Obscene Publications Act 1959

OBSCENE PUBLICATIONS ACT 1959  

1959 CHAPTER 66

 

Royal Assent [29 July 1959]

Obscene Publications Act 1959, Ch. 66, s. 4 (Eng.)

4 Defence of public good

(1) [Subject to subsection (1A) of this section] a person shall not be
convicted of an offence against section two of this Act, and an order
for forfeiture shall not be made under the foregoing section, if it is
proved that publication of the article in question is justified as being
for the public good on the ground that it is in the interests of
science, literature, art or learning, or of other objects of general
concern.

[(1A) Subsection (1) of this section shall not apply where the article
in question is a moving picture film or soundtrack, but--

(a) a person shall not be convicted of an offence against section 2 of
this Act in relation to any such film or soundtrack, and

(b) an order for forfeiture of any such film or soundtrack shall not be
made under section 3 of this Act,

if it is proved that publication of the film or soundtrack is justified
as being for the public good on the ground that it is in the interests
of drama, opera, ballet or any other art, or of literature or learning.]

(2) It is hereby declared that the opinion of experts as to the
literary, artistic, scientific or other merits of an article may be
admitted in any proceedings under this Act either to establish or to
negative the said ground.

[(3) In this section "moving picture soundtrack" means any sound record
designed for playing with a moving picture film, whether incorporated
with the film or not.]

NOTES:

 

Initial Commencement

Specified date

Specified date: 29 August 1959: see s 5(2).

 

Extent

This Act does not extend to Scotland: see s 5(3).

 

Amendment

Sub-s (1): words in square brackets inserted by the Criminal Law Act
1977, s 53(6).

Sub-ss (1A), (3): inserted by the Criminal Law Act 1977, s 53(6), (7).

 

See Further

See further, in relation to the application of this Act to television
and sound programmes: the Broadcasting Act 1990, s 162(2), Sch 15.

R v Gibson

COURT OF APPEAL (CRIMINAL DIVISION)

[2004] EWCA Crim 3275, (Transcript: Smith Bernal)

HEARING-DATES: 8 DECEMBER 2004

8 DECEMBER 2004

CATCHWORDS:

Sentencing - Sentencing procedure - Newton hearing - Fresh evidence on
appeal - Receivability - Criminal Evidence Act 1968, s 23.

Sentencing - Being knowingly concerned in the fraudulent evasion of the
prohibition on the importation of Class A drugs - Custodial sentence -
Duration of custodial sentence not manifestly excessive.

COUNSEL:

A Gifford QC for the Appellant; D Steer QC and D Geey for the Crown

PANEL: KEENE LJ, HODGE J, JUDGE NORMAN JONES QC

JUDGMENTBY-1: KEENE LJ

JUDGMENT-1:

KEENE LJ

(reading the judgment of the court):

[1] On 21 May 1999, in the Crown Court at Manchester before His Honour
Judge Ensor, this appellant was convicted, after a six week trial, of
conspiracy to contravene s 170(2) of the Customs and Excise Management
Act 1979 by the importation of cocaine. He was sentenced on the same day
to 25 years' imprisonment.

[2] On 29 March 2000, after proceedings under the Drug Trafficking Act
1994, a confiscation order was made in the sum of Ј 5,430,671. He was
ordered to pay that sum within 12 months with six years' imprisonment
consecutive in default of payment.

[3] A co-accused, Stephen Halford, was convicted of the same offence and
sentenced to 25 years' imprisonment as well. A confiscation order in the
sum of somewhat over Ј 5.4 million was made in his case. His appeal
against sentence was dismissed by the full court on 16 March 2001.

[4] Another co-accused, Wayne Gibson, the appellant's brother, was
acquitted.

[5] The appellant now appeals against the sentence of imprisonment by
leave of the single judge. He renews his application for leave to appeal
against the confiscation order, leave having been refused by the single
judge. An application for leave to appeal against conviction has been
abandoned.

[6] The facts, as they came out at trial, can be briefly summarised. The
appellant and Halford had formed a company in 1989 called Venuetime
Limited, based in Manchester. Its business included air passengers and
air freight, and Halford himself was a qualified pilot. Halford was the
managing director of the company, but the two men were equal
shareholders and drew the same salary and dividends or bonuses. In 1993
they bought a Cessna aircraft.

[7] On the evening of 27 March 1998, Halford flew the Cessna, with the
appellant as his only passenger, from Dusseldorf to Birmingham Airport.
Its cargo, according to the airway bill, was "exhibition control modules
and equipment". It was consigned by Alan Wentworth from an address in
Dusseldorf to Wentworth Plant and Machinery Sales, Unit 2, Chadwick
Mill, Bolton, Manchester. The cargo manifest described the freight as
two crates of electrical motors and accessories. Both the consignor and
the consignee were in fact fictitious. The suitcases constituting the
cargo contained 50 kilograms of cocaine, equivalent to 34 kilograms at
100% purity. At street prices this would have sold for about Ј 5
million.

[8] Customs officers discovered the cocaine and the two men were
arrested. Unit 2 at Chadwick Mill had ostensibly been rented by a Mr
Wentworth. There was little there except a telephone line, which had
been reconnected at the request of a Mrs Wentworth in October 1996. Both
she and her husband and the address which she gave British Telecom were
fictitious.

[9] There was evidence from the company's computer that there had been
some 37 flights in all from Dusseldorf either to Liverpool or to
Birmingham, in the course of which freight, ostensibly for Wentworth,
was carried. The company's records showed what purported to be copies of
27 invoices issued to it by Wentworth in respect of such carriage.

[10] The Crown alleged that these Wentworth consignments were of drugs
and that the appellant and Halford were party to a conspiracy, with
others unknown, to import drugs between about October 1996 and late
March 1998, a period of some 18 months. There was evidence that on the
final occasion, and on other occasions, the appellant had hired vehicles
in Dusseldorf, as he had done at times in the United Kingdom on arrival.
He always accompanied the cargo to the airport in Germany or arrived
very shortly after it.

[11] The Crown was able to show that, although he had formally declared
his income for the years 1992 to 1996 to be in the range of Ј 23,000 to
Ј 41,000 gross before tax, with Halford declaring the same amount, some
Ј 250,000 had been paid into Venuetime's bank account in cash during
the period of the alleged conspiracy. The appellant also made large cash
purchases, including Ј 73,000 for a Ferrari in 1997, with cash being
taken out of an airline bag, and in that same year paying nearly Ј
59,000 cash for a motor home. In total, he made cash purchases during
the period of conspiracy of around Ј 300,000.

[12] At trial the appellant gave evidence that Wentworth was a genuine
company run by Alan Wentworth; there was nothing suspicious about it. As
to the last flight, he had thought that the suitcases contained
exhibition control modules. He did not know that the consignments
contained drugs, and in all his dealings with Wentworth he had no reason
to suspect anything. He had gone, he said, originally to the unit at
Chadwick Mill in Bolton and met Alan Wentworth there and agreed to carry
air freight for him. He had thought that in each case they were
legitimate, such as the exhibition control modules in the last flight.

[13] Halford gave evidence at trial that he had known nothing about the
drugs. He said that he had merely been the pilot, never dealing with the
consignor and nearly always staying with the aircraft in Dusseldorf. He
too had made large cash purchases.

[14] The jury clearly rejected both his and the appellant's accounts.

[15] In sentencing both men, the judge rejected arguments that they had
been mere couriers; he regarded them both as major players in the
conspiracy in close proximity to the person masterminding it. He
described it as involving massive drugs importations, where those
concerned in the higher echelons, as he put it, of the enterprise must
expect, in a contested case, sentences in the region of 25 years and
upwards. He drew no distinction between the two men.

[16] The main plank of the appellant's appeal against the sentence of 25
years' imprisonment and his renewed application in respect of the
confiscation order has changed since those matters were dealt with by
the single judge in November 1999 and June 2000 respectively. The
original grounds of appeal against the prison sentence ran along
somewhat conventional lines: asserting, for example, that the judge was
wrong to regard the appellant as more than a courier. Those grounds on
which leave was granted are still maintained and we shall come to them
in due course. But at some time in 2001 the appellant changed his
instructions. This seems to have happened early in that year. He then
alleged, as he now alleges, that he had knowingly imported drugs, but
only because he had been threatened by the IRA if he did not do so. He
signed a lengthy witness statement to that effect on 16 August 2002, and
in due course, after a number of changes of counsel, further grounds of
appeal were lodged on 19 October this year. It was made clear in written
submissions lodged with those further grounds that the appellant's new
account could not establish a defence of duress so as to challenge his
conviction as such, but it was said, in essence, that this new account
was highly relevant to any consideration of his role in the conspiracy
and hence to the length of any prison sentence, as well as to the
confiscation order.

[17] It has therefore been submitted that this court should receive
additional evidence under s 23 of the Criminal Appeal Act 1968. The
criteria relevant to the exercise of the court's discretion under that
section are well-known, and the section seems to us to be potentially
applicable in cases of sentence appeals, just as it does on appeals
against conviction.

[18] On the face of it, the appellant's witness statement may be thought
to satisfy paras (b), (c) and (d) of s 23(2) if his account were to be
accepted. The real question mark appeared to this court before we sat to
relate to para (a), namely whether the evidence "appears to the court to
be capable of belief". For this reason, after hearing counsel on the
matter, we decided to allow this evidence to be called on a de bene esse
basis so that its credibility could be tested in open court.

[19] There is some background to this evidence which was covered in the
evidence given at trial. It is not in dispute that the appellant gave
evidence for the prosecution in Germany in 1991 at the trial of IRA
terrorists accused of the murder of a British army warrant officer. He
had happened, by chance, to witness the circumstances of the killing in
Ostend. During that trial he was threatened by a defendant and
subsequently he was regarded as being sufficiently under threat from the
IRA to need official protection at his home in the United Kingdom.
During his own trial there was evidence produced from the Home Office
establishing that he was received extensive protection from September
1991 until May 1994, when it was concluded that the protection was no
longer warranted. So much is not in dispute.

[20] The appellant give evidence before us today. He described how, in
about 1996, he was looking for air cargo customers and was approached by
a man called Alan. He could not remember this man's surname, although he
said that he would have known it at the time. Alan spoke of having a
customer in Amsterdam who wanted about 5 tonnes of cargo per week moved,
and so he, the appellant, went, at Alan's suggestion, to Amsterdam to
meet the clients. There he was taken to a hotel, where he went upstairs
to a suite. The men who had travelled in the car to the hotel with him
had, he said, Irish accents. On entering he was hit on the head and had
tape put around his mouth and a bag placed over his head. He was tied up
and hit a number of times to the head and body. He was told that he
would not leave the room unless he co-operated.

[21] According to the appellant, he was told that the leader of the
group of men was a "main guy who procured drugs in Amsterdam on behalf
of the IRA". Someone else said that they should get rid of him. In the
course of the beating one of his fingers was broken. Subsequently, he
told this court that it was two fingers which had been broken, as is
stated in his witness statement. The men in the room had Irish accents.
He was asked if his company would be able to get goods into the United
Kingdom from the Continent. He said that it would. He was also shown a
polaroid photograph of his young son, taken, he thought, that morning,
and it was made clear that he and his family could not be protected by
the official services. So, he said, he agreed to co-operate because he
was terrified and because he was told that he would be allowed to leave
that hotel room if he were to co-operate. It was, said the appellant,
made clear to him that he would be killed if he went to the police.
Since he was terrified, he did not inform the authorities. Eventually he
was released. Some months later he was contacted and told to do the job,
with a reminder, obliquely, of what would happen if he did not. So he
did that consignment and he did the various other consignments which
followed.

[22] It is unnecessary to go into the detail of the various
consignments. Eventually he was arrested. His evidence before us was
that he said nothing at his trial about the IRA coercion. His evidence
at trial was a lie, but he did not tell the truth because he was scared
of what would happen to him were he to do so. He had, he said, been
attacked twice on remand and he was also concerned for his wife.
However, in 2001 he was looking to appeal against his conviction. His
wife said to him that he had to say what had happened. When he said that
he could not do so because he was in prison, his wife replied that, if
he did not, then she would. As a result of that she sent letters to the
trial judge and to appeal court judges and to MPs.

[23] We also heard evidence from the appellant's wife, Mrs Marion
Gibson. She told us she first heard from him about the IRA involvement
in this smuggling a couple of weeks before he was arrested in March
1998. According to her evidence, he told her that he was forced to do
things by the IRA, who had threatened his family. The threats had taken
place on a business trip to Amsterdam, but she was not reminded of
anything that had happened on that particular trip, and one notes that
she made no mention of her having seen any consequences of him having
been beaten up.

[24] After he had been sentenced, she said that she had told him that he
had to speak up. When he replied that he could not, she had said that
the family would suffer if he was in prison just as much as if he told
the truth. As a result she wrote letters, she said, to judges,
barristers and the MP for their home area of Warrington. A letter which
was sent to me, as the judge who, it was anticipated, would preside over
the appeal at that time in 1991 for this appellant as well as for his
co-appellant, has been produced, that letter having been sent via the
Criminal Appeal Office. It is a lengthy and very detailed letter. Mrs
Gibson was cross-examined about the detail in that letter, which she
explained was information which the appellant had given to her a few
weeks before his arrest. According to her evidence, she remembered the
detail which is contained in that letter in early 2001.

[25] We remind ourselves that that letter, addressed to me, which is of
some three typed pages or more, was apparently drafted in early 2001,
some three years after her husband had allegedly given her these
details. That is frankly incredible and this court cannot accept it.
That letter in early 2001 was clearly drafted by someone at the
appellant's behest at that time. For that reason, if no other, we reject
Mrs Gibson's evidence as not being credible. In any event, it supports
only to a very modest degree the evidence which we have heard from the
appellant himself and to which we now turn.

[26] We have considered the appellant's evidence with care. There are a
large number of obvious problems with it. First of all, there is a
complete lack of any independent supporting evidence or objective
material about the beating which was allegedly received in Amsterdam or
the subsequent more muted coercion. His account is a very vivid one
which he has given in his witness statement and in court, but there is
no medical evidence of any treatment after the alleged beating, even
though he broke at least one finger and apparently two. There has been
no x-ray evidence produced to establish that he has had broken fingers
in the past. We note that even his wife's witness statement signed by
her did not refer to noticing broken fingers, merely a chipped tooth and
grazes, and that was not evidence which she gave on oath before us in
court today. Secondly, there is even a lack of hard detail in his own
account. For example, he cannot name the hotel in Amsterdam where the
beating happened, even though he tells us that he visited that hotel on
a subsequent occasion. So this is a hotel which he visited twice but the
name of which he cannot recall. He can no longer remember, it appears,
the surname of the original contact Alan, although one would have
thought that, having been led into an allegedly terrifying situation by
this man, his name would have been committed to memory. The appellant
said that he had forgotten it by the time of their second meeting, and
yet, of course, this was a man who was acting for a potentially very
important customer. We do not find this aspect of his evidence at all
credible.

[27] According to the appellant, Halford knew nothing about the IRA
involvement in the consignments. He therefore cannot support the
appellant's account given to us today.

[28] All of this means that this new account is crucially dependent on
the appellant's own oral testimony and his credibility, and yet he
concedes, according to his present testimony on oath before us, that he
perjured himself on oath when he gave evidence at trial. The question
inevitably arises: why should he be believed now?

[29] We note that there are inconsistencies and irregularities about his
evidence. Was it two broken fingers which he suffered or the one which
he referred to this morning in his evidence-in-chief? There is a
reference in the detailed account in the letter sent by his wife to a
gun having been placed in his mouth during the beating which he received
in the hotel suite in Amsterdam. He has made no mention of this in his
own evidence this morning. He has talked about going to Chadwick Mill
some months after the original contact to meet the man Alan. According
to his evidence to us, it was the appellant who decided to call him
Wentworth because he drove a Volvo Wentworth car. At his trial the
appellant told the jury that the man had introduced himself as Alan
Wentworth. He was asked in cross-examination today by Mr Steer why he
had not told the jury at trial that it was he, the appellant, who had
chosen to call the man Wentworth because of his car. He was really, in
our judgment, unable to give any tenable explanation for that. He said
that he could not let it come out. Frankly, that makes no sense. He
would have been at no risk in saying that the name Wentworth was one
which he himself attributed to this man because of the car which he had
been driving.

[30] He, in the course of cross-examination, accepted that he had
learnt, as a result of the trial in Germany and the aftermath, of the
considerable lengths to which the British authorities could and would go
to give protection in a case where someone was threatened by the IRA. He
accepted that he regarded it as a high level of protection. Yet it is
implicit in his present account that the IRA chose as a courier this man
who they knew to have been courageous enough to give evidence against
them in Germany and who had then been successfully protected afterwards.
That, in the view of this court, would have been a very peculiar choice
because the IRA would clearly be taking a greater risk than they need
have taken with someone else who might well prove to be much more
malleable than this man, who had apparently shown considerable courage.

[31] We find also his account of why these matters have now seen the
light of day less than convincing. If he was too frightened at trial and
was subsequently beaten up in prison, as his witness statement
indicates, the obvious question is: what has changed? Despite his wife's
letters to this court, there has not been general public disclosure
before this hearing of the IRA involvement. In contrast, this hearing
today is a very public airing of his detailed account of IRA
involvement. Yet he is apparently no longer terrified to give that
account.

[32] We would emphasise that this court will always be extremely
reluctant to accept a wholly new version of events from a defendant who
has given an earlier different version on oath at trial. It will require
convincing evidence to persuade this court to accept the fresh evidence
under s 23 as being credible. We have reached the conclusion, for the
reasons we have indicated, that this appellant's evidence, like that of
his wife, does not appear to us to be capable of belief. That being so,
as we indicated in our earlier ruling, we decline to receive it
formally. The consequence is that that aspect of the grounds of appeal
against sentence and the confiscation order disappear.

[33] We turn therefore to the original grounds of appeal against
sentence.

[34] It is said in the written grounds that the judge failed to take
into account the fact that the appellant had no relevant previous
convictions. That has not been pursued orally this afternoon by Lord
Gifford, and in our view rightly. In drug importation cases, as this
court has said on many occasions, previous good character can have
little effect on the sentence where substantial quantities are involved.
What does matter is the role played by a defendant in the importation
and the quantity involved. The importation in the present case was huge,
even on the final occasion, when the equivalent of 34 kilos of pure
cocaine was found. The amount which must have been imported during the
18 months of this conspiracy, on some 35 flights, must have been truly
enormous.

[35] As for the role played by this appellant, Lord Gifford, on his
behalf, rightly submits that there is a marked difference between the
masterminds of such a conspiracy and those who play a significant
transporting role. It is said in the written submissions on his behalf
that the judge was not entitled to conclude that this man was more than
a courier. It would appear that Lord Gifford would accept that he was a
significant courier, but it is not clear to us what the difference there
is intended to indicate. The same point, in broad terms, was advanced on
behalf of his co-defendant Halford and rejected by this court,
differently constituted. Lord Gifford rightly points out that we are not
bound by that decision. Nonetheless, the reasoning in it seems to us to
be powerful and persuasive. The judge in this case had presided over a
six week trial and had heard this appellant, as well as his
co-defendant, give evidence. No-one was in a better position than he to
determine their respective roles in the conspiracy. On these
consignments these two men, the appellant and Halford, were entrusted
time and again with very large amounts of cocaine, immensely valuable.
The final consignment itself had a street value of close on Ј 5
million, yet it was carried in this aircraft in unlocked suitcases with
no-one supervising the transport apart from the appellant and Halford.
The appellant does not suggest that Halford was more deeply involved in
the conspiracy than he was, and yet they could not both have been mere
couriers. They had regularly worked together in business as equal
partners. Each of them was an equal owner of two other companies, as
well as Venuetime. Given all the evidence, it seems to us that the judge
was entitled to see this appellant, as well as Halford, as being more
than a mere courier, and indeed as being a major player, as the judge
described it.

[36] In those circumstances, we can see nothing manifestly excessive
about the sentence of 25 years' imprisonment. In Latif [1994] 15 Cr App
Rep (S), a sentence of 20 years was upheld by this court for the
importation of 20 kilos of heroin by a defendant seen as a principal
organiser, but that was for a very much smaller amount of a Class A
drug.

[37] We also have regard to this court's decision in Halford, as we are
entitled to. It is contended that the court there was wrong to have
relied in the way it did on the decision in Richardson [1994] 15 Cr App
Rep (S) 876, where a sentence of 25 years was upheld. That was a
conspiracy case involving the importation of 44 kilos of cocaine, a
second importation of 144 kilos of cocaine and an importation of 2
tonnes of cannabis. We do not see those quantities as being
significantly different, for sentencing purposes, from those involved in
this conspiracy. There, in Richardson, the defendant was someone with a
"highly significant role" in the enterprise. The same, in our judgment,
is true of this appellant. He has, of course, no credit for a plea of
guilty. In all those circumstances we can see nothing wrong with the
sentence of 25 years and the appeal against that sentence is
consequently dismissed.

[38] We turn finally to the renewed application for leave in respect of
the confiscation order. That order was made after a separate three day
drug trafficking inquiry. The judge had before him three s 11 statements
plus a prosecution schedule of assets. We say at once that we have
looked at those documents.

[39] The challenge in the original grounds of appeal is to the judge's
conclusion that there were hidden assets not disclosed by the appellant,
which the judge assessed at Ј 5 million. It is right to note that,
before getting to this point, the judge had found the appellant to have
benefited in the terms of the 1994 Act to the tune of about Ј 38
million.

[40] It is now contended that there was no sufficient evidence for the
conclusion that there were hidden assets of the order of Ј 5 million.
In fact, however, Lord Gifford launches his main attack on the
assessment of benefit, saying that there was no evidence for the finding
of the Ј 38 million benefit which the judge concluded was appropriate.
It is contended that the court must look at the actual income received
by the defendant concerned. Here, the judge made a fundamental error in
arriving at the assessment of benefit. So far as assets are concerned,
they should be seen only as the identified ones, but, in any event, if
the Ј 38 million figure of benefit is wrong, then the Ј 5 million
figure in the order cannot be justified.

[41] We are not persuaded by these arguments. So far as the Ј 38
million of benefit is concerned, it is useful to remind oneself of the
exercise that the judge went through in his ruling after this three day
drug trafficking inquiry. After making inferences about the quantity of
drugs which had been imported as a result of these 35 flights,
inferences which seem to us to be entirely justified, he assumed that
each purchase was made from the proceeds of previous drug trafficking.
There is authority for that inference to be drawn where there is not
evidence to the contrary. The judge then assumed that these drugs were
sold on and took account of the sale price of those drugs. Again, there
is clear authority that the sale price is the relevant figure, not the
net profits, and that the judge is entitled in a situation such as this,
unless there is evidence to the contrary, to take the view that the
drugs had been sold on at street value: see the decision in Simons
[1994] 98 Crim App Rep 100. That, in our view, is a legitimate approach.

[42] Consequently, the judge arrived at his benefit figure by adding the
cost of each consignment as purchased in Holland to the wholesale value
in the United Kingdom, but very properly excluding the wholesale value
in the UK in the case of the last consignment, which was seized by the
Customs and Excise. It was on that footing that the judge derived a
joint benefit figure for the appellant together with Halford. From there
he got to the figure of the appellant alone of some Ј 38 million
through a number of limited adjustments, into which it is unnecessary to
go. In our judgment, the exercise which he carried out in assessing the
figure of benefit derived by this appellant was perfectly proper. The
Act is a draconian one, but it is intended to be such.

[43] So far as the assets aspect of the exercise is concerned, it is
well-established that it is for a defendant to satisfy the court that
the amount which might be realised at the time of the order is less than
the value of the proceeds of the drug trafficking. That makes sense, of
course, because it is the defendant who will normally be in the best
position to produce evidence about the extent of his assets.

[44] In the present case the judge found that this appellant had not
disclosed the true extent of his realisable assets. The identifiable
assets were just over Ј 430,000, which, given the appellant's
lifestyle, his large cash purchases and the amount of benefit already
found in drug trafficking, clearly supported the finding that he had not
disclosed them all. Moreover, the judge heard the appellant give
evidence on this topic and he did not believe him. The appellant had
failed to co-operate with the receiver who had been appointed.

[45] In this situation it was clearly for the appellant to satisfy the
judge that his realisable assets were less than the Ј 38 million
benefit. The judge was prepared to accept that they were less, but not
that they were merely the Ј 430,000 which had so far been found. His
reasoning included the overseas involvement of the appellant, his
contacts in Germany, his bank account in Guernsey and his trading
activities in the United States and Canada, all of which rendered it
well within his ability to move money or other assets around, including
overseas. Patently, the Ј 5 million figure was an estimate by the
judge, but it seems to this court that, given the absence of persuasive
evidence by the appellant to discharge the burden which rested upon him,
that estimate was a reasonable one. We see no basis on which this court
would be prepared to interfere with it, nor is there any arguable case
for permission to appeal being granted. In those circumstances, this
renewed application is also dismissed.

DISPOSITION:

Judgment accordingly.