USA v. Sesay, Alhaji, No. 01-3100 (D.C. Cir. 2002)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 12, 2002 Decided December 24, 2002

No. 01-3100

United States of America,

Appellee

v.

Alhaji M. Sesay,

Appellant

Appeal from the United States District

Court for the District of Columbia

(No. 00cr00047-01)

---------

Lisa B. Wright, Assistant Federal Public Defender, argued

the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Neil H. Jaffee, Assistant

Federal Public Defender, entered an appearance.

Mary B. McCord, Assistant United States Attorney, ar-

gued the cause for appellee. With her on the brief were

Roscoe C. Howard, Jr., United States Attorney, and John R.

Fisher, Elizabeth Trosman, and Darrell C. Valdez, Assistant

United States Attorneys.

 Before: Ginsburg, Chief Judge, and Edwards and Garland,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Edwards.

Edwards, Circuit Judge: Appellant Alhaji M. Sesay was

convicted of possession with intent to distribute cocaine base

and possession of a firearm by a convicted felon. Appellant's

main argument on this appeal is that the District Court

deprived him of his rights to confront witnesses and to

present a defense when it excluded evidence that appellant

had a pre-existing civilian complaint against the police officer

who discovered the coat allegedly containing the gun and

drugs that led to appellant's arrest. The District Court's

evidentiary rulings were reasonable when they were issued

before trial, but evidence presented during the trial undercut

the rationale supporting the evidentiary exclusions. Howev-

er, the defense did not raise any new objections, offer any

proffers of evidence, or ask the trial court to allow introduc-

tion of the civilian complaint as substantive evidence. We are

therefore constrained to review appellant's challenges to the

evidentiary exclusions under the "plain error" standard. See

Fed. R. Crim. P. 52(b). Because appellant has not met the

heavy burden of showing plain error, see United States v.

Olano, 507 U.S. 725 (1993), we reject his challenges relating

to the disputed civilian complaint.

Appellant also challenges the District Court's exclusion of a

disputed police report on hearsay grounds. It is clear that

the District Court did not abuse its discretion in excluding the

report. We therefore reject this claim.

I. Background

A. January 9, 2000

The Government and defense present a similar picture of

the events leading to appellant's arrest on January 9, 2000.

The main point of difference between the two sides is whether

the gun and narcotics that the police found in a coat in a car

at the scene of the arrest belonged to appellant, or were the

result of a plant.

 Both sides agree that appellant and his friend, Jerrold

Coates, were on the corner of 10th and M Streets, Northwest,

in Washington, D.C., when Coates was shot in the back in a

drive-by shooting. Ms. D, who lived in an upper-story apart-

ment on that corner, heard the gunshots and looked out her

window. She would later testify that she saw a young man

holding a handgun and standing over what she presumed to

be a victim lying in the street. Ms. D watched as a truck

pulled up and the man with the gun dragged the victim

toward it, put the victim in the front passenger seat, and got

into the back seat himself. The truck then drove away. Ms.

D immediately called 911 to report what she had seen.

While the defense contends that appellant was not in fact

holding a gun, both sides agree that Sesay's friend, Rashawn

Fowler, arrived at the scene of the shooting in a Chevy Tahoe

just as Ms. D described. Both sides also agree that Sesay

helped the injured Coates into the front seat of the Tahoe

before climbing into the back. Fowler then drove them to

the Howard University Hospital, where Coates could receive

the medical attention that he needed.

Several Metropolitan Police Department officers heard the

radio run that there had been a shooting at 10th and M

Streets, and heard that the victim had been picked up in a

blue sport utility vehicle. Expecting that the victim might be

taken to the nearest hospital, Officers Darris Larsen and

Christopher Johnson went to Howard University Hospital.

Once there, they saw a blue Chevy Tahoe parked in front.

Officer Johnson saw the driver, Fowler, get out of the Tahoe

and walk toward the hospital. Fowler was wearing a coat.

Officer Johnson asked Fowler if he had just brought someone

to the hospital who had been shot, and Fowler responded that

he had.

Shortly thereafter, Officer Laurence Heinz and other police

officers arrived at the hospital. Officer Heinz searched the

Chevy Tahoe, beginning with the front seat and moving to the

back seat. Evidence presented by the Government indicates

that when Officer Heinz picked up a coat from the back

passenger seat, a gun fell from it and hit the ground. Officer

Heinz left the gun on the ground until officers from the crime

scene unit arrived.

Heinz's search is the subject of controversy between the

Government and the defense. The defense argues that Offi-

cer Heinz held a grudge against appellant, because appellant

had filed a complaint against him the previous year, after

Officer Heinz arrested Sesay for reckless driving and driving

without a permit. The defense argues that Officer Heinz

thus possessed both the motive and opportunity to plant the

weapon and narcotics. The Government replies, inter alia,

that Officer Heinz did not know to whom the coat belonged

when he searched it, because appellant was still in the

hospital at the time of the search.

Officers Ralph Nitz, John Spencer, and Adrian Lancaster,

from the crime scene unit, came to the hospital to collect and

process the evidence. Officers Nitz and Lancaster recovered

the gun and the coat from which it had fallen. The officers

found 17 zip-locks of crack cocaine inside the outer left breast

pocket of the coat. The coat was a size "large," and had some

small rips and a small hole. Officer Nitz asked Fowler to try

on the coat, which was far too small on him; the 275-pound

Fowler wears a size "XXX."

The crime scene unit officers also seized a coat from the

floor of the trauma room where the victim was being treated.

This coat was a green Eddie Bauer parka with a hole through

the back, and wet blood on the inside around the hole.

After the gun was found, appellant first appeared leaving

the hospital and walking toward the Tahoe, before turning

and walking away from it. Although it was very cold and

everyone else on the scene wore coats, Government witnesses

testified that Sesay was not wearing a coat. Officer Johnson

stopped appellant and asked if he had brought someone to the

hospital. Appellant replied that he had, and that he had

arrived in the Tahoe. He explained that he had been on 10th

Street when a friend was shot. He stated that another friend

passed by in the Tahoe and gave them a ride to the hospital.

 Fowler claimed that he was standing with his hands on the

police car when the police began searching the Tahoe. When

Fowler saw the gun hit the ground, he recalled thinking, "I

don't know where that came from. It ain't my gun." 5/16/00

Tr. 23. Fowler was arrested, but was released after giving a

videotaped statement to the police suggesting that the jacket

in the back seat belonged to Sesay. The police officers

decided that the coat, firearm, and narcotics belonged to

appellant.

B. Procedural History and Evidentiary Rulings

On February 8, 2000, a federal grand jury returned a

three-count indictment charging appellant with one count of

possession with intent to distribute cocaine base in violation

of 21 U.S.C. ss 841(a)(1) and 841(b)(1)(C); one count of

possession of a firearm by a convicted felon, in violation of 18

U.S.C. s 922(g)(1); and one count of possession of a firearm

during a drug trafficking offense, in violation of 18 U.S.C.

s 924(c).

At the pretrial motions hearing on April 11, 2000, defense

counsel sought to question Detective Eduardo Voysest, who

had spoken to witnesses on the night of the offense. The

defense wanted to inquire of Voysest as to whether he knew

about Officer Heinz's previous contact with appellant. The

District Court sustained the Government's objection based on

Officer Heinz's preliminary hearing testimony that he did not

know about the complaint, as well as evidence that appellant

was still inside the hospital when Officer Heinz found the gun,

and evidence that Officer Heinz did not know to whom the

gun or the coat belonged when he found them. Defense

counsel did not seek permission to explore the relationship

between Detective Voysest and Officer Heinz to establish a

foundation for asking Detective Voysest about Sesay's previ-

ous complaint against Heinz.

Subsequently, before the pretrial conference, the Govern-

ment filed a "Motion to Exclude Evidence of Defendant's

Complaint Against Officer." The Government argued that

the evidence was irrelevant because, at the time when Officer

Heinz discovered the gun, he was unaware that the person

who had been in the back seat of the Chevy Tahoe was Sesay.

At the pretrial conference on May 4, 2000, defense counsel

argued that the defense still had not received discovery

regarding the complaint against Officer Heinz, and proffered

that the defense had a witness who could show that Officer

Heinz was lying when he testified at the preliminary hearing

that he did not know that a complaint had been filed against

him. The Government responded that the complaint was not

formal or written but was simply appellant's oral complaint

made at the time of his arrest, which the police department

was investigating.

The District Court addressed the Government's "Motion to

Exclude Evidence of Defendant's Complaint Against Officer"

at the pretrial conference. The court first stated that "there

is absolutely not a shred of evidence anywhere that Officer

H[einz] knew that Mr. Sesay was the person with whom the

coat was associated and consequently with whom the gun was

associated when he arrived on the scene...." 5/4/00 Tr. 47.

However, the District Court recognized that a broader issue

of Officer Heinz's credibility had been raised. The District

Court therefore left open the possibility of the defense revisit-

ing Sesay's complaint against Officer Heinz at some "appro-

priate juncture" during trial:

So what the defense will be entitled to do is, at the

appropriate juncture, to ask the question or to raise

the point about Mr. Sesay having lodged a complaint

against Officer H[einz], and in that regard whether

or not Officer H[einz] spoke truthfully, if it can be

shown that he has said one thing in one instance and

another thing in another instance, and also with

regard to how it may have colored, if at all, the

testimony that he's offered in connection with the

facts of this case.



5/4/00 Tr. 48-49.

During the pretrial conference, defense counsel also briefly

mentioned that, in addition to cross-examining Officer Heinz

regarding his potential bias based on the complaint, he would

like to inquire of the "other officers" about their knowledge of

Officer Heinz's prior contact with appellant. Defense counsel

did not name those "other officers" or provide any basis for

his assertion "that the actions of the officers assisting Officer

H[einz] at the time of Mr. Sesay's arrest, may in fact have

been also impacted upon by the bias of Officer H[einz]."

5/4/00 Tr. 38. The District Court denied this request, be-

cause "[t]here [was] nothing to suggest that anyone else's

thinking has been influenced by the conflict characterized as

existing between Detective H[einz] and Mr. Sesay and any

other officers." 5/4/00 Tr. 49. Following this ruling, defense

counsel did not ask permission to voir dire the "other offi-

cers" outside the jury's presence in order to establish a

foundation for his proposed inquiry.

On May 15, 2000, a jury trial commenced. At trial, the

Government indicated that Officer Heinz would not be called

as a witness. Defense counsel asked that he be made avail-

able for questioning by the defense. The Government object-

ed, arguing that Officer Heinz could not be called by the

defense as a witness solely to be impeached. The trial judge

ruled that the defense could not call Officer Heinz solely to

impeach him, but stated that the defense could call Officer

Heinz after making a proffer of his testimony. The prosecu-

tion subsequently filed a memorandum arguing more fully

that the only direct evidence to be offered by Officer Heinz

would be adverse to the defendant and cumulative of other

testimony, and that appellant should not be permitted to use

impeachment evidence concerning the complaint as a subter-

fuge to get otherwise inadmissible evidence before the jury.

The trial judge then indicated that his ruling had been made,

and noted that both parties had received a transcript of the

original ruling. At the start of the defense case, as the

examination of Officer Heinz began, the District Court "re-

mind[ed] everyone of the limitations that I have placed on

inquiries to be made during the continuation of this trial,

strict limitations." 5/17/00 Tr. 50. The defense's questioning

of Officer Heinz was then relatively limited and it did not

cover Sesay's civilian complaint against Heinz.

On May 18, 2000, after the close of the evidence, the

District Court granted a motion for judgment of acquittal on

count three (possession of a firearm during a drug trafficking

offense). On May 22, 2000, the jury returned guilty verdicts

on the two remaining counts of possession with intent to

distribute crack cocaine and possession of a firearm by a

convicted felon. On September 21, 2000, the trial judge

sentenced appellant to 63 months' imprisonment on each

count, to be served concurrently, a $1,000 fine, a $200 special

assessment, and three years of supervised release. No timely

notice of appeal was filed. However, on August 2, 2001, the

District Court granted appellant's motion to reissue the judg-

ment, and the judgment was reissued and entered on August

7, 2001. A timely notice of appeal was thereafter filed on

August 15, 2001.

II. Analysis

A. Evidence of the Complaint

Appellant first argues that the District Court erred in

depriving him of his rights to confront witnesses and to

present a defense when it excluded evidence that he had a

pre-existing civilian complaint against Heinz. He argues that

the defense should have been permitted to cross-examine the

police witnesses concerning their knowledge of appellant's

complaint against Officer Heinz, and that the defense should

have been allowed to introduce the complaint as substantive

evidence of Officer Heinz's motive to plant contraband in the

coat. Appellant's arguments have some merit. The objec-

tions ultimately fail, however, because appellant has not

shown that the District Court's evidentiary exclusions result-

ed in "plain error."

1. Examination of the Other Officers

When the District Court issued its pretrial rulings, they

had a legitimate basis. There was no indication during any of

the pretrial proceedings that any of the other testifying

officers worked closely with Officer Heinz. Therefore, there

was no proper foundation for the line of inquiry that defense

counsel sought to pursue. However, during trial it became

apparent that the police witnesses who testified against appel-

lant all worked on the same shift with Officer Heinz in the

Third District. Officer Taggart, for example, testified that he

had been working with Officer Heinz on the midnight shift for

three or four years. 5/16/00 Tr. 78. Officer Heinz testified

that he spoke with Officers Larsen and Johnson "every

night." 5/17/00 Tr. 55. This evidence indicated a close

relationship between Officer Heinz and the testifying officers.

Once this became clear, there was good reason to allow

defense counsel to question the witnesses about their knowl-

edge of appellant's complaint against Officer Heinz.

However, the defense did not renew its request to question

the officers to determine whether, in light of the evidence

indicating a close relationship between Heinz and the other

officers, the District Court still meant to prevent defense

counsel from questioning these other officers about their

relationship with Officer Heinz and their knowledge of the

civilian complaint that Sesay had filed against Officer Heinz.

Thus, any error resulting from the exclusion of the evidence

must be reviewed under the "plain error" standard. See Fed.

R. Crim. P. 52(b). See also United States v. Arrington, 2002

U.S. App. LEXIS 22993, at *18 (D.C. Cir. Nov. 5, 2002)

("Because [the defendant] did not object to the court's in-

struction at trial, we review this complaint solely to determine

whether the district court committed plain error."); In re

Sealed Case, 283 F.3d 349, 352 (D.C. Cir. 2002) ("If the

defendant allows an alleged error to pass without objection

... he then assumes the burden of meeting the more exacting

plain error requirement of Rule 52(b)....").

The Supreme Court has articulated the plain error require-

ments of Rule 52(b), as follows:

There must be an "error" that is "plain" and that

"affect[s] substantial rights." Moreover, Rule 52(b)

leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals,

and the court should not exercise that discretion

unless the error "seriously affect[s] the fairness,

integrity or public reputation of judicial proceed-

ings."



Olano, 507 U.S. at 732 (quoting United States v. Young, 470 U.S. 1, 15 (1985)); see also Johnson v. United States, 520 U.S. 461, 466-67 (1997) ("[B]efore an appellate court can correct an

error not raised at trial, there must be (1) error, (2) that is

plain, and (3) that affects substantial rights.") (internal quota-

tions omitted). Olano further explained that, for the plain

error standard to affect substantial rights,

the error must have been prejudicial: It must have

affected the outcome of the district court proceed-

ings.... When the defendant has made a timely

objection to an error and Rule 52(a) applies, a court

of appeals normally engages in a specific analysis of

the district court record - a so-called "harmless

error" inquiry - to determine whether the error was

prejudicial. Rule 52(b) normally requires the same

kind of inquiry, with one important difference: It is

the defendant rather than the Government who

bears the burden of persuasion with respect to prej-

udice. In most cases, a court of appeals cannot

correct the forfeited error unless the defendant

shows that the error was prejudicial.



Olano, 507 U.S. at 734.

On the record in this case, we cannot find "prejudice," nor

can we find that the alleged errors "seriously affect the

fairness, integrity or public reputation of judicial proceed-

ings." We simply cannot say that the alleged error "affected

the outcome of the district court proceedings." Olano, 507 U.S. at 734. Therefore, defendant has not carried the burden

of persuasion necessary to prevail under Rule 52(b).

Furthermore, lest there be any confusion on this point,

defense counsel was not entirely foreclosed from advancing

appellant's defense. For example, counsel could have asked

the officers about the timing of events at the hospital, includ-

ing when they first came to learn that the coat in the car

belonged to appellant. This would have made clear whether

the officers had reason to know that the coat belonged to

Sesay before they searched it, and possibly supported appel-

lant's view that the officers had time and knowledge sufficient

to plant the gun so as to implicate Sesay. Counsel also could

have sought permission to conduct voir dire of the police

witnesses outside the jury's presence, after Officer Taggart

testified that he had worked on the midnight shift with

Officer Heinz for three or four years, or after it became

apparent that the Government was not going to call Officer

Heinz as a witness. We have no way of knowing whether

defense counsel made strategic decisions not to pursue these

lines of inquiry or mistakenly assumed that he could not

renew his request to examine the officers in light of the newly

uncovered facts about Heinz's relationship with the other

officers. In any event, there is no plain error.

2. Substantive Evidence

There may also have been error, albeit not "plain error,"

resulting from the exclusion of appellant's civilian complaint

against Heinz as substantive evidence of bias. There were

grounds for admitting the evidence of the complaint substan-

tively, for it suggested animosity between appellant and

Officer Heinz. This animosity, in turn, might have given

credence to appellant's claim that the police planted the gun

and drugs to implicate him. However, when the District

Court ruled that the defense could not call Officer Heinz

merely to impeach him, appellant never asked to use Officer

Heinz to introduce the complaint as substantive evidence of

bias. Appellant claims that "[i]t was clear to all concerned

below that this was one of the purposes for which defense

counsel wanted to use the complaint," Appellant's Reply Br.

at 9, but the record does not support this assertion. Thus, we

also review the exclusion of the complaint only for plain error.

See Fed. R. Crim. P. 52(b). It is true that the civilian

complaint raises a question of bias, but, following the stan-

dard enunciated in Olano, we cannot find that defendant has

satisfied his burden of proving that the alleged error affected

the outcome of the trial. Therefore, appellant has not satis-

fied his burden of persuasion.

B. Police Report Statements

Appellant also argues that the District Court abused its

discretion in excluding as hearsay a statement from a police

report that witnesses at the scene of the shooting saw the

victim, not appellant, with the gun. The District Court

properly excluded this evidence as hearsay.

 At the pretrial conference, defense counsel complained that

the Government had not provided Brady information that had

been requested regarding the identity of witnesses who had

observed someone other than appellant with a gun. See

Brady v. Maryland, 373 U.S. 83 (1963). The request had

been made on the basis of a police report that had been

provided through discovery, which indicated that witnesses at

the scene of the shooting had observed the gunshot victim

holding a gun during or immediately following the shooting.

The Government's counsel replied that, after speaking to each

individual officer and all of the detectives, reviewing the

paperwork, and speaking with Government witnesses, it ap-

peared that the statement had been only a rumor: No

witness had actually made this claim. The defense counsel

pointed out that the PD 163 written by Officer Heinz identi-

fied Defendant 1 as appellant and Defendant 2 as Coates, and

that it stated that "witnesses at the scene of the shooting

observed Def #2 with a gun in his hand during and/or just

after the shooting." The Government replied that it believed

that Officer Heinz had simply gotten his numbers mixed up.

The District Court denied the defense's request.

At trial, defense counsel attempted to direct Officer Heinz's

attention to the back of the PD 163, where it was written that

"Def #2" had been observed with the gun. The Government

objected on the grounds that this issue was covered by the

District Court's pretrial ruling. When defense counsel

brought up Officer Heinz's preliminary hearing testimony

that he had received information from Detective Voysest that

there was a witness to Coates possessing the firearm, the

Government objected that the information was double hear-

say and, again, that the information had been determined to

be incorrect. The defense counsel replied that he was offer-

ing the statement not to prove its truth, but

based upon the fact that this was the state of the

investigation at the time of the precipitation of this

document. This was the information upon which the

Metropolitan Police Department acted, similar to the



 Government's representations earlier on with re-

spect to the radio run and why individuals go to a

certain scene.



5/17/00 Tr. 60. The District Court sustained the Govern-

ment's objection, and the defense did not call Detective

Voysest.

Appellant now challenges these evidentiary rulings. We

review the District Court's evidentiary rulings for abuse of

discretion, United States v. Warren, 42 F.3d 647, 655 (D.C.

Cir. 1994), and conclude that the District Court did not abuse

its discretion in this case.

The Federal Rules of Evidence provide that "'[h]earsay' is

a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted." Fed. R. Evid. 801(c).

Hearsay is generally inadmissible as evidence. Fed. R. Evid.

802. However, "[a]n out-of court statement that is offered to

show its effect on the hearer's state of mind is not hearsay

under Rule 801(c)." United States v. Thompson, 279 F.3d 1043, 1047 (D.C. Cir. 2002); see also United States v. Wright,

783 F.2d 1091, 1098 (D.C. Cir. 1986).

Appellant contends that the witness statements were not

hearsay because they were offered to show the effect on the

hearer's state of mind. He argues that

it was not the witnesses' statements that were rele-

vant alone, but the disavowal of the statements that

made them relevant by showing that, in the face of

contrary information they had originally considered

reliable enough to act upon, the police took action

harmful to appellant by disavowing the statements

inculpating the co-defendant and dismissing the case

against him.

Appellant's Reply Br. at 14.

We rejected a similar claim in United States v. Evans, 216 F.3d 80 (D.C. Cir. 2000), cert. denied, 531 U.S. 971 (2000).

There, the trial court had permitted the Government to

introduce the testimony of an FBI agent that the FBI "'had

received ... information that [the defendant] was involved in

drug trafficking."' Id. at 85 (quoting agent's testimony;

ellipsis in original). This information had come from a gov-

ernment informant who was not a witness and would not be

available for cross-examination. The Government argued

that the statement was not hearsay because it was not offered

for its truth, but rather to establish why the FBI "did what

they did." Id. The court rejected this contention:

But if [the agent's] testimony about the FBI's "infor-

mation" did not go to the truth of that assertion, to

what did it go? The trial prosecutor said he offered

the testimony to establish "why they did what they

did with George Rose." For testimony to be admis-

sible for any purpose, however, it must be relevant.

See Fed. R. Evid. 402. And to be relevant, it must

have a "tendency to make the existence of [a] fact

that is of consequence to the determination of the

action more probable or less probable than it would

be without the evidence." Fed. R. Evid. 401. How

was "why they did what they did with George Rose"

related to such a fact of consequence?



Id. at 85. The court concluded that

the admission of [the agent's] testimony was error

under the Federal Rules of Evidence: under Rules

801 and 802 because the jury was effectively told

that the testimony could be used for its truth, and

under Rule 403 because the probative value of the

only relevant nonhearsay purpose--general back-

ground--was substantially outweighed by the dan-

ger of unfair prejudice.



Id. at 89. Likewise, in this case, the statement in the PD 163

that "witnesses at the scene of the shooting observed Def #2

with a gun in his hand during and/or just after the shooting"

is not relevant for anything other than its truth. And if it has

any relevance as "background," the probative value was sub-

stantially outweighed by the danger of prejudice.

Appellant argues that the statement at issue here was

offered to show the state of mind of the officers when they

arrested Fowler, Coates, and appellant. The "state of mind"

to which appellant refers is "that the police understood there

to be witnesses who saw the victim with the gun immediately

after the shooting." Appellant's Br. at 32. However, this

"state of mind," if not based on the truth of the statement, is

not relevant to a fact of consequence in the trial. The only

real issue at trial was who possessed the gun and drugs. The

statement in the PD 163 was only relevant to this issue if it

was accurate. If, as the Government asserted, the statement

reflected a mistaken rumor, then it would not have assisted

the jury in determining who possessed the gun and drugs.

To accept appellant's "state of mind" argument would be to

permit a loophole in the hearsay rule large enough to swallow

the rule itself. See Evans, 216 F.3d at 86 ("If we were to

accept the government's rationale here, then explaining why

government agents 'did what they did' through reference to

statements of absent informants would be acceptable in al-

most any case involving an undercover operation, and in

many others as well.").

Appellant also argues that the statement "was critical to

the defense to persuade the jury that the police had lied and

manipulated the evidence in a manner designed to strengthen

the case against appellant." Appellant's Br. at 32. This

argument clearly relies on the truth of the statement. If the

statement was not offered for its truth, it would not "per-

suade the jury that the police had lied and manipulated the

evidence."

III. Conclusion

The judgment of the District Court is hereby affirmed.