*1 Here, tinguishable. the IJ found reloca- possible petitioners point
tion to be
no evidence that un- relocation would be they
reasonable. Nor do otherwise chal-
lenge Thus, findings. IJ’s relocation
their claim of a well-founded fear of future
persecution necessarily fails.
III. Conclusion petitioners
Because have demonstrated
no reversible error past-perse- IJ’s fear-of-future-persecution
cution and find- conclusions,6
ings deny petition we judicial
for review. America,
UNITED STATES of
Plaintiff-Appellee,
v.
Trung TRUONG, Huu Defendant-
Appellant.
No. 04-5094.
United States Appeals, Court of
Tenth Circuit.
Oct. 2005. petitioners 6. As have failed to manding establish that evidentiary required burden for re- Tulengkey Ms. eligible asylum, Elzour, is it follows striction on See removal. 378 F.3d at they are unable meet the more de- 1149. *2 briefs), Tulsa, OK,
on the for Defendant Appellant.
Robert T. Raley, Assistant United (David Attorney O’Meilia, States E. *3 Attorney, briefs), States with him on the Tulsa, OK, for Plaintiff-Appellee. KELLY, HARTZ, Before and McCONNELL, Judges. Circuit McCONNELL, Judge. Circuit Huu Trung charged with possessing and distributing pseudoephed- knowing rine or having reasonable cause to believe it would used to be manufacture methamphetamine in violation of 21 841(c)(2), § U.S.C. and with possessing ephedrine knowing, and intending or having reasonable cause to they believe would be used to manu- facture methamphetamine in violation of 843(6). § U.S.C. A him convicted on both counts. Mr. Truong appeals his conviction, arguing the evidence in- it, sufficient to support appeals and his sentence on grounds. various We con- clude the evidence was sup- insufficient to port conviction, Mr. Truong’s and there- fore do not reach issues related to his sentence.
I. dispute There is no in this case that the defendant, Truong, Mr. very sold large quantities ephedrine of or pseudoephed- rine to people various on numerous occa- sions. question knew, is whether he believe, had reason to the sub- stance he sold would be used to manufac- ture methamphetamine.
bore the burden of proving such knowl- edge beyond a reasonable doubt. Because of the nature of question, we recount the facts of the case in detail. Ridenour, Robert Assistant Federal Public (Barry Defender L. Derryberry, evening 19, 2001, On the July Officer Writing Specialist, Research and with him Donnie Deramus of the Tulsa Police De- McLain, ephedrine small containers of whom he numerous saw Shane partment license, pseudoephedrine, large and twelve un- expired an driver’s and knew to have away bottles, in a and drive similar to the ten bottles a Texaco station labeled leave pulled told, Deramus truck. Officer All there were under counter. him. Mr. arrested 43,200 over and ephedrine McLain carry- the Texaco station room, McLain had left storage in the as well as “other pills cups with lids ing styrofoam two inventory.”1 items of straws; of the truck incident a search transport- was arrested and arrest revealed that one Mr. McLain’s station, police signed to a where he ed sealed, pill unmarked cups contained gave form and a statement. Mr. waiver opened the bot- bottle. Officer Deramus police told the he had obtained the *4 him tle, to to be discovering appeared what from a large pseudoephedrine bottles of pills. Mr. ephedrine or pseudoephedrine peri- brought man who them to the store Truong, Mr. who McLain identified a Mr. odically, permit and who would station, per- as the in the Texaco worked after he had Truong pay drugs to for the pills. him the son who had sold Truong them. Mr. said he did not sold and night, next Officer Deramus know the man’s name or how to contact Texaco sta- returned to the other officers him, man to that the would come but Truong, ad- confronted Mr. who tion and Truong or Mr. every store month so. a having to sold thousand-count mitted keep that he did not police admitted to McLain to Mr. pseudoephedrine bottle of pseu- of the sales he made of records only pseudoephed- night before. informed doephedrine. Truong Mr. also single in was a display the store rine on pur- that he did not know the police bags sixty-milligram of six box filled with pills put to would after pose which be tablets, when Officer Deramus asked but he sold them. any pseu- if other Truong there was Mr. witnesses testified at Three store, Truong in Mr. doephedrine they purchased large quanti- trial that register. the cash pointed down behind Truong. from Mr. ties of in the were ten unmarked bottles There began pur- that he McLain testified Shane indicated, each of which Truong area Mr. Truong from Mr. chasing pseudoephedrine approximately thousand contained one 2000, contain- buying of flats the winter pseudoephedrine pills. Officer milligram pseu- sixty-count bottles ing twelve if Truong pseu- Mr he sold Deramus asked bought McLain doephedrine for Mr. $300. and Mr. indicated doephedrine, every other week the flats once a week or large one of the bottles to that he had sold to single flat fifteen twen- purchased and for Officer Deramus Shane McLain $300. testified to Mr. McLain also ty times. store, permission to search the asked flats two multiple flats: two purchases of Officer Deramus Truong gave. which Mr. times; or three three flats two or three any pseu- if there was more then asked All times; six times. five flats five or store, ephedrine doephedrine sales, although on a few cash sales were storage him to a clos- Mr. directed Mr. box, “fronted” et, cigar in a occasions contained which $2921 re- pop, R. Vol. V 119. On and so on." to the storeroom held 1. The extent direct, however, were if there inventory altogether when asked is not other items cross-examination, cups, car- cigarettes, cartons of “cartons of the record. On clear from storeroom, in the Officer tons of other wares” responded in the affirmative Officer Deramus not. Id. at replied that there were the storeroom Deramus defense counsel asked if when inventory cigarettes, 126. ... held "other items of pills, allowing McLain, him to nephew, McLain the take the Shane McLain’s Kevin pills pay for them later. bought pseudoephed- also testified that he rine Truong. began by buy- from Mr. He In March Mr. McLain and Brandi ing two or packets three of “tear-outs” Rosencutter, witness, prosecution another week, once or twice a and after a few found 1000-count bottle progressed buying weeks to whole boxes of in an abandoned house and took it to Mr. the tear-out packages for He contin- $90. Truong to if larger see he could obtain the buy ued to the whole boxes once a week so, bottles. Mr. did and Mr. for five or six months and then began buy began McLain large bottles for each, buy bottles, purchasing one the thousand-count buying bottle at a time $420 occasions, twice, on two two bottles three four or five the month before Mr. once, bottles five bottles two or three Truong’s arrest. times, once, eight bottles and ten bottles uncle, Like his Kevin McLain made his Although Mr. Truong twice. did not purchases under unusual circumstances. bottles, “front” larger Mr. McLain the Neither large whole boxes nor the when Mr. McLain did not have full bottles were on display the store. He bottles, buy larger amount purchases made his when no one else was *5 him pay would allow to the re- in invariably the store and paid cash. The maining amount later. large bottles did not prices have labels or place These sales took under unusual on them. He did receipts not receive Mr. initially circumstances. While McLain bottles, purchases of the large although he purchases made his during day, he sometimes receipts received for the whole began buy pills later to shortly after boxes. Kevin was unsure if sales for the store closed. Mr. McLain would knock on large bottles were rung into the cash reg- the locked door of the store after the ister. On the four or five occasions on lights off, exterior had been turned bought bottle, he large Mr. Mr. him Truong would admit him and sell Truong placed styrofoam the bottle in a
pills. invariably Mr. McLain paid cash for cup with a lid and sometimes a straw. pills, the sales were not rung into the cash register, and Mr. McLain did not uncle, Like his Kevin McLain did not a receipt. receive When Mr. pur- McLain discuss the manner in which he made his cigarettes chased soft drinks or in addition purchases with Mr. Truong: to pseudoephedrine, the other items Q. you When purchases, made these were rung register. into the cash was there anybody else in the store? bottles price did not have tags on them. A. No. occasion, On one Mr packaged Mr. purchase McLain’s so as Q. to conceal its by design? Was nature; night Mr. McLain was arrest- A. I wouldn’t ever come into—I ed, Truong placed Mr. a single large bottle wouldn’t go ever peo- the store while of pseudoephedrine in a styrofoam cup ple wait, was in there. I would you with a lid and straw. These measures do know, everybody until left before I went appear not product to have been the any ask, in to to him ask for them. explicit agreement to conceal Mr. Well, Q. why is that? purchases; McLain’s Mr. McLain testified say he “couldn’t A. Because I paranoid. [he] and was I [Mr. was Truong] really Just, ever had a high. conversation” something it’s I did. Not about R. anything. Vol. V154. wanting get any into trouble. never dis- cious circumstances. The bottles not R. 244. Kevin McLain were Vol. V. rea- secretive behavior or the cussed his price tags. large labeled and had no indeed, Truong; his for it with Mr. sons bottles and flats of smaller bottles were Truong’s on Mr. testimony cast doubt abil- not on Ms. display. Rosencutter never a conversation ity to understand such receipt always paid received a cash. at- of the McLains have should either Purchases of were not it: tempted rung register pur- into the cash but other Q. you And did have a conversation chases made at the same time were. you tell about these did the defendant There is one new element in Ms. Rosencut- [large] bottles? account, however; ter’s Ms. Rosencutter lot just A. He said he had the thousand that Mr. stated “to some extent” much. There wasn’t a real con- pretty purchases told her not to make her when it. versation about He said he didn’t other customers were the store: box but he had those. have the tear-out there, A. If people there was he didn’t Q. speaking English? And he was know, want to sell them to us. You to, trying yeah.... A. He while there was people other there Q. you? Did he understand store, if we would wait. Then there if A. I’m not sure he did or not. him, people behind the counter with R. Vol. V. 248-249. wouldn’t, know, you he would—he he also sold would let us know to let them know friend, McLain’s Brandi Rosen- Shane doing. what we were Ms. Rosencutter testified that cutter. Q. that? And how would he do McLain introduced her Shane point A. At one he told me not ah—to *6 early began that to Truong 2001 and she Q. youDo recall what he said? buy sixty-count five and six bot- between A. if had or if Just he customers there tles a few times a week. Ms. Rosencutter people behind the counter that story of corroborated Shane McLain’s because, know, you buy to from them he in an finding a thousand-count bottle aban- only buy was the one to from. that doned house and testified she went Q. any signals Did he ever make of with Mr. McLain to show the bottle to Mr. you to to come gestures [sic] back A after she showed Truong. few weeks bottle, gone? Truong began buy Mr. she to wait until other customers were large once or one or two of the bottles often, very mostly A. Not we most- —I twice a week. She continued make do, know, ly you if knew what to there approximately six purchases these there, I many people were too would months, estimate, buying, at her 150 bot- just come back. tles in total. Mr. was out of When once, Q. you you were told knew After bottles, large Ms. Rosencutter testified what to do? bought sixty- that flats of she sometimes A. Yes. bottles, estimating pur- count that she Normally R. 299-300. Vol. V. sixty during period chased flats the same bag, put plain would the bottles a brown larger buying she was bottles. When put he them in a white but once or twice available, pur- she nothing else was also styrofoam cup cup top with another on of 48-packet pseudoephed- chased boxes of it, but a straw. without rine and hundred-count bottles. case, prosecution’s At the close of the purchases
Ms. Rosencutter’s were at- of litany judgment moved for a by suspi- tended the now-familiar of the defendant 1288 arguing prosecution porting guilty that the verdict must raise more
acquittal, prove offered no evidence suspicion guilt, than the mere of and the cause to knew or had reasonable believe jury’s spec- inferences must be “more than he sold would be conjecture in ulation and order to be rea- methamphetamine. used to make The tri- Leos-Quijada, sonable.” United States v. motion, ruling al on the court reserved (10th Cir.1997). 786, 107 F.3d We when denied it reasons the defen- without must therefore chart our course between motion at the close of dant renewed the his permissible inferences jury may own ease. from draw the evidence before it and mere evidence, speculation, prose- affirming “any At of the the verdict if the close ignorance” a “deliberate requested cutor rational trier of fact could have found the instruction, permit jury would which beyond essential elements of the crime purposefully from acts knowledge infer reasonable doubt.” Virginia, Jackson v. by learning defendant to avoid taken 307, 319, 443 U.S. 99 S.Ct. that the he sold was like- (1979) (emphasis L.Ed.2d 560 in original). ly methamphetamine. used to manufacture procedural posture of this Concha, See States v. 233 F.3d case limits our consideration of the evi (10th Cir.2000). 1249, 1252-53 After a dence to that presented govern discussion, lengthy occupies more ment’s case chief. Mr. moved pages transcript, than ten in the the dis- for a judgment acquittal under Rule 29 trict court declined to deliver the instruc- at prosecution’s the close of the case and ground tion on the that “there nois record the trial court ruling. reserved its aWhen for, establishes or forms the basis trial court on ruling reserves a motion for indicates conduct that includes deliberate judgment of acquittal, its ruling ultimate knowledge acts to actual oper- avoid on the motion must be based on the evi ant facts.” dence as it stood ruling when the a verdict of guilty returned on 29(b). reserved. Fed.R.Crim.P. Appellate both counts of the indictment. similarly review is limited in scope. See Advisory Committee Notes to 1994 II. *7 (“[T]he Amendments trial court is to con review We claims insufficient only sider the evidence at submitted the novo, evidence, evidence de but view the as time of the motion in making ruling, its well as the reasonable inferences that whenever made. And in trial reviewing a it, could be from in light drawn the most ruling, appellate court’s the court would be government. to favorable the limited.”); similarly accord United States 1257, States Rahseparian, v. 231 F.3d Finn, 1033, (10th v. 375 F.3d 1037 Cir. (10th Cir.2000). 1261-62 An inference is 2004). must disregard We therefore the reasonable “if the conclusion flows from evidence, by government discussed the logical probabilistic reasoning.” and Unit brief, its that was introduced after the Jones, (10th 860, ed 44 States v. F.3d 865 Rule 29 motion. Cir.1995). second-guess do not We the jury’s determination as to weight the or III. credibility of the presented evidence at Yoakam, trial. United v. The statutes under which Mr. States 116 F.3d 1346, (10th Cir.1997). 1349 unusually was convicted contain an Our deference jury’s to the specific evaluation of the requirement: they pro evidence is mens rea unlimited, however; the sup- evidence hibit possessing distributing pseu- and
1289
statute,
ephedrine only when it
text of the
doephedrine
[challenged jury]
and
knew,
proved
incorporates
subjective
can
that
the defendant
instruction
both
be
intended,
objective
or
reasonable cause to be-
and
considerations....
[The de-
lieve it would be used to manufacture
had reasonable
fendant]
cause to believe if
actually
21
she
methamphetamine.
U.S.C.
knew facts that would alert a
841(c)(2),843(6).
§§
person
It is not sufficient for
reasonable
that
pseudoephed-
prove
that
government
the defen-
rine would be used to make methamphet-
intended,
amine.”);
knew,
Galvan,
dant
or had reasonable
United States v.
407
(8th Cir.2005).
954,
cause to believe
the substance would F.3d
957
But
this
illegally.
interpreted
be abused or would be used
Nor Circuit has
the “reasonable
government
prove
it sufficient for the
is
cause
believe” standard of 21 U.S.C.
841(c)(2)
843(6)
§§
§
negligent
that the defendant was
or reck-
as “akin to actu-
respect
less with
to the risk that
al knowledge.”
Saffo,
United States v.
227
(10th
1260,
ephedrine
Cir.2000);
or
he sold F.3d
1269
see also
Buonocore,
1124,
would be used to manufacture metham- United States v.
416 F.3d
Green,
(10th Cir.2005)
phetamine.
v.
779
(approving jury
United States
1133
in-
(7th Cir.1985).
1313,
stating
F.2d
1318-19
struction
the reasonable cause to
government
prove
must
the defendant was
inquiry
entirely subjective,
believe
“is
aware,
believe,
inquiry
or had reasonable cause to
is not to
per-
be viewed from the
spective
that the substance
hypothetical
would be used
of a
per-
reasonable
son”).3
specific purpose manufacturing
case,
metham-
In order to convict in this
therefore,
phetamine.2
prosecution
had to offer evi-
dence sufficient to
allow the
to infer
statute,
it
On
face of the
that Mr. Truong had actual knowledge, or
might appear that the mens rea element of
it,
something
pseu-
close to
subjective
these offenses could be either
or
doephedrine
ephedrine
he sold would
objective
a defendant could be con
—'that
be used to
methamphet-
manufacture
victed
of actual
upon proof
knowledge or
amine.
(subjective)
intent
upon proof
person
reasonable
Ordinarily,
government
the defendant’s cir
(had
by
cumstances should have known
“rea
satisfies this burden
introducing evi
believe”)
son to
that the substance would dence that the defendant had received an
used to manufacture methamphetamine
warning regarding
be
official notification or
(objective).
substance, e.g.,
Two circuits have so
Ngu
held.
United States v.
Kaur,
1155,
(10th Cir.2005)
yen,
See United States v.
382 F.3d
413 F.3d
(9th Cir.2004) (“[cjonsistent
(“the
routinely
with the
DEA
visits convenience
specifically argued
government’s
2.
request
has not
trict court denied the
*8
that the conviction could be sustained under a
ignorance”
for a "deliberate
instruction on
See,
theory
ignorance.”
e.g.,
of "deliberate
ground
support
the
that the record did not
it.
Concha,
1249,
United States v.
233 F.3d
1252-
government
R. Vol. VII 502-512. The
does
(10th Cir.2000) (stating
jury
53
that a
instruc-
ruling
challenge
appeal. Any
that
on
"knowledge
tion that
can be inferred if the
argument
such
is therefore waived.
deliberately
defendant
blinded
to the
himself
appropriate
a
existence of
fact” is
when the
Eighth
3. The
Circuit has criticized our inter-
government presents
"showing
evidence
pretation
ground
on the
that it "would effec-
purposely
defendant
contrived to avoid learn-
tively equate reasonable cause to believe with
truth”);
Hanzlicek,
ing the
United States v.
knowledge
thereby
actual
and
render the ‘rea-
1228,
Cir.1999);
(10th
187 F.3d
1233
phrase
sonable cause to believe’
redundant.”
Francisco-Lopez,
States v.
939 F.2d
Galvan,
1290 all, any subject area to issue at [red] and Kevin McLain’s [defendant’s] stores warning] pseudoephed- testimony that suggested Truong’s ... that Mr. notices drug pro- English might to criminal inadequate rine can be diverted have been recipients and informs about the have such a if it duction conversation even regarding attempted. government laws sales of been Nor state and federal did the Saffo, 227 at products.”); present knowledge these F.3d evidence that of the (DEA meeting in which defen- connection videotaped pseudoephedrine between and DEA ephedrine a “red notice” ex- and the dant was shown manufacture of meth- purchases amphetamine that criminals make of was so plaining widespread among pseudoephedrine persons in or- of Mr. large quantities Truong’s circumstances methamphetamine); knowledge manufacture that his In- der to could be inferred. deed, by using agent engage only an undercover at trial regarding evidence regarding the defendant public knowledge methamphetamine conversation with the connection between the substance and can be pseudoephed- manufactured from of methamphetamine. the manufacture rine was testimony Officer Deramus’s Buonocore, See, e.g., everyone F.3d at 1126 not relationship knows of the (DEA buy recorded controlled which drugs. between the two purchaser said “the meth cooks must be sure, To Truong be as Mr. admits in his crazy” “I cookin like and must have had a brief, government presented an abun- run, town, there’s a bunch of meth cooks dance of evidence from might which for”). using A [sic] that’s what their them reasonably infer that Mr. knew may defendant’s own actions or words also up that his customers good.” “were to no knowledge reveal his that he selling is huge quantity Defendant Br. 13. The precursors that will be converted into a clandestine circumstances of the sales methamphetamine. surely put any per- would have reasonable son on something notice that nefarious was government presented no going on. Mr. Truong repeatedly sold in this govern such evidence ease. The shop after his closed or ment offered no direct evidence regarding customers, when there were no other from subjective Truong’s state of knowl jury might which a reasonably infer that edge as to the conversion of pseudoephed- Mr. Truong did not wish these sales to be Indeed, methamphetamine. rine into observed. There ample was evidence that only testimony presented in govern purchasers wished the sales to be se- ment’s case in chief addressing Mr. cret, which supports the inference Truong’s awareness of the connection be their intended use was illicit. fact drugs tween he sold and the manufac that Mr. Truong purchased drugs out- methamphetamine ture of was Officer Der- ordinary side channels an testimony amus’s that Mr. from unknown told the person, and police he did not know the sold them without the usual purpose to packaging labeling he sold indicates that would he put. complicit. be No law agent Repeated enforcement testi cash sales made fied that had received without generating any notice records could also fact that pseudoephedrine support can be reasonable inference that Mr. methamphetamine. used make None of attempting discovery. to avoid any Finally, witnesses testified to a jury could infer from the act of *9 Truong conversations with Mr. regarding concealing pill in styrofoam cups bottles methamphetamine. Indeed, two of the that Mr. selling large quanti- knew purchasers three they testified that had ties of pseudoephedrine was not an inno- had no conversations with Mr. Truong activity. on cent
1291
HARTZ,
mens rea re-
unusually specific
Judge,
But
Circuit
concurring.
the
§§
21
841 and
quirement of
U.S.C.
843
I
Although
question
very
concur.
the
is
Presumably
requires more.
because
me,
close for
I can accept
panel’s
the
view
large-scale legitimate
pseu-
the
use of
that
there was insufficient evidence to
remedy,
as a cold
and a con-
doephedrine
prove
Truong actually
that Mr.
knew that
imposing
cern about
unreasonable
pseudophedrine
the
selling
he was
liability
duties or risk of criminal
on the
destined for methamphetamine manufac-
pharmacies and convenience stores that
words, however,
turing.
I add a few
in the
common product, Congress
sell this
limited hope
they may help
that
avoid error
the
§§
21
the reach of U.S.C.
841 and 843 to future.
knowledge
sellers with the actual
or intent
It seems to me
ample
that
there was
(or,
Circuit,
something
this
“akin to
evidence to convict Mr.
if
jury
the
knowledge”)
actual
that it would be used
properly
had been
instructed. Mr.
In
methamphetamine.
to manufacture
the
Truong’s surreptitious .conduct in selling
below,
government presented
trial
sub-
pseudophedrine
certainly permit
would
that Mr. Truong
stantial evidence
was at-
juror
a rational
beyond
to infer
a reason-
tempting
pseu-
to conceal his
sales
able doubt that
knew
purchasers
he
doephedrine
ephedrine,
and knew or
using
drug
were
for some unlawful
had reason to believe the transactions had
purpose
if
and that
he did not know the
character;
presented
an illicit
it
no
but
specific,purpose,
willfully
he
avoiding
that
evidence
knew that his
that knowledge. The criminal law is not
purchasers would use the
substance
“ ‘(T)he
devoid of common sense.
rule is
methamphetamine.
manufacture
For all
if a party
suspicion
has his
aroused
presented
we know from the evidence
deliberately
but then
omits to make fur-
chief,
jury in
government’s
case
enquiries,
ther
because he wishes to re-
Truong may
have
thought
ephed-
main in ignorance, he is deemed to have
rine and
are themselves
”
Jewell,
knowledge.’ United States v.
subject
purchasers
to abuse or that his
(9th Cir.1976)
banc)
(en
F.2d
were addicted to over-the-counter medi-
Williams,
(quoting
Llewely
Crim-
Glanville
cations. He could
thought
have
that he
Part,
inal Law: The General
s 57 at 157
taxes,
evading
and his customers were
(2d ed.1961)
(parenthesis
original)).
If
products
were contraband for
jury
given
had
a deliberate-igno-
been
beyond
some reason
his ken. While such
instruction, the
could be sus-
rance
verdict
hardly
motives would
redound to Mr.
tained.
credit,
Truong’s
they
punishable
are not
Indeed,
prosecution requested
such
by the statutes under which he was con-
instruction,
an
the district court denied
victed.
but
request.
recently
a
We
affirmed
con-
IV.
ground
viction on the
that there was suffi-
support
guilty
cient evidence to
verdict
prosecution
present
failed to
suffi-
by
jury,
a properly instructed
without our
cient
from
evidence
could
determining
sup-
whether
the evidence
reasonably
have
inferred Mr.
knew
ported a
or had
verdict based on the instructions
reasonable cause to believe the
actually given,
prosecution,
when the
drugs he sold would be used to manufac-
as
here,
methamphetamine.
unsuccessfully sought
proper
ture
We therefore
See United States v.
unsupported
REVERSE his conviction as
instructions.
Williams,
(10th
Cir.2004).
by sufficient evidence.
argued a not decide whether
appeal, so we need (We applies. also need not ad-
Williams whether, was suf- in the event there
dress deliberate-igno- under a
ficient evidence theory, we must remand for new
rance guilt for the to decide or inno-
trial theory.) under that
cence
Therefore, misgivings with considerable here, join Judge I the outcome
about opinion.
McConnell’s PRICE, Plaintiff-Appellee, B.
Michael
v. INC.,
TIME, Yaeger, Don Defendants-
Appellants.
No. 04-13027. Appeals, States Court of Smith, Gary Huckaby, Scott Burnett C. Eleventh Circuit. Kimberly Martin, Arant, Bradley, Bessiere Sept. 2005. White, LLP, Huntsville, AL., Rose & for
Defendants-Appellants. D.
Stephen Heninger, Heninger, Burge, Davis, LLP, AL, Vargo Birmingham, & for Price. Handman,
Laura R. Wright Davis Tre- maine, LLP, DC, Washington, amicus curi- ae, ABC, Inc. PRYOR,
Before CARNES and Circuit FORRESTER*, Judges, District Judge.
* Forrester, Judge Honorable J. Owen United States District for the Northern District of