author: STAHL, Circuit Judge.

text:
    George LaBARRE and Cherline LaBarre, Plaintiffs, Appellees, v. Merrill J. SHEPARD and Thomas M. Parks, Defendants, Appellants.
    No. 95-2095.
    United States Court of Appeals, First Circuit.
    Heard March 4, 1996.
    Decided May 28, 1996.
    Timothy G. Kerrigan with whom Hamblett & Kerrigan, P.A., was on brief, Nashua, NH, for appellants.
    David V. Shablin with whom Raymond J. Reed and Reed & Reed, were on brief, Worcester, MA, for appellees.
    Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.
   STAHL, Circuit Judge.

Merrill J. Shepard and Thomas M. Parks appeal from the judgment against them in favor of George LaBarre and Cherline La-Barre. A jury found that Shepard and Parks: (1) improperly and unfairly foreclosed the mortgage they held on the LaBarres’ residence; (2) breached an agreement to avert the foreclosure; committed (3) misrepresentation and (4) fraud; and (5) engaged in an unfair trade practice in violation of New Hampshire’s Consumer Protection Act. On appeal, Shepard and Parks raise two narrow issues: first, that admission of evidence of an alleged oral agreement, whereby the La-Barres would deliver a deed in lieu of foreclosure, violated the Statute of Frauds; and, second, that the damages awarded were improperly duplicative. Disagreeing with the appellants’ first contention, but agreeing as to the second, we affirm in part, reverse in part, and remand for correction of the damages award.

J.

Background

On October 20, 1989, the LaBarres purchased a newly erected house and surrounding land in Weare, New Hampshire, from Shepard and Parks, the builders. The purchase price was $229,000; the LaBarres paid $11,450 cash and gave Shepard and Parks a promissory note in the amount of $217,550, secured by a first mortgage on the premises. No payments of principal or interest were due on the note until either the LaBarres sold certain other real estate or the passage of two years from the date of the note’s execution.

In October 1990, the LaBarres sued Shepard and Parks in New Hampshire state court for defective construction, seeking recision and money damages. Shepard and Parks counterclaimed for principal and interest allegedly due on the mortgage note. After a bench trial, the court denied recision, but found defective construction that would cost $38,000 to repair. Accordingly, on June 7, 1993, the court entered judgment, deducting the cost of repairs from the mortgage balance.

In the summer of 1993, Shepard and Parks initiated foreclosure proceedings against the LaBarres for the balance then due on the mortgage note. A foreclosure sale was scheduled for September 22, 1993. At some point prior to the foreclosure sale, Shepard and Parks obtained a “drive-by” appraisal that indicated a fair market value of $150,-000, and the LaBarres were informed of that appraisal.

According to the LaBarres, their lawyer orally agreed with the lawyer for Shepard and Parks that the LaBarres would deliver a deed in lieu of foreclosure, and in return, Shepard and Parks would credit the full $150,000 appraised value of the property in determining the deficiency owed under the state court judgment. In consideration for the agreement, the LaBarres allegedly offered Shepard and Parks access to their home for a more thorough appraisal. Shepard and Parks assert that no such agreement was made. There is no written agreement, nor any other writing or notes concerning the alleged oral agreement between the lawyers.

The LaBarres claim to have been seeking financing to facilitate a bid on the property at the foreclosure sale, but say that they abandoned those efforts when the agreement to deliver the deed in lieu of foreclosure was reached. One day before the scheduled foreclosure sale, however, the LaBarres received a faxed appraisal from Shepard and Parks indicating that the property was worth only $125,000, and that they would give the La-Barres credit for 70% of that amount, i.e., $87,500 against the amount due. The La-Barres apparently rejected that offer, and the foreclosure sale went ahead as scheduled. The only bidders were Shepard and Parks, who, upon the advice of counsel, jointly purchased the property for $87,500.

Sometime later, the LaBarres paid Shepard and Parks $17,500 to obtain the release of an attachment on the LaBarres’ property in Massachusetts; this was the only payment made by the LaBarres other than their initial down payment.

II.

Proceedings Below

The LaBarres brought this diversity action in federal district court in Massachusetts, seeking redress for the refusal of Shepard and Parks to honor their promise to accept, on terms acceptable to the LaBarres, a deed in lieu of foreclosure. The LaBarres’ complaint, as amended, was framed in five counts: (I) unfair and improper foreclosure, (II) breach of contract, (III) intentional misrepresentation, (IV) fraud, and (V) unfair and deceptive trade practice under New Hampshire’s Consumer Protection Act, N.H.Rev. StatAnn. eh. 358-A (“RSA 858-A”). Shepard and Parks brought counterclaims for (I) the deficiency on the foreclosed mortgage and (II) the judgment debt on the earlier New Hampshire state court judgment.

The parties consented to a jury trial with the magistrate judge presiding. The magistrate judge determined that the case was governed by New Hampshire law. Prior to trial, Shepard and Parks moved in limine to exclude all evidence of the alleged oral agreement, which they claimed was barred by New Hampshire’s Statute of Frauds, N.H.Rev.Stat.Ann. § 506:1 (“RSA 506:1”) (precluding actions to enforce oral contracts for the conveyance of land). The magistrate judge ruled that the statute did not bar the LaBarres’ breach of contract claim. After the trial, the magistrate judge explained that, under New Hampshire law, the Statute of Frauds did not bar a cause of action for breach of an oral settlement agreement between attorneys.

After a three-day trial in March of 1995, the jury found for the LaBarres on all five counts. Through special interrogatories, the jury specifically found that the fair market value of the property at the time of foreclosure was $170,000, and that Shepard and Parks breached an agreement to accept a deed in return for credit of $150,000 toward the LaBarre’s mortgage obligation. The jury also found that Shepard and Parks committed an unfair trade practice in violation of the Consumer Protection Act, RSA 358-A, and that the LaBarres suffered actual damages of $82,500 as a result. Although the jury was not asked how it arrived at that actual damages figure, $82,500 is the difference between the property’s fair market value of $170,000 and the $87,500 that Shepard and Parks bid at the foreclosure sale. The jury also answered that the Consumer Protection Act damages should be trebled.

The magistrate judge directed a verdict for Shepard and Parks on their counterclaims, and then ruled, in essence, that the mortgage balance due, as calculated in the state court judgment, was the proper measure for a single, non-duplicative recovery, satisfying both counterclaims.

Recognizing that the claims for breach of contract, misrepresentation, and fraud were, in essence, alternative theories of improper foreclosure, the magistrate judge treated Counts II, III, and IV as subsumed in Count I, the improper foreclosure count. Rather than awarding damages outright on Count I, the magistrate judge implemented the jury’s findings on Counts I through TV by crediting the LaBarres with the full fair market value of the property, $170,000, in calculating the amount due to Shepard and Parks on their counterclaims.

The magistrate judge then awarded treble damages of $247,500 to the LaBarres on Count V, the Consumer Protection Act count, in accordance with the jury’s special interrogatory answers. The judge ruled that although Count V was “based on the same factual allegations as were alleged in each of the other four counts of the LaBarres’ Complaint, they are entitled to an independent recovery under Count V for violation of the New Hampshire Consumer Protection statute.” The magistrate judge also awarded costs and reasonable attorney fees to the LaBarres, as provided in the Consumer Protection Act.

Shepard and Parks moved for a new trial under Federal Rule of Civil Procedure 59(a), to no avail. On appeal, Shepard and Parks raise two of the issues they asserted in their Rule 59(a) motion. First, they argue that evidence of the alleged oral agreement should have been excluded from trial under the Statute of Frauds. Second, they maintain that the award of damages under the Consumer Protection Act must be reduced by $82,500. They assert that the award of full market value credit against the balance owed on the mortgage note, in addition to trebled Consumer Protection Act damages, constituted an improperly duplicative recovery because all the counts were based on the same factual allegations. In effect, they point out, the LaBarres received a quadruple recovery, but were entitled only to the damages under the largest single count, i.e., the trebled Consumer Protection Act damages.

III.

Discussion

1. The Statute of Frauds

The same factual allegation underlies all five counts: Shepard and Parks orally promised to accept a deed in lieu of foreclosure on terms acceptable to the LaBarres, but then reneged on that agreement the day before the foreclosure sale. Shepard and Parks assert that New Hampshire’s Statute of Frauds barred all testimony and evidence of the alleged oral agreement., The statute, RSA 506:1, provides: “No action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by some person authorized by him in writing.”

Because the magistrate judge awarded damages only on Count I (improper foreclosure) and Count V (Consumer Protection Act), Shepard and Parks recognize that the judgment was not based on enforcement of the contract. They argue, rather, that the “entire trial proceeding was tainted” by the introduction of evidence of the oral agreement, requiring reversal.

The parties agree that the Statute of Frauds is applicable on its face to the oral agreement in question here. They expend much energy, however, disagreeing about whether one or more exceptions to the statute apply in these factual circumstances. In doing so, the parties miss the real issue and misunderstand the operation of the Statutes of Frauds.

There is no need here to decide the existence, scope, or applicability of the asserted common-law exceptions to the Statute of Frauds (the so-called “oral settlement agreement between attorneys” exception and the part-performance exception). We hold instead that, under New Hampshire law, the Statute of Frauds is only a bar to the enforcement of certain oral contracts; it is not a rule of evidence. Evidence of the oral agreement in this case was relevant to the counts alleging improper foreclosure, misrepresentation, fraud, and unfair trade practice in violation of the Consumer Protection Act. Shepard and Parks raise no claim that the Federal Rules of Evidence barred its admission. Thus, we find no reversible error..

We find clear guidance in New Hampshire caselaw. The New Hampshire Supreme Court held in Munson v. Raudonis, 118 N.H. 474, 387 A.2d 1174, 1176 (1978), that the Statute of Frauds, RSA 506:1, did not bar an action for deceit even though the oral promise that was breached could not be enforced because of the lack of a writing. In reaching that holding, the Munson court expressly rejected the argument pressed here by Shepard and Parks, i.e., that evidence of the oral agreement should have been excluded because the four non-contract counts were merely a back-door attempt to circumvent the Statute of Frauds. The court in Munson reasoned as follows: “Barring an action in deceit because of the Statute of Frauds, however, would not further the policy of the statute. Quite the contrary, it would foster an injustice.” Id. In our view, Munson embodies New Hampshire law on the question, and the argument raised by Shepard and Parks must fail. See also Morgan v. Morgan, 94 N.H. 116, 47 A.2d 569, 571 (1946) (Statute of Frauds did not bar action for misrepresentation even if agreement was unenforceable as a contract).

The Restatement (Second) of Contracts, a source often relied upon by the New Hampshire Supreme Court, provides additional support for this result. See, e.g., Tsiatsios v. Tsiatsios, 140 N.H. 173, 663 A.2d 1335, 1339 (1995) (following the Restatement); Patch v. Arsenault, 139 N.H. 313, 653 A.2d 1079, 1082 (1995) (same); Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318, 327 (1994) (same). Section 143 of the Restatement provides that “[t]he Statute of Frauds does not make an unenforceable contract inadmissible in evidence for any purpose other than its enforcement in violation of the statute.” Restatement (Second) of Contracts § 143 (1981). The Comment to Section 143 explains that “the Statute, despite occasional statements to the contrary, does not lay down a rule of evidence, and an unenforceable contract may be proved for any legitimate purpose.” Id. § 143 cmt. a.

It does not matter that the magistrate judge’s reason for admitting evidence of the alleged oral agreement was his conclusion that a purported “lawyer’s settlement agreement” exception (or alternatively, the part-performance exception) put the agreement outside the Statute of Frauds. While we are skeptical whether that conclusion was correct, we can affirm the admission of evidence on any proper basis, even if the trial judge relied on a different ground. See United States v. Nivica, 887 F.2d 1110, 1127 (1st Cir.1989) (no reversal where trial court admits evidence on an incorrect basis, if properly admissible for same purpose under different rule of evidence), cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990); cf. Ticketmaster-New York, Inc. v. Alioto, 26 F.3d 201, 204 (1st Cir.1994) (appellate court free to affirm the district court’s judgment on any independently sufficient ground manifest in the record).

Because the evidence of the alleged oral agreement was admissible for purposes other than enforcing that agreement, i.e., to prove the four non-contract counts, and because the breach of contract count did not affect the judgment, there is no reversible error in the magistrate judge’s ruling on the applicability of the Statute of Frauds.

2. Duplicative Damages

The jury found that the fair market value of the LaBarres’ property was $170,000 at the time of foreclosure. As damages for Counts I through IV, the magistrate judge gave the LaBarres credit for the full $170,-000 as an offset against the judgment for Shepard and Parks on the mortgage balance. This placed the LaBarres in an even better position than if they had delivered a deed in lieu of foreclosure for $150,000 credit, as the parties had allegedly agreed. Shepard and Parks have not appealed the award of the $170,000 credit for Counts I through IV.

Because Shepard and Parks had bid only $87,500 at the foreclosure sale, the $170,000 credit is the equivalent of a damages award of $82,500, placing the LaBarres in the position they would have been in if Shepard and Parks had bid fair market value at the foreclosure. There is no doubt that this award made the LaBarres whole, or better, for the improper foreclosure.

The jury also found that the violation of the Consumer Protection Act by Shepard and Parks caused the LaBarres actual damages of $82,500, which the jury trebled for an award of $247,500. See RSA 358-A:10.. Because the net effect of the credit toward the mortgage was to award $82,500 above the amount bid by Shepard and Parks, and because the Consumer Protection Act award was for three times $82,500, the La-Barres effectively enjoyed a quadruple recovery. The magistrate judge opined that the Consumer Protection Act provided an independent recovery, and thus there was no improper duplication. Shepard and Parks assert that this was error, and that the Consumer Protection Act award should be reduced by $82,500 to limit the net award to treble damages. We agree.

It is evident from the record, and the LaBarres appear to concede, that the damages under Count I (improper foreclosure) are based on the same factual allegations as the damages under Count V (Consumer Protection Act). The award on Count I (in which all the four common-law counts were subsumed) was based on the $82,500 difference between the fair value and the bid price; the same amount, $82,500, obviously reflecting the same difference between the fair value and the bid, was awarded and trebled (to $247,500) under the RSA 358-A count. Nonetheless, the LaBarres argue that this quadruple award was proper because they are entitled to an “independent recovery” under New Hampshire’s Consumer Protection Act.

The LaBarres, however, point to nothing in the statute or in any New Hampshire case that supports their contention that the Consumer Protection Act provides an “independent recovery.” We have found no New Hampshire authority directly on point, but we are confident that New Hampshire's Supreme Court would follow its general rule against duplicative recoveries and would find the award in this case erroneous. See Phillips v. Verax Corp., 138 N.H. 240, 637 A.2d 906, 912 (1994) (“[T]he plaintiff is not entitled to multiple recoveries for the same loss merely because he alleged alternative theories of recovery.”); Clancy v. State, 104 N.H. 314, 185 A.2d 261, 263 (1962) (“Duplication of damages should be avoided.”); Burke v. Burnham, 97 N.H. 203, 84 A.2d 918, 922 (1951) (recovery of same damages under two causes of action impermissible). We hold that the award in this case was duplicative, and that the LaBarres’ recovery may not exceed the treble damages allowable under the Consumer Protection Act.

The LaBarres argue that a Massachusetts decision affirming a damage award under the Massachusetts Consumer Protection Act, Mass.Gen.L. ch. 93A, supports by analogy the magistrate judge’s award in this case. The cited ease, Multi Technology, Inc. v. Mitchell Management Sys., Inc., 25 Mass.App.Ct. 333, 518 N.E.2d 854, 857, review denied, 402 Mass. 1101, 521 N.E.2d 398 (1988), does not, however, provide any support. The plaintiffs in Multi Technology received Consumer Protection Act damages in addition to contract damages because the separate counts entailed factually separate items of damage. Id. The plaintiff had agreed to a reduced fee based on the defendant’s misrepresentations. Accordingly, the court awarded the agreed amount as contract damages, and also awarded the difference between the plaintiffs standard fee and the agreed-upon reduced fee as Consumer Protection Act damages. Id. Here, there are no factually separate items of damage, and the holding in Multi Technology is inapplicable.

Contrary to the LaBarres’ assertions and their misleading citation of Multi Technology, the quadruple recovery in this case is clearly improper under Massachusetts law, as well as New Hampshire law. In Calimlim v. Foreign Car Ctr., Inc., 392 Mass. 228, 467 N.E.2d 443, 448 (1984), the Supreme Judicial Court held that “[wjhere injury is incurred because of conduct which comprises the elements of any common law, statutory, or regulatory cause of action, and which is also a violation of the Consumer Protection Act, recovery of cumulative damages under multiple counts may not be allowed.” The reasoning and holding in Calimlim would unquestionably bar the cumulative recovery in this case, where the factual allegations and the items of actual damages are identical under the common law and Consumer Protection Act counts. Id.; see also Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 822-24 (Colo.1992) (en banc) (no double recovery for violation of Colorado Consumer Protection Act and common law misappropriation arising out of same set of facts, and collecting cases with similar holdings in other states).

To recapitulate, we hold that the LaBarres were improperly awarded quadruple damages, when they were entitled to no more than treble damages.

IV.

Conclusion

For the foregoing reasons, the judgment is affirmed in part, and reversed in part. The damages awarded to the LaBarres shall be reduced by $82,500, and any interest awarded on the judgment shall be adjusted accordingly. The case is remanded to the magistrate judge for entry of a corrected damages award consistent with this opinion.

      . This is a unusual case. The record reveals a number of anomalies in the underlying real estate transaction, the foreclosure process, and' the litigation in the state and federal trial courts. Because none of these irregularities is material to the narrow issues on appeal, we merely point them out in footnotes to help the reader understand the odd posture of this case.

      . The promissory note, while providing for a deferral of payments for up to two years, did not provide for any installment payments thereafter nor for a balloon payment. The parties, however, do not raise any issues concerning the note and agree on the amount due thereunder.

      . This judgment is impossible, to decipher. The state trial judge found that the LaBarres had "sustained their burden of proof on their claim of damages” and "assessed” those damages at $38,000. The judge then stated that "[djefen-dants' counterclaim is DENIED without prejudice to assert a separate action, if necessary." In spite of denying the counterclaim for the mortgage balance due, the judge did not make an award of money damages, but rather deducted the $38,000 damage award from the balance due on the note. The judge went on to present "the correct methodology for recalculation of the promissory note,” arriving at a "[tjotal due under terms of promissory note” of $239,729. The decree ended: "Judgment entered in accordance with the foregoing.”
      Inexplicably, both parties and the magistrate judge consider this to be a judgment for Shepard and Parks for $239,729, when the state court judge expressly denied their counterclaim. We ignore this problem, though, because the magistrate judge ultimately used the state court “judgment” to measure the proper award on the mortgage deficiency counterclaim brought by Shepard and Parks; hence, there was no award on the state judgment itself. Neither party raises any question about the state court judgment on appeal. Given this posture, we too shall refer to the state court mortgage balance calculation as a "judgment,” though it seems at best to be a finding of fact.

      .The balance was recalculated as follows:
      Original Principal balance on mortgage note $217,500
      less: Cost to repair defects 38,000
      Net principal due on mortgage note $179,500
      plus: Interest due on net principal as of 5/20/93 59,609
      TOTAL DUE AS OF 5/20/93 $239,109
      Interest Per Diem: $34.32 TOTAL DUE AS OF JUDGMENT DATE 6/7/93 $239,729

      .The record does not reveal whether Shepard and Parks initiated the foreclosure proceedings before or after the entry of the state court judgment recalculating the mortgage balance. Thus, it is unclear whether the foreclosure was an attempt to collect on the judgment or the note; we will treat it as a mortgage foreclosure on the note.

      . It is unclear from the record, and neither party has explained, whether the credit was to be applied to the outstanding balance on the mortgage note or to the state court judgment. Given the cryptic nature of that judgment, see supra note 3, this lack of precision is not surprising. For simplicity, we will speak in terms of credit toward the balance on the mortgage note.

      . In his memorandum of decision dated September 5, 1995, the magistrate judge explained that, although he should have decided whether to double or treble the Consumer Protection Act damages rather than the jury, Shepard and Parks had waived the issue. Shepard and Parks raised no objection at trial, and they now concede that the error has not been preserved for appeal. We express no opinion whether the multiplication of damages under New Hampshire’s Consumer Protection Act is for the juiy or the judge.

      . The special interrogatory form indicated that Shepard and Parks were entitled to recover on the state court judgment, specifying that amount as $239,109; the actual calculation in that judgment was $239,729. See supra note 4. The difference between the two figures is the interest applied for the period from May 20, 1993 (apparently the date of a stipulated interest calculation) through June 7, 1993 (the date of the state court judgment). Neither figure includes interest from mid-1993 through the March 1995 judgment in this case.
      The parties, however, do not assert any error in the calculation of the counterclaim recovery by Shepard and Parks.


source: Caselaw Access Project

author: LYNCH, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Robert RAPOSA, Defendant, Appellant.
    No. 95-2088.
    United States Court of Appeals, First Circuit.
    Heard March 7, 1996.
    Decided May 29, 1996.

      Robert B. Mann, Providence, RI, with whom Mann & Mitchell was on brief, for appellant.
    Margaret Curran, Assistant United States Attorney, Providence, RI, with whom Sheldon Whitehouse, United States Attorney, and Zechariah Chafee, Assistant United States Attorney, were on brief, for the United States.
    Before LYNCH, Circuit Judge, ALDRICH and BOWNES, Senior Circuit Judges.
   LYNCH, Circuit Judge.

Following a plea of guilty to one count of possessing heroin with intent to distribute, Robert Raposa was sentenced to a term of 30 months imprisonment. He appeals that sentence, arguing that the district court erroneously included as “relevant conduct,” see U.S.S.G. § 1B1.3 (Nov. 1994), his possession, with intent to distribute, of a substantial quantity of cocaine that the court had earlier ordered suppressed as the product of an illegal search. The consideration, inter alia, of the suppressed cocaine as “relevant conduct” increased the defendant’s Guidelines sentencing range from 10-16 months to 30-37 months. The latter was the same as the range that would have obtained if the defendant had been convicted on the cocaine count as well as the heroin count.

We are asked to decide whether the Fourth Amendment exclusionary rule applies in the context of Sentencing Guidelines proceedings, at least on the facts of this ease. On the record before us, however, the resolution of that question is not necessary to the decision of this appeal. We decline, therefore, to reach that important question here, preferring to leave it for a future case. Instead, we affirm the defendant’s sentence on the ground that the district court’s findings were amply supported by statements concerning the cocaine provided by the defendant and incorporated in the Presentence Investigation Report (“PSR”), and on which he relied to obtain a reduction in his sentence for acceptance of responsibility.

I

On February 10,1995, two narcotics detectives interrupted a drug deal in progress in an alley in downtown Providence. The defendant; Robert Raposa, was sitting in the driver’s seat of a parked white Mercury Sable, doing business with several men standing at his window, when the detectives approached and identified themselves as police officers. Raposa bolted out of the car and ran, dropping a bundle of heroin packets labelled “Die Hard” as he fled. One of the officers picked up the heroin packets and gave chase. Raposa was apprehended. The officers brought him back to the scene of the drug deal, where they found another bundle of heroin marked “Die Hard” and $140 in cash on the ground near the Mercury. Two beepers were found on the defendant, and a cellular telephone in the car. Raposa was arrested and taken to the central police station.

After a short investigation, the detectives went to Raposa’s apartment, while the defendant remained in custody at the station. A woman answered the door. The officers told her that Raposa had been arrested. The woman stated that Raposa was her boyfriend and lived with her in the apartment.

What happened next was disputed. The government would later assert that the woman consented to a search of the apartment, and that no search was undertaken until a consent form had been signed. The defendant would contend that no valid consent was ever given, and that his girlfriend’s signature on the form had been coerced. In any event, the officers conducted a warrantless search of the apartment. They seized three large bags containing over $13,000 worth of cocaine lying in a closet in one of the bedrooms. Back at the police station, Raposa was informed of the seizures. Having been read his Miranda rights, he agreed to talk, and confessed that the cocaine was his.

Raposa was charged with possession of cocaine (375.21 grams) and heroin (less than 5 grams), with intent to distribute. After initially pleading not guilty to both counts, he moved to suppress all of the cocaine that the police had found in his apartment, arguing that it was the fruit of an illegal search. After an evidentiary hearing, the district court granted the motion, finding that the government had failed to prove that Raposa’s girlfriend had consented to the search. The defendant subsequently pleaded guilty to the heroin charge (Count II), and the government voluntarily dismissed the cocaine charge (Count I).

II

Raposa’s sentence for his heroin conviction was governed by U.S.S.G. § 2D1.1. Under that guideline, the amount of heroin possessed by the defendant (less than 5 grams) corresponds to a base offense level of 12, which, charted against a criminal history category of I, would yield a Guidelines sentencing range of 10-16 months. However, the district court found, over the defendant’s objection, that the defendant’s possession of the cocaine found at his apartment constituted “part of the same course of conduct ... as the offense of conviction” under the Guidelines’ “relevant conduct” provision. U.S.S.G. § lB1.3(a)(2).

After expressing serious reservations about the fairness of considering illegally seized evidence for purposes of the Guidelines’ relevant conduct provisions, the district court concluded, relying on cases from other circuits, that the exclusionary rule did not apply at sentencing. The court thus incorporated the cocaine into the total drug quantity for which defendant was to be sentenced, pushing the offense level up to 22. After subtracting three levels for acceptance of responsibility, the court arrived at a total offense level of 19, yielding a final sentencing range of 30-37 months. The court imposed a sentence of 30 months, and the defendant filed this appeal.

Ill

To date, five circuit courts of appeal have addressed the issue of whether the Fourth Amendment exclusionary rule prohibits a sentencing court from considering illegally seized evidence for purposes of determining or enhancing a defendant’s Guidelines sentence. Each of these courts has held that the exclusionary rule does not generally apply in the sentencing context and that there is no blanket prohibition on the consideration of illegally seized evidence for purposes of making the findings required under the Guidelines. See United States v. Jenkins, 4 F.3d 1338, 1345 (6th Cir.1993) (rejecting, as dicta, contrary statements in United States v. Nichols, 979 F.2d 402, 410-11 (6th Cir.1992), aff'd on other grounds, — U.S. -, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994)), cert. denied, — U.S.-, 114 S.Ct. 1547, 128 L.Ed.2d 197 (1994); United States v. Tejada, 956 F.2d 1256, 1262 (2d Cir.), cert. denied, 506 U.S. 841, 113 S.Ct. 124, 121 L.Ed.2d 80 (1992); United States v. Lynch, 934 F.2d 1226, 1236-37 (11th Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992); United States v. McCrory, 930 F.2d 63, 69 (D.C.Cir.1991), cert. denied, 502 U.S. 1037, 112 S.Ct. 885, 116 L.Ed.2d 788 (1992); United States v. Torres, 926 F.2d 321, 325 (3d Cir.1991). The rule adopted in these eases has not been met with universal acclaim. See, e.g., United States v. Jewel, 947 F.2d 224, 238-40 (7th Cir.1991) (Easterbrook, J., concurring); McCrory, 930 F.2d at 70-72 (Silberman, J., concurring); Wayne R. LaFave, 1 Search and Seizure § 1.6, at 40-41 (2d ed. Supp.1995). This court has not yet decided the issue.

Although the parties have ably argued to us the merits of each side of the debate, a review of the record requires the conclusion that this ease does not present a proper occasion for us to decide this important question.

After the defendant agreed to plead guilty to the charge of possessing heroin with intent to distribute, the district court ordered that a PSR be prepared. In setting forth his version of the facts for inclusion in the PSR, the defendant (through his counsel) provided the federal probation officer with a signed statement in which he voluntarily admitted that he owned the cocaine that was found in his apartment on February 10, 1995. The statement was incorporated verbatim into the PSR. It declared, in relevant part:

I understand the police recovered two bundles of heroin near my car [on February 10], Those bundles of heroin were my heroin. I accept complete responsibility for my actions. I also accept responsibility for the cocaine found at [my apartment]- I have always accepted responsibility for this cocaine. At the police station, on the day of my arrest I made a signed statement. In that statement I clearly accepted responsibility for the eo-caine.[] The cocaine was found in a spare bedroom closet. I accept complete responsibility for my actions with the cocaine[] as I did with the heroin [footnotes added].

The defendant lodged no objection nor attempted to reserve any Fourth Amendment argument specifically with respect to the PSR’s recounting of these admissions. Indeed, based in part on these statements, the defendant successfully argued at sentencing for a three-level reduction in his Guidelines offense level under U.S.S.G. § 3E1.1.

Whatever force the exclusionary rule might have at sentencing, it clearly could not have barred the district court from considering the defendant’s voluntary statements as set forth in the PSR. Cf. United States v. Patino, 862 F.2d 128, 132-34 (7th Cir.1988) (holding second confession not to have been obtained in violation of Fourth Amendment where sufficient time had passed since illegal search and initial confession and where intervening circumstances were benign), cert. denied, 490 U.S. 1069, 109 S.Ct. 2072, 104 L.Ed.2d 637 (1989). The portion of the PSR containing those statements, to which defendant declined to object (and as a result of which he received acceptance-of-responsibility credit under the Guidelines), provides an independently sufficient ground for the district court’s finding at sentencing that the defendant possessed the cocaine at issue. See United States v. Blanco, 888 F.2d 907, 908-09 (1st Cir.1989) (permitting proof at sentencing of uncharged quantities of drugs through statements in PSR to which defendant failed to object).

Thus, on the record before us, the question of the exclusionary rule’s applicability at sentencing has no bearing on the outcome of this appeal. Cf. New England Legal Found, v. Massachusetts Port Auth., 883 F.2d 157, 176 (1st Cir.1989) (“longstanding precedent” requires courts to “avoid ruling on constitutional issues when non-constitutional grounds are dispositive”). Wholly apart from any consideration of the suppressed cocaine evidence, the portions of the PSR that recounted defendant’s admissions as to cocaine possession, to which no objection was recorded, provide clear and ample support for the findings that resulted in the assignment to defendant of a total offense level of 19 under the Guidelines. Cf. Murray v. United States, 487 U.S. 533, 538-41, 108 S.Ct. 2529, 2533-35, 101 L.Ed.2d 472 (1988) (exclusionary rule does not affect information “cleanly” obtained through “independent source” (quoting United States v. Silvestri, 787 F.2d 736, 739 (1st Cir.1986), cert. denied, 487 U.S. 1233, 108 S.Ct. 2897, 101 L.Ed.2d 931 (1988))). Because this aspect of the record is dispositive in favor of affirmance, we need not decide whether the exclusionary rule applies at sentencing.

IV

For the foregoing reasons, we decline to reach the question of whether the Fourth Amendment exclusionary rule applies in the context of Guidelines sentencing proceedings, and we uphold the sentence imposed by the district court based solely on our conclusion that it was adequately supported by the facts established in the unobjected-to portions of the PSR.

Affirmed.

      . After acknowledging that defendant had raised a substantial issue for appeal, the district court granted the defendant's request that he be permitted to remain released on bail pending appeal of the sentence.

      . There are also several reported cases that address the issue in the pre-Guidelines context. See United States v. Lee, 540 F.2d 1205, 1210-12 (4th Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 255, 50 L.Ed.2d 177 (1976); United States v. Vandemark, 522 F.2d 1019, 1021-25 (9th Cir.1975); United States v. Schipani, 435 F.2d 26, 27-28 (2d Cir.1970), cert. denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1971); Verdugo v. United States, 402 F.2d 599, 610-13 (9th Cir.1968), cert. denied, 397 U.S. 925, 90 S.Ct. 931, 25 L.Ed.2d 105 (1970).

      . See also Todd Flaming, Comment, Laundering Illegally Seized Evidence Through the Federal Sentencing Guidelines, 59 U.Chi.L.Rev. 1209 (1992); Victor J. Miller, Note, An End Run Around the Exclusionary Rule: The Use of Illegally Seized Evidence Under the Federal Sentencing Guidelines, 34 Wm. & Maty L.Rev. 241 (1992); Clinton R. Pinyan, Comment, Illegally Seized Evidence at Sentencing: How to Satisfy the Constitution and the Guidelines With an "Evidentiary" Limitation, 1994 U.Chi.Legal F. 523 (1994).

      . It appears, although the record is not clear, that the statement given by Raposa to the police on February 10 was also covered by the district court's suppression order.

      . The defendant further admitted, elsewhere in this same statement, that the quantity of cocaine ■ he possessed was at least equal to the amount charged in the indictment (375.21 grams).

      . Defendant's PSR statement was not made under any promise of immunity. Cf. United States v. Conway, 81 F.3d 15 (1st Cir. 1996).

      . Defendant does not and could not credibly argue that the statements recounted in the PSR constituted a fruit of the illegal search conducted on the day of his arrest. The statement provided by defendant to the probation officer was voluntarily submitted, presumably with the advice of counsel. Furthermore, the statement was provided after the district court had ruled on the defendant’s suppression motion, so that defendant could make no claim that he was unaware of his rights. The provision of the statement to the probation officer was "sufficiently an act of free will to purge the primary taint” of the illegal search. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); cf. Brown v. Illinois, 422 U.S. 590, 608-09, 95 S.Ct. 2254, 2264-65, 45 L.Ed.2d 416 (1975) (Powell, J., concurring) (discussing attenuation doctrine).

      . Defendant does not argue that the relevant conduct guideline itself is unconstitutional.

      . We therefore need not comment on the merits of the government’s contention at oral argument that any unfairness that might result from not applying the exclusionary rule at sentencing could be alleviated by invoking, as warranted, the due process prohibition against "sentencing factor manipulation.” See United States v. Egemonye, 62 F.3d 425 (1st Cir.1995); United States v. Montoya, 62 F.3d 1 (1st Cir.1995); cf. Jenkins, 4 F.3d at 1345 (exclusionary rule may be applied at sentencing, as exception to general rule, where defendant shows that illegal search was conducted for specific purpose of obtaining sentence enhancement); Tejada, 956 F.2d at 1263 (same); McCrory, 930 F.2d at 69 (same); cf. also Lynch, 934 F.2d at 1237 n. 15 (reserving the question); Torres, 926 F.2d at 325 (same).


text:
    UNITED STATES of America, Appellee, v. Craig J. CLARK, Defendant, Appellant.
    No. 95-2308.
    United States Court of Appeals, First Circuit.
    Heard May 10, 1996.
    Decided May 30, 1996.

      Kevin E. Buchholz, Concord, NH, with whom Bianco, PA, was on brief, for appellant.
    Peter E. Papps, First Assistant United States Attorney, with whom Paul M. Gagnon, Concord, NH, United States Attorney, was on brief, for the United States.
    Before TORRUELLA, Chief Judge, STAHL and LYNCH, Circuit Judges.
   LYNCH, Circuit Judge.

The kidnapping at knife point of a young New Hampshire woman by defendant Craig Clark and others resulted in Clark ultimately pleading guilty to two federal charges: conspiracy to interfere with and interference with interstate commerce by threats of violence, both in violation of 18 U.S.C. § 1951. This is Clark’s second trip to this court on his sentence. He was successful before, and now finds, to his chagrin, that his new sentence is higher than the one that was overturned in his first appeal.

In United States v. Clark, 55 F.3d 9 (1st Cir.1995), this court vacated Clark’s original 188 month sentence and remanded for resen-tencing before a new judge on grounds that the government had not kept its end of the plea agreement. Clark now appeals from the 223 month sentence imposed on resentencing by the second sentencing judge after remand.

Relying on the Supreme Court’s decision in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), Clark argues that the district court’s imposition of a prison term on resentencing that was more severe than the sentence vacated on appeal effectively punishes him for exercising his right to appeal and violates his right to due process of law. He also contends that the district court erred in enhancing his sentence based on a determination that he had obstructed justice by suborning perjury and making false statements to his probation officer. The decisions of the Supreme Court and this court interpreting the holding of Pearce doom Clark’s first attack. His second attack is without merit on the law and the facts. We affirm.

I

In Pearce, the Supreme Court held that a court violates the Due Process Clause when it imposes a heavier sentence upon a recon-victed defendant for the purpose of penalizing the defendant for having successfully appealed from his original conviction. See id. at 723-24, 89 S.Ct. at 2079-80. As a prophylactic measure, the Court created a “‘presumption of vindictiveness’ ... which is triggered whenever the same judge imposes a more severe sentence upon a defendant after retrial.” Johnson v. Vose, 927 F.2d 10, 11 (1st Cir.1991) (quoting United States v. Goodwin, 457 U.S. 368, 374, 102 S.Ct. 2485, 2489, 73 L.Ed.2d 74 (1982)). However, the “presumption of vindictiveness” does not arise in every case in which a defendant receives a greater sentence the second time around. Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 978-79, 89 L.Ed.2d 104 (1986). As the Court said in McCullough, “vindictiveness of a sentencing judge is the evil the Court sought to prevent rather than simply enlarged sentences after a new trial.” Id. Thus, the presumption of vindictiveness created by Pearce arises only when “there is a ‘reasonable likelihood’ ... that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S. 794, 799, 109 S.Ct. 2201, 2204, 104 L.Ed.2d 865 (1989) (citation omitted).

The Pearce presumption does not arise where “different sentencers assessed the varying sentences that [defendant] received.” McCullough, 475 U.S. at 140, 106 S.Ct. at 979; see also Hurlburt v. Cunningham, 996 F.2d 1273, 1275 n. 2 (1st Cir.1993) (per curiam) (“Our research indicates that decisions by the circuit courts of appeals after McCullough have uniformly held that the Pearce presumption does not apply to the two-sentencer situation.”). In this case, the defendant’s second sentence was imposed by a different judge. Thus, no presumption of vindictiveness arises. Absent such a presumption, the defendant cannot prevail on his due process claim unless he demonstrates “actual vindictiveness.” Johnson, 927 F.2d at 11.

Clark falls far short. He argues that vindictiveness should be inferred because the New Hampshire federal district court has only four judges and is a small court. Neither logic nor experience warrants any such inference. Further, he says, an increased sentence may not be imposed without additional findings to support the increase. Pearce implies no such requirement. The second trial judge heard all of the sentencing evidence anew and made findings adequate to support the sentence imposed, which was within the range prescribed by the Guidelines. The length of a sentence vacated on appeal does not automatically function as a cap on the term of imprisonment that can be imposed on resentencing. One of the risks of appealing a sentence is that a different judge, on remand, may take a different view of the facts (or the law) relevant to the required Guidelines findings, a view less favorable to the defendant. We note that Clark makes no argument that the second sentencing judge misapplied the Guidelines (aside from his assertion of error as to the obstruction-of-justiee enhancement, which we reject below). There is no basis in the record for. a finding of vindictiveness. Cf. McCullough, 475 U.S. at 140, 106 S.Ct. at 980 (no vindictiveness where “second sentencer provides an on-the-record, wholly logical, nonvindictive reason for the sentence”).

II

Under § 3C1.1 of the Guidelines, the sentencing judge is directed to increase the offense level by two “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense.” U.S.S.G. § 3C1.1 (Nov.1993). Clark argues that the district court erroneously enhanced his sentence based on this provision. A brief description of the facts underlying the district court’s obstruction of justice finding sets the stage for resolution of Clark’s claim.

After his arrest and prior to his arraignment, Clark apparently hatched the thought that if the district court could be persuaded that the victim herself had been involved in the scheme to kidnap and hold her for ransom, the defendants would either receive more lenient sentences or “all walk away seott [sic] free.” In order to make the story — which had no basis in fact — stick, he had to convince his co-defendants to keep to the story line when they testified. That is exactly what he tried to do while in the U.S. Marshal’s lockup. Clark’s co-defendants, however, refused to go along with his fabrication and told the probation officer of Clark’s efforts to induce them to lie to the court. When the probation officer asked Clark about the scheme, he denied it and claimed that his co-defendants must have misunderstood him or were lying. The probation officer included this information in the Pre-Sentence Report and recommended that Clark’s conduct be found to constitute obstruction of justice and that he be denied any credit for acceptance of responsibility.

After hearing testimony from Clark’s two co-defendants that Clark had tried to induce them to lie to the court, the district court increased Clark’s offense level from 34 to 36 pursuant to U.S.S.G. § 3C1.1. This enhancement had the effect of increasing his Guidelines sentencing range from 151-188 months to 188-235 months. Clark contends that the district court committed three errors: that the court should not have applied the preponderance-of-the-evidenee standard with respect to its finding that Clark obstructed justice; that the court failed to view his testimony in the light most favorable to him; and that (in light of the first two points) the court’s finding of obstruction was clearly erroneous.

On the first point, Clark appears to argue that if he had been separately charged with the crime of suborning perjury and been convicted of that crime (as well as the crimes of which he was actually convicted) by proof beyond a reasonable doubt, he would have received a lesser sentence than he received as a result of the obstruction of justice being considered at sentencing. From this, he contends that due process required the government to prove the facts underlying the § 3C1.1 enhancement beyond a reasonable doubt. The argument is doubly flawed. First, Clark’s premise is presented without any effort to elaborate its basis under the Guidelines and is far from obviously true. Second, precedent disposes of his argument that anything but a preponderanee-of-theevidenee standard governs the district court’s factfinding at sentencing. See, e.g., United States v. Lombard, 72 F.3d 170, 175-76 (1st Cir.1995); United States v. Gonzalez-Vazquez, 34 F.3d 19, 25 (1st Cir.1994); United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989).

Clark’s second argument rests on his reading of application note 1 to § 3C1.1. That application note provides:

In applying [§ 3C1.1] in respect to alleged false testimony or statements by the defendant, such testimony or statements should be evaluated in a light most favorable to the defendant.

U.S.S.G. § 3C1.1, comment, (n.l). Clark argues that this instruction required the district court to credit Clark’s version of the events (that his co-defendants were lying or misunderstood him) over the testimony of the co-defendants as described in the PSR and given at the sentencing hearing.

But the application note cannot mean, as Clark apparently would have it, that the court must resolve all factual or testimonial disputes in favor of the defendant. Nor does it require the district court, in deciding whether an obstruction of justice occurred, to accept a defendant’s self-serving denials over the testimony of other witnesses it finds more credible. See United States v. Tracy, 36 F.3d 199, 203-04 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 609, 130 L.Ed.2d 518 (1994); see also United States v. Akitoye, 923 F.2d 221, 228 (1st Cir.1991) (“Were that so, the safeguard [of application note 1] would swallow the rule in a single gulp.”); United States v. Franco-Torres, 869 F.2d 797, 801 (5th Cir.1989) (such a reading “would effectively enable every defendant to nullify its application by self-serving testimony”).

Indeed, the plain language of the application note is not nearly so broad as to permit Clark’s reading. The note’s instruction is specifically limited to the application of § 3C1.1 “in respect to alleged false testimony or statements by the defendant” and provides that only “such testimony or statements” should receive the benefit of a defendant-favorable light. U.S.S.G. § 3C1.1, comment, (n.l) (emphases added). We understand this language to mean that if the defendant is alleged to have obstructed justice by means of false testimony or statements, and if such testimony or statements encompass genuine ambiguities that plausibly suggest that the testimony or statements were innocent as opposed to obstructive, then those ambiguities may have to be resolved in favor of the innocent reading. See Tracy, 36 F.3d at 204 (quoting United States v. Crousore, 1 F.3d 382, 385 (6th Cir.1993)). As this court has recently said:

[The] interpretive principle [contained in application note 1] only applies to the construction of allegedly perjurious language, not the determination of credibility of fact witnesses_ Furthermore, lenitive interpretations only apply ‘to the extent that an innocent reading may be plausible.’

United States v. Kelley, 76 F.3d 436, 441 (1st Cir.1996) (quoting Tracy, 36 F.3d at 204). In sum, application note 1 requires at most that the district court indulge “lenitive interpretations” of the defendant’s allegedly obstructive statements to the extent plausible, and only if those statements are ambiguous. See Tracy, 36 F.3d at 204. It does not require the district court to avoid a finding of obstruction by contriving doubt as to the defendant’s conduct where the evidence is otherwise clear, merely because the defendant denies he did anything obstructive. See id. at 203-04; United States v. Rojo-Alvarez, 944 F.2d 959, 969 (1st Cir.1991).

Here, there were two aspects of Clark’s conduct that the court found constituted obstruction of justice: his attempts to induce his co-defendants to lie to the court, and his statements to the probation officer denying any such attempts. See U.S.S.G. § 3C1.1, comment, (n. 3(b) & 3(h)). We review the district court’s factual findings underlying the § 3C1.1 enhancement only for clear error. See Akitoye, 923 F.2d at 229.

As to Clark’s attempt to suborn perjury, the lenitive interpretive principle of application note 1 is inapposite, as that conduct did not strictly consist of the making of false statements. The district court explicitly found the testimony of Clark’s co-defendants regarding Clark’s conduct to be credible, notwithstanding Clark’s denials. We cannot say that the court’s finding was clearly erroneous.

As for Clark’s allegedly false statements to the probation officer, there was nothing ambiguous about them. There is no dispute that Clark made those statements. Once the district court found that Clark had in fact attempted to induce his co-defendants to perjure themselves, it clearly did not err in finding that Clark’s denials to the probation officer constituted obstruction of justice for purposes of § 3C1.1.

Affirmed.

      . The district court apparently applied the 1993 version of the Guidelines. The current version of § 3C1.1 is the same.

      . We find it significant that an earlier version of the application note provided, more expansively, that “the defendant’s testimony and statements should be evaluated in a light most favorable to the defendant.” U.S.S.G. § 3C1.1, comment, (n.l) (Nov.1990). In amending the application note to read as it currently does, the Sentencing Commission explained that "[t]his amendment more precisely states the meaning of this commentary.” U.S.S.G.App. C, amend. 415 (Nov. 1991).

      . The fact that the co-defendants did not recall the precise language Clark used in his entreaties to them does not undercut that finding.


author: KEARSE, Circuit Judge:

text:
    Andrew GOTTLIEB, and Jean Gottlieb, individually and as the natural parents of infants Dawn Gottlieb and Lee Gottlieb, Plaintiffs-Appellants, v. The COUNTY OF ORANGE, Orange County Department of Social Services, Esther Coppola, in her individual capacity and in her official capacity as an employee of the County of Orange and the Orange County Department of Social Services and Linda E. Douthert, in her individual capacity and in her official capacity as a supervisory employee of the County of Orange and the Orange County Department of Social Services, Defendants-Appellees, Todd Zeltman, New York State Trooper, in his individual capacity, Defendant.
    No. 852, Docket 95-7535.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 2, 1996.
    Decided May 29, 1996.

      Nelson M. Farber, New York City (Akst & Akst, New York City, on the brief), for Plaintiffs-Appellants.
    ' Phyllis A Ingram, Nyack, New York (MaeCartney, MacCartney, Kerrigan & Mac-Cartney, Nyack, New York, on the brief), for Defendants-Appellees.
    Lansner & Kubitschek, New York City (Carolyn A. Kubitschek, New York City, of counsel), filed a brief for amicus curiae National Coalition for Child Protection Reform in support of Appellants.
    Before: OAKES, KEARSE, and WINTER, Circuit Judges.
   KEARSE, Circuit Judge:

Plaintiffs Andrew and Jean Gottlieb (the “Gottliebs”) appeal from so much of a final judgment of the United States District Court for the Southern District of New York as dismissed their claims under 42 U.S.C. § 1983 (1994) for compensatory and punitive damages against defendants County of Orange and Orange County Department of Social Services (collectively the “County”) and two County employees, Esther Coppola and Linda E. Douthert, for actions taken allegedly in violation of plaintiffs’ due process rights during a County investigation into allegations that Andrew had sexually abused plaintiffs’ two children. The district court, Vincent L. Broderick, Judge, granted partial summary judgment dismissing plaintiffs’ claims against Coppola and Douthert on the ground of qualified immunity. See Gottlieb v. County of Orange, 871 F.Supp. 625 (1994) (“Gottlieb I ”). Thereafter, the court, Charles L. Brieant, Judge, granted summary judgment in favor of the County on the ground, inter alia, that the undisputed facts established that the County had adequately trained its caseworkers. See Gottlieb v. County of Orange, 882 F.Supp. 71 (1995) (“Gottlieb II”). On appeal, plaintiffs challenge both summary judgment decisions, contending that they were entitled to summary judgment in their favor or that there were factual issues that precluded summary judgment against them. For the reasons that follow, we disagree and we affirm the judgment of the district court.

I. BACKGROUND

In 1990, the Gottliebs lived in Orange County, New York, with their daughter Dawn, age five, and their son Lee, age four. The County, through its Child Protective Services agency, investigates reports of child abuse in Orange County. On January 24, 1990, the County received from a state agency a report of an anonymous complaint of child abuse in the Gottlieb family.

A. The Abuse Investigation

As recorded by the state agency, the January 24 complaint about the Gottliebs stated that “Father pulls down his pants and underwear and dances around the living room in front of the children. This has occurred more than once. Mother is present when this occurs and laughs about it.” On January 29, the County received another complaint; the complainant no longer sought anonymity and said she was the source of the January 24 complaint. The County’s record of the complaint stated that according to the complainant (“Source”),

[y]esterday, Father pulled down his pants and underwear and danced around the living room. This has happened in the past. Mother is aware of this and she thinks that it’s funny. Father wakes Dawn up at night and gets into bed with child. Father tickles Dawn’s breasts.

An attached comment sheet also noted:

Dawn stated “Father tickles my boobies”. Dawn also said that Father wakes her up and tells her that he has to get in bed with her because she can’t sleep. Father then makes her hold him tight. Father tells child not to tell Mommy. Source is extremely concerned about confidentiality. Source watches Dawn after school at 3 p.m. and she picks Lee up at noon from nursery school. Source made first report, but was anonymous. Source wants contact this time.

Coppola, a senior caseworker for the County, was assigned to investigate the matter and was given the above information.

On January 30, Coppola contacted the Source, who repeated the substance of the above communications. In questioning the Source, Coppola focused on the substance of the allegations and did not conduct “background inquiries to evaluate the source’s reliability, or whether the source may have harbored any malice toward the plaintiffs.” Gottlieb I, 871 F.Supp. at 627-28. In her deposition, Coppola stated that though she did not specifically ask whether the Source had any malice towards the Gottliebs, she saw no evidence of malice in the Source’s responses to the questions that were asked.

On January 31, Coppola went to Lee’s nursery school, but Lee was absent; Coppola spoke to the principal, though not to Lee’s teacher. The principal said that Lee had had no behavioral problems.

1. The Interviews and Events of February 1

On the following day, February 1, Coppola interviewed, seriatim, Lee, Dawn, their mother, and their father. Lee, interviewed at his nursery school, “did not disclose any abuse”; he laughed when asked about his father’s pants falling down.

Coppola then talked with Dawn at her school in an interview lasting 45 minutes to an hour; Coppola took extensive notes of the interview and was deposed on the subject for several days. The school nurse was present for all but the first 10 minutes of the interview. At the outset, Coppola sought to build rapport with Dawn, stating that Coppola’s job was “to protect children.” Coppola also asked questions designed to measure Dawn’s ability to distinguish fact from fantasy. She determined that Dawn could count on her fingers; knew some colors, her age, and the names of family members; could remember and describe gifts, toys, and her birthday; knew that Coppola could not walk up a wall or fly, and that only birds and planes fly; and was familiar with “non-threatening body parts” such as Coppola’s nose and eyes. Dawn played with toys brought by Coppola and said she wanted to draw. Dawn drew pictures that she then covered with black.

Before the nurse joined them, Coppola asked Dawn “when [Dawn] was going to tell about Daddy losing his pants.” Coppola testified at her deposition that Dawn, who “thought it was pretty funny,”

looked at me and she said ... “How do you know that?” And she said, “It’s an in-house secret, and daddy doesn’t like tattletales.” And I said, “It’s okay. You can tell me.” And then she said how daddy lost his pants and everybody was laughing. ...

Coppola told Dawn that it was all right to tell because Coppola knew “all in house secrets.” In the presence of the school nurse, Coppola asked whether Dawn knew other body parts, and Dawn identified breasts, buttocks, and the vaginal area in colloquial terms (e.g., “boobies” for breasts). Coppola then asked, “Remember we just talked about in house secrets and you told me about Daddyf’s] pants falling down[?]”; Dawn responded that she did. Coppola reiterated that it was all right for Dawn to talk about in house secrets because Coppola knew about them, but that Dawn had to tell the truth: “it[’]s OK to tell but it has to be true[.] It has to really happen.” Coppola repeatedly reassured Dawn that what had happened was not her fault and told Dawn it was all right to tell what had happened, so long as she was telling the truth.

Coppola asked, “Did Daddy[’]s pants fall down?”, and Dawn “giggled yes.” Then Coppola, indicating her own private areas, asked, “Has any one touched you here[,] here[,] or here[?]”; Dawn said “[Y]es.” Thereafter, in response to a series of largely nonleading questions (e.g., “Who touches[?]”; “What does he touch[?]”; ‘With what[?]”; “Where[?]”; “Who knows about this[?]”; and “How do you know they know this[?]”), Dawn proceeded to state that on three occasions in the dark in her room, her father had inserted and moved his finger inside her vaginal area. Dawn said her father also touched her brother’s anus. Dawn said her mother, aunt, and grandmother knew that her father touched her, that her mother and grandmother had told her father to stop, and that her parents had fought about it. Her father had stopped for a while but then had resumed. Dawn said she had never touched her father’s private parts but that her brother had touched her private parts after seeing her father touch them. Dawn indicated that she was afraid to have anyone outside of the family learn of these events and feared that she would be punished if she talked about them outside of the home.

After the interview, Coppola asked the nurse whether Dawn had had any behavior problems; the nurse subsequently informed Coppola that there had been no behavior or attendance problems. Coppola also talked with Dawn’s teacher and, speaking only in generalities, asked her to “support” Dawn and to inform Coppola if any problems arose.

Coppola immediately reported to Douthert, her supervisor, the substance of Dawn’s statements, and Douthert told Coppola to contact law enforcement. Coppola and a state trooper, defendant Todd Zeltman, proceeded to interview Dawn at Dawn’s baby sitter’s home. According to Zeltman’s deposition, Dawn made statements confirming Coppola’s account of the initial interview.

Coppola then interviewed Dawn’s mother, Jean, who denied that Dawn had told her of any sexual abuse. Jean stated that Dawn could have gotten the idea of her father inserting and moving his finger in her vagina by watching a pornographic video that Jean claimed Dawn had viewed accidentally the prior weekend. Coppola then spoke with Dawn’s father, Andrew. Andrew said that his pants had once fallen down accidentally (an explanation Coppola testified she had found “valid”), and he denied sexually abusing Dawn.

After these interviews, Coppola informed the Gottliebs that the County would seek to take Dawn and Lee into custody pending completion of the investigation unless Jean could make suitable arrangements to separate the children from Andrew. Jean was offered the alternative of making suitable arrangements for herself and the children to stay elsewhere; she was told that it would not be suitable for them to stay with Andrew’s mother or sister, who Dawn had said knew of the abuse. The Gottliebs were also offered the alternative of having Andrew move out of the home for 90 days. The Gottliebs spoke with an attorney by telephone. Then, rather than have the children moved or removed, Andrew left the home.

2. The Subsequent Events

Although on February 1 Andrew had volunteered to take a lie detector test regarding Dawn’s allegations, he withdrew that offer on the advice of counsel. The Gottliebs and the County then agreed on a cooperative course of action. Jean took Dawn to see a physician and a psychiatrist of the Gottliebs’ own choosing “[f]or validation purposes”; after examinations, these doctors opined that there was no evidence of sexual abuse. Approximately one month after he left the home, Andrew was allowed to return and remain in the home.

Nonetheless, in April 1990, a state-agency follow-up report marked the matter “indicated” rather than “unfounded,” and a review body found that “there was ‘some credible evidence’ of sexual abuse and inadequate guardianship of both children by their parents.” No judicial proceeding was instituted, however, until October 1990, when the County applied in family court for an order directing that experts chosen by the County be permitted to examine Dawn to assess the allegations of sexual abuse. That application was withdrawn in November 1990, apparently based on an agreement between plaintiffs and the County to have County experts examine the reports of plaintiffs’ doctors who had examined Dawn in February 1990. After completing their review of those reports in January and February of 1991, the County’s experts expressed a desire to conduct independent examinations. The County did not make a new family-court application for examinations until June. That court denied the application on the ground that the existing expert opinions that no abuse had occurred, combined with the County’s delays in seeking an order permitting its own experts’ examination, persuaded the court that it was not in the best interests of the child to undergo any further examinations in connection with events alleged to have occurred some 17 months prior to the County’s June 1991 application.

Eventually, after a state administrative proceeding, the complaints against the Gott-liebs were expunged from the record.

B. The Present Action

Plaintiffs commenced the present action in January 1993 pursuant to 42 U.S.C. § 1983, alleging, inter alia, that the investigation and the removal of Andrew from the Gottliebs’ home violated their rights to procedural and substantive due process. To the extent pertinent to this appeal, the complaint alleged (1) that plaintiffs were denied procedural due process because they were not afforded a hearing before or after Andrew was forced to leave the home; and (2) that plaintiffs were denied substantive due process because (a) Coppola interviewed Dawn without plaintiffs’ knowledge and consent, (b) there was not a sufficient basis for the County to separate Andrew from his children, and (c) the County’s hiring and training of its caseworkers evinced deliberate indifference towards the privacy interests of families. Following a period of discovery, Zeltman was dismissed from the ease by stipulation, defendants moved for summary judgment dismissing the complaint, and plaintiffs cross-moved for partial summary judgment in their favor.

In Gottlieb I, Judge Broderick denied plaintiffs’ motion without comment. He granted, defendants’ motion insofar as it sought dismissal of the claims against Coppola and Douthert on the ground of qualified immunity, stating that the record provided “an objectively reasonable basis” for them “to believe there existed an ‘imminent danger’ to the daughter.” 871 F.Supp. at 629. As for the claims against the institutional defendants, the court noted that though the County argued that its training of its caseworkers did not display a deliberate indifference to constitutional rights, the County had merely “submitted a list of training courses which the defendants have taken, but ha[d] not offered any evidence as to the content taught in such courses,” id. at 631 n. 12. The court therefore denied the County’s motion, ruling that the County had not proffered evidence of “significant substantive training relating to the kinds of questioning appropriate.” Id. at 631. The court stated that such evidence could be submitted in support of a renewed summary judgment motion by the County.

The County thereafter renewed its motion, supplementing its presentation of evidence as to its hiring and training practices for caseworkers assigned to investigate allegations of child abuse. To qualify for a position in the sexual abuse unit of the County’s child protective services agency, an applicant was required to possess a four-year higher education degree and one year of casework experience. Coppola, who joined the unit in 1987 or 1988, had bachelor’s and master’s degrees in social work and took two written tests to qualify for her position as senior caseworker. Coppola received ongoing training, and by January 1990 she had completed some 46 hours of training courses whose titles indicated a focus on sexual abuse investigation and interviewing or on child sexual abuse victims. Douthert held a master’s degree in social work and, by January 1990, had completed about 39 hours of County-sponsored training with respect to the investigation of child abuse, in particular sexual abuse, and with respect to sexual-abuse interviewing skills.

The record as to the content of the County’s child protective services (“CPS”) training courses included the following. County caseworkers were taught to follow the procedures set out in the New York State Child Protective Services Program Manual (“CPS Manual”). The CPS Manual states, inter alia, that it is important to contact the source of an abuse report “to clarify information contained in the report” and “to obtain additional information.” It also states:

The CPS worker should be patient and flexible. Rapport can be established with the child by asking him/her some general questions about him/herself and by explaining the purpose of the interview in a manner appropriate to the child’s ability to understand. During the course of the interview, the CPS caseworker should ask questions in a non-judgmental and supportive way to elicit information concerning the allegations. The children need to be reassured that they are not bad, in trouble, or at fault....

Coppola’s training also included programs that used a New York State Child Protective Services guidebook called “The Sexual Abuse Interview” (“CPS Interview Guidebook”) and the New York State Child Protective Services Training Institute Guidebook (“CPS Training Guidebook”). The CPS Interview Guidebook notes that “[a] person must be able to communicate with a child and be able to elicit an account of what actually occurred without leading the child victim or introducing suggestive material prematurely.” It undertakes to ensure that at the conclusion of training, “participants will be able to ... recognize how leading questions can contaminate the objectivity of the investigative interview.” The CPS Interview Guidebook contains an exercise consisting of a column of “Leading Questions” that participants are required to transpose into “Non-leading Questions.” An “Interview Checklist” instructs caseworkers to ask themselves, “Were open ended questions asked effectively?” and “Were the questions leading/suggestive?” In addition, Volume One of the CPS Training Guidebook warns caseworkers to, inter alia, “Solicit information in a non-accusatory manner [and] ask open-ended questions.” It admonishes “DON’T ... Lead the interview by asking yes/no questions,” and “DON’T ... Tell the child what happened concerning the allegations, e.g., ‘Daddy really beat you last night, didn’t he?’.”

In Gottlieb II, Judge Brieant granted the County’s renewed and augmented summary judgment motion and dismissed the claims against the County. As to the substantive due process claim, the court reviewed the County’s evidence of its training on child sexual abuse investigation, and found that plaintiffs had “offered nothing to indicate that the training was perfunctory or that the instructions were ignored in the County’s training programs” and had “failed to provide any evidence which would establish the inadequacy of training.” 882 F.Supp. at 73. As for the procedural due process claim, the court held that there had been no violation because, inter alia, it was reasonable for Coppola, who had received adequate training, to believe that the immediate separation of Andrew from Dawn was required because of emergency circumstances. The court noted that Andrew had thereafter secured the examiners of his choice, cooperated with the investigators, been allowed to return home, and ultimately had the complaints expunged from the record. See id.

There being no remaining unresolved claims, a final judgment was entered dismissing the complaint. This appeal followed.

II. DISCUSSION

On appeal, plaintiffs principally pursue their claims (1) that they were deprived of substantive due process because the primary factual predicate for the County’s separation of Andrew from his children was statements by Dawn that had been elicited by leading questions from an improperly and carelessly trained caseworker, and (2) that they were deprived of procedural due process because the County failed to seek judicial ratification of its insistence that Andrew and the children be separated. For the reasons that follow, we are unpersuaded.

A. The Substantive Due Process Claims

It is established that parents have a fundamental, constitutionally protected liberty interest in the custody of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651-52, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Duchesne v. Sugarman, 566 F.2d 817, 825 (2d Cir.1977). Where, however, there is an objectively reasonable basis for believing that parental custody constitutes a threat to the child’s health or safety, government officials may remove a child from his or her parents’ custody at least pending investigation. See, e.g., Cecere v. City of New York, 967 F.2d 826, 829 (2d Cir.1992); Robison v. Via, 821 F.2d 913, 921-22 (2d Cir.1987); Duchesne v. Sugarman, 566 F.2d at 826. Plaintiffs claim that there was no such basis in the present ease and that all of the defendants are liable for separating Andrew from the rest of the family. We conclude that the district court properly dismissed these claims.

In order to establish the liability of a municipality in an action under § 1983 for unconstitutional acts by a municipal employee below the policymaking level, a plaintiff must show that the violation of his constitutional rights resulted from a municipal custom or policy. See, e.g., City of Canton v. Harris, 489 U.S. 378, 389, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 2436-37, 85 L.Ed.2d 791 (1985) (plurality opinion); Monell v. Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). The inference that such a policy existed may arise from “circumstantial proof, such as evidence that the municipality so faded to train its-employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.” Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir.1991); see, e.g., City of Canton v. Harris, 489 U.S. at 390-91, 109 S.Ct. at 1205-06; Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992), cert. denied, 507 U.S. 961, 113 S.Ct. 1387, 122 L.Ed.2d 762 (1993); Sorlucco v. New York City Police Department, 971 F.2d 864, 870-71 (2d Cir.1992).

A government employee sued in her individual capacity for damages arising out of her performance of discretionary functions is entitled to qualified immunity where it was objectively reasonable to believe that her acts did not violate clearly established federally protected rights. See, e.g., Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 3038-39, 97 L.Ed.2d 523 (1987); Medley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986); Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Robison v. Via, 821 F.2d at 920. The qualified immunity defense may be upheld as a matter of law when the evidence is such that, even when it is viewed in the light most favorable to the plaintiffs and with all permissible inferences drawn in their favor, no rational jury could fail to conclude that it was objectively reasonable for the defendant to believe that she was acting in a fashion that did not violate such a right. See, e.g., Robison v. Via, 821 F.2d at 921; Halperin v. Kissinger, 807 F.2d 180, 189 (D.C.Cir.1986) (Scalia, J., sitting by designation).

In order to defeat a summary judgment motion that is properly supported by affidavits, depositions, and documents as envisioned by Fed.R.Civ.P. 56(e), the opposing party is required to come forward with materials envisioned by the Rule, setting forth specific facts showing that there is a genuine issue of material fact to be tried. He cannot defeat the motion by relying on the allegations in his pleading, see id., or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible, see, e.g,, L & L Started Pullets, Inc. v. Gourdine, 762 F.2d 1, 3-4 (2d Cir.1985); Wyler v. United States, 725 F.2d 156, 160 (2d Cir.1983). The motion “will not be defeated merely ... on the basis of conjecture or surmise.” Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

In ruling on a motion for summary judgment, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought, see, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Donahue v. Windsor Locks Board of Fire Commissioners, 834 F.2d 54, 57 (2d Cir.1987). If the undisputed facts reveal that there is an absence of sufficient proof as to any essential element on which the opponent of summary judgment has the burden of proof, any factual dispute with respect to other elements becomes immaterial and cannot defeat the motion. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Burke v. Jacoby, 981 F.2d 1372, 1379 (2d Cir.1992), cert. denied, 508 U.S. 909, 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993). We will reverse the granting of summary judgment if there is any evidence in the record from which a reasonable inference on an issue of material fact could be drawn in favor of the nonmoving party. See, e.g., Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995); Bryant v. Maffucci, 923 F.2d at 982.

In the present case, there seems to be no genuine dispute as to what Dawn told Coppola. Coppola testified to the statements summarized in Part I.A.1. above; her account was confirmed by her notes of the interview. Zeltman testified in his deposition that Dawn’s statements in the subsequent interview that he attended were consistent with Coppola’s account of the first interview; Zeltman’s testimony was confirmed by his own official report. Although in response to defendants’ summary judgment motion plaintiffs denied that Dawn made certain statements, their denials were conelusory, and they did not present any evidence that would undermine the evidence presented by defendants. Indeed, Jean Gottlieb’s own deposition testimony conflicts with plaintiffs’ denial. Jean testified that after Andrew’s return to the home, Dawn said, “ T didn’t tell the truth and I know that nothing happened.’” Thus, though Jean’s testimony sought to impeach the content of Dawn’s statements, it supported defendants’ evidence that the statements were in fact made. Dawn’s statements plainly provided an objectively reasonable basis for Coppola and Douthert to believe that Andrew and Dawn should be separated, at least pending further investigation.

Although plaintiffs argue that there were issues of fact that should have precluded summary judgment dismissing their substantive due process claims, much of their argument is conelusory or ignores the record. For example, plaintiffs argue that the statements Dawn made were suspect because the questions Coppola asked were leading. But the County presented evidence of the questions asked by Coppola, and plaintiffs did not controvert that evidence. As detailed above in Part I.A1., the questions that elicited Dawn’s damaging allegations of Andrew’s manipulation of her vagina were not leading. Neither plaintiffs’ conelusory statements to the contrary nor their emphasis on preliminary questions that were to an extent leading was sufficient to create a genuine issue to be tried as to whether the material portion of Coppola’s interrogation was leading.

Further, though plaintiffs argue that “CPS caseworkers were not trained ... to avoid asking leading questions” (Plaintiffs’ brief on appeal at 41), that conelusory and unsupported assertion could not create a triable issue in light of the contrary documents submitted by the County. For example, as set out in Part I.B. above, the CPS Interview Guidebook used by the County to train caseworkers including Coppola undertook to ensure that at the conclusion of training, “participants will be able to ... recognize how leading questions can contaminate the objectivity of the investigative interview”; it provided exercises requiring the caseworker to transform leading questions into nonleading questions; and it repeatedly stressed that the caseworker must “be able to elicit an account of what actually occurred without leading the child.” (Emphases added.) Similarly, the CPS Training Guidebook admonished “DON’T ... Lead the interview by asking yes/no questions,” and “DON’T ... Tell the child what happened concerning the allegations, e.g., ‘Daddy really beat you last night, didn’t he?’.”

Plaintiffs did not come forward with any evidence to suggest that the documents submitted by the County were not used in training County CPS caseworkers in general or Coppola in particular. Plaintiffs’ chai-lenge to the adequacy of the County’s training of caseworkers is instead premised on the initial denial of summary judgment in Gottlieb I and their argument that “the fact that two federal judges could examine the same record and disagree as to whether the Constitution was violated strongly suggests that reasonable jurors could do the same.” (Plaintiffs’ brief on appeal at 39 (emphasis added).) This argument is flawed in that, inter alia, the materials before the judges in Gottlieb I and Gottlieb II were not the same. The Gottlieb I court stated that on the record before it the County had not shown adequate training, but the court invited supplementation of the record. The County thereafter presented new evidence. The Gottlieb II court made its ruling on the basis of the augmented record.

In sum, plaintiffs failed to come forward with any evidence to controvert defendants’ showing as to (a) the content of the training given Coppola and Douthert, (b) the propriety of that training, (c) the nonleading nature of the questions that elicited Dawn’s accusations against Andrew, and (d) the damning nature of the statements made by Dawn. The properly conducted investigation gave reasonable ground for Coppola and Douthert to believe that there existed circumstances warranting the separation of Andrew from Dawn pending further inquiry. The district court properly concluded that there were no genuine issues of material fact to be tried with respect to plaintiffs’ substantive due process claims because, even with all permissible inferences drawn in favor of plaintiffs, no rational juror (a) could reasonably find deliberate indifference on the part of the County in light of the training courses described above, or (b) could fail to find that Coppola and Douthert had a reasonable basis for believing that the circumstances warranted the immediate separation of Andrew from Dawn.

B. The Procedural Due Process Claims

Plaintiffs contend that they-were denied procedural due process principally because defendants failed to give them notice and a hearing before or after requiring Andrew’s separation from Dawn. The district court properly dismissed these claims as well.

A parent may not lawfully be deprived of the custody of his or her child without a hearing “at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). It is established, however, that government officials may remove a child from his or her parents’ custody before a hearing is held where there is an objectively reasonable basis for believing that a threat to the child’s health or safety is imminent. See, e.g., Cecere v. City of New York, 967 F.2d at 829; Hurlman v. Rice, 927 F.2d 74, 80 (2d Cir.1991); Robison v. Via, 821 F.2d at 921-22; Duchesne v. Sugarman, 566 F.2d at 826.

For the reasons discussed in Part II.A. above, a rational juror could not fail to conclude that defendants had an objectively reasonable basis for believing that the prompt separation of Andrew from Dawn, without pausing to obtain a court order, was necessary. The Source had reported ongoing sexual abuse of Dawn; Dawn herself described repeated molestations by Andrew; and Dawn said that Andrew did not like “tattletales” and that she expected to be punished if she spoke of those matters outside of the home. Accordingly, no pre-separation hearing was required.

The question remains whether plaintiffs were deprived of due process because there was no judicial review following Andrew’s departure from the home. Where there has been an emergency removal of a child from a parent’s custody without a hearing, due process requires that the state procedures provide the parent an opportunity to be heard at a reasonably prompt time after the removal. See generally Armstrong v. Manzo, 380 U.S. at 552, 85 S.Ct. at 1191. We conclude that the available state procedures provided Andrew with such an opportunity.

At the time of the events in the present case, the New York Family Court Act (“Act”), N.Y.Fam.CtAet §§ 1021-1030 (McKinney 1983 & Supp.1990), authorized a designated employee of a county department of social services, where there was not time to obtain a court order, to take a child into protective custody if the employee “ha[d] reasonable cause to believe that the child [wa]s in such circumstance or condition that his continuing in said place of residence or in the care and custody of the parent or person legally responsible for the child’s care presented] an imminent danger to the child’s life or health,” id. § 1024(a). In the case of such a removal on the ground of abuse, the child protective agency was required either to petition the family court for an order that the child not be returned to the home, or to recommend to the court either that the child be returned to the home or that no petition be filed. See id. § 1026. If for any reason the child was not returned to the home, the agency was required to file a petition with the court, and a hearing was required to be held not later than three court days from the date of the child’s removal. See id.; see also id. § 1021 (requiring officials to file family-court petition if child not returned within three days after removal with consent).

If the child was removed from the home pursuant to § 1024, that section required the agency, coincident with removal, to give written notice to the parent or legal custodian of the right under § 1028 of the Act to apply to the family court for the return of the child. See id. § 1024(b)(iii). Section 1028 provided that, if there was no prior hearing, the parent or legal custodian of a child temporarily removed pursuant to § 1024 could apply for an order returning the child to the applicant’s custody. Unless good cause was shown, a hearing was required to be held within three court days of the application. See id. § 1028.

Although § 1028 made express provision for the parent to make such an application only where the child had been “removed” from the home, a substantially similar successor section has been interpreted to encompass circumstances in which the child remained in her home but one parent’s custodial rights were altered. Thus, in Commissioner of Social Services ex rel. Alexandria H., 159 Misc.2d 345, 346, 348, 604 N.Y.S.2d 471, 471-72, 473 (N.Y. Fam. Ct.1993), where separated parents had joint custody of a child who resided with her mother, § 1028 was interpreted to permit the father to challenge an order releasing the child to the sole custody of the mother. Thus, Andrew had the opportunity to have a judicial hearing within three days of his departure from the home simply by making application to the family court pursuant to § 1028.

Notwithstanding Andrew’s opportunity to obtain such a hearing, plaintiffs contend that the burden of commencing a judicial proceeding was on the County and that the County’s failure to do so constituted a denial of due process. Plaintiffs rely heavily on language in Duchesne v. Sugarman stating that after the emergency removal of the children in that case, the burden of initiating judicial review was on the welfare agency. The facts of Duchesne, however, were entirely different from those here. In Duchesne, the agency had taken custody of two children in emergency circumstances because their mother had been hospitalized and there was no one to care for them. The mother did not consent, however, despite agency requests, to a transfer of custody. After the mother was released from the hospital, she immediately and repeatedly sought the return of her children. Her requests were rejected. After more than a year of such rejections, she eventually sought legal advice and commenced a habeas corpus action; only thereafter did the agency seek judicial authorization to retain custody of the children. The interval between the agency’s removal of the children and its application for judicial authorization had been more than two years. Noting that after her release from the hospital the mother had made “numerous and vociferous requests” for the return of her children, that there was “an uneven situation in which the government has a far greater familiarity with the legal procedures available for testing its action,” and that the mother was “uneducated and uninformed in legal intricacies,” the Duchesne court stated that “[i]n this situation, the state cannot constitutionally ‘sit back and wait’ for the parent to institute judicial proceedings_ The burden of initiating judicial review must be shouldered by the government.” 566 F.2d at 828.

The circumstances in Duchesne were a far cry from those here. In the present case, for example, the Gottliebs consulted with an attorney by telephone on February 1 before there was any separation of Andrew from Dawn. Further, after that consultation with the attorney, Andrew elected to leave the home pending completion of the investigation, rather than have the children uprooted to live with relatives or taken into County custody. While we do not suggest that there is no substantive deprivation where the parent elects to leave the home in preference to having the child removed, that election has an impact on what procedures are required of the governmental agency.

When the agency takes the child into its own custody, causing a complete uprooting, it must promptly seek court approval. There are sound policy reasons for not imposing such a requirement automatically when, in preference to having the child removed, the parent has temporarily agreed to leave the home. First, such a requirement would remove one incentive for the agency to offer temporary parental departure as an alternative to removal of the child; the preservation of that alternative would seem generally to be in the best interest of the child. Further, from the departing parent’s standpoint, judicial review may not be the preferred method of resolving the matter, for the statutory procedures envision a hearing within three days, and the evidence or allegations may be such that the parent believes the matter likely cannot be adjudicated quickly. He may well consider it in his or his family’s best interest to have the investigation proceed on a cooperative basis rather than by adjudication. The imposition of an automatic requirement that the agency seek a court order even after a parental departure would deprive the parent of the option to proceed on a nonadjudicative basis.

The events in this case are illustrative. The Gottliebs promptly retained an attorney, began negotiations with the County, and entered into a cooperative effort to resolve the matter. As a result, the Gottliebs were allowed to have the investigation proceed with Dawn being examined only by doctors of their own choosing — an unlikely result had there been a court proceeding— and Andrew was allowed to return home after one month rather than the three months originally envisioned for the investigation.

Further, if a departing parent wishes to have the agency initiate judicial review, he can cause it to do so simply by writing to the agency and informing it that he intends to return to the home five days later unless the agency obtains a court order forbidding his return. Had Andrew given the County such notice, it would then have been incumbent on the County to secure an order enforcing his separation from Dawn. In the absence of such notice by Andrew, however, the parties were free to resolve the matter without judicial intervention.

We conclude that due process was satisfied because Andrew had the opportunity to obtain prompt post-separation judicial review either by filing an application pursuant to § 1028 or by notifying the County of his intention to return home, which would have forced the County to seek a court order. Either would have resulted in the hearing that plaintiffs claim they were denied.

CONCLUSION

We have considered all of plaintiffs’ contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.