PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-5030
BOBBY LEE MEDFORD,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Asheville.
T. S. Ellis, III, Senior District Judge, sitting by designation.
(1:07-cr-00122-TSE-1)
Argued: September 22, 2011
Decided: November 7, 2011
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge,
and HAMILTON, Senior Circuit Judge.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Chief Judge Traxler and Senior Judge Hamilton
joined.
COUNSEL
ARGUED: William Robert Terpening, ANDERSON TER-
PENING, PLLC, Charlotte, North Carolina, for Appellant.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES
2 UNITED STATES v. MEDFORD
ATTORNEY, Asheville, North Carolina, for Appellee. ON
BRIEF: Anne M. Tompkins, United States Attorney, Char-
lotte, North Carolina, for Appellee.
OPINION
KEENAN, Circuit Judge:
Bobby Lee Medford, a former Sheriff of Buncombe
County, North Carolina, was convicted in a jury trial of
numerous conspiracy and other charges relating to his receipt
of bribes in connection with the unlawful operation of video
poker machines in Buncombe and other North Carolina coun-
ties. Medford raises several challenges to his convictions,
including the district court’s refusal to sever his trial from that
of a co-defendant, the district court’s admission of a tape-
recorded conversation into evidence containing statements of
certain alleged participants in the bribery scheme, and various
other issues. Upon our review, we affirm Medford’s convic-
tions on all counts.
I.
Medford served as the Sheriff of Buncombe County, North
Carolina, from 1994 through 2006, when he lost his bid for
re-election. Under a state law enacted in 2000 (the 2000 legis-
lation), Medford was required, among his other duties as
Sheriff, to enforce North Carolina’s newly-enacted regula-
tions governing video poker machines. See N.C.G.S. § 14-
306.1 (2000).
Under the 2000 legislation, which was repealed in 2007,1
an establishment was permitted to have up to three video
1
Effective July 2007, the operation of any type of video poker machine
permitted under the 2000 legislation is now illegal. See 2006 N.C. Sess.
Laws ch.6, §§ 3, 4; N.C.G.S. § 14-306.1A (2007).
UNITED STATES v. MEDFORD 3
poker machines at one store location. Although cash payouts
from the poker machines were prohibited under the 2000 leg-
islation, "winnings" from a poker machine could include up
to eight "replays" on the machine or a coupon for merchan-
dise not exceeding a value of ten dollars. Each video poker
machine in operation was required to be registered with the
sheriff’s office in the county in which the machine was
located.
Once registered, the video poker machines were affixed
with registration stickers bearing a unique identification num-
ber. Sheriffs were not permitted to charge any fee in connec-
tion with the registration of the video poker machines. The
2000 legislation also prohibited the importation into North
Carolina of any additional video poker machines, thereby
restricting the "pool" of available video poker machines to
those machines already located in the state.
In 2001, Medford delegated the primary responsibility for
registering video poker machines to Lieutenant John Harrison.
Medford assigned Guy Kenneth Penland, a volunteer who
held himself out as a "Captain" in the Buncombe County
Sheriff’s Office, to assist Harrison. When Harrison retired in
May 2005, Lieutenant Ronnie "Butch" Davis took over the
duty of registering the video poker machines, and continued
doing so until Medford lost his bid for re-election and left
office in December 2006.
The evidence at trial established that Medford, with the
assistance of Harrison, Penland, and Davis (collectively, the
co-conspirators), accepted cash payments from the operators
of video poker machines (operators) and owners of establish-
ments (store owners) in which the video poker machines were
located.2 In exchange for these cash payments, Medford
2
Generally, the video poker machine "operators" owned the machines,
and placed the machines in convenience stores or other businesses, agree-
ing to share the proceeds with the store owners. While there were a few
operators who owned the stores in which the machines were placed, the
great majority of the store owners were not also operators.
4 UNITED STATES v. MEDFORD
allowed certain of the video poker machines to be registered
and operated in ways that violated the restrictions established
in the 2000 legislation.
According to the testimony of Harrison and numerous
video poker machine operators and store owners, Medford
and his co-conspirators were paid cash bribes to register video
poker machines, some of which had been brought in from
other states in violation of the 2000 legislation. Medford and
his co-conspirators also received cash bribes to place video
poker machines in particular stores, and to allow the operation
of video poker machines that on occasion paid out large sums
of cash.
Additionally, Harrison, with Medford’s knowledge and
consent, organized semi-annual golf tournaments, with partic-
ipating individuals and organizations paying a "donation" to
participate or to "sponsor" a golf hole. Soon after the 2000
legislation was enacted, the majority of the individuals and
organizations financially supporting the tournament were
video poker machine operators and store owners.
During election years, the proceeds from the golf tourna-
ments were used to support Medford’s re-election campaigns.
However, during non-election years, the proceeds were some-
times distributed either directly to Medford or deposited, at
Medford’s direction, into credit union accounts held by Med-
ford or his girlfriend. Although most of the money received
in connection with the golf tournaments was in the form of
cash, checks were sometimes given and were cashed by mem-
bers of the Sheriff’s Department in stores in which video
poker machines were located.
On one particular occasion, at Medford’s direction, Sher-
iff’s Department employees converted cash obtained during a
golf tournament into money orders. Medford instructed that
the money orders be purchased at different post offices in
order to keep the purchases under a certain amount, thereby
UNITED STATES v. MEDFORD 5
avoiding federal reporting requirements applicable to larger
cash purchases.
The record also shows that Henderson Amusement, Inc.
(Henderson Amusement), a video poker machine operator
based in South Carolina, registered 122 video poker machines
in Buncombe County and numerous machines in other North
Carolina counties. Henderson Amusement was a frequent pro-
vider of cash bribes to Medford and his co-conspirators.
Jerry Pennington, an employee of Henderson Amusement,
worked with Penland to register video poker machines that
previously had been in use outside North Carolina. Penland
brought Pennington to various stores, and placed pressure on
the store owners to install the machines in these locations. In
return, Pennington paid Penland a commission for every
machine that Penland was able to put into operation.
In addition to these commission payments, Pennington, on
behalf of Henderson Amusement, regularly made cash pay-
ments to Medford, Penland, and the other co-conspirators.
Pennington made at least seven such payments directly to
Medford, in individual amounts up to $2,500. In total, Hen-
derson Amusement’s expense reports showed that the com-
pany paid $152,516.43 to individuals associated with the
Buncombe County Sheriff’s Department, with Medford per-
sonally receiving $32,000.
On the basis of this and other evidence, a grand jury
indicted Medford, along with Harrison, Penland, and Davis,
on charges of: conspiracy to commit extortion under color of
official right, in violation of the Hobbs Act, 18 U.S.C. § 1951
(Count One); conspiracy to commit mail fraud, in violation of
18 U.S.C. § 1349 (Count Two); five counts of mail fraud and
aiding and abetting mail fraud, in violation of 18 U.S.C.
§§ 1341, 1346 (Counts Three through Seven); conspiracy to
commit money laundering, in violation of 18 U.S.C.
§ 1956(h) (Count Eight); conspiracy to obstruct the enforce-
6 UNITED STATES v. MEDFORD
ment of criminal laws, with the intent to facilitate an illegal
gambling business, in violation of 18 U.S.C. § 1511 (Count
Ten); and conspiracy to conduct an illegal gambling business,
in violation of 18 U.S.C. § 371 (Count Eleven).3
The charges against Medford and Penland were tried
together, over their objection, in an eleven-day jury trial. The
jury returned a verdict of guilty against Medford and Penland
on all counts. The district court sentenced Medford to concur-
rent terms of imprisonment of 180 months for each of his con-
victions on Counts 1 through 8, and concurrent terms of
imprisonment of 60 months for each of his convictions on
Counts 10 and 11. Medford timely filed a notice of appeal.
II.
Medford raises five challenges in this appeal. He asserts
that: 1) the district court erred in admitting into evidence a
recording of a meeting that occurred between representatives
of Henderson Amusement and persons associated with a sher-
iff’s department of a county adjacent to Buncombe County; 2)
the district court abused its discretion in denying Medford’s
motion to sever his trial from Penland’s trial; 3) the evidence
was insufficient to support Medford’s conviction for violating
the Hobbs Act; 4) the district court deprived Medford of a fair
trial by subjecting him to inconsistent and biased treatment;
and 5) the Honest Services Fraud statute, 18 U.S.C. § 1346,
on which the charges in Counts Three through Seven were
based, is unconstitutionally vague. We address each argument
in turn.
A.
Medford first argues that the district court erred in admit-
3
The grand jury also indicted Davis for making false statements (Count
Nine), but neither Medford nor the other co-conspirators were charged
with this offense.
UNITED STATES v. MEDFORD 7
ting into evidence a recording of a December 19, 2006 meet-
ing (the December 19 meeting) attended by Jamie Henderson,
a co-owner of Henderson Amusement, Jeff Childers, an
employee of Henderson Amusement, John Parker, a former
deputy sheriff in neighboring Rutherford County, and Jack
Conner, the newly-elected Sheriff of Rutherford County.
According to Medford, this recording should not have been
admitted into evidence because the recording related to a sep-
arate conspiracy in Rutherford County to which Medford was
not a party, and occurred after Medford already had left office
following his loss in the 2006 election. Thus, Medford asserts
that the recording did not qualify for admission under the
hearsay exclusion provided by Rule 801 for statements made
by co-conspirators during the course and in furtherance of a
conspiracy.4 See Fed. R. Evid. 801(d)(2)(E).
The record shows that neither Medford nor any of the co-
conspirators named in Medford’s indictment attended the
December 19 meeting, which was recorded by Parker and
Conner in cooperation with the Federal Bureau of Investiga-
tion (FBI). The meeting occurred more than two weeks after
Medford had left his position as Sheriff of Buncombe County.
During the meeting, as reflected in the transcript of the
recording, Henderson informed Conner that Henderson
Amusement had placed video poker machines in twelve coun-
ties in North Carolina, including about 150 machines located
in Buncombe County.
Henderson also stated in the recorded conversation that the
Buncombe County Sheriff’s Department did not "mess with"
4
Fed. R. Evid. 801(d)(2)(E) provides, in relevant part, that "[a] state-
ment is not hearsay if—. . . [t]he statement is offered against a party and
is . . . a statement by a coconspirator of a party during the course and in
furtherance of the conspiracy." In order for a statement to be admissible
under Rule 801(d)(2)(E), there must be evidence (1) that there was a con-
spiracy between the declarant and the non-offering party; and (2) that the
statement was made during the course and in furtherance of that conspir-
acy. United States v. Ayala, 601 F.3d 256, 267-68 (4th Cir. 2010).
8 UNITED STATES v. MEDFORD
his machines located in that County, but that he now was "out
of the loop" because Buncombe County "just changed sher-
iff’s [sic]." Henderson stated that the sheriff "that was there"
was a "super guy," and that Henderson hated to see him lose
the election. Henderson also stated that Medford had been
"happy" with receiving from Henderson Amusement between
$2,000 and $3,000 each month, plus "a lot more at election
time."5 Henderson mentioned Medford by name at least three
times during the recorded conversation.
The government sought to introduce this recorded evidence
as proof that Henderson Amusement engaged in a conspiracy
to conduct an illegal gambling business with Medford and his
co-conspirators, as alleged in Count Eleven of the indictment.
The government also asserted that the recording tended to
prove the existence of an illegal gambling business operated
by Henderson Amusement across multiple counties in North
Carolina, including Buncombe County.
The district court found by a preponderance of the evidence
that Medford was a part of a conspiracy with Henderson
Amusement operating both inside and beyond Buncombe
County. The court ruled that, therefore, the recording made at
the December 19 meeting was admissible under Rule
801(d)(2)(E) as containing statements made by co-
conspirators in furtherance of that conspiracy. See Fed. R.
Evid. 801(d)(2)(E).
A district court’s evidentiary ruling ordinarily is reviewed
on appeal under an abuse of discretion standard. United States
v. Murray, 65 F.3d 1161, 1170 (4th Cir. 1995). Under this
standard, the appellate court affords the evidentiary ruling
substantial deference, and will not overturn the ruling unless
the decision was "arbitrary and irrational." See id.; United
States v. Weaver, 282 F.3d 302, 313 (4th Cir. 2002).
5
There is no evidence in the record that Henderson had met Medford,
or ever had participated in a direct conversation with him.
UNITED STATES v. MEDFORD 9
Based on the present record, however, we need not resolve
the question whether the recording at issue was admissible
under Rule 801(d)(2)(E). Instead, assuming, without deciding,
that the district court erred, we conclude that any such error
was harmless.
Under Rule 52 of the Federal Rules of Criminal Procedure,
"[a]ny error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded." We employ a
well-established analysis in determining whether a particular
trial error was harmless. As we have explained:
In order for an error to have a substantial and injuri-
ous effect or influence, it must have affected the ver-
dict. Because juries have a limited number of
responses to give in a criminal trial – guilty, inno-
cent, or cannot decide – an error is harmless when
the error did not substantially sway or substantially
influence the response.
Thus, if the evidence is not merely sufficient, but so
powerful, overwhelming, or cumulative that the error
simply could not reasonably be said to have substan-
tially swayed the jury’s judgment, then the error is
not harmful. On the other hand, if the federal court
is in grave doubt about whether the trial error had a
substantial and injurious effect or influence on the
verdict and therefore finds itself in virtual equipoise
about the issue, the error is not harmless. And the
determination of whether trial error substantially and
injuriously affected the judgment must be made by
the court based on its review of the record.
Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996) (en banc)
(citations and internal quotation marks omitted).
Upon our review of the record, and as described below, we
conclude that apart from Jamie Henderson’s statements at the
10 UNITED STATES v. MEDFORD
December 19 meeting, there was overwhelming evidence con-
cerning Medford’s agreement and participation with Hender-
son Amusement in operating an illegal gambling conspiracy.6
The government presented testimony from Pennington, and
expense reports related to Henderson Amusement’s operation
in Buncombe County, which established that Pennington reg-
ularly made cash payments to Medford on behalf of Hender-
son Amusement. Pennington testified that his cash payments
to Medford became so regular that Pennington knew that if
Medford asked to see him, "it was time to bring some
money."
Henderson Amusement’s expense reports, which the gov-
ernment introduced into evidence at trial, reflected that Med-
ford received $32,000 in cash from Henderson Amusement
during the time frame that Pennington was registering video
poker machines with the Buncombe County Sheriff’s Depart-
ment and placing those machines at stores in Buncombe
County. In light of this direct evidence that Henderson
Amusement made cash payments to Medford, Jamie Hender-
son’s statement from the December 19 meeting that Medford
regularly received cash payments from Henderson Amuse-
ment was merely cumulative of evidence already before the
jury.
The government also introduced the testimony of several
video poker machine operators and store owners who attested
to providing cash bribes to Medford. These witnesses stated
that such bribes were necessary for them to be able to operate
video poker machines providing illegal cash pay-outs without
fear of prosecution. Further, Harrison, who worked for Med-
6
We observe that to obtain a conviction under Count Eleven, the gov-
ernment was not required to prove that the gambling conspiracy extended
outside Buncombe County. The government’s argument that the conspir-
acy involving Medford encompassed several North Carolina counties pri-
marily addressed the admissibility of the statements made during the
December 19 meeting under Rule 801(d)(2)(E).
UNITED STATES v. MEDFORD 11
ford during a substantial period of the conspiracy, testified
that Medford requested and accepted cash payments from
video poker machine operators on numerous occasions.
In light of this overwhelming evidence supporting the
jury’s verdict, we reach a firm conclusion that the district
court’s admission of the December 19 recording "could not
reasonably be said to have substantially swayed the jury’s judg-
ment."7 Cooper, 103 F.3d at 370. Accordingly, we hold that
even if the district court erred in admitting into evidence the
recording of the December 19 meeting, such error was harm-
less.
B.
Medford next argues that the district court deprived him of
due process by denying his motion to sever his trial from that
of his co-defendant, Penland.8 Medford contends that the dis-
trict court’s denial of the motion prevented him from intro-
ducing Penland’s exculpatory statements made to the FBI
while cooperating with the government’s investigation. Med-
ford asserts that Penland would have provided this evidence
at Medford’s trial if the two trials had been severed.
According to Medford, Penland told the FBI that he had not
collected money from persons on Medford’s behalf, nor had
Penland observed Medford engaging in any wrongdoing.
Medford asserts that Penland also told the FBI that when he
gave Medford cash received from Pennington and Medford
asked the reason for the payment, Penland told Medford that
the cash "was a donation and [Pennington] didn’t care what
Medford did with it."
7
We note that Medford did not respond to the government’s harmless
error argument, in which the government cited in detail numerous exam-
ples of testimony implicating Medford in the conspiracy.
8
Medford filed the motion to sever, and Penland later filed a pleading
joining Medford’s motion.
12 UNITED STATES v. MEDFORD
After being presented with the motion to sever, the district
court ordered Medford and Penland to file an "assurance that
defendant Penland will testify should the defendants’ motion
be granted and the trial severed." In response to the district
court’s order, Penland filed a written representation stating, in
relevant part, that "Penland can provide assurance to the
Court that he intends to cooperate with any Subpoena issued
by Bobby Lee Medford . . . ." However, Penland’s response
also stated that "[o]bviously, facts and circumstances which
may arise during a trial of [Medford], or, for that matter, a
previous trial of [Penland], could alter the landscape suffi-
ciently to cause him, in [good] faith, to retract his position
stated herein . . . ." (Emphasis added).
The district court reviewed Penland’s representation and
concluded that "Penland’s willingness to testify at a severed
trial of defendant Medford appears to be conditioned on Pen-
land being tried first." The district court held that Penland’s
representation did not demonstrate an unequivocal willingness
to waive his Fifth Amendment rights and testify at a severed
trial regardless which trial began first, as required under
Fourth Circuit precedent. Accordingly, the district court
denied the defendants’ motion to sever.
We review the district court’s denial of the motion to sever
for an abuse of discretion, recognizing that there is a pre-
sumption in favor of joint trials in cases in which defendants
have been indicted together. United States v. Rusher, 966 F.2d
868, 877-78 (4th Cir. 1992); United States v. Brooks, 957
F.2d 1138, 1145 (4th Cir. 1992); United States v. West, 877
F.2d 281, 287-88 (4th Cir. 1989). Under our circuit precedent,
in cases in which the motion to sever is based on an asserted
need for a co-defendant’s testimony, the moving defendant
must establish the following four factors:
(1) a bona fide need for the testimony of his co-
defendant;
UNITED STATES v. MEDFORD 13
(2) the likelihood that the co-defendant would testify
at a second trial and waive his Fifth Amendment
privilege;
(3) the substance of his co-defendant’s testimony;
and
(4) the exculpatory nature and effect of such testi-
mony.
United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983).
In explaining the second factor in Parodi, on which the dis-
trict court based its ruling, we emphasized that this require-
ment is not satisfied if the co-defendant’s offer to testify is
"conditioned on [that] co-defendant’s case being tried first."
Id. In the present case, the district court’s finding that Pen-
land’s willingness to testify at a severed trial of defendant
Medford appeared to be conditioned on Penland being tried
first is a reasonable interpretation of Penland’s representation.
Moreover, Penland’s representation was, at best, equivocal
regarding his willingness to waive his Fifth Amendment
rights if the trials were severed. Accordingly, we conclude
that the district court did not err in determining that Medford
failed to satisfy the second Parodi factor.
Medford additionally contends, however, that the district
court erroneously concentrated solely on the second Parodi
factor, to the exclusion of the other three factors. We find no
merit in this argument.
In Parodi, we held that a defendant "must establish" the
four listed factors. We did not state that all the listed factors
must be "weighed," nor did we use any other term suggesting
that the factors comprised a balancing test. Moreover, we
used the conjunctive term "and" when listing the four factors,
signifying that those factors were requirements that all must
be satisfied. Thus, a defendant seeking to sever his trial from
14 UNITED STATES v. MEDFORD
a co-defendant’s trial based on the asserted need for a co-
defendant’s testimony must satisfy all four requirements artic-
ulated in Parodi. The district court, upon concluding that the
second Parodi factor had not been satisfied, therefore was not
required to examine the remaining factors in conducting its
Parodi analysis. Accordingly, we conclude that the district
court did not abuse its discretion in denying Medford’s
motion to sever.
C.
Medford next challenges his conviction for conspiracy to
commit extortion under the Hobbs Act, 18 U.S.C. § 1951,
contending that the evidence was insufficient to support this
conviction. He argues that the Hobbs Act requires proof that
the co-conspirators agreed to extort property from a person
not a part of the conspiracy, but that the persons and entities
from whom money was extorted in this case were all Med-
ford’s co-conspirators. We disagree with Medford’s analysis.
Initially, we observe that Medford did not assert this argu-
ment in the district court. Therefore, we review the claim
under the "plain error" standard of review. See Muth v. United
States, 1 F.3d 246, 250 (4th Cir. 1993) (issues raised for first
time on appeal will not be considered absent a showing of
plain error).
Medford’s argument is based on the Hobbs Act’s definition
of "extortion," which describes "the obtaining of property
from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, under color of
official right." 18 U.S.C. § 1951(b)(2) (emphasis added).
Medford’s argument, however, suffers from a false premise,
namely, that all the persons and entities from whom Medford
and his co-conspirators obtained property were parties to the
conspiracy.
Contrary to Medford’s contention, the video poker machine
operators and store owners were not co-conspirators with
UNITED STATES v. MEDFORD 15
respect to the Hobbs Act charge. The Hobbs Act conspiracy
charge was stated in a manner manifesting that the video
poker machine operators and store owners were not members
of that conspiracy. Accordingly, we conclude under the plain
error standard of review that the evidence was sufficient to
support Medford’s conspiracy conviction for "the obtaining of
property of another" by conduct and under circumstances pro-
scribed in the Hobbs Act. See id.
D.
Medford next contends that he suffered prejudice resulting
from the alleged inconsistent and biased treatment he received
from the district court. Medford asserts that the district court
frequently criticized his defense counsel in the jury’s pres-
ence, and repeatedly questioned various defense witnesses
and "hurried along" their testimony given on direct examina-
tion. Additionally, Medford contends that the district court
imposed more stringent requirements on the defense than on
the government regarding certain procedural issues, including
information concerning the identification of witnesses
expected to testify at trial.
Because Medford’s claim of judicial bias raises a due pro-
cess challenge, we conduct a "plenary review" of the record.
ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 178 n.12 (4th Cir.
2002). In our examination of the record, we remain mindful
of the fact that there is a difference between a "fair" trial and
a "perfect" trial. See Parodi, 703 F.2d at 776. Upon our
review, we conclude that the district court did not exhibit
unfair treatment or bias toward Medford. Therefore, we reject
Medford’s argument that his conviction was tainted by judi-
cial bias.
E.
Finally, Medford argues that we should reverse his convic-
tions on the Honest Services Fraud charges (Counts Three
16 UNITED STATES v. MEDFORD
through Seven) because, in his view, the Honest Services
Fraud statute, 18 U.S.C. § 1346, is unconstitutionally vague.
In support of his position, Medford relies exclusively on Jus-
tice Scalia’s concurring opinion in Skilling v. United States,
130 S. Ct. 2896, 2935-41 (2010).
Although we ordinarily review issues of statutory construc-
tion de novo, United States v. Linney, 134 F.3d 274, 282 (4th
Cir. 1998), we observe that Medford’s position is foreclosed
by the Supreme Court’s majority opinion in Skilling. In con-
trast to Justice Scalia’s view, which also was joined by Justice
Thomas and Justice Kennedy, the Court’s majority opinion,
joined by six Justices, held that the Honest Services Fraud
statute was not unconstitutionally vague with respect to its
provisions addressing "bribery or kickback schemes," the pro-
visions on which the charges against Medford were based. See
Skilling, 130 S. Ct. at 2930-31. Accordingly, we reject Med-
ford’s argument that the Honest Services Fraud statute is
unconstitutionally vague, and we affirm his convictions for
violating that statute.9
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
9
Based on our holding, we need not address the government’s argument
that the plain error standard of review applies to Medford’s vagueness
argument because he did not raise that argument in the district court.