Petition — Hendrix v. United States

Supreme Court brief1977

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76°1468 |.~ Fick

No. APR 9° 19ST!

AK, JR., CLERK

pat

in The Supreme Court of The United States

Ap?il Term, 1977

JOHN F. HENDRIX, SR..,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Herman A. Hauslein

Charter Oil Building

110 W. “C’’ Street, Suite 700

San Diego, California 92101

Attorney for Petitioner

SUBJECT INDEX

CITATION TO OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

AND RULES OF COURT INVOLVED

STATEMENT OF THE CASE

STATEMENT OF FACTS

REASONS FOR GRANTING THE

WRIT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX "A” -~-OPINION, NINTH

CIRCUIT COURT OF APPEALS

13-26

CITATIONS

Cases:

Remmer v. United States, 347

U.S. 227 (1954)

United States v. Klee, 494

United States v. McKinney, 429

wF-2a IOIS (5th Cir. 1970)

Statutes:

Title 8, U.S.C. §1324

Title 8, U.S.C. §1324(a) (1)

Title 8, U.S.C. §1324(a) (2)

Title 8, U.S.C. §1324(a) (4)

Title 18, U.S.C. §371

Title 28, U.S.C. §1254(1)

Constitution:

United States Constitution,

Fifth Amendment

United States Constitution,

Sixth Amendment

Rules:

Federal Rules of Criminal Pro-

cedure, Rule 33

ii.

2,10,11

2,9,11

IN THE SUPREME COURT OF THE UNITED STATES

April Term, 1977

No.

JOHN F. HENDRIX, SR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

POR THE NINTH CIRCUIT

JOHN F. HENDRIX, SR., pravs that a

Writ of Certiorari issue to review the

Opinion of the United States Court of

Appeals for the Ninth Circuit entered in

the above case on January 17, 1977.

CITATION TO OPINION BELOW

The Opinion of the Court of Appeals

of January 17, 1977, is not reported at

this date, but is set forth verbatim in

Appendix "A" of this Petition.

JURISDICTION

On January 17, 1977, the Court of

Appeals for the Ninth Circuit entered

judgment affirming the criminal conviction

of Petitioner of one count of conspiracy

to induce, smuggle, and transport aliens,

in violation of 18 U.S.C. §371 and 8 U.S.C.

§1324, and six counts of illegal transpor-

tation of aliens in violation of 8 U.S.C.

§1324(a)(2). The jurisdiction of this

Court is invoked under Title 28, U.S.C.,

§1254(1), and Rules 19(b) and 22(2) of

the Rules Of The Supreme Court.

QUESTIONS PRESENTED

Whether Petitioner's Fifth Amendment

and Sixth Amendment rights were violated

by the refusal of the trial court to con-

duct an investigation and to hold an

evidentiary hearing before denying Pet-

itioner's Motion For New Trial based upon

a pre-existing bias toward conviction of

criminal defendants by one of the jurors

in Petitioner's case.

Resolution of the conflict between

the decision rendered by the Ninth Circuit

in Petitioner's case and the decision ren-

dered by the Fifth Circuit in United States

Vv. Mokaney : 429 F.2d 1019 (1970), with

e decision rendered by this Court in

Remmer v. United States, 347 U.S. 227.

——— ee

CONSTITUTIONAL PROVISIONS AND

RULES OF COURT INVOLVED

Amendment Five of the Constitution

of the United States:

“No person shall be held to answer

for a capital, or otherwise infam-

ous crime, unless on a presentment or

indictment of a Grand Jury, except

in cases arising in the land or

naval forces, or in the Militia,

when in actual service in time of

War or public danger; nor shall

any person be subject for the same

offense to be twice put in jeopardy

of life or limb; nor shall be com-

pelled in any criminal case to be

a witness against himself, nor be

deprived of life, liberty, or prop-

erty without due process of law;

nor shall private property be taken

for public use, without just compen-

sation.

Amendment Six of the Constitution

of the United States:

“In all criminal prosecutions, the

accused shall enjoy the right to

a speedy trial, by an impartial

jury of the State and district

wherein the crime shall have been

committed, which district shall

have been previously ascertained

by law, and to be informed of the

nature and cause of the accusation;

to be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses

in his favor; and to have the

assistance of counsel for his

defense.

Rule 33 of the Federal Rules of

Criminal Procedure--New Trial:

"The court on motion of a defendant

may grant a new trial to him if

required in the interest of justice.

If trial was by the court without

a jury the court on motion of a

defendant for a new trial may vacate

the judgment if entered, take addi-

tional testimony and direct the

entry of a new judgment. A motion

for a new trial based on the ground

of newly discovered evidence may

be made only before or within two

years after final judgment, but if

an appeal is pending the court may

grant the motion only on remand of

the case. A motion for a new

trial based on any other grounds

shall be made within 7 days after

verdict or finding of guilty or

within such further time as the

court may fix during the 7 day

period.”

STATEMENT OF THE CASE

On August 27, 1975, an indictment

was filed in the United States District

Court for the Southern District of

California against the Petitioner, JOHN

F. HENDRIX, SR., and co-defendant, FELIPE

LUIS-JIMENEZ, and others unknown, char-

ging Petitioner with one count of con-

spiring to induce, smuggle, and trans-

port aliens in violation of Title 18,

U.S.C §371 and Title 8, U.S.C. §1324,

four counts of inducing illegal entry

of aliens in violation of Title 8, U.S.C.

§1324(a) (4), four counts of smuggling

aliens in violation of Title 8, U.S.C.

§1324(a) (1), and six counts of transpor-

—

ting aliens in violation of Title 8,

U.S.C. §1324(a) (2).

Pursuant to the indictment of con-

spriing to induce, smuggle, and transport

aliens, in violation of Title 18, U.S.C.

§371 and Title 8, U.S.C. §1324, an overt

act was alleged as follows:

"On or about August 19, 1975,

defendant, JOHN F. HENDRIX, SR.

drove a vehicle in the Southern

District of California."

On November 18 and 19, 1975,

defendant was tried before the Honorable

Leland C. Nielsen and a jury. On Novem-

ber 20, 1975, the jury returned a verdict

in the Petitioner's case of Guilty of

violation of one count of Title 16, U.S.C.

§371 and Title 8, U.S.C. §1324, Not

Guilty of violation of four counts of

Title 8, U.S.C. §1324(a) (4), Not Guilty

of violation of four counts of Title 8,

U.S.C. §1324(a) (1), and Guilty of viola-

tion of six counts of violation of Title

8, U.S.C. §1324(a) (2).

On November 25, 1975, pursuant to

Rule 33 of the Federal Rules of Criminal

Procedure, counsel for Petitioner filed

Notice Of Motion And Motion For New Trial

with supporting Affidavits and Memorandum

Of Points And Authorities on behalf of

the Petitioner, based upon statements

made by one of the jurors indicating a

bias in favor of conviction of defendants

in criminal cases and a dissatisfaction

with the decisions of the Judges of the

United States District Court in criminal

cases. The Government filed no pleadings

of any nature in response to the Motion,

and on December 8, 1975, the Motion was

heard and denied by the Court without

conducting any investigation or eviden-

tiary hearing (R. 127-137). (All page

references designated with an R. are to

the Clerk's Record dated April 30, 1976.)

The matter was referred to the

Probation Department for a pre-sentence

investigation, and on January 5, 1976,

THOMPSON, initiated a conversation with

MRS. HENDRIX and MRS KING, and inquired

if MRS. HENDRIX and MRS.KING were members

of the jury panel. MRS. HENDRIX replied

that she was not a member of the panel,

that her husband was a defendant today.

MRS. KING replied that she was not a

member of the panel, that her son-in-

law was a defendant today. DONNIS J.

THOMPSON then made the following state-

Petitioner was sentenced to pay a fine | ment to MRS. HENDRIX and MRS. KING

of $1,500.00 ($250.00 fine on each count

of violation of Title 8, U.S.C. §1324(a)

(2)) and imposition of sentence was

suspended and the Petitioner was placed

on probation for three years for viola-

"Well, I really shouldn't be

| serving today because my husband

is on vacation, and he asked me

tion of Title 18, U.S.C. §371 and Title to get excused so I can join him,

8, U.S.C. §1324. because I have served on jury duty

several times. But we just had

a case where a police woman was

tried for selling narcotics and

that damn Judge let her go. And

she was absolutely guilty. And

I am here to see that they put

some of these people away. These

Judges are absolutely too lenient

and they are letting too many

people run around.”

Notice of Appeal was timely filed

on January 5, 1976. The Appeal was

argued before the United States Court of

Appeals for the Ninth Circuit and on

January 17, 1977, the Court of Appeals

affirmed the decision of the District

Court. See Appendix "A", infra.

On March 28, 1977, the Court of

Appeals entered its order denying Peti-

tioner's Request For Rehearing and this

Petition follows:

Thereafter, shortly after 9:00 A.M.,

court convened and DONNIS J. THOMPSON

was selected and sworn as one of the

jurors in Mr. Hendrix's case.

STATEMENT OF FACTS

On November 18, 1975, at the con-

clusion of the first day of the trial of

Mr. Hendrix's case, at approximately

4:30 P.M., Mrs. Hendrix and Mrs. King

informed Mr. Hendrix's counsel of the

statements made to them by juror, Donnis

J. Thompson at approximately 9:00 A.M.

that morning.

The Petitioner, JOHN F. HENDRIX, SR.,

appeared for trial on November 18, 1975

accompanied by his wife, COLLEEN JOY '

HENDRIX, and his mother-in-law, GLADYS M. |

KING. At approximately 9:00 A.M., prior

to the commencement of court, one of the

members of the jury panel, DONNIS J. |

On November 19, 1975, prior to the

commencement of the second day of trial,

Mr. Hendrix's counsel informed the court

of the statements made by juror Donnis

J. Thompson to Mrs. Hendrix and Mrs. King

and requested the court to conduct an

investigation to determine if the juror

should be replaced. The court informed

Mr. Hendrix's counsel that there were no

alternates and rejected counsel's request

for the court to conduct an investigation

or to allow Mrs. Hendrix to state for the

record at that time the statements made

to her by the juror and restricted counsel's

request,to have the court determine any

bias or prejudice on the part of the juror,

to the filing of an Affidavit by Mrs.

Hendrix (T. 179-180). (All page refer-

ences designated with a T. are to the

Reporter's Transcript dated November 18, |

1975.)

Thereafter, on November 25, 1975,

the Petitioner timely filed a Notice Of

Motion And Motion For New Trial with

Affidavits of Mrs. Hendrix and Mrs. King

and a Memorandum Of Points And Authori-

ties In Support thereof.

The Government filed no pleadings of

any nature in response to the Motion and

on December 8, 1975, the Motion was heard

and denied by the United States District

Court without an investigation or eviden-

tiary hearing in the mitter

REASONS FOR GRANTING THE WRIT

The decision rendered by the Ninth

Circuit, in its Opinion entered January 17,

1977, is in conflict with the decision

rendered by the United States Court of

Appeals for the Fifth Circuit in United

States v. McKinney, 429 F.2d at 1025-26

(5th Cir. 1970), regarding the duty of

the trial judge to conduct a full investi-

gation to ascertain whether the alleged

jury misconduct actually occurred, and if

it occurred, to determine whether or not

it was prejudicial.

The Ninth Circuit, in its Opinion,

at Footnote 2, sets forth the rules adop-

ted by the Fifth Circuit in United States

v. McKinney, supra as follows:

"When jury misconduct is alleged

in the defendant's notion tar nae

trial, the trial judge has a duty

to take the following actions:

he must conduct a full investigation

to ascertain whether the alleged

jury misconduct actually occurred;

if it occurred, he must determine

whether or not it was prejudicial;

unless he concludes that it was

clearly not prejudicial, he must

grant the motion for new trial;

if he concludes that it did not

occur or that it was clearly not

prejudicial, he must spell out

his findings with adequate speci-

ficity for meaningful appellate

review.

Id. at 1026 (emphasis added) ."

The Ninth Circuit refused to follow

the rules adopted by the Fifth Circuit

regarding the duty of the trial judge to

conduct a full investigation to ascertain

whether the alleged jury misconduct actual-

ly occurred, and if it occurred, whether

or not it was prejudicial. At Footnote

3, the Ninth Circuit states:

"We decline to adopt the McKinney

rules to the extent that they de-

prive the trial court of its

discretion and flexibility to

respond to a broad range of alle-

gations of juror misconduct and

bias. We believe that a trial

court, in responding to such

charges, should be able to

discriminate on the basis of

their content, their source, and

the nature of the alleged mis-

conduct. Indeed, when we recently

reviewed a trial court's response

to allegations of juror misconduct,

we emphasized that not all types of

misconduct carry the same risk of

prejudice to the parties. United

States v. Klee, supra, 494 F.2d at

396."

The failure of the Ninth Circuit to

require any investigation or evidentiary

hearing by the trial court, upon Mr.

Hendrix's Motion For New Trial, is a

denial to Mr. Hendrix of his Constitutional

rights of due process of law and an impar-

tial jury guaranteed by the Fifth and

Sixth Amendments of the Constitution of

the United States.

The decision rendered by the Ninth

Circuit in Mr. Hendrix's case is in con-

flict with the decision of this Court in

Remmer v. United States, 347 U.S. 227

(1954). In Remmer, this Court sets forth

the rule that the trial court should not

decide and take final action ex parte

upon a defendant's motion for new trial

alleging juror misconduct, but should

10.

determine the circumstances in a hearing

with all interested parties permitted to

participate. The failure of the trial

court to conduct any investigation or to

hold an evidentiary hearing was tantamount

to an ex parte determination of Mr.

Hendrix's Motion For New Trial, even

though the Order Denying Motion For New

Trial was made on December 8, 1975 at

a “hearing” on Mr. Hendrix's Motion.

(R. 137)

The brief submitted by Petitioner on

appeal to the Ninth Circuit contains an

exhaustive analysis of the decisions

rendered by the Circuit Courts inter-

preting Remmer v. United States. Addi-

tional legal discussion here is super-

fluous. The conflict between the decision

rendered by the Ninth Circuit in Petition-

er's case, where the trial court conduc-

ted no investigation and permitted no

evidentiary hearing, and the rules

adopted by the Fifth Circuit in McKinney

where it is mandatory upon the trial court

to conduct a full investigation to ascer-

tain whether alleged jury misconduct

occurred, is a denial of the Constitu-

tional rights of due process of law

and to an impartial jury by one Circuit

Court of Appeals and the absolute guar-

antee of those rights by the other Cir-

cuit Court of Appeals.

It is important that this Court

resolve the conflict between the Ninth

Circuit and the Fifth Circuit and the

rules of this Court in Remmer v. United

States and thereby rectify the clear

injustice that has prevented Petitioner

from obtaining his right to a trial

by an impartial jury.

ll.

CONCLUSION

For the foregoing reasons, this

Petition for Writ of Certiorari should

be granted to review the decision of the

United States Court of Appeals for the

Ninth Circuit in this case and to decide f

the questions presented herein.

Respectfully submitted,

Dated: Apr.20,1977 Ypmanl

HERMAN A. HAUSLEIN

Attorney for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that three true

copies of the foregoing Petition were

mailed, postage prepaid, to the Office

of the Solicitor General of the United

States this 2lst day of April, 1977.

Morrnaull Hascrbern

HERMAN A. HAUSLEIN

12.

APPENDIX “A”

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

United States of America,

Plaintiff-Appellee,

vs.

John F. Hendrix, Sr.

Defendant-Appellant.

~—S ~_— ~~ rr IT TOT WM” i Trr hl Trl

NO. 76-1090 OPINION

(January 17, 1977]

Appeal from the United States District

Court

for the Southern District of California

Before: DUNIWAY, CARTER and WALLACE

Circuit Judges

WALLACE, Circuit Judge:

Hendrix appeals his conviction, after

a jury trial, of one count of conspiracy

to induce, smuggle and transport illegal

aliens in violation of 18 U.S. §371 and

8 U.S.C. §1324 and six counts of trans-

portation of illegal aliens in violation

of 8 U.S.C. §1324(a)(2). Hendrix raises

ll alleged errors, the most substantial

of which is that he was denied his Sixth

Amendment right to trial by an impartial

jury because one of the jurors was biased.

We affirm.

13.

Hendrix's two-day trial occurred on

November 18 and 19,, 1975. Prospective

jurors were examined and those chosen

for the panel were sworn during the

morning of November 18. When court

recessed that afternoon, the wife and

mother-in-law of Hendrix informed his

counsel that during the morning, prior

to the selection of the jury, Mrs.

Thompson, who was subsequently chosen

as a juror, allegedly made statements

revealing a bias against and a pre-

disposition to convict criminal defend-

ants. Before the trial recommenced on

the 19th, Hendrix's counsel informed the

court of Mrs. Thompson's alleged bias

and requested an investigation to deter-

mine if she should be removed from the

jury panel. The district judge denied

the request and directed counsel to file

affidavits.

Within a week after the conclusion

of the trial, affidavits of Mrs. Hendrix

and her mother were filed. Both stated

that Mrs. Thompson, on the morning of

November 18, made the following comment:

"Well, I really shouldn't be

serving here today because my

husband is on vacation, and he

asked me to get excused so I

could join him, because I have

served on jury duty several times.

But we just had a case where a

policewoman was tried for sell-

ing narcotics and the damn Judge

let her go. And she was absolu-

tely guilty. And I am here to

see that they put some of these

people away. These Judges are

absolutely too lenient and they

14.

are letting too many people run

around,

Approximately two weeks after the

affidavits were filed, the district court

heard arguments on Hendrix' motion for a

new trial based on the allegations. The

court determined that Mrs. Thompson's

comments were made before she was ques-

tioned under oath as a prospective juror,

during which time she stated “that she

wasn't prejudiced.” The court then

reviewed the affidavits, found them to

contain inadequate grounds for a new

trial and denied Hendrix’ motion.

The facts present two conceptually

distinct issues. First, did the district

judge commit reversible error in the

procedure he followed in responding to

the allegations of juror bias? Second,

as a matter of law, did the court incor-

rectly conclude that any bias, if present,

was nonprejudicial?

It cannot be gainsaid that a fair

system for the administration of justice

must include the guarantee of “an impar-

tial jury” for the criminally accused.

U.S. Const. amend, VI. See generally

She rd v. Maxwell, 384 U.S. 333 (1966);

Irvin v. Dowd, 366 U.S. 717 (1961); Stone

Vv. United States, 113 F.2d 70, 77 (6t

ze. . If only one juror is unduly

biased or prejudiced or improperly influ-

enced, the criminal defendant is denied

his Sixth Amendment right to an impartial

panel. E.g., Tillman v. United States,

406 F.2d 930, 937 (5th Cir.), vacated on

other grounds, 395 U.S. 830 (1969); Stone

15.

v. United States, supra, 113 F.2d at 77.

The trial judge has both a great respon-

sibility and a wide discretion to give

meaning to this guarantee. E.a., Nebraska

Press Ass'n. v. Stuart, U.S. , 44

ee , : om cs (June 30, 1976);

. xwell, supra, 384 U.S. at

JeRes; United States v. Doe, 513 F.2d

709 (lst Cir. 1975); Tillman v. United

States, supra, 406 F.2d at 937; United

States v. ler, 381 F.2d 529, 539 (2a

Cir. 1967), cert denied, 392 U.S. 929

(1968); United States v. Flynn, 216 F.2d

354, 372 (2d. Cir, 195d), cert. denied,

348 U.S. 909 (1955).

An important part of the district

judge's broad discretion centers on his

response to allegations of juror bias or

misconduct. For example, it is within

the trial court's discretion to determine

whether and when to hold an evidentiary

hearing on such allegations. If the judge

orders an investigative hearing, it is

within his discretion to determine its

extent and nature. See United States v.

Doe, supe. 513 F.2d at 712; Tillman v.

Unit tates, supra, 406 F.2d at 938.]/

asi l/ — by the Supreme Court in

e v. Hunter could be read as permittin

a trial judge no discretion in Gheenniaios

how to deal with allegation of juror

misconduct or bias:

And there have been instances where

a trial judge has discovered facts

during a trial which indicated that

one or more members of a jury might

be biased against the gavenaens”

or the defendant. It is settled

that the duty of the judge in this

event is to discharge the jury and

16.

direct a retrial.

Wade v. Hunter, 336 U.S. 684, 689 (1949)

(emphasis added; footnote omitted). Never~

theless, after carefully examining this

case and the development of the law

since it was decided, we are convinced

that the quoted language was not intended

as a limitation on a trial court's broad

discretion to deal with allegations of

jury misconduct.

First, Wade v. Hunter was concerned

with the scope and effect of the Double

Jeopardy Clause, particularly in the

context of a military court-martial.

The quoted language comes in a paragraph

listing the many ways in which a trial

might end prior to a verdict without

constituting former jeopardy. The Court

itself stated the purpose for making that

list:

What has been said is enough to show

that a defendant's valued right to

have his trial completed by a par-

ticular tribunal must in some

instances be subordinated to the

public's interest in fair trials

designed to end in just judgments.

Id. at 689.

The Court then stated that whether

"justice required that a particular

trial be discontinued is a question

that should be decided by persors

conversant with factors relevant to

the determination." Id. This requires

reliance on the trial court's “sound

discretion" and “conscientious exercise

of {its) discretion.” Id. at 690,

quoting United States v. Perez, 22 U.S.

(9 Wheat.) 579 (1824). The case read

in its entirety, therefore, indicates

no intention to limit a trial court's

discretion regarding threatment of alle-

gations of juror bias. On the contrary,

17.

that discretion is reemphasized.

Ban ——s a years since Wade v.

unter was ecided, the discretion of

the trial judge to deal with this kind

of problem has been repeatedly acknow-

ledged. E.g., United States v. Shanane

517 F.2d 1173 (8th Cir.), cert denied,

423 U.S. 893 (1975); United States ve.

Doe, 513 F.2d 709 (lst Cir. 1975);

Tillman v. United States, supra, 406 F.2d

at 937; United States v. Miller, supra

381 F.2d at 539; United States v. Flynn

supra, 216 F.2d at 372; cf. Richardson

vegupited States, 360 F.2d 366 (5th Cir.

As a matter of common sense, a trial }j

in making these decisions will aeoaneaeaie

be directed by the content of the alle-

gations, including the seriousness of

the alleged misconduct or bias, and the

an of the source. See United

ates v. McKinney, 429 F.2d 1019, 103

(Sth Cir. 1970) (Goodbold, J., aseskinal

cert. denied, 401 U.S. 922 (1971) 2,

2/ Although it had previous]

acknowledged the trial ohena*s +,

in dealing with allegation of juror mis-

conduct, see Tillman V. United States,

supra, 406 F.2d 937-38, the Fifth Circuit

in United States v. McKinney, supra, 429

F.2d at 1025-26, imposed rather rigid

rules on the trial court:

(W] hen jury misconduct is alleged

in the defendant's motion for

new trial, the trial judge has a

duty to take the following actions:

he must conduct a full investigation

to ascer cain whether the alleged

jury misconduct actually occurred;

18.

a a ne

if it occurred, he must determine

whether or not it was prejudicial;

unless he concludes that it was

clearly not prejudicial, he must

grant the motion for new trial; if

he concludes that it did not occur

or that it was clearly not preju-

dicial, he must spell out his fin-

dings with adequate specificity

for meaningful appellate review.

Id. at 206 (emphasis added)

Judge Godbold dissented, arguing

that the trial judge should be given

some leeway in responding to allegations

of juror misconduct. Id. at 1031-33.

He objected to binding the trial judge

“to respond in Pavlovian fashion." Id.

at 1031. In particular, he argued that

in determining whether and how to

investigate allegations, the trial judge

should be permitted to discriminate between

allegations on the basis of their source

(whether a “courthouse rumor, a report

from a court official, an affidavit of

a juror, [or] a sworn motion") and their

content. Id. at 1031-32.

Recently, the First Circuit expressly

adopted the McKinney rules, but in doing

so, it emasculated the "full hearing”

requirement by reemphasizing the trial

court's discretion "to determine the

extent and type of investigation.”

United States v. Doe, supra, 513 F.2d

at 7ll-1>. it also softened the "“ade-

quate specific findings" requirement by

stating that:

We would add that our interest is