United States v. Del Valle

United States Court of Appeals
For the First Circuit

No. 08-1234

UNITED STATES OF AMERICA,

Appellee,

v.

DOUGLAS GORBEA DEL-VALLE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José A. Fusté, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Lipez, Circuit Judges.

Lorenzo J. Palomares and Lorenzo Palomares, P.S.C. on brief
for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Germán A.
Rieckehoff, Assistant United States Attorney, and Rosa Emilia
Rodríguez-Vélez, United States Attorney, on brief for appellee.

May 12, 2009
 LYNCH, Chief Judge. This appeal is about the denial of

a new trial to a convicted significant drug conspirator. Even

given that we are the only circuit which has ruled that an

affidavit from a convicted codefendant who refused to testify at

trial may be used to support a new trial motion because it was

"unavailable" at trial, this defendant's appeal fails.

Douglas Gorbea Del-Valle, the appellant here, and José

Ramón Hernández-Rodríguez were involved in a conspiracy to import,

possess, and distribute a large amount of cocaine. Gorbea played

a major role in the conspiracy: the trading company that he ran and

partly owned was responsible for importing the cocaine shipment

from Venezuela to Puerto Rico, and Gorbea was personally involved

in many of the details of this operation. Hernández, by contrast,

was a more peripheral figure: he owned a trucking company that

Gorbea's company employed to transport the shipment from the docks

to a nearby truck yard. Gorbea and Hernández were tried together

and convicted in 1998 on four and five counts, respectively,

arising from this conspiracy. This court affirmed both convictions

in 2000. United States v. Hernández (Hernández I), 218 F.3d 58, 61

(1st Cir. 2000).

In 2002, Hernández filed a motion for a new trial under

Fed. R. Crim. P. 33 based on an affidavit from Gorbea. The

district court rejected the motion, but in 2006, this court

reversed. United States v. Hernández-Rodríguez (Hernández II), 443

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F.3d 138, 140 (1st Cir. 2006). We found that the government's case

against Hernández had relied heavily on a theory that was directly

undercut by Gorbea's affidavit and that, given the weak nature of

the other evidence presented against Hernández, this new evidence

could create a likelihood of acquittal upon retrial. See id. at

145-47.

In 2003, almost five years after his conviction, Gorbea

filed his own motion for a new trial. Gorbea's Rule 33 motion was

based primarily on an affidavit from his codefendant, Hernández.

The district court summarily denied the new trial motion. Gorbea's

case is entirely unlike that of his codefendant. A great deal of

evidence links Gorbea to the conspiracy and demonstrates his

substantial involvement with it. None of this evidence is undercut

by the evidence presented in Gorbea's Rule 33 motion. We affirm

the district court's ruling.

I.

The facts underlying this case are described more fully

in our prior opinions. See Hernández II, 443 F.3d at 140-43;

Hernández I, 218 F.3d at 61-63, 65-67. The essential facts are

briefly recounted below.

On September 27, 1997, U.S. Customs officials received

information that a container arriving from Venezuela at Crowley

Yard in San Juan, Puerto Rico, contained contraband. Customs

officials located the container the following day and moved it to

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Customs facilities in Cataño for inspection. The bill of lading

stated that the container held plastic cups and that the consignee

was a supermarket. The consignee's representative was South

Atlantic Trading Company (SATCO), which Gorbea ran and partly

owned; Gorbea was listed as the person to be notified upon the

container's arrival. Inside the container, customs officials

discovered not only plastic cups but also 7,514 pounds

(approximately 3,415 kilograms) of cocaine. The container was

fitted with electronic tracking equipment, repackaged, and returned

to Crowley Yard.

On September 29, Gorbea called the Customs office to

inquire about the container. He identified himself as its owner

and asked why it had been moved to Cataño. He was told there was

no problem and that the container would be ready to be picked up

soon. Later, Gorbea went personally to the customs broker to

arrange for payment of the freight charges; an employee there

reported that Gorbea seemed in a hurry to receive the shipment.

Gorbea had also instructed his secretary to call the customs broker

several times to "see what the status [of this shipment] was and to

hasten them."

On October 2, after the necessary paperwork was

completed, two employees from J.R. Transport, a company owned by

codefendant Hernández, arrived to retrieve the container. Their

truck pulled out of Crowley Yard and drove to a nearby truck yard,

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followed by Hernández in a gray van -- and law enforcement

officers. The truck took a halting and meandering route. It

traveled along back roads and made several stops, sometimes

remaining stopped for a half hour or more. It made U-turns and was

often without its headlights (although other cars on the road had

their headlights on). All told, a trip that would normally take

about half an hour lasted about four.

At long last, the truck arrived at the truck yard.

Officers observing the scene reported that another car arrived at

the same time as the truck; the car contained several people, one

of whom was carrying an object that may have been a gun. The

people in the truck yard greeted and congratulated one another once

the container was inside the lot. Their celebration was short-

lived; officers moved in, made arrests, and seized the container.

Gorbea was arrested two months later. In his possession,

officers discovered a fax dated February 5, 1997. The fax was

addressed to Gorbea from a person in Venezuela about an earlier

shipment of plastic cups. It said: "I urgently need the

information of your friend that has the truck to square everything

with him." On the back of the fax, among other handwritten notes,

Gorbea had written the name José Hernández.

Gorbea and Hernández were tried together. Gorbea was

charged with four counts related to the cocaine conspiracy;

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Hernández faced five charges.1 At trial, neither presented any

evidence and neither testified.

The prosecution also presented significant amounts of

circumstantial evidence that linked Gorbea to the scheme, showing

that he had knowledge of its workings. At the time of the cocaine

shipment, Gorbea's company, SATCO, had primarily been in the

business of importing crackers. When SATCO began importing plastic

cups, these shipments were handled differently. Gorbea was

personally involved in these shipments to a greater extent than he

was in the usual cracker shipments. Around the time the shipments

began, he insisted on taking private calls from a person

identifying himself as "Wallace." Once, a shipment of plastic cups

arrived at SATCO in a state that suggested it had been opened and

that something had been removed; when Gorbea's secretary reported

this to him, Gorbea responded that he "already knew" and that it

"didn't matter." SATCO employed a different trucking company --

the company owned by Hernández -- to transport the plastic cup

1
Gorbea was charged with: conspiracy to possess with
intent to distribute approximately 3,017 kilograms of cocaine, see
21 U.S.C. §§ 841(a)(1), 846; aiding and abetting in the attempt to
possess with intent to distribute approximately 3,017 kilograms of
cocaine, see 18 U.S.C. § 2; 21 U.S.C. § 846; conspiracy to import
approximately 3,017 kilograms of cocaine into the United States,
see 21 U.S.C. §§ 952(a), 963; and aiding and abetting in the
importation of cocaine into the United States, see 18 U.S.C. § 2;
21 U.S.C. § 952(a). Hernández was charged with the same
violations, along with aiding and abetting in the possession with
intent to distribute approximately 10 kilograms of cocaine, see 18
U.S.C. § 2; 21 U.S.C. § 841(a)(1).

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shipments.2 SATCO imported the plastic cups even though it lost

money on them; previous shipments had been sold at a loss.

Finally, the supermarket listed as the consignee on the shipment at

issue had never purchased plastic cups from SATCO and had no

intention of purchasing any of the cups in this shipment.

By contrast, the government's case against Hernández was

weaker. The prosecution relied heavily on the theory that

Hernández and Gorbea were close and trusted partners. To prove

that Hernández knowingly participated in the scheme, the government

relied on the fax found in Gorbea's possession, which had the name

"José Hernández" written on it, as well as on the circumstantial

evidence surrounding Hernández's presence on the night the shipment

was seized. The defense theory was that the government had not

shown that Hernández knew of the existence of cocaine inside the

container his company had been hired to transport or that he

knowingly participated in or helped facilitate the importation or

distribution scheme.

A jury convicted both defendants of all the charges on

September 3, 1998. On appeal in 2000, this court affirmed both

Gorbea's and Hernández's convictions.3 Hernández I, 218 F.3d at

2
The trucker SATCO used for cracker shipments also hauled
some shipments of plastic cups, but Hernández's company was used
only for plastic cup shipments.
3
We also rejected Hernández's challenge to his sentence.
Hernández I, 218 F.3d at 71.

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71. We rejected, inter alia, Gorbea's challenge to the sufficiency

of the evidence, finding that there was "sufficient evidence in the

record to support the conclusion that Gorbea knew of and actively

participated in the scheme to import and distribute cocaine." Id.

at 66. Given the evidence presented, we added, "[i]t strains

credulity to suggest that [Gorbea] would not have known the

container's contents or the plans for distributing them." Id. We

also found there was sufficient evidence to convict Hernández, id.

at 66-67, noting that it was "[o]f great weight . . . that Gorbea

wrote Hernández's name on the back of the fax," id. at 67, but

acknowledging that the evidence on the record against Hernández was

not overwhelming, see id. at 67 & n.6; see also Hernández II, 443

F.3d at 147.

A. Hernández's Successful Motion for a New Trial

Two years later, on July 29, 2002, Hernández filed a

motion for a new trial based on purportedly "newly discovered

evidence." See Fed. R. Crim. P. 33(b)(1). Hernández's motion was

based on an affidavit from Gorbea, in which Gorbea stated that he

and Hernández did not know each other personally at the time of

their arrest. See Hernández II, 443 F.3d at 141.

An evidentiary hearing was held on August 26, 2003 before

a magistrate judge, at which Gorbea testified. Gorbea did not

admit his own guilt, but stated that he never told truckers what

they were hauling and that if he were to import drugs, he would

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never inform the truckers because this would raise the cost of

their services. See id. at 141-42. He also testified that the

José Hernández to whom he had referred in the handwritten note on

the back of the fax was not his codefendant but another person by

the same name, who was employed by Crowley Maritime Shipping, and

to whom he had spoken about a shipment of crackers. Crowley

Maritime's records indicated that it had employed four people by

that name at the relevant time; U.S. Customs Agent Brenda Talavera

testified that she had gone to Crowley to determine whether a José

Hernández had worked there, but that she did not remember the

outcome of her investigation. See id. at 142-43. The hearing also

revealed that the driver of the truck had given Agent Talavera an

alternative explanation for his erratic driving on October 2: the

truck's headlights were broken, so he used a circuitous route to

avoid police detection. The driver's explanation was contained in

the agent's report. See id. at 143.

Although the magistrate judge recommended that a new

trial be granted, the district court ultimately rejected

Hernández's motion on December 22, 2004. See id. at 140.

Hernández appealed, and in 2006, this court reversed, over a

dissent. Id.; see also id. at 149 (Howard, J., dissenting). We

held that the district court abused its discretion in denying

Hernández's new trial motion because the evidence in favor of

Hernández presented in Gorbea's affidavit and his testimony at the

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evidentiary hearing -- specifically, his alternative explanation of

his handwritten note on the back of the fax -- directly undercut

the government's conspiracy case against Hernández, which "relied

heavily on the theory that Hernández and Gorbea were close and

trusted partners." Id. at 145-46 (majority opinion). Because

Gorbea's claim that no such relationship existed with Hernández, if

credited by the jury, would likely lead to Hernández's acquittal,

and because it was otherwise material and unknown or unavailable to

Hernández at the time of the trial, despite due diligence, a

retrial was warranted. See id. at 143-48.

Hernández later waived his request for a new trial in

exchange for a reduced sentence, thus accepting the conviction and

essentially admitting guilt. An amended judgment as to Hernández

was entered on February 14, 2007.

B. Gorbea's Motion for a New Trial

Meanwhile, on May 30, 2003, Gorbea filed his own Rule 33

motion for a new trial based on purportedly newly discovered

evidence. Gorbea's motion was based, not surprisingly, on an

affidavit from Hernández. In his affidavit, Hernández stated that

he did not know Gorbea personally, that the extent of their

relationship was merely a business agreement to transport the

container from the port to its destination, and that Gorbea did not

instruct him as to what to do with the cargo other than to deliver

it to its destination. Hernández further stated that he had

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received information that the Venezuelan National Guard had

inspected the container at issue on September 24, 1997, prior to

its shipment, and that this search had revealed no drugs.

According to Hernández, a Venezuelan attorney named Gustavo Morales

had original documentation of this inspection and could provide

this evidence. Gorbea did not produce an affidavit from Morales or

any other evidence of this alleged inspection.

On June 5, 2003, Gorbea amended his new trial motion to

add the Crowley Maritime records, which showed there were multiple

people named José Hernández working for the company, and argued

that this supported his claim for a new trial. The records had

been subpoenaed as part of Hernández's new trial motion, and

Hernández's counsel had moved to admit these documents into the

record on the same day that Gorbea filed his original new trial

motion.

More than four years later, the government,

astonishingly, had not responded to Gorbea's motion and the busy

court had not ruled on it.

On August 28, 2007, after the matter of codefendant

Hernández had been resolved, Gorbea filed a renewed new trial

motion. The motion reiterated the claims made in the original

motion and added a new claim based on certain evidence revealed in

Hernández's later evidentiary hearing. Gorbea argued that the

government violated Brady v. Maryland, 373 U.S. 83 (1963), when it

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earlier failed to disclose to him the evidence that Agent Talavera

went to Crowley to investigate whether another José Hernández

worked there as well as the truck driver's explanation of his

erratic driving contained in the agent's report.

Again, the government did not respond to Gorbea's motion.

On January 16, 2008, the district court denied Gorbea's motion

without comment. Gorbea timely appealed.

II.

As an initial matter, we note that Gorbea's new trial

motion was clearly untimely. Under Fed. R. Crim. P. 33(b)(1),

"[a]ny motion for a new trial grounded on newly discovered evidence

must be filed within 3 years after the verdict or finding of

guilty." Gorbea was convicted in 1998, but did not file his new

trial motion until 2003, almost five years later.4 It is unclear

4
The current three-year time limit was put in place by a
1998 amendment to Rule 33; before the amendment, Rule 33 allowed a
defendant to file a new trial motion within two years of the final
action of the court of appeals. United States v. Mojica-Rivera,
435 F.3d 28, 32 (1st Cir. 2006); Fed. R. Crim. P. 33 advisory
committee's note, 1998 amendments. The amendment became effective
on December 1, 1998, Mojica-Rivera, 435 F.3d at 32, a few months
after Gorbea was convicted. However, the new version of Rule 33
would apply to Gorbea so long as such application would be just and
practicable. Id. at 32-33; see also Hernández II, 443 F.3d at 150
n.10 (Howard, J., dissenting). Here, there is no reason why
applying the amended Rule would be unjust or impracticable, since
Gorbea had over two-and-a-half years to file his Rule 33 motion
after the 1998 amendment became effective. See Mojica-Rivera, 435
F.3d at 33 (holding that the new time limit should apply to a
defendant who had eighteen months to file); see also Hernández II,
443 F.3d at 150 n.10 (Howard, J., dissenting). Moreover, even
under the previous version, Gorbea's 2003 motion was untimely since
it was not filed within two years of this court's final action in

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whether the district court based its ruling on lack of timeliness.

Moreover, the government, which utterly failed to respond to

Gorbea's motions before the district court, may well have forfeited

any argument on the timeliness issue. See Eberhart v. United

States, 546 U.S. 12, 19 (2005) (per curiam) (holding that the time

bar in Rule 33 is non-jurisdictional and may be forfeited);

Hernández II, 443 F.3d at 150 (Howard, J., dissenting) (noting that

the government likely forfeited the timeliness argument with regard

to Gorbea's codefendant). We need not resolve this issue, since

Gorbea's claims may be easily disposed of on the merits.

We review a district court's denial of a new trial motion

for manifest abuse of discretion. Hernández II, 443 F.3d at 143;

United States v. González-González, 258 F.3d 16, 20 (1st Cir.

2001). "The remedy of a new trial must be used sparingly, and only

where a miscarriage of justice would otherwise result." United

States v. Conley, 249 F.3d 38, 45 (1st Cir. 2001).

Defendant's new trial motion was based on both newly

discovered evidence -- Hernández's affidavit and the Crowley

Maritime records -- and the evidence that he claims should have

been disclosed under Brady. Slightly different standards apply to

these two claims, but both require the defendant to show some

degree of prejudice. Id. at 45; see also González-González, 258

F.3d at 20. Here, both claims fail.

Hernández I, which was decided in 2000.

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A. Newly Discovered Evidence

A defendant who seeks a new trial on the basis of newly

discovered evidence bears a "weighty burden" of establishing that:

(1) the evidence was unknown or unavailable to the defendant at the

time of trial; (2) failure to learn of the evidence was not due to

lack of diligence by the defendant; (3) the evidence is material

and not merely cumulative or impeaching; and (4) the emergence of

the evidence will probably result in an acquittal upon retrial of

the defendant. Hernández II, 443 F.3d at 143; González-González,

258 F.3d at 20; Conley, 249 F.3d at 45. A new trial motion must be

denied if the defendant fails to meet any one of these factors.

González-González, 258 F.3d at 20. A showing of prejudice under

the fourth prong of the test requires an "actual probability that

an acquittal would have resulted if the evidence had been

available." Id. (quoting United States v. Sepulveda, 15 F.3d 1216,

1220 (1st Cir. 1993)) (internal quotation marks omitted).

Defendant's claim is based on his codefendant's affidavit

and on the Crowley Maritime records showing more than one José

Hernández worked there. As to the Crowley Maritime records, none

of the four prongs were met. If defendant thought they were

material, he could easily have obtained them previously because he

was the one with the knowledge that there was more than one José

Hernández. The evidence was not unavailable at the time.

Moreover, there is no actual probability that the records from

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Crowley Maritime would have led to acquittal if they had been

presented at trial. The fact that multiple people working at

Crowley had the name José Hernández says little about whether

Gorbea conspired with his codefendant Hernández or with numerous

other people to import cocaine.

We turn to the Hernández affidavit. In United States v.

Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997), this court held

that a later affidavit from a codefendant who asserted his Fifth

Amendment privilege at trial is not "per se insufficient under Rule

33," id. at 1067, because such statements may constitute evidence

that was "unavailable" under the first prong of the test, id. at

1065-66.5 In that case, we ruled that the district court should

have considered two belated codefendant affidavits. See id. at

1067. We noted, however, that "[o]ur judgment . . . turn[ed] on

unusual circumstances including the weakness of the government's

case against the defendant, significant efforts to procure the

codefendants' testimony before his own conviction, and the

5
Ten other circuits disagree, treating such evidence as
categorically insufficient to ground a Rule 33 motion, at least
where the defendant knew or should have known his codefendant could
offer material testimony. See United States v. Owen, 500 F.3d 83,
88-91 (2d Cir. 2007); Hernández II, 443 F.3d at 149 n.8 (Howard,
J., dissenting) (citing United States v. Jasin, 280 F.3d 355, 364-
68 (3d Cir. 2002)); see also 3 Wright, King & Klein, Federal
Practice and Procedure § 557, at 546-47 (3d ed. 2004 & Supp. 2009)
(stating in general that "[p]reviously known, but only newly
available testimony of a codefendant or coconspirator who invoked
his Fifth Amendment privilege against self-incrimination and did
not testify at trial does not qualify as 'newly discovered
evidence'" under Rule 33 and collecting cases).

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plausible explanation as to why the evidence was not available

earlier." Id. at 1067-68. We explicitly cautioned, moreover, that

such evidence must be regarded with "great skepticism," since "[i]t

is not unusual for the obviously guilty codefendant to try to

assume the entire guilt" and "[a] convicted, sentenced codefendant

has little to lose (and perhaps something to gain) from such

testimony." Id. at 1066; see also id. at 1067 ("[W]e share the

general skepticism concerning [such] statements, and the present

opinion by no means confers any automatic right in such a case to

a new trial or even to a hearing."). Similarly, in Hernández II,

we considered the affidavit that Gorbea submitted in favor of

Hernández's new trial motion, while reiterating these warnings.

Hernández II, 443 F.3d at 144; see also id. at 149 (Howard, J.,

dissenting).

This case does not present the same sort of "unusual

circumstances" that animated our decision in Montilla-Rivera, 115

F.3d at 1067. The government's case against Gorbea was not weak

and there is no evidence that Gorbea undertook any efforts to

secure Hernández's testimony at trial. Likewise, the government's

case against Gorbea was much stronger than its case against

Hernández. Nonetheless, out of an abundance of caution, we

consider Hernández's affidavit under the other prongs of the test,

"proceed[ing] through the remainder of the inquiry with the

appropriate caution," Hernández II, 443 F.3d at 144.

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 There is no actual probability that Hernández's affidavit

in this case would have led to acquittal given the substantial

amount of other evidence supporting Gorbea's conviction. See

González-González, 258 F.3d at 23. Hernández's affidavit would

have had little effect on the government's case against Gorbea,

quite unlike Gorbea's testimony in support of his codefendant's

motion, which we found went directly to the heart of the

government's case against Hernández, see Hernández II, 443 F.3d at

at 145. The government's case against Gorbea was supported by "[a]

great deal of circumstantial evidence [that] linked Gorbea to the

scheme and indicated his knowledge of the scheme's contours,"

Hernández I, 218 F.3d at 65, none of which is undercut by the claim

in Hernández's affidavit that he did not know Gorbea personally.

In his affidavit, Hernández claims as well that he heard

the container at issue in this case had been inspected by the

Venezuelan National Guard and found not to contain drugs. He does

not identify the source of this information, which is hearsay, or

why he would have had access to it. Also, his claim is

uncorroborated by any other evidence. The documentary evidence

allegedly in the possession of the Venezuelan attorney was not

submitted, nor was there any evidence suggesting that Gorbea ever

undertook efforts to procure it. And even if this claim were true,

the fact that Hernández was aware of the inspection would say

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little about Gorbea's knowledge and would not establish that drugs

were not placed in the container after the inspection.

In addition, other independent evidence went to Gorbea's

guilt -- for example, the fax found in Gorbea's possession with the

name "José Hernández" written on it,6 Gorbea's unusual personal

involvement with the shipment, the fact that his company did not

regularly import plastic cups but did so here at a loss, and the

fact that the supermarket listed as the consignee on the shipment

had no intention of buying any plastic cups from the company.

B. The Alleged Brady Violation

We apply a slightly different standard when a defendant

seeks a new trial on the basis of newly discovered evidence that he

claims should have been produced under Brady. Conley, 249 F.3d at

45; see also González-González, 258 F.3d at 20. For such claims,

the defendant must establish that: (1) the evidence at issue is

material and favorable to the accused; (2) the evidence was

suppressed by the prosecution; and (3) the defendant was prejudiced

by the suppression in that there is a reasonable probability that,

6
In his testimony supporting Hernández's new trial motion,
Gorbea offered an alternative explanation for the name written on
the fax and suggested it referred to a different José Hernández.
Even if this explanation were true, it cannot inform Gorbea's own
new trial motion. If defendant was aware of this information but
refused to testify about it at trial, he cannot now claim it is
"newly discovered" under Rule 33. See 3 Wright, King & Klein,
supra, § 557, at 546-47 ("Evidence known to defendant . . . at the
time of trial will not suffice [under Rule 33]. . . . Defendant is
not permitted to change his strategy after an unfavorable verdict
and use evidence he chose not to present at the trial.").

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had the evidence been disclosed to the defense, the result of the

proceeding would have been different. Conley, 249 F.3d at 45;

accord United States v. Rivera Rangel, 396 F.3d 476, 485 (1st Cir.

2005). The "reasonable probability" standard for showing prejudice

under this test is easier to satisfy than the "actual probability

of acquittal" standard for prejudice used in claims of newly

discovered evidence unrelated to alleged Brady violations.

González-González, 258 F.3d at 20; Conley, 249 F.3d at 45.

Gorbea claims the government violated Brady by failing to

disclose evidence that an agent went to Crowley to investigate

whether another José Hernández worked there as well as the report

containing the truck driver's alternative explanation for his

erratic driving. Even assuming dubitante the two pieces of

evidence satisfied the first two prongs of the test for new trial

motions based on alleged Brady violations, Gorbea cannot show a

"reasonable probability" that this evidence would have changed the

outcome of the trial. That Agent Talavera attempted to investigate

whether another José Hernández worked at Crowley does not establish

that Gorbea was not involved in the conspiracy or that he did not

conspire with his codefendant Hernández (or with others). The

record shows that the jury had already been presented with the

driver's alternative explanation through the testimony of another

government witness. Hernández II, 443 F.3d at 147. Even had the

evidence that is the basis of Gorbea's claim been presented, there

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were ample grounds on which the jury could have convicted Gorbea.

See Rivera Rangel, 396 F.3d at 486.

III.

The district court did not commit a manifest abuse of

discretion in denying defendant's new trial motion. The judgment

of the district court is affirmed.

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