Rehearing En Banc Denied June 23, 1975.

Dale E. Muller, James R. Sloan, Austin, Tex., for plaintiff-appellant.
William Simon, John S. Kingdon, Howrey, Simon, Baker & Murchison, Washington, D. C., William G. Winters, Jr., Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GEWIN, BELL and COLEMAN, Circuit Judges.
PER CURIAM:

1
Apellant Umphres, a former operator of four retail service stations in the Houston area, brought suit in the district court alleging that Shell Oil Company, his lessor, had violated various provisions of the Sherman and Clayton Acts, and the Clayton Act as amended by the Robinson-Patman Act.1  He contended that Shell had engaged in horizontal price-fixing, vertical price-fixing, price discrimination, and illegal tie-in arrangements with respect to gasoline, trading stamps, customer contests, and tires, batteries, and accessories ("TBA").  Appellant also charged that Shell had generally engaged in anticompetitive practices in the form of forcing him to terminate his service station leases.

2
The district court granted a directed verdict for Shell after a five day trial, and at the point when appellant had completed his case in chief.  This appeal is from the judgment entered for Shell on the directed verdict.  We affirm.

3
Our standard for reviewing directed verdicts was explicated in Boeing Co. v. Shipman, 5 Cir., (en banc), 1969, 411 F.2d 365:

4
On motions for directed verdict ... the Court shall consider all of the evidence-not just that evidence which supports the non-mover's case-but in the light and with all reasonable inferences most favorable to the party opposed to the motion.  If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper.  On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.  411 F.2d at 374.

5
See also Panotex Pipe Line Co. v. Phillips Petroleum Co., 5 Cir., 1972, 457 F.2d 1279, affirming a directed verdict in an antitrust case.

6
Reviewing the record on appeal with the Boeing principles in mind, we conclude that the district court did not err in granting Shell a directed verdict.  Appellant's evidence of horizontal price-fixing included testimony that retail gasoline prices of the name-brand service stations in Houston tended to fluctuate in concert.  The witnesses' knowledge of price changes was limited to but five of the approximately 2800 service stations in the Houston area, however.  Appellant failed to produce evidence establishing the existence of an intercompany price-fixing agreement, arrangement, or conspiracy at the retail level, or at the wholesale level that might have been reflected in the alleged fluctuations of retail prices.

7
As to the vertical price-fixing charge, appellant, two other ex-dealers, an ex-sales representative, and one of appellant's station managers, all gave testimony as to the pressures applied to Shell dealers seeking compliance with Shell's suggested retail gasoline prices.  Appellant admitted that it was always his decision to change his prices.  One of his station managers testified that Shell agents had changed prices at his station only once-by one cent per gallon for one day when Shell executives were touring Houston.  There was no provision in appellant's leases or in other dealers' leases requiring compliance with suggested prices.  Evidence in support of the vertical price-fixing charge was clearly insubstantial.

8
Neither was there substantial evidence to support appellant's Robinson-Patman Act price discrimination claim.  The short of the matter is that there was no evidence of discriminatory sales to two different purchasers by the same seller, where the recipient of the lower price was in competition with appellant.  There was no testimony that Shell sold gasoline or other products to any retail competitor of appellant at a different price than Shell charged appellant.

9
There was considerable testimony offered as to claimed illegal tie-ins involving gasoline, trading stamps, customer contests, and TBA.  Ex-dealers and the ex-sales representative testified to the pressure applied to Shell dealers to participate in company programs and to offer company products.  No lease provision required such participation.  Shell itself did not operate the trading stamp concession.  Appellant admitted that he was free to choose to participate in the contests, and that participation actually increased his sales volume.  Shell stated in writing to the dealers that they were not required to sell Shell TBA.  Appellant admitted that he had continued to sell non-Shell products throughout the terms of his leases.  The evidence as to illegal tie-ins does not approach the level of such substantiality as to make issues for the jury.

10
Appellant testified that Shell attempted to force him out of business because it did not approve of the operation of a U-Haul trailer business on Shell property and because of his departures from Shell's merchandising programs.  Contrary evidence included Shell's announced policy against multi-station ownership promulgated in 1968, the fact that only one of appellant's four leases was not renewed by Shell,2 and the testimony of appellant that he was motivated to sell his last and most profitable station out of an interest to sue Shell which exceeded his desire to retain the station.

11
The record in this case reflects the respective roles of an oil company and its dealer in a competitive market where the oil company must distribute its products within the strictures of the antitrust laws.  Plaintiff failed in his effort to prove any one of the alleged violations of those laws with evidence sufficient to warrant submission to the jury.

12
In the view we take of the case, it is unnecessary to reach questions associated with the district court's further conclusion that appellant failed to prove damages.

13
Affirmed.

1
 Appellant alleged violations of Section 1 of the Sherman Act (15 U.S.C.A. § 1) (horizontal and vertical price-fixing), Section 3 of the Clayton Act (15 U.S.C.A. § 14) (illegal tie-ins), and Section 2 of the Clayton Act as amended by the Robinson-Patman Act (15 U.S.C.A. § 13(a)) (price discrimination).  Jurisdiction was alleged on the basis of 15 U.S.C.A. § 15

2
 Appellant's lease on his Bellfort station was not renewed in 1968.  Appellant sold his lease to the South Belt station in 1968, cancelled his lease to the College station in 1969, and transferred his Broadway station lease in 1969


886 F.2d 1314
Tideland Welding Service, Liberty Mutual Insurance Co.v.Sawyer (Walter), Rhodes (Glynn), Director, Office of WorkersCompensation Programs, U.S. Dept. of Labor
NO. 88-4280
United States Court of Appeals,Fifth Circuit.
SEP 18, 1989
Ben.Rev.Bd., 881 F.2d 157

1
DENIALS OF REHEARING EN BANC.


40 So.3d 1194 (2010)
STATE of Louisiana
v.
Quantrell M. KELSON.
No. 2009-KA-0204.
Court of Appeal of Louisiana, Fourth Circuit.
June 9, 2010.
*1196 Leon A. Cannizzaro, Jr., District Attorney, Andrew M. Pickett, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, Jr., Judge EDWIN A. LOMBARD.
EDWIN A. LOMBARD, Judge.
The defendant, Quantrell Kelson, appeals his conviction and sentence for manslaughter. After review of the record in light of the applicable law and arguments of the parties, we affirm the defendant's conviction and sentence.

Relevant Procedural History
On February 6, 2003, the defendant was indicted for the second degree murder of Louis Kaplan[1] and, on June 8, 2005, a jury convicted him of the responsive verdict of manslaughter. Shortly thereafter, he was sentenced to serve forty years at hard labor, the State filed a multiple bill, and as a second offender he was sentenced to serve forty-five years at hard labor. The defendant filed a motion for appeal which was granted but due to Hurricane Katrina the record was not lodged in this court until May 1, 2006. The record was incomplete, however, lacking both trial and multiple bill hearing transcripts that were lost in the aftermath of Katrina and, accordingly, the defendant's conviction and sentence were reversed and the matter was remanded to the trial court. State v. Kelson, unpub. XXXX-XXXX (La.App. 4 Cir. 7/27/06).
The defendant was charged with manslaughter and, on June 13, 2008, after a three-day trial, he was found guilty as charged by a jury. The defendant was sentenced to forty years at hard labor, the State filed a multiple bill, his original sentence was vacated, and he was sentenced as a second offender to eighty years at hard labor. He is now before this court on appeal of that conviction and sentence.

Relevant Facts
On December 5, 2002, Louis Kaplan was severely beaten and dropped in a dumpster near his apartment in Algiers. Although police officers found him alive in the dumpster, he died several days later in *1197 a hospital. The following evidence was adduced at trial.
Earlier in the evening, Keisha Price, the decedent's fifteen year-old girlfriend was sleeping in the bedroom of their apartment while the decedent entertained friends (subsequently identified as the defendant and Jeremy Johnson) in the living room. The defendant, unknown to her at the time, awakened her by walking into the bedroom and grabbing her by the throat. He left the bedroom and Ms. Price went to the bedroom door, heard Kaplan screaming for help, and saw him pinned down on the sofa by the defendant and Johnson. Blood was on the floor, walls, and sofa and Kaplan's clothing was torn as he tried to get away from the two men, yelling, "Quanie, stop!" Kaplan tried to escape, but the men grabbed him, punched and dragged him out the door and down the stairwell. Johnson observed Ms. Price in the doorway and told the defendant to get her. She ran back into the bedroom, locked the door, and jumped out the window. After escaping, Ms. Price ran through the back yard until she saw two women from the complex. She went to the apartment of one of the women and called the police. The police arrived within a few minutes. Ms. Price gave the officers an oral statement, including a description of the perpetrators, and subsequently viewed the defendants and identified them as the men who were in the apartment, beat Kaplan, and took him away. She reiterated that defendant was the person who came into the bedroom and that she saw him beating Kaplan.
An autopsy revealed that Kaplan died of blunt force trauma, both due to the severe beating of his head that caused swelling of his brain, as well as injuries to his abdomen that lacerated a vein in his bowels and caused massive loss of blood. Patterned marks found on his abdomen directly above the site of the injuries were consistent with shoe prints and the marks and injuries were consistent with Kaplan being stomped in the abdomen.
Officer Richard Sasnett of the New Orleans Police Department (NOPD) and his partner responded to the first of several 911 calls just before 10:00 p.m. on December 5 and drove to 3813 Texas Drive. As they neared the scene, a hysterical young female (Ms. Price) flagged them down and told them that two men had broken into her apartment and were beating her boyfriend. Meanwhile, Officer Brian Sullivan and his partner, also of the NOPD, arrived on the scene and went to investigate a report of two men dumping a body in a nearby dumpster as Officer Sasnett and his partner proceeded to the apartment. The officers found a large amount of blood on the stairwell leading to an upstairs apartment, the door to Kaplan's apartment covered in blood, and overturned furniture in the apartment indicating a struggle had occurred. Officer Sasnett followed the blood trail out of the apartment and around the building where he found a bloody knife on the ground before going to the nearby dumpster where Officer Sullivan and his partner had discovered Kaplan, severely beaten and gasping under a layer of garbage bags. In response to a call for emergency assistance, firefighters arrived and removed Kaplan from the garbage dumpster. Kaplan was transported to the hospital where he died several days later.
Officer Sasnett broadcast the description of the perpetrators that he received from Ms. Price: two African-American males approximately twenty years old, both weighing approximately 180 pounds, one around 5'9" and the other around 6' tall. Officer Edgar Baron, driving in the vicinity, heard the broadcast and several minutes later saw two men fitting the description *1198 approximately two or three blocks from the scene; both were wearing dark clothing and one was wearing a white headband. Officer Baron exited his car and identified himself, but the two men fled. Giving chase, Officer Baron caught Johnson, but the other man escaped. Officer Baron broadcast the direction he had taken and the defendant was captured shortly thereafter. Officer Baron took Johnson to the scene and Ms. Price identified him as one of the two assailants. He then took Johnson to the police station where Johnson asked to use the restroom. Suspecting that he was trying to discard evidence, Officer Baron conducted a full patdown. Noticing that Johnson's sweatpants were inside out, he instructed Johnson to pull them down which revealed the outer layer covered in blood. In addition, Johnson had blood on his shoes. Officer Baron also found blood on the defendant's clothing when he was apprehended.
Officer Eric Boland, the officer who apprehended the defendant, took him to the scene and Ms. Price positively identified him. The defendant was taken to the police station, searched, and his bloody clothing was confiscated.
Sidney Stridet of the NOPD Crime Lab collected evidence and took photographs of the crime scene. She collected two knives (a butter knife and a steak knife) from the area and clothing from inside and around the dumpster, but did not attempt to lift fingerprints from the scene due to the large amount of blood.
Thomas Redmann of the NOPD homicide investigation unit conducted the follow-up investigation upon Kaplan's death. He was unable to take Ms. Price's statement until a month after the incident and, because Kaplan died of blunt force trauma to his head and abdomen and he was unaware of any cutting injuries sustained by the decedent, did not have the blood on the knives tested. Buccal samples from Johnson and the defendant, along with their clothing and a sample from the decedent were submitted for testing.
Joseph Tafaro, a NOPD criminalist, prepared samples from nine separate items of clothing that tested positive for blood and sent them for testing. Anne Montgomery, an expert in forensic DNA and molecular biology, compared bloodstain samples taken from Johnson's and the defendant's clothing with their buccal swabs and a blood sample taken from Kaplan. She concluded with a reasonable degree of scientific certainty that the blood found on the defendant's jeans and sweater was that of the decedent.

Assignment of Error I
The defendant argues that the trial court erred by denying his challenges for cause for two potential jurors. He contends that the voir dire transcript reveals that these jurors could not be impartial, necessitating his use of peremptory challenges to remove them.
Pursuant to La.Code Crim. Proc. art. 797, a potential juror may be challenged for cause for several reasons, including impartiality. When peremptory challenges were exhausted, the defendant need only show that the trial court abused its discretion by denying a challenge for cause because prejudice is presumed. See State v. Lindsey, XXXX-XXXX (La.1/17/07), 948 So.2d 105; State v. Juniors, 2003-2425 (La.6/29/05), 915 So.2d 291. The trial court is vested with broad discretion in its ruling on a challenge for cause and, accordingly, the ruling will only be disturbed when review of the entire voir dire reveals that the ruling was an abuse of discretion. See State v. Campbell, XXXX-XXXX (La.5/21/08), 983 So.2d 810. If, however, the juror who initially expressed a predisposition as to the outcome of a *1199 trial subsequently exhibits under questioning an ability to disregard previous views and make a decision based on the evidence presented at trial, the challenge is properly denied. Lindsey, at p. 3, 948 So.2d at 107-108.
In this case, the defendant exhausted his peremptory challenges, using two of them to excuse the two prospective jurors at issue. Both were interviewed during the second round of voir dire. The first, Bruce King, revealed he served on criminal juries during four prior terms of jury duty, the most recent of which was nine years prior to the defendant's trial. He indicated that Daniel Breaux, murdered in 2004 as he left the Jazz Fest, was a friend and that he personally had been held up at gunpoint and had items stolen from a shed on his property. When asked if, given these occurrences, he could be fair and impartial, King responded, "I'd like to think that I could be, but I don't know once it gets started." However, he conceded that, "I could try." Later, when the defense counsel asked if the jurors had any concerns that he had not covered, King reiterated his friendship with Breaux was a factor, "There would be an emotion  there could be an emotion to come up but if you choose me, I'll do everything I can to be objective here. ... I realize there is no connection, you know, so I think I can do it." When asked if there was anything that could be done to eliminate this issue, King replied, "it's my baggage, I don't think you can do that."
In its challenge for cause, the defense conceded that King said the right words but argued "the reality is the totality of what he basically said in connection with this." It was also noted that King himself brought up his concerns about his ability to be impartial during the defense voir dire. In further questioning in chambers, however, King stated that although Breaux was an old friend, he was not a close friend and he had not paid attention to the trial of the man charged with killing Breaux. The following colloquy then occurred:
THE COURT:
Were you so [affected] by that scenario that it would [affect] your ability to be fair and impartial here today with this young man?
MR. KING:
You know, I  I think I can be fair and impartial.
THE COURT:
Can you follow the law?
MR. KING:
Sure.
THE COURT:
Can you follow the law as it's been explained to you?
MR. KING:
Oh, yeah.
THE COURT:
Was there any things [sic] that were a problem to you?
MR. KING:
No, no, there's no problem, nothing that was a problem to me. I'm just, you know, trying to cast ahead, you know, as things develop, I might have some emotional reactions to the whole thing but, you know, everything that's been said so far, I'm fine.
King indicated that the fact that he had been the victim of burglaries would not affect his ability to be impartial. He stated that he had known Breaux prior to Breaux's relocation to Houma after Breaux's divorce. When defense counsel questioned him about whether he expected to suffer any outbursts if he found that he became emotional, King replied that there would be no outbursts. King observed, "From what you've told me about this case so far which is very little, it *1200 sounds like a completely different kind of circumstance than Mr. Breaux." In response to the court's query as to whether similarities between the Breaux case and this one would cause him trouble in sitting in judgment, King replied, "I don't think so." After King left chambers, the defense counsel reurged his challenge for cause, noting that "I don't think so" was equivocal but the court denied the challenge for cause.
Although King initially admitted to some hesitance as to whether he could be fair and impartial, given his friendship with a murder victim in an unrelated case, he nonetheless concluded that the circumstances of the instant case were not the same as those in his friend's murder and that the defendant was not involved in his friend's murder. Moreover, King indicated that he could follow the law as given to him by the court and would have trouble sitting in judgment in this case. Under these circumstances, we do not find that trial court erred in denying the challenge for cause as to Bruce King.
Similarly, the second challenged prospective juror, Patricia Robertson-Shaw, revealed that in 1986 she served on a murder trial which resulted in a conviction and that just prior to the defendant's trial she served on a jury that resulted in a drug conviction. Moreover, a family member (her niece) had been murdered the previous year and she had "reservations in reference to that." When asked, however, if she felt that "because of whatever emotions you're feeling about that, you wouldn't be able to sit and have an open mind and hear what the state has to say or if Mr. Kelson decides to take the stand, given what he's accused of, would you be able to still listen to what he might have to say if he testifies and weigh that against everything else?," Ms. Robertson-Shaw responded that she would try to be impartial and that she had no reason to believe that the defendant was involved with her niece's murder. In response to the prosecutor's question as to whether she could listen to the case and decide whether the State met its burden, not holding the murder of her niece against the defendant, she affirmatively responded, stating "I have my personal things and I'm dealing with my niece's death but I think I can be [impartial]." Likewise, when defense counsel asked if steps could be taken to change her feeling or keep her from getting upset, Ms. Robertson-Shaw said, "I think I can be okay." The defense counsel reiterated that "even with the nature, the nature of the offense and you're on the same page with that?" and she "Yes."
In chambers, the defense counsel challenged Ms. Robertson-Shaw for cause, noting that the murder of her niece still affected her and that she had been on a jury that convicted a defendant of murder. The prosecutor responded that Ms. Robertson-Shaw had served on a jury in a drug case the week before that had acquitted a defendant. The court denied the challenge for cause.
As with prospective juror King, Ms. Robertson-Shaw initially expressed hesitation when asked if the murder of her niece would cause her problems. Further questioning, however, elicited her responses that she would listen to the evidence to decide if the State met its burden of proving that the defendant murdered the victim and that she would not hold the murder of her niece against the appellant. She indicated that she thought that she could be impartial, even given the nature of the offense in the instant case. As such, her answers were sufficient for the trial court to deny the challenge for cause and we do not find that the ruling was error.

*1201 Assignment of Error II

The defendant, relying upon North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), argues that the imposition of a more severe sentence after his second trial violated his constitutional right to due process. In Pearce, the Court held that although imposition of a harsher sentence after a second trial was not barred, vindictiveness or retaliation against a defendant who successfully attacked his first conviction was prohibited by due process. Thus, to avoid implication of such motivation, a trial judge who imposes a more severe sentence upon a defendant after a new trial must do so only for reasons "based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing" and "factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully review on appeal." Pearce, 395 U.S. at 726, 89 S.Ct. 2072; see also State v. Allen, 446 So.2d 1200, 1202 (La.1984) (sentence vacated and remanded in absence of articulated reasons for the more severe sentence as required by Pearce).
The Court clarified Pearce in subsequent cases. In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714(1973), imposition of a greater sentence by a different jury after retrial was not a violation of the defendant's due process rights because the second jury did not have a personal stake in the prior conviction and sentence and therefore vindictiveness could not be presumed. The court reasoned:

Pearce was not written with a view to protecting against the mere possibility that, once the slate is wiped clean and the prosecution begins anew, a fresh sentence may be higher for some valid reason associated with the need for flexibility and discretion in the sentencing process. The possibility of a higher sentence was recognized and accepted as a legitimate concomitant of the retrial process.
Chaffin, 412 U.S. at 25, 93 S.Ct. 1977. The Court also rejected the defendant's argument that exposure to a greater sentence cast a chilling effect on his right to appeal because, to the contrary, Pearce "intimated no doubt about the constitutional validity of higher sentences in the absence of vindictiveness despite whatever incidental deterrent effect they might have on the right to appeal." Chaffin, 412 U.S. at 29, 93 S.Ct. 1977.
The defendant in Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986) elected to have the jury impose sentence after his first conviction but was subsequently granted a new trial. On retrial, the defendant was convicted of the same offense and, this time, elected to have the trial judge impose sentence. The trial judge imposed a greater sentence than that of the jury based in part on facts that had not been elicited in the first trial but also noting that, had he imposed the first sentence, it would have been a more severe sentence than that imposed by the jury. On review, the Court found that there could be no presumption of vindictiveness because the trial judge granted the defendant his new trial. Further, the defendant chose to be sentenced after his second conviction by the trial judge and, accordingly, a different entity imposed the second sentence. The Court cautioned, however that "[w]here the prophylactic rule of Pearce does not apply, the defendant may still obtain relief if he can show actual vindictiveness upon resentencing." McCullough, 475 U.S. at 138, 106 S.Ct. 976.
*1202 Finally, the defendant in Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), received a sentence in exchange for a guilty plea that was successfully challenged and vacated, but after trial and conviction the trial judge imposed a harsher sentence. The Court under these circumstances determined that, even though the same judge imposed both sentences, the defendant's due process rights were not violated because after a trial on the matter the judge necessarily had more information on which to base his sentence. Accordingly, the case was remanded for consideration of the defendant's claim that he could prove actual vindictiveness.
In the case before this court, a different trial judge imposed the eighty-year sentence at issue. At the sentencing hearing, the trial judge heard the victim's father testify at length about the impact of his son's death on him and his family. He also read a letter from the victim's only sibling. The decedent's mother also testified as to the impact of her son's death on her. Prior to imposing sentence, the trial judge reiterated that the sentencing range for manslaughter as a second offender is twenty to eighty years. The trial judge noted that the defendant had been a childhood friend of the victim and that he had shown no mercy to his victim, cutting, beating, and stomping the victim to death. Further, the trial judge observed that "probably the most troubling of facts" was the defendant and Johnson's action in dumping the victim in the garbage. The trial judge found that the defendant showed no remorse and was in need of incarceration given the facts that he had been the victim's friend since he was twelve years old and that his actions had been exceptionally cruel. In imposing sentence, the trial judge stated that it was her intention the defendant spend everyday of his sentence thinking about his crime against the victim. In response to defense counsel's objective to the sentence as excessive, the trial judge noted that she had enumerated sufficient reasons to support the sentence, including the violence involved in the crime and the extent of the victim's suffering before he died. Further, the trial judge stated that the maximum sentence was justified based on what she heard in the trial testimony, including the testimony concerning the victim's injuries by the doctor who treated the victim at the hospital and the forensic pathologist who conducted the autopsy, as well as the victim impact testimony from the family. In response to defense counsel's argument that the defendant was exposed to a greater sentence because of his successful appeal, the trial judge accurately observed that appellate relief was based solely on the unavailability of the trial transcript, not on a substantive review of his prior conviction. In addition, the trial judge noted she had informed defense counsel prior to trial that, in the event the jury returned a verdict of guilty as charged and the defendant was adjudicated a second offender, she would impose a more severe sentence than the forty-five year sentence imposed by the first trial judge. Finally, the trial judge concluded that, given the facts of the case, the eighty-year sentence was appropriate.
Because the transcript of the first trial is unavailable due to Hurricane Katrina, we cannot determine if additional information was adduced at the defendant's second trial. However, in light of Chaffin, because different trial judges presided over the each of the defendant's trials and the second trial judge had no personal stake in his prior conviction and sentence which was overturned because of the unavailability of pertinent transcripts, vindictiveness is not presumed. There is no evidence of any personal animus on the part of the trial judge against the defendant and, accordingly, *1203 we interpret the trial judge's remarks about her pre-trial intention to impose a greater sentence upon conviction to be an indication that she believed the first sentence was too lenient based on the egregious nature of this case. Finally, the sentence, although harsh, is based on clear and objective reasons enumerated on the record by the trial judge. Under these circumstances, we do not find that imposition of the maximum sentence constitutes a due process violation.

Assignment of Error III
Finally, the defendant argues that his eighty-year sentence, the maximum sentence under the law for a second offender convicted of manslaughter, is excessive. See La. Rev. Stat. 14:31; 15:529.1 A(1)(a). A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.1980). A trial judge has broad discretion when imposing a sentence and, absent a manifest abuse of discretion, will not be set aside. State v. Cann, 471 So.2d 701, 703 (La.1985). Upon review, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Walker, 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462.
Here, in compliance with La.Code Cr. Proc. art. 894.1, the trial judge clearly articulated adequate reasons for the sentence. An eighty-year sentence imposed on a second offender for manslaughter was upheld in State v. Walker, 99-2868 (La. App. 4 Cir. 10/18/00), 772 So.2d 218, where the defendant strangled a woman after smoking crack and having sex with the victim because she allegedly began hitting and pushing him upon being informed that he had no more money or crack. In that case, the defendant's prior conviction was for theft valued at more than five hundred dollars, but he also had a lengthy history of arrests, including seven prior arrests (but no convictions) for aggravated and/or assault offenses and family members expressed fear about the defendant's character insofar as his ability to inflict bodily harm. Moreover, his defendant's sister had reported to police in connection with another incident that he had a tendency to fight women and had confessed to her that he killed his own grandmother. Prior to the legislative decision to raise the maximum sentence, this court upheld imposition of the maximum sentence on second offenders convicted for manslaughter. See, e.g., State v. Kelly, 92-2446 (La.App. 4 Cir. 7/8/94), 639 So.2d 888 (defendant shot at one person whom he had tried to kill before and hit an innocent bystander); State v. Brown, 452 So.2d 790 (La.App. 4 Cir.1984) (defendant had a running dispute with the victim over some jewelry, saw him in a bar, went outside to get and load a gun, returned to the bar, and shot the victim four times); see also State v. Mickey, 604 So.2d 675 (La.App. 1 Cir.1993) (defendant shot the victim in the head during an armed robbery).
Here, the defendant was one of two men who viciously beat and stomped the victim, fatally wounding him and then discarded him in a dumpster. Although there is no evidence that his prior criminal record was extensive as that of the defendant in Walker, the circumstances of the killing are unquestionably egregious. Under these circumstances, the imposition of the maximum sentence does not constitute an abuse of discretion.

Errors Patent
Our review of the record reveals no errors patent.

*1204 Conclusion

The defendant's conviction and sentence are affirmed.
AFFIRMED.
NOTES
[1]  The State also indicted Jeremy Johnson for the same offense but the court ultimately severed the trials for Johnson and Kelson, and a jury found Johnson guilty of manslaughter. His appeal is also pending.


                  UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

           Nos. 95-10274, 95-10275, 95-10304, 95-10305
                           Consolidated

                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              VERSUS

            TOMMY ROSS ANDERSON, SARAH JANE ANDERSON,
           JERRY WAYNE TILLEY, and SUSAN WELLS TILLEY,

                                              Defendants-Appellants.

          Appeals from the United States District Court
                For the Northern District of Texas
                         (3:92-CR-417-G)
                          July 24, 1996

Before HIGGINBOTHAM, WIENER and PARKER, Circuit Judges.

PER CURIAM:*

     Tommy Ross Anderson, Sarah Jane Anderson, Jerry Wayne Tilley

and Susan Wells Tilley raise double jeopardy claims regarding their

drug convictions and related forfeitures.   We affirm.

     *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.

                                1
                                       FACTS

      Beginning in 1986, Tommy and Sarah Anderson, along with Jerry

and Susan Tilley, engaged in the distribution and sale of large

quantities of marijuana.             The marijuana was stored at various

locations including the Andersons’ home and the Tilleys’ home, both

in Dallas.

      On July 25, 1991, the Government filed in rem a complaint for

forfeiture of property belonging to the Tilleys pursuant to 21

U.S.C. § 881(a)(6) and (7).           On January 13, 1992, the Government

amended the complaint to include property owned by the Andersons.

The complaint alleged that the various pieces of property were

subject to forfeiture because they were used to facilitate drug

trafficking,       were   proceeds    from     the   sale      of   drugs,    or     were

traceable to such proceeds.            The Andersons answered and filed a

claim for seized property.       The Andersons and Tilleys subsequently

entered into a Stipulated Forfeiture of certain personal and real

property.    The stipulation further provided for the release and

return to the Andersons and Tilleys of other property.                                The

district    court     accordingly      entered       an    order       forfeiting     the

specified properties on February 9, 1993.                       The district court

stayed the forfeiture proceedings with respect to the defendants’

homes pending the outcome of the criminal trial.

      Contemporaneously with the forfeiture proceedings, on October

8, 1992, the Andersons and Tilleys were indicted on various drug

offenses.    The indictment was based on the same acts that gave rise

to   the   civil    forfeiture   proceeding.              On   April    7,   1993,    the

                                         2
Andersons and Tilleys moved to dismiss the indictment on the

grounds of double jeopardy, alleging that the civil forfeiture

proceeding had already punished them for the drug trafficking. The

district court denied the motion to dismiss.                   On interlocutory

appeal, we affirmed the denial of the motion to dismiss in United

States v. Tilley, 18 F.3d 295 (5th Cir. 1994), cert. denied, 115 S.

Ct. 574 (1994).

      Pursuant to a plea agreement, the Appellants moved to withdraw

their claims to their residences.          In addition, the plea agreement

provided that they preserved their right to further appeal their

double jeopardy claim.      The district court granted the Appellants’

motion to withdraw their claims in the forfeiture proceeding and

entered the      corresponding   order     on   January       17,   1995.    Final

judgments   of    conviction   and    sentence       were   entered    as   to   all

Appellants on March 14, 1995.

      On March 16, 1995, the Government moved for final judgment of

forfeiture of the Andersons’ and Tilleys’ respective residences,

which the district court granted.

                                 DISCUSSION

      It is unclear from the record which provision, § 881(a)(6) or

§   881(a)(7),     the   government    used     to    seize     the   Appellants’

properties.      The appellants assert that civil forfeitures pursuant

to either § 881(a)(6) or § 881(a)(7) constitute punishment for the

purpose of double jeopardy.           Under our prior decision in United

States v. Tilley, property forfeited under § 881(a)(6) as drug

proceeds does not constitute punishment.              Id. at 299.      Subsequent

                                       3
to oral argument in these cases, the Supreme Court resolved any

remaining uncertainty about the double jeopardy implications of

civil   forfeiture:   “These   civil   forfeitures      [pursuant   to   §

881(a)(7)] (and civil forfeitures generally), we hold, do not

constitute   ‘punishment’   for   purposes   of   the   Double   Jeopardy

Clause.” United States v. Ursery, 1996 WL 340815 (U.S.)(1996).           We

find that Ursery controls this case, and therefore affirm the

judgments and sentences.

     AFFIRMED.

                                   4


664 F.2d 311
214 U.S.App.D.C. 185
UNITED STATES of Americav.Charles G. LUCK, Jr., Appellant.  (Three cases.)
Nos. 80-2306 to 80-2308.
United States Court of Appeals,District of Columbia Circuit.
Feb. 17, 1981.

Appeal from the United States District Court for the District of Columbia (Criminal Nos. 1887-69, 1334-69, 1144-69).
Before MacKINNON, ROBB and WILKEY, Circuit Judges.
Opinion PER CURIAM.

PER CURIAM:

1
Appellant entered pleas of guilty to counts of burglary, grand larceny and robbery1 in three proceedings in United States District Court for the District of Columbia in 1970.  He was sentenced to a total of eight to twenty-four years, with a parole eligibility date of July 25, 1977, and was incarcerated in Lorton Reformatory.  In May 1973 he was reported in escape status from Lorton; shortly thereafter he was convicted in a Maryland state court of assault with intent to commit murder and was committed to a Maryland prison for confinement.  In 1978 he was paroled from his Maryland sentence to a federal detainer and was returned to Lorton, where he is presently incarcerated.  Upon his return to Lorton, prison officials automatically added the 1,832 days he had been absent from that prison to the unserved portion of his sentence, thus changing the date of eligibility for parole to July 31, 1982.

2
Since 1970 appellant has filed some twenty-five motions for postconviction relief.  The latest of these motions, filed in the district court on October 14, 1980, and styled a motion to correct sentence under F.R.Crim.P. 35 or a petition for habeas corpus under 28 U.S.C. § 2255, challenges the recomputation of the termination date of his sentence to reflect the period of time he was absent from Lorton.  There is no dispute as to this period of time.  Although in prior motions appellant had urged that the time he spent in Maryland prison should be credited toward his federal sentence, in this motion appellant focuses his claim on an alleged denial of procedural due process.  He argues that because he was never convicted of the crime of escape, the extension of his sentence without a hearing deprived him of due process.  The district court denied the motion, as it had all prior motions.  On the filing of a notice of appeal, the district court granted leave to appeal in forma pauperis.  The present motion is for appointment of counsel.

3
It is well established that when the service of a sentence is interrupted by conduct of the defendant the time spent out of custody on his sentence is not counted as time served thereon.  Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 44, 68 L.Ed. 247 (1923) (violation of parole); United States v. Liddy, 510 F.2d 669, 674 (D.C.Cir.1974), cert. denied, 420 U.S. 980, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975) (time served on an intervening sentence for contempt of court).

4
Where a federal prisoner is in the custody of state authorities under a criminal charge, credit toward the federal sentence will usually not be given for time spent in the state prison where the state and federal offenses are unrelated.  See, e. g., United States v. Williams, 487 F.2d 215 (5th Cir. 1973), cert. denied, 416 U.S. 942, 94 S.Ct. 1949, 40 L.Ed.2d 294 (1974); Bruss v. Harris, 479 F.2d 392 (10th Cir. 1973); 18 U.S.C. § 3568 (1976).  Thus under the general rule that escape tolls the running of a sentence, e. g., Hartwell v. Jackson, 403 F.Supp. 1229, 1230 (D.C.1975), aff'd mem., 546 F.2d 1042 (D.C.Cir.1976), it is clear that appellant is not entitled to credit on his District of Columbia sentence for his period of incarceration in Maryland and that a recomputation of the parole eligibility and expiration dates of his federal sentence was appropriate.

5
The due process issue concerns the proper method for making such a recomputation.  The computation of time served in custody on a sentence is a function of the prison authorities in the first instance.  It has been the long standing practice in such escape cases that the prison authorities, without a formal procedure before the sentencing court, simply give no credit for the period the prisoner absented himself from the service of his sentence in the custody of the Attorney General.  Cf. United States v. Liddy, supra, at 684 n.10 (MacKinnon, J., dissenting).  Appellant argues, however, that this process is unconstitutional under Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2693, 41 L.Ed.2d 935 (1974).  In Wolff the Court held that prisoners were entitled to certain minimum due process protections, including a hearing, when prison officials proposed to revoke good time credits for alleged misconduct.  Appellant seeks to analogize his new parole eligibility date (and the new date for the expiration of his sentence) to a forfeiture of good time credits, since both affect the term of confinement.  He argues that his liberty interest is as weighty as that of the plaintiff-prisoners in Wolff.

6
Some lower courts have assumed that Wolff encompasses proposed forfeitures of good time based on a prisoner's escape.  See Evans v. Wilkerson, 605 F.2d 369 (7th Cir. 1979) (due process not violated where forfeiture of good time imposed in an in absentia hearing immediately upon inmate's escape, so long as hearing at which inmate is present is held within reasonable time after return to custody); Gregory v. Wyse, 512 F.2d 378 (10th Cir. 1975) (noting that Wolff, inapplicable in this case because applied prospectively only, would have been violated by the actions of prison officials following prisoner's return to custody after escape).  In addition, where a returned escapee was placed in punitive segregation, it has been held that Wolff requires a hearing within a reasonable time.  See Rompilla v. Nero, 448 F.Supp. 182 (E.D.Pa.1978).

7
Appellant's claim, however, is neither that he was deprived of good time nor that he was punished on his return to Lorton.  Rather his claim is only that his sentence was extended to reflect the number of days his conduct caused him to be absent from the custody of the Attorney General, and there is no claim of administrative error in the recomputation.  On similar facts, in a decision which predates Wolff, the Fifth Circuit summarily rejected a challenge to the extension by the Bureau of Prisons of a prisoner's sentence, holding that the notation by prison officials that service of the sentence was inoperative during the period of escape was a mere clerical entry on the length of actual service.  See Theriault v. Peek, 406 F.2d 117 (5th Cir. 1968), cert. denied, 394 U.S. 1021, 89 S.Ct. 1644, 23 L.Ed.2d 47 (1969).  This procedure is similar to prison officials determining the date service of a sentence begins by noting the date of a prisoner's arrival at the penitentiary.

8
Appellant cites some state authority which does support his position that even absent any allegation of error, Wolff requires a hearing before redetermination of an escaped prisoner's sentence.  See Carter v. Commonwealth, 43 Pa.Cmwlth. 416, 402 A.2d 711 (1979); Robinson v. Commonwealth, 32 Pa.Cmwlth. 77, 377 A.2d 1277 (1977).  There is good reason, however, for rejecting this position and for distinguishing the forfeitures of good time dealt with in Wolff from the extension of sentence at issue here.  While both affect the length of confinement, the former is a punitive measure based on a finding of culpability, while the latter is a simple matter of counting the number of days a prisoner was absent from the custody to which his sentence committed him.  While an inmate's absence may not conclusively establish an "escape" in terms of culpability, see Downes v. Norton, 360 F.Supp. 1151, 1154 (D.Conn.1973), it does establish an interruption in service of sentence, which in turn requires an adjustment to reflect the period he was absent.  Even were this court to hold that a hearing is required where an inmate alleges error in the recomputation or disputes the fact of his absence, where as here no such claims are made and the fact of the inmate's absence and its duration (1832 days) is established by the record, ordering the holding of a hearing would be a futile exercise.  Because appellant has thus failed to raise a meritorious issue on appeal, his motion to appoint counsel is obviously without merit.  The motion is accordingly denied and the appeal is dismissed sua sponte.2

9
Judgment accordingly.

1
 The offenses were violations of 22 D.C.Code §§ 1801(b), 2201 and 2901

2
 Luck is lucky that he was not prosecuted and sentenced to additional imprisonment for his escape


889 F.2d 418
In the Matter of the Application of Myles GREENBERG andFrances M. Mulligan, Petitioners-Appellees,v.Anthony F. VETERAN, Supervisor and Susan Tolchin, TownClerk, Respondents-Appellants.
No. 173, Docket 89-7476.
United States Court of Appeals,Second Circuit.
Argued Sept. 29, 1989.Decided Nov. 7, 1989.

Jonathan Lovett (Lovett & Gould, White Plains, N.Y. of counsel), for petitioners-appellees.
Paul Agresta, Town Atty., Town of Greenburgh, Elmsford, N.Y., for respondents-appellants.
Before OAKES, Chief Judge, and LUMBARD and PIERCE, Circuit Judges.
LUMBARD, Circuit Judge:

1
May a town official who is sued in state court for acting, as he believes, to prevent the violation of rights guaranteed by the federal constitution remove such a suit to federal court under the "refusal clause" of the civil rights removal statute?

2
We think he may.  Anthony F. Veteran and Susan Tolchin, the Town Supervisor and Town Clerk,1 respectively, of Greenburgh, New York, appeal from an order, issued sua sponte by the District Court for the Southern District, remanding the case to the New York Supreme Court, Westchester County.  Appellees Myles Greenberg and Frances M. Mulligan brought a special proceeding in the New York Supreme Court in December 1988, pursuant to Article 78 of the New York Civil Practice Law and Rules, seeking judicial review of Veteran's denial of their petition to secede from Greenburgh and to incorporate a new village.  Veteran then removed the action to the district court on January 30, 1989 under the "refusal clause" of 28 U.S.C. Sec. 1443(2).  Though Greenberg and Mulligan did not contest removal, the district court on its own motion on April 17, 1989 remanded the case to the New York Supreme Court for lack of jurisdiction.  710 F.Supp. 962.

3
According to Judge Goettel, the removal petition did not, and Veteran in good faith could not, allege a conflict between state and federal law.  He held that such a conflict is a prerequisite to removal under the "refusal clause."    He found no conflict because the removal petition defended Veteran's refusal to incorporate the village on both state and federal constitutional grounds.  We believe that the removal petition, in alleging facts which raise a substantial question under federal equal protection law as a reason for refusing to incorporate the proposed village under the New York Village Law, alleged the requisite conflict between state and federal law, notwithstanding that the allegations also implicate state equal protection law as further justification for denying incorporation.  Accordingly, we reverse.

4
In January 1988, the Town of Greenburgh joined Westchester County and a not-for-profit organization called "West HELP" in proposing the construction of a shelter for 108 homeless families on property in Greenburgh owned by Westchester County.  It is undisputed that most of the 108 homeless families are black.

5
In February 1988, manifesting what the district court termed "the NIMBY syndrome" (Not In My Back Yard), residents of Greenburgh opposed to the construction of the proposed shelter formed the Coalition of United Peoples, Inc., or COUP, to stop the project.  Pursuant to New York Village Law ("Village Law") Secs. 2-200 to 2-258 (McKinney 1973 & Supp.1989), COUP prepared a petition to incorporate part of Greenburgh as the Village of Mayfair Knollwood;  the proposed Village would include the site of the proposed shelter.  The district court opinion notes that since Westchester County owns the land on which the shelter would be built, incorporation could not stop the project directly but would enable COUP to tie up the project with red tape and zoning requirements.

6
On September 14, 1988, pursuant to Village Law Sec. 2-202, COUP presented the incorporation petition to Veteran, who, as required by Village Law Sec. 2-204, convened a public hearing on November 1 at which oral testimony concerning the project was received.  Veteran adjourned the hearing until November 21 to receive and consider written comments on the incorporation petition.

7
On December 1, Veteran denied the incorporation petition on six grounds:  four aspects of the petition process were defective under the Village Law;  the boundaries of the proposed village, where ascertainable, evinced an intent to exclude black residents and thus violated the state and federal constitutions;  and obstruction of the shelter project would violate the state and federal constitutions.

8
On December 13, Greenberg and Mulligan, two COUP members, filed this Article 78 proceeding in the New York Supreme Court seeking judicial review of Veteran's denial of their incorporation petition.  The Article 78 petition alleged five grounds for reversal:  Veteran committed three improprieties under the Village Law in conducting the hearing and receiving evidence;  Veteran's inquiry into the intent of the incorporation petitioners exceeded his statutory authority, or, alternatively, his finding of discriminatory intent was not supported by sufficient evidence;  and Veteran's denial violated the First Amendment rights of the incorporation petitioners.

9
On January 25, 1989,2 Veteran petitioned the district court to remove the Article 78 proceeding to federal court, citing 28 U.S.C. Secs. 1443(2) and 1441(b).  Section 1443 permits removal to federal court by a defendant3 in any civil action or criminal prosecution

10
[f]or any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.

11
Sec. 1443(2) (emphasis added).  The emphasized portion is known as the "refusal clause."    Section Sec. 1441(b) permits general federal question removal.  In his petition, Veteran asserted primarily that he is entitled to remove under the "refusal clause" because the Article 78 proceeding, a civil action, was brought against him for his refusing to grant the incorporation petition on the ground that it would be inconsistent with the equal protection provisions of the state and federal constitutions.  The instant case was assigned to Judge Goettel, before whom Jones v. Deutsch, 88 Civ. 7738, a related case, was already pending.  In Jones, the NAACP, the National Coalition for the Homeless, certain homeless people of Westchester and certain citizens of Greenburgh brought suit on November 1, 1988 in the Southern District against COUP, Veteran and others, alleging a civil rights conspiracy under 42 U.S.C. Sec. 1985(3) and seeking a declaratory judgment directing Veteran to deny the incorporation petition.  The district court adjourned the defendants' motion to dismiss the Jones case pending disposition of this removal petition.4

12
On April 17, the district court remanded the case to state court.  Judge Goettel's opinion stated preliminarily that although none of the parties questioned the removability of this Article 78 proceeding, the necessity of protecting the federal court's jurisdiction required him to raise the question sua sponte.    After analyzing two recent cases on the "refusal clause" from this circuit, White v. Wellington, 627 F.2d 582 (2d Cir.1980), and Bridgeport Education Association v. Zinner, 415 F.Supp. 715 (D.Conn.1976), he denied "refusal clause" removal.  He stated that the removal petition did not, and Veteran in good faith could not, allege the requisite conflict between state and federal law.  According to the district court, no conflict was alleged because Veteran's removal petition defended his refusal to incorporate the village on both state and federal constitutional grounds.  The state court has stayed proceedings pending this appeal.

13
We are not persuaded that White supports the district court's remand;  quite the contrary.  In White, New Haven police officers sued Connecticut state officials for denying them promotion in violation of state law.  The officials were in the process of revising the civil service examination in response to a finding by the United States Equal Employment Opportunity Commission that New Haven city promotional practices were racially discriminatory.

14
The officials petitioned the district court to remove the suit under the "refusal clause."    In their petition, the officials denied that they had violated state law and asserted, alternatively, that, if they had violated state law, they were required to do so by Title VII of the Civil Rights Act of 1964.  Plaintiff police officers opposed removal on the ground that inconsistent allegations in the removal petition--the general denial and the affirmative defense--indicated that the defendants did not have the requisite good-faith belief in a colorable conflict between state and federal law.

15
We held removal proper under the "refusal clause."    Judge Brieant, sitting by designation and writing for the court, adopted the reasoning of then-District Judge Newman in Bridgeport Education, supra, that the refusal clause "may be invoked when the removing defendants make a colorable claim that they are being sued for not acting 'pursuant to a state law, which, though facially neutral, would produce or perpetuate a racially discriminatory practice as applied.' "    White, 627 F.2d at 586 (quoting Bridgeport Education, 415 F.Supp. at 722).    Judge Brieant reasoned that since inconsistent allegations are permissible in federal pleadings, and since federal pleading rules apply to removal petitions as well as to pleadings, inconsistent allegations in a removal petition do not bar "refusal clause" removal.  That the removal petition contained both a general denial, based on state law, and an affirmative defense, based on federal law, did not prevent the court from finding the requisite state/federal conflict.  Judge Kaufman, concurring in White, commented that to require defendants seeking removal under the "refusal clause" to admit that they have violated state law "would exact too high a price for exercising the right of removal."    627 F.2d at 589.

16
The district court should not have remanded this case to the New York Supreme Court.  The facts alleged by Veteran present a classic case for removal under the "refusal clause."    The district court's interpretation of White misconceives and potentially nullifies the "refusal clause."

17
Veteran has made a colorable claim that he is being sued for refusing to allow incorporation to proceed under the Village Law, which, though facially neutral, would produce racial discrimination if applied as Greenberg and Mulligan wish.  See White, 627 F.2d at 586.    Had Veteran advanced no state defenses, constitutional or otherwise, he would undisputedly have alleged the requisite state/federal conflict between the Village Law, which Greenberg and Mulligan claim authorizes their incorporation petition to proceed, and the equal protection clause of the U.S. Constitution.  Moreover, had Veteran alleged, in addition to his federal constitutional defense, only a general denial that he violated the Village Law, then this case would be indistinguishable from White.

18
We see no reason why Veteran's defense of his actions on state constitutional grounds presents a situation which is materially different from that in White.    It would "exact too high a price" to deny removal to petitioners such as Veteran because they assert a state constitutional defense.  White instructs that the existence of an alternative state law defense should not prevent removal under the "refusal clause," whether the alternative state law defense is a general denial, as in White, or an affirmative defense, constitutional or statutory, as in the case at bar.  See also Cavanagh v. Brock, 577 F.Supp. 176 (E.D.N.C. 1983) (three-judge panel).

19
The purpose of the "refusal clause" is to provide a federal forum for suits against state officers who uphold equal protection in the face of strong public disapproval.  Congress evidently believed it necessary to provide a federal forum for cases which from the nature of the issues involved stir local passions, because the tenure and independence of federal judges are constitutionally guaranteed, and therefore federal courts are more removed from and generally less susceptible to parochial pressures.

20
We do not share the district court's concern that the removal of such an Article 78 proceeding would federalize such proceedings.  Removal under the "refusal clause" is a rarity.  White, 627 F.2d at 590 (Kaufman, J., concurring).  Each case is subject to the same scrutiny we are making here.

21
The district court also stated that, although removal would be proper under 28 U.S.C. Sec. 1441(b) which provides for general federal question removal, the abstention doctrines set forth in Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943), and Railroad Comm'n of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), required remand to state court in any event.  The district court further noted, however, that had it upheld removal under the "refusal clause," it may have declined to abstain.  Although on this appeal the parties do not address abstention, in view of the district court's comments, abstention in this case would be inconsistent with the purpose of the statute.

22
Reversed and remanded for further proceedings consistent with this opinion.

1
 The Town Clerk is only a nominal party.  Appellants will be referred to hereinafter as "Veteran."

2
 The removal petition was timely filed under 28 U.S.C. Sec. 1446(b), which requires that the removal petition "be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based...."  Because Veteran, in a position analogous to that of the "defendant" mentioned in the statute, was served with the Article 78 petition on December 29, 1988, Veteran's filing of the removal petition on January 25, 1989 was within the thirty-day deadline.  Although the district court opinion states that Veteran filed the removal petition on January 30, 1989, the record on appeal shows that the original removal petition was filed on January 25 and that a supplementary copy, along with notice of removal, notice to adverse parties, and other papers, was filed on January 30

3
 The protection afforded by the statute is not so broad as its words imply:  "[T]he legislative history limits those able to remove thereunder to state officers, and those acting with or for them including local and municipal officials."    White v. Wellington, 627 F.2d 582, 585 (2d Cir.1980), citing Bridgeport Education Association v. Zinner, 415 F.Supp. 715 (D.Conn.1976) (footnote omitted)

4
 After denying the removal petition and remanding the instant case to state court, the district court dismissed the complaint in Jones.    See Jones v. Deutsch, 715 F.Supp. 1237 (S.D.N.Y.1989)


857 So.2d 1256 (2003)
DAN RHODES ENTERPRISES, INC.
v.
CITY OF LAKE CHARLES.
No. 03-0195.
Court of Appeal of Louisiana, Third Circuit.
October 8, 2003.
Rehearing Denied November 19, 2003.
*1257 Charles Schrumpf, Sulphur, LA, for Plaintiff/Applicant, Dan Rhodes Enterprises, Inc.
Christopher E. John, Assistant City Attorney, Lake Charles, LA, for Defendant/Respondent, City of Lake Charles.
Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
PETERS, J.
The plaintiff, Dan Rhodes Enterprises, Inc. (DRE), appeals the trial court's grant of a summary judgment dismissing his suit against the City of Lake Charles, Louisiana (the City). For the following reasons, we affirm the trial court's judgment.
This litigation arises because, in the year 2000, the City annexed certain immovable property into its corporate limits. Prior to the annexation, DRE had leased parts of the property to operate seasonal fireworks sales establishments. When the property became a part of the City, it also became subject to the City's ordinance prohibiting the sale of fireworks within the corporate limits. The ordinance's application to the annexed property had the effect of preventing DRE from continuing its fireworks sales on the leased property. DRE brought this suit to recover its lost profits from the City, asserting that the annexation constituted an unconstitutional taking of its property.
The City answered DRE's suit, asserting a number of defenses, including the assertion that the annexation did not constitute an unconstitutional taking of the corporation's property. Thereafter, the City filed a motion for summary judgment, which is the subject of this appeal.
*1258 In support of its motion for summary judgment, the City offered the following:
(1) The deposition testimony of Daniel Dwayne Rhodes, the owner and sole shareholder of DRE.
(2) A copy of a lease of a parcel of land measuring 100 feet by 200 feet fronting Country Club Road in Calcasieu Parish, Louisiana, entered into between Joseph A. Natali as lessor and DRE as lessee, dated March 16, 2000, having a primary term of May 2, 2000, to May 1, 2001, with nine options to renew on a yearly basis.
(3) A copy of a letter to Mr. Natali from Mr. Rhodes, acting on behalf of DRE, exercising the option to renew the March 16, 2000 lease.
(4) A copy of a lease of a trapezoid-shaped parcel of land with one side measuring 105 feet and fronting Nelson Road entered into between Jodie D. Dorsey as lessor and DRE as lessee, dated March 6, 2001, covering a one-month period from June 16, 2001, through July 15, 2001, but limiting the sale of fireworks to the period from June 25, 2001, through July 5, 2001.
(5) The affidavit of Ernest Broussard, the director of planning and economic development for the City of Lake Charles.
In opposition to the motion for summary judgment, DRE offered the following:
(1) The deposition testimony of Mr. Rhodes.
(2) The deposition testimony of Mr. Dorsey.
(3) Copies of the following leases of a trapezoid-shaped parcel of land with one side measuring 105 feet and fronting Nelson Road entered into between Mr. Dorsey as lessor and DRE as lessee.
Lease dated May 9, 1994, covering the period from May 10, 1994, through May 9, 1995, but limiting the sale of fireworks to the period from June 25 through July 4, 1994, and from December 15, 1994, through January 1, 1995.
Lease dated May 6, 1995, covering the period from May 10, 1995, through May 9, 1996, but limiting the sale of fireworks to the period from June 25 through July 4, 1995, and from December 15, 1995, through January 1, 1996.
Lease dated March 22, 1996, covering the period from May 10, 1996, through May 9, 1997, but limiting the sale of fireworks to the period from June 25 through July 4, 1996, and from December 15, 1996, through January 1, 1997.
Lease dated April 7, 1997, covering a two-month period from May 20, 1997, through July 20, 1997, but limiting the sale of fireworks to the period from June 25, 1997, through July 5, 1997.
Lease dated September 10, 1997, covering the period from October 1, 1997, through September 30, 1998, but limiting the sale of fireworks to the period from December 15, 1997, through January 1, 1998, and from June 25, 1998, through July 5, 1998. This particular lease provided for two one-year options to renew.
Lease dated September 29, 2000, covering a two-month period from November 10, 2000, through January 9, 2001, but limiting the sale of fireworks to the period from December 15, 2000, through January 1, 2001.
Lease dated November 17, 2001, covering a fifty-day period between November 17, 2001, through January 5, 2002, but limiting the period of actual sales to thirty days.

*1259 Lease dated March 6, 2001, covering a one-month period from June 16, 2001, through July 15, 2001, and being the same lease submitted by the City in support of the motion for summary judgment.
The leases described above differ in some respects, but all contain the same basic provisions. None of the leases were placed of public record in Calcasieu Parish.
After a hearing, the trial court granted the City's motion for summary judgment and dismissed the corporation's suit. DRE timely perfected this appeal, asserting three assignments of error.
A. The trial court erred in finding that both the Natalie [sic] and Dorsey leases terminated under the provisions of Civil Code Articles 1966 and 1968 without any loss or damage to the plaintiff being recoverable.
B. The trial court erred in failing to find that this was not a unique damage suffered by the plaintiff in this case unlike that suffered by others in the normal exercise of the police powers.
C. The trial court erred in not finding that a material issue of fact precluded summary judgment, since Rhodes was told that the Lake Charles City Planner said the sites would be grandfathered in and he relied upon this statement to his detriment.

OPINION
Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether or not summary judgment is appropriate in any given case. Cormier v. Albear, 99-1206 (La.App. 3 Cir. 2/2/00), 758 So.2d 250. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).
In this case, the record establishes little factual dispute. The seasonal sale of fireworks at various Calcasieu Parish locations is only one of DRE's business activities. The two locations at issue in this litigation were leased from Mr. Dorsey and Mr. Natali. The Dorsey property is located on Nelson Road and was annexed into the City on July 29, 2000. The Natali property is located on Country Club Road and was annexed into the City on December 5, 2000. Upon being annexed, the properties became subject to the City's ordinance which prohibits the sale of fireworks within the city limits. DRE terminated its fireworks sales at both locations and brought this suit to recover its loss of profits caused by the annexation.
The Natali lease in effect on December 5, 2000, contained the following language:
If fireworks sales from this location ever become illegal due to a change in the laws, then the lease shall be terminated and any unearned rent will be returned as follows: If sales should become illegal before the New Year's Season, LESSOR will refund the entire rent for the year.
The trial court concluded that this provision terminated the lease effective December 5, 2000, and that DRE's remedy was limited by this provision.
The Dorsey property was not subject to any written lease on July 29, 2000, but it is not disputed that DRE and Mr. Dorsey had an oral agreement concerning the property. The trial court relied on La.Civ. Code arts.1966 and 1968 to conclude that any lease with Mr. Dorsey was terminated by the annexation. Louisiana Civil Code Article 1966 provides that "[a]n obligation cannot exist without a lawful cause." Additionally, La.Civ.Code art.1968 provides *1260 that "[t]he cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy."
While we agree with DRE that the contract provisions and the Louisiana Civil Code Articles relied upon by the trial court relate to the relationship between lessor and lessee, and not to the relationship between DRE and the City, for other reasons we find no error in the trial court's grant of the summary judgment.
DRE contends on appeal that the trial court erred in failing to find that "the annexation by the City of Lake Charles [was] a taking under Louisiana Constitution Article 1, Section 4, and [that DRE] is... entitled to inverse condemnation damages." Louisiana Constitution Article I, § 4, provides in part:
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.
Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit.
In determining whether a claimant is entitled to eminent domain compensation, "the court must (1) determine if a right with respect to a thing or an object has been affected; (2) if it is determined that property is involved, decide whether the property has been taken or damaged in a constitutional sense; and (3) determine whether the taking or damaging is for a public purpose under Article I, § 4." Constance v. State, Through Dep't of Transp. & Dev., 626 So.2d 1151, 1157 (La.1993), cert. denied, 512 U.S. 1219, 114 S.Ct. 2706, 129 L.Ed.2d 834 (1994).
Importantly, "the courts of this State have long recognized a lessee's status under law to require compensation for expropriation of lease property." State, Dep't of Transp. & Dev. v. Jacob, 483 So.2d 592, 594 (La.1986). Nevertheless, under the undisputed facts of this case, as a matter of law, the "property" was not "taken or damaged" by the annexation for purposes of eminent domain compensation. In Annison v. Hoover, 517 So.2d 420, 423 (La.App. 1 Cir.1987), writ denied, 519 So.2d 148 (La.1988), the first circuit held that "a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property's value." The annexation did not prohibit DRE from leasing the properties at issue; it simply prohibited the corporation from selling fireworks within corporate limits.
We find Cheshire v. City of Minden, 83 So.2d 526 (La.App. 2 Cir.1955), instructive in this regard. In Cheshire, residents and/or owners of property situated in an area which the City of Minden purposed to annex sought to have annulled the ordinance allowing for such annexation. The plaintiffs contended, among other things, that (1) the inclusion of their property within the corporate limits under the terms of the ordinance constituted a taking or a damaging of their property in that the property would be subject to future municipal taxes for the retirement of bond issues, the funds of which were of no value or benefit to their property, and (2) their drive-in theater on their property would be subject to the Sunday closing ordinance with the consequent loss of revenue in its operation. The second circuit found these contentions to be without merit. In so holding, the court stated:
The fact that the property in the territory proposed to be annexed will become subject to additional taxes and to the *1261 regulations provided by the existing municipal ordinances, with the possible loss of revenue from the operation of the business establishment located therein, does not in our opinion constitute a taking of such property for a public purpose within the intent and meaning of [La. Const. art. I, § 2 (1921), currently incorporated into La. Const. art. I, § 4 (1974), and U.S. Const. amends. V and XIV]. It has been held that the legislature has the power to enlarge the limits of towns and cities. The contrary wishes of the inhabitants and the imposition of taxes on the annexed territory to pay the existing debts of the city do not render the Act unconstitutional.
. . . .
Moreover, in Angelle v. State, 212 La. 1069, 34 So.2d 321, 323, 29[2] A.L.R.2d 666 [(1948)], it was held that the constitutional provisions prohibiting the taking or damaging of private property, except for public purposes, refers exclusively to the power of eminent domain, that is, the intentional or purposeful expropriation or appropriation of private property for a public use or convenience.
We are likewise of the opinion there is no merit in plaintiffs' contention that their property interest in the drive-in theatre will be adversely affected by its inclusion in the extension of the City limits. That such theatre might be regulated by appropriate ordinances of the City is not one of the grounds provided in LSA-R.S. 33:174 [regarding suits to contest the reasonableness of proposed extensions of corporate limits] for attacking the ordinance or the extension of the municipal corporate limits. No constitutional question is there presented. Property is acquired and held subject to the regulation of its use by the governing authorities under the exercise of their police power.
Id. at 527-28 (citations omitted).
In looking with favor on the rationale of the Cheshire decision, we recognize that it was decided when the 1921 Louisiana Constitution was in effect. However, for purposes of the specific facts and issue in this case we do not find this to present a meaningful distinction.[1] We agree with the holding in Cheshire that the fact that property in the territory proposed to be annexed will become subject to regulations provided by the existing municipal ordinances, with the possible loss of revenue from the operation of a business establishment located therein, does not constitute a taking of such property for a public purpose. As provided in current La. Const. art. I, § 4, and as suggested in Cheshire, while a person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property, this right is subject to reasonable statutory restrictions and the reasonable exercise of the police power. To conclude otherwise would have a chilling effect on any proposed municipal annexation.
Finally, we reject DRE's contention that the trial court erred in not finding a material issue of fact precluded summary judgment regarding whether the City planner informed DRE that the property in question would be "grandfathered in," causing him to rely on this statement to his detriment.
In his deposition, Mr. Rhodes stated that Mr. Natali told him that Mr. Broussard had told Mr. Natali that DRE would *1262 be grandfathered in and would not have to comply with the City ordinance. However, he also testified that when he communicated directly with Mr. Broussard, he was told that the issue would have to be addressed by the Lake Charles City Council. Additionally, even assuming that Mr. Broussard communicated the possibility of being grandfathered in to Mr. Natali, there exists no evidence that Mr. Broussard had the authority to make such a representation.
Louisiana Civil Code Article 1967 provides in part that "[a] party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying." However, it further states that "[r]eliance on a gratuitous promise made without required formalities is not reasonable." DRE acknowledges that the authority to grant it the right to continue in business lies with the governing body of the City, and not with Mr. Broussard. Thus, his reliance on Mr. Broussard's comments, if such comments were actually made, is unreasonable given the need of formal action from the Lake Charles City Council. See Andrus v. Andrus, 93-856 (La.App. 3 Cir. 3/2/94), 634 So.2d 1254. Thus, we find no merit in this argument.

DISPOSITION
For the foregoing reasons, we affirm the trial court's grant of summary judgment in favor of the City of Lake Charles, Louisiana, dismissing the claims of Dan Rhodes Enterprises, Inc. We assess all costs of this appeal to Dan Rhodes Enterprises, Inc.
AFFIRMED.
WOODARD, J., dissents with reasons.
WOODARD, J., dissenting.
I respectfully dissent from the majority's opinion because I do not believe that Cheshire, the basis for the majority's ruling, is applicable to this case.
In Cheshire, the Plaintiff was challenging the constitutionality of the ordinance, itself. As I appreciate it, DRE is not attempting to challenge the ordinance. Rather, it alleges that the City's refusal to deny it a variance constituted a taking, at least, as far as the sums it had already invested in anticipation of sales for the next season. The City's actions deprived it of the income it expected to realize and relied on generating for the next season. The United States Supreme Court has recognized this deprivation of an investment-backed expectation to be a taking.[1]
Often, in cases in which zoning results in a nonconforming use of property, the governing body will permit variances that allow the property owner to continue the business for a short period of time, specifically, so that he has an opportunity to recoup resources that he invested before the use became illegal.[2] This time period, which serves as a grace period for the property owner, either, to conform his business to comply with the new zoning restrictions or to apply for rezoning of the property is called an amortization period.[3] The amortization period for the nonconforming use gives the business operator *1263 time to recoup funds s/he put towards the property's use before the use is terminated.
Louisiana Revised Statutes 33:4725.1(A) supports this proposition and provides:
Except as provided by Subsection B of this Section, if after August 15, 1999, a municipality annexes property the use of which is governed by a parish zoning ordinance at the time of annexation, and the annexation causes a change in the zoning classification, the parish zoning classification shall remain in effect until the owner of the property has applied for rezoning with the appropriate municipal governing authority, board or commission or for a period of six months, whichever occurs first. ...
Thus, the above provision expressly addresses instances in which an annexation of property, which effectively rezones it, adversely affects the landowner. Particularly, in cases such as the instant one, in which neither the ordinance nor the annexation is unconstitutional, the property owner is left without a remedy for the adverse effects of the annexation. Thus, the above provision intends to provide a remedy in such cases; that being to allow the property owner a six-month amortization period to recoup any sums s/he has already invested in the non-conforming use of the property.
Unfortunately, because DRE's business operated, only, seasonally, it was unable to utilize this amortization period. Notwithstanding, it exercised the alternative of applying for a variance from the City, the appropriate governing authority. Indeed, DRE's cause of action would not have been ripe for court action without the City's prior denial of a variance.[4] The question for the court, then, becomes whether the municipal board or authority's denial of the variance was reasonable under all the circumstances.[5]
Initially, the City denied the variance. However, a special meeting was called to revote on the issue, at which time, not enough council members were present to grant the variance. While the ordinance prohibiting fireworks sales within city limits is an important ordinance contained in the City's Life Code and is a valid exercise of its police power, this is not determinative of the "takings" issue. Rather, the determinative question is whether the City's denial of the variance was reasonable under all the circumstances.[6] This is a factual inquiry which was inappropriately determined on summary judgment.
Furthermore, we should not dispose of DRE's detrimental reliance theory on summary judgment. DRE claims that it invested money based upon its reliance on licenses the State and the Parish granted it after the annexation, as well as on Mr. Broussard's assurance to Mr. Natali that DRE's business would be "grandfathered in." If these facts can be proved, they could support a remedy under detrimental reliance. Thus, it is counter-intuitive to grant summary judgment on this basis.
Accordingly, summary judgment was inappropriate under either theory of recovery, and I would reverse.
NOTES
[1]  Louisiana Constitution Article I, § 2 (1921) provided: "No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid."
[1]  Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).
[2]  Jay M. Zitter, Annotation, Validity of Provisions for Amortization of Nonconforming Uses, 8 A.L.R. 5th 391 (1992); see also State ex rel. Dema Realty Co. v. Jacoby, 168 La. 752, 123 So. 314 (1929).
[3]  Id.
[4]  King v. Caddo Parish Comm'n, 97-1873 (La.10/20/98); 719 So.2d 410.
[5]  Id.
[6]  King, 719 So.2d 410.