United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 31, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-10384
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JULIUS OSMOND BRATHWAITE,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
USDC No. 3:03-CR-4-ALL-R
_________________________________________________________________
Before JOLLY, BARKSDALE, and DENNIS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Julius Brathwaite appeals the district court’s denial of his
motion to suppress evidence. Although he later entered a plea
agreement, he preserved the right to appeal this issue –- the only
issue before us. Brathwaite’s primary arguments are that the
videotaping of his living quarters by an invited confidential
informant violated the Fourth Amendment, and that the admission of
his statements of ownership of the guns violated his Miranda
rights. We reject his Fourth Amendment claim, but hold that,
because the government agents failed to give him the Miranda
warnings before questioning him, the statements Brathwaite made
about the guns found in his house should have been suppressed.
Under his plea agreement, he not only preserved the right to appeal
this issue, but also the right to withdraw his plea of guilty upon
a successful appeal. We therefore reverse the district court’s
denial of the motion to suppress as to those statements, affirm the
rulings of the district court on all other issues relating to his
motion to suppress, and remand to the district court for further
proceedings not inconsistent with this opinion.1
I
In October 2002, a confidential informant (“CI”) told Special
Agent James LaMattina of the United States Secret Service that an
individual she knew as “Jay,” who later turned out to be
Brathwaite, was manufacturing counterfeit driver’s licenses and
work identification cards for use with counterfeit business checks
and credit cards. She also told Agent LaMattina that Brathwaite
and others were using computers to manufacture these items at
Brathwaite’s mother’s residence, where he lived.
Throughout November and December 2002, the CI met several
times with Brathwaite and others, including Brathwaite’s live-in
girlfriend, Vanessa Hayes, to purchase counterfeit identification
cards or checks, as part of an investigation by the Secret Service.
She reported her activities to Agent LaMattina and other government
agents. During some, but not all, of these meetings with
1
We do not vacate his conviction and sentence. On remand, if
he exercises the option he retained to withdraw his plea, then the
district court will be obliged to vacate the conviction and
sentence.
2
Brathwaite, the CI used a hidden video camera and microphone to
record the meetings and transmit the information to government
agents. The government did not obtain a warrant for the CI to use
these devices. She hid these devices in her purse, which she kept
with her whenever the devices were operating. The only time she
put her purse down was while Brathwaite was taking her picture for
her counterfeit identification card, and even then the purse was
still in her presence. The meetings involving Brathwaite and the
CI took place in Brathwaite’s residence, which was across the
street from a school. The meetings all concerned making
counterfeit identification cards and checks. The CI not only
bought some of these things, but also observed much of Brathwaite’s
computers and equipment, including a police scanner, at
Brathwaite’s residence. She further turned over some of the
counterfeit objects to Agent LaMattina.
On December 17, 2002, Agent LaMattina submitted an affidavit
and application for a search warrant to a magistrate. The
application identified Brathwaite’s residence, as well as two other
locations, as places to search for “evidence of the commission of
criminal offenses; contraband, the fruits of criminal offenses,
things otherwise criminally possessed; or property designed or
intended for use or which is or has been used as the means of
committing criminal offenses.” Much of the affidavit related to
information obtained from the CI, who, as Agent LaMattina stated in
the affidavit, had previously provided truthful and accurate
3
information. The magistrate issued a search warrant on the same
day, authorizing the search of Brathwaite’s residence and one other
location between 6:00 a.m. and 10:00 p.m.
Around 6:00 a.m. on December 19, 2002, while it was still
dark, agents executed the search warrant at Brathwaite’s residence.
Agent LaMattina was not present, but Special Agent Ben Bass was.
The agents claim that they wanted to execute the warrant as early
as possible, before children started arriving at the school across
the street. As the agents approached the front door, Agent Bass
noticed video cameras mounted on the exterior of the house. The
agents knocked on the front door and announced their presence.
After waiting ten to fifteen seconds without a response, and
without hearing any movement, the agents broke in through the front
door.
The initial security sweep of the house produced nothing, but
in a second sweep the agents found Hayes hiding under a bed. After
she dressed, she was handcuffed for awhile, and remained inside the
house while the search was completed. About twenty minutes after
entry, agents found Brathwaite sitting in his running vehicle in
the driveway alongside the house. The agents removed him from the
vehicle and handcuffed him. Agent Bass spoke with Brathwaite while
he was handcuffed. At some point, he asked Brathwaite about his
criminal history, and Brathwaite replied that he had been convicted
of a felony and had served time in prison. At some other point,
another agent came out of the house and asked “where are the guns,
4
where are the rest of the guns in the house?” Agent Bass asked
Brathwaite, “Are there any guns in the house?” Brathwaite answered
in the negative. Agent Bass then stated “Mr. Brathwaite, you need
to tell me, are there any guns in the house?” Brathwaite replied
that he was keeping a pistol for a friend, and that it was on top
of the washing machine. Furthermore, Brathwaite made some
statement indicating that he owned a shotgun. Over two hours
later, Brathwaite was formally arrested and was for the first time
apprised of his Miranda rights. The agents did indeed find a .45
caliber pistol above the washing machine, although it is unclear
when it was found or what agent found it. They also found a 20
gauge shotgun in the master bedroom, as well as ammunition and a
gun magazine for the .45 caliber pistol, and .22 and .380 caliber
ammunition. In addition to the guns, the search produced computer
and printer equipment, photography equipment, IDs, checks,
paperwork, and other such items.
II
On January 7, 2003, Brathwaite was indicted on one count of
possession of firearms by a felon, with the count specifically
mentioning a 20 gauge shotgun and a .45 caliber pistol. On
September 4, 2003, Brathwaite was indicted on counts of
identification document fraud, forgery, bank fraud, and interstate
transportation of a stolen vehicle. The district court
consolidated the two cases on December 22, 2003. Brathwaite filed
a motion to suppress evidence which covered several items of
5
evidence, including the videos obtained from the CI’s video
surveillance, the 20 gauge shotgun, the .45 caliber pistol, and
Brathwaite’s statements regarding the guns and his status as a
felon. The district court held a hearing on the motion to
suppress, at which it did not make findings of fact or conclusions
of law. On March 23, 2004, the district court denied the motion to
suppress in a one-page order that did not include findings of fact
or conclusions of law.
The parties filed a plea agreement on August 9, 2004, in which
Brathwaite agreed to plead guilty to the single count of the
indictment for possession of a firearm under 18 U.S.C. §§ 922(g)(1)
and 924(a)(2), and to count one of the other indictment, which
charged identification document fraud under 18 U.S.C. §§ 1028(a)(1)
and (2). In the plea agreement, Brathwaite reserved his right to
appeal the district court’s denial of his motion to suppress, and
the plea agreement provided that if he prevailed on this appeal, he
would be allowed to withdraw his guilty plea. The plea agreement
specifically states that
Brathwaite [] reserves the right to bring (a)
a direct appeal of ... (iv) the District
Court’s denial of his motion to suppress the
search warrant .... If Brathwaite prevails on
appeal regarding the adverse determination on
his motion to suppress evidence, he shall be
allowed to withdraw his guilty plea in both
cases.
On August 12, 2004, Brathwaite filed a motion for
reconsideration of his motion to suppress, which the district court
6
denied in a one-page order that did not include findings of fact or
conclusions of law. The district court adjudged Brathwaite guilty
on September 2, 2004. On March 9, 2005, Brathwaite was sentenced
to thirty-three months imprisonment in both cases, to run
concurrently to each other, two years of supervised release in each
case, to run concurrently, restitution, and a special assessment.
Brathwaite timely appeals the denial of his motion to suppress.
III
Brathwaite contends that the district court erred in denying
his motion to suppress, arguing that 1) the CI’s video surveillance
was an impermissible warrantless search; 2) the search warrant was
not supported by probable cause absent the evidence obtained from
the CI’s video surveillance; 3) the wait period between the knock
and announce and the entry violated the Fourth Amendment;2 4) the
agent’s questioning of Brathwaite prior to apprising him of his
Miranda rights violated the Fifth Amendment, and his statements
should have been suppressed; and 5) the derivative evidence
2
Brathwaite contends that all of the evidence against him
obtained as a result of the search should be suppressed because the
ten- to fifteen-second wait by the agents between the knock and
announce and the entry during the execution of the search warrant
was unreasonable. After reviewing the parties’ briefs and the
record, and viewing the evidence in the light most favorable to the
government, the agents’ knowledge of counter-surveillance and the
reasonable assumption that computer files can be deleted quickly
and quietly, with one key stroke, render the ten- to fifteen-second
wait reasonable. Because we find the time to be reasonable, this
case thus presents no reason for us to consider the recent Supreme
Court opinion holding that the exclusionary rule does not apply to
violations of the knock and announce rule. See Hudson v. Michigan,
–- S. Ct. –-, 2006 WL 1640577 (June 15, 2006).
7
discovered due to the alleged Miranda violations was the fruit of
the poisonous tree and should have been suppressed. We hold that
the district court did not err in denying Brathwaite’s motion to
suppress as to the video evidence, the knock and announce issues,
the guns, and the statements regarding Brathwaite’s criminal
history. However, we hold that the district court erred in denying
the motion to suppress as to Brathwaite’s statements regarding the
guns.
A
“In reviewing the denial of a motion to suppress evidence
under the Fourth Amendment,” the district court’s factual findings
are reviewed for clear error and its conclusions regarding the
constitutionality of the search are reviewed de novo. United
States v. Runyan, 275 F.3d 449, 456 (5th Cir. 2001). “We view the
facts underlying the suppression determination in the light most
favorable to the prevailing party, which in this case is the
government.” Id. The defendant must prove a Fourth Amendment
violation by a preponderance of the evidence, then the burden
shifts to the government to show why the exclusionary rule should
not apply. Id. When the district court makes no findings of fact
before denying a defendant’s motion to suppress, the lack of fact
finding “allows [the Court] to conduct a more searching review,”
with the analysis “guided by the testimony and other evidence
adduced at the suppression hearing.” United States v. Paige, 136
F.3d 1012, 1017 (5th Cir. 1998).
8
Brathwaite contends that video surveillance in the home is
more intrusive on privacy expectations than is audio surveillance
because it involves an invasion of the home using more than naked-
eye surveillance, citing Kyllo v. United States, 533 U.S. 27 (2001)
for this proposition. Thus he argues that video surveillance by or
with the consent of a government informant constitutes a search
within the gambit of the Fourth Amendment’s protections, and a
warrant is therefore necessary to legally conduct such video
surveillance. We disagree.3
It is clear that audio surveillance by or with the consent of
a government informant does not constitute a search. United States
v. White, 401 U.S. 745 (1971). The Fourth Amendment does not
protect “a wrongdoer’s misplaced belief that a person to whom he
voluntarily confides his wrongdoing will not reveal it.” Id. at
749 (internal quotations omitted). Furthermore,
[i]f the conduct and revelations of an agent
operating without electronic equipment do not
invade the defendant’s constitutionally
justifiable expectations of privacy, neither
does a simultaneous recording of the same
conversations made by the agent or by others
from transmissions received from the agent to
whom the defendant is talking and whose
trustworthiness the defendant necessarily
risks.
3
Because we find that the video surveillance was not
impermissible, we obviously do not need to address Brathwaite’s
argument that without this “impermissible” evidence, the search
warrant for his house was not supported by probable cause.
9
Id. at 751. The Court stated that no evidence existed to show that
a defendant’s utterances would be substantially different whether
he thought it possible his companion was cooperating with the
police or whether he thought the companion was wired for sound.
Id. at 752-53 (“[T]here is no persuasive evidence that the
difference in this respect between the electronically equipped and
the unequipped agent is substantial enough to require discrete
constitutional recognition, particularly under the Fourth Amendment
which is ruled by fluid concepts of ‘reasonableness.’”).
Furthermore, the Court held that the defendant does not have a
Fourth Amendment right to prevent an electronic rendition simply
because it is “a more accurate version of the events in question.”
Id. at 753.
In the case at hand, we are unable to find a constitutionally
relevant difference between audio and video surveillance.4 Once
4
This view seems to be in line with the holdings of other
circuits. See United States v. Lee, 359 F.3d 194 (3d Cir. 2004),
cert. denied, 543 U.S. 955 (2004) (holding no Fourth Amendment
violation where defendant’s hotel room was videotaped while
consenting informant was in the room); United States v. Davis, 326
F.3d 361 (2d Cir. 2003), cert. denied, 540 U.S. 908 (2003) (holding
that video surveillance in defendant’s home by an invited visitor
did not violate the Fourth Amendment); United States v. Corona-
Chavez, 328 F.3d 974 (8th Cir. 2003) (holding no search where
defendant was videotaped in informant’s hotel room with consent of
informant because defendant had no expectation of privacy in a
stranger’s hotel room or in a meeting with another person); United
States v. Yang, 281 F.3d 534 (6th Cir. 2002) (citing White, holding
no search when government, with informant’s consent, videotaped
defendant in informant’s hotel room while informant was present,
because defendant relinquished any justifiable expectation of
privacy by voluntarily coming to the meeting with informant and
voluntarily talking to him in informant’s hotel room); United
10
Brathwaite invited the CI into his home, he “forfeited his privacy
interest in those activities that were exposed to [the CI].”
United States v. Davis, 326 F.3d 361, 366 (2d Cir. 2003), cert.
denied, 540 U.S. 908 (2003); see also United States v. Lee, 359
F.3d 194, 201 (3d Cir. 2004), cert. denied, 543 U.S. 955 (2004)
(“The principle underlying the governing Supreme Court cases is
that if a defendant consents to the presence of a person who could
testify about a meeting and is willing to reveal what occurs, the
defendant relinquishes any legitimate expectation of privacy with
respect to anything ... the testimony could cover.”). The
videotape evidence here only depicted what was viewable by the CI,
to whose presence Brathwaite consented.5 See Davis, 326 F.3d at
States v. Nerber, 222 F.3d 597 (9th Cir. 2000) (holding videotaping
defendants in hotel room while consenting informants were in the
room was not a search because defendants were not overnight guests
in the hotel room, but were only there to conduct a business
transaction at the invitation of the occupants, and when informants
were in the room, defendants bore the risk they were being
surveilled); United States v. Laetividal-Gonzalez, 939 F.2d 1455
(11th Cir. 1991) (overruled in part on other grounds) (holding
videotaping defendant while in informant’s office that informant
was renting from defendant was not a search because the defendant
“assumed the risk that the person to whom he spoke might disclose
anything he had seen or heard”).
5
Brathwaite makes no allegation that the CI roamed beyond the
area of consent. We do not decide the constitutionality of video
surveillance by an invited visitor who ventures beyond the bounds
of the area to which he is consensually granted access. Brathwaite
also does not contend that the video equipment at issue had or used
any enhancement capabilities which might capture things
unobservable to the human eye. We likewise do not decide the
constitutionality of video surveillance by an invited visitor using
video equipment with the ability to capture things beyond what the
human eye could detect.
11
366. “[J]ust as [Brathwaite] gave up any expectation of privacy in
the things that he allowed [the CI] to hear, [Brathwaite] also gave
up any expectation of privacy in the things that he allowed [the
CI] to see.” Lee, 359 F.3d at 201-02. “Although video
surveillance may involve a greater intrusion on privacy than audio
surveillance, the difference is not nearly as great as the
difference between testimony about a conversation and audio
recordings of conversations.” Id. at 202. Because Brathwaite did
not retain a privacy interest in the areas captured by the video
surveillance conducted by an invited visitor, we hold that no
Fourth Amendment violation occurred.6 See Davis, 326 F.3d at 366.
B
Brathwaite next argues that his Fifth Amendment rights were
violated by the agents’ questioning him prior to giving him Miranda
warnings; thus his statements regarding guns and his prior
conviction, as well as the guns themselves, should be suppressed.7
6
We agree with our sister circuit that Kyllo, the case relied
upon by Brathwaite, is inapposite to this situation. Kyllo “did
not involve a search by a visitor invited into the defendant’s home
and the defendant in Kyllo did not knowingly expose the contents of
the home. Moreover, the device in Kyllo detected more than what
even an invited guest could have detected with ordinary sensory
perception.” Davis, 326 F.3d at 366 n.2.
7
With respect to the physical guns themselves, the district
court did not err in refusing to suppress them. See United States
v. Patane, 542 U.S. 630 (2004) (plurality opinion). “Introduction
of the nontestimonial fruit of a voluntary statement ... does not
implicate the Self-Incrimination Clause. The admission of such
fruit presents no risk that a defendant’s coerced statements
(however defined) will be used against him at a criminal trial.”
Id. at 643 (plurality opinion). Because “‘[t]he exclusion of
12
We review a district court’s factual findings surrounding a motion
to suppress statements made in violation of Miranda under the clear
error standard, and review conclusions of law de novo. United
States v. Mendez, 27 F.3d 126, 129 (5th Cir. 1994). “[T]he
evidence is viewed in the light most favorable to the prevailing
party.” Id.
Miranda v. Arizona extended the Fifth Amendment privilege
against self-incrimination, requiring suppression of statements
stemming from custodial interrogation in which the defendant is not
apprised of his rights. 384 U.S. 436, 444 (1966); see also
Dickerson v. United States, 530 U.S. 428, 443-44 (2000) (Miranda’s
unwarned statements ... is a complete and sufficient remedy’ for
any perceived Miranda violation[,]” any such fruit need not be
suppressed. Id. (plurality opinion) (first alteration and omission
in original) (quoting Chavez v. Martinez, 538 U.S. 760, 790
(2003)); see also Patane, 542 U.S. at 645 (Kennedy, J., concurring)
(“Admission of nontestimonial physical fruits ... does not run the
risk of admitting into trial an accused’s coerced incriminating
statements against himself.”). Furthermore, “the concerns
underlying the [Miranda] rule must be accommodated to other
objectives of the criminal justice system.” Id. at 644 (Kennedy,
J., concurring). Those objectives do not require suppression in
this case. Id. at 645 (Kennedy, J., concurring) (“In light of the
important probative value of reliable physical evidence, it is
doubtful that exclusion can be justified by a deterrence rationale
sensitive to both law enforcement interests and a suspect’s rights
during an in-custody interrogation.”).
Brathwaite also made an unwarned response regarding his status
as a felon. The district court did not err in refusing to suppress
this evidence; the fact of Brathwaite’s felony would have been
inevitably discovered. Indeed, the government agents were
conducting a backgound check on Brathwaite while he was being
questioned, and the records showed that Brathwaite had a felony
conviction. Therefore, the inevitable discovery exception applies
to this issue. See United States v. Lamas, 930 F.2d 1099, 1102
(5th Cir. 1991).
13
“core ruling” was “that unwarned statements may not be used as
evidence in the prosecution’s case in chief.”). The government
does not contest that Brathwaite was questioned in violation of
Miranda, but instead argues that certain exceptions to Miranda and
to the exclusionary rule operate to render the denial of the motion
to suppress proper.
Brathwaite argues that his statements regarding the guns
should have been suppressed, more specifically, statements and
inferences from the statements that constitute evidence of his
knowledge or of his ownership of the guns. As the government
argues, Brathwaite’s statements about the guns were material to
show that Brathwaite’s possession of the guns was knowing. The
government first argues that the public safety exception to Miranda
applies, which we find unpersuasive as noted below.8
8
The public safety exception to Miranda allows the admission
as evidence of statements given by a defendant before being given
Miranda warnings when “a situation posing a threat to the public
safety” exists. New York v. Quarles, 467 U.S. 649, 655-60 (1984).
This exception is a “narrow exception” which in each case is
“circumscribed by the exigency which justifies it.” Id. at 658.
In Quarles, the police “had every reason to believe the suspect had
just removed [a gun] from his empty holster and discarded it in [a]
supermarket,” posing dangers to the public safety such as an
accomplice making use of it or a civilian finding it. Id. at 657.
“When the danger inherent in a confrontation has passed, so has the
basis for the [public safety] exception.” Fleming v. Collins, 954
F.2d 1109, 1114 (5th Cir. 1992) (en banc).
It is uncontested that at the time of questioning, the agents
had performed two sweeps of the house and had both occupants of the
house in handcuffs. The agents were in the process of executing
the search warrant. Furthermore, the government’s contention that
a public safety concern existed in that a member of the public,
including school children, might find a gun outside the house is
14
The only other argument the government presents in support of
the district court’s denial of the motion to suppress is: The
admission of the unwarned statements was harmless. “Any error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” Fed. R. Crim. P. 52(a). The
government argues that the failure to suppress Brathwaite’s
statements is harmless beyond a reasonable doubt because untainted
evidence overwhelmingly establishes that Brathwaite’s possession of
the guns was knowing. See United States v. Virgen-Moreno, 265 F.3d
276, 294 (5th Cir. 2001).
Even if this is true, the argument is irrelevant to this
appeal. The appeal here is from the ruling denying his motion to
suppress; it is not an appeal from his plea of guilty or from his
plea agreement. The ruling was entered before he decided to plead
guilty and before the plea agreement was ever confected. With
undermined by the questioning itself -- Agent Bass testified that
he asked Brathwaite repeatedly “Are there any guns in the house?”,
and never testified as to asking him about any guns located
anywhere else. Because sweeps had been done, the occupants were
handcuffed, and the immediacy of the situation had passed, the
government’s proposition that the possibility of guns located
within Brathwaite’s private residence provided a threat to the
public is likewise unavailing. The public did not have access to
Brathwaite’s private residence, which was under the full control of
the agents at the time of questioning. See United States v.
Raborn, 872 F.2d 589, 595 (5th Cir. 1989) (dictum) (“Unlike ...
Quarles, ... when the gun was hidden in a place to which the public
had access, [the] truck, where the ... officers believed the gun to
be, had already been seized and only the ... officers had access to
[it]. It is difficult therefore, to find that the public-safety
exception applies.”). Thus, we do not find such an exigency
necessary to apply the narrow confines of the public safety
exception to the case at hand.
15
apologies for iteration, it was only after his motion to suppress
was denied and after his chances of conviction were enhanced that
he decided to enter the plea agreement. Thus, the appeal before us
is from a ruling that is independent of his plea of guilty and
consequently, the weight of the evidence supporting Brathwaite’s
guilt is not at issue here.
Thus, when we consider the government’s argument that the
conceded error of approving the unwarned statements for
admissibility is harmless, we must focus precisely on what error of
the district court the government asks us to hold harmless. The
error cannot relate to the substance of the statements. The ruling
appealed from does not address the substance of the statements.
The error cannot be that the admissibility of the unwarned
statements is harmless. There was never a trial. The error of the
district court on appeal is not the conviction, because the
conviction resulted from a plea agreement between the defendant and
the government, not from the action of the court. Moreover, the
error complained of –- approving for admissibility the unwarned
statements –- is independent of, and dissociated from, guilt. The
error to which harm attached is the district court’s specific and
discrete ruling denying the motion to suppress; Brathwaite’s harm
from that ruling is that he was required to accept the fact that
damning but inadmissible evidence would be introduced against him
if he went to trial. Brathwaite’s substantial right that is
affected by the erroneous ruling is his right to go to trial
16
without tainted evidence being admitted against him, or at least
the right to decide whether to go to trial free of the tainted
evidence. The government offers no evidence that relates to the
harmlessness of this error, but only argues that the weight of the
other evidence against Brathwaite renders harmless the substance
of the evidence of his unwarned statement. This argument is
tantamount to contending that the district court could have
disposed of the motion to suppress by holding that even though the
statement was taken in violation of Miranda, it will be admitted
nevertheless because the other evidence of guilt renders such
tainted evidence harmless, which is obviously senseless reasoning
for denying a motion to suppress. The only winning argument for
the government that denying the motion to suppress is harmless is
that, irrespective of the district court’s ruling, Brathwaite would
have entered the same plea agreement. The government, of course,
makes no such contention in the absence of any evidence to support
such an argument. Thus, because the government concedes (correctly
so) that, absent the public safety exception, the ruling is error
(but harmless), and because we find the error is not harmless, we
are required to reverse.
For the reasons stated herein, we reverse the district court’s
denial of the motion to suppress as to Brathwaite’s statements
regarding the guns, and only as to Brathwaite’s statements
regarding the guns. In reversing the district court on the motion
to suppress, we give Brathwaite the option of withdrawing his
17
guilty plea, as per his plea agreement. The district court’s
rulings on the motion to suppress are AFFIRMED, except as relates
to Brathwaite’s statements regarding the guns, which is REVERSED.
1 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
18