UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2230
UNITED STATES OF AMERICA,
Plaintiff – Appellant,
v.
J. BRYAN WILLIAMS,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:09-cv-00437-LO-TRJ)
Argued: March 21, 2012 Decided: July 20, 2012
Before MOTZ, SHEDD, and AGEE, Circuit Judges.
Reversed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Motz concurred. Judge Agee wrote a
dissenting opinion.
ARGUED: Robert William Metzler, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. David Harold
Dickieson, SCHERTLER & ONORATO, LLP, Washington, D.C., for
Appellee. ON BRIEF: John A. DiCicco, Acting Assistant Attorney
General, Deborah K. Snyder, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellant. Lisa H. Schertler,
SCHERTLER & ONORATO, LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
The Government brought this action seeking to enforce civil
penalties assessed against J. Bryan Williams for his failure to
report his interest in two foreign bank accounts for tax year
2000, in violation of 31 U.S.C. § 5314. Following a bench trial,
the district court entered judgment in favor of Williams. The
Government now appeals. Because we conclude that the district
court clearly erred in finding that the Government failed to
prove that Williams willfully violated § 5314, we reverse.
I
Federal law requires taxpayers to report annually to the
Internal Revenue Service (“IRS”) any financial interests they
have in any bank, securities, or other financial accounts in a
foreign country. 31 U.S.C. § 5314(a). The report is made by
filing a completed form TD F 90-22.1 (“FBAR”) with the
Department of the Treasury. 1 See id. § 5314; 31 C.F.R.
§ 1010.350. The FBAR must be filed on or before June 30 of each
1
TD F 90-22.1, which is a form issued by the Department of
the Treasury, is titled “Report of Foreign Bank and Financial
Accounts” and is commonly referred to as the “FBAR.” The
regulations relating to the FBAR were formerly published at 31
C.F.R. §§ 103.24 and 103.27, but were recodified in a new
chapter effective March 1, 2011. See Transfer & Reorganization
of Bank Secrecy Act Regulations, 75 Fed. Reg. 65806 (Oct. 26,
2010). For ease, our citations are to the recodified sections.
3
calendar year with respect to foreign financial accounts
maintained during the previous calendar year, 31 C.F.R.
§ 1010.306(c), and the Secretary of the Treasury may impose a
civil money penalty on any person who fails to timely file the
report, 31 U.S.C. § 5321(a)(5)(A). Moreover, in cases where a
person “willfully” fails to file the FBAR, the Secretary may
impose an increased maximum penalty, up to $100,000 or fifty
percent of the balance in the account at the time of the
violation. Id. § 5321(a)(5)(C). The authority to enforce such
assessments has been delegated to the IRS. 31 C.F.R.
§ 1010.810(g).
In 1993, Williams opened two Swiss bank accounts in the
name of ALQI Holdings, Ltd., a British Corporation (the “ALQI
accounts”). From 1993 through 2000, Williams deposited more than
$7,000,000 into the ALQI accounts, earning more than $800,000 in
income on the deposits. However, for each of the tax years
during that period, Williams did not report to the IRS the
income from the ALQI accounts or his interest in the accounts,
as he was required to do under § 5314.
By the fall of 2000, Swiss and Government authorities had
become aware of the assets in the ALQI accounts. Williams
retained counsel and on November 13, 2000, he met with Swiss
authorities to discuss the accounts. The following day, at the
4
request of the Government, the Swiss authorities froze the ALQI
accounts.
Relevant to this appeal, Williams completed a “tax
organizer” in January 2001, which had been provided to him by
his accountant in connection with the preparation of his 2000
federal tax return. In response to the question in the tax
organizer regarding whether Williams had “an interest in or a
signature or other authority over a bank account, or other
financial account in a foreign country,” Williams answered “No.”
J.A. 111. In addition, the 2000 Form 1040, line 7a in Part III
of Schedule B asks:
At any time during 2000, did you have an interest in
or a signature or other authority over a financial
account in a foreign country, such as a bank account,
securities account, or other financial account? See
instructions for exceptions and filing requirements
for Form TD F 90-22.1.
J.A. 131. On his 2000 federal tax return, Williams checked “No”
in response to this question, and he did not file an FBAR by the
June 30, 2001, deadline.
Subsequently, upon the advice of his attorneys and
accountants, Williams fully disclosed the ALQI accounts to an
IRS agent in January 2002. In October 2002 he filed his 2001
federal tax return on which he acknowledged his interest in the
ALQI accounts. Williams also disclosed the accounts to the IRS
in February 2003 as part of his application to participate in
5
the Offshore Voluntary Compliance Initiative. 2 At that time he
also filed amended returns for 1999 and 2000, which disclosed
details about his ALQI accounts.
In June 2003, Williams pled guilty to a two-count
superseding criminal information, which charged him with
conspiracy to defraud the IRS, in violation of 18 U.S.C. § 371,
and criminal tax evasion, in violation of 26 U.S.C. § 7201, in
connection with the funds held in the ALQI accounts from 1993
through 2000. As part of the plea, Williams agreed to allocute
to all of the essential elements of the charged crimes,
including that he unlawfully, willfully, and knowingly evaded
taxes by filing false and fraudulent tax returns on which he
failed to disclose his interest in the ALQI accounts. In
exchange for his allocution, Williams received a three-level
reduction under the Sentencing Guidelines for acceptance of
responsibility. 3
In his allocution, Williams admitted the following:
2
The IRS rejected the application and turned it over to the
attorney for the United States who was conducting a grand jury
investigation of Williams.
3
Williams also agreed to pay all taxes and criminal
penalties due for tax years 1993 through 2000, but he has since
refused to pay some of those taxes and penalties and has engaged
the IRS in litigation over that issue. See Williams v.
Commissioner of Internal Revenue, 97 T.C.M. (CCH) 1422 (Apr. 16,
2009).
6
I knew that most of the funds deposited into the
Alqi accounts and all the interest income were taxable
income to me. However, the calendar year tax returns
for ‘93 through 2000, I chose not to report the income
to my –- to the Internal Revenue Service in order to
evade the substantial taxes owed thereon, until I
filed my 2001 tax return.
I also knew that I had the obligation to report
to the IRS and/or the Department of the Treasury the
existence of the Swiss accounts, but for the calendar
year tax returns 1993 through 2000, I chose not to in
order to assist in hiding my true income from the IRS
and evade taxes thereon, until I filed my 2001 tax
return.
. . . .
I knew what I was doing was wrong and unlawful.
I, therefore, believe that I am guilty of evading the
payment of taxes for the tax years 1993 through 2000.
I also believe that I acted in concert with others to
create a mechanism, the Alqi accounts, which I
intended to allow me to escape detection by the IRS.
Therefore, I am –- I believe that I’m guilty of
conspiring with the people would (sic) whom I dealt
regarding the Alqi accounts to defraud the United
States of taxes which I owed.
J.A. 55 (emphasis added).
In January 2007, Williams finally filed an FBAR for each
tax year from 1993 through 2000. Thereafter, the IRS assessed
two $100,000 civil penalties against him, pursuant to
§ 5321(a)(5), for his failure to file an FBAR for tax year 2000. 4
Williams failed to pay these penalties, and the Government
4
The statute of limitations for assessing penalties for tax
years 1993 through 1999 had expired by the time the IRS assessed
the civil penalties. See 31 U.S.C. § 5321(b)(1) and (2).
7
brought this enforcement action to collect them. Following a
bench trial, the district court entered judgment in favor of
Williams, finding that the Government failed to establish that
Williams willfully violated § 5314. The Government timely
appealed.
II
The parties agree that Williams violated § 5314 by failing
to timely file an FBAR for tax year 2000. The only question is
whether the violation was willful. The district court found that
(1) Williams “lacked any motivation to willfully conceal the
accounts from authorities” because they were already aware of
the accounts and (2) his failure to disclose the accounts “was
not an act undertaken intentionally or in deliberate disregard
for the law, but instead constituted an understandable omission
given the context in which it occurred.” 5 J.A. 378-79. Therefore,
5
In making its determination, the district court emphasized
Williams’s motivation rather than the relevant issue of his
intent. See Am. Arms Int’l v. Herbert, 563 F.3d 78, 83 (4th Cir.
2009) (“[M]alice or improper motive is not necessary to
establish willfulness.”). To the extent the district court
focused on motivation as proof of the lack of intent, it simply
drew an unreasonable inference from the record. In November
2000, Swiss authorities met with Williams to discuss the ALQI
accounts and thereafter froze them at the request of the United
States Government. Although the Government knew of the existence
of the accounts, nothing in the record indicates that, when the
accounts were frozen, the Government knew the extent, control,
or degree of Williams’s interest in the accounts or the total
(Continued)
8
the district court found that Williams’s violation of § 5314 was
not willful.
“Willfulness may be proven through inference from conduct
meant to conceal or mislead sources of income or other financial
information,” and it “can be inferred from a conscious effort to
avoid learning about reporting requirements.” United States v.
Sturman, 951 F.2d 1466, 1476 (6th Cir. 1991) (internal citations
omitted) (noting willfulness standard in criminal conviction for
failure to file an FBAR). Similarly, “willful blindness” may be
inferred where “a defendant was subjectively aware of a high
probability of the existence of a tax liability, and
purposefully avoided learning the facts point to such
liability.” United States v. Poole, 640 F.3d 114, 122 (4th Cir.
2011) (affirming criminal conviction for willful tax fraud where
tax preparer “closed his eyes to” large accounting
funds held in the accounts. As Williams admitted in his
allocution, his decision not to report the accounts was part of
his tax evasion scheme that continued until he filed his 2001
tax return. Thus, his failure to disclose information about the
ALQI accounts on his 2000 tax return in May 2001 was motivated
by his desire not to admit his interest in the accounts, even
after authorities had been aware of them for over six months.
Rarely does a person who knows he is under investigation by the
Government immediately disclose his wrongdoing because he is not
sure how much the Government knows about his role in that
wrongdoing. Thus, without question, when Williams filed in May
of 2001, he was clearly motivated not to admit his interest in
the ALQI accounts.
9
discrepancies). Importantly, in cases “where willfulness is a
statutory condition of civil liability, [courts] have generally
taken it to cover not only knowing violations of a standard, but
reckless ones as well.” Safeco Ins. Co. of America v. Burr, 551
U.S. 47, 57 (2007) (emphasis added).Whether a person has
willfully failed to comply with a tax reporting requirement is a
question of fact. Rykoff v. United States, 40 F.3d 305, 307 (9th
Cir. 1994); accord United States v. Gormley, 201 F.3d 290, 294
(4th Cir. 2000) (“[T]he question of willfulness is essentially a
finding of fact.”).
We review factual findings under the clearly erroneous
standard set forth in Federal Rule of Civil Procedure 52(a).
Walton v. Johnson, 440 F.3d 160, 173-74 (4th Cir. 2006) (en
banc). “Our scope of review is narrow; we do not exercise de
novo review of factual findings or substitute our version of the
facts for that found by the district court.” Id. at 173. “If the
district court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of appeals may
not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence
differently.” Id. (quoting Anderson v. City of Bessemer City,
470 U.S. 564, 573-74 (1985)). However, notwithstanding our
circumscribed review or the deference we give to a district
court’s findings, those findings are not conclusive if they are
10
“plainly wrong.” Id. (quoting Jiminez v. Mary Washington
College, 57 F.3d 369, 379 (4th Cir. 1995)). The clear error
standard still requires us to engage in “meaningful appellate
review,” United States v. Abu Ali, 528 F.3d 210, 261 (4th Cir.
2008), and where objective evidence contradicts a witness’
story, or the story itself is “so internally inconsistent or
implausible on its face that a reasonable factfinder would not
credit it, . . . the court of appeals may well find clear error
even in a finding purportedly based on a credibility
determination.” United States v. Hall, 664 F.3d 456, 462 (4th
Cir. 2012) (citing Anderson, 470 U.S. at 575). Thus, “[a]
finding is clearly erroneous when, although there is evidence to
support it, the reviewing court on the entire evidence is left
with a definite and firm conviction that a mistake has been
committed.” F.C. Wheat Maritime Corp. v. United States, 663 F.3d
714, 723 (4th Cir. 2011).
Here, the evidence as a whole leaves us with a definite and
firm conviction that the district court clearly erred in finding
that Williams did not willfully violate § 5314. Williams signed
his 2000 federal tax return, thereby declaring under penalty of
perjury that he had “examined this return and accompanying
schedules and statements” and that, to the best of his
knowledge, the return was “true, accurate, and complete.” “A
taxpayer who signs a tax return will not be heard to claim
11
innocence for not having actually read the return, as he or she
is charged with constructive knowledge of its contents.” Greer
v. Commissioner of Internal Revenue, 595 F.3d 338, 347 n. 4 (6th
Cir. 2010); United States v. Doherty, 233 F.3d 1275, 1282 n.10
(11th Cir. 2000) (same). Williams’s signature is prima facie
evidence that he knew the contents of the return, United States
v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991), and at a minimum
line 7a’s directions to “[s]ee instructions for exceptions and
filing requirements for Form TD F 90-22.1” put Williams on
inquiry notice of the FBAR requirement.
Nothing in the record indicates that Williams ever
consulted Form TD F 90-22.1 or its instructions. In fact,
Williams testified that he did not read line 7a and “never paid
any attention to any of the written words” on his federal tax
return. J.A. 299. Thus, Williams made a “conscious effort to
avoid learning about reporting requirements,” Sturman, 951 F.2d
at 1476, and his false answers on both the tax organizer and his
federal tax return evidence conduct that was “meant to conceal
or mislead sources of income or other financial information,”
id. (“It is reasonable to assume that a person who has foreign
bank accounts would read the information specified by the
government in tax forms. Evidence of acts to conceal income and
financial information, combined with the defendant's failure to
pursue knowledge of further reporting requirements as suggested
12
on Schedule B, provide a sufficient basis to establish
willfulness on the part of the defendant.”). This conduct
constitutes willful blindness to the FBAR requirement. Poole,
640 F.3d at 122 (“[I]ntentional ignorance and actual knowledge
are equally culpable under the law.”)
Williams’s guilty plea allocution further confirms that his
violation of § 5314 was willful. During that allocution,
Williams acknowledged that he willfully failed to report the
existence of the ALQI accounts to the IRS or Department of the
Treasury as part of his larger scheme of tax evasion. This
failure to report the ALQI accounts is an admission of violating
§ 5314, because a taxpayer complies with § 5314 by filing an
FBAR with the Department of the Treasury. In light of his
allocution, Williams cannot now claim that he was unaware of, 6
6
In fact, seven months before his criminal allocution,
Williams sent a letter to the IRS requesting to participate in
the Offshore Voluntary Compliance Initiative “[p]ursuant to Rev.
Proc. 2003-11.” J.A. 183-84. On the first page of Revenue
Procedure 2003-11, the IRS specifically informs applicants that
a primary benefit of the Initiative is that participating
taxpayers can avoid penalties for having failed to timely file
an FBAR. Clearly, Williams was aware of the FBAR at the time of
his allocution. Further, to the extent Williams asserts he was
unaware of the FBAR requirement because his attorneys or
accountants never informed him, his ignorance also resulted from
his own recklessness. Williams concedes that from 1993-2000 he
never informed his accountant of the existence of the foreign
accounts – even after retaining counsel and with the knowledge
that authorities were aware of the existence of the accounts.
13
inadvertently ignored, or otherwise lacked the motivation to
willfully disregard the FBAR reporting requirement.
Thus, we are convinced that, at a minimum, Williams’s
undisputed actions establish reckless conduct, which satisfies
the proof requirement under § 5314. Safeco Ins., 551 U.S. at 57.
Accordingly, we conclude that the district court clearly erred
in finding that willfulness had not been established.
III
For the foregoing reasons, we reverse the judgment of the
district court and remand this case for proceedings consistent
with this opinion.
REVERSED
14
AGEE, Circuit Judge, dissenting:
The majority correctly recites that we review only for
clear error the district court’s dispositive factual finding
that Williams’ failure to file the FBAR was not willful. Maj.
Op. at 9-10. The majority also correctly notes the limited scope
of review under that standard. Id. In my view, however, my
colleagues in the majority do not adhere to that standard,
instead substituting their judgment for the judgment of the
district court. As appellate judges reviewing for clear error,
we are bound by the standard of review and therefore I
respectfully dissent.
We recently explained how circumscribed our review under
the clear error standard must be:
“This standard plainly does not entitle a reviewing
court to reverse the finding of the trier of fact
simply because it is convinced that it would have
decided the case differently.” Anderson v. Bessemer
City, 470 U.S. 564, 573 (1985). “If the district
court’s account of the evidence is plausible in light
of the record viewed in its entirety, the court of
appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would
have weighed the evidence differently.” Id. at 573-74.
“When findings are based on determinations regarding
the credibility of witnesses,” we give “even greater
deference to the trial court’s findings.” Id. at 575.
United States v. Hall, 664 F.3d 456, 462 (4th Cir. 2012).
Applying this standard to the case at bar, I conclude the
district court’s judgment should be affirmed.
15
The majority opinion rightly points out that there is
evidence supporting the conclusion that Williams’ failure to
file the FBAR was willful, particularly if adopting the
majority’s conclusion that a “willful violation” can include
“willful blindness to the FBAR requirement” or “intentional
ignorance.” Maj. Op. at 12. That evidence could have led a
reasonable factfinder to conclude that the violation was
willful, as the majority believes. 1
But there is also evidence supporting the opposite view.
First, there is Williams’ direct testimony that he was unaware
of the FBAR requirement in June 2001 (when it was supposed to be
filed) and that he did not willfully (or recklessly) fail to
file it. The district judge, who had the opportunity to observe
Williams’ demeanor while testifying, expressly found that
“Williams’ testimony that he only focused on the numerical
calculations on the Form 1040 and otherwise relied on his
accountants to fill out the remainder of the Form is credible .
. . .” J.A. 379.
1
Some of that evidence, of course, is subject to two
interpretations. For example, the majority reasons that
Williams’ reference in his allocution to the “Department of the
Treasury” is necessarily an admission he violated § 5314.
Because the IRS is a bureau of the Department of the Treasury,
however, the reference in his plea could instead be interpreted
as a simple acknowledgement of that fact. Indeed, there was no
reference in the criminal proceedings to Section 5314 or the
FBAR at all.
16
Significantly, the district court also found that there was
no objective incentive for Williams to continue to conceal the
ALQI account in June 2001, because at that time he knew that the
United States government had requested the ALQI accounts be
frozen, and thus Williams knew the United States government knew
about those accounts. As the district court reasoned, if
Williams had known about the FBAR requirement, there would have
been little incentive for him under those circumstances to
refuse to comply with it as of June 2001.
Additional evidence supporting the district court’s finding
includes the undisputed evidence that, after June 2001, Williams
and his advisors began formal disclosures of the ALQI accounts,
including the filing of amended income tax returns, but they did
not backfile FBAR reports. These disclosures included direct
disclosures of the ALQI accounts to the IRS in January 2002. The
district court explained the significance of this disclosure to
the IRS: “[t]hough made after the June 30, 2001” FBAR filing
deadline, the disclosure “indicates to the Court that Williams
continued to believe the assets had already been disclosed. That
is, it makes little sense for Williams to disclose the ALQI
accounts merely six months after the deadline he supposedly
willfully violated.” J.A. 378. This was a logical and supported
finding for the district court to make on the record before it.
17
The district court’s decision was set forth in a detailed
opinion that fully explained the evidence supporting its
findings. Had I been sitting as the trier of fact in this bench
trial, I may well have decided differently than did the district
judge. But I cannot say that I am left with a “definite and firm
conviction” that he was mistaken. Thus, I cannot agree with the
majority that the Government has established clear error.
I also address briefly the two other grounds for reversal
asserted by the United States and rejected by the district
court: collateral estoppel and judicial estoppel. 2 Specifically,
the Government points to Williams’ criminal conviction and, in
particular, the language in his plea allocution, see Maj. Op. at
6, as requiring a finding that both types of estoppel apply. I
disagree.
We review the district court’s denial of judicial estoppel
only for abuse of discretion, see Jaffe v. Accredited Sur. &
Cas. Co., 294 F.3d 584, 595 n.7 (4th Cir. 2002), and its denial
of collateral estoppel de novo, Tuttle v. Arlington Cnty. Sch.
Bd., 195 F.3d 698, 703 (4th Cir. 1999).
2
In light of its holding that the district court clearly
erred in finding the violation not willful, the majority did not
have cause to address either estoppel argument. Because I would
affirm the district court and the Government contends that both
types of estoppel prevent Williams from challenging the
willfulness of his violation, it is necessary to address those
points.
18
Judicial estoppel generally requires three elements:
First, the party sought to be estopped must be seeking
to adopt a position that is inconsistent with a stance
taken in prior litigation. The position at issue must
be one of fact as opposed to one of law or legal
theory. Second, the prior inconsistent position must
have been accepted by the court. Lastly, the party
against whom judicial estoppel is to be applied must
have intentionally misled the court to gain unfair
advantage.
Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007) (citations
and internal quotations omitted).
Similarly, a party seeking to apply collateral estoppel
must establish five elements:
(1) the issue sought to be precluded is identical to
one previously litigated; (2) the issue [was] actually
determined in the prior proceeding; (3) determination
of the issue [was] a critical and necessary part of
the decision in the prior proceeding; (4) the prior
judgment [is] final and valid; and (5) the party
against whom estoppel is asserted . . . had a full and
fair opportunity to litigate the issue in the previous
forum.
Sedlack v. Braswell Servs. Grp., Inc., 134 F.3d 219, 224 (4th
Cir. 1998); Collins v. Pond Creek Mining Co., 468 F.3d 213, 217
(4th Cir. 2006). “The doctrine . . . may apply to issues
litigated in a criminal case which a party seeks to relitigate
in a subsequent civil proceedings . . . . [For example], a
defendant is precluded from retrying issues necessary to his
plea agreement in a later civil suit.” United States v. Wight,
839 F.2d 193, 196 (4th Cir. 1987).
In my view, the district court correctly concluded that
19
there remains a factual incongruence between those
facts necessary to [Williams’] guilty plea to tax
evasion and those establishing a willful violation of
§ 5314. That Williams intentionally failed to report
income in an effort to evade income taxes is a
separate matter from whether Williams specifically
failed to comply with disclosure requirements
contained in § 5314 applicable to the ALQI accounts
for the year 2000.
J.A. 379. Put differently, Williams never allocuted to failing
to file the FBAR form, and certainly did not admit willfully
failing to file it. Neither his plea agreement nor his
allocution even referred to the FBAR or § 5314. Indeed, the
Treasury Department itself notes that the FBAR is a separate
reporting requirement and not a tax return, nor is it to be
attached to a taxpayer’s tax returns. See J.A. 225, 237, 246. In
short, pleading guilty to hiding the existence of the two
accounts for income tax purposes does not necessarily establish
that Williams willfully failed to file a FBAR for 2000. Indeed,
other separate and distinct tax penalties (including penalties
for fraud) were separately sought by the IRS from Williams for
his failure to report the income in the accounts, pursuant to 26
U.S.C. §§ 6662 and 6663. See Williams v. Comm’r of Internal
Revenue, 97 T.C.M. (CCH) 1422, *4 (Apr. 16, 2009). The FBAR-
related penalty is not a tax penalty, but a separate penalty for
separate conduct.
Thus, viewed as distinct issues, collateral estoppel is
inapplicable here because Williams’ willfulness in failing to
20
file the FBAR is not an issue “identical to one previously
litigated.” Sedlack, 134 F.3d at 224. Likewise, judicial
estoppel is inapplicable because there is nothing about
Williams’ stance on willfulness here that is “inconsistent with
[the] stance taken” in his criminal proceedings. Zinkand, 478
F.3d at 638. Accordingly, I would further hold that the district
court did not err in declining to apply either collateral
estoppel or judicial estoppel.
For all of these reasons, I respectfully dissent and would
affirm the judgment of the district court.
21