Richlin Security Service Co. v. Chertoff, 128 S.Ct. 2007, 170 L.Ed.2d 960 (U.S. 06/02/2008)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 06-1717


[3] 128 S.Ct. 2007, 170 L.Ed.2d 960, 2008 Daily Journal D.A.R. 8004, 76 USLW 4360, 08 Cal. Daily Op. Serv. 6601


[4] June 2, 2008


[5] RICHLIN SECURITY SERVICE COMPANY, PETITIONER
v.
MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2007


[8] Argued March 19, 2008


[9] After prevailing against the Government on a claim originating in the Department of Transportation's Board of Contract Appeals, petitioner (Richlin) filed an application with the Board for reimbursement of attorney's fees, expenses, and costs, pursuant to the Equal Access to Justice Act (EAJA). The Board concluded, inter alia, that Richlin was not entitled to recover paralegal fees at the rates at which it was billed by its law firm, holding that EAJA limited such recovery to the attorney's cost, which was lower than the billed rate. In affirming, the Federal Circuit concluded that the term "fees," for which EAJA authorizes recovery at "prevailing market rates," embraces only the fees of attorneys, experts, and agents.


[10] Held: A prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates. Pp. 4-18.


[11] (a) EAJA permits a prevailing party to recover "fees and other expenses incurred by that party in connection with" administrative proceedings, 5 U. S. C. §504(a)(1), including "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project ... , and reasonable attorney or agent fees," and bases the amount of such fees on "prevailing market rates," §504(b)(1)(A). Because Richlin "incurred" "fees" for paralegal services in connection with its action before the Board, a straightforward reading of the statute demonstrates that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services. The Government's contrary reading -- that expenditures for paralegal services are "other expenses" recoverable only at "reasonable cost" -- is unpersuasive. Section 504(b)(1)(A) does not clearly distinguish between the rates at which "fees" and "other expenses" are reimbursed. Even if the statutory text supported the Government's dichotomy, it would hardly follow that amounts billed for paralegal services should be classified as "expenses" rather than as "fees." Paralegals are surely more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even if the Court agreed that EAJA limited paralegal fees to "reasonable cost," it would not follow that the cost should be measured from the perspective of the party's attorney rather than the client. By providing that an agency shall award a prevailing party "fees and other expenses ... incurred by that party" (emphasis added), §504(a)(1) leaves no doubt that Congress intended the "reasonable cost" of §504(b)(1)(A)'s items to be calculated from the litigant's perspective. It is unlikely that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from their employer's perspective. It seems more plausible that Congress intended all "fees and other expenses" to be recoverable at the litigant's "reasonable cost," subject to the proviso that "reasonable cost" would be deemed to be "prevailing market rates" when such rates could be determined. Pp. 4-8.


[12] (b) To the extent that some ambiguity subsists in the statutory text, this Court need look no further to resolve it than Missouri v. Jenkins, 491 U. S. 274, where the Court addressed a similar question with respect to the Civil Rights Attorney's Fees Awards Act of 1976 -- which provides that a court "may allow the prevailing party ... a reasonable attorney's fee as part of the costs," 42 U. S. C. §1988 -- finding it "self-evident" that "attorney's fee" embraced the fees of paralegals as well as attorneys, 491 U. S., at 285. EAJA, like §1988, entitles certain parties to recover "reasonable attorney ... fees," §504(b)(1)(A), and makes no mention of the paralegals, "secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client," 491 U. S., at 285. Thus, EAJA, like §1988, must be interpreted as using the term "attorney ... fees" to reach fees for paralegal services as well as compensation for the attorney's personal labor, making "self-evident" that Congress intended that term to embrace paralegal fees. Since §504 generally provides for recovery of attorney's fees at "prevailing market rates," it follows that paralegal fees must also be recoverable at those rates. The Government's contention that Jenkins found paralegal fees recoverable as "attorney's fee[s]" because §1988 authorized no other recoverable "expenses" finds no support in Jenkins itself, which turned not on extratextual policy goals, but on the "self-evident" proposition that "attorney's fee[s]" had historically included paralegal fees. Indeed, this Court rejected the Government's interpretation of Jenkins in West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, concluding that a petitioner seeking expert witness fees under §1988 could not rely on Jenkins for the proposition that §1988's "broad remedial purposes" allowed recovery of fees not expressly authorized by statute. Pp. 8-11.


[13] (c) Even assuming that some residual ambiguity in the statutory text justified resorting to extratextual authorities, the legislative history cited by the Government does not address the question presented and policy considerations actually counsel in favor of Richlin's interpretation. Pp. 11-18.


[14] 472 F. 3d 1370, reversed and remanded.


[15] Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, in which Scalia, J., joined except as to Part III-A, and in which Thomas, J., joined except as to Parts II-B and III.


[16] On Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Court Below: 472 F. 3d 1370


[17] Brian Wolfman argued the cause for petitioner. With him on the briefs was Scott L. Nelson.


[18] Anthony A. Yang argued the cause for respondent. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Garre, Michael Jay Singer, and Michael E. Robinson.


[19] Amy Howe, Kevin K. Russell, Thomas C. Goldstein, Pamela S. Karlan, and Jeffrey L. Fisher filed a brief for the National Association of Legal Assistants et al. as amici curiae urging reversal.


[20] The opinion of the court was delivered by: Justice Alito*fn1


[21] Opinion of the Court


[22] 553 U. S. ____ (2008)


[23] The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party's attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney's cost. 472 F. 3d 1370 (2006). We reverse.


[24] I.


[25] Petitioner Richlin Security Service Co. (Richlin) is a small California proprietorship. In the early 1990's, it was engaged by the former Immigration and Naturalization Service (INS) to provide guard services for detainees at Los Angeles International Airport. Through mutual mistake, the parties' two contracts misclassified Richlin's employees under the Service Contract Act of 1965, 41 U. S. C. §351 et seq. The Department of Labor discovered the misclassification and ordered Richlin to pay its employees back wages. Richlin responded by filing a claim against the Government with the Department of Transportation's Board of Contract Appeals (Board). The claim sought reformation of the two contracts in order to force the Government to make additional payments necessary to cover Richlin's liability under the Service Contract Act. Richlin prevailed after extensive litigation, and the Board entered an award in its favor.


[26] Richlin then filed an application with the Board for reimbursement of its attorney's fees, expenses, and costs pursuant to EAJA. Under EAJA, "[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." 5 U. S. C. §504(a)(1). In addition to its other fees and expenses, Richlin sought $45,141.10 for 523.8 hours of paralegal work on its contract claim and $6,760 for 68.2 hours of paralegal work on the EAJA application itself.


[27] The Board granted Richlin's application in part. Richlin Security Service Co. v. Department of Justice, Nos. WRO-06-90, WRO-03-91, 2005 WL 1635099 (June 30, 2005), App. to Pet. for Cert. 25a. It found that Richlin met §504(b)(1)(B)'s eligibility requirements, see id., at 30a, and that the Government's position had not been "substantially justified" within the meaning of §504(a)(1), id., at 32a. It concluded, however, that Richlin was not entitled to recover its paralegal fees at the rates (ranging from $50 per hour to $95 per hour) at which Richlin was billed by its law firm.*fn2 See id., at 39a. The Board held that EAJA limited recovery of paralegal fees to "the cost to the firm rather than ... the billed rate." Ibid. Richlin had not submitted any evidence regarding the cost of the paralegal services to its law firm, see ibid., but the Board found that "$35 per hour is a reasonable cost to the firm[,] having taken judicial notice of paralegal salaries in the Washington D. C. area as reflected on the internet." Id., at 42a-43a.


[28] A divided panel of the Federal Circuit affirmed. 472 F. 3d 1370. The court construed the term "fees," for which EAJA authorizes recovery at "prevailing market rates," §504(b)(1)(A), as embracing only the fees of attorneys, experts, and agents.*fn3 See id., at 1374. The court declined to follow the contrary decision of the Eleventh Circuit in Jean v. Nelson, 863 F. 2d 759 (1988), aff'd sub nom. Commissioner v. Jean, 496 U. S. 154 (1990). It also distinguished this Court's decisions in Missouri v. Jenkins, 491 U. S. 274 (1989), and West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), reasoning that those cases involved a different fee-shifting statute with different " `goals and objectives.' " 472 F. 3d, at 1375-1377, 1379 (discussing the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. §1988). The court instead found support for its interpretation in EAJA's legislative history, see 472 F. 3d, at 1381 (citing S. Rep. No. 98-586 (1984) (hereinafter S. Rep.)), and in considerations of public policy, see 472 F. 3d, at 1380-1381.


[29] Judge Plager dissented. He believed that the authorities distinguished by the majority (particularly this Court's decisions in Jenkins and Casey) were indistinguishable. He also identified "sound policy reasons for ... adopting the Supreme Court's take of the case, even if we thought we had a choice." 472 F. 3d, at 1383.


[30] Richlin petitioned for rehearing, pointing out that the approach taken by the Eleventh Circuit in Jean had been followed by several other Circuits. See 482 F. 3d 1358, 1359 (CAFed. 2007) (citing Role Models Am., Inc. v. Brownlee, 353 F. 3d 962, 974 (CADC 2004); Hyatt v. Barnhart, 315 F. 3d 239, 255 (CA4 2002); and Miller v. Alamo, 983 F. 2d 856, 862 (CA8 1993)). The panel denied rehearing over Judge Plager's dissent, and the full court denied rehearing en banc. See App. to Pet. for Cert. 57a.


[31] We granted certiorari. 551 U. S. ___ (2007).


[32] II.


[33] A.


[34] EAJA permits an eligible prevailing party to recover "fees and other expenses incurred by that party in connection with" a proceeding before an administrative agency. 5 U. S. C. §504(a)(1). EAJA defines "fees and other expenses" as follows:


[35] " `[F]ees and other expenses' includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.)" §504(b)(1)(A).*fn4


[36] In this case, Richlin "incurred" "fees" for paralegal services in connection with its contract action before the Board. Since §504(b)(1)(A) awards fees at "prevailing market rates," a straightforward reading of the statute leads to the conclusion that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services.


[37] The Government resists this reading by distinguishing "fees" from "other expenses." The Government concedes that "fees" are reimbursable at "prevailing market rates," but it insists that "other expenses" (including expenses for "any study, analysis, engineering report, test, or project") are reimbursable only at their "reasonable cost." And in the Government's view, outlays for paralegal services are better characterized as "other expenses" than as "fees." The Government observes that the second sentence of §504(b)(1)(A), which explains how to calculate awards for "fees," refers to attorneys, agents, and expert witnesses, without mentioning paralegals. From this omission, the Government infers that Congress intended to treat expenditures for paralegal services not as "fees" but as "other expenses," recoverable at "reasonable cost."


[38] We find the Government's fractured interpretation of the statute unpersuasive. Contrary to the Government's contention, §504(b)(1)(A) does not clearly distinguish between the rates at which "fees" and "other expenses" are reimbursed. Although the statute does refer to the "reasonable cost" of "any study, analysis, engineering report, test, or project," Congress may reasonably have believed that market rates would not exist for work product of that kind. At one point, Congress even appears to use the terms "expenses" and "fees" interchangeably: The first clause of §504(b)(1)(A) refers to the "reasonable expenses of expert witnesses," while the parenthetical characterizes expert compensation as "fees." There is no indication that Congress, in using the term "expenses" in one place and "fees" in the other, was referring to two different components of expert remuneration.


[39] Even if the dichotomy that the Government draws between "fees" and "other expenses" were supported by the statutory text, it would hardly follow that amounts billed for paralegal services should be classified as "expenses" rather than as "fees." The Government concludes that the omission of paralegal fees from §504(b)(1)(A)'s parenthetical (which generally authorizes reimbursement at "prevailing market rates") implies that the recovery of paralegal fees is limited to cost. But one could just as easily conclude that the omission of paralegal fees from the litany of "any study, analysis, engineering report, test, or project" (all of which are recoverable at "reasonable cost") implies that paralegal fees are recoverable at market rates. Surely paralegals are more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even the Government's brief, which incants the term "paralegal expenses," e.g., Brief for Respondent 4, 5, 6, 7, 8, 9, 10, 11, 12, slips up once and refers to them as "fees," see id., at 35 ("As the court of appeals explained, treating paralegal fees as attorney fees could `distort the normal allocation of work and result in a less efficient performance of legal services' under the EAJA ...").


[40] But even if we agreed that EAJA limited a prevailing party's recovery for paralegal fees to "reasonable cost," it certainly would not follow that the cost should be measured from the perspective of the party's attorney.*fn5 To the contrary, it would be anomalous to measure cost from the perspective of the attorney rather than the client. We do not understand the Government to contend, for example, that the "reasonable cost" of an "engineering report" or "analysis" should be calculated from the perspective of the firm that employs the engineer or analyst. Such an interpretation would be tough to square with the statutory language. Section 504(a)(1) provides that an agency shall award to a prevailing party "fees and other expenses incurred by that party." See also §504(b)(1)(A) (emphasis added). That language leaves no doubt that Congress intended the "reasonable cost" of the specified items in §504(b)(1)(A) to be calculated from the perspective of the litigant. That being the case, we find it hard to believe that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from the perspective of their employer rather than the litigant. It seems more plausible that Congress intended all "fees and other expenses" to be recoverable at the litigant's "reasonable cost," subject to the proviso that "reasonable cost" would be deemed to be "prevailing market rates" when such rates could be determined.*fn6


[41] B.


[42] To the extent that some ambiguity subsists in the statutory text, we need not look far to resolve it, for we have already addressed a similar question with respect to another fee-shifting statute. In Missouri v. Jenkins, 491 U. S. 274 (1989), we considered whether litigants could recover paralegal fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. §1988. Section 1988 provides that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." We concluded that the term "attorney's fee" in §1988 "cannot have been meant to compensate only work performed personally by members of the bar." 491 U. S., at 285. Although separate billing for paralegals had become "increasingly widespread," id., at 286 (internal quotation marks omitted), attorney's fees had traditionally subsumed both the attorney's personal labor and the labor of paralegals and other individuals who contributed to the attorney's work product, see id., at 285. We were so confident that Congress had given the term "attorney's fees" this traditional gloss that we declared it "self-evident" that the term embraced the fees of paralegals as well as attorneys. Ibid.


[43] We think Jenkins substantially answers the question before us. EAJA, like §1988, entitles certain parties to recover "reasonable attorney ... fees." 5 U. S. C. §504(b)(1)(A). EAJA, like §1988, makes no mention of the paralegals, "secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client." Jenkins, supra, at 285. And we think EAJA, like §1988, must be interpreted as using the term "attorney ... fees" to reach fees for paralegal services as well as compensation for the attorney's personal labor. The Government does not contend that the meaning of the term "attorney's fees" changed so much between §1988's enactment in 1976 and EAJA's enactment in 1980 that the term's meaning in one statute must be different from its meaning in the other. Under the reasoning of Jenkins, we take it as "self-evident" that when Congress instructed agencies to award "attorney ... fees" to certain parties prevailing against the Government, that term was intended to embrace paralegal fees as well. Since §504 generally provides for recovery of attorney's fees at "prevailing market rates," it follows that fees for paralegal services must be recoverable at prevailing market rates as well.


[44] The Government contends that our decision in Jenkins was driven by considerations arising from the different context in which the term "attorney's fee" was used in §1988. At the time Jenkins was decided, §1988 provided for the recovery of attorney's fees without reference to any other recoverable "expenses." The Government insists that Jenkins found paralegal fees recoverable under the guise of "attorney's fee[s]" because otherwise paralegal fees would not be recoverable at all. Since EAJA expressly permits recovery (albeit at "cost") for items other than attorney, agent, and expert witness fees, the Government sees no reason to give EAJA the broad construction that Jenkins gave §1988.


[45] The Government's rationale for distinguishing Jenkins finds no support either in our opinion there or in our subsequent decisions. Our opinion in Jenkins expressed no apprehension at the possibility that a contrary decision would leave the claimant emptyhanded. This omission is unsurprising, since our decision in Jenkins did not rest on the conviction that recovery at market rates was better than nothing. Our decision rested instead on the proposition -- a proposition we took as "self-evident" -- that the term "attorney's fee" had historically included fees for paralegal services.


[46] Indeed, the Government's interpretation of Jenkins was rejected by this Court just two years after Jenkins was handed down. In West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, the petitioner sought to recover expert witness fees from the Commonwealth of Pennsylvania pursuant to §1988. The petitioner looked to Jenkins for the proposition that the "broad remedial purposes" of §1988 allowed the recovery of fees not expressly authorized by statute. The Court rejected that interpretation of Jenkins:


[47] "The issue [in Jenkins] was not, as [petitioner] contends, whether we would permit our perception of the `policy' of the statute to overcome its `plain language.' It was not remotely plain in Jenkins that the phrase `attorney's fee' did not include charges for law clerk and paralegal services. Such services, like the services of `secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product,' had traditionally been included in calculation of the lawyers' hourly rates. Only recently had there arisen `the increasingly widespread custom of separately billing for [such] services.' By contrast, there has never been, to our knowledge, a practice of including the cost of expert services within attorneys' hourly rates. There was also no record in Jenkins -- as there is a lengthy record here -- of statutory usage that recognizes a distinction between the charges at issue and attorney's fees." Casey, supra, at 99 (quoting 491 U. S., at 285-286) (some internal quotation marks and citations omitted).*fn7


[48] Our analysis of Jenkins in Casey refutes the Government's claim that Jenkins had to stretch the law to fit hard facts. As Casey shows, our decision in Jenkins turned not on extratextual policy goals but on the traditional meaning of the term "attorney's fees."


[49] III.


[50] The Government parries this textual and doctrinal analysis with legislative history and public policy. We are not persuaded by either. The legislative history cited by the Government does not address the question presented, and policy considerations actually counsel in favor of Richlin's interpretation.


[51] A.


[52] The Government contends first that a 1984 Senate Report accompanying the bill that reenacted EAJA*fn8 unequivocally expressed congressional intent that paralegal fees should be recovered only " `at cost.' " Brief for Respondent 29 (quoting S. Rep., at 15; emphasis in original). It next contends that the Report tacitly endorsed the same result by approving model rules of the Administrative Conference of the United States and a pre-EAJA Sixth Circuit decision, both of which had adopted schemes of reimbursement at attorney cost. See Brief for Respondent 29. We are not persuaded. In our view, the legislative history does not even address the question presented, much less answer it in the Government's favor.*fn9


[53] The Senate Report accompanying the 1984 bill remarked that "[e]xamples of the type of expenses that should ordinarily be compensable [under EAJA] include paralegal time (billed at cost)." S. Rep., at 15. The Government concludes from this stray remark that Congress intended to limit recovery of paralegal fees to attorney cost. But as we observed earlier, the word "cost" could just as easily (and more sensibly) refer to the client's cost rather than the attorney's cost. Under the former interpretation, the Senate Report simply indicates that a prevailing party who satisfies EAJA's other requirements should generally be able to "bil[l]" the Government for any reasonable amount the party paid for paralegal services. Since the litigant's out-of-pocket cost for paralegal services would normally be equal to the "prevailing market rat[e]" for such services, 5 U. S. C. §504(b)(1)(A), the Senate Report could easily support Richlin's interpretation.


[54] Moreover, even if the Government's interpretation of the word "cost" is correct, that interpretation would not be inconsistent with our decision today. "Nothing in [EAJA] requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that [EAJA] requires." Jenkins, supra, at 288 (construing 42 U. S. C. §1988). We thus recognize the possibility, as we did in Jenkins, that the attorney's cost for paralegal services will supply the relevant metric for calculating the client's recovery. Whether that metric is appropriate depends on market practice. The Senate Report, even under the Government's contestable interpretation, is not inconsistent with that conclusion. On the contrary, the Report implies that courts should look to market practice in setting EAJA awards. See S. Rep., at 15 ("The Act should not be read ... to permit reimbursement for items ordinarily included in office overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the litigation, and customarily chargeable to clients" (emphasis added)). Beyond that vague guidance, the Report does not address the critical question in this case: whether EAJA limits recovery of paralegal fees to attorney cost regardless of market practice. As such, the Report does not persuade us of the soundness of the Government's interpretation of the statute.


[55] The Government's reliance on the Sixth Circuit's decision in Northcross v. Board of Ed. of the Memphis City Schools, 611 F. 2d 624 (1979), founders for the same reason. The Government contends that Northcross approved of reimbursement at attorney cost under 42 U. S. C. §1988 and that the 1984 Senate Report, by endorsing Northcross, tacitly approved of the same result for EAJA. See Brief for Respondent 30 (citing Northcross, supra, at 639). The problem again is that Northcross did not decide whether a litigant's recovery for paralegal services would be limited to his attorney's cost even in a market where litigants were customarily billed at "prevailing market rates." Although the Sixth Circuit seems to have been aware that paralegal services could be billed to clients at market rates, some language in its opinion suggests that the court assumed that attorneys billed their clients only for the out-of-pocket cost of paralegal services.*fn10 Since Northcross does not clearly address the question presented, its endorsement in the Senate Report means little.


[56] Finally, the model rules cited in the Senate Report may actually support Richlin's position. The implementing release for the rules describes the Administrative Conference's approach to paralegal costs as follows:


[57] "Commenters also took varying positions on whether paralegal costs should be chargeable as expenses. We do not believe the rules should discourage the use of paralegals, which can be an important cost-saving measure. On the other hand, lawyers' practices with respect to charging for paralegal time, as with respect to other expenses such as duplicating, telephone charges and the like, vary according to locality, field of practice, and individual custom. We have decided not to designate specific items as compensable expenses. Instead, we will adopt a suggestion of the Treasury Department and revise the model rule to provide that expenses may be charged as a separate item if they are ordinarily so charged to the attorney's clients." Administrative Conference of the U. S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32905 (1981).


[58] To the extent that this passage addresses the question presented at all, it seems to take the same approach that the Court took in Jenkins and that we adopt today: it allows the recovery of paralegal fees according to "the practice in the relevant market." 491 U. S., at 288. But we think the fairest interpretation of the implementing release is that it does not address how awards for paralegal fees should be calculated. Instead, it addresses the anterior question whether courts may award paralegal fees under EAJA at all. See, e.g., 46 Fed. Reg. 32905 (responding to comments urging that the model rules "identify particular expenses of attorneys and witnesses that are compensable"). Like the other legislative authorities cited by the Government, the model rules fail to persuade us of the soundness of the Government's interpretation because they fail to clearly address the question presented.


[59] B.


[60] We find the Government's policy rationale for recovery at attorney cost likewise unpersuasive. The Government argues that market-based recovery would distort litigant incentives because EAJA would cap paralegal and attorney's fees at the same rate. See 5 U. S. C. §504(b)(1)(A) ("[A]attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee"). The Government observes that paralegal rates are lower than rates for attorneys operating in the same market. If EAJA reimbursed both attorney time and paralegal time at market rates, then the cap would clip more off the top of the attorney's rates than the paralegal's rates. According to the Government, a market-based scheme would encourage litigants to shift an inefficient amount of attorney work to paralegals, since paralegal fees could be recovered at a greater percentage of their full market value.


[61] The problem with this argument, as Richlin points out, is that it proves too much. The same reasoning would imply that agent fees should not be recoverable at market rates.*fn11 If market-based recovery of paralegal time resulted in excessive reliance on paralegals, then market-based recovery of agent time should result in excessive reliance on agents. The same reasoning would also imply that fees for junior attorneys (who generally bill at lower rates than senior attorneys) should not be recoverable at market rates. Cf. Jenkins, supra, at 287 ("If the fees are consistent with market rates and practices, the `windfall' argument has no more force with regard to paralegals than it does for associates"). Yet despite the possibility that market-based recovery of attorney and agent fees would distort litigant incentives, §504 unambiguously authorizes awards of "reasonable attorney or agent fees ... [at] prevailing market rates." 5 U. S. C. §504(b)(1)(A). The Government offers no persuasive reason why Congress would have treated paralegal fees any differently. The Government's policy rationale thus founders on the text of the statute, which shows that Congress was untroubled by the very distortion the Government seeks to prevent.


[62] We also question the practical feasibility of the Government's interpretation of the statute. The Board in this case relied on the Internet for data on paralegal salaries in the District of Columbia, but the Government fails to explain why a law firm's cost should be limited to salary. The benefits and perks with which a firm compensates its staff come out of the bottom line no less than salary. The Government has offered no solution to this accounting problem, and we do not believe that solutions are readily to be found. Market practice provides by far the more transparent basis for calculating a prevailing party's recovery under EAJA. It strains credulity that Congress would have abandoned this predictable, workable framework for the uncertain and complex accounting requirements that a cost-based rule would inflict on litigants, their attorneys, administrative agencies, and the courts.


[63] IV.


[64] Confronted with the flaws in its interpretation of the statute, the Government seeks shelter in a canon of construction. According to the Government, any right to recover paralegal fees under EAJA must be read narrowly in light of the statutory canon requiring strict construction of waivers of sovereign immunity. We disagree.


[65] The sovereign immunity canon is just that -- a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U. S. 129, 137 (1991) (relying on the canon as "reinforce[ment]" for the independent "conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language"); Ruckelshaus v. Sierra Club, 463 U. S. 680, 682, 685-686 (1983) (relying on the canon in tandem with "historic principles of fee-shifting in this and other countries" to define the scope of a fee-shifting statute); Department of Energy v. Ohio, 503 U. S. 607, 626-627 (1992) (resorting to the canon only after a close reading of the statutory provision had left the Court "with an unanswered question and an unresolved tension between closely related statutory provisions"); see also Smith v. United States, 507 U. S. 197, 201-203 (1993) (invoking the sovereign immunity canon only after observing that the claimant's argument was "undermine[d]" by the "commonsense meaning" of the statutory language). In this case, traditional tools of statutory construction and considerations of stare decisis compel the conclusion that paralegal fees are recoverable as attorney's fees at their "prevailing market rates." 5 U. S. C. §504(b)(1)(A). There is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe.


[66] V.


[67] For these reasons, we hold that a prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates. The Board's contrary decision was error, and the Federal Circuit erred in affirming that decision. The judgment of the Federal Circuit is reversed, and this case is remanded for further proceedings consistent with this opinion.


[68] It is so ordered.



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Opinion Footnotes

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[69] *fn1 Justice Scalia joins this opinion except as to Part III-A, and Justice Thomas joins this opinion except as to Parts II-B and III.


[70] *fn2 Richlin was actually billed for paralegal services at rates as high as $135 per hour, but it amended its application to cap the fees at $95 per hour. See App. to Pet. for Cert. 39a; Brief for Petitioner 9; Brief for Respondent 4, n. 2.


[71] *fn3 Some agencies allow non-attorney representatives, known as "agents," to assist parties with the presentation of their cases. See n. 10, infra. Richlin has never claimed that a paralegal may qualify as an "agent" within the meaning of §504(b)(1)(A).


[72] *fn4 Virtually identical fee-shifting provisions apply to actions by or against the Government in federal court. See 28 U. S. C. §§2412(a)(1), (d)(2)(A). The question presented addresses both §§504 and 2412, but the Federal Circuit's decision resolved only petitioner's §504 application, and the Government avers (without challenge from Richlin) that §2412 "is not at issue in this case." Brief for Respondent 2, n. 1. We assume without deciding that the reasoning of our opinion would extend equally to §§504 and 2412. We confine our discussion to §504.


[73] *fn5 The Government contends that the question presented does not fairly include the question whether the cost of paralegal services should be calculated from the perspective of the litigant rather than the litigant's attorney. We disagree. The question presented in Richlin's petition for certiorari was whether "a prevailing party [may] be awarded attorney fees for paralegal services at the market rate for such services, ... [or at] cost only." Pet. for Cert. i. A decision limiting reimbursement to "cost only" would simply beg the question of how that cost should be measured. Since the question presented cannot genuinely be answered without addressing the subsidiary question, we have no difficulty concluding that the latter question is "fairly included" within the former. See this Court's Rule 14.1(a).


[74] *fn6 It is worth recalling that the Board calculated Richlin's award based on an Internet survey of paralegal salaries in the District of Columbia. Presumably the salaries the Board identified represented the market rate for paralegal compensation. The limited award that the Government wants affirmed was thus based, ironically enough, on the "prevailing market rates" for paralegal services. The fact that paralegal salaries respond to market forces no less than the fees that clients pay suggests to us that this case has more to do with determining whose expenditures get reimbursed (the attorney's or the client's) than with determining how expenditures are calculated (at cost or at market). Since EAJA authorizes the recovery of fees and other expenses "incurred by [the] party," §504(a)(1), rather than the party's attorney, the answer to the former question is plain.


[75] *fn7 Following our decision in Casey, Congress amended §1988 to allow parties to recover "expert fees as part of the attorney's fees." Civil Rights Act of 1991, §113(a), 105 Stat. 1079 (codified at 42 U. S. C. §1988(c)).


[76] *fn8 The version of EAJA first enacted in 1980 had a sunset provision effective October 1, 1984. See §§203(c), 204(c), 94 Stat. 2327, 2329. Congress revived EAJA without the sunset provision (but with certain other amendments) in 1985. See Act of Aug. 5, 1985, §§1-2, 6, 99 Stat. 183-186; see also n. 8, infra; see generally Scarborough v. Principi, 541 U. S. 401, 406-407 (2004) (summarizing EAJA's legislative history).


[77] *fn9 Richlin makes a threshold challenge to the legitimacy of the 1984 Senate Report as legislative history, observing that the bill it accompanied was vetoed by the President before being enacted by a subsequent Congress. See Brief for Petitioner 27 ("To the extent that legislative history serves as legitimate evidence of congressional intent, it does so only because it is presumed to have been ratified by Congress and the President when the relevant legislation was enacted" (citing Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1522 (2000); and Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part))). But see Melkonyan v. Sullivan, 501 U. S. 89, 96 (1991) (relying on the same Report to interpret EAJA's 1985 amendments). Because the legislative history is a wash in this case, we need not decide precisely how much weight it deserves in our analysis.


[78] *fn10 Compare Northcross, 611 F. 2d, at 638 ("[A] scale of fees as is used by most law firms is appropriate to use in making fee awards pursuant to Section 1988. The use of broad categories, differentiating between paralegal services, in-office services by experienced attorneys and trial service, would result in a fair and equitable fee") with id., at 639 ("The authority granted in section 1988 to award a reasonable attorney's fee included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of §1988" (internal quotation marks omitted)).


[79] *fn11 " `An "agent fee" may be awarded for the services of a non-attorney where an agency permits such agents to represent parties who come before it.' " Brief for Respondent at 11, n. 4 (quoting H. R. Rep. No. 96-1418, p. 14 (1980)); see also n. 2, supra. Since federal courts generally do not permit non-attorneys to practice before them, the portion of EAJA governing awards for parties to federal litigation makes no provision for agent fees. Compare 28 U. S. C. §2412(d)(2)(A) with 5 U. S. C. §504(b)(1)(A).

Banks v. United States, No. 06-5068 (10th Cir. 06/18/2007)

[1] UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT


[2] No. 06-5068


[3]


[4] June 18, 2007


[5] RICHARD M . BANKS; MARY LAFFICER DOYLE; STANLEY ALLEN ACUFF; MELANIE POOL ALPHIN; AND LISA RENEE BELL, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES; LEONIDAS RALPH MECHAM, DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS; ALBERTO R. GONZALES, ATTORNEY GENERAL; ROBERT S. MUELLER, III, DIRECTOR, FEDERAL BUREAU OF INVESTIGATION; DAVID E. O'MEILIA, UNITED STATES ATTORNEY; BRAD STEWART, CHIEF PROBATION OFFICER, UNITED STATES PROBATION OFFICE, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 05-CV-278-TCK).


[7] Robert Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal Public Defender, and Barry L. Derryberry, Assistant Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for Plaintiffs-Appellants.


[8] Loretta Finience Radford, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Kevin C. Leitch, Assistant United States Attorney, on the brief), Tulsa, Oklahoma, for Defendants-Appellees.


[9] The opinion of the court was delivered by: Hollow Ay, Circuit Judge.


[10] PUBLISH


[11] Before BRISCOE, HOLLOWAY, and O'BRIEN, Circuit Judges.


[12] Government collection of deoxyribonucleic acid ("DNA") samples has caused considerable controversy. From State proposals to expand DNA extraction to misdemeanants, to federal DNA statutes designed to assist police in solving crimes, detractors allude to a police state reminiscent of George Orwell's dystopia portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis Backlog Elimination Act of 2000,*fn1 requires convicted felons to submit a DNA sample for inclusion in a national database. The database is used for law enforcement identification purposes; in judicial proceedings if otherwise admissible; for criminal-defense purposes; and for a population-statistic database for identification research, or for quality-control purposes, if personallyidentifiable information is removed.


[13] We must decide whether the Fourth Amendment permits compulsory DNA testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the absence of individualized suspicion that they have committed additional crimes. Applying a totality-of-the-circumstances test, we hold that the Act is constitutional because the Government's interest in extracting DNA from the Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.


[14] I. BACKGROUND


[15] A. The DNA Analysis Backlog Elimination Act


[16] DNA is a double-helix shaped nucleic acid held together by hydrogen bonds and composed of base pairings of Adenine and Thymine and Cytosine and Guanine, which repeat along the double-helix at different regions (referred to as short-tandem-repeat loci, or STR loci). In re Fisher, 421 F.3d 1365, 1367 (Fed. Cir. 2005); United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir. 2004). When analyzed, these STR loci reveal the presence of various alleles, genic variants responsible for producing a particular trait, that represent themselves differently in virtually everyone except identical twins, who share the same DNA. See Kincade, 379 F.3d at 818 n.5, 818-19.


[17] To obtain and profile this information, DNA is extracted from a cell, and the short tandem repeats are copied millions of times. After separating and marking the short-tandem-repeat sites, an analyst can determine the number of repeats at each of the loci. See id. at 818-19. (The FBI generates a 13-loci DNA profile.) Id. Since there is only an infinitesimal chance that two people's DNA will be identical in these variable regions, analysts can compare DNA profiles and exclude distinguishable suspects from suspicion.


[18] Given the power of DNA as an identification tool, Congress passed the DNA Analysis Backlog Elimination Act of 2000 requiring those convicted of a "qualifying Federal offense" to provide "a tissue, fluid, or other bodily sample . . . on which . . . [an analysis of that sample's] deoxyribonucleic acid . . ." can be carried out. 42 U.S.C. §§ 14135a(c)(1)-(2) & (a)(1)-(2). The Bureau of Prisons collects the DNA samples from qualified offenders who are in custody, and the federal probation office collects the DNA samples from qualified offenders who are on release, parole, or probation. Id. at §§ 14135a(a)(1)-(2).


[19] In the Act's original form, qualifying federal offenses were primarily limited to violent crimes, such as murder, voluntary manslaughter, and sexual abuse. But in 2004, Congress passed the Justice For All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (Oct. 30, 2004), which expanded the definition of "qualified Federal offense" to include "[a]ny felony." 42 U.S.C. § 14135a(d)(1) (the Act as amended by 118 Stat. 2260). Providing a DNA sample is an explicit condition of qualified offenders' supervised release. 18 U.S.C. § 3583(d). Refusing to submit a DNA sample under the Act is a class A misdemeanor, punishable under Title 18 of the United States Code, 42 U.S.C § 14135a(a)(5), and therefore also a breach of the supervised-release conditions, see 18 U.S.C. §§ 3563(a)(1) & 3583(d) (stating that those on probation or supervised release shall not commit an additional federal, state, or local offense).


[20] After the Attorney General, the Director of the Bureau of Prisons, or the probation office collects an offender's DNA sample, the collecting party provides each DNA sample to the Director of the Federal Bureau of Investigation (FBI). 42 U.S.C. § 14135a(b). The FBI Director then analyzes the DNA sample and includes the results in the Combined DNA Index System (CODIS), an FBI-created, national database that catalogues DNA profiles from numerous sources, including federal and state convicts, persons who have been charged in an indictment or information with a crime, DNA samples recovered from crime scenes, and from relatives of missing persons. 42 U.S.C. § 14132(a). CODIS "allows State and local forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system." H.R. Rep. 106-900(I), at 8 (2000).


[21] Once the Director uploads a DNA profile into CODIS, the profile may be disclosed only to criminal-justice agencies for law enforcement identification purposes; in judicial proceedings if otherwise admissible; to a criminal defendant for criminal-defense purposes; and for a population-statistic database for identification research and protocol-development purposes, or for quality-control purposes, if personally-identifiable information is removed. 42 U.S.C. §§ 14132(b)(3)(A)-(D). See 42 U.S.C. § 14135e(b) (stating that DNA profiles may be used only for specified purposes). Those who violate these provisions might have their access to CODIS cancelled, and the Act criminally penalizes those who disclose a DNA profile without certain authorization. 42 U.S.C. § 14132(c) (cancellation provision); 42 U.S.C. § 14135e(c) (prescribing up to a $250,000 fine and one-year imprisonment for each instance of disclosure).


[22] In addition to these restrictions, the Act is also sensitive to post-conviction proceedings: a felon's DNA information must be expunged from the system if the felon's conviction is reversed or dismissed. 42 U.S.C. § 14132(d).


[23] B. Procedural History


[24] All of the Plaintiffs were convicted of non-violent felonies. Richard Banks pleaded guilty to one count of bank fraud and was sentenced to 35 months' imprisonment and 5 years' supervised release. Mary Doyle pleaded guilty to one count of theft of government funds and was sentenced to five years' probation. Stanley Acuff pleaded guilty to one count of wire fraud and was sentenced to 16 months' imprisonment and 3 years' supervised release. Acuff committed more crimes while on supervised release- false impersonation and knowingly concealing stolen property- so the district court revoked his term of supervised release and sentenced him to 12 months' imprisonment and 2 years' supervised release. Melanie Alphin pleaded guilty to misprision of a felony, which related to her failure to report another's possession with intent to distribute methamphetamine. Alphin was sentenced to five years' probation. Lisa Bell pleaded guilty to one count of using a false social security number and was sentenced to 14 months' imprisonment and 3 years' supervised release. While on supervised release, Bell committed more crimes- false statement and false use of a social security number- so, as with Acuff, the court revoked Bell's term of supervised release and sentenced her to 12 months' and 1 day imprisonment and 23 months' supervised release.


[25] The Government requested a DNA sample from each Plaintiff, scheduling May 17, 2005, as the collection day, but they all refused to provide a sample and instead filed this lawsuit requesting declaratory relief and a permanent injunction enjoining the Government from forcing them to comply with the Act.


[26] After converting the Plaintiffs' action into a civil case, the district court, sitting en banc, subjected the Act to scrutiny under the Fourth Amendment's special-needs test and the Fourth Amendment's totality-of-the-circumstances test. See Banks v. Gonzales, 415 F. Supp. 2d 1248 (N.D. Okla. 2006). Based on precedent and the parties' briefs and oral arguments, the court held in an impressive and convincing Opinion and Order that the Act passed constitutional muster under the Fourth Amendment. It therefore granted the Government's motion to dismiss and denied the Plaintiffs' request for a permanent injunction and declaratory relief.


[27] Under the totality-of-the-circumstances test, the district court balanced the degree to which the Act interferes with the Plaintiffs' privacy interests against the degree to which profiling the Plaintiffs' DNA promotes a legitimate governmental interest. After noting that parolees, supervisees, and probationers, such as Plaintiffs, have a significantly diminished expectation of privacy, the court concluded that extracting DNA from these individuals is a minimal intrusion. On the other side of the balancing scale, the court concluded that the Government has a significant and compelling interest in identifying all felons through DNA profiling, a significant interest in ensuring that parolees comply with their release requirements and are returned to prison or otherwise punished if they fail to do so, and a significant interest in combating recidivism. In light of these significant governmental interests, and the minimal intrusions upon these convicted felons on release, the district court concluded that the Act is constitutional.


[28] In the alternative, the district court upheld the Act under a special-needs test. Following United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003), the district court found that the Act serves a special need beyond law enforcement, the desire to build a DNA database. Once again, the district court then balanced the intrusion upon non-violent felons' privacy against the Government's interest in obtaining DNA from these individuals. Describing and then balancing the same interests identified above, the court concluded that the Government's interests in profiling the DNA outweigh the felons' interests in avoiding the intrusion. The district court therefore held that the Act is constitutional under the special-needs test.


[29] Since the court concluded that the Act is constitutional under both the totality-of-the-circumstances test and the special-needs test, the court granted the Government's motion to dismiss and denied the Plaintiffs' request for declaratory relief and a permanent injunction. The Plaintiffs now appeal, and we exercise jurisdiction under 28 U.S.C. § 1291.


[30] II. DISCUSSION


[31] We review de novo the district court's decision granting the Government's motion to dismiss under Fed. R. Civ. P. 12(b)(6). Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). We accept as true the complaint's well-pleaded factual allegations and will affirm the district court's decision only if the Plaintiffs cannot prove any set of facts supporting their claim for relief. See id.


[32] A.


[33] The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV. The "ultimate touchstone of the Fourth Amendment is 'reasonableness' . . . ." Brigham City v. Stuart, 126 S.Ct. 1943, 1947 (2006).


[34] Government-forced compliance with a blood draw constitutes a search subject to the Fourth Amendment. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616 (1989). Likewise, analyzing the DNA contained within the blood sample, or even from a cheek swab, must pass Fourth Amendment scrutiny. Id. See Schlicher v. Peters, 103 F.3d 940, 942-43 (10th Cir. 1996) (stating that "the collection, analysis and storage of blood and saliva . . . is a search and seizure within the meaning of the Fourth Amendment").


[35] Although much ink has been spilled on the Fourth-Amendment question we must address in this appeal- whether the DNA Analysis Backlog Elimination Act of 2000, as amended, passes constitutional muster under the Fourth Amendment- our sister circuits have taken different analytical routes to analyzing DNA-indexing statutes. While the Second and Seventh Circuits have applied a special-needs analysis, see Green v. Berge, 354 F.3d 675 (7th Cir. 2004); Roe v. Marcotte, 193 F.3d 72 (2d Cir. 1999), the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and District of Columbia Circuits apply a reasonableness test informed by the totality of the circumstances, see United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006); Johnson v. Quander, 440 F.3d 489, 496 (D.C. Cir. 2006); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir. 2005); United States v. Kincade, 379 F.3d 813 (9th Cir. 2004); Groceman v. U.S. Dep't of Justice, 354 F.3d 411 (5th Cir. 2004); Jones v. Murray, 962 F.2d 302 (4th Cir. 1992). Despite this initial disagreement, each of these circuit courts has arrived at the same conclusion: the federal DNA Act and its State law analogues survive FourthAmendment scrutiny.


[36] Like the circuit split on which Fourth-Amendment test to apply, our own precedents are divided. In three successive opinions, this Court applied a totality- of-the-circumstances test to substantially similar DNA-indexing statutes; in each case, we ultimately concluded that the statutes did not violate the Fourth Amendment. See Shaffer v. Saffle, 148 F.3d 1180, 1181 (10th Cir. 1998) (citing Boling v. Romer, 101 F.3d 1336 (10th Cir. 1996), with approval and upholding a State DNA-indexing statute under the Fourth Amendment's totality-of-thecircumstances test); Schlicher, 103 F.3d at 943 (same); Boling, 101 F.3d at 1339-40 (applying the totality-of-the-circumstances test and concluding that a State DNA-indexing statute is constitutional).


[37] But in United States v. Kimler, 335 F.3d 1132 (10th Cir. 2003), this Court upheld a federal DNA statute under a special-needs test. The Kimler Court held that "[t]he DNA Act . . . is a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement because the desire to build a DNA database goes beyond the ordinary law enforcement need." Id. at 1146. Notably, Kimler neither explained why building a DNA database is a special need, nor applied a balancing test to determine whether this special need outweighed the defendant's right to privacy. See id. Moreover, Kimler cited Shaffer, Schlicher, and Boling- all Tenth Circuit cases that applied the totalityof-the-circumstances test to DNA-indexing statutes- for the proposition that the statute at issue was constitutional under the special-needs test.


[38] There is no apparent rationalization for Kimler's break from our prior case law. Further, thefact that our prior precedents upheld State DNA-indexing statutes, as opposed to the federal statute challenged here, does not materially change our analysis concerning which Fourth-Amendment test to apply. Nor does the fact that the Plaintiffs here are on parole, supervised release, or probation, whereas the offenders in our prior cases were prisoners. See Padgett, 401 F.3d at 1279 (observing that "[i]f the Supreme Court approves dispensing with the special needs analysis for probationers, we are persuaded that we may take a similar approach in cases involving prisoners"). Thus, while we do not eliminate the possibility that the Act satisfies the special-needs test, we follow Shaffer, Schlicher, and Boling, all decided before Kimler, by applying the totality-of-thecircumstances test here.


[39] B.


[40] 1.


[41] As noted, this Court and others have generated multiple opinions addressing federal and State DNA-indexing statutes. These authorities, however, do not expressly control the outcome here. The challenged statutes in our Shaffer, Schlicher, and Boling cases are indistinguishable in all material respects but one: the Act, as amended, requires all felons to submit a DNA sample, whereas the statutes in those cases required DNA samples only from felons who committed crimes typically solved by using DNA evidence, such as sexual assaults. We decide whether this distinction matters by applying the Fourth Amendment's totality-of-the-circumstances test.


[42] The Supreme Court has described the totality-of-the-circumstances test as one where "the reasonableness of a search is determined by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests." United States v. Knights, 534 U.S. 112, 119-20 (2001) (internal quotations omitted). In Knights, a State court sentenced the defendant to probation for a drug offense. Id. at 114. As part of the defendant's probation, he agreed to "[s]ubmit his . . . person, property, place of residence, vehicle, personal effects, to search anytime, with or without a search warrant, warrant of arrest or reasonable cause by any probation officer or law enforcement officer." Id. at 114 (alteration and omission in original). Three days after the defendant was placed on probation, the police noticed that the defendant's dispute with a local gas and electric company coincided with vandalism done to that company's power transformer and telecommunications vault. Id. Aware of the defendant's probation order and its search condition, a local detective set up surveillance at the defendant's residence, discovered evidence that the defendant had indeed vandalized the gas and electric company's equipment, and ultimately searched the defendant's residence. Id. at 115. The search revealed evidence all but definitively proving that the defendant vandalized the equipment. Id.


[43] The Supreme Court applied a reasonableness test in Knights, gauged by the totality of the circumstances, to determine whether the government violated the Fourth Amendment by searching the defendant's residence. Id. at 118. The Court began by noting that the defendant's status as a probationer subject to a search condition informed both sides of its calculation. Id. at 119. Although the probation condition served a notice function- making the defendant aware that he was subject to a suspicionless search- the defendant's status as a probationer also carried with it intrinsic weight in the government's favor. Specifically, the Court observed that


[44] [i]nherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled. . . . Just as other punishments for criminal convictions curtail an offender's freedoms, a court granting probation may impose reasonable conditions that deprive the offender of some freedoms enjoyed by law-abiding citizens.


[45] Id. (internal quotations and citation omitted).


[46] Adding to the defendant's diminished privacy expectations, the Court cited Department of Justice statistics describing probationers' recidivism rate as significantly higher than the general crime rate. Id. at 120 (citing U.S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986-89, pp. 1, 6 (Feb. 1992); U.S. Dept. of Justice Statistics, Probation and Parole Violators in State Prison, 1991, p. 3 (Aug. 1995)). Equally troubling, the Court found that probationers have an even greater incentive than the ordinary criminal to conceal their criminal activities and dispose of incriminating evidence because they are aware that they may be subject to supervision and the attending consequences of violating their probation conditions. Id. Thus, "[the State's] interest in apprehending violators of the criminal law, thereby protecting potential victims of criminal enterprise, may therefore justifiably focus on probationers in a way that it does not on the ordinary citizen." Id. at 121. With this framework in mind, the Court upheld the search in Knights. Id. at 121-22. See generally Samson v. California, 126 S.Ct. 2193, 2196 (2006) (holding that a suspicionless search of a California parolee, authorized by a California statute, did not violate the Fourth Amendment).


[47] Applying the Knights totality-of-the-circumstances test here, we must balance the degree to which DNA profiling intrudes upon the Plaintiffs' privacy- keeping in mind that these are non-violent felons on parole, supervised release, or probation- against the significance of the governmental interests served by DNA profiling.


[48] We first performed this balancing in Boling, where the plaintiff challenged a Colorado statute requiring inmates to provide the State with a DNA sample before their release on parole if they had been convicted of an offense involving a sexual assault. Boling, 101 F.3d at 1338. Although Boling relied in part on "the specific relevance of DNA evidence to prove sexual assaults," id. at 1340, this court seemed especially persuaded by the similar uses to which both DNA and fingerprints may be put- despite the offender's underlying conviction. For example, Boling quoted at length the Fourth Circuit's exploration of the analogy between fingerprinting and DNA profiling:


[49] [W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes. This becomes readily apparent when we consider the universal approbation of "booking" procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification. Thus a tax evader is fingerprinted just the same as is a burglar.


[50] Boling, 101 F.3d at 1339 (quoting Jones, 962 F.2d at 306-07) (omissions and alterations in original).


[51] The Boling decision also relied on similar language from the Ninth Circuit's opinion in Rise: "'[T]he information derived from the blood sample is substantially the same as that derived from fingerprinting- an identifying marker unique to the individual from whom that information is derived.'" Id. at 1340 (quoting Rise v. Oregon, 59 F.3d 1556, 1559 (9th Cir. 1995)). Thus, Boling upheld the statute because the inmate had diminished privacy rights, a blood test or cheek swab imposes only a minimal intrusion, and the government has a legitimate interest in solving past and future crimes by using DNA evidence in substantially the same manner as fingerprint evidence. Id.


[52] After Boling, this Court twice had the opportunity to address the constitutionality of a State DNA-indexing statute. See Schlicher, 103 F.3d at 942; Shaffer, 148 F.3d at 1181. In both cases, several State prisoners challenged State laws requiring them to provide a DNA sample because they had been convicted of certain crimes, such as sex-related crimes, violent crimes, or other crimes in which authorities collect biological evidence. Schlicher, 103 F.3d 941; Shaffer, 148 F.3d at 1181. Neither panel found it necessary to look beyond Boling: "We see no need to reiterate here that which was well said in Boling . . . [so we affirm] the district court's judgment." Schlicher, 103 F.3d at 943. See also Shaffer, 148 F.3d at 1181.


[53] Contrasting Knights and these Tenth Circuit precedents underscores an important distinction: the Plaintiffs here have a qualitatively higher privacy expectation than the inmates in our prior cases addressing DNA-indexing statutes. And as the Seventh Circuit's Judge Easterbrook recognized, courts addressing DNA-indexing statutes must be aware of the privacy continuum that applies to offenders moving through the criminal justice system:


[54] Prisoners make up the first category. Their privacy interests [implicated by DNA profiling] are extinguished by the judgments placing them in custody. . . .


[55] Persons on conditional release- parole, probation, supervised release, and the like- are the second category. They have acquired additional liberty but remain subject to substantial controls. . . . DNA collection is less invasive than a search of one's home, and as information from DNA may be very helpful in solving crimes . . . there is no problem under the Fourth Amendment.


[56] Felons whose terms have expired are the third category. Established criminality may be the basis of legal obligations that differ from those of the general population. . . . Collecting felons' DNA, like collecting their fingerprints, handwriting exemplars, and other information that may help solve future crimes (and thus improve the deterrent force of the criminal sanction) is rationally related to the criminal conviction. . . .


[57] Those who have never been convicted of a felony are the last distinct category. What is "reasonable" under the fourth amendment for a person on conditional release, or a felon, may be unreasonable for the general population.


[58] Green, 354 F.3d at 679-81 (Easterbrook, J., concurring).


[59] Although the Plaintiffs are not currently incarcerated, they fall clearly within Judge Easterbrook's second category, convicted felons on release "[who] are not entitled to the full panoply of rights and protections possessed by the general public." Kincade, 379 F.3d at 833; see Green, 354 F.3d at 680. Indeed, the Supreme Court has noted that "[a] broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions . . . of those who have suffered a lawful conviction," McKune v. Lile, 536 U.S. 24, 36 (2002), and that "conditional releasees may claim 'only . . . conditional liberty properly dependent on observance of special parole restrictions' that extend 'substantially beyond the ordinary restrictions imposed by law on an individual citizen.'" Kincade, 379 F.3d at 834 (citing Morrissey v. Brewer, 408 U.S. 471, 478, 480 (1972); Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365 (1998)). Similarly, the Supreme Court in Knights informed both sides of its reasonableness determination with the defendant's status as a convicted felon serving on probation. Knights, 534 U.S. at 119.


[60] This reduced privacy expectation proved important in United States v. Conley, where the Sixth Circuit upheld the same Act at issue here against a challenge by an individual convicted of bank fraud. 453 F.3d 674, 674, 680-81 (6th Cir. 2006). In Conley, the defendant refused to comply with the Act's requirement that she submit a DNA sample as a condition of her supervised release. Id. at 675. She argued, inter alia, that the Act violated the Fourth Amendment because the government's interest in collecting DNA from a white-collar criminal like her did not outweigh her privacy interest. Id. at 678. She so concluded because the rate of recidivism is much lower in white-collar criminals than violent criminals, and collecting her DNA would not exonerate her of crime. Id. Applying both a special-needs test and a totality-of-the-circumstances test, the Sixth Circuit rejected the defendant's arguments. The court concluded that the government's interest in properly identifying convicted felons outweighed the defendant's "sharply reduced expectation of privacy, and the minimal intrusion required in taking a blood sample for DNA analysis for identification purposes only . . . ." Id. at 680.


[61] Likewise, the Eleventh Circuit has upheld both State and federal DNAindexing statutes because the "legitimate interest in creating a permanent identification record of convicted felons for law enforcement purposes outweighs the minor intrusion involved in taking prisoners' saliva samples and storing their DNA profiles, given prisoners' reduced expectation of privacy in their identities . . . ." Padgett, 401 F.3d at 1280; see also United States v. Castillo-Lagos, 147 Fed. Appx. 71, 75 (11th Cir. 2005) (unpublished) (upholding the federal DNA- indexing statute against a challenge by a non-violent felon on probation).


[62] 2.


[63] With these principles in mind, we now determine the reasonableness of the challenged intrusion by balancing the degree to which DNA profiling intrudes upon the Plaintiffs' privacy against the significance of the Government's interest in profiling their DNA.


[64] Courts have recognized several distinct governmental interests supporting the need to profile a convicted felon's DNA. First, the Government may use DNA evidence to identify a qualified federal offender when independent evidence demonstrates that a crime has been committed. See Banks, 415 F. Supp. 2d at 1263-64. It is well settled that once an individual has been convicted, "his [or her] identity bec[omes] a matter of compelling interest to the government . . . and [the individual] can no longer assert a privacy interest in [certain marks of identification]." Sczubelek, 402 F.3d at 184. Given the myriad ways in which criminals attempt to conceal their identities- whether through disguise, changed names, or changed physical features- traditional methods of identifying suspects are not always adequate. Having a previously submitted DNA profile alleviates this problem. As far as scientists have determined, DNA is the most reliable means of identifying individuals. There is an infinitesimal chance that any two individuals will share the same DNA profile unless they are identical twins. Thus, a DNA match between two samples excludes the rest of the population from suspicion to a near 100% certainty.


[65] Perhaps most important, DNA can also help solve crimes when no other evidence points to a particular suspect. Numerous courts addressing DNAindexing statutes have explained that "the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes." Boling, 101 F.3d at 1339 (citing Jones, 962 F.2d at 306). See, e.g., Kincade, 379 F.3d at 838. As noted, DNA is a dramatically effective tool for matching suspects to DNA left at a crime scene:


[66] Even a suspect with altered physical features cannot escape the match that his DNA might make with a sample contained in a DNA bank, or left at the scene of a crime within samples of blood, skin, semen or hair follicles. The governmental justification for this form of identification, therefore, relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.


[67] Sczubelek, 402 F.3d at 185-86 (citing Jones, 962 F.2d at 307).


[68] The Government's interest in constructing a DNA database to solve crimes partially aligns with the Plaintiffs' interests: a DNA database would help exonerate innocent defendants and convicts. While a criminal defendant may submit his or her own DNA sample for comparison with the sample discovered at a crime scene, a negative result would not necessarily exculpate the defendant. If other evidence ties the defendant to a crime, even though the defendant is innocent, the government would be free to argue that two perpetrators committed the crime. The government could easily explain the evidence: the DNA came from the defendant's accomplice and the other evidence points to the defendant's participation. Because the negative DNA test does not eliminate this possibility, and because the other evidence will tie the defendant to the crime, a jury might convict the defendant despite his actual innocence and a negative DNA-test result.


[69] With a comprehensive database like CODIS, however, the DNA discovered from the crime scene might match with a previously unsuspected individual, whom the innocent defendant might be able to show acted alone. The defendant will at least have a better opportunity to create reasonable doubt about whether the government indicted the guilty person. See Akhil Reed Amar, A Search for Justice in Our Genes, N.Y. Times, June 7, 2002, at A33 (describing this crimesolving benefit). The Plaintiffs' and the Government's interest in exculpating the innocent appears even more compelling given the frequency of criminal conspiracies involving complex, non-violent crimes, increasing the likelihood that the Government will raise a dual-perpetrator theory despite a negative DNA-test result.


[70] Finally, collecting DNA combats recidivism by solving crimes and removing criminals from the streets and by deterring future criminal acts by felons on release, presumably because the felons know that they are more easily identifiable when the authorities have their DNA. See Rise, 59 F.3d at 1562 (stating that the DNA-indexing statute furthers "the public's incontestable interest in preventing recidivism"). The Supreme Court has repeatedly recognized that rates of re-arrest among parolees and probationers are significantly higher than the general crime rate. See Knights, 534 U.S. at 120; Griffin v. Wisconsin, 483 U.S. 868, 880 (1987) (stating that probationers are "more likely than the ordinary citizen to violate the law"). This data, in turn, generates the compelling interest in reducing offenders' recidivism rates. See Ewing v. Califorina, 538 U.S. 11, 26 (2003) (stating that "[r]ecidivism is a serious public safety concern . . . throughout the Nation"). As with solving crimes and identifying suspects, collecting a DNA sample furthers this substantial governmental interest.


[71] While the Government puts forth substantial interests justifying the challenged intrusion, most courts have not given the Plaintiffs' claimed interests more than minimal weight. For example, blood and saliva tests impose minimal intrusions. See Skinner, 489 U.S. at 625 (stating that blood tests are commonplace, safe, and "do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity"). Indeed, our Boling decision cited favorably a Ninth Circuit decision, Rise, 59 F.3d at 1560, concluding that "although obtaining DNA information requires drawing blood as opposed to 'inking and rolling a person's fingertips,' that difference does not render the intrusion on Fourth Amendment interests more than minimal." Boling, 101 F.3d at 1340 (citation omitted). Moreover, the Plaintiffs "can no longer assert a privacy interest in [DNA as a] means of identification" because their convictions made their identities a matter of compelling interest to the government. Sczubelek, 402 F.3d at 184.


[72] The Plaintiffs attempt to overcome the minimal weight on their side of the scale by criticizing the link between the Government's stated interests and the Plaintiffs' status as non-violent felons.


[73] First, the Plaintiffs dispute DNA's utility in solving non-violent crimes. Aplt. Br. at 11-12. For example, the Plaintiffs note that every DNA-based exoneration (cases where the incarcerated individual was exonerated using DNA evidence) between 1989 and 2003 involved crimes of murder and rape. Id. at 13-14 (citing Gross, et al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 529 (2005)). Since the Government is unlikely to solve past or future crimes using the Plaintiffs' DNA, they conclude that the Government lacks a significant interest in collecting their DNA to solve crimes. Id. at 12.


[74] To be sure, DNA might prove less valuable in solving non-violent crimes than violent crimes, making the Government's interest in DNA testing more compelling with respect to felons convicted of violent crimes. It is important to realize, however, that DNA can be extracted from hair, saliva, and numerous other parts of our bodies that even a non-violent criminal could leave behind on a piece of inculpatory evidence. See William C. Thompson et al., Evaluating Forensic DNA Evidence (pt. 2), The Champion, May 2003, at 25 (citing studies documenting the presence of identifiable quantities of human DNA on doorknobs, coffee cups, and other common items); Amar, supra, at A33 (stating that "[i]f [DNA is] linked to birth certificates and drivers' licenses, the database could foil various kinds of identity fraud, benefiting [sic] both law enforcement and crime victims").


[75] We also note that the exoneration data that the Plaintiffs cite reflect exonerations in a period when the federal DNA-indexing statute did not permit the Government to extract DNA samples from non-violent felons, potentially skewing the data in favor of the Plaintiffs' argument. Nor does the data indicate how frequently the database had been used in attempts to exonerate non-violent felons, who are likely serving shorter prison terms than violent felons and thus less likely to receive preferential access to limited DNA-testing resources until laboratories can eliminate the backlog, which the Act was designed to accomplish. See, e.g., Bill Dedman, A Rape Defendant With No Identity But A DNA Profile, N.Y. Times, Oct. 7, 1999, at A1, A16 (stating that as of 1999, which is during the period studied by the Plaintiffs' authority, approximately 180,000 boxes of evidence, known as rape kits, sat unexamined on shelves in police departments across the nation and that New York was trying to eliminate its own backlog of 12,000); U.S. Department of Justice, Bureau of Justice Statistics, Survey of DNA Crime Laboratories, 1998 (2000) (stating that as of December 1997, also within the period studied by the Plaintiffs' authority, 69% of publicly operated forensic crime labs across the Nation reported a DNA-analysis backlog totaling 6,800 subject cases and 287,000 convicted offender samples).


[76] Ultimately, following the Plaintiffs' logic to its conclusion would repudiate our recognition in Boling that there is "universal approbation of 'booking' procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect's crime will involve the use of fingerprint identification." Boling, 101 F.3d at 1339 (citing Jones, 962 F.2d at 306-07)). Thus, we observed that "a tax evader is fingerprinted just the same as is a burglar." Id. (citing Jones, 962 F.2d at 306-07). Put otherwise, the effectiveness of the Government's plan need not be high where the objective is significant and the privacy intrusion is minimal. See Jones, 962 F.2d at 308 (citing Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (validating the state's use of roadblocks to discover drunk drivers despite resulting arrest rate of only 1.5%); Bell v. Wolfish, 441 U.S. 520, 559 (1979) (validating body-cavity search of pretrial detainees despite only one instance in which an inmate was discovered attempting to smuggle contraband")).


[77] Moreover, the Government's interest in solving crimes must be combined with the Government's interest in accurately identifying suspects who might try to conceal their identities in a variety of ways. While fingerprint evidence might often be sufficient, we have always recognized the Government's compelling need to accurately identify offenders. And on this score, the Plaintiffs' status as nonviolent felons does not undermine DNA profiling as an effective way to identify them.


[78] The Plaintiffs also argue that "resting on assumptions that non-violent offenders present a substantial recidivism problem which DNA will address is mere fiction . . . ." Aplt. Br. at 14. The essence of this argument is that while non-violent offenders might have higher recidivism rates than the general population, DNA will not solve this problem because we cannot assume that nonviolent offenders will commit crimes typically solved by using DNA evidence. See id. at 13-15.


[79] The Plaintiffs correctly concede that non-violent offenders have higher recidivism rates than the general population. Interestingly, the Supreme Court recently explained that "released property offenders . . . [even] had higher recidivism rates than those released after committing violent, drug, or publicorder offenses." Ewing, 538 U.S. at 26. The same report that the Supreme Court relied on also indicated that 69.1% of non-violent felons were re-arrested within three years of release, of which 19.9% were re-arrested for violent offenses, 33.7% were re-arrested for property offenses, 32.6 % were re-arrested for drug offenses, and 28.6% were re-arrested for public-order offenses. U.S. Dept. of Justice, Bureau of Justice Statistics, Profile of Nonviolent Offenders Exiting State Prisons (2004), at http://www.ojp.usdoj.gov/bjs/pub/pdf/pnoesp.pdf. Likewise, the Sixth Circuit cited more recent data demonstrating that "the rate of recidivism in white-collar criminals is very close to the rate of recidivism in firearm offenders, and is only slightly lower than felons convicted of robbery." Conley, 453 F.3d at 679 (citing Measuring Recidivism: The Criminal History Computations of the Federal Sentencing Guidelines, U.S.S.C., Exh. 11 (May 2004)).


[80] These statistics reveal that not only do non-violent offenders present nearly the same recidivism problem as violent offenders, but they are committing crimes that DNA might help solve (for example, violent offenses, drug offenses, and property offenses). Moreover, although recidivism rates vary with factors like the offender's age and type of conviction, the high likelihood that non-violent offenders will re-offend- and therefore, as the Supreme Court recognized in Knights, be put in the position to conceal their crimes and identities from the authorities- underscores the Government's interest in obtaining the most accurate identification information it can from these individuals. Again, the Plaintiffs' status as non-violent offenders certainly reduces the likelihood that their DNA will help solve past or future crimes. But the Government's interest here is far more real than the "fiction" the Plaintiffs' describe.


[81] Finally, the Plaintiffs' core concern appears to be that DNA can reveal a breathtaking amount of private information, such as probabilistic evidence about the contributor's genetic defects, predispositions to disease, and perhaps even sexual orientation. See Aplt. Br. at 11. The fact that the party extracting a DNA sample profiles only the Plaintiffs' junk DNA (DNA thought not to have a function) might minimize this concern, as these junk DNA samples "were purposely selected because they are not associated with any known physical or medical characteristics." H.R. Rep. No. 106-900(I) at * 27. But see Kincade, 379 F.3d at 819 n.6 (citing W. Wayt Gibbs, The Unseen Genome: Gems Among the Junk, Sci. Am., Nov. 2003, at 29 (questioning the conclusion that junk DNA does not contain genetic-programming material)).


[82] Regardless, the Act imposes stringent restrictions on the entire collection and profiling process. For example, the Act eliminates the Government's discretion as to the offenders from whom it may collect a DNA sample. As noted, the Act clearly defines the offenders who must comply with the Act. See 42 U.S.C. § 14135a(a)(1)-(2). The Act also expressly limits the Government's right to use a DNA sample: it may be used only (1) for law enforcement identification purposes; (2) in judicial proceedings if otherwise admissible; (3) for criminaldefense purposes; and (4) for a population-statistic database for identification research, or for quality-control purposes, if personally-identifiable information is removed. 42 U.S.C. § 14135e(b) (stating that the test results may be used only for specified purposes); 42 U.S.C. § 14132(b)(3) (listing the specified purposes). Those who violate these provisions might have their access to CODIS cancelled, and the Act criminally penalizes those who disclose a DNA profile without certain authorization. 42 U.S.C. § 14132(c) (cancellation provision); 42 U.S.C. § 14135e(c) (prescribing up to a $250,000 fine and one year imprisonment for each instance of disclosure). The Act also states that the DNA information must be expunged if the felon's conviction is reversed or dismissed. 42 U.S.C. § 14132(d).


[83] These restrictions allow the Government to use an offender's DNA profile in substantially the same way that the Government uses fingerprint and photographic evidence- to identify offenders, to solve past and future crimes, and to combat recidivism. Only here, DNA provides a more advanced and accurate means to accomplish these worthy governmental ends. In other words, "the DNA profile derived from the defendant's blood sample establishes only a record of the defendant's identity- otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense." Kincade, 379 F.3d at 837.


[84] To be sure, it is possible to put DNA evidence to a more sophisticated and intrusive use. We therefore credit the seriousness of the Plaintiffs' concerns. But the Plaintiffs' "assertion that the state might misuse the information derived from [their] DNA samples, when [they] make[] no allegations of any specific misuse, fails to state a justiciable controversy." Boling, 101 F.3d at 1341. See also Sharon Begley, Bill Seeking to Ban DNA Discrimination Isn't Really Necessary, Wall St. J., Feb. 6, 2004, at B1 (stating that a recent study found that "states with [DNA anti-discrimination] laws had no fewer cases of genetic discrimination than states without them . . . [because] almost no genetic discrimination is occurring"); Patricia Thomas, DNA as Data, Harvard Magazine, Jan.-Feb. 2004, at 48 (describing a genetics professor at Harvard Medical School as saying that genetic discrimination will be pointless in the long run because every individual's genome will reveal vulnerability to some health problem). As the Ninth Circuit recognized in Kincade, "our job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented. In our system of government, courts base decisions . . . on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assessable record." Kincade, 379 F.3d at 838 (footnote and citation omitted). There is no evidence that the Government will subject the Plaintiffs to a greater privacy invasion than extracting their DNA sample for the limited statutory purposes, which serve the Government's substantial interest in identifying offenders, solving crimes, and reducing recidivism rates.


[85] We also reject the speculation that allowing the Government to profile convicted felons' DNA opens the door to DNA profiling of every citizen who at some point has a diminished expectation of privacy. This alarmism ignores that "[a] broad range of choices that might infringe constitutional rights in a free society fall within the expected conditions . . . of those who have suffered a lawful conviction," McKune, 536 U.S. at 36.


[86] C.


[87] Upon our balancing the degree to which DNA profiling intrudes upon the Plaintiffs' privacy against the significance of the Government's interests in profiling their DNA, the balance weighs in the Government's favor.


[88] On one side of the scale, the Government has legitimate interests in accurately identifying offenders, solving past and future crimes, and combating recidivism. We recognize that the Government might not solve as many past and future crimes using DNA profiles of non-violent offenders- a fact that certainly reduces the Government's interest in collecting DNA from these offenders. But the probability that the Government will use non-violent felons' DNA to solve crimes is still notable given that DNA can be extracted from numerous bodily sources that a non-violent felon could leave behind at the scene of a non-violent crime, drug crime, property crime, or violent crime- crimes that non-violent felons commit with much greater frequency than the general population. This fact also underscores the Government's interest in combating non-violent felons' recidivism rates. DNA serves as an identification tool that promotes accuracy in these important endeavors.


[89] Moreover, we would ignore this Court's limited role if we minimized these significant governmental interests after envisioning a non-existent parade of horribles sanctioned by a hypothetical law. See Boling, 101 F.3d at 1341.


[90] On the other side of the scale, felons on conditional release have lesser privacy interests than do ordinary citizens, and the privacy invasion caused by blood and saliva draws is relatively small. The next chronological step in the process, creating the DNA profile, currently involves a minimal intrusion because the Act severely restricts the uses to which DNA profiles may be put:


[91] To be sure, genetic fingerprints differ somewhat from their metacarpal brethren, and future technological advances in DNA testing (coupled with possible expansions of the DNA Act's scope) may empower the Government to conduct wide-ranging "DNA dragnets" that raise justifiable citations to George Orwell. Today, however, the DNA Act applies only to felons, and CODIS operates much like an old-fashioned fingerprint database (albeit more efficiently).


[92] Johnson, 440 F.3d at 499 (citations omitted).


[93] Given the Plaintiffs' diminished privacy rights, the minimal intrusion involved in obtaining a DNA sample, and the Act's restrictive provisions, and given the legitimate governmental interests in accurately identifying offenders, solving past and future crimes, and combating recidivism, we hold that collecting and profiling the Plaintiffs' DNA, as authorized and regulated by the DNA Analysis Backlog Elimination Act of 2000, as amended, does not violate the Fourth Amendment. In doing so, we align ourselves with the overwhelming weight of authority on this issue. See Word v. U.S. Probation Dept., 439 F.Supp.2d 497, 506 n.2 (D. S.C. 2006) (stating that at least 24 States have passed laws requiring all felons to provide a DNA sample and that, to the court's knowledge, no federal court or state appellate court had declared the statutes unconstitutional); Kraklio, 451 F.3d at 924 (collecting cases and stating that every circuit to address a DNA-indexing statute has upheld the statute as constitutional under the Fourth Amendment).


[94] III.


[95] The district court did not err by granting the Government's motion to dismiss and denying the Plaintiffs' motion for declaratory and injunctive relief. Its decision is therefore


[96] AFFIRMED.



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Opinion Footnotes

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[97] *fn1 DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135 (Dec. 19, 2000), as amended by USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001), as amended by Justice For All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (Oct. 30, 2004) ("the Act").

United States v. Gonzalez, No. 06-3818 (8th Cir. 07/30/2007)

[1] UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT


[2] No. 06-3818


[3]


[4] July 30, 2007


[5] UNITED STATES OF AMERICA, PLAINTIFF - APPELLEE,
v.
GUILLERMO C. GONZALEZ, DEFENDANT - APPELLANT.


[6] Appeal from the United States District Court for the District of Minnesota.


[7] The opinion of the court was delivered by: Bye, Circuit Judge.


[8] Submitted: June 13, 2007


[9] Before BYE, RILEY, and BENTON, Circuit Judges.


[10] Guillermo C. Gonzalez was convicted of escape under 18 U.S.C. § 751 twenty years after he walked away from a prison camp in Duluth, Minnesota, and fled to the Dominican Republic. On appeal, Gonzalez challenges the district court's*fn1 refusal to submit three proposed instructions to the jury regarding the application of the statute of limitations under 18 U.S.C. § 3282. We affirm.


[11] Gonzalez, born a Dominican citizen, became a naturalized United States citizen between 1961 and 1962. In 1985, he was convicted of bank larceny in the Southern District of New York. Prior to his conviction, while out on bond, he impermissibly returned to the Dominican Republic. He was re-arrested and ultimately sentenced to eight years of imprisonment-three years for his failure to appear and five years for the underlying offense. On October 17, 1985, he began his sentence at the Federal Correctional Institution in Danbury, Connecticut, and on June 1, 1986, was transferred to the Federal Prison Camp in Duluth, Minnesota. On June 27, 1985, after learning his mother was ill, he walked away from the camp and fled to the Dominican Republic.


[12] Gonzalez testified, once back in the Dominican Republic, he contacted his attorney, Morel Cerda. He claims Cerda "notified the American Embassy that [he] was in the Dominican Republic, and that [he] wanted to have [his] case heard in the Dominican Court," because he had "lost all faith in the American justice system." According to Gonzalez, the embassy arranged a meeting between Cerda and two unnamed FBI agents at his attorney's office. While not present at the meeting, Gonzalez testified he believed, after talking with Cerda about the meeting, he would not be arrested so long as he stayed in the Dominican Republic.


[13] Over the next twenty years, Gonzalez, a Vietnam War veteran, returned periodically to the United States to receive medical treatment at Veterans Administration hospitals. During those trips, he used his name and naturalization papers to cross the border into the United States. For a short period of time, he was in Atlanta, Georgia, to receive medical treatment. In Atlanta, he obtained a job using his name and Social Security number. In 2005, upon returning to the Dominican Republic, he went to the American Embassy to enroll his children as United States citizens. He was asked to return multiple times to fill out forms. During his final visit to the embassy on November 2, 2005, nearly twenty years after his escape from federal custody, he was arrested.


[14] On November 10, 2005, Gonzalez was charged with escape in violation of 18 U.S.C. § 751. At trial, he sought three jury instructions supporting a statute of limitations defense. The district court rejected these instructions, concluding Gonzalez had submitted insufficient factual support for the defense. The jury returned a guilty verdict, and on October 30, 2006, he was sentenced to one year and one day imprisonment, to be served consecutively with the remainder of his previously imposed sentences. On appeal, he argues the district court erred by failing to instruct the jury on the scope of escape and the application of the five-year statute of limitations under 18 U.S.C. § 3282.


[15] II.


[16] "Whether there is sufficient evidence to support a decision to submit an instruction to the jury is a question of law to be determined de novo by the court." United States v. Gamboa, 439 F.3d 796, 816 (8th Cir. 2006). "[T]he trial court has broad discretion in choosing the form and language of jury instructions." United States v. Westbrook, 896 F.2d 330, 337 (8th Cir. 1990). A defendant, however, "has a right to have an instruction read reflecting his or her theory of the case, provided that the request is made in time and that the instruction is supported by the evidence and correctly states the law." Id. When an instruction concerns an available defense, the defendant must show "an underlying evidentiary foundation as to each element of the defense, regardless of how weak, inconsistent or dubious the evidence on a given point may seem." United States v. Kabat, 797 F.2d 580, 590-91 (8th Cir. 1986) (internal quotation marks omitted). "We have never held, however, that a defense must be submitted to the jury even when it cannot be said that a reasonable person might conclude the evidence supports the defendant's position." Id. at 591 (internal quotations marks omitted).


[17] Gonzalez argues, based on the evidence presented at trial, he was entitled to have the jury instructed regarding the statute of limitations. We disagree. This case presents an issue of first impression for the court. We have never before determined what constitutes sufficient evidence to support a statute of limitations instruction in an escape case. Not surprisingly, there is very little case law on the crime of escape. This is likely because, to prove a violation of 18 U.S.C. § 751(a), the government need only show "an escapee knew his actions would result in his leaving physical confinement without permission." United States v. Bailey, 444 U.S. 394, 408 (1980). There is even less case law regarding potential affirmative defenses to escape.*fn2 As for the statute of limitations, we have found no cases addressing the application of the five-year statute of limitations under 18 U.S.C. § 3282 in escape cases. This is also unsurprising as Congress has specifically indicated: "No statute of limitations shall extend to any person fleeing from justice." 18 U.S.C. § 3290; see also Bailey, 444 U.S. at 414 n.10 (citing § 3290 and noting "[b]ecause an escaped prisoner is, by definition, a fugitive from justice, the statute of limitations normally applicable to federal offenses would be tolled while he remained at large"). It is difficult to envision a factual scenario where an escapee is not, as a matter of law, fleeing from justice. For the reasons discussed below, even if an escapee could assert such a defense, Gonzalez failed to submit sufficient evidence at trial to support the defense.


[18] Typically, "[a]n offense is committed when it is completed, that is, when each element of that offense has occurred." United States v. Yashar, 166 F.3d 873, 875 (7th Cir. 1999) (internal citation omitted). There is a recognized exception to this rule for so-called continuing offenses. Id. "For those crimes, the statute of limitations does not begin to run when all elements are first present, but rather begins when the offense expires." Id. at 875-76. The Supreme Court in Bailey unequivocally defined escape as a continuing offense:


[19] [W]e think it clear beyond peradventure that escape from federal custody as defined in [18 U.S.C.] § 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for his initial departure. Given the continuing threat to society posed by an escaped prisoner, the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.


[20] Id. at 413. The Bailey Court went on to dictate "the statute of limitations is tolled for the period that the escapee remains at large." Id. at 414. See also United States v. Elliott, 467 F.3d 688, 690 (7th Cir. 2006) ("Likewise the crime of escape, complete when the prisoner leaves custody, continues until he turns himself in or is nabbed.").


[21] Here, Gonzalez argues he presented enough evidence to support his proposed jury instructions on the statute of limitations. We disagree. Although Bailey concerns a defendant's assertion of a necessity or duress defense rather than a statute of limitations defense, it is instructive. The Bailey Court explicitly included the failure to return to custody as part of the escape offense, id. at 413, and noted the statute of limitations is tolled while an escapee "remains at large." Id. at 414. It would follow that to end the crime of escape and trigger the statute of limitations, an escapee must return to custody, or, at the very least, must make a bona fide attempt to surrender.*fn3 See United States v. Gonsalves, 675 F.2d 1050, 1055 (9th Cir. 1982) (holding the statute of limitations period under 18 U.S.C. § 3282 is not tolled when a fugitive "is making a good faith effort to surrender").


[22] At trial, Gonzalez testified, after he escaped and fled to the Dominican Republic, his attorney notified the American Embassy about his presence in the Dominican Republic, and further met with two unnamed FBI agents who allegedly told the attorney that Gonzalez would not be arrested so long as he remained in the Dominican Republic. Any issues of hearsay aside, we cannot conclude this constitutes a bona fide attempt to surrender. Even if we assume Gonzalez's testimony is true, it establishes only that he contacted United States officials through an intermediary. There is no evidence he personally met with officials to arrange his surrender. Because he never presented himself to officials, he was never at any real risk of recapture. One wonders what his response would have been had the FBI agents directed him, via Cerda, to report to the American Embassy for extradition. Furthermore, the Bailey Court cautioned "[v]ague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct" are insufficient to support a finding the defendant made a bona fide effort to surrender. Bailey, 444 U.S. at 415. The testimony presented here seems precisely of the type the Bailey Court cautioned against.


[23] Gonzalez also claims his several trips into United States to receive medical treatment, because he presented his identification documents to border officials, also constitute bona fide attempts to return to custody sufficient to trigger the statute of limitations. We disagree and hold such trips are insufficient to constitute attempts to surrender. There is no evidence he told border officials he was on the lam. In fact, there is no evidence he told anyone he encountered in the United States about his status. By his testimony, he engaged in no affirmative conduct other than presenting his passport and papers to border officials. While Gonzalez successfully entered the United States without arrest does not indicate he was attempting to surrender or had any intent to return to federal custody.


[24] On these facts, we conclude Gonzalez did not return to custody or make a bona fide attempt to surrender. He presented no evidence he terminated his escape, thus triggering the statute of limitations. As such, the district court was under no obligation to submit to the jury his proposed instructions on the statute of limitations.


[25] III.


[26] For the foregoing reasons, we affirm the district court.



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Opinion Footnotes

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[27] *fn1 The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.


[28] *fn2 In Bailey, although the Supreme Court acknowledged an escapee might assert a duress or necessity defense to escape, it also held this defense requires "a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity [loses] its coercive force." Bailey, 444 U.S. at 415.


[29] *fn3 Gonzalez attempts to analogize the crime of escape with the continuing crime of conspiracy. We have held the crime of conspiracy expires, and the statute of limitations is triggered, if and when the conspirator withdraws from the conspiracy. United States v. Grimmett, 236 F.3d 452, 453 (8th Cir. 2001). Even if we accept Gonzalez's analogy, however, his conduct does not meet the high standard for withdrawal. We have held withdrawal from conspiracy requires distinct affirmative action to defeat the conspiracy. Id. at 456. Here, Gonzalez did not affirmatively act to terminate or defeat his escape. Unlike the conspirator who ostracizes her former compatriots, goes to law enforcement, and fully confesses and cooperates, Gonzalez never surrendered or put himself at risk of recapture.


US Supreme Court certiorari denied by Gonzalez v. United States, 128 S. Ct. 685, 169 L. Ed. 2d 536 (U.S., Nov. 26, 2007).

[U] Jackman v. Smith, 190 Fed.Appx. 108 (3d Cir. 08/03/2006)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] No. 05-4438


[3] 190 Fed.Appx. 108


[4] August 3, 2006


[5] DONALD G. JACKMAN, JR., APPELLANT
v.
PHILIP SMITH; JOHN SHARP; BRADLY SWIM; DANIAL POWERS; WILLIAM CRAIG; WILLIAM PARKS; KENNETH WERSTAK; G. LEON; DANIAL L. TOFT; MICHAEL REINER; MAGARET E. PICKING; JASON WICK; JOSEPH C. LUND, SR.; MARK MURRAY; LOUIS J. WEIRS; KEVIN MCCLINSEY; KATHY KLONTZ; ALBERT FRANCIS WESSEL; DOUGLAS SMITHER; PA STATE TROOPER SHAFER; PA STATE TROOPER MICHAEL; CHIEF JUDGE MAURICE B. COHILL, JR.; SUE HAGGERTY; LAWSON BURNSTEIN, M.D. P.C.; TONY KELLER; SHERYLE L. LONG; EFREM M. GRAIL; MARKETA SIMS; CAROLE MCMILLEN; MARK BOWMAN; ANDREW WEIGAND; DONNA WEIGAND; PAT SARNESE; MRS. SARNESE; JOHN E. SHEA; JOHN P. JOYCE; DENNIS M. LORMEL; THOMAS G. NOSCHESE; JEFFREY B. KILLEEN; KEVIN P. DEEGAN; LARRY S. KLUMB; SEAN S. BURNS; RALPH W. BRUMLEY; NORMAN R. MIHM; EDWARD V. MATUNE; RALPH W. KUSH; WILLIAM PARKS; STEVEN N. BIELICH; DANIAL G. NEWMAN; MICHAEL E. ALBERT; MICHAEL J. MCKEOWN; WILLIAM L. ALCORN, JR.; BRUCE T. RUPERT; ROBERT D. BERINGER


[6] On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Civ. No. 05-cv-00215E) District Judge: Honorable Maurice B. Cohill, Jr.


[7] Per curiam.


[8] NOT PRECEDENTIAL


[9] Submitted Under Third Circuit LAR 34.1(a) July 20, 2006


[10] Before: BARRY, CHAGARES AND COWEN, Circuit Judges.


[11] OPINION


[12] Donald Jackman appeals the District Court's order dismissing his civil rights complaint as frivolous. For the following reasons, we will vacate the District Court's order and remand for further proceedings.


[13] Jackman was indicted on firearms possession charges and pleaded guilty in February 2002. He was sentenced to a 262-month prison term for his crimes. In June 2005, Jackman filed the present action pursuant to Bivens, 42 U.S.C. § 1983, and a host of other federal statutes against some fifty-one defendants, each of whom allegedly played some part in Jackman's arrest and criminal prosecution. The Magistrate Judge issued a Report and Recommendation, urging dismissal for failure to state a claim upon which relief can be granted, which the District Court adopted. Jackman now appeals.*fn1


[14] The District Court dismissed the complaint on the grounds that the claims it contained were barred because Jackman had not first overturned his conviction, as required by Heck v. Humphrey, 512 U.S. 477 (1994). The entirety of the District Court's analysis consists of the following:


[15] ...where a challenge such as the plaintiff makes here might result in a conclusion that could void the underlying conviction, he must first demonstrate that that conviction or sentence has been reversed, expunged or declared invalid. Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998), cert. denied, 528 U.S. 1079 (2000). Clearly, this has not occurred in the instant case.[] Accordingly, it is recommended that the complaint be dismissed for failure to state a claim upon which relief may be granted. Report and Recommendation at 2. Because the Court did not specify the nature of Jackman's claims and relied solely upon a malicious prosecution case, Torres v. McLaughlin, 163 F.3d 169 (3d Cir. 1998), to dispose of the matter, we understand the District Court to have read Jackman's multiple allegations as a single malicious prosecution claim.


[16] This is problematic. Though not particularly well-plead, Jackman's 22-page complaint clearly includes allegations of false arrest, illegal search, coercion, and excessive force. This is significant because Heck only bars claims which "seek[] to recover damages for an unconstitutional conviction, imprisonment, or other harm caused by actions whose unlawfulness would render the conviction or sentence unlawful." Torres, 163 F.3d at 173 (emphasis added). As the Heck Court pointed out, because some claims would not necessarily invalidate a conviction, not all constitutional claims arising from an arrest and prosecution are subject to the rule. See 512 U.S. at 787 & n.7. Claims found not to be barred by Heck include unreasonable search and seizure,*fn2 excessive force,*fn3 coercion,*fn4 and often false arrest and false imprisonment.*fn5 Accordingly, this Court has recently emphasized that Heck requires district courts to make a determination with regard to each claim whether it -- if successful -- would imply the invalidity of the conviction or sentence. See Gibson v. Superintendent, 411 F.3d 427, 447-49 (3d Cir. 2005). There is no indication that the District Court undertook any such analysis here.


[17] Jackman's appeal could still be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) if the complaint failed to state a claim for other reasons. We accept as true all factual allegations in the complaint, and all reasonable inferences that can be drawn from them. See Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). A pro se complaint may be dismissed for failure to state a claim only "if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Milhouse v. Carlson, 652 F.2d 371, 374 (3d Cir. 1981) (citation omitted). Significantly, this appeal comes to us as the product of the District Court's screening process, providing only a very slim record, based on which we cannot conclude that Jackman has failed to state a claim.


[18] Accordingly, we will vacate the District Court's order and remand for further proceedings.



--------------------------------------------------------------------------------

Opinion Footnotes

--------------------------------------------------------------------------------

[19] *fn1 We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over the District Court's sua sponte dismissal for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(ii). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).


[20] *fn2 Heck, 512 U.S. at 787 n.7 (because of doctrines like independent source, inevitable discovery, and harmless error, the success of the § 1983 action would not necessarily imply that the underlying conviction was unlawful).


[21] *fn3 Nelson v. Jashurek, 109 F.3d 142, 145-46 (3d Cir. 1997) (where plaintiff alleged officer effectuated a lawful arrest in an unlawful manner, "we do not see why a judgment in [plaintiff's] favor would throw the validity of his conviction into doubt.").


[22] *fn4 Simmons v. O'Brien, 77 F.3d 1093, 1095 (8th Cir. 1996).


[23] *fn5 Compare Montgomery v. De Simone, 159 F.3d 120, 126 n.5 (3d Cir. 1998) ("claims for false arrest and false imprisonment are not the type of claims contemplated by the Court in Heck which necessarily implicate the validity of a conviction or sentence."), with Gibson v. Superintendent, 411 F.3d 427, 451-52 (3d Cir. 2005) (finding Heck rule applies because only evidence supporting conviction was found pursuant to constitutional violation that was subject of plaintiff's § 1983 claim).

Dismissal following remand affirmed by Jackman v. Smith, No. 07-2726 (3d Cir. 11/07/2007).

United States v. Gonzales, 436 F.3d 560 (5th Cir. 01/17/2006)

[1] IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT


[2] No. 04-20131


[3] 436 F.3d 560


[4] January 17, 2006


[5] UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD GONZALES, LOUIS GOMEZ, CARLOS REYNA, DEFENDANTS-APPELLANTS.


[6] Appeals from the United States District Court for the Southern District of Texas.


[7] The opinion of the court was delivered by: Garwood, Circuit Judge


[8] Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.


[9] Richard Gonzales, Louis Gomez and Carlos Reyna appeal their convictions and sentences for deprivation of civil rights in violation of 18 U.S.C. § 242. We affirm.


[10] FACTS AND PROCEEDINGS BELOW


[11] Defendants-appellants were charged in a five count indictment with the willful deprivation, on or about March 25, 2001, of the civil rights of Serafin Carrera while in their custody, resulting in bodily injury to him, contrary to 18 U.S.C. § 242. The indictment alleged that each defendant was a Deportation officer with the Immigration and Naturalization Service (INS) and was acting under color of law. Carlos Reyna was charged in count one with striking and using unreasonable force against Carrera and in count four with deliberate indifference to his serious medical needs. Richard Gonzales was charged in count two with use of unreasonable force against Carrera by pepper spraying him and in count three with deliberate indifference to his serious medical needs. Louis Gomez was charged in count five with deliberate indifference to Carrera's serious medical needs. Each defendant pled not guilty. Jury trial commenced May 12, 2003 and the jury returned its verdict June 9, 2003, finding Reyna not guilty on count one and guilty on count four, Gonzales guilty on counts two and three and Gomez guilty on count five. The district court sentenced Gonzales to concurrent terms of 78 months' imprisonment and three years' supervised release on each of counts two and three; Gomez was sentenced to 41 months imprisonment and three years' supervised release; and, Reyna was sentenced to 33 months' imprisonment and three years' supervised release. On appeal defendants assert divers challenges to their convictions and sentences.


[12] Viewing the evidence in the light most reasonably favorable to the government, the following factual context is reflected.*fn1


[13] The defendants, Gonzales, Gomez, and Reyna worked as deportation officers for the San Antonio division of the INS. They were members of the elite San Antonio Fugitive Unit, a group that specialized in tracking down and deporting illegal aliens with criminal records. Early in the morning of March 25, 2001, their unit, together with INS agents from Houston, prepared to raid a house in Bryan, Texas. They were advised to be alert. The night before, agents had encountered an armed 15-year old near the house.


[14] At 8:00 AM, the raid began. The San Antonio unit rushed in the front door while the Houston officers maintained a perimeter around the house. Minutes later, one of the house's occupants, Serafin Carrera, lay paralyzed on the kitchen floor.


[15] The testimony is unclear about which officers took down Carrera, though Gonzales, Gomez, and Reyna were all involved. The prosecution did not charge the defendants with excessive force in taking Carrera down or with causing the broken neck which he suffered in that process. Instead, the defendants were convicted for their behavior thereafter.*fn2


[16] All three defendants had close contact with Carrera while he lay handcuffed on the floor. Carrera begged for help, screaming "they broke me . . . Tell them to kill me . . . Tell them to take me to a hospital." In response, Gomez taunted, "From here you're going to go to jail and you're never going to get out, you son of a fucking mother." Officer Gonzales called him "cabron"*fn3 and invited his fellow officers to wipe their feet on him. The three defendants stood in the kitchen, with Carrera on the floor crying for help, trying to figure out how to get their paralyzed detainee into an INS van. Officer Gonzales, the San Antonio team leader, ordered a detention officer to pull the van closer to the house, saying "I don't want anybody to see what's going on."


[17] Next, Gonzales, Gomez, and two other officers dragged Carrera from the house, across the backyard, and into the van. Carrera complained of pain, asking to be shot and put out of his misery, while Officer Gomez pulled him through the van door and onto the front seat. Gomez struggled to position Carrera's limp body on the seat, finally leaving him slumped on his side and handcuffed. As the van departed for the Brazos County Jail, Officer Reyna asked the driver to give Carrera a screen test-an unofficial maneuver in which the driver slams on the brake causing a handcuffed passenger to lurch forward and hit his face against the screen.


[18] The nearby Brazos County Jail was not the final destination for Carrera or any of the other detainees. The INS Officers merely used its parking lot as a makeshift processing area for the illegal aliens. After processing, the aliens were to be sent by bus to New Braunfels, and then removed to Mexico.


[19] After all the aliens were loaded into two vans, the officers returned to their cars and followed the vans to the Brazos County Jail for processing. At the jail, all three defendants dragged Carrera off the van, hitting his head against the door on the way out. They dragged him across the parking lot while taunting him and playing with his limp body. Gonzales ordered the bus driver to open the luggage compartment, and threatened, jokingly, to make Carrera ride below. INS officers testified that Gonzales said, "Let's Mace the fucker, see if he budges."


[20] The three defendants dragged Carrera onto the bus. Because the bus had tinted windows, no one outside of it saw what happened next, but after a few minutes all three defendants ran off the bus choking and laughing. With a smirk, Gonzales claimed that he had an "accidental discharge" of pepper spray. A nurse was on duty at the Brazos County Jail, and a hospital just four miles away, but the defendants left Carrera by himself on the floor of the bus, handcuffed, eyes swollen shut, and foaming at the mouth. At around 11:30 AM, three hours after Carrera's neck was broken, the bus left for New Braunfels. Carrera rode on the floor of the bus for three more hours until he reached the Comal County Jail. Upon his arrival, the intake nurse refused to take custody of Carrera without a medical evaluation. He was taken by ambulance to a nearby hospital and then airlifted to a trauma center in San Antonio. Eleven months later, Carrera died.


[21] The next day, the cover-up began. Gonzales called everyone into his office and assured them, "we're going to get through this." When Gonzales found out that a bus driver had already written a memo about the incident, he called the bus driver into his office and said, "who the fuck told [you] to write a memo . . . nobody told you to write any memos . . . I'm the one that's going to take care of the memos." Gonzales demanded that the bus driver change his account to say that Carrera had assaulted them. The driver refused.


[22] DISCUSSION


[23] I. Sufficiency of Counts Three and Four of the Indictment


[24] Gonzales contends that the district court erred in overruling his motion to dismiss count three of the indictment, concerning his deliberate indifference to Carrera's serious medical needs, for failure to state an offense. Reyna makes the same contention respecting count four, the comparable count naming him.


[25] We review the sufficiency of an indictment de novo. United States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996).


[26] Rule 7(c) provides that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged . . . ." Fed. R. Crim. P 7(c). An indictment's sufficiency is determined by an examination of its specific language, taking account of the indictment as a whole in the context of its statutory background. United States v. Haas, 583 F.2d 216 (5th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1788, 60 L.Ed.2d 240 (1979). The test for sufficiency is not whether the indictment could have been better drafted, but whether it conforms to minimal constitutional standards. Haas, 583 F.2d at 219. These minimum constitutional standards are met where the indictment alleges "every element of the crime charged and in such a way 'as to enable the accused to prepare his defense and to allow the accused to invoke the double jeopardy clause in any subsequent proceeding.'" United States v. Bieganowski, 313 F.3d 264, 285 (5th Cir. 2002)(quoting United States v. Webb, 747 F.2d 278, 284 (5th Cir.1984)).


[27] The indictment alleges that defendants were at all relevant times INS officers and the challenged counts (counts three and four) charge that the particular defendant:


[28] "while acting under color of law, did act with deliberate indifference to the serious medical needs of Serafin Carrera by denying him medical care and treatment, resulting in bodily injury to Serafin Carrera, and did thereby willfully deprive Serafin Carrera of the right secured and protected by the Constitution and laws of the United States not to be deprived of liberty without due process of law, which includes the right to be free from harm while in official custody. In violation of Title 18, United States Code, Section 242."


[29] The defendants argue that the statutory element "willfully", the mental state expressly required by section 242,*fn4 was not properly charged in the indictment because it was confusingly equated with "deliberate indifference", the mental state associated with the underlying due-process deprivation.*fn5


[30] The indictment, in detailing the statutory elements of the crime charged, alleged two potentially different mental states: "willfully" and "deliberate indifference." Further, the "thereby" language in the indictment can arguably be read as wrongfully equating these two mental states. However, deliberate indifference and willfulness are not necessarily inconsistent with each other. And, the validity of an indictment is determined by reading it as a whole and "by practical, not technical considerations." United States v. Markham, 537 F.2d 187, 192 (5th Cir. 1976), cert. denied, 97 S.Ct. 739 (1977). This indictment, as a whole, meets the minimum constitutional standards set out above. It includes every statutory element of a section 242 violation; it provides enough factual detail to enable the accused to prepare his defense; and it is specific enough to allow the accused to invoke double jeopardy in any subsequent proceedings. Accordingly, we reject these challenges to the indictment.


[31] II. Jury Charge


[32] Gonzales raises two objections to the jury charge. He contends, first, that the charge improperly equates willfulness with mere knowledge, and, second, that because the charge does not include a "good faith" instruction requested by Gonzales, it omits an essential element of the offense. We reject these contentions.


[33] Although Gonzales did object to "the entire proposed instruction," he made no intelligible objection to any particular language as equating willfulness with knowledge or as allowing conviction on nothing more than deliberate indifference. Consequently, those complaints are reviewed for plain error only. United States v. Daniels, 281 F.3d 168, 183-84 (5th Cir. 2002).


[34] The district court's instruction on willfulness is accurate.


[35] Throughout the jury charge, the court explains the concept of willfulness using language borrowed directly from the Fifth Circuit pattern jury instructions and from prior section 242 cases. FIFTH CIRCUIT CRIMINAL JURY INSTRUCTIONS § 1.38 (2001); United States v. Sipe, 388 F.3d 471, 479--80 n.21 (5th Cir. 2004); United States v. Garza, 754 F.2d 1202, 1210 (5th Cir. 1985).*fn6


[36] Furthermore, this court has already rejected the argument that an otherwise adequate willfulness instruction is fatally incomplete without further, affirmative instruction on good faith. See United States v. Davis, 132 F.3d 1092, 1094 (5th Cir. 1998).


[37] III. Sufficiency of the Evidence


[38] A. Standard of Review


[39] Each of the defendants challenges the sufficiency of the evidence to support his conviction. Each made an appropriate motion for judgment of acquittal. Accordingly, we will hold the evidence sufficient if, but only if, "a rational trier of fact could have found that the evidence establishes the essential elements of the offense beyond a reasonable doubt." United States v. Brugman, 364 F.3d 613, 615 (5th Cir. 2004). We review the evidence in the light most favorable to the government with all reasonable inferences and credibility choices made in support of the jury verdict. Id. If the evidence tends to give nearly equal circumstantial support to either guilt or innocence then reversal is required. United States v. Moreno, 185 F.3d 465, 471 (5th Cir. 1999).


[40] B. Count Two, Excessive Force


[41] Gonzales was convicted on count two of the indictment, which charged that he:


[42] "while acting under the color of law, did assault Serafin Carrera by spraying him with Oleoresin Capsicum pepper spray, resulting in bodily injury to Serafin Carrera and did thereby willfully deprive him of the rights . . . protected by the Constitution . . . to be secure in his person and to be free from the use of unreasonable force by one acting under color of law." Contrary to Gonzales's contention, we hold that there is sufficient evidence for a rational trier of fact to find, beyond a reasonable doubt, that Gonzales willfully sprayed Carrera. Gonzales's theory at trial was that the pepper spray accidentally discharged in Carrera's face while Gonzales was carrying him onto the bus through a narrow "safety cage" doorway.


[43] Because the bus had tinted windows, no one outside of it witnessed the discharge. However, Frank Gonzalez, an INS detention officer from the San Antonio office, testified that while Gonzales was carrying Carrera to the bus, he said "Let's Mace the fucker and see if he budges." Two other San Antonio detention officers, Gilbert Rodriguez and Rene Cruz, remembered a similar statement. Rene Cruz testified that when Gonzalez, Reyna, and Gomez exited the bus, Gonzales was coughing, smirking sarcastically, and claiming that there had been an "accidental discharge." At the time, neither Gilbert Rodriguez nor Rene Cruz believed him. They both suspected that the accidental-discharge story was a cover-up.


[44] Gonzales presented evidence that these testifying officers had given inconsistent accounts of the Carrera incident. From initial statements given to agency investigators to later testimony before the grand jury, their stories had evolved. The testifying officers admitted that they had lied to investigators. They explained that they had stonewalled investigators, motivated by fear of reprisal and a misplaced sense of honor, in order to protect their colleagues. At trial, the officers insisted, they were telling the truth. We do not second guess the jury's credibility determination here.


[45] The only substantive countervailing evidence presented by Gonzales was that accidental discharges had previously occurred with some pepper spray holders and that, on the day of the Carrera incident, Gonzales had pepper spray on his shirt. There was no testimony that the discharge was accidental.


[46] We conclude that a rational jury could find beyond a reasonable doubt that the discharge was intentional.


[47] Gonzales also asserts that the government failed to prove, as required by the second clause of section 242, that this deprivation of Carrera's rights actually resulted in bodily injury.


[48] There are, in fact, two relevant bodily injury requirements. First, an excessive-force claim, like the one here, requires a showing of some bodily injury to establish a constitutional violation. Harper v. Harris County, Texas, 21 F.3d 597, 600 (5th Cir. 1994). Second, once an underlying constitutional violation is established and the prosecution invokes the second clause of section 242, it must prove resulting bodily injury in order to sustain punishment of more than one year. 18 U.S.C. § 242. Gonzales challenges only the government's evidence with respect to this second bodily injury requirement; however, the definition of "bodily injury" from excessive-force cases is still relevant here because this court has borrowed that definition for use in a section 242 prosecution also predicated on excessive force. Brugman, 364 F.3d at 618.


[49] In constitutional excessive force cases we have applied a "some injury" which is "more than 'de minimis injury'" standard. Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). The injury necessary to satisfy this requirement, and thus to establish an excessive-force claim, is related to the amount of force that is constitutionally permissible in the context in which the injury occurs. Ikerd v. Blair, 101 F.3d 430, 434--35. (5th Cir. 1996). For example, in Williams v. Bramer, supra, this court faced the question whether the injury alleged, dizziness and shortness of breath, was sufficient to satisfy the "some injury" requirement. We held that the injury was insufficient for the first choking incident, which occurred during a physical search, but was sufficient for the second choking incident, which occurred after the victim threatened to report the officer. For the second choking, dizziness and shortness of breath satisfied the "some injury" requirement because "the officer was motivated entirely by malice." Williams v. Bramer, 180 F.3d at 704. In contrast, the first incident occurred during a search, where "physical confrontation inevitably results." Id.


[50] There is sufficient evidence here to support a rational jury finding of bodily injury. Carrera's mouth was foaming, he complained of stinging pain, and his eyes were swollen shut for at least three hours. The government introduced evidence that pepper spray causes "intense pain."*fn7 The force that caused this pain, the pepper spray, was applied in a context not too different from the second choking incident in Bramer. Carrera was no longer a threat to Gonzales. He was paralyzed, handcuffed, and lying on the floor of the bus. Accordingly, we hold that a rational trier of fact could have found that the evidence establishes, beyond a reasonable doubt, Gonzales's excessive-force conviction. Cf. Champion v. Outlook Nashville, Inc., 380 F.3d 893, 903 (6th Cir. 2004) ("[I]t is clearly established that the Officers' use of pepper spray against Champion after he was handcuffed and hobbled was excessive.").*fn8


[51] Nor do we find any merit in Gonzales's contention, made only in passing (and partially on evidence not introduced before the jury but only at sentencing), that the evidence is insufficient because, even if it shows he intentionally pepper sprayed Carrera, it is not adequate to show that he knew the effects of the pepper spraying would be sufficiently severe to constitute "bodily injury." We conclude, however, that there was sufficient evidence from which the jury could reasonably infer any requisite knowledge and intent on Gonzales's part.*fn9


[52] C. Counts Three, Four and Five, Deliberate Indifference


[53] Gonzales, Reyna, and Gomez each dispute the sufficiency of the evidence to support their convictions for the willful deprivation of Carrera's due-process right to be free from deliberate indifference to his serious medical needs (counts three, four, and five).


[54] Under the Due Process clause, pretrial detainees enjoy a constitutional right "not to have their serious medical needs met with deliberate indifference on the part of confining officials." See Thompson v. Upshur County, 245 F.3d 447, 457 (5th Cir. 2001)(defining the right under the Fourteenth Amendment's Due Process clause). Deliberate indifference, as defined in due process cases, requires both that the government official have "subjective knowledge of a substantial risk of serious harm to a pretrial detainee" and that the government official respond with "deliberate indifference to that risk." Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996)(en banc). Finally, if this due process right is willfully violated, and if bodily injury results, then the offender is guilty of a felony under section 242.


[55] 1. The Officers had Actual Awareness


[56] There is sufficient evidence for a jury to have found that Officers Gonzales, Reyna, and Gomez were actually aware that Carrera had serious medical needs which posed a substantial risk of serious harm to him. Under the evidence, the jury could have so concluded from the very fact that this was so obvious. Farmer v. Brennan, 511 U.S. 825, 842-44 (1994).


[57] All three defendants had close contact with Carrera while he lay handcuffed on the floor after his injury. Carrera made his injury known to the defendants, screaming "they broke me . . . Tell them to take me to a hospital" and the like. In response to his frequent pleas, the officers taunted him, calling him "cabron" and inviting people to wipe their feet on him.


[58] At trial, the defense argued that Gonzales, Reyna, and Gomez believed Carrera was drunk and faking injury. Witnesses testified that it is common for detainees to feign injury in hope of avoiding immediate deportation; that other officers at the scene also believed Carrera was faking injury; and that it is extremely difficult for laymen to recognized the symptoms of quadriplegia.


[59] But, two of the officers, Reyna and Gomez, were trained in trauma management and taught both how to identify the symptoms of spinal injury and how to treat those symptoms. Moreover, although some testifying officers did concede that they thought Carrera was faking injury, those officers reminded the jury that the defendants were in close contact with Carrera and everyone else at the scene just believed what the defendants told them about Carrera's condition.


[60] After the takedown, the three defendants had extended contact with Carrera: they dragged his limp body from the house to the van; they dragged him off the van and onto the bus; and they witnessed his reaction to being pepper sprayed. The jury could have easily inferred from both this close physical contact and Carrera's evident distress and frequent cries for help that the defendants knew he was seriously injured.


[61] 2. Substantial Risk of Serious Harm


[62] There is sufficient evidence for the jury to have found that Carrera faced a substantial risk of serious harm. The government need not prove that Carrera actually suffered serious harm. It is enough, for these purposes, that Carrera was exposed to a substantial risk of serious harm even if that harm never materialized. See, e.g., Gates v. Cook, 376 F.3d 323, 341 (5th Cir. 2004) (holding that a Eighth Amendment prisoner--civil plaintiff did not have to prove that he was actually injured by exposure to raw sewage, only that the exposure posed a serious health risk).


[63] A defense witness, Dr. Hirshberg, testified that immediately upon being take down, Carrera's spinal facets locked and his spine was stable. Because of this stability, he explained, there was no risk associated with dragging Carrera from the kitchen, to the van, to the bus.


[64] The government's expert disagreed. Dr. Gitterle testified that Carrera might have benefited had he reached the hospital sooner and that, by moving Carrera without stabilizing him, the officers exposed him to a risk of harm. Furthermore, because excruciating pain also qualifies as a serious harm, the jury could have inferred that the defendant's failure to seek medical care for Carrera further exposed him to a substantial risk of increased severe pain. See Harris v. Hegmann, 198 F.3d 153, 159--60 (5th Cir. 1999). Moreover, after being pepper sprayed, Carrera was left alone on the bus floor, handcuffed, eyes swollen shut and foaming at the mouth, despite INS training that, due to the risk of potentially fatal asphyxiation, those pepper sprayed should be continually monitored and placed upright, never in a prone position, particularly if handcuffed.


[65] 3. The Officers Responded with Deliberate Indifference to the Risk


[66] There is sufficient evidence to permit a finding of deliberate indifference. Deliberate indifference is an extremely high standard to meet. Domino v. Texas Dept. Crim. Justice, 239 F.3d 752, 755 (5th Cir. 2001). The government "must show that the officials 'refused to treat him, ignored his complaints, intentionally treated him incorrectly, or engaged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.'" Id. at 756.


[67] Only Reyna disputes the sufficiency of the evidence with respect to deliberate indifference. We reject his contention that under the evidence it could not be found that he had any ability or opportunity to respond to Carrera's serious medical needs or to do anything looking to their alleviation.


[68] 4. Bodily Injury


[69] There is sufficient evidence to permit a finding of bodily injury. A finding of bodily injury is not required to establish deliberate indifference, the constitutional violation underlying counts three, four and five. However, as noted above, for a section 242 conviction to constitute a felony, bodily injury must result from the underlying violation.*fn10 With respect to count 2, the underlying violation was employment of excessive force and we followed Brugman and applied to section 242's "bodily injury" requirement the "some injury" test used in the excessive force cases. As explained in Brugman, what satisfies the "some injury" requirement varies according to the amount of force that was constitutionally permissible under the particular circumstances. See Brugman, 364 F.3d at 618-19. We decline to extend Brugman's approach to section 242 cases in which employment of excessive force is not any part of the underlying constitutional violation. Brugman is simply not meaningful in such a context. In a section 242 prosecution based on deliberate indifference to serious medical needs, use of force is no part of the underlying constitutional violation, and we accordingly do not apply Brugman's definition of "bodily injury."


[70] We instead follow the First and Eleventh Circuits in applying to "bodily injury" as used in section 242 the definition of "bodily injury" provided in four other sections of Title 18 namely, "(A) a cut, abrasion, bruise, burn, or disfigurement; (B) physical pain; (C) illness; (D) impairment of a function of a bodily member, organ, or mental faculty; or (E) any other injury to the body, no matter how temporary." 18 U.S.C. §§ 831(f)(5); 1365(h)(4); 1515(a)(5); 1864(d)(2). See United States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005); United States v. Myers, 972 F.2d 1566, 1572 (11th Cir. 1992).


[71] Applying this statutory definition of bodily injury, we hold that there was sufficient evidence to prove either "physical pain" or "impairment of function." The defendants argue that their failure to provide medical care for Carrera did not result in bodily injury because Carrera's injury was painless, instantaneous, and irreversible. The government, however, presented contrary evidence. Several witnesses, including several INS officers, testified that Carrera was moaning and complaining of severe pain. And, Dr. Gitterle testified that Carrera might have benefitted from treatment had he reached the hospital sooner.


[72] We hold that the evidence is sufficient to support all three deliberate-indifference convictions.


[73] IV. Confrontation Clause


[74] Gonzales argues that the government violated his rights under the Confrontation Clause, as recently defined in Washington v. Crawford, 124 S.Ct. 1354 (2004), when it introduced evidence of statements Carrera made while in INS custody.


[75] New constitutional rules are applied retroactively to all cases pending on direct appeal. Griffith v. Kentucky, 479 U.S. 314 (1987). However, this does not affect the long-standing rule that, absent plain error, legal issues will not be addressed for the first time on appeal. Johnson v. Unites States, 520 U.S. 461 (1997) (applying the plain-error standard to an issue created by an intervening decision); United States v. Rios-Quintero, 204 F.3d 214, 215--16 (5th Cir. 2002). Gonzales made no objection at trial to the complained of evidence, so our review is only for plain error.*fn11


[76] In Crawford, the Court held that the Confrontation Clause prohibits (1) testimonial out-of-court statements; (2) made by a person who does not appear at trial; (3) received against the accused; (4) to establish the truth of the matter asserted; (5) unless the declarant is unavailable and the defendant had a prior opportunity to cross examine him. Crawford, 124 S.Ct. at 1364--66. At trial, one of Carrera's roommates testified that while Carrera was lying on the kitchen floor he screamed, "oh, they broke me." Gonzales argues that because Carrera was in custody at the time, this statement (none other being specified by Gonzales in this connection) is inadmissible under Crawford.


[77] The statement was admissible to prove that the officers had notice of Carrera's injury. The substance of the statement, that Carrera was broken, was never disputed. Furthermore, it is far from clear that this statement (or others by Carrera while at the scene) even qualifies as testimonial under Crawford. Although the definition of a "testimonial" statement was left open by Crawford, language in the opinion appears to suggest that a testimonial statement is one made during a governmental interrogation or something similar thereto, not merely screaming out in pain to those in the vicinity. Crawford, 124 S.Ct. at 1364 (noting definition of testimony as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact" and observing that "[a]n accuser who makes a formal statement to government officers bears testimony"). Finding no plain error, we reject Gonzales's Confrontation Clause challenge.


[78] V. Constructive


[79] Amendment of the Indictment Gomez contends that Count Five of the indictment was constructively amended because he was indicted only for "denying" medical care but the jury charge and prosecution's theory of the case allowed conviction for "delaying or denying" medical care. Because nothing here turns on the distinction between delay and denial, and because the same set of facts is necessary to prove either, we reject this contention.


[80] Gomez failed to object on this ground below. The defense did object to the deliberate indifference jury instruction "in its entirety," but such general objections are insufficient to preserve constructive amendment error. United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997). Accordingly, we review Gomez's constructive amendment issue for plain error. United States v. Daniels, 252 F.3d 411, 414 & n.8 (5th Cir. 2001).


[81] The Fifth Amendment allows criminal prosecutions only on the basis of an indictment and only a grand jury may amend an indictment. Stirone v. United States, 361 U.S. 212, 215--16 (1960). An amendment can occur constructively when an action of either the judge or prosecutor allows the jury "to convict the defendant upon a factual basis that effectively modifies an essential element of the offense charged." United States v. Holley, 23 F.3d 902, 912 (5th Cir. 1994); United States v. Salinas, 654 F.2d 319, 324 (5th Cir. 1981). A jury cannot be permitted to convict on "an alternative basis permitted by the statute but not charged in the indictment." Daniels, 252 F.3d at 414. But an instruction which does not broaden the possible bases of conviction beyond what is embraced in the indictment does not constitute a constructive amendment. United States v. Miller, 105 S.Ct. 1811 (1985).


[82] The "delay of medical care" and the "denial of medical care" are not alternative bases because the same facts can be used to convict under either. See United States v. Chambers, 408 F.3d 237, 243--44 (5th Cir. 2005). For the purposes of a deliberate-indifference claim, a deliberate delay in providing medical care is no different than a deliberate denial of the same care for the same time, and, in this context, no federal court has ever distinguished the two. An individual can fairly be said to have been "denied" medical care for a period of several hours even though he receives such care at the end of that period; conversely, it can with equal propriety be said that his receipt of the medical care was "delayed" for that period. Gomez's contention is essentially a verbal quibble.*fn12


[83] Because there was no error, much less plain error, we reject Gomez's contention that his indictment was constructively amended.


[84] VI. Deportation of Witnesses


[85] Gonzales contends the government's deportation of witnesses, and the government's subsequent failure to produce these deported witnesses, violated his rights of compulsory process.*fn13


[86] Because Gonzales did not raise below his compulsory process objection to the government's deportation of witnesses his complaint is reviewed for plain error. United States v. Partida, 385 F.3d 546, 557 (5th Cir. 2004).


[87] It was not plain error to try Gonzales after the government deported two witnesses with material testimony. The Sixth Amendment guarantees a criminal defendant compulsory process "for obtaining Witnesses in his favor." U.S. CONST. amend. VI. The Supreme Court has held that when the government deports an illegal alien, before defense counsel has an opportunity to interview the alien, the constitutional right of compulsory process is implicated. United States v. Valenzuela--Bernal, 102 S.Ct. 3440 (1982). The Court acknowledges, however, that there is tension between this Sixth Amendment right and the Executive Branch's responsibility to faithfully execute the immigration laws that require prompt deportation of illegal aliens. The mere fact that the government deports illegal alien witnesses, thereby making them unavailable to the defense, is not sufficient, standing alone, to show a violation of the Compulsory Process clause. Id. at 3449. In Valenzuela--Bernal, the Court struck a balance, holding that the Executive Branch was justified in "the prompt deportation of illegal alien witnesses once the Executive Branch made a good-faith determination that the witnesses possessed no evidence favorable to the defendant in a criminal prosecution." Id.


[88] This circuit has not yet fully defined the contours of a claim under Valenzuela--Bernal. Other circuits have implemented the Valenzuela--Bernal holding in different ways. So far, drawing on explicit language from Valenzuela--Bernal, all of the Circuits require at least "a plausible showing that the testimony of the deported witness would have been material and favorable to [the] defense, in ways not merely cumulative to the testimony of available witnesses." Valenzuela-Bernal, 102 S.Ct. at 3449. This first prong is universal: the defendant must show prejudice to his case.


[89] The Seventh, Ninth, and Tenth Circuits recognize a second prong: the defendant must establish that the government acted in bad faith. United States v. Chaparro-Alcantara, 226 F.3d 616, 624 (7th Cir.2000); United States v. Pena-Gutierrez, 222 F.3d 1080, 1085 (9th Cir.2000); United States v. Iribe-Perez, 129 F.3d 1167, 1173 (10th Cir.1997). These circuits draw upon the following language from Valenzuela--Bernal: "[I]mmigration policy adopted by Congress justifies the prompt deportation of illegal-alien witnesses upon the Executive's good-faith determination that they possess no evidence favorable to the defendant in a criminal prosecution." Valenzuela--Bernal, 102 S.Ct. at 3449 (emphasis added). There may be some disagreement on what it takes to show bad faith. In the Ninth Circuit, a defendant must show either (1) that the government departed from normal deportation procedures or (2) that it deported the witness to gain an unfair tactical advantage. Pena-Gutierrez, 222 F.3d at 1085. In the Seventh Circuit, a defendant must show "official animus" or a "conscious effort to suppress exculpatory evidence." ChaparroAlcantara, 226 F.3d at 624. The focus is on "the Government's knowledge when . . . it arranged for the departure of the witnesses, not on any of its subsequent conduct." Id.


[90] This court has adopted the first prong, requiring a showing of prejudice. United States v. Soape, 169 F.3d 257, 267--68 (5th Cir.1999) (denial of requested subpoena did not violate defendant's compulsory process rights because the defendant had not demonstrated the necessity of the witnesses testimony). In United States v. Sierra--Hernandez, 192 F.3d 501, 503 (5th Cir. 1999), this court discussed the first prong, acknowledged the existence of the second prong, and held there was no violation, noting that neither prejudice nor lack of good faith was shown, but not expressly stating that the failure to show lack of good faith was of itself fatal to the claim.


[91] Here, unlike our prior cases, the first prong is likely satisfied. Gonzales has made a plausible showing that the missing testimony, evaluated in the context of the entire record, would be (1) material and favorable to the defense, and (2) not cumulative. Sierra--Hernandez, 192 F.3d at 503. Two of the deported witness believed Carrera was faking injury. Because deliberate indifference requires that Gonzales know that Carrera was actually injured, this testimony may have been both favorable and non-cumulative.


[92] Gonzales does not, however, satisfy the second prong since the witnesses were deported in good faith. Two facts about Gonzales's case distinguish it from the vast majority of those that give rise to Valenzuela--Bernal claims. First, Gonzales's arrest occurred after the illegal aliens were deported. Second, Gonzales actually participated in deporting his own witnesses. Gonzales does not dispute that the deportations were done in good faith. He concedes that the government only became aware of exculpatory testimony after they deported the witnesses.


[93] Because Gonzales cannot satisfy the second prong, he is not entitled to relief under the plain error standard. Whether this court ever adopts the second prong, requiring a showing of bad faith by government officials, remains an open question that we do not decide today. If there is Valenzuela--Bernal error, it is not plain. See United States v. Olano, 113 S.Ct. 1770, 1776--77 (1993).


[94] Gonzales also contends that the government's failure to produce alien witnesses violated his compulsory process rights. At an April 1, 2003 pre-trial hearing, Gonzales complained to the court of his difficulties locating witnesses in Mexico. The court responded, "the first thing you've got to do is sit down and make sure the government hasn't already provided the information . . . . If at the end of that exercise you still have issues, you can come back . . . ."*fn14 Gonzales never again raised the matter with the district court. The court's above noted ruling at the pre-trial hearing was not sufficiently definitive to preserve this claim, so plain error review is applicable. Gonzales's compulsory process rights were not plainly violated by the government's failure to produce deported witnesses. Compulsory process gives criminal defendants "the right to the government's assistance in compelling the attendance of favorable witnesses at trial . . . ." Pennsylvania v. Ritchie, 107 S.Ct. 989, 1000 (1987). Here, the witnesses were in Mexico, beyond the subpoena power of the federal district court. Nevertheless, the United States Attorney produced information about every witness who was deported, located twelve of the twenty witnesses in Mexico, arranged for them to stay in the United States temporarily, and made them available to the defense for interviews three months before trial. Under the circumstances, the government made fully reasonable efforts. There is no plain error.


[95] VII. Brady Evidence


[96] Gonzales contends the government withheld the following exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), : (1) that the pepper spray canister did not have a safety; (2) that Gonzales's holster did not have a trigger guard, (3) that a government witness, Gondinez, had made a prior inconsistent statement; and (4) that certain deported alien witnesses had testimony favorable to Gonzales. Gonzales did not raise any of these objections at any time below. If review is even possible, it is for plain error. No such error is demonstrated.


[97] None of the exculpatory evidence cited by Gonzales was actually withheld from him. Gonzales had first-hand knowledge of the first two items, the safety characteristics of his pepper spray canister and his holster. The other two items were provided to the defense in a tape recording.


[98] Regardless, appellate review is impossible here. Such Brady challenges present fact-based judgments that cannot be adequately first made on appellate review. That is why Brady challenges must be brought to the district court's attention, winnowed by the trial judge, and made part of the record through a motion for new trial. See United States v. Chorney, 63 F.3d 78, 80--81 (1st Cir. 1995). See also United States v. Jones, 112 Fed. Appx. 343, 344 (5th Cir. 2004).


[99] We decline to reverse on the basis of Gonzales's Brady claim.


[100] VIII. Prosecutorial Misconduct


[101] Gonzales contends that his due process rights were violated by the prosecutor's false statements made during rebuttal closing. Gonzales objected to these statements for the first time in his motion for new trial.


[102] Gonzales argues two instances of prosecutorial misconduct. First, he asserts that the prosecutor "argued that accidental discharge [of the pepper spray] was impossible by virtue of [a] safety," even though the prosecutor "knew, or should have known," this to be false. Second, he argues that the prosecutor created a false impression of a cover-up conspiracy.


[103] The Due Process clause of the Fourteenth Amendment forbids the government from knowingly using, or failing to correct, false testimony. Giglio v. United States, 405 U.S. 150, 153 (1972). To prove a Due Process violation, Gonzales must establish (1) that there was false testimony, (2) that the government knew the testimony was false, (3) that the testimony was material. United States v. Mason, 293 F.3d 826, 828 (5th Cir.2002). This rule also applies to false statements made during the prosecutors rebuttal closing. United States v. Williams, 343 F.3d 423, 439 (5th Cir.2003).


[104] However, the prosecutor's rebuttal closing contained no false statements. The prosecutor argued that "unless that [safety] tab was previously pulled, which there's no evidence before you, this thing cannot accidentally discharge." Evidence of the existence of a safety tab was elicited at trial both through testimony and with the introduction of INS training materials. Post trial defendant submitted affidavits stating that the safety tabs are on only during shipping and are removed before the pepper spray is issued to INS officers. Nevertheless, the prosecutor's rebuttal statement is still true-the canister cannot discharge unless the tab is removed.


[105] To the extent that Gonzales's complaint is that the prosecutor misleadingly suggested that Gonzales's canister had a safety tab on it during the March 25, 2001 incident, the complaint was not properly preserved by objection at trial and is hence reviewed only for plain error.*fn15 We observe that Gonzales does not allege that the prosecutor actually knew that the tabs were routinely removed before the canisters were issued to agents. Further, no witness testified at trial that the discharge was accidental or that the witness believed it was.*fn16


[106] Gonzales's fellow INS agents testified that they saw the officers bring Carrera on the bus and that they did not see an accidental discharge when he was carried through the safety cage, and that they saw the officers exit the bus choking and laughing.


[107] Gonzales also argues that the prosecutor improperly hinted at a cover-up conspiracy. During trial, the government impeached a defense witness with evidence that the witness, later in the day on March 25, 2001, after he knew of the events in question, had signed a form falsely accusing Carrera of assaulting Gonzales earlier that day. The form, entitled "Report of Assault On Service Employee[s]," listed "Richard Gonzales" as the "Officer Assaulted" and "Louis R. Gomez" as a "witness" and described the "weapon used by suspect" as "bullet key chain in hand." Later, in its closing argument, the government reminded jurors of this impeachment evidence and criticized the officer's eagerness to have assault charges brought against the quadriplegic victim. No objection was made at trial.


[108] Gonzales argues that the prosecutor knew that this INS form was for internal INS use only and that this form isn't ever forwarded to the Department of Justice. The details of INS procedure are irrelevant to the validity of the prosecutor's point. The witness submitted a form that INS agents use to report an assault; eventually another form is to be used to report the assault to the Department of Justice (and no such form was completed). It's not prosecutorial misconduct to argue that steps were initiated to bring charges against Carrera.


[109] Gonzales has demonstrated no plain error warranting reversal in the prosecutor's closing argument.


[110] IX. Ineffective Assistance of Counsel


[111] For the first time on appeal, Gonzales argues that his trial counsel was ineffective because he failed to object when the prosecutor claimed that the pepper spray couldn't accidentally discharge unless the safety tab was removed. As a general rule, this court will not address, on direct appeal, Sixth Amendment claims of ineffective assistance of counsel that were not presented to the district court. United States v. Valuck, 286 F.3d 221, 229 (5th Cir.2002). There is no good reason to deviate from that general rule here. We accordingly deny relief on this claim, but without prejudice to such rights as Gonzales may have in respect thereto in a proper motion under 28 U.S.C. § 2255.


[112] X. The Order of Closing Arguments


[113] Gonzales contends that the district court erred in how it ordered closing arguments.


[114] Closing arguments began Thursday afternoon. There was discussion with the court as to whether to attempt to complete the arguments that afternoon. The preference of all concerned seemed to be not to do so. The defense attorneys asked that after the government's initial closing argument each defendant's counsel be allowed to make a part of his closing argument that afternoon and the balance of it Friday morning. The government strenuously objected, insisting that at the least each defendant's argument should be completed before the argument of the next defendant began. Defense counsel did not want to proceed in that fashion, nor did the defense want to postpone any defense arguments until Friday morning. The court eventually acceded to the defense request; but, as compensation to the government, allowed it a "mini rebuttal" the first thing Friday morning, to be followed by the second segment of the argument of counsel for each of the defendants, after all of which would come the government's rebuttal. Defense counsel's objection was overruled. The closing arguments thus proceeded as follows: on Thursday afternoon, the government presented its opening closing argument for some sixty-five minutes; this was followed by some twenty-one minutes of argument by the attorney for Reyna, then by some twenty minutes of argument by an attorney for Gomez, and finally by some thirty minutes of argument by the attorney for Gonzales. The court then, at about 5:00 p.m., recessed until Friday. Proceedings began about 9:00 a.m. Friday morning with approximately twenty-one minutes of "mini rebuttal" by another government attorney, followed by some thirty-eight minutes further argument by Reyna's counsel, then another some forty minutes' argument (in consecutive twenty-eight and twelve minute separate segments) by Gomez's two counsel, then some thirty minutes' argument by Gonzales's counsel, and finally followed by some twenty-six minutes of rebuttal argument by a third government attorney.*fn17


[115] Other than conclusorily stating that allowing the government "to go first and last" and "also to argue in the middle of defense counsel's closing arguments gives it unfair advantage," appellants point to no particular specific unfairness or prejudice to them in the ordering of the arguments, nor do they cite any authority in support of their contention. Their objection below was even more perfunctory.*fn18 It must be recalled that the defendants wanted to split each defendant's argument into two separate sections (instead of having the complete argument of each defendant uninterrupted by that of any other party). Appellants make (and made below) no complaint either as to the amount of time allowed or that the procedure, insofar as it deviated from the normal practice by giving the government a "mini rebuttal", allowed the government to raise new arguments to which the defense did not have an opportunity to reply (or that the government's opening was inadequate or incomplete).


[116] As a general rule we review comparable trial management decisions for abuse of discretion. See United States v. Leal, 30 F.3d 577, 586 (5th Cir. 1994) (time allowed for closing arguments). However, Rule 29.1, Fed. R. Crim. P. (which appellants do not even cite) provides:


[117] "Closing arguments proceed in the following order:


[118] (a) the government argues;


[119] (b) the defense argues; and


[120] (c) the government rebuts."


[121] The Advisory Committee notes reflect that the main purpose of the rule is to ensure that "the defendant knows the arguments actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply." This core interest under Rule 29.1 was not invaded here, and, while the simple order of Rule 29.1 should normally be followed, we are unable to conclude that the trial court abused its discretion in this respect or that the appellants were prejudiced or treated unfairly by the order of argument. See, e.g., United States v. Cardascia, 951 F.2d 474, 485 (2d Cir. 1991); United States v. Gleason, 616 F.2d 2, 25-26 (2d Cir. 1979).


[122] We overrule the complaint concerning the order of closing arguments.


[123] XI. Co-Conspirator Hearsay


[124] Gonzales contends that the district court abused its discretion by admitting certain out of court statements. Neither the objectionable statements nor the speaker is identified. Such underdeveloped arguments in the appellant's brief are waived on appeal. United States v. Avants, 367 F.3d 433, 442 (5th Cir. 2004).


[125] XII. Predetermined Guilt


[126] Gonzales contends that the district court predetermined his guilt and made a decision regarding admissibility of evidence accordingly. Gonzales's argument is based entirely on one statement by the court which Gonzales plainly misunderstands.*fn19


[127] The court was not excluding the proffered hearsay because it believed the statement was false; rather, the court was asserting, correctly, that the statement was being offered for the truth of the matter asserted.


[128] XIII. Booker


[129] Relying on United States v. Booker, 125 S.Ct. 738 (2005), Gonzales and Reyna both challenge their sentence enhancements. Gonzales also contends the district court erred by not considering all factors listed under 18 U.S.C. § 3553(a).


[130] Because neither defendant raised these arguments below, review is for plain error only. United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).


[131] This court has held that "if the effect of the error is uncertain so that we do not know which, if either, side it helped the defendant loses." Mares, 402 F.3d at 521. The record must indicate that, had the court applied an advisory sentencing scheme rather than a mandatory one, it would have reached a different result more favorable to the defense. Id.


[132] Neither Gonzales nor Reyna meets this burden. The district court sentenced Gonzales to the maximum imprisonment allowed by the guidelines. And, although Reyna was sentenced at the bottom of his guideline range, this fact alone is insufficient to show that the court, under an advisory scheme, likely would have reached a different result (and nothing else points to that conclusion). United States v. Hernandez-Gonzalez, 405 F.3d 260, 262 (5th Cir. 2005).


[133] Booker held that the district court, treating the guidelines as advisory, should consider the factors listed in 18 U.S.C. § 3553(a). Gonzales contends that the district court would have granted his motion for downward departure had it considered the factors listed in section 3553(a). We reject this contention. The district court did invoke section 3553(a) when it explained that "as to each of the defendants, the sentences imposed are consistent with the guideline sentencing objectives of punishment, incapacitation and deterrence."


[134] XIV. Sentencing: Two or More Participants


[135] This court reviews the district court's findings of fact regarding sentencing factors for clear error. United States v. Mergerson, 4 F.3d 337, 347 (5th Cir. 1993). A factual finding is not clearly erroneous "as long as it is plausible in light of the record as a whole." United States v. Holmes, 406 F.3d 337, 363 (5th Cir. 2005). We review the district court's interpretation and application of the sentencing guidelines de novo. United States v. Clayton, 172 F.3d 347, 353 (5th Cir. 1999). For sentences imposed pre-Booker and challenged post-Booker, these standards of review are unchanged. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005).


[136] The Sentencing Guidelines provide for a base-offense level of twelve if the defendant's offense involved two or more participants. See U.S.S.G. § 2H1.1(a)(2). Finding multiple participants, the district court correctly applied this base offense level to each defendant. U.S.S.G. § 2H1.1(a)(2). Gonzales and Reyna challenge this finding, arguing that (1) the crime of willful deliberate indifference to medical needs is a crime of omission, so it cannot involve multiple participants; (2) the defendants were not charged with conspiracy so they must have acted alone; and (3) each defendant was acting independently. The first two are questions of guideline interpretation, which we review de novo. The last is a factual determination that we review for clear error. United States v. Ho, 311 F.3d 589, 610 (5th Cir. 2002).


[137] It is not determinative that the defendants were convicted of a crime of omission. The commentary to section 2H1.1 defines "participant", in reference to section 3B1.1, as a person who is criminally responsible for the commission of the offense, but need not have been convicted. U.S.S.G. § 2H1.1 comment (n.2); U.S.S.G. § 3B1.1 comment. (n.1). By the plain text of the guideline, all three defendants, Gonzales, Reyna, and Gomez, qualify as participants since they are all criminally responsible for the same offense.


[138] A defendant need not be charged with conspiracy to qualify for a multiple-participant enhancement. As long as the defendants participated knowingly in some part of the criminal enterprise, they need not even be convicted of the offense. United States v. Glinsey, 209 F.3d 386, 396 (5th Cir. 2000); U.S.S.G. § 2H1.1, comment 2. We have upheld findings of multiple participants without an underlying conspiracy charge. See, e.g., United States v. Mersservey, 317 F.3d 457, 464 (5th Cir. 2002).


[139] Finally, the district court did not clearly err in finding that the defendants acted together. The defendants were together in the kitchen when Carrera was complaining of injury, together at the Brazos County Jail when they dragged Carrera to the bus, and together on the bus when they pepper sprayed him.


[140] We affirm the sentencing court's finding of two or more participants.


[141] XV. Sentencing: Organizer, Leader, Manager, or Supervisor


[142] A factual finding that a defendant was an organizer, leader, manager, or supervisor under Sentencing Guideline §3B1.1(c) is reviewed for clear error. United States v. Turner, 319 F.3d 716, 725 (5th Cir.2003).


[143] It was not clear error for the district court to impose a two-level sentence adjustment because Gonzales was an "organizer, leader, manager or supervisor" of at least one of the other participants in the criminal activity. U.S.S.G. §3B1.1(c). Gonzales was the team leader of the San Antonio unit, and according to everyone who testified at trial, the team leader of the operation that led to Carrera's arrest. Throughout the day, Gonzales issued orders to both Reyna and Gomez. For example, Gonzales rejected the driver's suggestion that Carrera get medical attention before being moved; he ordered Carrera moved from the house to the van; he ordered Carrera moved from the van to the bus; and he communicated with Grace Winfrey, his INS supervisor in San Antonio about Carrera's condition.


[144] Gonzales relies on United States v. DeGovanni, 104 F.3d 43 (3d Cir. 1997), in which the Third Circuit held that a supervising officer must participate in the criminal activity, not merely assume a de jure role in the police hierarchy. DeGovanni doesn't apply here because Gonzales both led and participated in the criminal activity. Accordingly, we affirm the sentencing court's finding that Gonzales was a leader.


[145] XVI. Sentencing: Vulnerable Victim


[146] The finding of vulnerability is a fact question that is reviewed for clear error. United States v. Brugman, 364 F.3d 613, 621 (5th Cir.2004).


[147] The district court's finding that Carrera was a vulnerable victim is plausible. The Sentencing Guidelines provide for a two-level adjustment if the defendant should have known that the victim was vulnerable. See U.S.S.G. § 3A1.1(b)(1). This vulnerability must be "an 'unusual' vulnerability which is present in only some victims of that type of crime." United States v. Moree, 897 F.2d 1329, 1335--36 (5th Cir. 1990). See also United States v. Angeles-Mendoza, 407 F.3d 742, 747 n.5. (5th Cir. 2005) (approving of the Ninth Circuit definition of vulnerable victim as "one who is 'less able to resist than the typical victim of the offense'"). Gomez argues that this adjustment is inapplicable because it is only intended to punish targeting a vulnerable victim. He argues that Carrera was not vulnerable to begin with; instead, he was made vulnerable by the offense.


[148] The guidelines were amended in 1995 to clarify that there is no targeting requirement. United States v. Burgos, 137 F.3d 841, 843--844 (5th Cir.1998) This court has "not required a specific 'targeting' of a vulnerable victim beyond the requirement that the defendant knew or should have known of the vulnerability."


[149] Id. Moreover, Carrera was vulnerable. He was quadriplegic, an unusual vulnerability among section 242 victims.*fn20 Because Carrera was paralyzed he was limited in the ability to seek help from other officers and was particularly at the mercy of the defendants. Accordingly, we affirm the sentencing court's finding that Carrera was a vulnerable victim.


[150] XVII. Sentencing: Restraint of Victim


[151] The finding of restraint is a fact question that is reviewed for clear error. United States v. Brugman, 364 F.3d 613, 621 (5th Cir.2004). The Sentencing Guidelines provide for a two level adjustment if the victim was physically restrained in the course of the offense. See U.S.S.G. § 3A1.3. Gonzales contends that the district court "double counted" by adjusting his sentence based both upon Carrera's restraint and his vulnerability. That Carrara was handcuffed is irrelevant, he argues, because Carrara couldn't move anyway.


[152] The district court's finding that both restraint-of-victim and vulnerability adjustments were applicable is plausible in light of the record as a whole. There is evidence that Carrara, though paralyzed from the chest down, had some capacity for movement. It is plausible that because he was handcuffed behind his back, even this limited range of motion was taken away so, for example, his ability to wipe the pepper spray from his eyes was limited even further by handcuffs. We affirm the sentencing court's finding that Carrara was restrained.


[153] XVIII. Obstruction of Justice


[154] The district court's factual finding that Gonzales obstructed justice is reviewed for clear error. United States v. Holmes, 406 F.3d 337, 363 (5th Cir.2005). "A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole" and "[t]his is particularly true where a sentencing court's imposition of [an obstruction of justice] enhancement is based, at least in part, upon an evaluation of a witness' credibility." Id.


[155] The district court imposed a two-level enhancement for obstruction of justice based on Gonzales's false testimony at the sentencing hearing and on his false statements to investigators, claiming accidental discharge of his pepper spray. The guidelines permit an enhancement for obstruction of justice "if the defendant willfully obstructed or impeded . . . the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1. Obstruction of justice includes "committing . . . perjury" and "providing materially false information to a judge." Id. at n.4(b)&(f). Thus, perjury at a sentencing hearing is a sufficient basis for an obstruction of justice enhancement. United States v. Goldfaden, 987 F.2d 225, 227 (5th Cir.1993). Obstruction of justice also includes giving a "materially false statement to a law enforcement officer that significantly obstructed . . . the official investigation."


[156] U.S.S.G. § 3C1.1, cmt. n.4(g).


[157] Gonzales doesn't even challenge the obstruction of justice finding based on perjury at the sentencing hearing. This finding, which is not clearly erroneous, alone would be sufficient for a section 3C1.1 enhancement. We affirm the sentencing court's finding of obstruction.


[158] XIX. Amendment of the PSR


[159] Gonzales challenges the district court's denial of his post- trial motion to amend and clarify the judgment and presentence report to more clearly reflect that the court did not find for sentencing purposes that Gonzales was guilty of aggravated assault or of use of a dangerous weapon and to require an amendment to the PSR expressly so stating.


[160] Gonzales, who was sentenced on February 2, 2004, filed his notice of appeal on February 5, 2004. On February 20, 2004, Gonzales filed his above described motion to clarify and to amend the PSR. The district court denied the motion in a March 22, 2004 order. Gonzales's February 5 notice of appeal obviously mentions neither the February 20 motion nor the court's ruling thereon, and Gonzales has neither filed a new notice of appeal nor amended the February 5 notice of appeal. Consequently this matter is not properly before us. See Fed. R. App. P. 3(c)(1)(B). Contrary to Gonzales's contention, Fed. R. App. P. 4(b)(3)(B) & (C) are inapplicable because, even when liberally construed, Gonzales's February 20 motion is not one of the three types of motions listed in Rule 4(b)(3)(A).*fn21


[161] CONCLUSION


[162] For the foregoing reasons, the judgment of the district court is AFFIRMED.



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Opinion Footnotes

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[163] *fn1 None of the defendants testified before the jury.


[164] *fn2 At the beginning of trial, immediately prior to opening statements by counsel, the court instructed the jury in part as follows:
"The United States' position in this case is that when the defendants encountered Searfin Carrera they used a certain amount of force resulting in an injury to Mr. Carrera's neck. The United States does not allege in the indictment that the amount of force used in the initial encounter with Mr. Carrera in which he was taken down to the floor was criminally excessive. The United States alleges in Count 1 of the indictment that after that initial encounter, defendant Carols Reyna willfully used excessive force against Searfin Carrera by striking him about the body causing bodily injury." . . .
"I told you that the government does not allege in the indictment that the amount of force used in the initial encounter with Mr. Carrera, in which he was taken down to the floor, was criminally excessive. The indictment does not allege that the injury to Mr. Carrera's neck was the result of a criminal act by the defendants.
You will hear evidence that as a result of this . . . injury, Mr. Carrera was paralyzed. He died 11 months later. The indictment does not allege that the defendants' actions caused Mr. Carrera's death. The government does not seek to hold any of the defendants criminally responsible for the death. You are not to consider the fact that Mr. Carrera died months after the incident as evidence of guilt. It must not enter into your discussions or deliberations when they occur."
Similar instructions were included in the final jury charge.


[165] *fn3 Not unlike some English expletives, "Cabron" is amenable to use as a term of endearment between friends. However, in this context, it was certainly reasonably inferrable that it was intended and understood as a serious insult.


[166] *fn4 Section 242 denounces: "[w]hoever, under color of any law . . . willfully subjects any person in any State . . . to the deprivation of any rights . . . protected by the Constitution. . ."


[167] *fn5 The defendant Reyna, as an initial matter, also argues that deliberate indifference is a civil standard from section 1983 cases, and that a criminal prosecution under § 242 should require nothing less than willfulness. This argument confuses two separate and independent culpability standards. The willfulness culpability standard that the prosecution must prove to support a § 242 conviction is independent of the "deliberate indifference" standard that the Court requires for a violation of the due process right to medical care while in custody. For example, the Supreme Court has held that "section 1983, unlike its criminal counterpart, 18 U.S.C. § 242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels v. Williams, 106 S.Ct. 662, 664 (1986). For a § 1983 claim the plaintiff need prove deliberate indifference, because that much is required to prove a violation of the due process right. However, for a § 242 claim, the prosecution must also prove that the defendant acted willfully.


[168] *fn6 The charge instructed the jury, among other things, that in order to convict the jury must find "that the defendant acted willfully, that is, that the defendant committed such act or acts with a bad purpose or evil motive intending to deprive Serafim Carrera of that right" and that
"[t]he third element which the government must prove beyond a reasonable doubt is that the defendant acted willfully. Willfully means that the defendant acted voluntarily and intentionally with the intent not only to act with a bad or evil purpose, but specifically to act with the intent to deprive a person of a federal right made definite by decisions or other rule of law . . . .
To find that a defendant acted willfully, you must find that the defendant had the specific intent to deprive another of the federally protected rights, in Counts 1 and 2, to be free from the use of excessive force, and in Counts 3, 4 and 5, to receive necessary medical care while in the custody of government officers when those officers know of the presence of a serious medical need."
With respect to each of the deliberate indifference counts (Counts three, four and five) the court also instructed "the government must prove beyond a reasonable doubt that the defendant knew that Serafin Carrera had a serious medical need and willfully denied or delayed providing necessary medical care either through an act or an omission, disregarding an excessive risk to Mr. Carrera's health" and that this knowledge "cannot be established merely by demonstrating that the defendant was negligent" or "that a reasonable person would have known or that the defendant should have know."
As to the excessive force counts (counts one and two) the jury was also instructed that in order to convict it had to find that the charged defendant "intentionally used force against Serafin Carrera, knowing it to be excessive."


[169] *fn7 Gonzales advances the bizarre claim that pepper spray is a "non painful method of force," and, as evidence of pepper spray's soothing qualities, he cites capsicum's use in arthritis medicine. This evidence was never presented to the jury.


[170] *fn8 It may be that Brugman, 364 F.3d at 618, misread U.S. v. Harris, 293 F.3d 863, 870 (5th Cir. 2003), as holding that, in a § 242 felony prosecution involving a constitutional excessive force violation, the § 242 "bodily injury" requirement was the same as that for the constitutional excessive force violation. But, in Harris we expressly disclaimed consideration of the § 242 "bodily injury" requirement (because there "use of a dangerous weapon" made the offense a felony even if there were no bodily injury). Harris at 870 & n.6. In any event, with respect to count two here, which is an excessive force count, we are clearly bound by Brugman, likewise an excessive force case.
In part IIIC below, addressing counts three, four and five (deliberate indifference to serious medical needs), we apply to § 242 essentially the definition of "bodily injury" contained in 18 U.S.C. §§ 831(f)(5), 1365(h)(4), 1515(a)(5) and 1864(d)(2). That is largely the same definition as given in the trial court's charge here ("Bodily injury includes physical pain as well as any . . . impairment of a bodily function"), and no objection to that definition has been raised on appeal. The evidence here likewise suffices to establish "bodily injury" under this definition for purposes of count two.
Gonzales's reliance on U.S. v. Lancaster, 6 F.3d 208 (11th Cir. 1993), is misplaced. There the court affirmed the district court's finding that the "maced" victim had not suffered a "bodily injury" for purposes of U.S.S.G. § 2B3.1(b)(3), using the U.S.S.G. § 1B1.1 note 1(b) definition thereof as "any significant injury; e.g., an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought." Lancaster relied on the fact that "[t]he effect of the mace" on the victim "lasted minutes, not hours" and on deference to the trial court. Id. at 211. Here, by contrast, Carrera's eyes were swollen shut for at least three hours and we are asked to reverse, not affirm, the factfinder.


[171] *fn9 Moreover, it is not clear that the section 242 "and if bodily injury results" clause can be invoked only if the defendant intended bodily injury. See United States v. Hayes, 589 F.2d 811, 820-21 (5th Cir. 1979).


[172] *fn10 Or the violation must have involved the use (or attempted or threatened use) of "a dangerous weapon, explosives, or fire," or "death results" from it, none of which is charged here.


[173] *fn11 Gonzales did file a pre-trial motion in limine seeking to exclude evidence of some statements by Carrera as hearsay, but there is no indication that the district court ever made a definitive ruling thereon. In order to preserve this issue for appellate review Gonzales was hence required to object at trial when evidence of Carrera's statements was offered. See Fed. R. Evid. 103(a); U.S. v. Duffaut, 314 F.3d 203, 209 (5th Cir. 2002).


[174] *fn12 And, to the extent "delay" and "deny" are different in this context, the former is sufficiently embraced in the latter.


[175] *fn13 Gonzales also claims this violated his confrontation rights. That claim is clearly without any merit. "Because the government did not use [the deported witness's] testimony at trial, in either live or recorded form, confrontation is not at issue here." United States v. Colin, 928 F.2d 676, 679 (5th Cir. 1991).


[176] *fn14 The court added, "based on what the government is telling us, it does sound as if all reasonable efforts and even some unreasonable ones may have already been taken."


[177] *fn15 Gonzales (and his counsel) are clearly charged with knowledge whether the canister he carried on March 25, 2001 then had a safety tab (and whether it had a safety tab when issued to him). Nor is there anything indicating that either lacked such knowledge. Gonzales was thus required to object at trial. See Beltran v. Cockrell, 294 F.3d 730, 736-37 (5th Cir. 2002).


[178] *fn16 Gonzales testified at sentencing that the discharge was accidental. The district court enhanced his sentence for obstruction of justice in part on the basis that such testimony was knowingly false. Gonzales challenges the enhancement on this appeal but on grounds unrelated to whether his sentencing testimony could properly be found to have been knowingly false.


[179] *fn17 In all, three government attorneys argued in three segments for a total of some 153 minutes and four defense counsel argued in some seven segments for a total of about 179 minutes.


[180] *fn18 Counsel for Gomez merely stated "we'd object for the record" and counsel for the other two defendants merely stated, respectively, "I join in that objection" and "I'll join in that as well."


[181] *fn19 [Defense Counsel]: Richard Gonzales came up to Frank Gonzalez and said, "I just had an accidental discharge . . ." [AUSA]: Your Honor, it's hearsay. [Defense Counsel]: The hearsay is a state of mind of Mr. Gonzalez. [The Court]: How is it indicative of the state of mind, if it is-why is it relevant if it's not true?


[182] *fn20 The government, in reliance on Lambright, argues that Carrera was vulnerable merely because he was in custody. United States v. Lambright, 320 F.3d 517, 518 (5th Cir.2003). This theory of vulnerability is incorrect. In Lambright, where this court held that a prisoner who was assaulted while locked in his cell was vulnerable, the assault itself was the underlying constitutional violation. That violation was independent of, and made worse by, the fact that the prisoner was in custody. But here, the constitutional violation of deliberate indifference depends on Carrara being in custody: without custody there is no duty to provide medical care. Thus, the vulnerability of being in custody is not unusual to this type of crime; it is a prerequisite.


[183] *fn21 We note that in any event Gonzales's contention is clearly without merit. The district court's written statement of reasons for sentencing (furnished to the Bureau of Prisons) applied a base offense level of 12 and specifically rejected paragraph 73 of the PSR (the focus of Gonzales's complaint) which relied on "aggravated assault" and use of "a dangerous weapon" to recommend a base offense level of 21. As the district court's March 22, 2004 order states: "[t]he record available to the Bureau of Prisons makes clear that this court did not sentence Gonzales on the basis of aggravated assault or dangerous weapon." The requirements of Rule 32(i)(3)(B) & (C) was adequately met.

United States v. Rowlands, 451 F.3d 173 (3d Cir. 06/09/2006)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] No. 05-3425


[3] 451 F.3d 173,


[4] June 9, 2006


[5] UNITED STATES OF AMERICA
v.
DAVID C. ROWLANDS, APPELLANT


[6] On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 81-cr-00245) District Judge: Hon. John C. Lifland.


[7] Lawrence S. Lustberg Fruqan Mouzon (Argued) Gibbons, Del Deo, Dolan, Griffinger & Vecchione Newark, New Jersey 07102 Attorneys for Appellant


[8] Christopher J. Christie United States Attorney George S. Leone Chief, Appeals Division David B. Lat Mark E. Coyne (Argued) Assistant United States Attorneys Newark, New Jersey 07102-2535 Attorneys for Appellee


[9] The opinion of the court was delivered by: Sloviter, Circuit Judge.


[10] PRECEDENTIAL


[11] Argued April 21, 2006


[12] Before: SLOVITER and AMBRO, Circuit Judges, and DuBOIS*fn1 , District Judge.


[13] OPINION OF THE COURT


[14] This case presents the question of whether federal courts have the power to authorize expungement of a criminal record where the legality of the underlying criminal conviction is not being challenged. The District Court denied the application of Appellant David C. Rowlands for expungement of his 1982 conviction of several white collar crimes. On appeal, Rowlands contends that the District Court erred in holding that it lacked jurisdiction over his petition for expungement either pursuant to its inherent power to order equitable relief or pursuant to the All Writs Act.


[15] I.


[16] David Rowlands was a public official and employee of the town of Kearny, New Jersey. He served, at various times, as a Councilman and Mayor of Kearny. Unbeknownst to Rowlands, another Kearny public official solicited a bribe of $12,000 in cash from Richard Mace, the owner of a furniture store. In exchange for the bribe, Richard Mace was promised approval of his plans to build additional showrooms. Rowlands received $6,000 in cash, and the remainder of the bribe was kept by another public official.


[17] Rowlands was subsequently indicted and, following a jury trial, he was convicted of conspiring to obstruct and delay interstate commerce in violation of 18 U.S.C. § 1951, knowingly attempting to obstruct and delay interstate commerce by extortion, in violation of 18 U.S.C. § 1951-52, and knowingly attempting to influence and obstruct a federal grand jury investigation, in violation of 18 U.S.C. § 1503. Rowlands was sentenced to eight years in prison. In explaining this sentence, the District Court stated: "I was morally certain that the way they were operating in that community on that one transaction indicated to me that they were in business and that there was a lot more to Messrs. Rowlands and Grimes than the $6,000 they each took from Mr. Mace." App. at 31-32. Nonetheless, after Rowlands had served only ten months, the District Court reduced Rowlands's sentence to time served. Two Assistant United States Attorneys who had prosecuted Rowlands on behalf of the Government urged reduction of Rowlands's sentence because of his significant post-sentencing cooperation in the Government's investigation and prosecution of others. At the sentence reduction hearing, the District Court noted, "I am satisfied, morally and beyond any shadow of a doubt that these two men have fully cooperated and have done everything they could do to be honest, truthful and helpful, and to make amends." App. at 33. While a co-defendant's defense lawyer was present at the hearing, Rowlands's defense lawyer was not.


[18] Since Rowlands's release from prison in 1983, he has been gainfully employed in the retail automobile industry as a salesman and manager. In 1990, he sought reinstatement of his teaching certificate, which had been revoked pursuant to New Jersey law, because of his conviction. See generally N.J.S.A. 18A:6-38. Two Assistant United States Attorneys who prosecuted Rowlands on behalf of the Government wrote letters on Rowlands's behalf. One wrote to the New Jersey State Board of Examiners and urged the Board to "exercise lenity" and reinstate Rowlands's teaching certificate. The other sent a letter that stated, "While there is no question that Mr. Rowlands was properly convicted of serious crimes, there is also no question that he has been punished for those crimes and that he has done all within his power to make restitution. . . . It is my personal hope that David Rowlands' past criminal activity will not be a permanent impediment to meaningful and rewarding employment and community service in the future." App. at 36. In 2005, the State Board of Examiners declined to reinstate Rowlands's teaching certificate or to recertify him.


[19] Rowlands then turned to the courts. In January 2005, Rowlands petitioned the United States District Court for the District of New Jersey for an expungement of his criminal record. Rowlands contended that the District Court had jurisdiction over his petition pursuant to its inherent equitable power and pursuant to the All Writs Act, 28 U.S.C. § 1651. The District Court dismissed the petition, concluding that neither its inherent equitable powers nor the All Writs Act provided it with jurisdiction over Rowlands's petition. On July 8, 2005, Rowlands timely filed his notice of appeal with this court.


[20] On this appeal, Rowlands explains that he seeks expungement of his record in order to gain re-certification as a teacher. He contends that because his defense attorney was not present at his reduction of sentence hearing, the issue of whether his conviction should serve as a permanent forfeiture of his New Jersey teaching license was never raised.


[21] This court has twice previously considered the question of whether federal courts have the power to authorize expungement of a criminal record. See United States v. Noonan, 906 F.2d 952 (3d Cir. 1990); United States v. Dunegan, 251 F.3d 477 (3d Cir. 2001). Rowlands contends that these decisions are "contradictory." Appellant's Br. at 9. We revisit the issue now to clarify our jurisprudence.


[22] II.


[23] A defendant who moves to expunge his or her conviction does not seek to vacate or set aside the conviction. Rather, s/he seeks "[t]he judicial editing of history." Rogers v. Slaughter, 469 F.2d 1084, 1085 (5th Cir. 1972) (per curiam). Although different states may define "expungement" differently, "in general when a defendant moves to expunge records, she asks that the court destroy or seal the records of the fact of the defendant's conviction and not the conviction itself." United States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004).


[24] Rowlands contends that this court's jurisprudence regarding expungement is inconsistent. He notes that in United States v. Noonan, we stated, "Clearly, a federal court has the inherent power to expunge an arrest and conviction record." 906 F.2d 952, 956 (3d Cir. 1990). However, eleven years later, in United States v. Dunegan, "we h[e]ld that in the absence of any applicable statute enacted by Congress, or an allegation that the criminal proceedings were invalid or illegal, a District Court does not have the jurisdiction to expunge a criminal record, even when ending in an acquittal." 251 F.3d 477, 480 (3d Cir. 2001). According to Rowlands, "The Dunegan panel's conclusion was in direct contradiction to the earlier Noonan decision." Appellant's Br. at 19. We find this argument unconvincing. A close reading of Noonan and Dunegan demonstrates that the two opinions are not in conflict.


[25] In his case, Noonan sought expungement of his conviction of violation of the Military Selective Service Act. Noonan's argument that his record should be expunged was predicated on the premise that "a Presidential pardon has the force of wiping out guilt." Noonan, 906 F.2d at 958. Therefore, he contended the presidential pardon, restoring to him "full political [and] civil rights" as well as "other rights" constituted the legal authority for expunging his criminal conviction." Id. at 955 (alteration in original) (internal quotation marks omitted). We rejected the argument that "the President has the ability, through the pardon power vested under Article II, § 2, to tamper with judicial records." Id. at 956. We stated that such an idea "flies in the face of the separation of powers doctrine." Id. After noting that in inquiring into the effect of a pardon on a valid conviction record we were writing on a clean slate, we stated: "The collective experience of our judiciary reflected by reported cases, however, discloses that expunction of criminal court records is an extraordinary remedy. Clearly, a federal court has the inherent power to expunge an arrest and conviction record." Id. Rowlands relies on the latter sentence as the basis for his claim that we have jurisdiction. Significantly, in Noonan we ultimately held that a presidential pardon did not entitle Noonan to expungement of his criminal record.


[26] Rowlands is mistaken in his contention that Noonan holds that this court has jurisdiction over any and all petitions for expungement. Our holding in Noonan was not nearly that broad. We held only that we have jurisdiction over petitions for expungement in certain narrow circumstances -- namely, where the "predicate for the expunction is a challenge to the validity of either the arrest or conviction." Id. at 957. We noted that the instances in which courts had previously granted expungement were those "in which a court invoked its inherent power to remedy an acquittal, an unconstitutional conviction or an abuse of power." Id. We noted that we found no cases in which expungement had "been ordered (1) where the circumstances of conviction have not been challenged, or (2) on the basis of a pardon following an unchallenged or otherwise valid conviction." Id. In cases where expungement was warranted, we applied "a balancing test in which the harm to the individual caused by the existence of the records is weighed against the governmental interest in maintenance of the records." Id. Because we found Noonan's argument that his pardon "blot[ted] out of existence [his] guilt" unconvincing, we declined to apply the balancing test to his case. Id. at 955 (internal quotation marks omitted).


[27] The cases upon which Noonan relied support our conclusion here that we have jurisdiction over petitions for expungement in narrow circumstances: where the validity of the underlying criminal proceeding is challenged. In United States v. Friesen, the court stated that only "unusually compelling circumstances . . . justify the exercise of the trial court's 'narrow' power to order expunction." 853 F.2d 816, 818 (10th Cir. 1988). Because the trial court had granted a petition for expungement without a finding of unusual circumstances, the Court of Appeals for the Tenth Circuit reversed the grant. Similarly, in United States v. McMains, the court stated, "It is established that the federal courts have inherent power to expunge criminal records when necessary to preserve basic legal rights. The power is a narrow one, usually exercised in cases of illegal prosecution or acquittals and is not to be routinely used." 540 F.2d 387, 389-90 (8th Cir. 1978) (citations omitted). Nearly all of the cases the McMains court cited in support of its conclusion that district courts have jurisdiction over petitions for expungement challenged the legality of the underlying criminal proceeding.*fn2


[28] Our narrow holding in Noonan does not conflict with our holding in Dunegan as Rowlands vigorously argues. In Dunegan, we addressed the question of whether this court had "jurisdiction . . . to entertain . . . a petition [for expunction] in the absence of a challenge to the legality of the conviction or arrest." 251 F.3d at 479 (emphasis added). Dunegan was a police officer who had been indicted for violating a suspect's civil rights. He was subsequently tried and acquitted. Dunegan did not contend that his indictment was invalid or legally infirm for any other reason. The Dunegan court expressly did not "consider . . . whether a record may be expunged on the basis of Constitutional or statutory infirmity in the underlying criminal proceedings or on the basis of an unlawful arrest or conviction." Id. at 480. It is evident, therefore, that our holding in Noonan -- that we have jurisdiction to consider expungement where the underlying criminal proceeding is being challenged -- does not contradict Dunegan.


[29] Notwithstanding our holdings in Noonan and Dunegan, Rowlands urges this court to follow, inter alia, United States v. Johnson, 714 F. Supp. 522 (S.D. Fla. 1989), and United States v. Doe, 935 F. Supp. 478 (S.D.N.Y. 1996). In Johnson, the court granted a petition for expungement because Johnson was acquitted and retention of his criminal records would result in the denial of future jobs. In Doe, the court granted a petition for expungement in similar circumstances. These cases are unconvincing. They are not from this Circuit, and our precedent clearly establishes that we have jurisdiction over petitions for expungement only when the validity of the underlying criminal proceeding is challenged. Because Rowlands has not attacked the validity of the underlying conviction, we reject his contention that we have inherent jurisdiction over his petition for expungement.


[30] III.


[31] Rowlands's alternative contention that the All Writs Act, 28 U.S.C. § 1651, grants federal district courts the legal authority to expunge the record of a legal and valid criminal conviction is also unavailing. The All Writs Act, in pertinent part, provides: "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). "[A] court of appeals has the power, under the 'all writs' act, to issue a writ . . . 'where it may be necessary for the exercise of a jurisdiction already existing.'" United States v. Brooks, 230 F.3d 643, 646 n.3 (3d Cir. 2000) (citing Whitney v. Dick, 202 U.S. 132, 136-37 (1906)); see also Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 33 (2002). We concluded above that we do not have jurisdiction over Rowlands's petition. The All Writs Act does nothing to alter our conclusion.


[32] Rowlands unconvincingly argues that other courts have found authority to grant petitions for expungement pursuant to the All Writs Act. He cites to United States v. Javanmard, 767 F. Supp. 1109 (D. Kan. 1991), and United States v. Bohr, 406 F. Supp. 1218 (E.D. Wisc. 1976), in support of this contention. In Javanmard, the court granted a petition for expungement of a criminal conviction pursuant to a guilty plea because the record of the conviction would preclude the petitioner from availing himself of the amnesty provisions of the Immigration Reform and Control Act. The court found that it had jurisdiction over the petition for expungement and invoked the All Writs Act in aid of that jurisdiction. In Bohr, the court granted a petition for expungement where the petitioner was a lawyer whose legal practice was severely hindered by the record of his conviction.*fn3


[33] Neither of these cases provides any support for Rowlands's contention. First, we have concluded we lack jurisdiction over his petition. Second, both Javanmard and Bohr have been superseded by appellate authority from the applicable courts of appeals. In United States v. Pinto, 1 F.3d 1069 (10th Cir. 1993), the Court of Appeals for the Tenth Circuit (which includes the District of Kansas) held that it lacked authority to expunge the petitioner's conviction for filing false tax returns. The petitioner did not challenge the validity of her conviction but contended that the record of the conviction impeded her from finding employment. The court held that the trial court "was without power to grant this petition." Id. at 1070. It also rejected the All Writs Act as a source of jurisdiction over Pinto's petition: "While we agree that the All Writs Act plays a part in enabling the court to issue the writs . . . necessary to accomplish an actual expungement, we believe that the authority to consider the issue in the first place is not contained in that Act." Id. at 1070 n.1. Pinto clearly rejects the reasoning in Javanmard.


[34] Similarly, in United States v. Flowers, 389 F.3d 737 (7th Cir. 2004), the Court of Appeals for the Seventh Circuit (which includes the District of Wisconsin) held that expungement is not available to remedy "adverse consequences which attend every arrest and conviction. Those are unfortunate but generally not considered unwarranted adverse consequences. It is possible, even likely, that any person with an arrest or conviction record may well be impeded in finding employment." Id. at 739 (emphasis in original). As an example of "unwarranted adverse consequences," the court cited to McLeod, in which the Court of Appeals for the Fifth Circuit ordered expungement of records of arrests made in order to harass. See United States v. McLeod, 385 F.2d 734 (5th Cir. 1967). Under Flowers, the analysis in Bohr is incorrect. A defendant's difficulty in finding or retaining employment is a common consequence of conviction and does not constitute grounds for expungement.


[35] Because we agree that there is no jurisdiction over Rowlands's petition for expungement, we will affirm the District Court's dismissal.



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Opinion Footnotes

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[36] *fn1 Hon. Jan E. DuBois, Senior Judge, United States District Court for the Eastern District of Pennsylvania.


[37] *fn2 See Menard v. Saxbe, 498 F.2d 1017 (D.C. Cir. 1974) (holding that expungement of arrest record from FBI files appropriate where law enforcement officers lacked probable cause to arrest defendant); Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973), cert. denied, 414 U.S. 880 (1974) (finding expungement of records of mass arrests appropriate where established procedures broke down so that there was no showing of probable cause); United States v. McLeod, 385 F.2d 734 (5th Cir. 1967) (finding expungement of criminal records appropriate when arrests were made for purpose of interfering with right to vote). The one exception is Chastain v. Kelley, 510 F.2d 1232 (D.C. Cir. 1975). In that case, the petitioner, an FBI agent, sought expungement of the administrative record regarding his dismissal after the FBI reversed its decision to dismiss him.


[38] *fn3 The relevance of the All Writs Act to the holding in Bohr is unclear. The court cites the Act in passing without any discussion.

WILLIAM MADISON HOWELL, Plaintiff-Appellant v. JAMES PROCTOR, Captain, Defendant-Appellee

No. 04-13256 Non-Argument Calendar

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

136 Fed. Appx. 267; 2005 U.S. App. LEXIS 11463


June 14, 2005, Decided
June 14, 2005, Filed

NOTICE: NOT FOR PUBLICATION




COUNSEL: William Madison Howell, Appellant, PRO SE, FOLKSTON, GA

For James Proctor, Appellee: Christopher Dean Balch, Swift, Currie, McGhee & Hiers, Atlanta, GA; Jamie Ponder Woodard, Swift, Currie, McGhee & Hiers, LLP, ATLANTA, GA

JUDGES: Before HULL, WILSON and KRAVITCH, Circuit Judges.

OPINION

PER CURIAM:

William Madison Howell ("Howell"), a Georgia state prisoner proceeding pro se, appeals the magistrate judge's grant of summary judgment in his civil rights action brought pursuant to 42 U.S.C. § 1983. 1 The magistrate judge based his grant of summary judgment on the conclusion that Howell's action was barred by the statute of limitations. For the reasons that follow, we vacate and remand.


FOOTNOTES

1 The parties consented to the jurisdiction of the magistrate judge.



I. Facts

Howell filed a pro se 42 U.S.C. § 1983 complaint against [**2] Camden County Sheriff William Smith, Captain James Proctor, and various other Camden County Jail staff, alleging violations of his Eighth Amendment and Fourteenth Amendment rights. Specifically, Howell alleged that the defendants were: (1) deliberately indifferent to a serious risk of harm when they failed to prevent an attack by another inmate on March 24, 2000; (2) deliberately indifferent to his medical needs following the attack; (3) deliberately indifferent to his medical needs by denying him medication prescribed by his doctor from December 1999 to February 2, 2001; and (4) violated his equal protection rights by shackling him whenever he was removed from his cell from December 1999 to February 2, 2001.

The magistrate judge ordered Howell to show cause how the claims were logically related. Howell responded that he was bringing a § 1983 complaint against Proctor for cruel and unusual punishment in connection with actions taken between December 1999 and February 2, 2001. The magistrate judge conducted the required screening under the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. §§ 1915 and 1915A, and permitted the claims against Proctor to proceed, [**3] but dismissed the claims against the remaining defendants.

After submitting his answer, Proctor moved for summary judgment, arguing inter alia, that Howell's claims were barred by the two-year statute of limitations. The magistrate judge granted summary judgment, reasoning that the alleged conduct forming the basis of the complaint occurred on March 24, 2000 and between December 1999 and February 2, 2001, but Howell did not file suit until March 21, 2003, 2 more than two years after the alleged conduct occurred.


FOOTNOTES

2 Although Howell signed and dated his complaint on February 2, 2001, Howell acknowledges that his complaint was filed on March 21, 2003. Generally it is presumed that a prisoner's complaint is delivered to prison authorities on the date on which it is signed, and the complaint is deemed filed on that date under the mailbox rule. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001); Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993). Here, however, Howell does not argue that he placed the complaint in the prison mail on the February 2001 date, but rather acknowledges that the complaint was filed in March 2003. Thus, he has abandoned any argument as to the filing date of his complaint. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).


II. Discussion

We review a district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the party opposing the motion. Wilson v. B/E [*269] Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). " Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

Because this is a § 1983 action, the applicable statute of limitations is the forum state's statute of limitations for personal injury actions. Lovett v. Ray, 327 F.3d 1181 (11th Cir. 2003). Georgia's statute of limitations is two years. Thigpen v. Bibb County, Ga., Sheriff's Dep't, 223 F.3d 1231, 1243 (11th Cir. 2000). Although we apply Georgia law in this regard, federal law determines the date on which the statute begins to run, and this court has held that the statute of limitations [**5] begins to run from the date "the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights." 3 Brown v. Georgia Bd. of Pardons & Paroles, 335 F.3d 1259, 1261 (11th Cir. 2003) (citing Rozar v. Mullis, 85 F.3d 556, 561-62 (11th Cir. 1996) (internal quotation marks and citation omitted).


FOOTNOTES

3 An exception to this rule is the continuing violation doctrine. "The critical distinction in the continuing violation analysis . . . is whether the plaintiff[] complainf[s] of the present consequence of a one time violation, which does not extend the limitations period, or the continuation of that violation into the present, which does." Knight v. Columbus, Ga., 19 F.3d 579, 580-81 (11th Cir. 1994) (internal quotation marks omitted).



We agree with much of the magistrate judge's analysis. As noted earlier, Howell's complaint raised four alleged constitutional violations: (1) he was attacked by [**6] another inmate; (2) he was denied medical care after the attack; (3) he was denied medical care on a daily basis because the prison officials refused to provide him medications; and (4) he was always placed in shackles upon leaving his cell. The two claims relating to the alleged attack occurred on or around March 24, 2000. These were single incidents that occurred more than two years before the complaint was filed. Thus, the magistrate concluded that these claims were barred by the statute of limitations. The two other claims arose out of conduct that allegedly occurred between December 1999 and February 2, 2001. The magistrate judge reasoned that even as continuing violations, these claims were time-barred because Howell did not file suit until March 21, 2003, more than two years after February 2, 2001. 4


FOOTNOTES

4 In his brief, Howell contends that the district court used the incorrect termination date of the alleged constitutional violations. He argues that April 16, 2001 is the correct termination because he was not transferred out of the prison until April 16, 2001. This argument has no merit. In response to the court's order to show cause, Howell stated that he was raising violations that occurred between December 1999 and February 2, 2001. Thus, Howell himself established the date on which he was aware of his constitutional claims.



There is, however, a key problem in the magistrate judge's analysis. The magistrate judge failed to address whether the time period may have tolled while Howell pursued administrative remedies. Howell argued before the magistrate judge, and argues to this court, that the statute of limitations should have tolled while he pursued administrative remedies, and that officials never responded to his grievances. Based on the factual record before us, we cannot make a determination as to whether tolling might be appropriate. See Hughes v. Lott, 350 F.3d 1157, 1163 (11th [*270] Cir. 2003); Leal v. Georgia Dep't of Corr., 254 F.3d 1276, 1279-80 (11th Cir. 2001).

Thus, because the magistrate judge never addressed Howell's argument that the statute of limitations tolled while he pursued his administrative remedies, we VACATE and REMAND for the magistrate judge to conduct further factual findings to determine if tolling was appropriate, making any of the claims timely.

Schardt v. Payne, 414 F.3d 1025 (9th Cir. 07/08/2005)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 02-36164


[3] 414 F.3d 1025, 2005 Daily Journal D.A.R. 8267, 05 Cal. Daily Op. Serv. 6037


[4] July 8, 2005


[5] DALE E. SCHARDT, PETITIONER-APPELLANT,
v.
ALICE PAYNE, RESPONDENT-APPELLEE.


[6] Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-02-00301-TSZ.


[7] Counsel


[8] Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington, for the petitioner-appellant.


[9] Diana M. Sheythe and John J. Samson, Assistant Attorney General, Office of the Washington Attorney General, Criminal Justice Division, Olympia, Washington, for the respondent-appellee.


[10] David Zuckerman and Jeffery L. Fisher, Nacdl Amicus Committee, Seattle, Washington, for amicus Nacdl.


[11] The opinion of the court was delivered by: Alarcon, Senior Circuit Judge


[12] FOR PUBLICATION


[13] Argued and Submitted November 2, 2004


[14] Submission Deferred November 3, 2004


[15] Resubmitted May 9, 2005 -- Seattle, Washington


[16] Before: Arthur L. Alarcon, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.


[17] OPINION


[18] We must decide in this matter the novel question whether a Washington state prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced by the United States Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004). We conclude that Blakely does not apply retroactively to convictions that became final prior to its publication. We also hold that the petitioner has failed to demonstrate that he was ineffectively represented by his trial counsel.


[19] I.


[20] Mr. Schardt was charged with one count of rape of a child in the first degree,*fn1 a class A felony under Washington law. The accusatory pleading alleges that Mr. Schardt had sexual intercourse with a child who was less than twelve years old from April 1, 1996 to April 22, 1997, a period of more than a year.


[21] At trial, B.E. ("the victim") testified that Mr. Schardt committed numerous acts upon her person that come within Washington's definition of the term "sexual intercourse."*fn2 She stated that this conduct began sometime after she and her mother moved in with Mr. Schardt in early 1996. The victim testified that Mr. Schardt engaged in sexual intercourse with her several times a month. She described the various places in the residence where these acts occurred and the ways in which Mr. Schardt would position their bodies in order to engage in sexual intercourse. She testified that Mr. Schardt committed the last act of sexual intercourse on the morning of April 22, 1997.


[22] The victim testified that on April 22, 1997, she was in bed when Mr. Schardt entered her room. He told her that she "owed" him. He took off her clothes, and placed Vaseline on his penis and attempted to insert it in her vagina. Mr. Schardt also touched her vagina with his mouth and fingers.


[23] The victim's mother, testified that she lived with Mr. Schardt from March 1996 until the end of April 1997. The victim's mother stated that she took the victim to a hospital for a medical examination a day or so after the April 22, 1997 incident.


[24] A nurse practitioner testified that she examined the victim on April 25, 1997 and found "a notch" on her hymen which was "indicative of penetrating trauma, or attempted penetrating trauma" and consistent with sexual abuse.


[25] In his defense, Mr. Schardt testified that as a result of an on-the-job injury to his back, he began taking muscle relaxants that impaired his ability to have an erection. He stated that this problem began to occur around January 1997. Mr. Schardt's counsel did not introduce any medical records into evidence regarding Mr. Schardt's complaint of erectile dysfunction.*fn3


[26] The judge's admonition to the jury contained the following instruction:


[27] There are allegations that the defendant committed acts of rape of a child in the first degree on multiple occasions. To convict the defendant, one or more particular acts must be proved beyond a reasonable doubt and you must unanimously agree as to which act or acts have been proved beyond a reasonable doubt. You need not unanimously agree that all the acts have been proved beyond a reasonable doubt.


[28] Thus, the jury was not required to make a finding regarding whether Mr. Schardt had repeatedly committed rape of a child during the one-year period. Based on this instruction, the members of the jury could have convicted Mr. Schardt if they agreed that only one act of rape had been proven beyond a reasonable doubt. The jury found Mr. Schardt guilty as charged.


[29] The court determined that Mr. Schardt had a standard sentence range of 78 to 102 months under Washington's Sentencing Reform Act.*fn4 Under that statute, a court can increase the standard sentence if it finds that there are aggravating factors.*fn5 The judge must determine the existence of any aggravating factors "by a preponderance of the evidence." Wash. Rev. Code § 9.94A.530(2). These factors include:


[30] The defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health. . . .


[31] The current offense involved multiple victims or multiple incidents per victim.


[32] Wash. Rev. Code § 9.94A.535 (2004). The state trial court sentenced Mr. Schardt to serve 204 months in prison based on its findings of fact that:


[33] 1. The defendant was victim B.E.'s surrogate stepfather and/or father-figure and was one of two primary custodial parents during the entire span of time the offenses were committed.


[34] 2. The offenses were committed against B.E. over an approximately one year period when B.E. was between the ages of 10 years and 11 years old.


[35] In its conclusions of law, the trial court stated:


[36] 1. In committing these offenses the defendant abused his position of trust and confidence as a surrogate stepfather and custodial parent.


[37] 2. The victim was, at the time of the offenses, particularly vulnerable and incapable of resistance due to her extreme youth.


[38] 3. The offenses committed were part of an ongoing pattern of sexual abuse of the same victim and involved multiple incidents over a prolonged period of time.


[39] The Washington Court of Appeals affirmed Mr. Schardt's conviction in an unpublished opinion. Mr. Schardt did not petition the Washington Supreme Court for direct review. Mr. Schardt's personal restraint petition was dismissed by the Washington Court of Appeals. The Washington Supreme Court denied Mr. Schardt's motion for discretionary review of the personal restraint petition.


[40] In his state prisoner petition for habeas corpus filed pursuant to 28 U.S.C. § 2254, Mr. Schardt raised three arguments:


[41] (1) his sentence violated the Sixth Amendment right to a jury trial as construed by Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) more than a preponderance of the evidence was required to enhance his sentence, and (3) his trial counsel was ineffective because he failed to discover and submit reports made by Mr. Schardt's treating physicians showing that he had complained of erectile dysfunction at the time of the alleged rapes. The district court denied the petition. The district court had jurisdiction over this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241, 2254. We have jurisdiction to review Mr. Schardt's timely appeal under 28 U.S.C. § 1291.


[42] II.


[43] Mr. Schardt contends that he received ineffective assistance of counsel at the guilt phase of his trial. We review de novo a district court's denial of habeas corpus relief. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). In order to prevail on his claim of ineffective assistance of counsel, Mr. Schardt "must show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, he must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687.


[44] Mr. Schardt correctly notes that to show prejudice under Strickland, he need only demonstrate "that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Wade v. Calderon, 29 F.3d 1312, 1323 (9th Cir. 1994) (citing Strickland, 466 U.S. at 687), overruled on other grounds by Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 815 (9th Cir. 2003). He argues that counsel's failure to introduce medical records reflecting his complaint of erectile dysfunction prejudiced him because such evidence would have corroborated his testimony, and impeached the victim's testimony regarding penile penetration. He asserts that the doctor's records would be particularly persuasive, because "the reports were made before any allegations or charges of child rape or anything like it were ever brought forward. They were made at a time when there was no suspicion being cast upon Mr. Schardt."


[45] In response, the State first points out that the medical reports did not show that Mr. Schardt's physician diagnosed him as suffering from erectile dysfunction. The medical reports merely record that Mr. Schardt had made "unproven, undiagnosed, and self-serving statements [to his treating physician] who did not have the expertise to diagnose or treat such a dysfunction." The State also notes that the victim described numerous ways in which Mr. Schardt had engaged in sexual intercourse with the victim as defined under Washington law that can be effected without an erection. Furthermore, Mr. Schardt did not complain of erectile dysfunction until after an accident in October 1996, but he was charged with committing rape during a period that began in April 1996.


[46] [1] The record shows that at the time Mr. Schardt complained to his physician regarding erectile dysfunction, he had not been criminally charged. He asserts that it would be difficult for a jury to believe that he would lie to his physician about erectile dysfunction in a private setting before he was criminally charged with rape of a child, in an effort to protect himself against possible charges in the future. He also maintains that, while he complained of erectile dysfunction only midway through the period for which he was charged, and although some of the acts described by the victim could have been performed without erection, "witness credibility is so critical that it is outcome-determinative. It was in this context that [the victim] described Mr. Schardt attaining an erection and attempting penile-vaginal intercourse. If this were a medical impossibility for Mr. Schardt, it would cast doubt on all of the girl's allegations." Appellant's Opening Br. at 44.


[47] [2] Evidence that Mr. Schardt complained to his treating physicians that he suffered from erectile dysfunction would not have corroborated his denial of his criminal conduct that did not require penile penetration. The victim testified that Mr. Schardt molested her seven to ten times per month but that he attempted penile penetration only a few times. Admitting medical evidence that he complained of erectile dysfunction might well have been harmful to Mr. Schardt's defense because it would have supported the victim's testimony that Mr. Schardt rarely attempted penile penetration.


[48] [3] Mr. Schardt has the burden of showing that there is a reasonable probability that his lawyer's failure to enter the doctor's note into evidence deprived him of a fair trial. He has failed to do so.


[49] III.


[50] Mr. Schardt also contends that the trial judge's decision to increase his sentence based on facts not found by the jury violated his Sixth Amendment right to a trial by jury under Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 124 S.Ct. 2531 (2004).


[51] A.


[52] Before we reach Mr. Schardt's contention about the application of Apprendi and Blakely to this case, we must first determine whether this issue is properly before us. After denying Mr. Schardt's petition for habeas corpus relief, the district court granted a certificate of appealability ("COA"). Its order states:


[53] The Court finds that petitioner is entitled to a certificate of appealability on the issues of (1) whether the petitioner adequately presented his claim that the federal due process clause requires a heightened standard of proof when a sentencing factor results in an exceptional sentence, and (2) whether the petitioner was denied effective assistance of counsel because his attorney failed to discover and use exculpatory evidence.


[54] The State contends that Mr. Schardt is precluded from raising the question whether the district court judge violated Apprendi by enhancing Mr. Schardt's sentence based solely on the trial court's findings because this issue is not clearly identified in the COA.


[55] [4] We disagree with the State. Under Circuit Rule 22-1(d), as it existed when Mr. Schardt filed his appeal in this case, Mr. Schardt had thirty-five days from the district court's entry of its order denying a COA to seek a broader COA from this court.*fn6 Mr. Schardt did not file a motion requesting certification of additional issues on appeal within the specified thirty-five-day period. However, effective January 1, 2004, we amended Circuit Rule 22-1 to allow additional methods of seeking an expanded COA. Of particular importance to this case is new Circuit Rule 22-1(e), which allows a petitioner to brief uncertified issues in his or her brief to us, using separate headings in the brief for "certified issues" and "uncertified issues." Under this rule, we construe such briefing as a request for an expanded COA.


[56] [5] We construe Circuit Rule 22-1(e) to apply to merits briefs filed in this court after the effective date of the rule. Mr. Schardt filed his supplemental brief addressed to the Blakely issue on August 2, 2004, seven months after its [the] effective date [of the rule]. The State, however, points out that Schardt has not set off its discussion of the Blakely issue under a separate heading of "uncertified issues," as required by Circuit Rule 22-1(e). While we agree with the State that Schardt should have complied with this aspect of Circuit Rule 22-1(e), his noncompliance does not deprive us of jurisdiction to rule on his request for a COA. Indeed, in the circumstances of this case, Mr. Schardt's failure to provide a separate designation of his Blakely discussion as an "uncertified issue" could hardly have caused the confusion that this aspect of the rule is designed to prevent, for Mr. Schardt's supplemental brief is directed solely to the Blakely issue.


[57] B.


[58] The validity of the sentencing issue presented in Mr. Schardt's case is virtually indistinguishable from the question reviewed by the Supreme Court in Blakely. In both cases, the judge imposed a sentence greater than the standard range specified in Washington's Sentencing Reform Act based on findings made by the judge, rather than the jury.


[59] [6] In Blakely, the defendant pled guilty to kidnaping his estranged wife, a class B felony, which carried a maximum sentence of ten years. 124 S.Ct. at 2534.*fn7 Washington's Sentencing Reform Act specified a standard range of forty-nine to fifty-three months. Id. A Washington trial court enhanced Mr. Blakely's sentence based on its finding that he acted with "deliberate cruelty." Id. at 2534. Before the Supreme Court, Mr. Blakely argued "that this sentencing procedure deprived him of his federal constitutional right to have a jury determine beyond a reasonable doubt all facts legally essential to his sentence." Id. at 2536. The Supreme Court agreed and held that Mr. Blakely's sentence was invalid. Id. at 2538. The Supreme Court instructed:


[60] Our precedents make clear . . . that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," and the judge exceeds his proper authority.


[61] Id. at 2537 (citations omitted) (emphasis in the original).


[62] [7] Under Washington law the maximum sentence for a class A felony, such as the rape of a child, is life imprisonment.*fn8


[63] Under Washington's Sentencing Reform Act, however, the standard sentence Mr. Schardt would have received for a conviction for a single count of rape of a child is 102 months.*fn9


[64] In this matter the trial court doubled this sentence to 204 months based on its own independent findings of fact.


[65] Clearly, under Blakely, the state court erred in sentencing Mr. Schardt on the basis of facts not found to be true by a jury.


[66] The critical distinction between this case and Blakely is that Blakely was decided by the Supreme Court on a writ of certiorari from the defendant's direct appeal of his conviction. Id. at 2536. Mr. Schardt's case comes before us as a collateral attack on his sentence. If Mr. Schardt's case were still pending on direct appeal when Blakely was decided, we would be compelled to hold that Blakely was applicable. See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) ("[F]ailure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.").


[67] A state prisoner whose conviction is final may not automatically have the rule from a subsequently decided case applied in a petition for habeas corpus pursuant to § 2254. Teague v. Lane, 489 U.S. 288, 310 (1989). Congress has mandated that "[a] claim presented in a second or successive habeas corpus application under [28 USCS § 2254] that was not presented in a prior application shall be dismissed unless . . . the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). We held in Cook v. United States, 386 F.3d 949 (9th Cir. 2004) that the Supreme Court has not made Blakely retroactive to cases on collateral review. Id. at 950.


[68] [8] Cook does not control our decision here, however, because this is Mr. Schardt's initial petition, not a second or successive petition. In Teague v. Lane, the Court addressed the issue of whether a decision announced after a state prison-er's conviction becomes final can be applied retroactively. Teague lays out a three-part test for the retroactive application of a Supreme Court decision. Teague, 489 U.S. at 299-310. This process was reiterated in Beard v. Banks, 124 S.Ct. 2504 (2004) as follows:


[69] First, the court must determine when the defendant's conviction became final. Second, it must ascertain the legal landscape as it then existed and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is actually "new." Finally, if the rule is new, the court must consider whether it falls within either of the two exceptions to non-retroactivity.


[70] Id. at 2510 (citations and quotations omitted). The Court further explained that the two types of rules that are the exceptions to non-retroactivity are (1) "rules forbidding punishment of certain primary conduct or to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense"; and (2) "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 2513 (citations, quotations and alterations omitted).


[71] Before addressing each of these factors, we note that the Tenth Circuit has held that Blakely does not apply retroactively to cases on collateral appeal. See United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005) (Blakely does not apply retroactively to petitions brought under 28 U.S.C. § 2255); Young v. Neet, No. 04-1441, 2005 U.S. App. LEXIS 5382, at *9 (10th Cir. April 5, 2005) (Blakely does not apply retroactively to petitions brought under 28 U.S.C. § 2254). Several other circuits have held that United States v. Booker, 125 S.Ct. 738 (2005), which extends the reasoning of Blakely to the federal sentencing guidelines, is not retroactive. See Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (Booker does not apply retroactively to petitions brought under 28 U.S.C. § 2255); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005) (same); McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005) (same); Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005) (2d Cir. April 8, 2005) (same).


[72] We address each of the Teague factors in turn.


[73] 1. When did Mr. Schardt's conviction become final?


[74] [9] Mr. Schardt's conviction became final on December 22, 2000, after Apprendi was decided on June 26, 2000, but well before Blakely was announced on June 24, 2004.


[75] 2. Did Blakely announce a new rule?


[76] We have previously held that Apprendi announced a new rule. Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir. 2000). Mr. Schardt may have the benefit of the new rule announced in Apprendi, because his case was not final when Apprendi was decided. See Griffith, 479 U.S. 328 (when a Supreme Court decision results in a new rule, that rule applies to cases still pending on direct appeal). If Blakely created a new rule, however, Mr. Schardt cannot have the benefit of that rule because his conviction was final when Blakely was announced, unless his claim fits within the Teague exceptions. We therefore must determine whether Blakely created a new rule.


[77] In Teague, the Supreme Court instructed as follows:


[78] It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government.


[79] Teague, 489 U.S. at 301 (citations omitted).


[80] Mr. Schardt contends that Blakely did not announce a new rule. Instead, he argues that in Blakely, the Court simply applied the rule set forth in Apprendi. In support of this argument, he quotes the following language from Blakely:


[81] This case requires us to apply the rule we expressed in Apprendi . . . .


[82] . . . In Ring v. Arizona . . . we applied Apprendi to an Arizona law that authorized the death penalty if the judge found one of ten aggravating factors. . . .


[83] . . . Our commitment to Apprendi in this context reflects not just respect for longstanding precedent, but the need to give intelligible content to the right of jury trial. . . .


[84] . . . Those who would reject Apprendi are resigned to one of two alternatives.


[85] Blakely, 124 S.Ct. at 2536-39.


[86] The State argues that the Court created a new rule in Blakely. In support of this argument, the State points to Simpson v. United States, 376 F.3d 679 (7th Cir. 2004) in which the Seventh Circuit held that Blakely did more than just apply Apprendi; it created a new rule that was not compelled by Apprendi or its progeny. Id. at 681.


[87] In Beard, the Supreme Court recently revisited the question whether a case creates a new rule. The Court instructed: "We must . . . ask 'whether the rule later announced . . . was dictated by then-existing precedent - whether, that is, the unlawfulness of [the] conviction was apparent to all reasonable jurists.' " 124 S.Ct. at 2511 (quoting Lambrix v. Single-tary, 520 U.S. 518, 527-28 (1997)) (emphasis in the original).


[88] [10] Every circuit court of appeals that addressed the question presented in Blakely reached the opposite conclusion from the rule subsequently announced by the Supreme Court. See, e.g., United States v. Hughes, 369 F.3d 941, 946-47 (6th Cir. 2004) (once the jury has determined guilt, the judge may give the defendant a sentence of up to the statutory maximum based on findings made by the judge by a preponderance of the evidence); United States v. Francis, 367 F.3d 805, 820 (8th Cir. 2004) (same); United States v. Jardine, 364 F.3d 1200, 1209 (10th Cir. 2004); United States v. Alvarez, 358 F.3d 1194, 1211-12 (9th Cir. 2004) (same); United States v. Phillips, 349 F.3d 138, 143 (3rd Cir. 2003) (same); United States v. Patterson, 348 F.3d 218, 228-29 (7th Cir. 2003) (same); United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002) (same); United States v. Sanchez, 269 F.3d 1250, 1267-69 (11th Cir. 2001) (same); United States v. Webb, 255 F.3d 890, 898 (D.C. Cir. 2001) (same); United States v. Angle, 254 F.3d 514, 518 (4th Cir. 2001) (same); United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001) (same); United States v. Garcia, 240 F.3d 180, 183-84 (2nd Cir. 2001) (same). Thus, the rule announced in Blakely was clearly not apparent to all reasonable jurists, nor was it dictated by precedent.


[89] 3. Did Blakely create a new substantive rule?


[90] In its amicus brief, the NACDL argues that the rule in Blakely is a new substantive rule, rather than a procedural rule.*fn10


[91] New substantive rules generally apply retroactively. This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish. Such rules apply retroactively because they necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal or faces a punishment that the law cannot impose upon him.


[92] Schriro v. Summerlin, 124 S.Ct. 2519, 2522-23 (2004) (citations, quotations and footnotes omitted) (emphasis in the original).


[93] The amicus brief maintains that the principle announced in Blakely is a substantive rule because it holds that the jury must make findings that enhance a sentencing decision. We disagree. The Supreme Court has instructed that "[r]ules that allocate decisionmaking authority in this fashion are prototypical procedural rules . . . ." Schriro, 124 S.Ct. at 2523. Blakely allocated some of the decision-making authority previously held by judges to juries. Blakely, 124 S.Ct. at 2537. It is therefore a procedural rule.


[94] 4. Did Blakely announce a watershed procedural rule?


[95] [11] New procedural rules generally do not apply retroactively, unless they amount to " 'watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990) (quoting Teague, 489 U.S. at 311). To fit within this exception, the rule must be one "without which the likelihood of an accurate conviction is seriously diminished." Teague, 489 U.S. at 313. Blakely did not announce a water-shed rule of criminal procedure. The Tenth Circuit has recently explained:


[96] First, Blakely does not affect the determination of a defendant's guilt or innocence. Rather, it addresses only how a court imposes a sentence, once a defendant has been convicted.


[97] Further, the Supreme Court has previously determined that a change in the law requiring that juries, rather than judges, make the factual findings on which a sentence is based did not announce a water-shed rule of criminal procedure. See Summerlin, 124 S.Ct. at 2524-26. Similarly, we have previously held that a change in the law requiring juries to find these sentencing facts beyond a reasonable doubt, rather than by a preponderance of the evidence, also does not announce a watershed rule of criminal procedure. See United States v. Mora, 293 F.3d 1213, 1219 [10th Cir. 2002](holding Apprendi, including its quantum of proof requirement, did not announce watershed rule); see also Sepulveda v. United States, 330 F.3d 55, 61 (1st Cir. 2003) (holding, in addressing Apprendi's retroactivity, that " 'a decision . . . by a judge (on a preponderance standard) rather than a jury (on the reasonable-doubt standard) is not the sort of error that necessarily undermines the fairness . . . of judicial proceedings,' " quoting Curtis v. United States, 294 F.3d 841, 843 (7th Cir 2002)); Coleman v. United States, 329 F.3d 77, 88-90 (2d Cir. 2003) (rejecting argument that Apprendi's requiring Government to prove sentencing factors beyond a reasonable doubt was watershed rule of criminal procedure).


[98] Price, 400 F.3d at 848-49 (footnotes omitted). We agree with this analysis. We hold that Blakely did not announce a water-shed rule of criminal procedure.


[99] C.


[100] [12] Mr. Schardt also contends that he is entitled to relief under 28 U.S.C. § 2254(d)(1). Under this statute, a state prisoner is entitled to relief if his case "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The rule established in Blakely - that the statutory maximum is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant, rather than facts found by the judge - was not clearly established by a Supreme Court decision at the time Mr. Schardt's case became final on direct appeal. It was a new rule, as explained above. We have held that if a case creates a new rule under Teague, then it is not a clearly established rule under 28 U.S.C. § 2254(d)(1). See Himes v. Thompson, 336 F.3d 848, 855 n.4 (9th Cir. 2003) (explaining that because a defendant's case was adjudicated prior to a decision that announced a rule he wanted applied in his case, 28 U.S.C. § 2254(d)(1) would bar the application of that rule if that case established a new rule of constitutional law according to the principles of Teague v. Lane); see also Vasquez v. Strack, 228 F.3d 143, 149 (2d Cir. 2000) (noting that if a rule is a new rule under Teague, it is not clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1)). Thus, Mr. Schardt's argument under 28 U.S.C. § 2254(d)(1) also fails.


[101] D.


[102] Mr. Schardt further asserts that "[f]ederal due process law should also compel the conclusion that Blakely must apply retroactively to this case. . . . [I]t is impermissible for the state courts to deny a criminal defendant a forum in which to raise the fact that he was convicted without the state proving all of the pre-existing elements beyond a reasonable doubt - and aggravating sentencing factors are akin to pre-existing elements." In support of this argument, Mr. Schardt relies on Fiore v. White, 531 U.S. 225 (2001), and Bunkley v. Florida, 538 U.S. 835 (2003). These cases are readily distinguishable. In Fiore, the defendant was convicted of operating a hazardous waste facility without a permit pursuant to Title 35 § 6018.401(a) of the Pennsylvania code. 531 U.S. at 226-27. In fact, he had a permit, but he operated the dump in a way that violated its terms. Id. at 227. After his conviction became final, the Pennsylvania Supreme Court interpreted the relevant statute in such a way that it became clear that Mr. Fiore should not have been convicted as charged. His conduct was not proscribed by the statute, because it applied solely to persons operating a hazardous waste facility without a permit. Id. at 226-27. The Pennsylvania Supreme Court further held that this rule was not new, but had always been the correct interpretation of the law. Id. at 228. The Supreme Court of the United States reversed the defendant's conviction holding that "[w]e have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt." Id. at 228-29 (citation omitted).


[103] In Bunkley, the defendant was convicted of first degree burglary. 538 U.S. at 837. His charge was based in part on the fact that he had a pocket knife with a blade 2-1/2 to 3 inches long, which the trial court considered a "dangerous weapon." Id. at 836-37. After he was convicted, the Florida Supreme Court interpreted the meaning of "dangerous weapon" in L.B. v. State, 700 So. 2d 370 (Fla. 1997) (per curiam). It held that a knife with a blade of 3-3/4 inches did not constitute a dangerous weapon within the meaning of the statute. Bunkley, 538 U.S. at 837. The defendant in Bunkley filed a motion for post-conviction relief, based on the court's holding in L.B. The Florida Supreme Court denied the motion, holding that its decision did not apply retroactively. Id. at 838. It held, instead, that the decision in L.B. (holding that a knife of 3-3/4 inches was not a dangerous weapon) was "a change in the law which culminated the century-long evolutionary process." Id. at 841 (citations and alterations omitted). Applying the rule announced in Fiore, the United States Supreme Court vacated the state court judgment. The Court explained its reasoning as follows:


[104] For the first time, the Florida Supreme Court interpreted the common pocketknife exception, and its interpretation covered the weapon Bunkley possessed at the time of his offense. In the face of such doubt, Fiore entitles Bunkley to a determination as to whether L. B. correctly stated the common pocket-knife exception at the time he was convicted.


[105] Id.


[106] [13] Mr. Schardt contends that, after Apprendi, exceptional sentencing factors are facts akin to elements that must be proved beyond a reasonable doubt. Therefore, he argues the trial court's finding was unconstitutional in 1999. This argument is unpersuasive. No court has ruled that Mr. Schardt's conduct was beyond the power of the criminal law to punish. Unlike the circumstances in Bunkley, it is clear that the trial judge's sentencing decision in this matter did not violate any constitutional principle announced by the United States Supreme Court before his sentence became final. The Supreme Court announced a new rule in Blakely - one that worked a significant change in the law as it was understood up to that point.


[107] Conclusion


[108] [14] We conclude that Mr. Schardt failed to demonstrate that he was denied the effective assistance of counsel. We also hold that the Supreme Court announced a new rule in Blakely v. Washington that does not apply retroactively to a conviction that was final before that decision was announced. Therefore, the state court's sentencing decision cannot be challenged in a petition for habeas corpus.


[109] AFFIRMED.



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Opinion Footnotes

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[110] *fn1 Wash. Rev. Code § 9A.44.073 provides:
(1) A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.
(2) Rape of a child in the first degree is a class A felony.


[111] *fn2 Wash. Rev. Code § 9A.44.010 defines sexual intercourse as follows:
(1) "Sexual intercourse"
(a) has its ordinary meaning and occurs upon any penetration, however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an object, when committed on one person by another, whether such persons are of the same or opposite sex, except when such penetration is accomplished for medically recognized treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.
Under Washington law, therefore, a person can have sexual intercourse with a child, and thereby commit rape of a child, without penetration; for example oral sex comes within the statutory definition of sexual intercourse. State v. Sardinia, 713 P.2d 122, 126 (Wash. Ct. App. 1986).


[112] *fn3 In support of his personal restraint petition, Mr. Schardt alleged that he told his trial lawyer "about [the] records maintained in the offices of Dr. Schiff which would support my assertion that I was having trouble maintaining a penile erection during the time period encompassed by the charging information." Ms. Sheryl McCloud, his appellate counsel, also filed a declaration in which she alleged that Mr. Schardt told her "that there were easily available reports of two physicians who were treating him . . . during the time period described in the charging information, who could verify his claim of inability to maintain a penile erection at the time of his charged crime."


[113] *fn4 Wash. Rev. Code § 9.94A.510 (Table 1).


[114] *fn5 Wash. Rev. Code § 9.94A.535 (2004) provides in part:
The court may impose a sentence outside the standard sentence range for an offense if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence. Whenever a sentence outside the standard sentence range is imposed, the court shall set forth the reasons for its decision in written findings of fact and conclusions of law. A sentence outside the standard sentence range shall be a determinate sentence unless it is imposed on an offender sentenced under RCW 9.94A.712. An exceptional sentence imposed on an offender sentenced under RCW 9.94A.712 shall be to a minimum term set by the court and a maximum term equal to the statutory maximum sentence for the offense of conviction under chapter 9A.20 RCW.


[115] *fn6 At the time Mr. Schardt filed his appeal, Circuit Rule 22-1(d) read as follows:
If the district court denies a certificate of appealability in part, the court of appeals will not consider uncertified issues unless petitioner first seeks, and the court of appeals grants, broader certification. Petitioners desiring broader certification must file, in the court of appeals, a separate motion for broader certification, along with a statement of reasons why a certificate should be granted as to any issues(s) within thirty-five days of the district court's entry of its order denying a certificate of appealability.


[116] *fn7 Wash. Rev. Code § 9A.20.021(1)(b) provides, "For a class B felony, by confinement in a state correctional institution for a term of ten years, or by a fine in an amount fixed by the court of twenty thousand dollars, or by both such confinement and fine."


[117] *fn8 Wash. Rev. Code § 9A.20.021 provides in part Maximum sentences for crimes committed July 1, 1984, and after
(1) Felony. Unless a different maximum sentence for a classified felony is specifically established by a statute of this state, no person convicted of a classified felony shall be punished by confinement or fine exceeding the following:
(a) For a class A felony, by confinement in a state correctional institution for a term of life imprisonment, or by a fine in an amount fixed by the court of fifty thousand dollars, or by both such confinement and fine . . . .


[118] *fn9 Wash. Rev. Code § 9.94A.510 (Table 1).


[119] *fn10 Mr. Schardt maintains that Apprendi should apply to his case because the "Apprendi/Blakely burden of proof holding is substantive and exempt from Teague for that . . . reason" and also that "the burden of proof holding is watershed and exempt from Teague for that second additional reason." But in making this argument, Mr. Schardt has confused Teague's requirements. To prevail, he does not need to persuade us that Apprendi is an exception to the rule in Teague; Apprendi was decided while Mr. Schardt's case was still on direct review. Therefore, the rule announced in Apprendi can be asserted by Mr. Schardt in a § 2254 petition. Griffith, 479 U.S. at 328. The real issue in this appeal, however, as correctly noted in the amicus brief, is whether Blakely applies retroactively. Although the headings of his arguments that Apprendi is substantive and a watershed rule lump Blakely in with Apprendi, his brief addresses only Apprendi. The amicus brief correctly focuses on Blakely.

[U] Hoffman v. Does, 138 Fed.Appx. 4 (9th Cir. 05/09/2005)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 04-35199


[3]


[4] May 9, 2005


[5] MAXWELL HOFFMAN, PLAINTIFF - APPELLANT, DALE C. SHACKELFORD, AS NEXT FRIEND OF MAXWELL HOFFMAN, APPELLANT,
v.
JOHN DOES, EMPLOYEES OF THE IDAHO DEPARTMENT OF CORRECTION, DEFENDANT - APPELLEE.


[6] Appeal from the United States District Court for the District of Idaho B. Lynn Winmill, District Judge, Presiding D.C. No. CV-02-00291-BLW


[7] NOT FOR PUBLICATION


[8] MEMORANDUM *fn1


[9] Argued and Submitted May 3, 2005 Seattle, Washington


[10] Before: WALLACE, SILVERMAN, and PAEZ, Circuit Judges.


[11] Idaho state prisoner Maxwell Hoffman ("Hoffman") appeals the district court's dismissal of his action challenging the conditions of his confinement. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the dismissal of Hoffman's action and remand to the district court for further proceedings.


[12] Hoffman first argues that the district court erred in dismissing his action as moot. Superseding events do not moot an issue unless they "have completely and irrevocably eradicated the effects of the alleged violation." Smith v. Univ. of Wash., Law School, 233 F.3d 1188, 1194 (9th Cir. 2000) (internal quotation marks omitted). Because the district court found that only "some" of Hoffman's concerns "may" be moot, we conclude that the district court erred in dismissing Hoffman's action on mootness grounds.


[13] Hoffman also argues that the district court abused its discretion in dismissing his action without first ruling on his request for appointed counsel. We agree. A district court must rule on an application for appointment of counsel before dismissing a pro se litigant's action. Miles v. Dep't of Army, 881 F.2d 777, 784 (9th Cir. 1989); McElyea v. Babbitt, 833 F.2d 196, 199 (9th Cir. 1987). We therefore vacate the dismissal of Hoffman's action and remand with instructions that the district court consider whether Hoffman is entitled to appointed counsel under the standard set forth in Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103-04 (9th Cir. 2004).


[14] VACATED AND REMANDED.



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Opinion Footnotes

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[15] *fn1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

[U] Chimenti v. Kimber, 133 Fed.Appx. 833 (3d Cir. 06/08/2005)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] NO. 03-2056


[3] 133 Fed.Appx. 833


[4] June 8, 2005


[5] SALVATORE CHIMENTI, APPELLANT
v.
ROGER KIMBER, MEDICAL DIRECTOR; BADDICK, REGIONAL DIRECTOR; ROWE, WEXFORD HEALTH SOURCES, INC.; I. KAUFER, WEXFORD HEALTH SOURCES, INC.; C. POLLOCK, SITE COORDINATOR; FARROHK MOHADJERIN, FORMER MEDICAL DIRECTOR; MARTIN F. HORN; ROBERT S. BITNER, CHIEF HEARING EXAMINER FOR THE D.O.C.; FREDERICK K. FRANK; PAT YARGER, SCI-HUNTINGDON MEDICAL DEPARTMENT; P. E. EVERHART, SCI-HUNTINGDON MEDICAL DEPARTMENT


[6] On Appeal From the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 01-cv-00273) District Judge: Honorable Thomas I. Vanaskie


[7] Per curiam.


[8] NOT PRECEDENTIAL


[9] Resubmitted Under Third Circuit LAR 34.1(a) May 18, 2005


[10] Before: BARRY, AMBRO, and SMITH, Circuit Judges.


[11] OPINION


[12] Salvatore Chimenti appeals the District Court's orders granting the appellees' motions to dismiss and denying his motion to amend the judgment. On appeal, Chimenti argues that the District Court erred in concluding that his proposed amended complaint did not cure the defects of his original complaint. He focuses on his allegations against two appellees, Martin Horn, the former secretary of the Department of Corrections (DOC), and Dr. Mohadjerin, the prison's medical director, who at the time worked for Wexford Health Services, a private medical provider. Chimenti alleged that Dr.


[13] Mohadjerin terminated his Interferon treatment for Hepatitis C contrary to the recommendation of a specialist and did not prescribe Rebetron until two years after it was approved by the FDA and six months after the DOC treatment protocol was approved. Chimenti claimed that Horn knew prisoners were infected with Hepatitis C and failed to ensure the speedy approval of a protocol for Rebetron. Chimenti asserted that Rebetron was approved by the FDA in June of 1998 but that Horn did not issue a protocol until January 2000. Chimenti alleged that as a result of the delay in receiving Rebetron his liver was damaged to the point where he needs a transplant and that in January 2001 he was diagnosed with cirrhosis of the liver.*fn1


[14] The District Court concluded that the proposed amended complaint did not cure the defect of the original complaint - that Chimenti had not shown personal involvement on the part of Secretary Horn. With respect to Dr. Mohadjerin, the District Court had originally dismissed the claims against him for failure to state a claim. In denying Chimenti's motion for reconsideration, the District Court amended its order to provide that the claims against Dr. Mohadjerin were dismissed for failure to exhaust. Chimenti filed a timely notice of appeal, and we have jurisdiction under 28 U.S.C. § 1291.


[15] We exercise plenary review over the District Court's order granting appellees' motion to dismiss. Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). When reviewing a complaint under Rule 12(b)(6), the Court must accept the allegations in the complaint as true. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The Court should not dismiss a complaint unless it is clear that no relief could be granted under any set of facts that could be proved. Id.


[16] In order to state a claim under the Eighth Amendment for denial of medical care, Chimenti must show that the defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate indifference can be shown by a prison official "intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Id. at 104. A medical need is serious if it is one "that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). In Monmouth County, we set forth several ways in which deliberate indifference to inmates medical needs could be manifested including delay of necessary medical treatment for non-medical reasons.


[17] We disagree with the District Court that Chimenti's allegations against Horn are insufficient to state a claim. We conclude that the allegations that Horn knew about the Hepatitis C problem in the prisons and the importance of the protocol negotiations between the Department of Corrections (DOC) and Wexford, yet failed to timely issue the protocol, are not so improbable or conclusory as to fail to state a claim. On remand, the record can be developed with respect to what Horn knew about the prison system's Hepatitis C problem, what role he played in the negotiations, and the reasons for the delay.


[18] In addressing Chimenti's proposed amended complaint, the District Court determined that Chimenti had failed to exhaust his claims against Dr. Mohadjerin because he did not request monetary damages in his grievance. However, subsequent to the District Court's decision, we held in Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), that a failure to request monetary damages in the grievance process could not be a basis for dismissal of a damages claim for failure to exhaust. Dr. Mohadjerin argues in the alternative that Chimenti failed to exhaust his claim that he did not prescribe Chimenti Rebetron for six months after the protocol was approved. *fn2


[19] While the protocol negotiations were ongoing, Chimenti thoroughly grieved the issue of the delay in the approval of the protocol and Dr. Mohadjerin's refusal to prescribe him Rebetron. In the grievance, Chimenti noted that he was told by Dr.


[20] Mohadjerin that he could not receive Rebetron until the DOC and Wexford agreed on a protocol and that the DOC had backed out of the protocol because it was too costly. Chimenti appealed the denial of the grievance and repeated his allegation that Mohadjerin told him that he was not getting Rebetron because the DOC had backed out of the negotiations. After losing that appeal, Chimenti appealed to the final level of review. He noted that his allegations of the delay in approving a protocol had not been addressed in the responses to his grievance and that both Dr. Mohadjerin and Dr. Gaugler, a specialist, had agreed that Rebetron was a medical necessity for him. Once the protocol was approved, there would be no reason to revisit the issue of his receiving Rebetron. *fn3 We conclude that Chimenti has exhausted his administrative remedies with respect to his claim that Dr. Mohadjerin failed to prescribe Rebetron from the FDA's approval in June 1998 until July 2000.


[21] We now turn to the question of whether Chimenti's allegations against Dr. Mohadjerin state a claim. His allegations that Dr. Mohadjerin took him off of Interferon do not state a claim of deliberate indifference because there is nothing to suggest that this was not an exercise of medical judgment. With respect to his allegations that Dr.


[22] Mohadjerin failed to prescribe Rebetron, Chimenti has alleged that Dr. Mohadjerin knew of his serious medical need and failed to provide a treatment that he himself recommended. Dr. Mohadjerin argues on appeal that Chimenti does not allege that the doctor had personal involvement in the delayed protocol negotiations. However, the record has not been developed with respect to what ability or responsibility Dr.


[23] Mohadjerin had to prescribe Rebetron before a protocol was approved.


[24] For the above reasons, we conclude that Chimenti's allegations against Horn and Dr. Mohadjerin are sufficient to state claims of deliberate indifference to serious medical needs. Thus, the District Court erred in dismissing those claims and refusing to allow Chimenti to file an amended complaint. Accordingly, we will vacate the District Court's March 15, 2002, and March 19, 2003, orders with respect to the dismissal of those claims and the denial of leave to amend, and we will remand the matter for further proceedings. With respect to Chimenti's allegations against the other defendants as well as his claim that Dr. Mohadjerin took him off Interferon, we will affirm the District Court's orders.



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[25] *fn1 The proposed amended complaint was not included in the record on appeal. However, Chimenti reproduces enough of his allegations in his informal brief for our analysis.


[26] *fn2 Horn does not raise a non-exhaustion defense.


[27] *fn3 Moreover, we note that according to a sample grievance rejection form, attached to the grievance policy, a potential reason for rejection of a grievance is "[t]he issue(s) presented on the attached grievance has been reviewed and addressed previously." Once the issue of his not receiving Rebetron was decided against Chimenti, it appears that he could not later file a grievance on the same issue.

LERON E. EASLEY-EL, et al., Plaintiffs-Appellants, v. EVELYN RIDLEY-TURNER, et al., Defendants-Appellees.

Nos. 04-2715, 04-2716, 04-2748 & 04-2801

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

133 Fed. Appx. 316; 2005 U.S. App. LEXIS 8629

May 11, 2005, * Submitted


* After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a); Cir. R. 34(f).
May 16, 2005, Decided

NOTICE: [**1] RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. 3:02-CV-579 RM, et al. Robert L. Miller, Jr., Chief Judge.

Order

Four inmates of the Indiana State Prison contend in this suit under 42 U.S.C. § 1983 that prison officials are violating the free-exercise clause of the first amendment [*318] by preventing leaders of a faction within the Moorish Science Temple of America from entering the prison to conduct services. Defendants contended that concerns about the criminal history and conduct of the Chicago Subordinate Temple Number [**2] One (which these plaintiffs support), plus other considerations, justify a temporary suspension of services. The district court agreed and granted summary judgment in their favor. See Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).

Although the district court treated the suspension as temporary, evidence in the record implies that it may last indefinitely. The Chicago Subordinate Temple appears to be at loggerheads with the main organization, based in Michigan. The prison's superintendent announced an indefinite suspension "until such time as your problems have been resolved to my satisfaction and that of Bro. R. Love El and Bro. S.A. Tinnin-Bey." Love-El and Tinnin-Bey are affiliated with the Michigan organization. This could be understood as taking sides in a theological debate, the equivalent of telling Lutherans that they could not hold services in prison "until such time as your problems have been worked out [to the satisfaction of] Pope Benedict XVI." That would violate the free exercise clause. Cf. Sasnett v. Litscher, 197 F.3d 290, 293 (7th Cir. 1999) ("One might as well tell Anglicans to kiss the Pope's ring but pretend he's the [**3] Archbishop of Canterbury."). Perhaps the letter has some other significance, but the district court has yet to explore the question.

Instead of assuming, as it did, that the suspension was of short duration, the district court must determine whether it is appropriate to condition the Chicago Subordinate Temple's services on the "satisfaction" of the superintendent and the Michigan group. The record hints (no stronger word can be used) that the superintendent would be satisfied if the Chicago group can demonstrate that its representatives are not felons themselves and do not denigrate other religions in a way that would stir unrest in a potentially explosive population. But, as the letter did not say what must be done to satisfy the superintendent, we cannot be sure that this is all that concerned the prison's administrators. Perhaps they are concerned that too few inmates support the Chicago group; HN1prisons need not permit every sect, however small, to conduct religious services. See Johnson-Bey v. Lane, 863 F.2d 1308, 1310 (7th Cir. 1988). Perhaps something else is vital. Plaintiffs and their chosen spiritual guides are entitled to know what they must demonstrate [**4] before the prison will permit services to be held, and the district court then must determine whether the prison's conditions are valid.

Although we have been discussing the claim in constitutional terms, which is how plaintiffs present their contentions, the district court should address statutory options first. The Religious Land Use and Institutionalized Persons Act provides that "no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden "is in furtherance of a compelling governmental interest," and "is the least restrictive means" of furthering that interest. 42 U.S.C. § 2000cc-1(a)(1), (2). Unless the Supreme Court holds in Cutter v. Wilkinson, cert. granted, 125 S. Ct. 308, 160 L. Ed. 2d 221 (2004) (argued March 21, 2005), that RLUIPA violates the establishment clause of the first amendment, it is the appropriate place to start when analyzing plaintiffs' contentions.

One final matter. This began as a single suit with four plaintiffs; the district [*319] court splintered it into four suits with one plaintiff each. It should be re-united. See Boriboune v. Berge, 391 F.3d 852 (7th Cir. 2004). [**5] Each plaintiff must continue to speak for himself, however; none is a lawyer, so none can act as agent of another.

The judgment is vacated, and the case is remanded for further proceedings consistent with this order.