                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             MAY 29 2001
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 GARY P. GALLETTA,

          Plaintiff-Appellant,

 v.                                                       No. 00-1236
                                                            (D. Colo.)
 BRIAN W. DEASY,                                      (D.Ct. No. 96-D-1463)

          Defendant-Appellee.
                        ____________________________

                             ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      In this 42 U.S.C. § 1983 action, plaintiff Gary Galletta claims defendant


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Denver Police Sergeant Brian Deasy illegally searched and utilized excessive

force in arresting him for interference with a police officer, speeding, and no

proof of insurance following a traffic stop for speeding. The district court

granted Sergeant Deasy’s motion for summary judgment on qualified immunity

grounds as to the illegal search claim. Following trial, the jury found Sergeant

Deasy had not used excessive force in arresting Mr. Galletta. On appeal, Mr.

Galletta argues the district court erred in granting Sergeant Deasy’s summary

judgment motion and in sustaining an objection to a question posed by Mr.

Galletta’s counsel to Sergeant Deasy during the trial. We exercise jurisdiction

under 28 U.S.C. § 1291 and affirm.



I. Background

      The material facts necessary to resolve this appeal are undisputed.

Sergeant Deasy stopped Mr. Galletta for speeding and asked him to produce his

driver’s license, registration, and proof of insurance. Mr. Galletta opened his

wallet in front of Sergeant Deasy, which allowed Sergeant Deasy to observe two

driver’s licenses in the wallet. After Mr. Galletta gave him one of the licenses,

Sergeant Deasy requested the other. Mr. Galletta denied having a second driver’s

license, at which point Sergeant Deasy ordered him to produce it. When Mr.

Galletta refused, Sergeant Deasy arrested him for interference with a police


                                         -2-
officer, speeding, and no proof of insurance. Sergeant Deasy seized and searched

Mr. Galletta’s wallet incident to the arrest, and found the second license was a

duplicate issued to Mr. Galletta.



II. Procedural History

      In support of his summary judgment motion, Sergeant Deasy claimed

qualified immunity from suit, because he: (1) reasonably believed there existed

probable cause to arrest Mr. Galletta for interference with a police officer, which

gave him the right to subsequently search Mr. Galletta’s wallet incident to the

arrest; and (2) properly seized the second license under the plain view exception

to the warrant requirement. In response, Mr. Galletta challenged the existence of

probable cause to arrest, because he allegedly: (1) complied with Colorado

Revised Statutes § 42-2-113(1) by handing over his original driver’s license upon

Sergeant Deasy’s request for it, and (2) did not disobey a “lawful order” – an

element of the crime of interference – from Sergeant Deasy, because Sergeant

Deasy “had no particularized knowledge in this case which would make it more

probable than not that the document seen in [Mr. Galletta]’s wallet was a forged

or false identification.”



      The district court found “Deasy was reasonable in believing that by


                                         -3-
refusing to surrender the second driver’s license, Galletta was committing a

misdemeanor in violation of C.R.S. § 42-2-115, which requires a licensed driver

to turn over his or her driver’s license, and C.R.S. § 42-4-107, which requires

obedience to police officers.”   1
                                     (Footonote omitted.) Accordingly, the court held

Sergeant Deasy had probable cause to arrest Mr. Galletta for failure to comply

with a lawful order of a police officer, and the subsequent search of Mr.

Galletta’s wallet was justified under the search incident to arrest exception to the

warrant requirement. The court concluded: “Since Galletta has not met his


       1
          This order and judgment departs from the district court’s statutory citations in
two ways, neither of which affects the substance of the district court’s holding, Mr.
Galletta’s issues on appeal, or our resolution of those issues. First, as the district court
noted, the Colorado law requiring a licensed driver to turn over his or her driver’s license
to a police officer upon request at a valid traffic stop was codified as Colo. Rev. Stat.
§ 42-2-113(1) at the time of Mr. Galletta’s arrest. Accordingly, we refer to the language
of § 42-2-113(1), even though the statute has since been reenacted “in substantially
similar language” under § 42-2-115(1). People v. Rodriguez, 945 P.2d 1351, 1359 n.5
(Colo. 1997) (en banc); see infra Part IV.A. Second, as supported by the record, we
recognize Sergeant Deasy arrested Mr. Galletta pursuant to Denver Revised Municipal
Code § 38-31(c), not Colo. Rev. Stat. § 42-4-107. See infra Part IV.A. However, this is
immaterial to the district court’s holding and this appeal, because: (1) both the municipal
code and state statute criminalize a person’s failure to obey a police officer’s lawful
order; and (2) Mr. Galletta’s memorandum in opposition to Sergeant Deasy’s summary
judgment motion and his first issue on appeal ultimately focus on the lawfulness of
Sergeant Deasy’s order to produce the second license, not Sergeant Deasy’s authority to
effect a custodial arrest for a person’s failure to obey a lawful order. See Denver Rev.
Mun. Code § 38-31(c) (“It shall be unlawful for any person to fail to obey a lawful order
of a police officer if such failure interferes with or hinders such police officer in the
discharge of his official duties.”); Colo. Rev. Stat. § 42-4-107 (“No person shall willfully
fail or refuse to comply with any lawful order or direction of any police officer invested
by law with authority to direct, control, or regulate traffic.”).


                                             -4-
burden of showing that Deasy violated his clearly established right to be free

from illegal search and arrest, Deasy must prevail on his affirmative defense of

qualified immunity.”



       Mr. Galletta’s excessive force claim was subsequently tried to a jury. On

completion of a two-day trial, the jury concluded Sergeant Deasy had not used

excessive force in arresting Mr. Galletta.



       Mr. Galletta raises two issues on appeal. First, he claims summary

judgment for Sergeant Deasy on qualified immunity grounds was inappropriate

because there was no probable cause to arrest and the plain view exception to the

warrant requirement cannot be used to justify the search of his wallet. Second,

he claims the district court erred during the trial by sustaining a relevancy

objection to a question posed by his counsel to Sergeant Deasy that allegedly

used “the word search with reference to the order to produce the license.”       2




       2
         Mr. Galletta’s opening brief also includes the following sentence in the
“Summary of Argument” section: “[T]he jury, which found against the plaintiff on the
excessive force claim was improperly instructed on whether there was the right to employ
any force.” (Emphasis in original.) However, Mr. Galletta does not present it as an issue
for review, submit any argument, cite relevant case law, or provide a record citation to his
objection to the jury instruction and the district court’s subsequent ruling on it. See Fed.
R. App. P. 28(a)(5), (9); Tenth Cir. R. 28.2(C)(3)(b). Therefore, we decline to consider
the merits of this claim due to Mr. Galletta’s failure to adequately brief it on appeal. See
Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1547 (10th Cir. 1995) (citing cases).

                                            -5-
III. Standard of Review

      A. Qualified Immunity Defense at Summary Judgment

      “[Section] 1983 allow[s] a plaintiff to seek money damages from

government officials who have violated his Fourth Amendment rights.”         Wilson

v. Layne , 526 U.S. 603, 609 (1999). However, under the doctrine of qualified

immunity, “government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.”     Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). This

doctrine is designed to “ensure that erroneous suits do not even go to trial.”

Albright v. Rodriguez , 51 F.3d 1531, 1534 (10th Cir. 1995) (quotation marks and

citations omitted).



      We review the grant of qualified immunity on summary judgment de novo,

and view the evidence in the light most favorable to the non-moving party.       See

Davis v. Gracey , 111 F.3d 1472, 1478 (10th Cir. 1997).

             When a defendant raises the qualified immunity defense on
      summary judgment, the burden shifts to the plaintiff to meet a strict
      two-part test. “First, the plaintiff must demonstrate that the
      defendant’s actions violated a constitutional or statutory right.
      Second, the plaintiff must show that the constitutional or statutory
      rights the defendant allegedly violated were clearly established at
      the time of the conduct at issue.”


                                          -6-
Nelson v. McMullen , 207 F.3d 1202, 1206 (10th Cir. 2000) (quoting      Albright , 51

F.3d at 1534-35). To be clearly established, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is

doing violates that right.”   Anderson v. Creighton , 483 U.S. 635, 640 (1987).

“If, and only if, the plaintiff meets this two-part test does a defendant then bear

the traditional burden of the movant for summary judgment – showing that there

are no genuine issues of material fact and that he or she is entitled to judgment

as a matter of law.”   Nelson , 207 F.3d at 1206 (quotation marks and citation

omitted).



       However, the plaintiff does not meet his burden by identifying “in the

abstract” a clearly established constitutional right and claiming the defendant

violated it. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio    , 847 F.2d 642,

645 (10th Cir. 1988). “Rather, the plaintiff must articulate the clearly

established constitutional right and the defendant’s conduct which violated the

right with specificity, and demonstrate a substantial correspondence between the

conduct in question and prior law ... establishing that the defendant’s actions

were clearly prohibited.”     Romero v. Fay , 45 F.3d 1472, 1475 (10th Cir. 1995)

(alterations, quotation marks and citations omitted). “Unless such a showing is

made, the defendant prevails,”    Losavio , 847 F.2d at 646, and “we need not


                                           -7-
address the other elements of the qualified immunity inquiry.”         Davis , 111 F.3d

at 1478.



       B. Evidentiary Rulings at Trial

       We review the district court’s determination of whether evidence is

relevant for a clear abuse of discretion.      See Gomez v. Martin Marietta Corp.    , 50

F.3d 1511, 1518 (10th Cir. 1995). “Under this deferential standard of review, a

trial court will be reversed only if we have a firm and definite belief that the

trial court made a clear error in judgment.”         See Faulkner v. Super Valu Stores,

Inc. , 3 F.3d 1419, 1433 (10th Cir. 1993). Moreover, error in the exclusion of

evidence is harmless unless the party asserting error demonstrates the substantial

rights of the parties were affected.    See Gomez , 50 F.3d at 1518.



IV. Discussion

       A. Qualified Immunity and the Illegal Search Claim

       Mr. Galletta argues the warrantless search of his wallet violated his Fourth

Amendment rights because Sergeant Deasy did not have probable cause to arrest

him, thereby invalidating the search incident to arrest exception to the warrant

requirement, and the plain view exception to the warrant requirement does not

save the search. However, Mr. Galletta does not challenge the validity or


                                               -8-
constitutionality of: (1) the traffic stop; (2) Sergeant Deasy’s initial order to

produce his driver’s license, registration, and proof of insurance; (3) Sergeant

Deasy’s observation of two driver’s licenses in his wallet; (4) Sergeant Deasy’s

authority to effect a custodial arrest for interference with a police officer; or (5)

the search for and seizure of the second license if it followed a lawful arrest for

interference. “The constitutional validity of the search in this case, then, must

depend upon the constitutional validity of the petitioner’s arrest.”         Beck v. Ohio ,

379 U.S. 89, 91 (1964); see United States v. Robinson , 414 U.S. 218, 224 (1973)

(“It is well settled that a search incident to a     lawful arrest is a traditional

exception to the warrant requirement of the Fourth Amendment.” (Emphasis

added.)). Because we conclude Mr. Galletta failed to establish that Sergeant

Deasy arrested him without probable cause, we affirm the district court’s

qualified immunity ruling in favor of Sergeant Deasy.         3




       “A police officer may arrest a person without a warrant if he has probable

cause to believe that person committed a crime.”           Romero , 45 F.3d at 1476.

Probable cause existed if, at the moment the arrest was made, “facts and

circumstances within the arresting officer’s knowledge and of which he or she


       3
         In light of our resolution of this question, we need not address Mr. Galletta’s
claim the plain view exception to the warrant requirement does not apply in this case.


                                               -9-
has reasonably trustworthy information are sufficient to lead a prudent person to

believe that the arrestee has committed or is committing an offense.”        Jones v.

City & County of Denver , 854 F.2d 1206, 1210 (10th Cir. 1988). In addition,

“[t]he qualified immunity standard ‘gives ample room for mistaken judgments’

by protecting ‘all but the plainly incompetent or those who knowingly violate

the law.’” Hunter v. Bryant , 502 U.S. 224, 229 (1991) (quoting         Malley v.

Briggs , 475 U.S. 335, 341, 343 (1986)). “When a warrantless arrest is the

subject of a § 1983 action, the defendant arresting officer is ‘entitled to

immunity if a reasonable officer could have believed that probable cause existed

to arrest’ the plaintiff.”   Romero , 45 F.3d at 1476 (quoting   Hunter , 502 U.S. at

228). In other words, “[e]ven law enforcement officials who ‘reasonably but

mistakenly conclude that probable cause is present’ are entitled to immunity.”

Hunter , 502 U.S. at 227 (quoting     Anderson , 483 U.S. at 641).



       Applying these principles to this case, Mr. Galletta was required to

establish: (1) Sergeant Deasy’s observation of and request for the second

license in Mr. Galletta’s wallet, and Mr. Galletta’s response that he did not have

a second license, are insufficient to lead a prudent police officer to conclude Mr.




                                            -10-
Galletta was violating Colo. Rev. Stat. § 42-2-113(1);       4
                                                                 (2) in such a situation, an

officer does not have the right to order a person to comply with § 42-2-113(1);

or (3) Mr. Galletta’s refusal to obey Sergeant Deasy’s order to produce the

second license is insufficient to lead a prudent police officer to conclude Mr.

Galletta was violating Denver Rev. Mun. Code § 38-31(c).             5
                                                                         See Romero , 45

F.3d at 1476 & n.1. We conclude Mr. Galletta fails to establish any of the three

points. 6



       4
            In Colorado:

       No person who has been issued a driver’s ... license ... who operates a motor
       vehicle in this state, and who has such license ... in such person’s immediate
       possession shall refuse to remove such license ... from any billfold ... or
       other container and to hand the same to any peace officer who has requested
       such person to do so if such peace officer reasonably suspects that such
       person is committing, has committed, or is about to commit a violation of
       article 2, 3, 4, 5, 6, 7, or 8 of this title.

Colo. Rev. Stat. § 42-2-113(1) (1993); see Rodriguez, 945 P.2d at 1359-60 (recognizing
the applicability of § 42-2-113(1) to traffic offenses).

       5
         In Denver, Colorado, a person is guilty of interference with police authority
when he or she “fail[s] to obey a lawful order of a police officer if such failure interferes
with or hinders such police officer in the discharge of his official duties.” Denver Rev.
Mun. Code § 38-31(c).

       6
         If Mr. Galletta had succeeded in establishing any of these three points, we would
then evaluate whether a reasonable officer could have believed probable cause existed to
arrest Mr. Galletta. See Romero, 45 F.3d at 1476; Dixon v. Richer, 922 F.2d 1456, 1463
(10th Cir. 1991).


                                            -11-
       First, Mr. Galletta does not appeal the district court’s ruling that Sergeant

Deasy had probable cause to believe Mr. Galletta was violating § 42-2-113(1)

when he refused to produce the second license, and we deem this issue waived.

See State Farm Fire & Cas. Co. v. Mhoon       , 31 F.3d 979, 984 n.7 (10th Cir. 1994)

(“[A]ppellant failed to raise this issue in his opening brief and, hence, has

waived the point.”).   7
                           Accordingly, we conclude Mr. Galletta failed to present

any evidence or legal argument to support a claim that Sergeant Deasy lacked

probable cause to believe Mr. Galletta was violating § 42-2-113(1).



       Second, Mr. Galletta fails to address whether § 42-2-113(1) authorizes an

officer to order the production of a driver’s license under the facts of this case.

Instead, he argues “the order was to comply with an unlawful search and thus

could not have formed the basis for an arrest.” Specifically, he claims Sergeant

Deasy did not have probable cause to believe the second license was an

instrument of crime, because “he had no particularized knowledge in this case

which would make it more probable than not that the document seen in [Mr.

Galletta]’s wallet was a forged or false identification.” However, we do not see


       7
          Even if Mr. Galletta had raised this issue on appeal, we note the second driver’s
license appears to fall well within the parameters of § 42-2-113(1): it was a driver’s
license issued to Mr. Galletta and was in his immediate possession at the time Sergeant
Deasy requested it. See supra note 4.


                                           -12-
any “instrument of crime” or “forged or false identification” requirement in §

42-2-113(1), and Mr. Galletta does not point us to any such language or

Colorado case law presenting this interpretation. His reference to Colo. Rev.

Stat. § 42-2-136, which bans possession of an altered or false driver’s license, is

immaterial to the scope of § 42-2-113(1) and we need not discuss it further.



       In this case, Sergeant Deasy validly stopped Mr. Galletta for speeding and

lawfully observed a second driver’s license in Mr. Galletta’s wallet. Addressing

valid traffic stops, § 42-2-113(1) utilizes mandatory language: “No person ...

shall refuse to remove such license ... from any billfold ... or other container and

to hand the same to any peace officer who has requested such person to do so.”

Colo. Rev. Stat. § 42-2-113(1). As the Supreme Court of Colorado has stated:

“This statute provides that police officials may      demand production of identifying

documents from motorists only if such demand is justified by a reasonable

suspicion of a violation of the motor vehicle law.”      People v. Redinger , 906 P.2d

81, 86 n.4 (Colo. 1995) (en banc) (emphasis added). Accordingly, we conclude

Mr. Galletta has failed to present any evidence or legal argument to establish

that Sergeant Deasy lacked authority to order compliance with § 42-2-113(1).



       Even if we assumed, arguendo , that § 42-2-113(1) does not authorize a


                                           -13-
police officer to order compliance with it, Sergeant Deasy “nevertheless would

be entitled to qualified immunity because [his] decision was reasonable, even if

mistaken.” Hunter , 502 U.S. at 229. This is based primarily on the statute’s

mandatory language and the Supreme Court of Colorado’s description of it in

Redinger . In addition, although Sergeant Deasy’s subjective belief is not

controlling in a qualified immunity analysis, we note both Mr. Galletta’s counsel

and the state trial judge acknowledged – during a state court motions hearing

involving the criminal charges against Mr. Galletta      8
                                                             – Sergeant Deasy’s

extensive experience with Colorado motor vehicle law as a twenty-four-year

veteran of the Denver Police Department at the time of this incident. Thus,

Sergeant Deasy’s perspective on § 42-2-113(1) sheds light on what a reasonable

officer could believe. As he testified under oath at the hearing, Sergeant Deasy

certainly believed § 42-2-113(1) gives an officer the right to order a person to

comply with the statute:

      A. ... According to the statute that I read of 42-2-113, that he had
      another driver’s license, he had to surrender it to me, and he
      refused.

               ...

      Q. And are you relying upon any provision of Colorado law that
      makes it unlawful for [Mr. Galletta] to have a duplicate of his


      8
          According to Mr. Galletta, these charges were dismissed prior to trial.


                                            -14-
      Colorado driver’s license in his possession?

      A. I didn’t – I didn’t say that, sir. You’re saying that, not me.

      Q. Well, you demanded that he surrender something to you that you
      already had the original of. Correct?

      A. Sir, that’s – that’s not the way I understand the statute. If you
      read 42-2-113, it says if he has a driver’s license, he has to
      surrender it to me. He surrendered one driver’s license. As you can
      see, the reasonable suspicion of a police officer out on the street,
      when you deal with someone, it was not – not feasible to me why, if
      someone had another license or another I.D., why he wouldn’t show
      it to me.

Finally, we note Mr. Galletta does not argue a reasonable police officer could

not have believed § 42-2-113(1) gives him the right to order a person to comply

with the statute. Accordingly, we conclude a reasonable officer could believe §

42-2-113(1) gives him the right during a valid traffic stop to order compliance

with the statute when he lawfully gains knowledge of the existence of a second

license in the driver’s possession.



      Third, Mr. Galletta does not dispute he failed to obey Sergeant Deasy’s

order to produce the second license. Instead, Mr. Galletta argues Sergeant

Deasy did not have probable cause to arrest, because Sergeant Deasy could only

conclude there was “a possibility that [the second license] was present for an

unlawful purpose.” Specifically, he claims Sergeant Deasy “had no information

that [the second license] had in any way been altered” as required by Colorado

                                        -15-
law banning the possession of an altered or false driver’s license.      See Colo.

Rev. Stat. § 42-2-136(1). Quite simply, this argument fails because Mr. Galletta

was arrested for interference with police authority pursuant to Denver Rev. Mun.

Code § 38-31(c), not for possession of an altered driver’s license. Accordingly,

we conclude Mr. Galletta failed to present any evidence or legal argument to

support a claim that Sergeant Deasy lacked probable cause to arrest Mr. Galletta

for a violation of § 38-31(c).



       We conclude Mr. Galletta has failed to establish Sergeant Deasy arrested

him without probable cause, which means the subsequent search of Mr.

Galletta’s wallet did not violate the Fourth Amendment. Sergeant Deasy is

therefore entitled to qualified immunity as a matter of law.     9




       9
          Although briefed by neither party, we note a recent Tenth Circuit case in which
this court concluded that during a lawful investigative detention: (1) a police officer may
lawfully order the detainee to produce identification, and (2) the detainee does not have a
clearly established constitutional right to refuse to present identification. See Oliver v.
Woods, 209 F.3d 1179, 1189-90 (10th Cir. 2000). For these and other reasons, we held
the police officer defendants in Oliver were entitled to qualified immunity from Mr.
Oliver’s § 1983 action alleging violations of his Fourth Amendment rights. See id. at
1184-91. However, Oliver does not control our resolution of this appeal because it is
factually and legally distinguishable. First, unlike Mr. Oliver, Mr. Galletta produced a
driver’s license upon Sergeant Deasy’s initial request for one, and Oliver does not address
the lawfulness of an officer’s order to produce further identification. See id. at 1182-83,
1189; supra Part I. Second, Oliver did not address the implications of a mandatory
license production statute such as § 42-2-113(1). See Oliver, 209 F.3d at 1188-89.


                                           -16-
      B. Evidentiary Ruling at Trial

      Mr. Galletta claims the district court erred during the trial by sustaining a

relevancy objection to a question posed by his counsel to Sergeant Deasy, which

allegedly used “the word search with reference to the order to produce the

license.” In support, Mr. Galletta quotes the following exchange from the trial

transcript:

      Q. Now, Sergeant, you said you’d never had anyone refuse to
      produce something before?

      A. I’ve never had someone where I saw two driver’s licenses – and
      it’s not that unusual an occurrence – where they refused to deliver
      the other one to me.

      Q. But you have had people decline your request for searches,
      correct?

      A. For searches?

      Q. Yeah.

      MR. HALABY: Objection. There’s no search involved here.

      THE COURT: Sustained. It’s not relevant.

Accordingly, we will focus on the actual question at issue – “But you have had

people decline your request for searches, correct?” – and not Mr. Galletta’s

characterization of it.



      We conclude the district court did not abuse its discretion by sustaining


                                        -17-
the objection to this question on relevancy grounds. “‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Fed. R. Evid. 401. In light of the

summary judgment ruling on Mr. Galletta’s illegal search claim, the only issue at

trial was whether Sergeant Deasy utilized excessive force in arresting Mr.

Galletta after Mr. Galletta failed to obey the order to produce the second license.

Quite simply, Sergeant Deasy’s order was not a request for consent to search,

which means the question had nothing to do with the issue in the trial. Because

“[e]vidence which is not relevant is not admissible,” the district court did not

abuse its discretion by sustaining the objection to the question. Fed. R. Evid.

402. Further, we cannot say Mr. Galletta has shown that the exclusion of this

evidence, even if erroneous, affected his substantial rights.   See Gomez , 50 F.3d

at 1518.



V. Conclusion

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED .

                                           Entered by the Court:

                                           WADE BRORBY
                                           United States Circuit Judge

                                            -18-
