Opposition Brief — Gero v. Pires

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Supreme Court, U.S.

= 2, ©.

C7 DEC 27 1984

No. 84-865

ALEXANDER L. STEVAS

ULCICK

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In The

Supreme Court of the United States

October Term, 1984

ty

AJ

DALE J. GERO,

Plaintiff -Petitioner,

vs.

ANTHONY J. PIRES and CITY OF PITTSFIELD,

Defendants-Respondents.

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Vw

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

a

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Joun F. Rocers*

Leonarp H. Conen

Cars, Hreparp, Myers & Coox

184 North Street

Pittsfield, Massachusetts 01201

(413) 443-4771

Epwarp M. Remy

City Solicitor

Law Department

Pittsfie'd, Massachusctts 01201

(413) 499-9352

Attorn:ys for Respondents

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

BEST AVAILABLE COPY

COUNTERSTATEMENT OF

QUESTIONS PRESENTED FOR REVIEW

1. Whether an arrest warrant which contains the

name of the intended arrestee and an alias but no

physical description is constitutionally defective

and creates in a mistaken arrestee a right to dam-

ages under 42 U.S.C. $1983 even if there were

probable cause, apart from the warrant, to arrest

the mistaken arrestee?

2. Whether the decision below or the record raises

the Question Presented in the Petition ‘‘Should

Baker v. McCollan, which holds that there is no

constitutional violation where an innocent person

mistakenly named in a warrant is arrested, be ex-

tended to a situation where an innocent person not

named in the warrant is arrested?”?

3. Whether a different Fourth Amendment standard

applies in money damage claims under 42 U.S.C.

§1983 than applies in the criminal context?

4. Whether, on the evidence in this case, there was,

as a matter of law probable cause to arrest the

intended arrestee and a reasonably mistaken be-

lief on the part of the arresting officers that the

mistaken arrestee was the intended arrestee?

Whether, on the evidence in this case, supervisory

personnel or the municipal employer could be li-

able for money damages under 42 U.S.C. §1983 on

the basis of the arresting officers’ error in taking

the mistaken arrestee into custody?

o

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TABLE OF CONTENTS

Pages

Counterstatement of Questions Presented for Review

Table of Authorities ..

Counterstatement of the Case

Reasons Why A Writ Should Not Be Granted:

i.

An Arrest Warrant Which Contains the

Names of the Intended Arrestee and an Alias

But No Physical Description is Not Constitu-

tionally Defective And, In Any Event, Creates

No Right to Damages Under 42 U.S.C. $1983

If There is Probable Cause to Arrest Apart

From the Warrant. -:

Neither the Decision Below Nor the Record

Raises the Question Presented in the Petition:

“Should Baker v. McCollan, which holds that

there is no constitutional violation where an

innocent person mistakenly named in a war-

rant is arrested, be extended to a situation

where an innocent person not named in the

warrant is arrested?”

The Same Fourth Amendment Standard Ap-

plies to Money Damage Claims Under $1983

As Applies In the Criminal Context. 0.

On the Evidence In This Case, There Was, As

a Matter of Law, Probable Cause to Arrest

Eric Walters And A Reasonably Mistaken Be-

lief On the Part of the Arresting Officers

That the Petitioner Was Eric Walters. a

On the Facts Of This Case, Neither Supervis-

ory Personnel Nor the Municipal Employer

Could Be Liable On the Basis of Arresting

Officers’ Mistaken Belief That Petitioner Was

Walters.

a a

iii

TABLE ee

Pages

Conclusion 10

Appendix A i App. 1

Appendix B ...... App. 2

Appendix C App. 3

Appendix D App. 5

EN EA AT we App. 8

TABLE OF AUTHORITIES

CasEs

Baker v. McCollan, 443 U.S. 137 (1979) i, 5, 6

Ferganchick v. United States, 374 F. 2d 559 (9th

Cir. 1967) 5

Hill v. California, 401 U.S. 797 (1971) 6, 8,9

Illinois v. Gates, 462 U.S. 213, reh. den — U.S. —,

104 S. Ct. 33 (1983) i 6

Powe v. City of Chicago, 664 F. 2d 639 (7th Cir.

| 1981) 5

1 United States v. Leon, — U.S. —, 104 8. Ct. 3405

| (1984) et 6

United States v. Watson, 423 U.S. 411 (1976) 5

West v. Cabell, 153 U.S. 78 (1894) 4,5

Wong Sun v. United States, 371 U.S. 471 (1963) ......... so) ae

Ru es, Statutes AND CONSTITUTIONAL PROVISIONS

Uo eee, Aeon. TV TT... i, 4, 5, 6, 7

42 U.S.C. § 1983 * i, 5, 6,7

Fed. R. Crim P. 4 4

OE

No. 84-865

fay

Vv

In The

Supreme Court of the United States

October Term, 1984

fy

vs

DALE J. GERO,

Plaintiff -Petitioner,

vs.

ANTHONY J. PIRES and CITY OF PITTSFIELD,

Defendants-Respondents.

Ly

Vv

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIRST CIRCUIT

ty

Vv

The Respondents Anthony J. Pires and City of Pitts-

field respectfully request that this Court deny the petition

for writ of certiorari seeking review of the First Circuit’s

opinion in this case. The opinion is reported at 740 F. 2d

78 (1st Cir. 1984).

co)

COUNTERSTATEMENT OF THE CASE

The facts of the case as set forth in the Petitioner’s

Statement of the Case are erroneous and misleadingly

1

aii

sparse. The statement of facts contained in the opinion

of the First Circuit at 740 F. 2d 78, at pp. 80-83 and in-

cluded in Petitioner’s Appendix A, pp. A-3 through A-9, is

far more complete and accurate. The Respondents refer

the Court to the First Circuit’s recitation of the facts of

this ease and supplement those facts only to the following

extent.

By November 13, 1979, the Pittsfield, Massachusetts,

police were seeking an Eric Walters a/k/a Lee Barrett on

three warrants for assault with intent to murder Gene

Sayers, David Sinopoli and William DeCelles on Novem-

ber 1, 1979, near Danny’s Bar in Pittsfield. By Novem-

ber 13, 1979, the Pittsfield police also had information

that the suspect in the Sayers/Sinopoli/DeCelles incident

was the same individual who had, the month before, beaten

a young woman at Danny’s Bar. (Respondents’ Appendix

A). On October 16, 1979, a Cynthia Phiffer had com-

plained to police that she had had a tooth knocked out at

Danny’s Bar by a man known to her as ‘‘J.D.’’ or “Eric”

and, on October 22, had called the police to further iden-

tify her assailant as ‘‘EKric Walters.” (Petitioner’s Ap-

pendix G, Respondents’ Appendix B) Therefore, con-

trary to Petitioner’s claim (Petition, p. 4), when Ms.

Phiffer ran into the Pittsfield police station on November

13 to report that she had just seen ‘‘J.D.’’—‘‘Erie Wal-

ters” in front of the station house, the Pittsfield police, if

not the actual arresting officers, did have substantial in-

formation that the Sayers/Sinopoli/DeCelles assailant was

the same person as the Phiffer assailant.

Although at the 1983 trial, Ms. Phiffer was tentative

in her identification of the Petitioner Dale Gero, she was

ge gg gg ee

absolutely unequivocal on the day of his arrest in Novem-

ber, 1979. (Respondents’ Appendix C)

Petitioner stresses the disparity between his own fea-

tures on the day of his arrest and some of the descriptions

in some of the witness statements obtained by the police

as of November 13. (Petition, p. 5). The police had de-

scriptions of Walters ranging from a height of 5’11” to

6’2”, a weight of 185 pounds to 220 pounds, an. a beard and

hair color of “blond” to ‘‘blondish brown” to ‘‘blond, red,

brown’’ to ‘‘brown frizzly” (Respondents’ Appendix D).

At the time of his arrest, Petitioner was 5’11”, 165

pounds and had brown hair and beard. Much more sig-

nificantly, Petitioner had a remarkable facial resemblance

(Respondents Appendix KE, Photograph 10) to Walters,

the intended arrestee (Respondent Appendix EK, Photo-

graph 3).!

Both Petitioner and Walters had a substantial con-

nection with Phoenix, Arizona as indicated in the First

Cireuit’s statement of the facts of this case (Pctitioner’s

Appendix A, pp. A-4 through A-9).

The jury below found for the arresting officers on all

claims, including state law claims that the officers ar-

rested Petitioner without probable cause.

ray

Vv

lEven at trial of this matter, when he had every reason to

articulate every difference between the Walters’ photograph

and himself, Petitioner identified only the following differ-

ences: the shape of the hairline, the shape of the beard, V-

shaped scar on forehead of Walters and darkened itront tooth.

(Respondents’ Appendix D)

steel

REASONS WHY A WRIT SHOULD NOT BE GRANTED

1. An Arrest Warrant Which Contains the Name of the

Intended Arrestee and an Alias But No Physical De-

scription is Not Constitutionally Defective And, In Any

Event, Creates No Right to Damages Under 42 U S.C.

§1983 If There Is Probable Cause to Arrest Apart From

the Warrant.

Although not in itself governing of the state arrest

warrant at issue in this case, Federal Rule of Criminal

Procedure 4 provides guidance as to the degree of par-

ticularity required of arrest warrants in order to satisfy

the Fourth Amendment, ‘‘from which the requirements of

the Rules derive.”” Wong Sun v. United States, 371 US.

471, 481 n. 9 (1963). The Rule requires taat an arrest

warrant ‘‘shaii contain the name of the defendant or, if

his name is unknown, any name or description by which he

ean be identified with reasonable certainty.” Fed. R. Crim.

P. 4 (¢e)(1).

The warrant in this case contained the name of the in-

tended defendant—Eriec Walters—and a further name—

Lee Barrett—-which appeared on the Phoenix, Arizona

identification he produced when stopped on an unrelated

matter by Pittsfield police on November 2, 1979 (Peti-

tioner’s Appendix A, p. A-5). The warrant thus met the

standard articulated in West +. Cabell, 153 U.S. 78

(1894), in that it did ‘‘truly name’’ Walters, the intended

arrestee. The warrant provided additional identifying

information in the form of his alias. Although it may well

have been possible, or even prudent, for the Pittsfield

police to have included on the Walters’ warrant every de-

scriptive detail known to them, the Fourth Amendment

does not require such Proustian particularity. Moreover,

oc

the police had a photograph of Walters and, although it

was not physically attached to the warrant, the arresting

officers were fully familiar with it. (Petitioner’s Appen-

dix A, p. A-6) The Petitioner was accidentally arrested

because of his physical similarity to the intended arrestee

and not because his name was the same as the intended ar-

restee, as may have been the case in Powe v. City of Chi-

cago, 664 F. 2d 639 (7th Cir. 1981), or similar to the name

listed on the warrant as in West v. Cabell, 153 U.S. 78

(1894).

Even if the Walters’ warrant were facially invalid, the

arrest itself would not, thereby, be rendered unlawful but

instead must be scrutinized under United States v. Wat-

son, 423 U.S. 411 (1976), as a warrantless, daytime felony

arrest occurring in a public place. Ferganchick v. United

States, 374 F. 2d 559 (9th Cir. 1967). If there were prob-

baie cause to arrest the Petitioner without the warrant,

ther any defects in the warrant are immaterial for Fourth

Amendment purposes and, necessarily, for 42 U.S.C.

§ 1983 purposes.

2. Neither the Decision Below Nor the Record Raises the

Question Presented in the Petition: ‘‘Should Baker v.

McCollan, which holds that there is no constitutional

violation where an innocent person mistakenly named

in a warrant is arrested, be extended to a situation

where an innocent person not named in the warrant is

arrested?”

The Petitioner suggests that the First Cireuit has ex-

tended the holding of Baker v. McCollan, 443 U.S. 137

(1979) to situations in which any individual not named

in an arrest warrant is arrested pursuant to that warrant.

The Petitioner misreads the First Circuit’s opinion.

SE

6

The First Circuit concluded that because the Walters’

warrant was facially valid or, in the alternative, because

the Pittsfield police had probable cause to make a war-

rantless felony arrest of Walters, the only issue was

whether, as a matter of law, the arresting officers were

reasonably mistaken in believing that the Petitioner was

Walters. If the arresting officers were reasonably mis-

taken in their belief that the Petitioner was Walters, then

the Petitioner’s arrest was valid under Hill v. California,

401 US. 797 (1971).

Baker v. McCol'an, 443 U.S. 137 (1979) is significant

to this case primarily for the axiom that “(t]he Constitu-

tion does not guarantee that only the guilty will be ar-

rested.” Nothing in the First Circuit’s opinion or in the

record suggests that that axiom was extended by either the

District Court or the First Circuit.

3. The Same Fourth Amendment Standard Applies to

Money Damage Claims Under (1983 As Applies in the

Criminal Context.

In assailing the First’ Cireuit for concluding that

**[t}he decisive question is whether, if Walters had been

arrested, he could have challenged the warrant,” the Peti-

tioner argues that a dif’erent and more stringent Fourth

Amendment governs civil damage claims under § 1983

than controls cases in the criminal context.

The Petitioner asserts that United States v. Leon, 104

S. Ct. 3405 (1984) and J/lilinois v. Gates, 103 8. Ct.

2317 (1983), by altering the exclusionary rule sanction

for Fourth Amendment violations in the criminal law

setting, have also reduced the evidentiary threshhold

necessary for recovery of damages pursuant to 42 U.S.C.

§ 1983. Whatever merit there may be in the Petitioner's —

7

claim that 4 1983 damage awards should be encouraged by

this Court, the statute nevertheless requires a ‘‘depriva-

tion of . .. rights, privileges or immunities secured by the

Constitution and laws” before liability may attach. The

‘*deprivation” alleged in this case is the claimed depriva-

tion of the Petitioner’s right to be secure against unrea-

sonable searches and seizures, as provided in the Fourth

Amendment. A vast body of law, primarily in the crim-

inal context, defines the contours of the Fourth Amend-

ment right which is the same right whether the claimant is

a presumptively innocent criminal defendant or a pur-

portedly innocent civil plaintiff. Contrary to the Peti-

tioner’s assertion, there is no ‘‘essential distinction be-

tween the [Fourth Amendment] rights of the actual sus-

pect raised in a criminal context, [and] the [Fourth

Amendment) rights of an innocent person arrested on a

warrant naming someone else raised in a civil context.’

(Petition, p. 10)

4. On the Evidence In This Case, There Was, As A Mat-

ter of Law, Probable Cause to Arrest Eric Walters And

A Reasonably Mistaken Belief On the Part of the Ar-

resting Officers That the Petitioner Was Eric Walters.

The First Circuit properly concluded that the arrest

of the Petitioner was constitutionally valid. The Peti-

tioner has never seriously disputed that there was prob-

able cause to arrest Eric Walters for the assault with in-

tent to murder Sayers, Sinopoli and DeCelles. Accord-

ingly, Petitioner's argument about the invalidity of the

warrant iptereely academic.

The ultimate issue is whether the arresting officers,

as a matter of law, reasonably mistook the petitioner for

Eric Walters, because ‘‘ ‘{w]hen the police have probable

8

cause to arrest one party, and when they reasonably mis-

take a second party for the first party, then the arrest of

the second party is a valid arrest.’”’ Hill v. California,

401 U.S. 797, 802 (1971). The jury found for the arresting

officers on all counts, including the state law claims that

the petitioner was arrested and held without probable

cause.

By means of radical editorial surgery, the Petitioner

has the First Circuit concluding that ‘‘ ‘the cause of Mr.

Gero’s arrest... was Phiffer’s assertion that she had just

seen Walters driving a blue pickup truck.’” (Petition, p.

16) The Court of Appeals said no such thing. The First

Circuit actually said,

‘*... even if the warrant were invalid, it was not the

cause of Gero’s arrest. The arrest was precipitated

by Phiffer’s assertion that she had just seen Wal-

ters driving a blue pickup truck .. . And when the

truck was stopped, Phiffer’s identification was con-

firmed by the remarkable facial resemblance of Gero

to the photo that the police had of Walters.” (Peti-

tioner’s Appendix A, p. A-11-12) (emphasis added)

Although the First Cireuit did not repeat the fact at this

point of its opinion, the identification by Phiffer and the

photographic similarity was further corroborated by the

Petitioner's coincidental Phoenix identification and his

reluctance to actively protest his arrest.

Subsequent to the Petitioner’s arrest, eyewitnesses to

Walter’s crimes and at least one close friend of Walters

identified the petitioner as Walters in a photo array

which included photos of both the Petitoner and Walters.

Although such subsequent erroneous identification did not

contribute to the mistaken arrest of the Petitioner, it does

9

suggest that the mistake by the arresting officers was,

indeed, reasonable.

5. On the Facts of This Case, Neither Supervisory Per-

sonnel Nor the Municipal Employer Could Be Liable

On the Basis of Arresting Officers’ Mistaken Belief

That Petitioner Was Walters.

The Petitioner has not disputed that the Pittsfield

police had probable cause to arrest Eric Walters for the

Sayers/Sinopoli/DeCelles felony assault. The issue of

liability turns, therefore, on whether the arresting officers

were reasonably mistaken, under Hill v. California, 401

U.S. 797 (1971), that the Petitioner was Walters. The sole

participants in the effort to follow Ms. Phiffer’s lead, pur-

sue the blue pickup truck, investigate and ultimately arrest

its operator «cre the arresting officers Henault and Sher-

wan, both of whom the jury found to be without liability

for the Petitioner’s arrest.

There was no evidence introduced that any deficiency

in employment, training or supervision led to the field

mistake that the Petitioner was Walters. There was no

evidence that the acting police chief, Respondent Pires,

or the municipal employer, Respondent City of Pittsfield,

in any way contributed to the field error leading to the

Petitioner’s arrest. Moreover, the officers who committed

the error, Henault and Sherman, were exonerated from

liability by the jury. Without any evidentiary basis for

liability, the Respondents would be entitled to judgment

aus a matter of law.

10

CONCLUSION

For all the foregoing reasons, the Respondents re-

spectfully request this Court to deny Petitioner’s demand

for a writ of certiorari to the United States Court of Ap-

peals for the First Circuit.

DATED: December 26, 1984

“Counsel of Record

Respectfully submitted,

Joun F’, Rocers*”

Leonarp H. Conen

Cars, Hipparp, Myers & Coox

184 North Street

Pittsfield, Massachusetts 01201

(413) 443-4771

Epwarp M. Reitty

City Solicitor

Law Department

Pittsfield, Massachusetts 01201

(413) 499-9352

App. 1

APPENDIX A

PLAINTIFF’S EXHIBIT NO. 27

REPORT TO CHIEF

Date: November 4, 1979 Subject: Incident

involving Gene Sayers

Chief :

On the above date while talking to Thomas Fisk of

Winter Street, a cab driver for the Yellow Cab, he

stated he was a witness to the whole incident. I asked

him what happened and he said he was driving his cab

down by Ricos when he saw a fight. He said David Sinop-

oli was on top of this guy when J.D. who he knows from

Danny’s jumped out of his blue van and started hitting

Sinopoli with a club and then started smashing on the

front window of a pickup. The pickup then smashed into

the van and took off. Mr. Fisk followed J.D. but he

stopped on Spring St. He stated he knows who J.D. is

from Danny’s, he was there when J.D. beat up some girl,

(Cindy Phiffer incident). He was supposed to come to

the station at 7:00 A.M. this morning but must of had to

work late.

Respectfully submitted by

Off. Robert J. Smith (L 8).

App. 2

APPENDIX B

PLAINTIFF’S EXHIBIT NO. 9

10/22/79

D/M

Cynthia Phiffer called and stated that she had found

out who the guy was that hit her on October 16, 1979.

She stated that the guys name was Eric Walters

and that he is suppose to be living with a girl by the

name of ‘‘Pat” who is a Warlock on Brown Street.

We told Off. Marby to look for the yellow van with

N.Y. tags and if seen to leave a report on where and the

reg. # of the vehicle.

N/M

10/29/79

Check to be made to see if he or someone with that

name is a Parolee, Parole Officers (Wayne Boyce)

Probation called ]

d/e for et ] Neg.

433-9014

Related to Bill Ryan, said he will talk to Boyce at

this time its only Walters, will call if anything different.

App. 3

APPENDIX C

PLAINTIFF’S EXHIBIT NO. 34

Where Taken By Whom Date & Time Taken

Pittsfield Police Dept. Det. Sherman 11/13/79-3:55 P.M.

I, Cynthia A. Phiffer am 20 years of age, born on

November 14, 1958, my address is 50 Spring Street, Pitts-

field, my tel. no. is 3-4863, my occupation is unemployed

and degree of education is 9th grade.

I make the following statement freely and voluntarily

to Det. Henault, Sherman of the Pittsfield Police Depart-

ment after having been told that I do not have to make

any statement and that anything I say may be ased against

me.

Tuesday, November 13, 1979, as a result of knowing

a man named J.D. and Erick Walters and knowing that the

Pittsfield Police were looking for him and knowing him

to be the same person that knocked my teeth out I was by

the Pittsfield Police Department and I saw him driving a

blue pick up truck. I went into the Pittsfield Police De-

partment and to!d che detectives what I had seen and the

kind of truck he was driving. The detectives had me go

with them and we checked all the places he is known

to go to and while were were going up First Street, I

saw the truck coming out of the parking lot. The only

App. 4

difference with the truck when I saw it on First Street

from when I saw it by the Police Station was that it had

wooden boards up the sides of the back but the driver

was J.D. The detectives followed the truck up First

Street and the truck had to stop behind traffic and the

detectives got out and went to the truck and had J.D. get

out. This man who they toc! out of the truck was J.D. or

Erick Walters and it was the same man who knocked my

teeth out and who the police have a warrant for his arrest.

I never saw the truck before today. I was afraid he would

see me because he is supposed to carry guns on him so I

got down in the back seat of the detectives car and don’t

know what they did with him after they took him out of

the truck.

Time Signed: 4:10 P.M.

App. 5

APPENDIX D

EXCERPTS OF TRIAL TRANSCRIPT

Gero v. Henault, et al., August 1983 (D. Mass 1983)

Testimony of Anthony J. Pires

Q. [By Mr. Dibble] Physical description, height,

weight, hair color, things identifying characteristics, what

information did you have on October 17th with regard to

the description of the person J.D., Eric Walters?

A. On the [Phiffer] assault and battery report left

by Officer Finn?

Q. That’s right.

A. It states that he is six-foot-two, two hundred

pounds, shoulder-length blond hair, possible beard and

mustache, sears on left forearm.

A. Yes.

Tr. at 513

Q. [By Mr. Dibble] Was there a description [ Exhibit

14] given of this J.D. Dean from Lanesboro, Mass.?

A. They further described the person about six-foot-

two, two hundred and twenty pounds, long blond hair,

beard and mustache.

Q. Anything else?

A. Also that the person has slash marks on his arm.

Q. Slash marks on his arms?

A

Yes, sir.

Tr. at 552

App. 6

A. [Exhibit 15] is a report from Officer Dermot

Sporbert to the Detective Bureau with reference to the in-

cidents and the assault on November 2nd, 1979.

Q. [By Mr. Dibble] What does the officer put in this

report—what did he say, what was his report?

A. Barrett was described by the officer as a white

male, six-foot-two, a hundred and eighty-five to a hundred

and ninety pounds, medium build, beard and brown frizzy

hair,

Tr. at 553

Q. [By Mr. Dibble] Was there any description given

by Mr. DeCelles in his statement with particular reference

to the lower part of the first page of Plaintiff’s Exhibit

#16, is there a description of this fellow involved in the

assault, the sentence that says ‘‘this guy with the club’’?

A. Yes, sir.

Q. What does it say?

A. This guy with the club was medium build, was

wearing a flannel shirt. He had a beard and long hair. I

think his hair was blond or a light red or brown.

Tr. at 559

Q. [By Mr. Dibble] Now, what was Sayers descrip-

tion of the [563] driver of the blue van, looking at the

middle of that [564] first paragraph?

A. The driver hopped out, a white male, mustache,

about five-foot-eleven, blondish-brown hair, shoulder

App. 7

length, straight, wearing I believe a sweatshirt, blue dun-

garees—that is about it.

Tr. at 563-564

Testimony of Dale J. Gero

Q. [By Mr. Dibble] What were the differences that

you were able to point out from the photographs?

A. The man in the photograph had a different

shaped hairline than mine. The shape of his beard was

different than mine. He had a V-shaped scar in the

middle of his forehead, and he had a darkened front tooth.

Tr. at 61

App. 8

APPENDIX E

DEFENDANT’S EXHIBIT R