                         CORRECTED OPINION

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-1688



TFWS, INCORPORATED, d/b/a Beltway Fine Wine
and Spirits,

                                               Plaintiff - Appellee,

          versus


WILLIAM DONALD SCHAEFER, in his Official
Capacity as Comptroller of the Treasury of the
State of Maryland; LARRY W. TOLLIER, Director,
Regulatory and Enforcement Division, Office of
the Comptroller of the State of Maryland,

                                             Defendants - Appellants,

          and


CHARLES W. EHART, in his Official Capacity as
Administrator of the Alcohol and Tobacco Tax
Unit of the Comptroller of the State of
Maryland,

                                                          Defendant.

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

MARYLAND STATE LICENSED BEVERAGE ASSOCIATION;
NATIONAL DISTRIBUTING COMPANY, INC.; BALTIMORE
COUNTY LICENSED BEVERAGE ASSOCIATION, INC.;
RELIABLE CHURCHILL, LLLP,

                                      Amici Supporting Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District Judge.
(CA-99-2008-S)


Argued:   May 27, 2005                     Decided:   August 9, 2005

            Corrected Opinion Filed:   October 5, 2005


Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


ARGUED: Steven Marshall Sullivan, Solicitor General, William Ferris
Brockman, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF MARYLAND, Baltimore, Maryland, for Appellants. William
James Murphy, MURPHY & SHAFFER, L.L.C., Baltimore, Maryland, for
Appellee. ON BRIEF: J. Joseph Curran, Jr., Attorney General of
Maryland, Meredyth Smith Andrus, Assistant Attorney General,
Baltimore, Maryland, for Appellants. John J. Connolly, MURPHY &
SHAFFER, L.L.C., Baltimore, Maryland, for Appellee.      Joseph A.
Schwartz, III, SCHWARTZ & METZ, P.A., Baltimore, Maryland, for
Amicus Curiae, The Maryland State Licensed Beverage Association,
Supporting Appellants. Thomas W. Rhodes, Rachel D. King, SMITH,
GAMBRELL & RUSSELL, L.L.P., Atlanta, Georgia, for Amicus Curiae,
National Distributing Company, Inc., Supporting Appellants. David
F. Mister, Amy K. Finneran, MISTER, WINTER & BARTLETT, L.L.C.,
Timonium, Maryland, for Amicus Curiae, Baltimore County Licensed
Beverage Association, Inc., Supporting Appellants. Howard Graff,
Leslie R. Cohen, Deborah A. Skakel, Jodi Trulove, DICKSTEIN,
SHAPIRO, MORIN & OSHINSKY, L.L.P., Washington, D.C., for Amicus
Curiae, Reliable Churchill, L.L.L.P., Supporting Appellants.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                 2
PER CURIAM:

           This case is now on appeal for the third time.          TFWS,

Inc., a large liquor retailer in Maryland, is suing the State

Comptroller   of   Maryland,   seeking   a   declaration   that   certain

Maryland statutes and regulations governing the wholesale pricing

of liquor and wine violate the Sherman Act.            The Comptroller

asserts that the Twenty-first Amendment shields the Maryland regime

from federal antitrust scrutiny.       We have already concluded that

the regulations violate the Sherman Act, and the remaining issue is

whether the Comptroller has a valid Twenty-first Amendment defense.

The last time this case was before us, we reversed the district

court’s order awarding summary judgment to the Comptroller, an

order based on the district court’s conclusion that Maryland’s

Twenty-first Amendment interest in promoting temperance outweighs

the federal interest in promoting competition under the Sherman

Act.   We concluded that summary judgment was inappropriate because

there existed disputed factual issues about the effectiveness of

the Maryland regulations in promoting temperance.          On remand the

district court held a bench trial and awarded judgment to TFWS

after finding that the regulations do not promote temperance

because they do not raise liquor and wine prices in Maryland.

(This result would leave Maryland without a Twenty-first Amendment

interest.)    The district court’s finding that the challenged

regulations do not raise liquor and wine prices in Maryland is


                                   3
based on a comparison of prices in Maryland and Delaware.                   Because

the   district    court    failed    to    take   into    account   whether    the

difference in the two states’ excise tax rates affects the price

comparison analysis, we cannot conclude that the district court’s

determination is free of clear error.                We therefore vacate the

award of judgment to TFWS and once again remand for further

proceedings.



                                          I.

               The two challenged Maryland liquor regulations are

explained in some detail in our first opinion, TFWS, Inc. v.

Schaefer, 242 F.3d 198, 202-03 (4th Cir. 2001) (TFWS I), so we will

provide only a brief summary here. The first regulation, the post-

and-hold regulation, establishes how and when liquor wholesalers

may alter their prices.          See Md. Ann. Code art. 2B, § 12-103(c).

The second regulation, the volume discount ban regulation, requires

a   wholesaler    to    offer    every    retailer    the   same    price    for   a

particular product.        Md. Ann. Code art. 2B, § 12-102(a).                 One

effect   is    that    wholesalers   cannot       offer   discounts   to    larger

retailers for purchasing large volumes because discounts of any

kind are prohibited.       Id.

              In TFWS I we affirmed the district court’s determination

that both regulations violate federal antitrust law because they

constitute per se violations of § 1 of the Sherman Act.                 242 F.3d


                                          4
at 210.     We reversed, however, the district court’s dismissal of

TFWS’s complaint on Twenty-first Amendment grounds.     The district

court had determined on its own motion that despite their anti-

competitive effect the regulations were nonetheless valid under the

liquor control powers reserved to the states under the Twenty-first

Amendment.    Because neither side had an opportunity to address the

Twenty-first Amendment issue, we vacated the order of dismissal and

remanded the case.    We provided the following instructions to the

district court:

          On remand Maryland should be given the opportunity
     to assert and substantiate its Twenty-first Amendment
     defense, and TFWS should be permitted to respond. The
     analysis the district court should undertake in analyzing
     Maryland’s interest and then balancing it against the
     federal interest is straightforward. First, the court
     should examine the expressed state interest and the
     closeness of that interest to those protected by the
     Twenty-first Amendment.     We acknowledge that little
     analysis is needed on this point.      Temperance is the
     avowed goal of the Maryland regulatory scheme, and the
     Twenty-first Amendment definitely allows a state to
     promote temperance.    Second, the court should examine
     whether, and to what extent, the regulatory scheme serves
     its stated purpose in promoting temperance. Simply put,
     is the scheme effective?     Again, the answer to this
     question   may   ultimately   rest   upon  findings   and
     conclusions having a largely factual component. Finally,
     the court should balance the state’s interest in
     temperance (to the extent that interest is actually
     furthered by the regulatory scheme) against the federal
     interest in promoting competition under the Sherman Act.

TFWS I, 242 F.3d at 213 (internal quotation marks and citation

omitted).

            On the first remand both sides moved for summary judgment

after discovery.     The district court awarded summary judgment to

                                  5
the Comptroller, concluding that (1) the Maryland regulations were

effective in promoting temperance and (2) Maryland’s interest in

promoting temperance outweighed the federal interest in promoting

competition.      We reversed because “[t]he district court arrived at

its conclusion that the Maryland regulations were effective in

promoting temperance by weighing conflicting evidence” at the

summary judgment stage.         TFWS, Inc. v. Schaefer, 325 F.3d 234, 241

(4th Cir. 2003) (TFWS II).           Because “a district court may not

resolve conflicts in the evidence on summary judgment motions,” we

vacated the order awarding summary judgment and remanded for trial

on    “the   question   of    whether,    and    to   what   extent,    Maryland’s

regulatory scheme is effective in promoting temperance.”                   Id. at

241-42 (internal quotation marks omitted).

             On remand the district court conducted a bench trial, at

which the Comptroller sought to prove in two steps that the

regulations are effective in promoting temperance.                     First, the

Comptroller attempted to establish that the challenged regulations

increase retail liquor and wine prices in Maryland.                    Second, the

Comptroller attempted to establish that the higher prices are

effective in reducing consumption of liquor and wine in Maryland.

The    district   court      concluded,       after   considering   all    of   the

evidence, that the challenged regulations “do not increase Maryland

liquor prices,” and, as a result, the regulations are not effective

in promoting temperance.           J.A. 1249.         Because Maryland has no


                                          6
Twenty-first Amendment interest in the regulations, the district

court reasoned, there is nothing to balance against the federal

interest reflected in the Sherman Act. The district court enjoined

the Comptroller from enforcing the regulations, and the Comptroller

now appeals.



                                 II.

          The Comptroller argues that the district court erred in

finding that the challenged regulations do not raise liquor and

wine prices in Maryland.    We review for clear error the factual

findings of a district court sitting without a jury.   Fed. R. Civ.

P. 52(a). “A finding is ‘clearly erroneous’ when although there is

evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has

been committed.”    United States v. U.S. Gypsum Co., 333 U.S. 364,

395 (1948).    “If upon . . . review, we think that the findings of

the judge below were clearly erroneous, i.e. that he misapprehended

the evidence or went against the clear weight thereof, it is our

duty to say so and reverse the decision.”     United States v. One

1955 Mercury Sedan, 242 F.2d 429, 430 (4th Cir. 1957).        This

deference to the district court’s factual findings applies even

when they “do not rest on credibility determinations, but are based

instead on physical or documentary evidence.”   Anderson v. City of

Bessemer City, 470 U.S. 564, 574 (1985).


                                  7
           In finding that the challenged regulations do not raise

liquor and wine prices in Maryland, the district court relied

exclusively   on   evidence   comparing     liquor   and   wine   prices    in

Maryland to liquor and wine prices in Delaware, a state that

repealed comparable regulations over a decade ago.            The evidence

generally showed that Maryland prices are lower than (or at least

the same as) Delaware prices, which indicates that the challenged

regulations do not raise prices in Maryland and thus do not promote

temperance.   The district court relied heavily on two of TFWS’s

exhibits, Exhibits 93 and 94, which compare Maryland wholesale case

prices to Delaware wholesale case prices.            (Wholesale prices are

presumably indicative of retail prices.)        Exhibit 93 compares the

lowest prices in 2003 for 2,637 liquor and wine products.            Prices

were based on data provided by TFWS’s stores in Maryland and

Delaware. Exhibit 93 shows that when quantity discounts were taken

into account in Delaware, the lowest Maryland price was lower than

the lowest Delaware price for 54 percent of the surveyed products.

Exhibit 94 compares the lowest prices of forty liquor and wine

products over a seven-month period.          Prices were taken from the

Delaware   Beverage   Monthly   and   the   Maryland    Beverage   Journal.

Exhibit 94 shows that when quantity discounts were taken into

account, the lowest Maryland price was lower than the lowest

Delaware price for 67.5 percent of the surveyed products.                  The

district court also relied on anecdotal evidence that Maryland


                                      8
retail prices are widely known to be lower than Delaware retail

prices and that many Delaware residents cross into Maryland to buy

their liquor and wine.

          According   to   the   Comptroller,   the   district   court’s

reliance on Exhibits 93 and 94 and the anecdotal evidence is

misplaced because this evidence fails to take into account the

difference in excise taxes imposed by Maryland and Delaware.        The

Comptroller asserts, as he did before the district court, that any

comparison of prices must adjust for excise taxes because the

significant difference in excise taxes distorts the results (and

thus the probative value) of the comparisons.

          We conclude that the district court’s finding that the

regulations do not raise prices in Maryland is open to clear error

because the court’s analysis is incomplete.     The district court is

correct that there is ample evidence in the record that Maryland

wholesale and retail prices are the same as, or lower than,

Delaware wholesale and retail prices.      But as the district court

itself pointed out, “both parties used Delaware liquor prices as a

control group to gauge the effect of the regulations on Maryland

liquor prices.”   J.A. 1246 (emphasis added).    Put another way, the

whole purpose of comparing Maryland and Delaware prices is to

determine whether the challenged regulations actually have the

effect of raising prices in Maryland.       Excise taxes imposed on

wholesalers, the parties agree, affect wholesale and retail prices.


                                   9
However, Maryland currently imposes one of the nation’s lowest

wholesale excise tax rates whereas Delaware currently imposes a

relatively   high   wholesale   excise   tax    rate.      In    Maryland    a

$.40/gallon tax is imposed on wine and a $1.50/gallon tax is

imposed on liquor.     In Delaware a $.97/gallon tax is imposed on

wine, a $3.75/gallon tax is imposed on liquor of twenty-five proof

or greater, and a $2.50/gallon tax is imposed on liquor of less

than twenty-five proof.     See Federation of Tax Administrators,

S t a t e     L i q u o r       E x c i s e        T a x         R a t e s ,

http://www.taxadmin.org/fta/rate/liquor.html            (Jan.    1,   2005);

Federation of Tax Administrators, State Wine Excise Tax Rates,

http://www.taxadmin.org/fta/rate/wine.html (Jan. 1, 2005).                This

may indicate that in order “to gauge the effect of the regulations

on Maryland liquor prices,” J.A. 1246, price comparisons should be

adjusted for excise taxes in order to control for the difference in

excise taxes between the two states.           Otherwise, the fact that

Maryland prices are the same as, or lower than, Delaware prices may

tell us nothing about the effect of the challenged regulations on

Maryland prices.    Any difference in prices could be due to excise

taxes, the challenged regulations, or both.

             The    potential   significance     of     excise    taxes     is

illustrated by the following example involving a case (6 bottles)

of 1.75 liter bottles of Stolichnaya 80 Vodka. According to TFWS’s

Exhibit 94, the lowest published price in Maryland for the relevant


                                  10
seven-month period was $158.35 and the lowest Delaware price,

taking   into   account   quantity   discounts,   was   $161.94.   Thus,

according to Exhibit 94, a case of Stolichnaya costs $3.59 less in

Maryland and this fact supposedly indicates that the challenged

regulations do not raise prices in Maryland.        However, a Delaware

wholesaler would be required to pay $10.401 in excise taxes on its

case whereas a Maryland wholesaler would be required to pay only

$4.162 on its case.       Delaware thus imposes $6.24 more in excise

taxes on a case of 1.75 liter bottles of Stolichnaya than does

Maryland, and the $3.59 difference reflected in Exhibit 94 could

very well be due to the difference in excise taxes.       At this point,

we do not know the cause of the price difference because there is

no factfinding or analysis by the district court that explains the

extent of the impact that excise taxes have on prices or why a

comparison of prices should not adjust for excise taxes.

           On appeal TFWS responds to the Comptroller’s argument

that the price comparisons should be adjusted for excise taxes by

asserting that “[t]he price that matters to the consumer is the

retail price, which includes excise taxes.        It makes no sense to


     1
       There are 3.785 liters in a gallon. Thus a case of 1.75
liter bottles contains 2.774 gallons of liquor ((6 x 1.75) ÷
3.785). Assuming that Stolichnaya 80 Vodka is greater than twenty-
five proof, and thus that the higher Delaware rate of $3.75/gallon
applies, the excise tax on a case of Stolichnaya 80 Vodka is $10.40
(2.774 gallons times $3.75/gallon).
     2
       Applying the current Maryland tax rate results in an excise
tax of $4.16 (2.774 gallons times $1.50/gallon).

                                     11
remove those taxes from a state-to-state comparison.”                             Br. for

Appellee at 42.        TFWS’s argument, however, does not adequately

address the issue of whether a comparison of Delaware and Maryland

prices must control for excise taxes in order to be indicative of

the challenged regulations’ effect on Maryland prices.

              We have examined all of the evidence in this case, and we

are “left with the definite and firm conviction that a mistake has

been committed,” U.S. Gypsum Co., 333 U.S. at 395, because the

district court did not consider the issue of whether the price

comparisons     should   be    adjusted      for    excise    taxes.         We    cannot

conclude that the current record supports the district court’s

finding that the challenged regulations do not raise liquor and

wine prices in Maryland.         In other words, we cannot say at this

point that the price comparisons cited by the district court are

sufficiently reliable to provide an indication of the effect the

challenged regulations have on Maryland prices.                         There is no

factfinding or analysis by the district court that explains the

extent   of    the   impact    excise   taxes       have    on    prices     or    why   a

comparison     of    prices   need   not   be      adjusted      for   excise      taxes.

Moreover, there is no evidence showing that when excise taxes are

subtracted, prices in Maryland are still lower (and thus the

challenged regulations do not raise prices).                      In fact, we have

found only evidence to the contrary, that is, evidence showing that

when   excise    taxes   are    subtracted         from    Maryland    and    Delaware


                                        12
wholesale prices, prices in Maryland are actually higher than those

in Delaware (which would appear to indicate that the challenged

regulations raise prices in Maryland).         Other than the above-

mentioned price comparisons that include excise taxes, there is no

evidence that establishes that the challenged regulations do not

raise prices in Maryland. In sum, the district court’s analysis is

not yet complete, and at this stage we cannot conclude that its

finding that the regulations do not raise liquor and wine prices in

Maryland is free of clear error.     We therefore vacate the district

court’s order entering judgment in favor of TFWS and remand for

further proceedings.

          On remand the district court should first address the

issue of whether excise taxes need to be taken into account when

comparing Maryland and Delaware prices.        The district court, of

course, may exercise its usual discretion in determining whether,

or to what extent, the record should be reopened as a result of the

excise tax issue.      If the court concludes that a comparison of

prices should not be adjusted for excise taxes, the court should

provide its reasons, and it may then reaffirm its earlier result.

If the court concludes, however, that the prices should be adjusted

for excise taxes, then the court must determine the extent to which

excise taxes should be taken into account. The Comptroller asserts

that wholesale and retail prices reflect the entire excise tax

imposed   by   the   states   and   that   adjusting   prices   requires


                                    13
subtracting the entire tax.         However, it is unclear to us whether

wholesale and retail prices reflect the entire excise tax imposed,

as it is possible that the prices reflect only a portion of the

excise tax.      We note that the final exhibits submitted by the

Comptroller, Exhibits 113 and 113A, show higher prices in Maryland

when excise taxes are subtracted, but it is for the district court

to   determine   in   the   first   instance   whether       this   evidence   is

sufficient to support a finding that the challenged regulations

raise prices.        Moreover, given the timing of the Comptroller’s

submission of these exhibits, it may be that TFWS should have an

opportunity to offer a response to these exhibits.                  If the price

comparison     evidence       ultimately   shows      that    the     challenged

regulations do raise Maryland prices, then the district court

should determine whether the increase in prices affects consumption

in   that   state.     That    determination   will    control      whether    the

district court must proceed further under our instructions in TFWS

I, 242 F.3d at 213.

                                                        VACATED AND REMANDED




                                      14
