*1 reading against The proscription V relieve a out of context does not statements the district complains that Rinsley also state identifying particular plaintiff approach in its “piecemeal” court took a that are false and invade passages ments or rather disputed passages, review successfully can Unless he privacy. relevant in considering passages than that, statements identify particular false quarrels with entirety. apparently their He context, he is impression create the taken in of each of the district court’s examination Rinsley ages,” to the middle a “throwback Reality Police eighteen statements Reali We have examined complain. cannot objectionable at the that he identified as statements, no true or ty Police and find Rinsley district сourt level. contends that false, is a “throwback to imply Rinsley general impres- for a if the court had read enlightened or “no more ages” the middle focusing sion than on the truth rather inhuman, staff of Victo than the sadistic falsity each statement or on its status as Mary’s of Bethleham rian London’s Saint assertion, opinion it would have or factual hospital.” mental Reality concluded that Police a whole “as provides average reader unmistakedly as an ‘picture’ Rinsley
with a of Dr. ... VI to the middle irresponsible throwback court we with the district agree Because ages,” Brief at and “as Appellant’s be- objects to on Rinsley the statements inhuman, enlightened no more than actionable, decide are not we do not appeal sadistic staff of Victorian London’s Saint figure public Rinsley public whеther is a hospital.” of Bethleham mental Mary’s erred or whether the district court official at 18. had acted finding the defendants without malice. action, light privacy false as in In a AFFIRMED. action, a court should not a defamation isolation, but consider words or elements
should view them in the context of the they
whole article to determine if constitute Chauffeurs, privacy.
an invasion Cf. Local No. 795 Helpers
Teamsters and Union Work, Right
v. Kansans for the 189 Kan. (1962) (defamation); 368 P.2d Allen,
Little v. 149 Kan. 8 P.2d
(1939) (defamation); Capital Pierce v. Cities Communications, Inc., (3d America, UNITED STATES
Cir.) (defamation), cert. 439 U.S. Plaintiff-Appellee, (1978). L.Ed.2d 170 99 S.Ct. However, against reading this proscription BISWELL, Anthony Loran statements in isolation does not forbid the Defendant-Appellant. examining particular court from state for their objectionable ments identified as No. 81-2341. opin truth or or for their status as falsity assertions, long ions or factual as the Appeals, Court court reads In thе instant them in context. Tenth Circuit. properly
case the district court examined 22, 1983. Feb. objec identified as every Rinsley statement Rinsley allege, tionable. does not and our not dis
review of the court’s decision does
close, that the considered district court
particular statement out of context. *2 Lutz, Atty.,
William L. and Richard Smith, Albuquerque, J. Asst. Atty., N.M., for plaintiff-appellee. N.M., 17, 1981, Norvell, investigation. for On June Albuquerque,
David L. Ac- pawnshop. two visited Biswell’s defendant-appellant. testimony, Biswell cording agents’ exchange a car in sold $200 HOLLOWAY, BARRETT Before This cash and worth of food $850 LOGAN, Judges. Circuit *3 premised charge in Count I of the indictment. A similar transaction was HOLLOWAY, Judge. Circuit July occurred on 1981. It said to have appeals jury convic- Defendant Biswell in Count II on defend- tion on I of a two count indictment Count acquitted. ant was two offenses of unau- charging him with At the of the trial Biswell moved outset use, possession and acquisition thorized on a due to dismiss the indictment based more, stamps food of a value of $100 process stemming agents’ defense from July about June 17 and respectively on or conduct,1 arguing that the defense should 23, 1981, of 7 in violation U.S.C. § trial, by the court before outside be decided jury acquitted Biswell on (Supp.1981). jury. II R. 4-5. The presence of only appeal presents Count II. This two by to the motion prosecution responded con- First, argues issues. that outra- alia, tending, ought inter that “the Court geous governmental during conduct the in- go matter to to trial and if mat- order this process principles due vestigation violated ters are raised that are directed toward Second, prosecution. and bars his respect discretion of the Court erroneously contends the district court ad- jury then the government, conduct of the alleged mitted evidence of other excused, the cоuld hear it should be Court him in violation of Rules wrongs, or acts and from there.” Id. at 7. The proceed 403, 404(b) 609(a)(1), and Federal Rules of district court overruled Biswell’s motion. are not persuaded Evidence. We proposition first but are convinced that the to make an offer permitted Biswell was challenged erroneously evidence was admit- would which counsel believed show ted and that a new target (1) agents compiled that: federal ' must be afforded the defendant. en- list after consultations with local law agencies; (2) targeting par-
forcement of a required approval ticular individual from (3) police Hobbs offi- supervisors; USDA require The issues some review of the without target cials named Biswell as a evidence, which we will now summarize in vio- stamp known involvement in food part. lations; (4) not consider оr the USDA did status; Barrett, targeted (5) fed- Special Agent approve Russell Biswell’s for Biswell’s tar- Agriculture agents eral lacked a basis Department and; Lara, in this (USDA), geting, (6) agents “the involved Agent Louis the Ros- themselves, well, department, upon “tar- transaction ... took police New Mexico Hobbs, or au- geted” any supervisory approval New without several businessmen the streets of Hobbs during thority, simply Mexico course of an undercover walk at the [targets] and choose front stamp investigation pick food in the summer of Biswell, particular owns a door of these businesses....’’ pawnshop who actions, Biswell Hobbs, argued, at 8-10. These target used car lot in became a 423, 431-32, 1637, 1642, herein, sell, process 1. As used the due defense States, governmental Hampton v. United means conduct is so funda- 36 L.Ed.2d mentally outrageous 1653 n. n. unfair and “so that due J., concurring); (Powell, process principles absolutely id. at bar J., dissenting). (Brennan, invoking judicial processes Government 96 S.Ct. to obtain a conviction.” United States v. Rus- depri- stamps emphatic were amounted to a terms and said he want- outrageous and vation of process. money during due ed his the June incident. R. 221. The defense witnesses said the In the prosecu- trial before the agents “really persistent” repeated- witness, Barrett, Agent tion’s first testified ly trying purchase automobile with purchase about the of the two automobiles stamps food and that left the with cash and food The first sale food on Biswell’s counter after pur- occurred, stated, 17, 1981, Barrett on June the car for cash. Ms. Fedrick chasing testi- inspection after of the vehicle when he and give fied that the did not they Lara told Biswell would like the Ill R. at any stamps July in the visit. car have the they purchase but did not 252-53. price. said he told Biswell that $1,700 they only cash and worth of $200 A that Biswell said he notary testified *4 food stamps. sign Reyna had authorization to for L.M. as -appeared seller and that Biswell had Barrett, According replied Biswell that just the food at the office stamps notary’s handling one must be careful in food after the left agents gave and them to the Id. at 56. Barrett said that after stamps. in the notary keep agents case returned. a couple of seconds of reflection Biswell stamps by agents The food left to sell the car offered for the cash and $200 kept notary’s in the file cabinet until the stamps in food at their face value. $850 produced by notary trial and were at then related that the transaction trial. Barrett admitted that these was consummated Biswell counting the stamps were the same food used stamps signing food the automobile’s agents during the June 17 transaction and title in the name of “L.M. Reyna” as seller. that none in stamps used the Biswell Biswell the agents instructed to have the investigation had been redeemed for cash or nearby, title notarized Barrett said. Other credit. prosecution testimony indicated ne-
gotiating process consumed six minutes. We will cite other evidence as it becomes
Id. at 159
(testimony
Bogle),
of Officer
treating
relevant
in
the issues before us.
Scott).
(testimony of Officer
prosecution’s testimony concerning
The
alleged
the transaction
to have occurred on
“government
Biswell
contends
July
or about
23 was similar to its evidence
outrageous
in such
agents engaged
concerning Count I. Barrett said that Bis-
egregious
deny
conduct as to
the defendant
agreed
well
to the sale of a vehicle for $160
required by
fairness
fundamental
cash and
in food
Barrett also
$600
guaranteed
due
law
him under
process of
that,
occasion,
on this
testified
the Fifth Amendment of the United States
stamps,
though
asked if the food
even
Brief in Chief at
Appellant’s
Constitution.”
“hot,” were like the last ones in that Bis-
argument
appro-
raised this
at
of them
get
prob-
well could
rid
without
before, during and after the
priate times
Id. at 73.
lems.
evidence,
presentation of
district
produced by
The evidence
the defense
on each occasion.
rejected
court
the defense
tended to show that Biswell refused to take
the court did not err in so
We hold that
accepted
food
cash for
only
ruling.
I,
Olga
the transaction
Count
The
has stated
Supreme Court
Fedrick and Helen Biswell testified. Ms.
with a situa-
day
presented
some
be
“may
kept telling
Fedrick said that defendant
conduct of law enforce-
tion in which the
agents
stamps.”
he didn’t “mess with food
proc-
outrageous
so
due
ment
Bryant
Ill R. 249. Defense witness Isa
absolutely bar
principles
ess
rejected
testified that
the defendant
government
invoking
judicial
ample,
Twigg,
Third Circuit reversed
”
convictions based
all but one of defendants’
processes
obtain a conviction....
government
on the overinvolvement
Russell,
423,
United States v.
431-
drug
illegal
manufacturing
in an
1637,1642,
93 S.Ct.
Here Biswell relies
on United 748,
trial. de- against developing In such below, argument The Government’s fendant, Sgt. Bogle. the Government called that defendant Biswell invited appeal, is up came He confirmed that Biswell’s name such when he cross-examined Of- meeting Agents with during a target him. ficer Lara about the decision conсerning investigations. stamp Lara food It this says questioning asked what infor- prosecuting attorney “suggesting something irreg- to Barrett and Bogle conveyed mation being ap- ular and unfair about Biswell’s Biswell’s Lara about defendant Biswell. proached, barring at the same time while hearing of the objected, counsel and out of responding sug- prosecutors the evidence of miscon- jury argued gestion Brief of proof.” Appellee irrelevant, violative of Rule duct was interjected and type 8-9. The of evidence F.R.E., prejudicial. He asked way developed by it was the Govern- excused “for the that the be *6 paramount importance. ment are of the offer that the Government receiving briefly, together therefore will review 155. The regard.” makes in this II R. rulings with the of the trial court. gave and Bis- objection cоurt overruled the receipt of continuing objection
well a evidence. such A that he told Bogle then testified the second wit- Agent Lara testified as that I was meeting “past about activities prosecution. ness for the He corroborated in, involved aware of that Mr. Biswell was earlier, testimony, Barrett’s outlined we were ongoing investigations and that about the first contact with defendant on past Biswell’s conducting at that time.” car, purchase June 17 and the by Bogle as activities were described accomplished by pay- said was things like property, stolen “[gjambling, ment of and in food On $200 $850 156; cross-examination, added). Bogle asked (emphasis Biswell’s counsel that.” II R. targeting Lara about the of Biswell. Lara also testified that Barrett said that Biswell’s name had come from contact not want to told me that hе did Scott, Sgt. Bogle Sgt. police and two Hobbs citizens, the com- regular businessmen officers, they and that in effect made information prior unless we had munity, 147-48. target decision to Biswell. II R. at activity criminal that there was either them, or we directly involved asked Lara prosecution
On redirect were involved they had information he and Barrett had come to Bis- whether activity. They of criminal in some kind this pawn shop well’s because of informa- citizens, un- just there to contact Scott, con- weren’t Bogle tion from and which was person as a of a portrayal information of some of the defendant less we had involved in criminal they sort that taking with a trait of criminal character activity. for an criminal activities part general that follow 156; added). period. For reasons Id. at undefined (emphasis vague оf that admission such we must hold Scott, Sergeant prosecution, called justified evidence was cross-examination during stated defense of no infor- but was in violation gave that she the federal under Rule had been involved in mation that Biswell to show that 404(a) by attempting any Id. at 183. On stamp food violations. conformity with a crimi- acted in redirect, tell testified that she did Scott event, any In the relevance nal character. have removed sto- Agent Barrett that “we was substan- part of of such evidence any before, and property len from his business of unfair outweighed by tially thing he’s been handled for the same be- vague portrayal when such a was then fore.” Id. at 188. Officer Scott injected, long-term criminal character asked if she knew of times when the have been excluded under should “convicted of such defendant had been things” replied “I believe his record promptly ...” before defense counsel ob- First, the Govern we note jected. mis- At the sidebar a motion for a justification for the evidence was ment’s trial on the of no founda- was made basis targeting had raised a the defense tion, Id. at 188- irrelevancy prejudice. was enti question and that the Government expressly 89. The motion was not ruled on evidence to tled to introduce other crimes taken. and no remedial action was When Brief respond. II R. at see also continued, was asked questioning Scott position Appellee at 7-10. The Government Biswell has she was aware “whether Mr. In the is untenable for several reasons. relating to re- been convicted for offenses prosecu ceiving property place, questioning and offenses relat- first activity” to that and she re- sort did not tion witnesses defense counsel sponded affirmatively. Id. at She was justification for delve into the reasons or during years asked whether the seven she others. “targeting” of defendant and had been a certified she had occasion officer inquired proce Defense counsel about to “visit Mr. Biswell in connection with the by superiors within the approval dures for investigation relating crimes to stolen target for the Department Agriculture replied, “Yes.” Id.3 property;” she investigation. ing of an individual Thus, repeated times refer- different justification for judge did not cite this connecting ences were made feel it did admission of the evidence and we *7 “ongoing investigations,” being with “han- sufficiently open to not exist in the record possessing property, dled” for stolen with injected by the the door to the evidence like “[gjambling, property, things defendant’s concerning Government ...,” by implication placed and he was conduct. group in a “involved in some kind of crimi- Moreover, for admission argument activity.” nal illogical. was jury the evidence before the B touching on process The due defense only the justified would have “targeting” We are convinced that the overall effect the trial the evidence before of such to create a admission of evidence was was re- prosecution’s II R. The motion 3. After the case-in-chief Biswell denied. 211-15. newed, except entrapment acquittal as a matter as to moved for a directed verdict of based law, presentation, III R. 363- prove on the the ele- after the defense Government’s failure to witness, prosecution’s offense, process rebuttal after the ments of the due defense conduct, outrageous governmental III R. and en- 366-68. trapment as a matter of law. The motion was judge, jury. and not the We have held wrongs, or acts “is not prove admissible to process some time that the due defense of person the character of a in order to show this sort is for the court to decide. United that he acted in conformity therewith.” It Szycher, supra, States v. 585 F.2d 445 does permit admission of such evidence (1978). remedy, The Government’s if the “for purposes, proof such as of mo- defense improperly evidence developing tive, intent, opportunity, preparation, plan, before the jury, object was to and have the knowledge, identity or absence of mistake proof confined, рroperly preju- and not to or accident.” dice the jury trial with extrinsic evidence
relevant only non-jury on the issue. Cf. At the outset of our consideration Ludwig, 404(b) States v. 143 of important Rule we feel it most (10th Cir.1974). Thus the Government did note suggest the Government did not justification not have urged it for intro- an issue at trial on which the evidence of wrongs duction of the other crimes and other crimes or misconduct was relevant evidence before the jury and it should have and admissible under the Rule. Moreover been excluded as irrelevant when that con- identify the trial court did not any such tention was made. issue, allusion, other than perhaps by his evidence, after close to the cau Second, the trial court referred however tionary give instruction he referring to another basis for admission of the evi- “motives; intent, knowledge or absence dence. The judge touched on this when of mistake or accident ...” note 4 discussing the instructions after the close of supra. Such should have been evidence, stating adding that he was a clearly identified broad statement cautionary dealing instruction the “404 invoking the Rule does not suffice. The testimony”. Ill R. at 374. He was obvious- burden is on the Government which “... ly viewing the evidence as admissible under carry showing must the burden of how the 404(b) Rule proof in the form of of other proffered evidence one crimes, is relevant motive, wrongs, prove or acts to case; more issues in the intent, specifically, must opportunity, like.4 precisely hypothe articulate the evidential Government also alternatively argues now consequence may sis which a fact of admission of the be proper 404(b). under inferred from the other acts evidence.” Appel- Brief of course, Mehrmanesh, lee at 11-12. Of first United provides (9th Cir.1982).5 that evidence of other a clear There must be cautionary given by by inquiring “targeting” 4. There was no instruction or misconduct into the judge importance identifying the trial at the time of the admission of matter. The the is- evidence, give justifying the evidence. He did general an instruction in the sue admission of the general charge (I 56): consisted here of a reference to Rule as follows: R. emphasized by is a noted commentator: Testimony presented has been of other by analyz- [Sjome acts, aid to fairness is afforded wrongs or crimes committed proffer each of other crime to de- defendant at earlier times. This hypotheses termine what evidential was not offered to show that the dеfendant use, expected weighing proba- committed the offense with which he is proof against tive force of the line of the need you here and cannot consider it at all specified prosecutor and the risks purpose. only for that You can consider it *8 The more there is in the Rule 403. reason showing for the of the defendant’s exclude, apt or the more it decision to admit motives, intent, knowledge or absence of to be Both bench and bar benefit at a is fair. mistake or accident in this case. You can reject admissibility questions if critical of are entirely and not consider it at all if clearly exposed and reasons stated. you see fit. noted, rely legislative history suggests 5. As Government did The of Rule 404 protecting policy Rule at trial for admission of the evi- of the accused argued good by prosecu- dence and instead that defendant embraced in faith should be opened proof judge. Accordingly, of the door for crimes tor and the onus of other alleged establishing between the an identi- logical clearly connection fied, receiving earlier and the case recent offense of reasonably offense or misconduct Thomas, tried. United being any reasonably recent goods, 632 stolen or with noted, cert. 837, Cir.1980), F.2d an As (10th conviction of such offense. 960, 373, damning the most 66 L.Ed.2d the evidence was of Burkhart, United 201, States v. referring “ongoing investigations,” 458 F.2d to sort — (10th Cir.1972). persons activity” “involved in criminal partic- a of the defendant for general smear We are mindful that testi- ipating “[gjambling, property, stolen fied that de- during July transaction II R. 156.6 United things like that.” fendant said he knew the were Escobar, 469, (5th States v. 674 F.2d know, however, “hot” they and wanted to if Cir.1982). approach The did Government’s ones, were get “like the last that he can rid to permit any by effort the defendant of here no problem?” in New Mexico with misconduct at charges specific meet II R. at he agent 73. The also testified that time; particular only by it could be met told the were they if general good denial and evidence of charac- checked, investigation would confirm that vagueness ter. Moreover the of the testi- the stamps they had been issued but mony reliability questionable made its hot.” Id. The defendant did “really deny value. diminished its agreed that he accept Thus Melia, States v. 691 F.2d Cir. dealing goods evidence of in stolen 1982).7 noted, permit- As Officer Scott intent, might be of relevance on the issue of testify ted to that Biswell had been “han- if it prоperly requirements meets the unspecified possess- dled” on occasions involving the same state mind in the shop property pawn —testi- perpetration of both the extrinsic and the mony vague enough charges to relate to offense, and if it was not too re- never proven. substantially outweighed mote or in value effect. See United States by prejudicial its here was The Government’s evidence Terebecki, 692 F.2d 1348-49 more in the nature of character evidence Cir.1982); F.R.E. interjected to that defendant acted in prove totality From the of the evidence inter- conformity par with his character on these jected are by procedure clearly pro Government we convinced ticular occasions—a 404(a), the admission of the evidence of other scribed F.R.E. The evi by crimes, wrongs proved lapped and misconduct here was dence far too much and over First, dealing gambling general error. we are not into a smear on crim- showing ducting, financing, managing, supervising, di- is over-balanced good part illegal gam- recting owning need and faith should rest on the all of an or or may prosecutorial bling felony. Government. This call for is a federal 18 U.S.C. business Williams, illegal gambling restraint. In United States v. [596 1955. An business § (2d Cir.1979), business, gambling defined as a violation 317], the law, 99 S.Ct. 61 L.Ed.2d persons state which involves five or more expressed “over the Second Circuit concern days operation than 30 and remains in for more government’s jeopardize a con readiness $2,000 gross in excess of or has a revenue viction of other crimes evidence when use any single day. here, admissibility, question is a close onе.” duty evi- courts “have a to excise 7. The trial Evidence, 404-112 Weinstein’s 404-45 — wrongs they uncharged can do dence of other omitted; added). (1981). (Footnotes emphasis relevancy destroying the of the evi- so without charges.” dence that addresses itself gambling, 6. Commercial includes “re- Lucero, United States ceiving, recording forwarding bets or offers Mangiameli, (10th Cir.1979); bet,” possessing intent facilities with the (10th Cir.1982). foregoing, felony in to do the is a New Mexico. (1982). placing of a N.M.S.A. 30-19-3 § bet Id. at 30-19-2. Con- § is a misdemeanor.
1319 inal justifica- activity, destroyed instant transaction actually was so tion of particular relevance on a issue of vague as to be related no identifiable Burkhart, intent. See United 458 prior wrongful agree conduct.' We cannot F.2d (10th Cir.) (en banc). 204-05 supports Tisdale decision rejected have arguments similar for admis- approach Government’s here in any respect. offenses, sion of Dyer earlier Act stating that “although such evidence may have at IV least some to the offense being relevance On careful consideration of the record
tried,
predominant
its
quality is to show the
here we are convinced that the evidence of
defendant’s character
a car
thief or a bad
interjected
crimes and misconduct as
artist,
check
for example”. United States
was
justified
404(b).
not
under Rule
In Burkhart,
supra, see also
event we must
any probative
hold that
val-
Gilliland,
United States v.
While the trial
did not discuss
403, F.R.E.,
conviction,
prior
evidence of a
сrime or
we feel that it is of com
even in the face of other evidence
pelling importance
amply
in these circumstances.
verdict,
supporting
plain
Even if some
constitutes
er-
portions
isolated
of the evi
impinging upon
ror
the fundamental
fair-
dealing
dence on
in stolen goods had been
ness of the
specific
trial itself.” United States v.
and sufficient for the
to find
Parker,
(10th Cir.1978);
604 F.2d
the defendant committed the extrinsic
also,
offense,8
Gilliland,
see
Terebecki,
United States v.
586 F.2d
United States v.
(10th Cir.1978).
(11th Cir.1982),
here due to
offered,
vague
and odious
“its
Accordingly,
judgment
is reversed
substantially
value
out
[was]
and the case is remanded for a new trial.
weighed by
preju
of unfair
F.R.E.;
dice....”
Rule 403
BARRETT,
Judge, concurring in
Circuit
Escobar,
(5th Cir.1982);
part
dissenting
part:
Westbo,
United States v.
291-
(10th Cir.1978).
majority
I concur in Part II of the
opin-
relating
outrageous
ion
to the issue оf
The Government relies on United conduct,
egregious
respectfully
but I must
Tisdale,
(10th Cir.1981),
dissent from Part III which holds that the
trial
in admitting
court erred
evidence of
86. There a tape
recorded conver
crimes and/or bad acts committed
sation containing defendant’s
to a
reference
pursuant
to Fed.R.Evid.
marijuana transaction was admitted at the
Thus,
judg-
I
affirm the
U.S.C.A.
charges
defendant’s trial on
of interstate
ment.
transportation of stolen property.
up We
evidence,
agree
majority
held the admission of the extrinsic
with the
government’s justification
but it
admitted in an
for admission of
entirely
was
different
context. The
without merit.
challenged
misconduct recounted in Tis
is
so,
judge
dale
all
did
single tape
revealed
re Even
the fact is that the
cording
single meeting,
government’s justification
of a
part
accept
which was
and, instead,
charged.
the criminal transaction
Here
admitted the evidence on an
i.e.,
404(b).
the extrinsic
rule
entirely
ground,
not tied in to the
different
ment,
although
judge
produced
record.
8. We note that
the trial
ex-
in the
R.
pressed
preference
a clear
for an actual record
190-91.
of the convictions referred to
the Govern-
*10
knowledge, or
of mistake or acci
inquiry
ap-
Thus the sole and exclusive
on
absence
erred,
Jacobson,
should
trial court
v.
578 F.2d
peal
be whether the
dent. United States
denied,
government’s
Cir.),
and not whether the
conten-
(10th
cert.
439 U.S.
appeal
tions on
are “untenable”. The trial
(1978);
United States v. Nolan, court supra. complete full instructions
submitted challenged testimony the use
limiting trial:
at the conclusion of the
Testimony presented has been of other
acts, wrongs or crimes committed This at times. testimo- earlier to show that
ny was offered
defendant committed offense you he is here and cannot America, STATES of UNITED purpose. You consider it all for Plaintiff-Appellee, only can consider it intent, motives,
showing the defendant’s of mistake or acci- knowledge or absence MARSH, Albert James reject this can it en- dent in case. You Defendant-Appellant. all see tirely you and not it at consider No. 82-1437. fit. R., p. Vol. I also United States Appeals, Court of Tisdale, course, in a supra. practical Of Tenth Circuit. sense, receipt evidence would be Feb. in the sense that it that he certainly adverse and does indicate Here, and naive. pure, innocent
however, substantially value I would
outweighed possible prejudice.