*1 -106, through implementing § 71-5-102 Act. Tenn.Code Ann. 71-5-

the Medicaid provisions the instant case re-

134. The interpretation court’s

spond to a district balance the interests of law and

Medicaid third-party patients, as benefi-

providers and In particular, such contracts. we

ciaries to remedy provider

note that the did not force a single patient

to serve a with whom it did not

already existing patient relationship, have an provider for whom the would not continue payment. a full

to receive Medicaid Nor protections any of

were these extended to Medicaid-eligible patients on the with-

drawing waiting contractors’ lists. Disparate Impact Finding

B. plan

Because we find the remedial dis- as

puted appeal adequately predicated unchallenged finding the district court’s policy

that Tennessee’s limited bed violated Act,

the Medicaid we need not address

whether the district court erred policy disparate limited bed had a

impact on blacks.

AFFIRMED. America,

UNITED STATES of

Plaintiff-Appellee, JONES, Jr., Defendant-Appellant.

Jessie

No. 94-5913. Appeals,

United States Court of

Sixth Circuit.

Argued May 1995. Sept.

Decided *2 and, had again, admitted he

behalf once felony. at 14. convicted of a J.A. been evidence, Following the close of following jury instruc- gave court district Grinalds, Atty. Asst. U.S. Leigh Richard respect to the essential element tion with Atty., briefed), of the U.S. and Office (argued prior conviction: Jackson, TN, for U.S. you must find a The first element Harviel, Jr., De- Federal Public T. Clifton you convict before reasonable doubt briefed), of the and Office (argued fender is that the defendant had TN, Defender, Memphis, for Public felony Federal of a a court been convicted Jones, Jr. prior Jessie to the state United States possessing a charged with fire- date he RYAN, Circuit and Before: JONES element, you satisfy To the first arm. MATIA, Judge.* District Judges and was, in only find that the defendant need felony, a and that convicted of JONES, J., opinion of the delivered pos- prior receipt conviction was 524), RYAN, a (p. delivered J. court. charged in this case. of the firearm session MATIA, D.J. concurring opinion. separate convicted of admits that he was Defendant 524-526), dissenting separate a delivered (pp. alleged in the felony prior to the date opinion. indictment, of the offense this element admits proven. Since defendant has been JONES, Judge. R. NATHANIEL of a felo- previously was that he Jr., Jones, ap- Defendant-Appellant Jessie government has ny, you will find that the posses- and sentence for conviction peals his offense, this element of established felon, by a and this of a firearm sion gov- if the you proceed to determine the lower whether must determine remaining proven the ele- has ernment instructing the plain error committed of the offense. ments crime had element of the an essential counsel raised at 23-24. Defense J.A. holdings previous proven. This court’s been instruction, and objection Jones to this invades that “the make it clear to 300 convicted and sentenced subsequently when, instead of jury’s province by three imprisonment followed months law, law to applies the instructing on the supervised release. months v. States has determined.” United facts he Cir.1988). (6th Ac- II. judgment of the vacate the cordingly, we that, al argues appeal, Jones On for further remand this case court and lower trial, plain object it was though he failed proceedings. jury that instruct the the court to for error of the crime had element an essential I. object party fails to proven. Where appeals the court indicted instructions January Jones On question appeal unless not address a firearm being possession a felon prejudicial, in which (1988). is obvious 922(g) Jones of 18 U.S.C. violation ease, it in the interest will consider guilty, and a pleaded not subsequently F.2d Young Langley, 793 justice. v. April trial was conducted denied, (6th Cir.), case, cert. Jones government’s At the close of (1986). such a stipulated that Jones only appeals review 4; court of Br. at see felon. Jones’ was a convicted error. Chonich prejudicial for clear presentation of the During the at 14. J.A. College, 973 F.2d Community County Wayne evidence, on his own testified Jones defense’s * Matia, designation. sitting by States Dis- Paul R. The Honorable Ohio, Judge Northern District trict Cir.1992) (amended (6th juries opinion); our under Constitution is not condi- contested; Prujansky, being 415 tioned the evidence

see also United Cir.1969) (holding government’s nor is burden to F.2d plain error where element of the offense relieved review court should object to instruction at defendant’s tactical decision not to contest an failed *3 defendant 52(b). McGuire, trial); essential element. See Estelle v. Fed.R.Crim.P. 62, 69-70, 475, 481, 502 U.S. 112 116 S.Ct. III. (1991). L.Ed.2d 385 simple: by instructing argument Jones’s is Mentz, robbery In United States v. a bank an element of the essential the district court instructed the proven, crime had been the district court that two banks were insured the Federal improperly province jury. of invaded the Deposit Corporation Insurance time of government argues, The alleged robbery. The insured status of argument unavailing because he was, however, the bank an essential element judge to the facts that the directed reversing In the offense. the Mentz’s to find. The relies conviction, this court found that the instruc- heavily upon holding Prujan- this court’s establishing, tion “relieved the sky, where this stated: beyond a reason- general understand the rule in a crimi- We doubt, every able essential element of [the nal case is that the court not direct a Mentz, crime].” 840 F.2d at 320. guilty strong verdict no matter how evidence and that the Government must “The Sixth Amendment to the Consti prove every essential element of the crime guarantees tution oppor to a defendant the beyond a reasonable It doubt. is a better tunity guilt for a to decide or inno practice judge for a trial on all (citing cence.” Id. at 319 Duncan v. Louisi alleged elements of the crime unless the ana, 145, 1444, 391 88 U.S. S.Ct. 20 L.Ed.2d stipulate. otherwise (1968)). necessary corollary 491 “A is the (citation omitted) guilt only to have one’s (emphasis 415 F.2d at 1048 determined added). proof jury’s moreover, argues, The reasonable necessary doubt of Jones, fact that in the eases cited constitute the defen added) charged.” the crime Id. dants had not to the elements for 358, 364, (citing Winship, Mentz, re judge which the trial U.S. instructed. See (whether (1970)). 840 F.2d at 318 bank was FDIC insured); Piche, stipulated evidence remains evidence 981 F.2d (4th Cir.1992) (whether consideration, 706, for the judge and a trial establish may not place public accommodation), ment “‘override interfere with the — denied, jurors’ independent U.S.-, judgment cert. manner 113 S.Ct. contrary (1993); to the interests of the 124 L.Ed.2d 264 accused.’” Hoover v. Garfield Ct., (6th (quoting Id. Heights Mun. United States v. Martin Linen 802 F.2d occurred), Cir.1986) (whether Co., Supply 572-73, 97 S.Ct. a lawful arrest had (1977)). denied, 51 L.Ed.2d 642 t. As U.S. cer 1610, (1987); this court noted in 94 L.Ed.2d 796 Horse, White Cir. In a criminal judge the trial 1986) (whether Telephone Authority roles, have well-defined refined organization an Indian tribal under 18 U.S.C. many years adjudica- over of constitutional judge tion. The trial instructs the government’s position, and, applicable howev the law to the issues raised er, ignores First, points. two appropriate circumstances, Mentz and may com- appellate cases, Supreme other Court ment on the evidence. The then inde- dispositive which facts, are of this pendently were de ap- determines the facts, cided Prujansky. plies after this court’s decision in reaching the law to those its Second, delegation However, finding powers of fact judge fateful decision. the trial status, “beyond per- when, and was thus felon instead juries province invades range acceptability.” Id. at 322. missible law, applies instructing on the he has determined. the facts the law to government makes much of the fact repeatedly jury had been told doubt that can be little There court, throughout proceedings by the— mag- of constitutional commits government, and the defense —that Jones jury as a he instructs nitude when deny a convicted felon. did not his status as to con- that a fact essential matter of law stating Br. Gov’t at 3-5. See While by the evi- viction has been established implies explicitly, argument dence, op- of the depriving thus was, most, harmless court’s instruction finding. This to make this portunity is, however, directly argument error. This tantamount directed *4 Mentz, contrary holding in to this court’s that condemned a result is prosecution, specifically that where we stated the Constitution. jury might important not that the [i]t is (internal citations, quotations, at 319-20 Id. had it have reached a conclusion similar Horse, omitted); 807 see White and footnotes given opportunity an to decide the (“when longer judge is no F.2d at 1480 pleaA issue under a correct instruction. evidence, that to the deciding applies the law dispute, guilty places issues in not facts— law to the applying rather is patent but ... even the most truths. Whatev- assessing the government’s proof after probative facts that are determined force the er at tri- jury power introduced to ac- possessed, value of evidence had probative jury’s prov- insufficiently reject it judge cept has or it —or to find al—the invaded Johnson, ince”); had a correla- persuasive. The defendant Cir.1983) (en banc) unhampered exercise 1317, 1322, tive free 1324-25 (same); jury powers. of all its Supply Co. 430 U.S. Martin Linen (“a judge judge error when 572-73, trial the district committed at 1355 establishing, judgment of con- relieved entering a prohibited from finding beyond a jury from rea- directing jury to come forward viction doubt, every essential element verdict, sonable of how over- regardless with such crime]. may point [the in that whelmingly the evidence (internal omitted); direction”) Unit- citations added) (internal F.2d at 320. v. United Carpenters & Joiners ed Bhd. citations, quotations, and footnote 775, 782, 408, States, 67 S.Ct. 330 U.S. Moreover, such as this an error (1947) may direct a (judge not L.Ed. 973 Supreme Court be harmless. The never prosecution). er constitutional indicated that certain “has pro to the criminal rors are so fundamental does not noting Mentz It is worth regard required “without reversal is cess that commenting on judge from prohibit ” case.’ Id. particular to the evidence F.2d at 321 See the evidence. Clark, 478 U.S. (quoting Rose v. (“A may on the evi- judge trial comment (1986)). 92 L.Ed.2d 460 106 S.Ct. dence”). “if his simply may not do so He prevents the instruction an ““[W]hen convey impression ... remarks equiv it considering a material from truths, such are established on that issue to a directed verdict alent Id. at 321-22. may not from them.” deviate harmless.’” cannot be considered therefore arguably could trial court Hoover, F.2d at (quoting Id. at that, “The effect advised observed, As this court is a con- stipulated that Jones parties have from [may prevented be] not felon, strongly you may/should [T]he victed duty of carrying out its historic this determining whether this when consider sup- facts beyond a doubt reasonable beyond a rea- element has been established of the of- element porting essential Here, the court’s sonable doubt.” doctrine “The harmless-error fense. absolutely room for the instruction left a taint a court remove enable the issue to decide jury’s preserve stipulated] in order to proceedings (Empha- element of the offense.” added.) error, indeed, constitutionally sup- sis findings, it cannot constitu- but instruction, tional error such an is in tell- findings.” plement those find”; ing what it “will it is not Illinois, Pope v. (quoting Id. telling fact is 95 L.Ed.2d 439 subtle, “proved.” sig- The difference is but (1987) (Brennan, J., dissenting). Juries, pow- nificant. in the exercise of their Finally, holding should not cause the nullification, ignore reject er are free to stipulations government concern be- “proved”; proved by facts that are whether (stat- meaningless. Br. at 8 come See Gov’t by stipulation. the introduction of evidence or ing would have the court “[t]he defendant stipulate When the in a criminal case stipulation”). is not a rule that a “proved,” that an essential fact is contrary, the fact that a To judge stipu- instructs the appropriately be made aware of a proved, lated fact is there has been no inter- give should and the courts ference prerogative with the to decide jurors gener- confidence that reasonable what it will has been find ally find facts to be established However, altogether anis different mat remaining a reasonable doubt. ter jury, for the trial to tell the *5 procedures consistent with the values and merely that, “proved,” that a fact is in but that are embodied and stated in our Consti- addition, the “will find” that it is tution, however, ultimately we must have commanding It is in the what must jurors carefully critically faith that and usurps “find” that the trial court testimonial, listen to the evidence—whether prerogative effectively and denies the defen direct, circumstantial, stipulation pre- —as jurors, dant the to have the by defense, sented jurors alone, find the facts in the case. See comprehend will listen to and Hayward, 420 F.2d court, presented by law as to them (D.C.Cir.1969); 143 — 44 Schwachter v. United thoughtfully apply that the the facts States, (6th Cir.1956). to the law. any There is no new law in of this. And there is no cause for alarm that because IV. here, of what we prosecutors have said Mentz, “[b]y placing judicial As in impri- defendants will be stipu disinclined to enter government’s proof matur on the “proved.” with re- lations that certain facts are spect offense, faulty to an element of the today We do no more than reiterate the partial instruction directed a verdict for the long-standing court, rule that while the trial prosecution, ensuring would not case, in a criminal appropriate in cir- find all elements a reasonable cumstances tell a what has been doubt.” 840 F.2d at 324. we “proved,” not instruct the judgment order that Jones’s of conviction as to what it “will find.” and sentence be VACATED this

case be REMANDED for a new trial. MATIA, Judge, PAUL R. District dissenting. RYAN, Judge, concurring. I respectfully major- must dissent from the thought Because what I was clear from ity’s astounding holding plain that it is Júdge opinion apparently not, I for a trial court to instruct a that an separately emphasize write the basis for essential element of a crime has been estab- my in concurrence what he has written. lished when the defendant has the facts that my that element. I take the rule of this case to be that a opinion, such an instruction is not error at not, case, judge may trial in a criminal when all, plain let alone error. an essential element of the crime stipulated, instruct a importantly, that it “will find judi- Most there is no precedent has established cial ruling. [the for such a The cases beyond a reasonable doubt of the crime stipula- majority do involve by the cited (citation practice It is better principally case by the defendant. tion charge on all elements of majority, United States upon by the relied (6th Cir.1988), alleged unless the other- crime was a F.2d 315 stipulate. essen- wise one of the robbery case which bank by be established which had to added). elements tial majority Id. at 1048 in- that the bank was Prujansky ground opinion on dismisses Insurance Cor- Deposit Federal sured appellate and and other Su- that “Mentz (FDIC). only was there Not poration cases, dispositive of which are preme Court govern- but the by the defendant stipulation issue, this court’s were decided after this over was admitted FDIC evidence ment’s Prujansky.” Majority opinion at decision at the close objection, and counsel’s defense is, Mentz and other 522. The trouble moved defendant government’s dispositive simply not of this cases are evidence ground that the on the for dismissal as discussed above. The trial insurance. FDIC to establish failed At least two other circuits considered instructed in Mentz nevertheless Sims, issue. In United States FDIC. was insured jury that the bank (8th Cir.1976), defendant F.2d 10 entered quite properly held The Sixth Circuit alleged that the substances into actually determined judge had derivatives of have been sold contained and, there- of FDIC insurance disputed fact appeal, On opium, heroin cocaine. said fore, The court Id. at 320. reversed. committed error in argued that 320: page footnote 8 instructing the substances were on this evidence government’s Since the Eighth and cocaine. The Circuit held heroin mainly testimo- of witness consisted issue sufficient evidence that his *6 by judge replaced the ny, did not err the trial court and that assessing on reaching conclusion based a jury. Id. at 11. instructing the weighing credibility of witnesses Jury In- Criminal Manual Model of (cita- value of the evidence probative Courts the District structions tion edition) (1994 offers 2.03 Eighth Circuit charge: following mystified as to how completely I am (both reasoning) can be case facts and government Mentz The defendants in is, for the controlling precedent have considered have —that ease, as which facts are counsel agreed certain stant —that agreed on the You therefore government just should have stated. any having proved. evidence making the introduction been facts as thus treat these unnecessary. All of on that element Circuit, v. in United States The Ninth for the by majority stand cited cases (9th Cir.1976), Houston, held 547 F.2d 104 (in guises) that in crimi various proposition stipula- into parties entered “when have a simply not direct cases the nal facts, those facts will be material tions as to See, e.g., States any issue. conclusively estab- to have been deemed Johnson, Cir. v. defendant claimed at 107. The lished.” Id. a single involves Not a previ- he had been stipulation his an element of stipulation to defendant’s have felony should not ously of a crime. (because that been submitted Prujansky, 415 F.2d law). v. responded In United question of The a (6th Cir.1969), said as fol- this Court an essential ele- stipulation to “the related by crime, regarded lows: to be ment of In the conclusively proved.” Id. a fact as general rule understand the We Jury Instruc- Model Criminal Manual the court case is criminal the Ninth the District Courts how tions guilty no matter a verdict direct (1992 edition), following instruc- that the Govern- strong the evidence § 2.04: appears at tion every essential element must ment agreed stipulate merely certain facts that the defendant The you. previously stated to You should punishable that have been convicted of an offense having by treat these facts as been therefore a term of of at least incarceration one year. by Under the rule announced the ma- jority today, will be forced to reasoning of Mentz and other cases The every previous felony introduce into evidence majority applica- has no cited has, conviction a defendant lest bility stipulations a defendant. If a stipulation choose to “disbelieve” either a or government agree that defendant and the one such conviction the are as stated and that no addi- certain facts might certainly select. This will be far more needed, tional evidence on such facts is how prejudicial right to a defendant’s to a fair can an instruction to the that it should stipulation trial than a fact could ever be. having proved treat those facts as be result, I find it difficult to believe that such a found to be a violation of the constitutional ostensibly in preserving the interest of right Surely to a trial? if a defendant right defendants, to a will benefit give up right a trial of all the system, public respect by entering guilty plea by waiving issues (Duncan law. Louisiana, reasons, foregoing For all of the I must (1968)), give up he or she can to a dissent. jury finding single by entering on a issue into of fact. To hold otherwise is to

raise form over substance. practical majority’s ruling effect of the profound. this case I could be cannot

agree holding that “this should not cause the stipulations concern that will be- Stacey SIMMONS, Plaintiff-Appellant, meaningless,”

come majority as the claims page Every attorney and trial should be concerned. ALLSTATE LIFE INSURANCE aof fact at trial means that Cole, COMPANY and Maurice *7 no evidence as to that fact need be intro- Defendants-Appellees. duced agreeing because the are purposes No. 94-1571. litigation stipu- partici- lated fact is true. This allows the Appeals, United States Court pants parties, jurors and the trial — —to Sixth Circuit. concentrate on issues about which there is dispute. The result is more efficient admin- Argued May 1995. justice shorter, through istration of less cost- Sept. Decided ly, and more focused trials.

If a ignore is now to be allowed to

parties’ stipulation of facts and instead sub- (because, speculation

stitute its own in the

absence of stipu- additional evidence on a

lated only speculate), could (the

will be incumbent

party principally impacted, since it has the case) proof

burden of present criminal

every scrap support of evidence to conviction. example, when a defendant is on

trial on the being posses- a felon in firearm,

sion of a longer it will no suffi- be

cient for the and