Thursday, June 16, 2016

Third-party doctrine and historical cell-site location information

US v. Graham:  Upon rehearing en banc, the Fourth Circuit revised its earlier position in this case, finding instead that no Fourth Amendment violation occurs when the government obtains historical cell-site location information (CSLI) from a cell phone provider.  Under the Supreme Court’s third-party doctrine, an individual maintains no Fourth Amendment protection over information voluntarily turned over to a third party.  This holding falls in line with all of the sister circuits’ holdings on this issue.

Pertinently, the government conducted no tracking or surveillance here; rather, it obtained the CSLI from the cell phone provider pursuant to a search warrant.  The Fourth Circuit refers to a myriad of federal cases that permit the government to acquire similar third-party records, even when individuals do not “actively choose to share” the information contained in those third-party records.

The Supreme Court, according to the Fourth Circuit, has delineated clearly between contents of communications and the non-content information that enables communications providers to transmit the content, and CSLI “undeniably” belongs in the non-content category of information.

Moreover, the Fourth Circuit notes that Congress could grant individuals greater privacy protection over CSLI, as the legislative branch is “better positioned to respond to changes in technology than are the courts.”

Monday, June 13, 2016

Confidential informant's reliability omitted from search warrant affidavit

US v. Lull:  In this appeal of a felon in possession conviction, the Fourth Circuit considered the denial of a motion to suppress evidence obtained as the result of a search of the defendant’s residence, pursuant to a search warrant.  The application for the warrant, however, omitted material information about the reliability of the confidential informant, including the informant’s arrest on the same day that officers applied for the warrant.  That same day, the police had terminated the informant for lying to them and stealing some buy money used in a controlled buy with the defendant.

Before entering a plea, Lull moved to suppress evidence from his residence pursuant to the search warrant, arguing that the police obtained the warrant in violation of Franks v. Delaware.  From that case comes a two-prong test, both prongs must be proven by a preponderance of the evidence.  One, the defendant must show that an affiant included in the warrant application a false statement, knowing or intentionally or with reckless disregard for the truth; and two, that even without the false statement, the affidavit’s remaining content is insufficient to establish probable cause to search.  The Fourth Circuit has held that the two-prong Franks test applies also when an agent omits relevant facts from an affidavit.

The Fourth Circuit found here that the material about the confidential informant’s lack of reliability and his termination by the police was material, that the informant’s theft of buy money was not “separate” from the controlled buy as the government argued.  Further, the Court found that the investigating affiant omitted the information “at least recklessly,” and not through mere negligence or innocent mistake.  The Fourth Circuit held that the defendant should have won his Franks hearing, and vacated the defendant’s conviction and sentence, remanding for further proceedings.

Security check tips reasonable suspicion analysis against defendant

US v. Foster:  In this appeal from a felon in possession conviction, the Fourth Circuit considered the denial of the defendant’s motion to suppress evidence revealed by a stop-and-frisk in downtown Wheeling, WV.  With facts similar to those of the Massenberg case from 2011, including an unreliable tip, high-crime area, the only person found in an area where a shot was reportedly fired, the individual’s failure to make eye contact, the Fourth Circuit undertook a similar reasonable suspicion analysis.  Where this case diverged from Massenberg, however, arose from a security check the defendant made, and it sufficiently changed the Court’s analysis to find the totality of the circumstances supported the conviction.  The Fourth Circuit affirmed.

Here, when officers approached Foster and asked if he had any weapons, Foster put his right hand in his right front pants pocket, a “security check” referred to as the instinctive movement that suspects purportedly use to ensure their concealed weapon is secure.  Foster complied when police told him to keep his hands out of his pockets; subsequently the officers frisked Foster, patted his right front pocket area that Foster had security checked, and discovered a firearm.  The Fourth Circuit found that the security check “tied all the factors into a coherent whole that justified an investigatory stop.”  It gave the police cause to suspect that Foster had been the source of the reported gunshot here, sufficient to justify a Terry stop and frisk.

Error in jury instructions for bath salts case

US v. McFadden:  On remand from the Supreme Court (opinion here) which had concluded that the jury instructions given at the trial in this case improperly omitted elements relating to the defendant’s state of mind, the Fourth Circuit considered whether the errors in the jury instructions were harmless.  The Fourth Circuit held here that the erroneous jury instructions were harmless error with respect to some of the convictions, but not harmless with respect to certain other counts; the Fourth Circuit affirmed in part, vacated in part, and remanded to the district court for further proceedings.

The Supreme Court clarified the government’s burden of proof to support a conviction for distribution of controlled substance analogues, and instructed that the government must satisfy one of two methods of proof concerning the defendant’s state of mind.  The proof in dispute in this appeal is whether the defendant knew either the legal status of the substance, or the chemical structure and physiological effects of that substance.

At trial, the jury found that McFadden distributed substances that qualified as controlled substance analogues, and that he intended the substances for human consumption.  What the jury was not asked to consider, however, was whether McFadden had knowledge of the legal classification of the substances as controlled substance analogues or anything about the chemical structures and physiological effects of bath salts.

Here, if the jury found that the evidence establishing McFadden’s knowledge on either the legal status or the relevant characteristics of bath salts was overwhelming, it would render an error in the jury instructions harmless.  The Fourth Circuit held that the evidence was sufficient to permit, but not so overwhelming to compel, the jury to find that McFadden knew that bath salts were regulated as controlled substances.  The omission, then, by the district court of the knowledge element from the jury instructions on some of the counts was not harmless.  In contrast, some later telephone conversations demonstrated overwhelmingly that McFadden knew the chemical identities and physiological effects of the bath salts, so the omission of the knowledge element from those counts was harmless.

ACCA enhancement wrongly applied

US v. Gardner:  A confidential informant’s tip to police lead to a traffic stop of Ezekiel Gardner’s vehicle.  A subsequent search of the vehicle yielded a firearm of which the informant had advised police.  At his sentencing for being a felon in possession, the district court determined that Gardner was an armed career criminal, based upon three prior convictions for felony common law robbery in North Carolina.  In this appeal, Gardner challenged the denial of a pre-trial suppression motion, the denial of his motion for a new trial, and the district court’s determination that he was an armed career criminal.  The Fourth Circuit vacated his sentence and remanded on the third issue, finding that the district court erred in sentencing Gardner as an armed career criminal.

North Carolina common law robbery can only qualify as a “violent felony” if it matches the definition of a violent felony under the force clause of ACCA.  The Fourth Circuit found that the NC common law robbery may be committed by the alternate means of violence or fear that do not constitute different elements of distinct crimes, making the crime an indivisible offense (modified categorical approach is thus improper).  Under categorical approach, to match with the force clause of ACCA, it must necessarily have as an element the “use, attempted use, or threatened use of physical force against the person of another,” which means force capable of causing physical pain or injury to another person, not slight offensive touching.  Under NC common law, even de minimus contact can constitute the “violence” necessary for a conviction for common law robbery.  The Fourth Circuit concluded that the minimum contact necessary for a NC common law robbery does not necessarily include the force requirement by the force clause of ACCA, so it does not categorically qualify as a “violent felony” under the ACCA.

Interstate domestic violence conviction creates basis for registration requirement under SORNA

US v. Faulls:  In this appeal, the Fourth Circuit considered whether conviction for the crime of interstate domestic violence required the defendant to register as a sex offender under SORNA.  Appellant Thomas Faulls received several charges stemming from the several attacks he made on his soon-to-be-ex-wife, including kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence.  Faulls appealed the district court’s requirement that he register as a sex offender under SORNA.

Faulls argued that the district court erred plainly in requiring him to register as a sex offender, because interstate domestic violence is not one of the enumerated crimes that qualifies as a sex offense under SORNA.  The Fourth Circuit, however, found that the SORNA also provides other definitions for sex offense, including an offense with an element “involving a sexual act or sexual contact with another.” The government argued that Faulls’ interstate domestic violence conviction satisfied this definition, and the Fourth Circuit agreed, finding further that the offense of interstate domestic violence contained a penalty enhancement for offenders whose qualifying violence conduct constitutes sexual abuse, including aggravated sexual abuse, which the jury found Faulls committed here.

The jury’s finding of aggravation created a statutory question of whether that finding was an “element” of Faulls’ “offense” which implicated the categorical and modified categorical approaches for a determination of what constitutes a sex offense under SORNA.  Ultimately, the Fourth Circuit determined that the offense of interstate domestic violence can create a registration requirement, depending upon which underlying crime of violence the district court relies.

Monday, May 02, 2016

US v. Warner: Warner pleaded guilty to being a felon in possession of a firearm. In the plea agreement, the parties agreed that the 4-level Guideline enhancement for use of a firearm in connection with another felony offense did not apply because the conviction at issue - a North Carolina breaking and entering conviction - was not a felony. However, the agreement also stated that the Government "will inform the Court and the probation office of all face pertinent to the sentencing process and will present any evidence requested by the Court." The PSR recommended that the enhancement applied. Warner objected. The Government, on the other hand, noted the agreement with Warner, but then explained (at some length) how its analysis had changed in light of newer Fourth Circuit case law. Nonetheless, it asked that the district court "honor the agreement of the parties." Warner argued that the Government breeched. The district court disagreed, applied the enhancement, and sentenced Warner to 48 months in prison, just below the bottom of the resulting Guideline range.

The Fourth Circuit vacated Warner's sentence and remanded for resentencing before a different judge. The court concluded that the Government did breech the plea agreement, even though it was acting in good faith. The court distinguished between the Government merely representing its position (which it did) and actually recommending that the enhancement not apply (which is promised to do). The former is a "mere recommendation," advice that the district court was free to reject. The latter would have made the district court more hesitant to apply the enhancement. Furthermore, there was a difference between recommending that the enhancement shouldn't apply versus arguing that it should not apply.

Congrats to the Defender office in the Western District of NC on the win!

No Oral Conditional Plea Without Government Explicit Consent

US v. Fitzgerald: Fitzgerald was charged with various gun and drug offenses and unsuccessfully moved to suppress evidence found as the result of the execution of a search warrant at his home. He rejected a plea offer from the expressed his desire to enter an "open plea." At the plea hearing the district court indicated that, by pleading guilty, Fitzgerald might be unable to raise certain issues on appeal, but said that "you certainly retain your ability to appeal any decision the Court has made with regard to a motion to suppress." The Government didn't say anything about the district court's statement. The district court accepted the guilty plea and sentenced Fitzgerald to 130 moths in prison.

Fitzgerald appealed, challenging the denial of his motion to suppress, but the Fourth Circuit ordered supplemental briefing on the issue of whether he had entered "a valid conditional plea that reserved his right to appeal these issues." Ultimately, the court concluded that he had not. Although Rule 11(a)(2) requires conditional pleas to be in writing, the court noted that it deems that requirement satisfied when "the reservation is so clearly show on the record that there is no doubt that a conditional plea was agreed to." However, the other requirements of the rule - Government consent to the plea and district court approval - are mandatory. At the very least, the court held, the Government consent requirement was not met because the Government never addressed the issue during the plea hearing. The Government's concluding assertion of "that's perfect" to the district court wasn't enough. Because Fitzgerald's plea was not valid, the court vacated the judgment and remanded to the district court for Fitzgerald to decide whether to go to trial or enter a conditional plea.

Burglaries of Homes Next to Each Other on Same Night Separate for ACCA Purposes

US v. Linney: Linney pleaded guilty to being a felon in possession of a firearm. In the PSR, he was designated an Armed Career Criminal based on three prior North Carolina burglary convictions, two of which, Linney argued, occurred on the same occasion. He argued that they took place on the same night and in close proximity. Records produced by the Government showed they took place next door (or across the street) from each other on the same night, one between 8 and 10pm, the other between 7 and 10pm. At the same time Linney pleaded guilty to those two offenses he also pleaded guilty to (among other things) 17 counts of breaking and entering and two attempted breaking and entering counts. The Government argued that the two burglaries involved different victims and locations and were "distinct criminal episodes." The district court agreed and sentenced Linney to 235 months in prison.

On appeal, the Fourth Circuit affirmed Linney's sentence. Linney conceded that the offenses involved separate victims, but argued that they occurred in the same location "because the burglarized houses were only thirty feet apart" and that the objective of the burglaries was the same. The court rejected that argument, finding that separate houses mean separate geographic locations which gave Linney "a sufficient opportunity to evaluate whether to commit another crime." Nor did the Shepard documents in the record show that Linney was acting with an accomplice which would have "complicat[ed] the different occasions analysis."

Prior Record, Other Factors, Justified Extension of Traffic Stop

US v. Palmer: Palmer was pulled over in Virginia because of too darkly tinted windows and the inspection sticker appeared to be fraudulent. Upon approaching the car, the officer noticed several air fresheners in the car, "some hanging in the passenger compartment and others plugged into the air-conditioning vents." The officer retrieved information from a couple of different databases that indicated Palmer was a gang member with a prior criminal record that included drug offenses. The officer radioed for a drug dog, then went to more fully examine the inspection sticker. In leaning into the car to do so (the back of the sticker is the best evidence of fraud, apparently), the officer smelled the odor of marijuana. Although the officer told Palmer he had grounds to search the car, he "wanted to be '110% sure'" and waited for the drug dog, which alerted on the vehicle twice. The eventual search uncovered crack cocaine and a firearm. Palmer is charged with drug and gun offenses, has his motion to suppress denied, and enters a conditional guilty plea.

The Fourth Circuit affirmed the denial of Palmer's motion to suppress. First, it found that the stop itself was lawful, finding no clear error in the officer's conclusion that the window tint was too dark (indeed, measurement after Palmer was arrested showed the officer was right). Second, the court rejected Ring's argument that the officer expanded the scope of the stop before getting to the point where he smelled marijuana (and thus had probable cause to search). With regard to Palmer's argument that Palmer had no basis to "delve into his criminal record" because it was unrelated to the basis for the stop, the court held that to "describe that contention is to discard it" because an officer "is entitled to inquire into a motorist's criminal record after initiating a traffic stop." The information the officer received from the database about Palmer's prior record gave him reasonable suspicion (along with the other facts then known) that criminal activity was afoot. Those factors, in their totality, "eliminated a substantial portion of innocent travelers and demonstrated a connection to possible criminal activity."

Wednesday, April 20, 2016

Court Affirms Convictions Following Stash House Robbery Sting

US v. Hare: This is a case that revolves around a favorite new technique of federal law enforcement (the ATF, in this case), the fake drug stash house sting. In these stings, undercover federal officers find people who are willing to rob a drug stash house and then turn around and arrest them at some point before the actual robbery would have taken place. Of course, there are no drugs, much less an actual stash house. What makes this case a little different is that the three defendants - Hare, Williams, and Edwards - weren't brought into the scheme by law enforcement, but by Bowden, who had been the target of the sting (when the undercover asked Bowden if he'd be interested in a robbery, Bowden replied - repeatedly - "that's what I do!". Hare and the others were eventually convicted of various counts, including a Hobbs Act robbery and conspiracy, and received sentences of 132 (Hare), 150 (Williams), and 240 months (Edwards).

On appeal, Hare and the others challenged the district court's decisions related the sting itself. The Fourth Circuit affirmed their convictions and sentences and found no error in the district court's rulings. First, Hare and the others had demanded discovery of how the ATF determines who to pursue in these sting investigations, in order to determine whether the use of these sting operations was racially motivated. The district court denied the motion, aside from a single page from an ATF manual related to "guidelines for selecting a target." The court affirmed that decision, finding that the defendants didn't meet the high burden necessary to compel discovery when pursuing a selective enforcement argument. Noting that the burden for discovery is almost as high as the burden to prevail on the claim, the court held that the evidence the defendants did have (of 8 similar cases involving 32 defendants in the District of Maryland, all the defendants were African-American) didn't meet that threshold. Second, the court affirmed the district court's decision to deny the defendants' motion to dismiss for egregious Government conduct - the sting operation. The court rejected the arguments that the officers should have investigated the defendants' predisposition to committing such a crime, that the amount of cocaine that was allegedly involved as an "inducement so lucrative as to be unreasonable," and that stash house robbery stings were, per se, objectionable.

Monday, April 18, 2016

No Intent to Kill In Carjacking Case Without Weapon

US v. Bailey: Bailey was the driver of a car that got into a high-speed chase with police. When he wrecked the car, Bailey got out and fled on foot to a nearby parking lot. There, he approached a pickup truck with three people inside while he was "panicked and bloodied." He asked the driver for a ride and offered to pay, but the driver said no. A "flurry of activity" allowed Bailey to get into the back seat. The two passengers got out, but the driver stayed put, at which point Bailey told him to "drive, drive, drive," while placing something "hard and cold" against the driver's neck. The driver never saw a gun and didn't know what Bailey pressed against his neck but was certain Bailey "was about to kill [him]." He jumped from the truck. Bailey got behind the wheel and sped off, eventually to be captured. Bailey was charged with carjacking under 18 USC 2119, convicted by a jury, and sentenced to 105 months in prison.

On appeal the Fourth Circuit unanimously reversed Bailey's conviction. The court concluded that there was insufficient evidence to sustain a conviction for carjacking. Specifically, section 2119 requires an "intent to cause death or serious bodily injury" to sustain a conviction for carjacking. The court rejected the Government's argument that the totality of the evidence - Bailey's reckless driving, his appearance when he approached the truck, and the "hard and cold" object - showed such intent. Even though Bailey conceded that he intended to scare the driver, that isn't enough to meet the 2119 threshold, particularly when no witness saw him with a weapon. Noting that 2119 requires a showing of a certain intent "at the precise moment" Bailey demanded or took control of the truck, the court concluded that the evidence did not show such an intent at that time.

Congrats to the Defender office in the Middle District of North Carolina on the win!

Friday, April 01, 2016

Juvenile prosecutions for murder in aid of racketeering post-Miller unconstitutional

US v. Under Seal:  In this interlocutory appeal, the Fourth Circuit considered whether the government could legally prosecute a juvenile for murder in aid of racketeering, involving events that occurred after the Supreme Court made unconstitutional the only two authorized penalties for that offense, i.e., death or life without parole, for juvenile offenders.  The Fourth Circuit held that such a prosecution cannot constitutionally proceed.

At the district court, the government alleged that the defendant here, when he was a few months shy of turning 18, participated in a gang-related murder.  The government moved to prosecute this juvenile for murder in aid of racketeering pursuant to a delinquency information.  The defendant opposed the government’s motion, based upon recent Supreme Court cases that have drastically altered the legal landscape for juveniles charged with crimes that were penalized by death or mandatory life imprisonment, making such penalties illegal.  Congress, since the advent of these cases, especially Miller v. Alabama, which constitutionally prohibited a mandatory life sentence on a juvenile, has yet to legislatively act in response.  The government appealed here, with proposals for severing or excising the unconstitutional portions of the statute at issue, and leaving the constitutional portions of the statute intact.  

The Fourth Circuit’s analysis here was a case of first impression, as no case had arisen yet where a criminal act charged against a juvenile is alleged to have been committed after Miller was decided.  It discussed how severance is constitutionally okay, if the severed statute can function independently following severance; if not, severance is not viable.  A criminal statute is not operative without articulating a punishment for the proscribed conduct, and the government’s proposed excision here would, in contravention of both due process and severance principles, combine the penalties for two separate, distinct criminal acts, in a manner that would be “nothing less than judicial legislation pure and simple.” Also, the Fourth Circuit notes that looking to legislative intent is pointless when there is no indication what the legislative intent would be under the circumstances, since Congress hasn’t said anything on the subject since Miller was issued (“in light of Roper, Miller, and Montgomery, juvenile sentencing is undergoing substantive changes”).

The Fourth Circuit notes that the government has other options available in its province to pursue against this defendant; however, it cannot prosecute constitutionally a juvenile defendant for murder in aid of racketeering.

Armed bank robbery a crime of violence

US v. McNeal:  In this appeal, two of three co-defendants raised several trial issues (the third co-defendant pleaded guilty), including the sufficiency of the evidence of their brandishing convictions, the adequacy of proof regarding a conspiracy conviction, the denial of a motion to suppress, and other evidentiary rulings.  The main focus of this appeal appears to be the Fourth Circuit’s determination that the federal offense of armed bank robbery is a “crime of violence” in the context of the brandishing offenses.  The Fourth Circuit rejected all of the defendants’ arguments, affirming the convictions here.

The defendants failed to contend that armed bank robbery was not a crime of violence at the district court, rendering their claim on this issue to plain error review.  The defendants faced a five-year mandatory minimum sentence for the carrying a firearm during or in relation to a crime of violence, consecutive to any sentence for the underlying offense.  Here, the brandishing of a firearm during a crime of violence would add two years to the mandatory minimum sentence the defendants faced.  The co-defendants argued that their convictions for brandishing a firearm must be vacated because the statutory language lacked as an element the use, attempted use, or threatened use of physical force.

The government argued that bank robbery, a lesser included offense of armed bank robbery, satisfied the force element because it includes the element that property must be taken “by force and violence, or by intimidation,” and the Fourth Circuit agreed with the government.  The Fourth Circuit cited to its own earlier case and case law from other circuits which held that other federal crimes with language similar to the instant statute have as an element the use, attempted use, or threatened use of physical force, and those are crimes of violence.  The Fourth Circuit reached the same conclusion here, and held that armed bank robbery is a crime of violence.

Adequacy of jury instructions on results from death language

US v. Alvarado:  Alvarado received a conviction for knowingly and intentionally distributing heroin to Eric Thomas in March 2011, which distribution resulted in Thomas’ death.  Alvarado received a mandatory minimum sentence of 20 years.  On appeal, Alvarado contended that the district court  erred in failing to clarify for the jury that the “results-in-death” statutory language meant that the jury could not convict Alvarado of the charged offense if heroin was only a contributing cause of death.  Alvarado also argued that the district court failed to instruct the jury that Alvarado must have “reasonably foreseen” that Thomas’ death could result from the distribution; and, that admitting hearsay testimony violated the rule against hearsay and Alvarado’s rights under the Sixth Amendment’s Confrontation Clause.

At trial, the jury asked the district court twice to clarify the meaning of the “death results from” element of the heroin distribution offense.  The district court declined to elaborate further.  The main question presented in the appeal is whether the district court should have explained further the statutory phrasing “results from.” Alvarado argued that the district court’s decision not to elaborate further (a decision which the defendant concurred at trial, subjecting this claim on appeal to plain error review) allowed the jury to convict Alvarado even if heroin was only a contributing cause of Thomas’ death, a more lenient standard that “but-for” causation, which standard the Supreme Court set out in Burrage.  As the dissenting opinion notes, the jury here unmistakably expressed its confusion as to the causation requirement, despite the district court’s tracking of the statutory language in its instructions.

The Fourth Circuit panel majority concluded, however, that because there was no evidence in the record that Thomas could have died without the heroin, that the jury’s verdict was consistent with the Supreme Court’s but-for causation requirement.

Tuesday, March 01, 2016

Late IPA Filing Not Excused By Good Cause, Manifest Injustice

US v. Cowley: Cowley was found guilty of firearm, drug, and witness possession crimes arising from the 1998 shooting of a drug dealer in West Virginia and was sentenced to 45 years in prison. Among the evidence presented at trial was testimony that Cowley was seen with the same gun the drug dealer's son had identified as the murder weapon (he saw the shooting, but the attackers were masked). Cowley's convictions and sentence were affirmed on direct appeal and during 2255 proceedings, which concluded in 2006. In 2014, Cowley filed a motion seeking DNA testing under the Innocence Protection Act (18 USC 3600), seeking testing of various items from the crime scene including shell casings, clothing, and blood stains. He also provided affidavits from eight witnesses that bolstered the alibi defense he unsuccessfully used at trial and identified four others as responsible for the murder. The district court denied Cowley's motion because it wasn't timely filed.

On appeal, the Fourth Circuit affirmed the denial of Cowley's IPA motion. It did so on the merits, however, rejecting the Government's argument that Cowley was required to get a Certificate of Appealability (as in a 2255 proceeding) before the court had jurisdiction to hear the appeal. On the merits, the court noted that the IPA has ten requirements that must be me to grant a motion, the last of which is that it is "made in a timely fashion, subject to" what the court called "certain rebuttable presumptions." The IPA creates a rebuttable presumption if a motion is filed within either three years of a final conviction or five years of the IPA's enactment in 2004. Cowley's conviction was final before the IPA was passed, so his deadline was October 2009 - five years before he filed his motion. Cowley argued that two of the IPA's exceptions excused his untimely filing - that the he had good cause for the delay and that denying his motion "would result in a manifest injustice." The court concluded that neither exception applied. It rejected Cowley's argument that he had good cause because he had been incarcerated and without counsel for the years between the passage of the IPA and his filing, holding that given the nature of the statute incarceration couldn't be good cause. On the manifest injustice exception the court held that Cowley could have obtained the "new" evidence he presented before trial and that the district court did not abuse its discretion in finding that Cowley failed to show that any injustice would be "unmistakable, clear, plain, or indisputable."