United States v. Donna Moonda , 347 F. App'x 192 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0666n.06
Case No. 07-4191
FILED
Sep 29, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE NORTHERN
DONNA J. MOONDA, ) DISTRICT OF OHIO
)
Defendant-Appellee. )
)
_______________________________________ )
BEFORE: BATCHELDER, Chief Judge, DAUGHTREY, Circuit Judge; and VAN
TATENHOVE*, District Judge.
ALICE M. BATCHELDER, Chief Judge. For her involvement in the shooting death of
her husband, Donna Moonda (“Donna” or “Moonda”) was convicted by a jury on charges of
interstate stalking resulting in death, and the following capital offenses: murder for hire and two
counts of using a firearm during a crime of violence resulting in death. On appeal, Moonda claims
that there was insufficient evidence to support her convictions and that the district court abused its
discretion in refusing to allow a jury view of the crime scene. Finding no merit in these contentions,
we AFFIRM.
I.
In 2004, Moonda was fired from her job at the University of Pittsburgh Medical Center in
*
The Honorable Gregory F. Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Greenville, Pennsylvania, for stealing prescription painkillers. Moonda was charged with a felony
in connection with the thefts and was placed on probation without a verdict. As part of her probation
requirements, Moonda began attending group therapy sessions at a drug rehabilitation center. There,
she met Damian Bradford (“Bradford”), a small-time drug dealer and fellow therapy-group member.
The two fast became friends and soon developed a sexual relationship. Moonda, who was married
to wealthy urologist Gulam Moonda (“Dr. Moonda” or “Gulam”), began showering Bradford with
gifts: she gave him large amounts of cash, bought a Chevy Trailblazer for him, and paid for him to
move into a new apartment. Moonda also bought Bradford a cell phone and bought a second phone
for herself so that they could communicate by voice calls and text messages.
At some point prior to May 2005, Moonda talked to Bradford about killing her husband. She
told Bradford she wanted to get a divorce and that her husband had “offered her a million dollars to
walk away,” but she refused that offer because “she wanted to get what she deserved, what was owed
to her.”1 Moonda’s initial plan was for Bradford to follow Dr. Moonda to a mosque in Youngstown,
Ohio, where the doctor worshiped every Friday, and to “find a chance to kill him.” Bradford testified
that he “was to receive half of everything she was supposed to get,” which Donna told him would
be anywhere from $3 million to $6 million.
When Bradford could not find an opportunity to shoot Dr. Moonda in the course of his travels
to and from the mosque, Donna assured Bradford “there was another time coming up soon.” Donna
told Bradford that she and Gulam were planning to visit Toledo, Ohio, to look at a house Gulam’s
1
Under the Moondas’ prenuptial agreement, if the couple divorced Donna would receive only $250,000,
half the couple’s cars, half of any jointly held assets acquired after the agreement, and half the contents of the
couple’s home. Under the terms of Dr. Moonda’s will, Donna would receive all the contents of the house, a life
estate in the house, 20% of his gross estate (estimated at $4.1 million at his death); she expected as well $2.4 million
to $2.8 million in distributions outside the will.
2
nephew intended to purchase. The plan was for Bradford to follow the Moondas on their drive into
Ohio; Donna would at some point pull her car onto the shoulder of the road, and this would be
Bradford’s cue to pull in behind, take Gulam’s wallet, and then shoot him. Thus, Bradford’s job was
to make the murder look like “a robbery gone bad.” Donna even asked Bradford to shoot her and
give her a “flesh wound,” but he refused.
Friday, May 13, 2005, was the day of the Moondas’ trip to Toledo. That morning, Donna
called Bradford and arranged to meet him in Moravia, Pennsylvania — halfway between her home
in Hermitage and his home in Aliquippa. There, Donna gave him a computer printout of their
driving route. Bradford returned to his apartment, dressed in all black, and then drove to a store near
the Moondas’ home. While Bradford waited in the store parking lot, Donna sent him two “dummy”
or “signal” text messages stating “I’m getting something to drink before I go” and “You enjoy the
beautiful day. I will text you when I can. I love you.” These messages were intended to alert
Bradford that the Moondas were about to depart. When the Moondas — accompanied in their
vehicle by Dorothy Smouse, Donna’s mother — passed by the parking lot in Gulam’s champagne-
colored Jaguar, Bradford pulled onto the street and followed.
This caravan eventually made its way onto the Ohio Turnpike, where the Moondas and
Bradford pulled into a Portage County service plaza. Ms. Smouse and the Moondas went inside to
use the restroom and purchase food and drinks while Bradford waited outside. Before she entered
the plaza, Donna turned and looked directly at Bradford. As the group got back into their vehicles,
Donna assumed driving duties in their car. Approximately thirty minutes later, Donna pulled onto
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an emergency shoulder or berm area on the right side of the turnpike. Bradford did the same;2 by
the time Bradford had stopped his vehicle and exited, Donna and Gulam had gotten out of their car.
Bradford ordered Dr. Moonda back into the car and demanded his wallet. Donna handed the wallet,
which was in her purse, to Gulam, and after he handed it to Bradford, Bradford shot him once in the
head. Bradford then jumped back into his vehicle and drove away.
Donna and her mother flagged down a passing motorist, who called an emergency number
posted on a nearby sign. Local paramedics and later a life flight helicopter team arrived, but their
efforts to revive Dr. Moonda were unsuccessful, and he was pronounced dead at the scene.
Ohio Highway Patrol Trooper Brian Mercer interviewed Donna at the scene. She explained
that during their stop at the Portage service plaza, Dr. Moonda had opened his wallet to pay for some
water, but had only $50 bills. Donna told Trooper Mercer that they put the wallet away, and Ms.
Smouse paid with a $5 bill. She also said that Ms. Smouse commented about Dr. Moonda’s carrying
so much money in public. Donna told Mercer that her husband did the same thing when he was
buying soup and a sandwich a short while later, and that he ended up paying for those items with a
$50 bill.
Donna further told Trooper Mercer that when she pulled onto the emergency berm, she did
not notice that anyone had pulled in behind her. She claimed that as she and Gulam got out of the
car to switch seats, someone ran up shouting: “Give me your wallet, get in the car[.]” After Gulam
handed the wallet to the man, she heard “a muffled bang.” Donna insisted to Mercer that she could
2
Robert Hudson testified that he was driving on the Turnpike near Exit 161 on May 13, 2005, between 6:37
and 6:40 p.m., when he saw a tan metallic luxury sports car, followed by a second car, simultaneously veering from
the left lane to the center lane, from the center lane to the right lane, and from the right lane onto the emergency
berm. From his rearview mirror, he then saw the luxury car pull to an abrupt stop, followed by an SUV.
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not remember many details about the robber’s appearance; she could say only that the assailant was
short, dressed in all black, had a mean voice, and drove away in a black van. Later that evening,
Donna related essentially the same story to Trooper Darren Huggins.
Investigator Judy Neel of the Ohio Highway Patrol took over the investigation of Dr.
Moonda’s murder. A turnpike ticket found on Dr. Moonda revealed that the Moondas had entered
the turnpike at 5:09 p.m.; turnpike records showed that another driver entered at the same time and
entrance as the Moondas and exited at the closest exit to the murder scene at 6:34 p.m., the time the
Highway Patrol received the emergency call. Neel also obtained surveillance video footage from
the Portage service plaza from that evening; the video showed that Donna actually possessed her
husband’s wallet at all times.
Further investigation of Donna led investigators to Damian Bradford. Pursuant to a search
warrant, they searched Bradford’s apartment on May 20, 2005, and seized two cell phones from him;
the officers then obtained a court order to retrieve the cell tower locations that had been used on May
13, 2005, by Bradford’s and Moonda’s phones. Using this information, investigators were able to
track the movement of their phones throughout that day. The officers determined that during the late
morning and afternoon hours of May 13, Bradford’s and Moonda’s phones traveled towards one
another to share a common tower at a point between their respective homes and then traveled back
to use the towers closest to their homes. Later that afternoon, Bradford’s phone again began using
towers progressively north of his apartment, until it reached a tower in the Hermitage, Pennsylvania,
area, where the Moondas lived. Bradford’s phone was using the Hermitage tower when he received
Donna’s text messages stating that she was “getting something to drink” and that Bradford should
“enjoy the beautiful day.”
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After that, Bradford’s phone made its way into Ohio, where it used the tower closest to the
Portage service plaza at 6:04 p.m, the very time that the Moondas were seen on surveillance video
purchasing drinks and snacks there. At 7:09 p.m., Bradford’s phone used the same tower near the
Portage service plaza. Using time-distance calculations, officers determined that between 6:04 p.m.
and 7:09 p.m., Bradford would have been able to drive from the Portage plaza to the exit nearest the
shooting, and back to the Portage plaza. Subsequent tower information revealed that Bradford’s
phone was traveling east towards Pennsylvania, and then used Pennsylvania towers the rest of that
night. In the months following the murder, private citizens and law enforcement officers discovered
Dr. Moonda’s wallet, business and credit cards, and driver’s license scattered in the median and
along the eastbound lanes of the turnpike.
Although the plan had been for Donna to deny Bradford’s involvement if he got caught, she
refused to testify at his trial. Having lost his “star witness,” Bradford entered into a plea agreement,
which recommended a 210-month sentence in exchange for his truthful testimony against Donna.
Bradford confessed to shooting Dr. Moonda, provided details of the murder plan, and told
investigators where to find the gun. Following Bradford’s information, investigators found a .9
millimeter handgun between mile markers 237 and 238 on the turnpike. The gun had the word
“WITNESS” stamped on the side, as did a gun given to Bradford by a friend in 2004. Although the
gun’s condition had deteriorated due to its prolonged outdoor exposure, testing revealed that the gun
had the same rifling characteristics as the one used to shoot Dr. Moonda.
On August 16, 2006, a federal grand jury indicted Moonda for one count of interstate stalking
resulting in death, in violation of 18 U.S.C. §§ 2261A and 2, and three capital counts: one count of
murder for hire, in violation of 18 U.S.C. § 1958, and two counts of using a firearm during a crime
6
of violence resulting in death, in violation of 18 U.S.C. § 924(j). In early September, the government
filed a notice of intent to seek the death penalty.
Prior to trial, on April 25, 2007, Moonda filed a motion requesting a jury view of the crime
scene. The government opposed the motion, and the district court on May 1, 2007, entered an order
directing the United States Marshal to advise the court whether a jury view could be conducted
safely. After the U.S. Marshal advised the court that a jury view would be “a logistical nightmare”
and would “severely jeopardize the safety and security of a potential jury, court staff, and Deputy US
Marshals,” the court denied the motion on May 7, 2007, finding that available aerial photographs
adequately depicted the scene. On May 18, 2007, Moonda filed a motion to reconsider, arguing that
the jury view could be conducted from an access road running parallel to the turnpike. Moonda
submitted with the motion several photographs and a video of the alternate jury view site. The court
reviewed the photographs and video, and again consulted with the Marshal, who advised that the
“access road” was actually a narrow, gravel path that “would pose a safety hazard to all parties
involved.” Accordingly, the court denied the motion for reconsideration on June 14, 2007.
Testimony began in the guilt phase of the trial on June 18, 2007, and continued through July
5, 2007. On July 6, 2007, the jury convicted Moonda on all counts. At the close of the penalty
phase, on July 18, 2007, the jury determined that Moonda should receive a sentence of life
imprisonment for her murder-for-hire conviction, and that she should receive a sentence less than
death or life imprisonment for her two convictions for using a firearm during a crime of violence
resulting in death. On September 21, 2007, the district court sentenced Moonda to life imprisonment
for the murder-for-hire count and to 360 months’ imprisonment on the remaining three counts, to
run concurrently, followed by five years of supervised release. Moonda filed a premature Notice of
7
Appeal on September 24, 2007, which became valid once the district court issued its judgment on
September 25, 2007.
II.
Moonda presents four arguments on appeal. First, she argues that her murder-for-hire
conviction must fail because there was insufficient evidence to show that she promised Bradford
anything of pecuniary value for killing her husband. Second, she argues that her interstate stalking
conviction cannot stand because there was insufficient evidence to prove her intent to kill, injure,
harass, or intimidate her husband. Third, she contends that her firearm convictions must be
overturned, given that the predicate offenses (murder-for-hire and interstate stalking) are
unsubstantiated. Fourth, she contends that the district court abused its discretion in refusing to allow
a jury view of the crime scene.
A. Was there sufficient evidence to show Moonda promised Bradford anything of
pecuniary value for killing her husband?
“When deciding if a conviction is supported by sufficient evidence, we determine ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” United States v.
Vasquez, 560 F.3d 461, 468-69 (6th Cir. 2009) (quoting United States v. Grubbs, 506 F.3d 434, 438
(6th Cir.2007)) (emphasis in original). “All conflicts in the testimony are resolved in favor of the
government, and every reasonable inference is drawn in its favor.” Id. at 469 (citing United States
v. Bashaw, 982 F.2d 168, 171 (6th Cir.1992)). “In examining claims of insufficient evidence, this
Court does not ‘weigh the evidence presented, consider the credibility of witnesses, or substitute [its]
judgment for that of the jury.’” United States v. Gunter, 551 F.3d 472, 482 (6th Cir. 2009) (quoting
8
United States v. M/G Transp. Servs., Inc., 173 F.3d 584, 589 (6th Cir.1999)).
Moonda insists that there was insufficient evidence to support the consideration element of
her murder-for-hire conviction under 18 U.S.C. § 1958(a), which provides:
Whoever travels in or causes another (including the intended victim) to travel in
interstate or foreign commerce, or uses or causes another (including the intended
victim) to use the mail or any facility of interstate or foreign commerce, with intent
that a murder be committed in violation of the laws of any State or the United States
as consideration for the receipt of, or as consideration for a promise or agreement to
pay, anything of pecuniary value, or who conspires to do so, shall be fined under this
title or imprisoned for not more than ten years, or both; and if personal injury results,
shall be fined under this title or imprisoned for not more than twenty years, or both;
and if death results, shall be punished by death or life imprisonment, or shall be fined
not more than $250,000, or both.
18 U.S.C. § 1958(b) defines “anything of pecuniary value” as “anything of value in the form of
money, a negotiable instrument, a commercial interest, or anything else the primary significance of
which is economic advantage.”
Moonda argues that there was no testimony from which the jury could infer that Moonda
made “a promise or agreement to pay” Bradford for killing Dr. Moonda. This argument ignores
significant portions of the trial transcript. Bradford testified that Donna’s initial plan was for him
to shoot Dr. Moonda during one of the doctor’s weekly visits to his Youngstown mosque. Bradford
explained what was at stake for him:
AUSA: If you had a plan to kill Dr. Moonda, what were you — what was in it for
you?
Bradford: I was to receive half of everything she was supposed to get.
AUSA: And do you know how much that might have been, or did she tell you, I’m
sorry, how much that might have been?
Bradford: I was under the influence of anything from three to $6 million.
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AUSA: And where does that — where did that figure come from?
Bradford: Donna herself.
Bradford testified that when he never found an opportunity to shoot Dr. Moonda on any of those
occasions, Donna assured him that “there was another time coming up soon that she would let me
know about, and this was the Toledo trip.”
Moonda argues that Bradford’s testimony on cross-examination shows that she never
promised him anything for killing her husband:
Defense Counsel: How much money did you get up front for committing this
murder?
Bradford: None.
Defense Counsel: What assurances did you have that she would give you any money
for killing Dr. Moonda?
Bradford: None.
Defense Counsel: Did you have so much control over Donna Moonda that you
thought that if you killed her husband, she would give you half of whatever she
inherited?
Bradford: No.
This exchange does not undercut Bradford’s previous testimony that Moonda promised him half her
share of the estate. That Bradford did not have any “assurances” that Moonda would keep her
promise, and had no “control” over her to force her to keep the promise, does not mean that the
promise was not made. In fact, during recross-examination, defense counsel specifically asked
Bradford to affirm that Donna had made the promise:
Defense Counsel: Wasn’t it, in fact, your story that it was her intention to give you
$3 million?
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Bradford: Yes, sir.
Defense Counsel: In fact, wasn’t it her intention to give you one half of whatever the
estate was, whether it was $6 million or $3 million?
Bradford: Yes, sir.
To the extent there are any conflicts in Bradford’s testimony on this point, we must resolve the
conflict in favor of the government. Vasquez, 560 F.3d at 469. It was the jury’s prerogative to credit
Bradford’s testimony, and his testimony was sufficient to support their conclusion that Moonda
promised or agreed to pay Bradford something of pecuniary value as consideration for his murdering
Dr. Moonda.
B. Was there sufficient evidence to show that Moonda had the intent to kill, injure,
or harass Dr. Moonda?
Moonda argues there was insufficient evidence to support her interstate stalking conviction
under 18 U.S.C. § 2261A because “the trip from Hermitage, Pennsylvania to Toledo, Ohio was made
for purposes wholly unrelated to any alleged harm intended toward the victim in this case.” This
argument is entirely without merit.
18 U.S.C. § 2261A provides:
Whoever — (1) travels in interstate or foreign commerce . . . with the intent to kill,
injure, [or] harass . . . another person, and in the course of, or as a result of, such
travel places that person in reasonable fear of the death of, or serious bodily injury
to, or causes substantial emotional distress to that person . . . shall be punished as
provided in section 2261(b) of this title.
Moonda contends that she lacked the requisite intent because the purpose of the Moondas’ trip to
Toledo was to look at a house that Dr. Moonda’s nephew was planning to purchase. The statute,
however, criminalizes interstate travel with “intent to kill, injure, [or] harass,” not interstate travel
with the sole purpose to kill, injure, or harass. Indeed, in interpreting the similar intent requirement
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in the murder-for-hire statute, 18 U.S.C. § 1958, we have held that “‘[t]he fact that travel is
motivated by two or more purposes, some of which lie outside the ambit of the Travel Act, will not
preclude conviction under the Act if the requisite . . . intent is also present.’” United States v. Degan,
229 F.3d 553, 557 (6th Cir. 2000) (quoting United States v. Gooding, 473 F.2d 425, 428 (5th
Cir.1973)).
Moreover, Moonda’s indictment charges that she “did willfully induce and procure Damian
Bradford to travel in interstate commerce from Pennsylvania to Ohio with the intent to kill, injure,
harass, and intimidate Dr. Gulam Moonda . . . in violation of Title 18, Section 2261A and 2, United
States Code.” In charging Donna Moonda with a violation of 18 U.S.C. § 2, the government charged
her as a principal in this offense on the theory that she “aid[ed], abett[ed], counsel[ed,]
command[ed], induce[d] or procure[d] its commission.” Even if one could plausibly interpret §
2261A as requiring the felonious intent to be the sole purpose of the travel, the evidence amply
demonstrates that Damian Bradford’s only reason for traveling to Ohio was to shoot Dr. Moonda,
at Donna’s direction.
After Bradford was unsuccessful in carrying out Moonda’s and Bradford’s initial plan to kill
the doctor during a trip to his mosque, Moonda informed him “there was another time coming up
soon” and that the Moondas “were supposed to go look at his nephew’s house, and she would let
[Bradford] know” how they could use that opportunity to murder him. On the day of the Toledo trip,
Moonda met Bradford and gave him a map of their planned route. As the Moondas departed for
Toldeo, she sent Bradford two “dummy” text messages to signal that they were leaving. And as
planned, Donna took over the driving and shortly thereafter pulled her car to the side of the turnpike,
giving Bradford the opportunity to rob and shoot Dr. Moonda. While Bradford fled back to
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Pennsylvania, Donna told responding officers the planned “diversion” story — that they should be
looking for a short man in a black van. And, of course, Moonda herself never went to Toledo, but
returned with her family members to her Pennsylvania home late that night. There was more than
enough evidence before the jury to permit them to determine that Moonda instructed Bradford to
travel in interstate commerce with the intent to kill Dr. Moonda, and that Moonda herself embarked
for Toledo to facilitate that killing.
C. Was there sufficient evidence to support Moonda’s convictions for violating 18
U.S.C. § 924(j)?
18 U.S.C. § 924(c)(1)(A) provides:
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime . . . for which the person may be
prosecuted in a court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime—
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less
than 10 years.
18 U.S.C. § 924(j) provides: “A person who, in the course of a violation of subsection (c), causes
the death of a person through the use of a firearm, shall — (1) if the killing is a murder (as defined
in section 1111), be punished by death or by imprisonment for any term of years or for life.”
The government charged Moonda with two counts of violating § 924(j) for using a firearm
during and in relation to crimes of violence (murder-for-hire and interstate stalking) that caused the
death of Dr. Moonda. Moonda argues that because her convictions on these two predicate offenses
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are based on insufficient evidence and must be reversed, her convictions under § 924(j) must be
reversed as well. But contrary to Moonda’s claim, the evidence is entirely sufficient to support the
convictions on both the murder-for-hire and interstate stalking charges. This claim is meritless.
D. Did the district court abuse its discretion in refusing to allow a jury view of the
crime scene?
We review a district court’s evidentiary rulings for abuse of discretion. United States v.
White, 563 F.3d 184, 191 (6th Cir. 2009). In particular, “[a] trial court’s decision to allow or
disallow a jury viewing of an alleged crime scene is highly discretionary.” United States v. Triplett,
195 F.3d 990, 999 (8th Cir. 1999); see also United States v. Passos-Paternina, 918 F.2d 979, 986
(1st Cir. 1990) (“The federal courts recognize their inherent power to permit a jury view of places
or objects outside the courtroom. The decision to permit a view is entrusted to the sound discretion
of the trial court.”).
Moonda contends that the district court abused its discretion in denying her motion for a jury
view of the emergency berm area on the Ohio Turnpike where the shooting occurred. Part of the
government’s trial theory was that Moonda’s claimed inability to identify her husband’s shooter —
the man with whom she had been engaged in a sexual relationship for months prior to the murder
— indicated that she was lying to investigators to cover up the murder conspiracy. Moonda hoped
to convince the jury that the visual and auditory distractions of the turnpike, coupled with the stress
of the robbery, hindered her from identifying the assailant. She therefore wanted the jury to have
a first-hand perception of the environment as it existed at the time of the shooting.
Although the district court initially indicated that it was inclined to grant a jury view, it
ultimately found, based on the U.S. Marshal’s recommendation, that a view was not feasible. The
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Marshal advised that “[e]ven partial lane closures to accommodate this could lead to disastrous
consequences cause[d] by vehicle accidents due to increased congestion and rubbernecking.” “In
addition,” the Marshal noted, “it would be a logistical nightmare to shut down all lanes of the
turnpike for miles prior to the crime scene in an effort to accomplish this task.” The court heeded
the Marshal’s warning and found that Moonda would be able adequately to present her case using
aerial photographs of the scene and the testimony of a scene reconstruction expert. When Moonda
asked for an alternative location on an access road running parallel to the turnpike, the court reached
a similar conclusion, based on the logistical difficulties and safety hazards involved with taking a
group so large down a gravel path and up an embankment, just to look at the scene through a chain-
link fence.
Without question, there would be inherent dangers in conducting a jury view next to a heavily
trafficked turnpike. And, in any event, even if the Marshal, in conjunction with the Ohio Highway
Patrol, could safely close some or all of the turnpike lanes near the scene, the result would be a
decrease in traffic and an environment different from the one at the time of the murder. Conducting
the view from an access road some distance away from the scene of the murder would also have been
of limited help to the jury and would have presented its own dangers. Moreover, Moonda presented
the testimony of her reconstruction expert, who went to the emergency berm area under traffic
conditions similar to those existing at the time of the shooting. He conducted decibel readings and
testified about how loud the road noise was, even with mild to moderate traffic. Finally, the court
reasonably concluded that the aerial photographs of the scene gave the jury an adequate picture of
the surroundings. We find no abuse of discretion here.
III.
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For the foregoing reasons, we AFFIRM the judgment of the district court.
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