United States v. Birnie , 193 F. App'x 528 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0639n.06
Filed: August 24, 2006
No. 04-2070
No. 04-2401
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )On Appeal from the United States
)District Court for the Western
)District of Michigan
JOHN M. BIRNIE, II, AND )
EMALEE BIRNIE )
)
Defendants-Appellants. )
Before: BOGGS, Chief Judge; BATCHELDER, Circuit Judge; and WEBER, District
Judge.*
PER CURIAM.
Defendants appeal 1) the district court’s denial of their Motions for Acquittal; 2) the district
court’s rejection of defendants’ jury instruction; 3) the sentences imposed, in particular the
enhancements to increase the guideline range; and 4) the alternative sentences imposed.
*
The Honorable Herman J. Weber, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
1
In light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005),
we conclude that a remand for resentencing is necessary so that the district court may determine a
sentence with the knowledge that the sentencing guidelines are advisory. Therefore, we VACATE
the sentences of John M. Birnie II and Emalee Birnie and REMAND for re-sentencing. As to the
other issues on appeal raised by the defendants, we AFFIRM the district court’s judgment.
On May 22, 2003, a federal grand jury returned a 32-count indictment against Terrance C.
Hanson, John M. Birnie II, and Emalee Birnie. Counts 1 through 10 charged all defendants with
wire fraud in violation of 18 U.S.C. § 1343; Counts 11 through 20 charged Terrance C. Hanson with
knowingly converting and, without authority, selling, conveying and disposing of certain real
property owned by the government in violation of 18 U.S.C. § 641; Counts 21 through 30 charged
defendants John and Emilee Birnie with receiving, concealing, or retaining a thing of value
exceeding $1,000.00 in violation of 18 U.S.C. § 641; Count 31 of the indictment charged defendants
with committing money laundering in violation of 18 U.S.C. §§ 1956, 1957, and 1961. Count 32
of the indictment was a forfeiture count seeking forfeiture of the interests of defendants John and
Emilee Birnie in various real and personal property pursuant to 18 U.S.C. 981(a)(1)( C).
Hansen entered into a plea agreement and pleaded guilty to Counts 1 through 20 on March
26, 2004. Defendants John and Emilee Birnie proceeded to trial. On April 16, 2004, after five days
of trial, a jury returned verdicts of guilty on all charges against them. On July 23, 2004, each was
sentenced by the United States District Court to 41 months in prison pursuant to the United States
Sentencing Guidelines and, in the alternative, a sentence of 30 months’ imprisonment in anticipation
of the Booker decision. They filed timely Notices of Appeal.
2
In a separate proceeding, Terrance Hanson had also pleaded guilty to charges of unlawful
sale of property to his family members.
I. FACTUAL BACKGROUND
We set out the facts in the light most favorable to the government and as apparently believed
by the jury in reaching its verdicts.
This case involves a scheme to defraud the Department of Housing and Urban Development
(HUD) through the purchase of HUD properties for far less than market value and in violation of
HUD guidelines. HUD, through the Federal Housing Authority (FHA), guarantees the repayment
of certain qualified mortgage loans originated by approved lenders. When a mortgage loan for real
property insured by the FHA goes into default and the lender forecloses, HUD pays the outstanding
balance of the mortgage to the lender and assumes ownership of the real property. HUD then
coordinates the disposition of the foreclosed property.
Terrance Hanson began working for HUD in 1971. At all times relevant to this case, Hanson
was the Real Estate Owned (REO) Chief in the department that handled HUD-acquired single-
family properties located in Grand Rapids, Michigan. His primary duty was to oversee the handling
and disposition of HUD properties. Historically, he had the authority to enter into contracts on
behalf of HUD with contractors who performed services for HUD.
Hanson entered into a contract with defendant Emalee Birnie to serve as a contractor to the
Grand Rapids office of HUD. Under her first contract, she performed the duties of a Real Estate
Asset Manager (REAM) and as a closing agent. Initially, her responsibilities in her role as REAM
were to make certain that the property was clean and secure, including having a HUD lockbox on
it, doing an initial inspection, removing snow and cutting the grass, and making sure she hired
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contractors to do any repairs that might raise health or safety issues. She received $100.00 per
property. In her role as closing agent, she was responsible for overseeing the closing of HUD sales
of single-family properties to third parties. She was to prepare the deed and settlement statement,
collect the net proceeds at the closing, deposit them in a non-interest-bearing escrow account, and
have the funds wire transferred to the United States Treasury for HUD. In less than a year, her
contract changed without being resubmitted for a bidding process. From then on, Emalee Birnie
received $1,500.00 per property, plus a one percent bonus on the sale price of each house. She
became responsible for all the minor repairs to the property, all cleanouts from the property, lawn
care, and snow removal. All such expenses were to be paid out of the $1,500.00 fee. She also
continued to act as a closing agent with the same responsibilities.
Hansen allowed her to share these responsibilities with her husband and co-defendant, John
Birnie. Hansen apprenticed him as a closing agent. John Birnie was authorized to contract on behalf
of HUD, and to be the closing agent when Emalee Birnie was unable to attend a closing.
Hanson’s department had meetings during which the rules and responsibilities of the REAM
were explained, as well as the rules of HUD. Any time there was a change in HUD rules and
regulations, a REAM meeting was held during which the changes were discussed.
In late 1997, the process for bidding the REAM contract was changed and Hanson lost the
authority to determine who would receive it. Subsequently, the defendants lost the contract. Hanson
admitted it was at this point that he realized the Birnies could purchase properties, an activity they
had been prohibited from engaging in while under the REAM contract. He began to develop a
scheme with John and Emalee Birnie whereby they could purchase properties from HUD without
going through the bid procedure and he made special arrangements for them to purchase the
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properties at a discounted price. Hanson admitted that it made his job easier by reducing his
inventories without having to advertise, hold openings, and contact, meet, and answer questions
from various brokers and salespeople. He also testified that he felt in this way he could make up for
the Birnies’ loss of the REAM contract.
Hanson testified that both the Birnies were real estate brokers who were knowledgeable
about the proper procedure by which to purchase a home from HUD because they had participated
in such purchases. Hansen explained the normal procedure during his testimony at trial:
The normal procedure is that when a property is acquired by
HUD, that there is an appraisal made on the property to determine a
value to the property for which we would list the property either in
the newspaper or later on the Internet that would be open to sealed
bid by private individuals through a real estate broker for which to
submit an offer on the property, and the bidding period initially was
fifteen days. Later it changed to ten. And initially it was open to
owner-occupants and investors, the bid period. At some point in time
during the mid-90's it changed to where the initial bid period was
available to owner-occupant purchasers only. (J.A. page 1170).
Talking specifically about 1998 and 1999, Hanson confirmed that only owner-occupants were
allowed to bid during the initial bid period after an advertisement in the newspaper. Other witnesses
at trial confirmed Hanson’s testimony. As one witness characterized it, the “cardinal rule” of HUD
sales involved setting a listing price at an appraised value, advertising the property to the public, and
making sure all bids remained sealed until the bid opening at a disclosed time and place.
Their scheme allowed the Birnies to circumvent these procedures in order to purchase HUD
homes which should not have been available to them as investors at a discounted price before the
properties were made available to the public or put into the bidding process.
5
Hanson testified about one of the eleven properties listed in the indictment, a typical
transaction involved in the scheme. First, he contacted the manager and ordered an appraisal. Then
a REAM went out to evaluate the property, noting a recommended listing price. In the example, this
figure was $40,000 to $45,000. Then a contract appraiser went out and did an appraisal. Hanson
testified that this was usually a very dependable indicator of what the property would sell for. In
the example, this number was $20,000. Hanson entered a false price, $10,000, into the HUD system
known as SAMS, because entry of a price into the system was a prerequisite to being able to sell the
property. A contract was written for the property setting a selling price of $500.00, although Hanson
admitted the property was worth $20,000. In this example, the contract was dated before the
appraisal. Hanson admitted that this was proprietary knowledge, that this property was never
advertised, that there was no bidding process. It was a private deal. In this example, Emalee Birnie
was the closing agent and received $200 for acting as the closing agent.
The Birnies purchased this property and the other properties at significant discounts at a
time when they would not have been eligible because they were not owner-occupants. The
properties involved should have been sold through a bidding process. Immediately after their
purchase of the properties, the Birnies insured the properties for a far higher, and more realistic,
price. Shortly thereafter, they sold the properties on land contracts at a price close to the appraised
values.
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Defendants’ knowledge of the fraudulent nature of their actions is clear. As real estate
brokers, they went through the bidding process numerous times. As closing agents, they were
continually updated on HUD rules and regulations. Based upon their experience, they knew the
amounts they paid were unrealistically low. Right after each sale, defendants insured the properties
for a much higher, more realistic price. Hansen had six partially-completed HUD Sales contracts
signed by John Birnie in his desk at the time of his termination. Emalee Birnie was the closing agent
when Hanson fraudulently sold houses to his wife and his stepchildren.
II. DISCUSSION
The two appellants raise identical issues, except in the context of the sentencing guideline
calculations. We will, therefore, discuss the issues topically making references as necessary to the
facts pertaining individually to each appellant’s argument.
A. SUFFICIENCY OF THE EVIDENCE
Defendants allege the district court erred when it denied their Rule 29 Motions for Acquittal
on the basis that the government’s evidence was insufficient to sustain convictions on Counts 1 - 10
alleging wire fraud, Counts 21 - 30 alleging theft of government property, and Count 31 alleging
money laundering.
Defendants argue that, to be convicted of wire fraud, it was necessary for the government
to show that each defendant made a material misrepresentation. Relying on Neder v. United States,
527 U.S. 1 (1999), they argue that it was legally insufficient to show only that defendants were part
of a scheme to defraud that included material misrepresentations made only by a co-defendant.
Defendants claim that the evidence was that they purchased properties from HUD in violation of
policies, procedures, and appraisals which would have been known by and available only to Hanson
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and HUD. They argue they were totally ignorant of the demonstrated disparity between the fair
market value (FMV) and purchase price, and that the government’s evidence consisted entirely of
misrepresentations made by Hanson.
Defendants’ second argument is that without a conviction on the wire fraud counts, the
remaining counts, including allegations of theft of government property, under counts 21-30, and
money laundering under count 31, would not be supported since they require the element of
fraudulent taking.
The government argues that it is not necessary to prove that each of the defendants made a
material misrepresentation, but that it is legally sufficient to prove that the scheme involved material
misrepresentations. The government claims the defendants knew HUD regulations and procedures
and could foresee the misrepresentations and fraudulent acts necessary to the success of the scheme
to defraud. Furthermore, the government argues, the defendants did make material
misrepresentations. Lastly, the government argues that the other charges do not depend on the wire
fraud charges.
In determining whether sufficient evidence supports a conviction, the standard of review is
“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.” United
States v. Ellerbee, 73 F.3d 105, 107 (6th Cir. 1996)(quoting Jackson v. Virginia, 443 U.S. 307, 318-
19 (1979). We draw all reasonable inferences in favor of the prosecution. United States v.
Oldfield, 859 F.2d 392, 399 (6th Cir. 1988)
8
As the government notes, defendants moved for acquittal only at the close of the
government’s case, and did not renew the motion at the close of all the evidence. “Under such
circumstances, our review is generally limited to determining whether there was ‘a manifest
miscarriage of justice.’” United States v. Hernandez, 227 F.3d 686, 694 (6th Cir. 2000)(quoting
United States v. Abdullah, 162 F.3d 897, 903 (6th Cir. 1998)). “A ‘miscarriage of justice’ exists only
if the record is ‘devoid of evidence pointing to guilt.’ ” Abdullah, 162 F.3d at 903(quoting United
States v. Price, 134 F.3d 340, 350 (6th Cir.), cert. denied, 525 U.S. 845(1998)).
The legal questions to be decided in relation to the first two arguments are: Does wire fraud
require a defendant-specific material misrepresentation? Does a conviction for receipt of converted
government property and money laundering require facts that would support a conviction for wire
fraud or other fraudulent taking?
Our analysis begins with the United States Supreme Court’s statement in Neder v. United
States, 527 U.S. 1, 20 (1999):
We also granted certiorari in this case to decide whether
materiality is an element of a “scheme or artifice to defraud” under
the federal mail fraud (18 U.S.C. § 1341), wire fraud (§ 1343), and
bank fraud (§ 1344) statutes.
Although the mail fraud and wire fraud statutes contain different jurisdictional elements, the
Supreme Court confirmed that the fraud statutes prohibit “any scheme or artifice to defraud” or to
obtain money or property “by means of false or fraudulent pretenses, representations, or promises.”
Id. At the time the statute was passed, the well-settled meaning of “fraud” required a
misrepresentation or concealment of material fact. Neder, 527 U.S. at 22. In Durland v. United
States, 161 U.S. 306 (1896), its first decision construing the mail fraud statute, the Supreme Court
9
construed the statute to “includ[e] everything designed to defraud by representations as to the past
or present, or suggestions and promises as to the future.” Neder, 527 U.S. at 24(quoting Durland,
161 U.S. at 313). Accordingly, the Court held that materiality of falsehood is an element of the
federal mail fraud, wire fraud, and bank fraud statutes. Neder, 527 U.S. at 25.
In general, a false statement “is material if it has ‘a natural tendency to influence , or [is]
capable of influencing, the decision of the decision-making body to which it was addressed.’” Id.
at 16 (quoting United States v. Gaudin, 515 U.S. 506, 509 (1995)). The misrepresentation or
omission must have the purpose of inducing the victim of the fraud to part with property or
undertake some action that he would not otherwise do absent the misrepresentation or omission.
United States v. Daniel, 329 F.3d 480, 487 (6th Cir. 2003).
Mail fraud cases may be used to analyze wire fraud cases. Daniel, 329 F.3d at 486 n.1. In
United States v. Frost, 125 F.3d 346, 354 (6th Cir. 1997), this court stated that a defendant can
commit mail fraud even if he personally did not use the mails. Frost, 125 F.3d at 354. The
conviction requires only a showing that the defendant acted with knowledge that use of the mails
would follow in the ordinary course of business or that a reasonable person would have anticipated
the use of the mails. A defendant does not commit mail fraud unless he possesses the specific intent
to deceive or defraud. Frost, 125 F.3d at 354.
In support of their first argument, defendants correctly quote the statement by this court that
“as an element of the ‘scheme or artifice to defraud’ requirement, the government must prove that
the Defendant said something materially false.”Daniel, 329 F.3d at 486 (citing Neder v. United
States, 527 U.S. 1 (1999)). Daniel was a single-defendant case, as was the case cited therein, United
States v. DeSantis, 134 F.3d 760, 764 (6th Cir.1998). Since the issue of multiple defendants was not
10
before the courts in those cases, each referred to a single defendant when discussing issues of
materiality and misrepresentation. The Supreme Court in Neder did not require a defendant-specific
misrepresentation, however, but only that a material misrepresentation was part of the scheme.
The elements of wire fraud are set forth in the 2005 edition of the Sixth Circuit Pattern Jury
Instructions, Section 10.02:
For you to find the defendant guilty of wire fraud, you must find the
government has proved each and every one of the following elements
beyond a reasonable doubt:
(A) First, that the defendant [knowingly participated
in][devised][intended to devise] a scheme [to defraud][to obtain
money or property by false or fraudulent pretenses, representations or
promises];
(B) Second, that the scheme included a material misrepresentation or
concealment of material fact;
( C) Third, that the defendant had the intent to defraud; and
(D) Fourth, that the defendant [used wire, radio, or television][caused
another to use wire, radio or television communications] in interstate
[foreign] commerce in furtherance of the scheme.
In the Committee Commentary to Instruction 10.02, it is stated:
To define the elements of wire fraud, the Committee relied primarily
on Neder v. United States, 527 U.S. 1 (1999); United States v. Gold
Unlimited, Inc. 177 F.3d 472 (6th Cir.1999) and United States v. Frost,
125 F.3d 346 (6th Cir.1997). In the context of wire fraud, the Sixth
Circuit identified the elements in United States v. Smith, 39 F.3d 119,
122 (6th Cir.1994) and United States v. Ames Sintering Company, 927
F.2d 232, 234 (6th Cir. 1990).
In Frost, this court analyzed a multi-defendant scheme where professors with access to a data system
provided information to students who did not access the system, but played other parts in the scheme.
We found that the students did participate in the scheme to defraud because “[t]he inescapable
conclusion is that [the students] intended for [the professors] to breach the trust which the University
had placed in [the professors]. Frost, 125 F.3d at 369. As in this case, where the defendants intended
11
for Hanson to breach the trust HUD had placed in him, the insider making material
misrepresentations was necessary for the success of the scheme. In Frost, the students signed their
name to plagiarized papers. In our case, the Birnies signed illegitimate, often blank or only partially-
completed, contracts.
In United States v. Crossley, 224 F.3d 847 (6th Cir. 2000), the two defendants were
approached by an insider, an insurance adjuster, in a strategy that involved filing false claims in the
name of false clients and then sharing the profits after the false client cashed the insurance check.
Their only involvement was to give the insider their names and mailing addresses and then to cash
the checks. The indictment charged a conspiracy and a mail fraud count. In analyzing the sufficiency
of the evidence presented on the mail fraud count, this court found that a rational juror examining the
evidence presented at trial could have concluded that a defendant knowingly participated in a scheme
to defraud when it would have been obvious to her that she was not entitled to money. Crossley, 224
F.3d at 857. Unlike the case before us, the defendant in Crossley was not even aware of the
substance of the material misrepresentations or the general outline of the conspiracy.
We therefore disagree with defendants’ argument that an element of the crime is that each
defendant must have made a material misrepresentation. We find that the evidence need only show
that each defendant participated in a scheme to defraud that involved a misrepresentation of material
fact.
We also disagree with the defendants’ argument regarding the factual insufficiency of the
evidence against them. They argue that only Hanson made material misrepresentations and that no
material misrepresentation specifically attributable to them was proven at trial.
12
A misrepresentation can be made through omissions or through circumstances “reasonably
calculated to deceive persons of ordinary prudence and comprehension”. United States v. Hathaway,
798 F.2d 902, 908 (6th Cir.1986). Deception is not necessarily confined to a direct misstatement of
fact. United States v. Lichota, 351 F.2d 81, 91 (6th Cir.1965).
The Birnies did make material misrepresentations. John Birnie signed blank or incomplete
purchase agreements. Emalee Birnie acted as a closing agent in transactions where she knew the
purchase price was fraudulent. Immediately after purchasing each property, defendants insured the
property for a much higher amount, close to the property’s true value and then, shortly thereafter,
resold the property on land contract at a substantial profit.
The defendants suggest that it is analytically meaningful that Appellant has not been charged
with conspiracy to perpetuate a fraud against the United States. The United States Court of Appeals
for the Seventh Circuit has addressed this issue in a case cited favorably by the Committee
developing the jury instructions for the Sixth Circuit. In United States v. Wilson, 506 F.2d 1252,
1257 (7th Cir.1974):
It is not essential that the indictment contain a separate count charging
conspiracy in order to take advantage of the doctrines peculiar to
conspiracy. United States v. Joyce, 499 F.2d 9, 16 (7th Cir. 1974). In
a prosecution for mail fraud, once agreement to a scheme has been
adequately established, any party to the agreement is responsible for
the acts and declarations of another party in furtherance of the
common scheme, whether or not he knew of or agreed to any specific
mailing. United States v. Joyce, supra.
13
There is sufficient evidence on the record before us to conclude that no miscarriage of justice
occurred in this case. There is ample evidence to indicate that defendants knowingly participated
in a scheme to defraud HUD, that the scheme involved misrepresentations of material fact, that they
intended to defraud, and that wire communications were used. Having agreed to the scheme,
defendants could foresee the necessary input of fraudulent entries into SAMS and other
misrepresentations made in furtherance of the scheme.
Because the outcome of the Birnies’ wire fraud charges does not control the completely
independent elements of conversion and money laundering, the Birnies’ argument that the validity
of their convictions for receipt of converted government property and money laundering are legally
contingent upon the wire fraud convictions also fails.
Receipt of converted government property requires that a defendant receive stolen
government property with intent to convert and knowledge that it was stolen. United States v.
Stuart, 22 F.3d 76, 80 (3rd Cir. 1994). Money laundering requires that a defendant knowingly
engaged in a pecuniary transaction within the United States, knowing that the transaction involved
criminally derived property, and that the property was worth more than $10,000 and was in fact
derived unlawfully. United States v. Ables, 167 F.3d 1021, 1028-29 (6th Cir.), cert. denied, 527 U.S.
1027 (1999) .
A rational juror could find beyond a reasonable doubt that both Birnies knew they were
involved in a scheme to defraud which required material misrepresentations and that they, in fact,
made material misrepresentations. The crimes charged in the other counts are independent of those
crimes; the elements are not the same. Defendants do not dispute that there was sufficient evidence
for them to be found guilty of the charges of converting government property and money laundering.
Therefore, we hold that the district court did not err in denying their Motions for Acquittal.
14
B. JURY INSTRUCTION
Defendants argue that the district court erred in rejecting their request for a jury instruction
on the element of “material misrepresentation” as to the alleged fraudulent scheme.
The Judge gave the following jury instruction:
Now, Counts I through 10 of the indictment accuse both the
defendant John and EmaLee Birnie of wire fraud in violation of
federal law. It is a federal crime or offense for anyone to use
interstate wire communication facilities in carrying out a scheme to
defraud. The defendants can be found guilty of that offense only if
all the following facts are proven beyond a reasonable doubt:
First, that the defendant knowingly devised or participated in
a scheme to defraud, or for obtaining money or property by means of
false pretenses, representations, or promises.
Second, that the false pretenses, representations or promises
related to a material fact.
Third, that the defendants did so willfully and with the intent
to defraud.
And fourthly, that the defendants transmitted or caused to be
transmitted by wire in interstate commerce some communication for
the purpose of executing the scheme to defraud.
In considering the correctness and adequacy of a charge to the jury, it should be taken as a
whole and read in its entirety. Nolan v. Green, 383 F.2d 814, 816 (6th Cir. 1967). This court reviews
a district court’s refusal to give a proposed jury instruction for abuse of discretion. Williams ex rel.
Hart v. Paint Valley Local School Dist, 400 F.3d 360, 366 (6th Cir. 2005). “A district court’s refusal
to deliver a requested instruction is reversible error only if the instruction (1) is a correct statement
of the law, (2) is not substantially covered by the charge actually delivered to the jury, and (3)
concerns a point so important in the trial that the failure to give it substantially impairs the
defendant’s defense.” DeSantis, 134 F.3d at 768 (citing United States v. Williams, 952 F.2d 1504,
1512 (6th Cir. 1991)).
15
As determined in the previous discussion, the district court’s instruction on wire fraud
correctly stated the elements of the crime. There is no requirement that each defendant make a
material misrepresentation. The Birnies’ requested instruction was unnecessary, and it incorrectly
applied language from Daniel to a scheme to defraud involving multiple defendants. Therefore, the
court did not abuse its discretion in rejecting the proposed instruction.
C. SENTENCING
The defendants share sentencing issues all addressed to enhancements to the base offense
level based on judicially found facts neither admitted by the defendant nor found by a jury. The
disputed enhancements are a 2-level enhancement pursuant to U.S.S.G. § 3C1.1 for obstruction of
justice; a 2-level enhancement for “more than minimal planning”; a 9-level enhancement to John
Birnie’s sentencing range based on a finding that the intended loss was $378,900.00; and 11 levels
to Emalee Birnie’s sentencing range based on a finding that her intended loss was $621,800.00.
Finally, they argue it was presumptively unreasonable to sentence them to alternative sentences.
Defendants contend that their sentences violate the Sixth Amendment in light of the Supreme
Court’s decision in United States v. Booker, 543 U.S. 220 (2005), and ask that their sentences be
vacated. The United States agrees that remand is necessary for the limited purpose of determining
a sentence under the advisory guidelines. In view of Booker, we conclude we must vacate their
sentences and remand the cases to the district court for resentencing.
We need not address the specific claims of sentencing error now given that the district court
must reconsider the appellants’ sentences in their totality upon remand. United States v. Davis, 430
F.3d 345, 362 (6th Cir. 2005). If, after resentencing, the defendants still believe their sentences to
be erroneous they may challenge their sentences on appeal. Id.
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III. CONCLUSION
We VACATE the sentences and REMAND for re-sentencing in light of this opinion and
the Supreme Court’s opinion in Booker. As to the other issues raised by defendants, we AFFIRM
the district court’s judgment.
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