United States of America v. William M. Gurley

*The Honorable Paul R. Matia, Chief United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0320P (6th Cir.)
File Name: 04a0320p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM M. GURLEY,
Defendant-Appellant.
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No. 03-5132
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 93-02755—Bernice B. Donald, District Judge.
Argued: August 4, 2004
Decided and Filed: September 21, 2004
Before: CLAY and GILMAN, Circuit Judges; MATIA,
Chief District Judge.*
_________________
COUNSEL
ARGUED: Kent J. Rubens, RIEVES, RUBENS &
MAYTON, West Memphis, Arizona, for Appellant. Richard
2 United States v. Gurley No. 03-5132
Gladstein, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Kent J.
Rubens, RIEVES, RUBENS & MAYTON, West Memphis,
Arizona, James W. Gentry, Jr., SPEARS, MOORE,
REBMAN & WILLIAMS, Chattanooga, Tennessee, for
Appellant. Richard Gladstein, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. The
Environmental Protection Agency (EPA) issued an
information request to William M. Gurley on February 6,
1992 pursuant to § 104(e) of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA), codified at 42 U.S.C. §§ 9604(e) and 9613(b).
Gurley was directed to respond to the request within 15 days.
He was warned that the failure to do so could result in an
enforcement action by the EPA and civil penalties of up to
$25,000 per day of noncompliance.
The EPA filed a complaint on August 8, 1993, alleging that
Gurley had failed to adequately respond to the agency’s
request. Gurley answered that he had previously disclosed
the requested information on January 4, 1989 in a deposition
taken by the EPA in a companion case. See United States v.
Gurley Refining Co., 788 F.Supp. 1473 (E.D. Ark. 1992),
aff’d in part and rev’d in part, 43 F.3d 1188 (8th Cir. 1994).
Summary judgment was granted in favor of the United States
on December 30, 1998, and its petition for the imposition of
civil penalties was granted on November 26, 2002.
Gurley appeals both the grant of summary judgment and
the consequent imposition of approximately $1.9 million in
civil penalties. He argues that (1) the information request was

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No. 03-5132 United States v. Gurley 3
invalid, (2) he is exempt from compliance with the agency’s
request, (3) the EPA’s action is barred by the doctrine of res
judicata, and (4) the agency’s motivation remains a disputed
issue of material fact. Gurley also challenges the imposition
of the penalty against him on the grounds that (1) a portion of
the fine was based upon a nonexistent cause of action, (2) the
fine levied was in violation of the Excessive Fines and Due
Process Clauses of the United States Constitution, and (3) the
district court abused its discretion by imposing the penalty.
Finally, Gurley argues that the statutory scheme that provides
for the issuance of information requests violates the Due
Process Clause of the Fifth Amendment to the United States
Constitution. For the reasons set forth below, we AFFIRM
the judgment of the district court.
I. BACKGROUND
The relevant facts are set forth in the district court’s two
opinions, the first of which granted the EPA’s motion for
summary judgment and the second of which granted the
agency’s petition to impose a civil penalty. In its summary
judgment order, the court summarized the factual background
as follows:
This case arises from EPA investigative actions
surrounding a former landfill near South Eighth Street in
West Memphis, Arkansas. As early as 1982, the EPA
detected various hazardous chemicals at the site. Later
investigations led the EPA on October 14, 1992, to place
the site on the CERCLA National Priorities list. The
United States is presently engaged in several cases
surrounding the attempt to clean up that site.
From 1962 until the present, the plaintiff was the
president and majority stockholder in Gurley Refining
Company (“GRC”). GRC bought used oil and treated it,
thereby allowing it to resell that oil. The refining process
created a by-product residue of oily waste. GRC
4 United States v. Gurley No. 03-5132
disposed of this waste by dumping it at, among other
locations, the South Eighth Street landfill.
On February 6, 1992, the EPA, pursuant to its authority
under 42 U.S.C. § 9604(e)(2), issued a general notice
letter and information request to the defendant. After
several unsuccessful attempts to deliver that request, the
United States Marshals Service served it on the
defendant’s wife. The information request sought
Gurley’s individual knowledge of, among other things,
Gurley’s assets, generators of material that [was]
disposed of at the site, site operations, and the structure
of GRC.
On September 15, 1992, the defendant sent a letter to the
EPA stating his position that GRC was the entity that the
EPA should contact for information related to the site.
The EPA responded on January 7, 1993, by indicating
that the February 6, 1992 information request was
addressed to the defendant individually and must be
answered in that capacity. The EPA also posed six
additional questions to Gurley. On January 18, 1993, the
defendant again sent a letter refusing to respond
individually and suggesting that any information requests
be directed to GRC.
The United States then filed [its] action. Gurley
subsequently provided the EPA with an individual
response; however, he refused to answer the questions
regarding his financial condition and he ignored the six
additional questions added to the EPA’s original request
for information. The United States also believes that
Gurley’s responses to the other questions were
incomplete.
A significant delay in the proceedings was caused by
Gurley’s filing for personal bankruptcy in July of 1995. His
bankruptcy petition was finally dismissed in August of 1997,
allowing the district court to move forward on the EPA’s

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No. 03-5132 United States v. Gurley 5
motion for summary judgment. The motion was granted on
December 30, 1998, with the order providing that “the USA
remains free to petition the court for the imposition of a civil
penalty under 42 U.S.C. [§] 9604(e)(5)(B).” Such a petition
was filed by the EPA in June of 1999. The petition was
granted in November of 2002, with penalties imposed in the
amount of $1,908,000 based upon the following calculation:
First, the Court fines Gurley $402,000 for the period
from February 28, 1992 until September 15, 1992, the
date Gurley finally responded ($2,000/day x 201 days =
$402,000). Second, the Court fines Gurley $682,000 for
the period from September 16, 1992, until July 29, 1994,
the date Gurley provided deposition testimony regarding
other PRPs [Potentially Responsible Parties] and Site
operations ($1,000/day x 682 days = $682,000). Finally,
the Court fines Gurley $824,000 for the period from July
30, 1994, until February 2, 1999, when Gurley answered
the Section 104(e) request under Court order ($500/day
x 1,648 days = $824,000). The Court bases this three-
tiered penalty structure on the varying levels of
egregiousness Gurley demonstrated in failing to comply
fully with the EPA’s information requests.
This timely appeal followed.
II. ANALYSIS
A. Whether Gurley is liable for failing to respond to the
EPA’s information request
1. Standard of review
The district court’s grant of summary judgment is reviewed
de novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d
623, 629 (6th Cir. 2002). Summary judgment is proper where
there exists no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). In considering a motion for summary judgment, the
6 United States v. Gurley No. 03-5132
district court must construe the evidence and draw all
reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986). The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail
as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). In the present case, the parties had
agreed in their joint pretrial order that no issues of material
fact remained.
2. Statutory framework
The EPA is authorized to issue information requests
pursuant to § 104(e) of CERCLA, a provision that is codified
at 42 U.S.C. § 9604(e)(2) and reads as follows:
Access to information
Any officer, employee, or representative described in
paragraph (1) may require any person who has or may
have information relevant to any of the following to
furnish, upon reasonable notice, information or
documents relating to such matter:
(A) The identification, nature, and quantity of
materials which have been or are generated, treated,
stored, or disposed of at a vessel or facility or transported
to a vessel or facility.
(B) The nature or extent of a release or threatened
release of a hazardous substance or pollutant or
contaminant at or from a vessel or facility.
(C) Information relating to the ability of a person to
pay for or to perform a cleanup.
In addition, upon reasonable notice, such person either (i)
shall grant any such officer, employee, or representative
access at all reasonable times to any vessel, facility,

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No. 03-5132 United States v. Gurley 7
establishment, place, property, or location to inspect and
copy all documents or records relating to such matters or
(ii) shall copy and furnish to the officer, employee, or
representative all such documents or records, at the
option and expense of such person.
Liability for unreasonably failing to satisfy a properly
issued request for information is set forth in 42 U.S.C.
§ 9604(e)(5)(B), which reads in pertinent part as follows:
In the case of information or document requests or
orders, the court shall enjoin interference with such
information or document requests or orders or direct
compliance with the requests or orders to provide such
information or documents unless under the circumstances
of the case the demand for information or documents is
arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with law.
The court may assess a civil penalty not to exceed
$25,000 for each day of noncompliance against any
person who unreasonably fails to comply with th[is]
provision[.]
3. Whether the EPA’s information request was valid
The validity of an administrative request for information
generally turns on the reasonableness of the request. See
United States v. Morton Salt Co., 338 U.S. 632, 652-53
(1950) (quotation marks omitted) (“The gist of the protection
is . . . that the disclosure sought shall not be unreasonable.”).
Although “a governmental investigation . . . may be of such
a sweeping nature and so unrelated to the matter properly
under inquiry as to exceed the investigatory power,” id. at
652, “it is sufficient if the inquiry is within the authority of
the agency, the demand is not too indefinite and the
information sought is reasonably relevant.” Id. An EPA
information request, therefore, “will be enforced where:
(1) the investigation is within EPA’s authority; (2) the request
8 United States v. Gurley No. 03-5132
is not too indefinite; and (3) the information requested is
relevant to legislative purposes.” United States v. Pretty
Products, Inc., 780 F.Supp 1488, 1506 (S.D. Ohio 1991).
The district court below observed that the three elements
from Pretty Products were satisfied in this case because:
(1) “The EPA was authorized by Congress, pursuant to
42 U.S.C. § 9604(e)(2), to require any person with
information relevant to the EPA’s environmental
investigation to furnish requested information or documents
upon reasonable notice”; (2) “the scope of the request . . . was
narrowly tailored to conform to the specific areas of inquiry
within § 9604(e)(2)”; and (3) “the requests were consonant
with the legislative purpose of CERCLA because the answers
provided to the requests would facilitate the EPA’s
investigation and subsequent cleanup of the Site.”
Gurley does not appear to dispute the first two elements.
He argues, however, that because he gave his deposition
testimony to the EPA on January 4, 1989, in which he
allegedly provided all of the relevant information, the
subsequent information request must not have been “truly for
the purpose of determining a need for response or choosing a
response action at the Site.” Gurley thus contends that “the
EPA sought information . . . (which it had already received
from him) without having a statutorily justifiable purpose for
making the information request.”
But the government points out in its brief that “the 1989
deposition concerned the Gurley Pit, not the South 8th Street,
litigation. At the deposition, counsel for Gurley objected to
any questions specifically related to the South 8th Street
Site.” The government cites the following example from the
deposition as illustrative of this point:
Q. [Counsel for the EPA] Why did you stop placing
waste in the City of West Memphis dump in the 1960s?

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No. 03-5132 United States v. Gurley 9
Mr. Rieves [counsel for Gurley]: I would object to that
question, Craig. I don’t see what relevance the City of
West Memphis dump has to this lawsuit with regard to
Gurley Pit at a separate location.
In addition, Gurley refused at his deposition to disclose
personal financial data or to provide information about other
PRPs.
Gurley also argues that even if the information request was
valid at the time it was issued, he was no longer obligated to
respond because the purposes that his disclosures would have
served “had, for all intents and purposes, been accomplished
prior to the time [when he] was required . . . to respond to the
information request.” But Gurley fails to cite any authority
for the proposition that a party may escape liability for failure
to respond to an information request by delaying until a
response is no longer of use to the agency. Furthermore, the
need for a response and the usefulness of the information,
which was requested on February 6, 1992, continued until at
least November of 1998, a time before which the cleanup at
the site in question had not yet begun. The information
sought by the EPA in the request was also relevant to the
agency’s ability to recover its incurred response costs, a valid
purpose that would continue even after the completion of
cleanup.
4. Whether Gurley was exempt from compliance
Gurley argues that he is simply a service station dealer
under 42 U.S.C. § 9601(37)(A)(ii) (defining a “service station
dealer”) and, as such, is exempt from compliance with the
information request by virtue of 42 U.S.C. § 9614(c)
(exempting service station dealers from certain abatement
actions brought under 42 U.S.C. §§ 9606 and 9607). But the
service-station-dealer exception pertains to liability only
under §§ 9606 and 9607. See 42 U.S.C. § 9614(c) (“No
person . . . may recover, under the authority of subsection
(a)(3) or (a)(4) of section 9607 of this title, from a service
10 United States v. Gurley No. 03-5132
station dealer for any response costs or damages resulting
from a release or threatened release of recycled oil, or use the
authority of section 9606 of this title against a service station
dealer . . . .”). Gurley cites no authority for the proposition
that, despite its limited scope, § 9614(c) also operates to
exempt service station dealers from compliance with
information requests. Nor does Gurley’s argument find
support in the text of § 9604(e)(2), which states that the EPA
may issue an information request to “any person who has or
may have information . . . .” (emphasis added).
The government’s alternative contention is that Gurley is
not a service station dealer as defined in § 9601(37)(A)(ii)
because, among other reasons, he allegedly did not comply
with the Solid Waste Disposal Act. Because the obligation to
respond to an EPA information request is not affected by
one’s status as service station dealer, however, the question of
whether Gurley would so qualify under § 9601(37)(A)(ii) is
irrelevant and therefore need not be decided.
5. Whether the district court erred in upholding the
EPA’s request for information
Gurley contends that the EPA abused its discretion and
acted in an arbitrary and capricious manner by requesting
information from Gurley that he had already provided in his
1989 deposition. Because the 1989 deposition testimony
concerned only the Gurley Pit, however, it did not exhaust
inquiry relevant to the cleanup and cost recovery relating to
the South Eighth Street Site. The EPA’s subsequent issuance
of an information request relating to the latter site was
therefore not “a burdensome repetition” as Gurley protests.
6. Whether the EPA issued its information request with
an improper motive or intent
Gurley alleges that the district court failed to comprehend
that it was “granting a summary judgment on a matter that
relied upon, among other matters, motivation and intent.”

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No. 03-5132 United States v. Gurley 11
The government responds by pointing out that Gurley raises
this argument for the first time on appeal. Indeed, the parties
had previously agreed in their joint pretrial order that no
issues of material fact remain. We will hold Gurley to his
pretrial stipulation. See United States v. Ninety-Three (93)
Firearms, 330 F.3d 414, 424 (6th Cir. 2003) (“This court has
repeatedly held that it will not consider arguments raised for
the first time on appeal unless our failure to consider the issue
will result in a plain miscarriage of justice.”) (quotation marks
omitted). We perceive no such miscarriage of justice to exist
with regard to the EPA’s information request.
7. Whether the doctrine of res judicata bars the EPA’s
claim
Gurley argues that a criminal action brought under the 1970
Rivers and Harbors Act against GRC for allegedly dumping
waste in the Mississippi River bars the EPA from bringing the
current CERCLA § 104(e) action against him. The district
court concluded that Gurley’s res judicata argument was
without merit, reasoning as following:
Gurley’s original response to summary judgment also
argued that the United States’ CERCLA claim was
barred by res judicata. . . . An almost identical
contention was subsequently rejected by the Eighth
Circuit in United States v. Gurley, 43 F.3d 1188 (8th Cir.
1994). That case involved a separate CERCLA
superfund site, but as in this case, GRC had been
previously prosecuted under the Clean Water Act. The
Eighth Circuit held that because Gurley had not been a
named party in the previous suit, he could be sued in his
individual capacity in a subsequent action. This court
adopts the Eighth Circuit’s reasoning. Regardless of this
finding, it appears from his supplemental response to
summary judgment that Gurley has abandoned his res
judicata argument.
12 United States v. Gurley No. 03-5132
Gurley alleges that the district court committed reversible
error when it “improperly assumed that the Eighth Circuit
decision was law of the case as to Gurley and he could not
rely upon the doctrine of res judicata.” We find no suggestion
in the district court’s order, however, that it rejected the res
judicata argument on the ground that the Eighth Circuit’s
decision precluded the court below from considering the
argument. Rather, the district court rejected the argument
based upon the same reasoning as the Eighth Circuit had
articulated. The district court further concluded that the res
judicata argument had been abandoned by Gurley in his
supplemental response to the motion for summary judgment.
We find no error in the district court’s analysis of this issue.
B. Whether the district court erred by imposing civil
penalties on Gurley
1. Standard of review
We will uphold the district court’s imposition of a civil
penalty unless it has abused its discretion. See Bartling v.
Fruehauf Corp., 29 F.3d 1062, 1068 (6th Cir. 1994)
(“Because the statute [ERISA] expressly grants a district
court discretion in imposing penalties for an employer’s
failure to disclose, we review only for abuse of discretion.”);
see also Tull v. United States, 481 U.S. 412, 425 (1987)
(referring to the district court’s imposition of civil penalties
for violation of the Clean Water Act as “highly
discretionary”).
An abuse of discretion will be found where the reviewing
court is “firmly convinced that a mistake has been made.”
Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th
Cir. 2000) (quotation marks omitted) (defining the term
“abuse of discretion” to mean that “the lower court relie[d] on
clearly erroneous findings of fact, . . . improperly applie[d]
the law[,] or use[d] an erroneous legal standard.” Id.
(quotation marks omitted). Legal conclusions regarding the
violation of constitutional rights are reviewed de novo. See

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No. 03-5132 United States v. Gurley 13
United States v. Bajakajian, 524 U.S. 321, 337 n.10 (1998)
(“[T]he question whether a fine is constitutionally excessive
calls for the application of a constitutional standard to the
facts of a particular case, and in this context de novo review
of that question is appropriate.”).
2. Statutory framework
“The court may assess a civil penalty not to exceed $25,000
for each day of noncompliance against any person who
unreasonably fails to comply with th[is] provision[.]”
42 U.S.C. § 9604(e)(5)(B); see also United States v.
Ponderosa Fibres of America, Inc., 178 F. Supp.2d 157, 161
(N.D.N.Y. 2001) (“[W]hether the assessment of civil
penalties for non-compliance is appropriate turns on the
question of the reasonableness of the failure to comply with
an Information Request.”).
3. Whether the district court imposed a fine based upon
a nonexistent cause of action
Gurley contends that because the complaint sought
penalties only for the period of time from September 11, 1992
forward, the district court erred by imposing a fine in the
amount of $402,000 for the period of time from February 28,
1992 through September 15, 1992. The government responds
that Gurley consented to the consideration of these dates by
failing to object at trial to the introduction of evidence
regarding his bad faith avoidance of the EPA’s letters during
the time in question. (The history of the EPA’s repeated
attempts to get Gurley to acknowledge receipt of the
information request is detailed in the district court’s opinion.)
In support of its “implied consent” theory, the government
cites Craft v. United States, 233 F.3d 358, 371-73 (6th Cir.
2000), rev’d on other grounds by 535 U.S. 274 (2002). The
Craft decision held, among other things, that the IRS could
pursue a theory that it had not pled because the issue was tried
with the implied consent of the parties and no prejudice to the
14 United States v. Gurley No. 03-5132
defendant was shown. Id. at 371-72. In addition, although
the government’s complaint originally sought penalties only
for the period of time after September 11, 1992, its June 15,
1999 petition for civil penalties discusses Gurley’s avoidance
scheme as beginning in February of 1992. In light of the
government’s petition that put Gurley on notice that it was
going to present evidence of his avoidance that began in
February of 1992, and Gurley’s failure to object to the
admission of such evidence, we conclude that the district
court properly exercised its discretion by fining Gurley for his
noncompliance during this earlier period of time.
4. Whether the district court’s imposition of civil
penalties violated the Excessive Fines and Due
Process Clauses of the United States Constitution
With a statutory maximum of $25,000 per day in potential
civil penalties, an imposition of tens of millions of dollars
could have been assessed in this case, but only a fraction of
that amount was ultimately levied: $1,908,000. Gurley
nevertheless argues that the penalty imposed on him is
unconstitutionally excessive, citing United States v.
Bajakajian, 524 U.S. 321, 334 (1998) (“[A] punitive
forfeiture violates the Excessive Fines Clause if it is grossly
disproportional to the gravity of a defendant’s offense.”). In
light of Gurley’s wilful noncompliance for a period of seven
years, however, we are not persuaded that the fine is “grossly
disproportional to the gravity of [the] defendant’s offense.”
Id. at 334.
Gurley’s assertion of a due process violation is likewise
without merit because a rational basis exists for penalizing
those who, like Gurley, purposefully ignore the EPA’s
information requests over long periods of time. Penalties
such as those imposed here will encourage other PRPs to
share information that might be helpful in the cleanup of
Superfund sites.

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No. 03-5132 United States v. Gurley 15
5. Whether the district court abused its discretion by
ordering Gurley to pay a $1,908,000 civil penalty
Gurley acknowledges that the “trial judge’s analysis of the
factors to be considered in assessing the civil penalty was
correct.” He nevertheless argues that the district court abused
its discretion by imposing the penalty. We disagree. The
district court properly addressed each of the factors that
district courts routinely consider before arriving at its penalty.
See United States v. Taylor, 8 F.3d 1074, 1078 (6th Cir. 1993)
(“[C]ourts have identified the following factors, among
others, as bearing on the amount of a penalty: (1) the good or
bad faith of the defendant, (2) the injury to the public, (3) the
defendant’s ability to pay, (4) the desire to eliminate the
benefits derived by a violation, and (5) the necessity of
vindicating the authority of the enforcing party.”) (quotation
marks omitted); United States v. Barkman, 784 F. Supp.
1181, 1189 (E.D. Pa. 1992) (holding that the same five factors
should be considered in assessing civil penalties against an
operator of a landfill for failure to comply with information
requests issued to him pursuant to CERCLA). Most of the
factors’ application to Gurley are self-evident. As for
Gurley’s ability to pay the civil penalty, the district court
found as follows:
The assessment of Gurley’s ability to pay a civil penalty
has been complicated by Gurley’s bankruptcy
proceedings over the past few years. Nevertheless, as of
November 9, 2001, the record clearly indicates that
Gurley’s estate has nearly $23,000,000 available for
distribution. . . . After subtracting $16,500,000 for the
United States’ response costs and $2,300,000 for the
counsel for the bankruptcy trustee, $4,200,000 remain
available to pay the bankruptcy trustee and any civil
penalty against Gurley. . . . Gurley has the ability to pay
the substantial penalty levied[.]
In sum, we find no abuse of discretion in the district court’s
analysis and therefore uphold the civil penalty as imposed.
16 United States v. Gurley No. 03-5132
C. Whether CERCLA § 104(e) violates the Due Process
Clause of the Fifth Amendment to the United States
Constitution
Gurley “invite[s] this Court to visit the question of whether
the applicable portion of 104(e) (information requests),
particularly as it was interpreted and enforced by the district
court, violates the Due Process Clause of the Fifth
Amendment” in light of the Eleventh Circuit’s decision in
Tennessee Valley Authority v. Whitman, 336 F.3d 1236 (11th
Cir. 2003) (holding that the penalty provisions of the Clean
Air Act are unconstitutional because they can be assessed as
part of an administrative compliance order). That decision,
however, is easily distinguishable. The Tennessee Valley
Authority case concerned the issuance of an administrative
compliance order imposing a penalty based upon the agency’s
own determination that the Clean Air Act had been violated.
Id. at 1258. In the present case, by contrast, Gurley was
afforded all of the process that he was due because a judicial
determination that CERCLA had been violated followed a full
and fair hearing before a federal judge. Id. (“Before the
Government can impose severe civil and criminal penalties,
the defendant is entitled to a full and fair hearing before an
impartial tribunal at a meaningful time and in a meaningful
manner.”) (quotation marks omitted).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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