source: Caselaw Access Project

author: EDITH H. JONES, Circuit Judge:

license: Public Domain

text:
    KOCH REFINING COMPANY, Plaintiff, v. JENNIFER L. BOUDREAUX MV, her engines, boiler, etc., in rem., et al., Defendants. In re in the Matter of JENNIFER L. BOUDREAUX MV and Ocean Towing Service, Inc., as owners of the MV Jennifer L. Boudreaux praying for exoneration from and/or limitation of liability: Ocean Towing Service, Inc., Appellant-Cross-Appellee, and G & B Marine, Inc., Third-Party-Defendant-Appellant, Cross-Appellee, v. CONTINENTAL INS., CO., 5801 Associates, Ltd., and Ocean Transport Corp., Claimants-Appellees-Cross-Appellants. In re in the Matter of OCEAN TRANSPORT CORPORATION, as owner pro hac vice of the barge Ocean Transporter praying for exoneration from or limitation of liability: Ocean Transport Corp., et al., Third-Party-Plaintiffs, Ocean Transport Corp., Third-Party-Plaintiff-Appellee, Cross-Appellant, v. G & B MARINE, INC., et al., Third-Party-Defendants-Appellants, Cross-Appellees, 5801 ASSOCIATES, LTD., et al., Plaintiffs, v. CONTINENTAL INSURANCE COMPANY, Defendant.
    No. 94-30509.
    United States Court of Appeals, Fifth Circuit.
    June 25, 1996.

      Fred E. Salley, Lee M. Peacocke, Salley & Associates, Metairie, LA, for Appellants.
    James G. Burke, Jr., Burke & Mayer, New Orleans, LA, for Continental Ins.
    Charles E. Lugenbuhl, Nathan P. Homer, Lugenbuhl, Burke, Wheaton, Peck, Rankin & Hubbard, New Orleans, LA, for 5801 Associates, Ltd. & Ocean Transport.
    Before POLITZ, Chief Judge, and JONES and BENAVIDES, Circuit Judges.
   EDITH H. JONES, Circuit Judge:

This case arises out of the 1987 sinking of a barge, the T/B OCEAN TRANSPORTER (“the barge”), while in the tow of the MTV JENNIFER L. BOUDREAUX (“the tug”). After a bench trial, the district court found the tug % liable and the barge % liable, and awarded the barge’s owners $2.67 million. Both parties now appeal the judgment. Two issues seem to us most worthy of discussion: the court’s decision to disqualify Richard Vinas as an expert witness, and the denial of prejudgment interest. Upon consideration of these issues and the others raised by the parties, however, we affirm.

I. BACKGROUND

The barge was owned by 5801 Associates, Ltd. (“5801”). It had been constmcted in 1979 and was extended in 1980 by the addition of a notch extension to its stem. In 1986, 5801 bareboat chartered the barge to Ocean Transport Corporation (“OTC”). In 1987, OTC procured a charter from Koch Chemical Corporation (“Koch”) to transport paraxylene from Corpus Christi, Texas to Wilmington, North Carolina. OTC hired Ocean Towing Services, Inc. (“Ocean Towing”) to tow the barge to Wilmington. Ocean Towing owns the tug and is an affiliate of G & B Marine Service, Inc. (“G & B”) (G & B and Ocean Towing are collectively referred to as “the tug interests”).

On November 24, 1987, the JENNIFER L. BOUDREAUX left Corpus Christi with the barge in tow. She was initially under orders to rendezvous off Galveston, Texas with another tug, the AMERICAN PATRIOT, so this second tug could tow the barge to Wilmington. However, the AMERICAN PATRIOT developed engine problems, and Todd Lyons, the secretary/treasurer and comptroller of G & B, determined that the JENNIFER L. BOUDREAUX could make the entire voyage. At that time, he directed the JENNIFER L. BOUDREAUX to proceed to Wilmington and to stop for fuel in Miami, Florida. Lyons later determined the Miami stop was not necessary, and instructed the tug to proceed directly to Wilmington and to follow a course in the Gulf Stream to save time and fuel.

Neither the tug’s captain or crew had ever been in the Atlantic north of Jacksonville, Florida. The only chart on board showed the coastline from Brownsville, Texas to Charleston, South Carolina. It did not depict their final destination of Wilmington and did not detail ports along the East coast. Although detailed charts were available en route, the crew did not attempt to obtain them.

On December 3rd, the tug received several gale warnings, due to an approaching cold front, from the National Weather Service. Winds of 30-40 knots and seas of 8-14 feet were forecast for the following afternoon and evening. The tag reported them to Lyons. He advised the tug that the weather system would move away from it, and directed it to remain on course in the Gulf Stream. Later that evening, weather conditions began to deteriorate as the gale approached. Despite the steadily worsening weather, the tug reduced its speed but continued in the Gulf Stream. The tug received several more gale warnings that night.

The next day, December 4th, the tug encountered, exactly as forecasted, winds of 25 to 35 knots and seas of 12 to 14 feet with occasional 20 foot swells. The weather conditions in the Gulf Stream were significantly worse than those closer to shore. On December 3rd and 4th, the maximum seas halfway between the Gulf Stream and the shore were 10 feet. Within ten miles of the shore, the seas reached a maximum of 4 feet.

During the storm, the barge was constantly splashed with water and rolled from side to side. It frequently plowed beneath 20 foot swells. The barge’s deck and raised trunk were continually covered with water from approximately noon on December 3rd to 8:00 p.m. on December 4th.

At that time, the tug was hit by a series of large waves and the tow line snapped. The crew attempted to retrieve the barge, but could not because the tug’s shackle, which connected the tow line to the barge’s bridge, had broken. For about an hour, the barge rolled from side to side as it was pounded by waves. Gradually, it began to sink, and finally sank completely around midnight on December 6th. The barge was then in waters 200 fathoms deep and was 120 miles from shore. Neither the barge nor its cargo has been recovered.

The expected lawsuits were filed: 5801 and OTC sued the barge’s insurer, Continental Insurance Company (“Continental”); the cargo owner Koch sued Ocean Towing and G & B; Ocean Towing and G & B sued for limitation of liability; and OTC, 5801, and Continental sued for limitation of liability (Continental, 5801, and OTC are collectively referred to as “the barge interests”). The cases were consolidated.

Koch settled its claims before trial. In May 1993, 5801, OTC, and Continental also settled their dispute and agreed to assert a joint claim for the barge’s loss, leaving two (consolidated) cases for trial. The barge interests were suing the tug interests for negligent towing, seeking to recover for the barge’s loss. In turn, the tug interests were suing for limitation of liability and to recover towage fees and related expenses.

After the bench trial in September 1993, the district court found the tug interests to be ⅔ at fault and the barge interests to be at fault for the barge’s sinking. It awarded the barge interests $2.67 million, but denied pre-judgment interest on the award. The district court denied the tag interests’ claims for limitation of liability and towage fees.

Both parties timely appealed and cross-appealed the judgment. The tug interests argue the district court 1) abused its discretion in disqualifying expert witness Richard Vinas; 2) abused its discretion in permitting expert Norman Antrainer to testify about the barge’s value; 3) erred in finding the tag breached its duties of seaworthiness and care; 4) erred in denying their petition for limitation of liability; and 5) erred in denying towage fees. The barge interests argue the district court 1) clearly erred in finding the barge unseaworthy; and 2) abused its discretion in denying pre-judgment interest.

II. DISCUSSION

A. Disqualification of Richard Vinas

The tug interests contend the district court erred in disqualifying expert witness Richard Vinas. Vinas had originally been retained as an expert by Continental in its insurance dispute with 5801 and OTC. Continental paid him approximately $8000, received two detailed written reports of his opinions, and listed him as a “will call” expert for the scheduled August 1990 trial date. This date was suspended. It is not clear when Continental released him. At trial three years later, Vinas remained listed as a “will call” expert by the barge interests, although they rested without calling him.

On September 23,1993, the barge interests discovered that the tug interests had made ex parte contacts with Vinas and had apparently retained him in August 1993. The following day, the barge interests moved to disqualify Vinas as a witness and to sanction the tug interests for their actions. The district court heard argument, and, after reviewing memoranda from both sides, disqualified Vinas. It concluded Continental had retained Vinas, had provided him with confidential information, and “[had] not releasefd] Vinas to use the information he had compiled and received in his work on the case.” The tug interests appeal Vinas’s disqualification.

Federal courts have the inherent power to disqualify experts, Campbell Ind. v. M/V GEMINI, 619 F.2d 24, 27 (9th Cir.1980), although cases that grant disqualification are rare, English Feedlot, Inc. v. Norden Lab., Inc., 833 F.Supp. 1498, 1501 (D.Col.1993). Initially, we point out that this is not a ease in which the expert switched sides. If that were the case, “no one would seriously contend that a court should permit a consultant to serve as one party’s expert where it is undisputed that the consultant was previously retained as an expert by the adverse party in the same litigation and had received confidential information from the adverse party pursuant to the earlier retention. This is a clear ease for disqualification.” Wang Lab., Inc. v. Toshiba Corp., 762 F.Supp. 1246, 1248 (E.D.Va.1991) (citations omitted). However, in the instant case, it was Continental that switched sides, not Vinas. Continental had retained Vinas to be an expert in its insurance coverage dispute with 5801 and OTC. After the dispute was settled, Continental changed its position and joined 5801’s and OTC’s side against the tug interests.

In disqualification eases other than those in which the expert clearly switched sides, lower courts have rejected a “bright-line” rule and have adopted the following test:

First, was it objectively reasonable for the first party who claims to have retained the expert to conclude that a confidential relationship existed?
Second, was any confidential or privileged information disclosed by the first party to the expert?

Mayer v. Dell, 139 F.R.D. 1, 3 (D.D.C.1991) (reviewing cases). See also Palmer v. Ozbek, 144 F.R.D. 66, 67 (D.Md.1992). Only if the answers to both questions are affirmative should the witness be disqualified. Mayer, 139 F.R.D. at 3. Many lower courts have considered a third element: the public interest in allowing or not allowing an expert to testify. E.g., English Feedlot, 833 F.Supp. at 1504-5; Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F.Supp. 334, 336-37 (N.D.Ill.1990).

The party seeking disqualification bears the burden of proving these elements. Cordy v. Sherwin-Williams Co., 156 F.R.D. 575, 580 (D.N.J.1994). We review the district court’s decision for an abuse of discretion. English Feedlot, 833 F.Supp. at 1501-2.

Initially, a court must determine whether the retaining party and the expert had “a relationship which permitted [the retaining party] reasonably to expect that any communication ... would be maintained in confidence by [the expert].” In re Ambassador Group, Inc. Litigation, 879 F.Supp. 237, 243 (E.D.N.Y.1994). Lower courts have found such a relationship to exist when “the record supports a longstanding series of interactions, which have more likely than not coalesced to create a basic understanding of [the retaining party’s] modus operandi, patterns of operations, decision-making process, and the like.” Marvin Lumber Co. v. Norton, 113 F.R.D. 588, 591 (D.Minn.1986). See also Wang Lab., 762 F.Supp. at 1249, n. 4 (collecting cases); Cordy, 156 F.R.D. at 581. By contrast, when “the expert met but once with counsel, was not retained, was not supplied with specific data relevant to the case, and was not requested to perform any services, [ ] reviewing court[s] [have] found that the evidence supports the finding that the meeting was a type of informal consultation rather than the commencement of a long-term relationship.” Mayer, 139 F.R.D. at 3-4 (internal quotations and citations omitted). See also Wang Lab., 762 F.Supp. at 1249, n. 5 (collecting cases); Nikkal Ind., Ltd. v. Salton, 689 F.Supp. 187, 190 (S.D.N.Y.1988).

In the instant case, the district court did not clearly err in finding that Continental had a reasonable expectation of confidentiality with Vinas and that such expectation continued after Vinas was “discharged” by Continental. Their relationship is more aptly described as a “long-standing series of interactions” than an initial consultation. Continental paid Vinas $8000 and had received several written reports from him.

The court must next determine whether Vinas received, or had reasonable access to, confidential information. Such information would include “discussion of the [retaining party’s] strategies in the litigation, the kinds of experts [the party] expected to retain, [the party’s] views of the strengths and weaknesses of each side, the role of each of the [party’s] witnesses to be hired, and anticipated defenses.” Mayer, 139 F.R.D. at 4. However, purely technical information is not confidential. Nikkal Ind., 689 F.Supp. at 191-92.

Continental contends its counsel “spent considerable time with Mr. Vinas explaining his entire theory of the case as well as trial tactics for the 1990 trial.” It also contends the counsel “furnished Mr. Vinas with documents that had been generated in preparation for the trial of this matter and participated in the formulation of graphics by Mr. Vinas.” The tug interests asserted that Vinas’s knowledge was limited to technical information about the barge’s condition. The district court found Vinas did receive confidential information. Given the competing arguments, this finding is not clearly erroneous.

The tug interests contend that Continental abandoned any claim to confidentiality after designating Vinas as a “will call” witness whose report was circulated among the parties in 1990. The tug interests believe they could have dispelled any notion that Continental divulged confidential information to Vinas had the court allowed an evidentiary hearing on the disqualification motion. In some situations, a hearing may be required, but this was not one of them. The substance of Vinas’s report clearly revealed that, had he not been a “will call” witness, it would have embodied confidential disclosures. But although he was originally designated a “will call” witness, it should have become clear by May 1993, when Continental switched sides, that Continental no longer desired to put into evidence his report on the cause of the sinking. During the three-year hiatus from 1990 to 1993, moreover, no party had an incentive to pursue Vinas’s testimony, so his designation as a “will call” witness became immaterial. The tug interests could have deposed Vinas at any time, of course. All of these facts were sufficiently evident to the trial court to render an evidentiary hearing superfluous, especially in the late stages of trial.

Lower courts have also “balancefd] the competing policy objectives in determining expert disqualification.” English Feedlot, 833 F.Supp. at 1504. “The policy objectives favoring disqualification include preventing conflicts of interest and maintaining the integrity of the judicial process.” Id.

“The main policy objectives militating against disqualification are ensuring that parties have access to expert witnesses who possess specialized knowledge and allowing experts to pursue their professional calling.” English Feedlot, 833 F.Supp. at 1504-5. “Courts have also expressed concern that if experts are too easily subjected to disqualification, unscrupulous attorneys and clients may attempt to create an inexpensive relationship with potentially harmful experts solely to keep them from the opposing party.” Id. at 1505. Accordingly, courts have considered whether another expert is available and whether the opposing party had time to hire him or her before trial. E.g., Wyatt v. Hanan, 871 F.Supp. 415, 422 (M.D.Ala.1994); Cordy, 156 F.R.D. at 582.

In this ease, the district court noted that the tug interests could have secured their own naval architect in June 1990, over three years before trial. While the tug interests suggest that Continental manipulated the pretrial witness list to “keep him away” from them, the tug interests did not even allege in response to the disqualification motion that they certainly intended to call Vinas. The contention of dependency on his testimony rings somewhat hollow in light of that coyness.

Moreover, we are troubled that the tug interests did not directly notify their opponents before trial that they would be calling Vinas to testify. Instead, counsel for the tug interests made several ex parte contacts with Vinas and apparently employed him as their consultant in August 1993, but the barge interests only accidentally learned of this arrangement after their side had rested.

We conclude the district court did not abuse its discretion in disqualifying Vinas under this very limited and specific factual scenario.

B. Denial of Pre-Judgment Interest

The barge interests contend the district court abused its discretion in denying prejudgment interest on their $2.67 million award. The district court gave two reasons for its denial: 1) the fact that both parties were at fault for the barge’s sinking; and 2) the extraordinary delays in the trial due to the insurance dispute among the barge interests and the reassignment of the case from Judge Collins to Judge Heebe. Weighing against the denial of prejudgment interest, the court also noted the $2.67 million award was not substantially less than the amount sought by the barge interests.

In maritime cases, an award of prejudgment interest is the rule rather than the exception. Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1157 (5th Cir.1990). “Despite admiralty’s traditional hospitality to pre-judgment interest, however, such an award has never been automatic.” City of Milwaukee v. National Gypsum Co., — U.S. -, -, 115 S.Ct. 2091, 2096, 132 L.Ed.2d 148 (1995). The Supreme Court has explained that “the allowance of interest on damages is not an absolute right. Whether it ought or ought not to be allowed depends upon the circumstances of each ease, and rests very much in the discretion of the tribunal which has to pass upon the subject, whether it be a court or a jury.” Id. (internal quotations and citations omitted). Nevertheless, a eourt has the discretion to deny pre-judgment interest “only when there are ‘peculiar circumstances’ that would make it inequitable for the losing party to be forced to pay pre-judgment interest.” Noritake Co. v. M/V Hellenic Champion, 627 F.2d 724, 728 (5th Cir.1980) (footnote omitted). See also Milwaukee, — U.S. at -, 115 S.Ct. at 2095 (summarizing circuit courts). We review the district court’s finding of peculiar circumstances for clear error, and its denial of pre-judgment interest based on those circumstances for an abuse of discretion. Orduna, 913 F.2d at 1157.

The district court’s first reason for denying pre-judgment interest was that both parties were at fault for the barge’s sinking. Contrary to the argument made by the tug interests, the Supreme Court decisively rejected this rationale in City of Milwaukee v. National Gypsum, supra, holding that “neither a good faith dispute over liability nor the existence of mutual fault justifies the denial of pre-judgment interest.” 115 S.Ct. at 2097. The Court explained that the plaintiffs award had already been reduced because of its contributory negligence. Accordingly, “[to] deny[ ] pre-judgment interest on the basis of mutual fault would seem to penalize a party twice for the same mistake.” Id. (internal citations and quotations omitted).

In passing, however, the Supreme Court endorsed in part the district court’s second reason for denying prejudgment interests, i.e. the extraordinary delay in reaching trial. See City of Milwaukee, — U.S. at -, 115 S.Ct. at 2096 (plaintiff’s delay in prosecuting a suit is an obvious “peculiar circumstance”.) The various parties filed their lawsuits in December 1987. The cases were consolidated and initially set for trial on January 8, 1990. This trial was cancelled because an attorney was ill. The trial was rescheduled for August 13, 1990, but was recessed after one day because of the FBI’s criminal investigation of the presiding judge. The trial was then set for May 13,1991. However, on May 6,1991, the district court granted 5801’s and OTC’s motion for summary judgment against Continental. The case was stayed for almost two years while Continental appealed. In February 1993, the Fifth Circuit affirmed the judgment, and, in May 1993, the barge interests settled their insurance dispute. Meanwhile, the case had been reassigned to Judge Heebe. Trial finally began in September 1993, and judgment was entered in August 1994 — 7½ years after the tug interests had filed suit.

While it is true that trial delays do not generally constitute a peculiar circumstance, Socony Mobil Oil Co., Inc. v. Texas Coastal and Int’l., Inc., 559 F.2d 1008, 1014 (5th Cir.1977), the series of delays that bedeviled this case was an exception to the rule. In In re P & E Boat Rentals, Inc., 872 F.2d 642, 655 (5th Cir.1989), the Fifth Circuit affirmed the denial of pre-judgment interest in a case in which two trial dates had been upset because the district court was hearing the 20 week criminal trial of the Governor of Louisiana. The district court found the resulting delay, which was attributable to neither party, to be a peculiar circumstance that, together with other circumstances, justified denying pre-judgment interest.

In the instant case, trial was delayed for two years because of the insurance dispute among the barge interests; neither of the tug interests was a party to that suit. Trial was delayed an additional nine months because of the criminal investigation of the presiding judge. Overall, three trial dates were upset, and trial did not occur until 3½ years after the first trial date. The district court did not clearly err in finding that these delays constituted a peculiar circumstance.

We conclude that the district court did not abuse its discretion in denying prejudgment interest.

C. Other Issues

The district court authored a long, meticulous opinion embodying his findings and conclusions. From their opposing perspectives, the parties have challenged numerous legal and factual aspects of his analysis. The issues they raise were summarized at the outset of this opinion, and we have considered each of them in light of oral argument, the briefs, and the record. Having done so, it is clear that this ease was hard-fought among skilled and experienced counsel before an attentive judge. We are not persuaded that the court clearly erred in his fact findings, committed reversible errors of law or reversibly abused his discretion.

CONCLUSION

For these reasons, the judgment of the trial court is AFFIRMED.

      . Additionally, the tug interests’ brief alleges the district court improperly did not allow them to arrange ex parte meetings with expert witnesses A.J. Herkes, Norman Antrainer, and Ed Shearer. We do not address this issue because it was not developed on appeal.

      . Continental contends it discharged Vinas in May 1993, after the insurance dispute with 5801 and OTC was settled. The tug interests contend Continental discharged him in the summer of 1990.


author: LIVELY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony CAICEDO (95-3242); William A. Ryan (95-3513), Defendants-Appellants.
    Nos. 95-3242, 95-3513.
    United States Court of Appeals, Sixth Circuit.
    Argued March 18, 1996.
    Decided June 6, 1996.

      William E. Hunt (argued and briefed), Office of the U.S. Attorney, Cincinnati, OH, for Plaintiff-Appellee.
    Mark B. Weisser (argued and briefed), Cincinnati, OH, for Defendant-Appellant Anthony Caicedo.
    Harry P. Hellings, Jr. (argued and briefed), Hellings & Pisacano, Covington, KY, for Defendant-Appellant William A. Ryan.
    Before: LIVELY, MARTIN, and MOORE, Circuit Judges.
   LIVELY, Circuit Judge.

The principal question in this case is whether subsequent actions of police officers converted what began as a consensual encounter into unlawful “seizures” of two individuals under the Fourth Amendment. The search for an answer to this question requires a rather detailed statement of facts related to the entire encounter.

I.

A.

On August 11, 1994, Officer John E. Mercado of the Cincinnati, Ohio police force was assigned to drug interdiction duty at the Greyhound Bus Terminal in Cincinnati. He was in full uniform and was armed. Officer Mercado testified that he noticed a bus passenger, later identified to be the defendant Anthony Caicedo, “wading through the crowd” while still on a bus that had just arrived at the station in an effort to move quickly to the front of the bus. Caicedo made eye contact with Officer Mercado as he was leaving the bus, “jerked” as if startled, broke eye contact and then alighted from the bus. Caicedo walked “briskly” past the officer toward the front entrance of the terminal, “clenching” his hands around the shoulder straps of his backpack. According to Mercado, Caicedo was “shaking” and “looked over his shoulder numerous times.”

Officer Mercado followed Caicedo, who was still walking rapidly, into the parking lot, where the defendant William Ryan was waiting in the driver’s seat of a parked car with the engine running. Caicedo walked directly to the car. As Caicedo stepped into the vehicle, Ryan looked up from the steering wheel and made eye contact with Officer Mercado. Ryan’s eyes widened and his jaw dropped, and he put the ear in motion before Caicedo had fully seated himself and closed the passenger side door. As Ryan drove toward the parking lot exit, he passed Officer Mercado, who leaned toward Ryan’s open window and asked something to the effect of “[d]o you mind if I talk to you for a minute?” Ryan apparently said he did not mind and stopped the car, leaving the engine running. Mercado testified that Ryan then “slumped his shoulders and dropped his head in a sighing motion.”

The officer walked closer to the vehicle and said, “I work for the narcotics unit; do you mind if I talk to yourself and the passenger?” Both Ryan and Caicedo nodded and said “yes.” Then, without any prompting, Caicedo got out of the ear, “threw” his backpack onto the front passenger seat and walked toward the rear of the car. He continued to behave nervously. Officer Mercado met Caicedo at the rear of the car and again identified himself as a narcotics investigator.

When asked, Caicedo admitted the backpack in the front seat was his, whereupon Officer Mercado obtained Caicedo’s consent to search the backpack. At some point, Mercado conducted a pat-down search of Caicedo. The pat-down search produced nothing, but the search of the backpack uncovered a purse wrapped in plastic containing what appeared to be blocks of cocaine. While Officer Mercado was going through the contents of the backpack, Caicedo put each item back into the bag as soon as the officer had examined it. Caicedo told the officer that he was coming from New York, that he was on his way to visit his girlfriend and that his girlfriend had asked Ryan to pick him up at the station. Officer Mercado was not certain whether the pat down occurred before or after the cocaine was discovered.

While Officer Mercado was searching the backpack, Agent Sweeny and Sergeant Michael J. Bogenschutz approached the vehicle to provide assistance. Agent Sweeny, with the help of his narcotics dog, confirmed the presence of narcotics. Officer Mercado placed Caicedo -under arrest, handcuffed him and advised him of his Miranda rights.

Meanwhile, Sergeant Bogenschutz spoke with Ryan, who was still in the driver’s seat. According to Bogenschutz’s testimony, Bogensehutz asked Ryan if he could speak with him, and Ryan answered in the affirmative. Further questioning prompted Ryan to state that he was at the terminal to meet Caicedo, that they were driving to the house of Caieedo’s brother, that he knew only that the house was located on Corbly Road and that Caicedo was to provide him with the necessary directions. Ryan also told Sergeant Bogenschutz that his former girlfriend, then Caicedo’s girlfriend, had asked him to pick Caicedo up at the bus terminal. Bogenschutz said Ryan would not make eye contact with him during the interview, answered his questions very slowly and appeared “somewhat nervous.” At the request of his colleagues, who had just discovered the cocaine, Sergeant Bogenschutz placed Ryan under arrest and handcuffed him. Ryan was advised of his Miranda rights when he arrived in custody at the police station.

Based on an affidavit prepared by Sergeant Bogenschutz, a state judge issued a search warrant for Ryan’s residence on Duck Creek Road in Cincinnati. In executing the warrant, police found incriminating evidence linking Ryan to drug trafficking and financial transactions with Caicedo.

B.

Each defendant was indicted by a federal grand jury for a single count of possession with the intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2.

Both defendants moved to suppress the evidence and statements obtained as a result of the August 11, 1994, encounter with Officer Mercado on Fourth Amendment grounds. Ryan also sought to suppress evidence obtained from the search of his apartment. After a hearing, the district court concluded that Officer Mercado’s encounter with the defendants was consensual and did not become a seizure subject to Fourth Amendment protections until after the drugs were discovered and the defendants were arrested. With respect to the arrest of Ryan, the court found that evidence of Ryan’s nervousness and the subsequent discovery of contraband provided probable cause to arrest Ryan without a warrant. Furthermore, the court held that the affidavit drafted by Sergeant Bogenschutz provided a sufficient basis to find ■probable cause for a warrant to search Ryan’s residence. The district court also noted that even if the warrant had been defective, the evidence found at Ryan’s residence was obtained through good faith reliance on a facially valid warrant. Accordingly, the court denied the defendants’ motions to suppress.

Following the court’s ruling, the defendants entered conditional pleas of guilty, reserving their right to appeal the denial of their suppression motions.

II.

In reviewing a district court’s ruling on a motion to suppress, we will accept the court’s factual findings unless clearly erroneous, and we consider its legal conclusions de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.) (citations omitted), cert. denied, — U.S. -, 116 S.Ct. 141, 133 L.Ed.2d 87 (1995). In our review of the court’s findings of fact, we will consider the evidence in the light most favorable to the government. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir.1995) (citing United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993)).

A.

At two places in the order denying Caicedo’s motion to suppress evidence, the district court' stated that Officer Mercado patted Caicedo down after Caicedo had given consent to search his backpack. See J.A. at 66 (“After the defendant had given consent to the search, Officer Mercado patted down the defendant.”); J.A at 69 (“It was a reasonable exercise of official authority for Officer Mercado for his own safety to pat down the defendant to discover if he had a weapon after defendant consented to the search but before he began the search.”). As noted, however, Officer Mercado testified that he could not remember exactly when he performed the pat-down search. The only other testimony regarding the time of this search came from Caicedo who stated that Mercado “put his hand” and started searching him when he left the ear and before any discussion concerning the backpack. There was no evidence to support the district court’s finding as to when the pat down occurred, and therefore, the finding that the pat down occurred after Caicedo gave consent to the backpack search was clearly erroneous.

B.

The government had the burden of proving that Caicedo voluntarily gave his consent to be patted down. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 248, 93 S.Ct. 2041, 2045, 2058, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Here, the district court assumed that Caicedo voluntarily consented to a search of his backpack before the pat down took place. Inasmuch as the government’s only witness to the encounter was unable even to state when the pat down took place, the court could find consent to that action by Officer Mercado only if other evidence supported a finding that Caicedo did so consent. There is no other evidence bearing on this question. Therefore, we find that the pat down was made without Caicedo’s consent, and Caicedo was “seized” within the meaning of the Fourth Amendment.

III.

A.

Next, our inquiry turns to whether Caicedo’s seizure was constitutionally permissible. It is well-established that “police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. at 1884). Police are also entitled to pat down the outer layers of a person’s clothing if they have reason to believe they are dealing with “an armed and dangerous individual, regardless of whether [they] ha[ve] probable cause to arrest the individual.” Id. In evaluating whether there is “reasonable suspicion” to justify a stop, we must consider the totality of the circumstances. Sokolow, 490 U.S. at 8, 109 S.Ct. at 1586.

We have held that each case such as this must be decided on the basis of the facts disclosed by the evidence received at a hearing. There is no single factor that is common to all drug interdiction encounters at locations such as airports and bus stations. See United States v. Williams, 754 F.2d 672, 676 (6th Cir.1985). In fact, very smaE differences in scenarios can lead to opposite conclusions. E.g., compare United States v. Taylor, 917 F.2d 1402 (6th Cir.1990), with United States v. Rose, 889 F.2d 1490 (6th Cir.1989). The Taylor and Rose cases had several facts in common, yet there were sufficient differences in “the totahty of the circumstances” for the courts to reach different answers to the question whether an unlawful seizure occurred.

The Supreme Court has stated that “[tjhe idea that an assessment of the whole picture must yield a particularized suspicion [of illegal activity by the person ultimately detained] contains two elements, each of which must be present before a stop is permissible.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The Court described the two elements as (1) an assessment “based upon all of the circumstances,” which yields (2) a “particularized suspicion” that the particular individual is engaged in wrongdoing. Id. The Court applied this two-step assessment to “a stop” in Cortez. Inasmuch as the initial conversations with the defendants were consensual in the present case, the prescribed assessment is applied here to Mercado’s observations leading up to the pat-down search.

B.

A careful reading of the record reveals that prior to requesting Ryan to stop the car and asking Caicedo and Ryan if he could speak to them, Officer Mercado relied principally on the defendants’ nervous reactions to his presence. On cross-examination, Mercado testified that he did not know where the bus had come from, that he had not been trained in drug courier profiles and that he did not target Caicedo because Caicedo is Hispanic. On the other hand, the officer testified that he had been trained to observe an individual’s reaction when a police officer shows an interest in that person, and that both Caicedo and Ryan exhibited extreme nervousness upon seeing him and being asked about their activities. Although nervousness in the presence of a uniformed and armed police officer may be a completely innocent reaction, the Supreme Court has directed courts to consider even innocent facts to determine whether, when taken together, they amount to reasonable suspicion. Sokolow, 490 U.S. at 9-10, 109 S.Ct. at 1586-87.

C.

The only evidence revealed during the encounter in the parking lot that reached the level of probable cause to arrest Caicedo was the cocaine discovered in the backpack. If Caicedo was unlawfully seized before he gave consent to search the backpack, the seizure vitiated that consent. Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (opinion of White, J.); United States v. Grant, 920 F.2d 376, 388 (6th Cir.1990). The discovery of the cocaine would be “fruit of the poisonous tree” because there was no “act of free will to purge the primary taint of the unlawful invasion.” Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441 (1963). In fact, by all accounts there was a very brief lapse of time between the pat-down search and the search of the backpack during which nothing of significance occurred. See United States v. Buchanan, 904 F.2d 349, 356 (6th Cir.1990) (“[dissipation of the taint resulting from an [illegality] ordinarily involves showing that there was some significant intervening time, space or event.”)

We conclude that the district court should have suppressed the cocaine discovered in the search of the backpack because Caicedo was unlawfully seized prior to giving his consent for that search. Our “assessment of the whole picture,” Cortez, 449 U.S. at 418, 101 S.Ct. at 695, leads us to believe that Officer Mercado did not have a particularized suspicion that Caicedo was engaged in illegal activity prior to the pat down. Nervousness, “in isolation,” does not meet the requirement of “reasonable and articulable suspicion.” See United States v. Knox, 839 F.2d 285, 290 (6th Cir.1988), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989). Here, Officer Mercado disavowed any other bases for detaining Caicedo—it was nervousness alone that aroused his suspicion.

IY.

We consider Ryan’s arguments separately.

A.

On appeal, Ryan also claims he was illegally detained, and apparently seeks to suppress evidence of the cocaine as against himself under the exclusionary rule. Ryan did not testify at the hearing. His counsel maintains in his appellate brief that Caicedo did not leave the car without prompting, as the district court found, but rather was asked to step out by Officer Mercado. At that point, counsel argues, a reasonable person in Ryan’s position would not have felt free to leave; therefore, Ryan had been “seized” such that reasonable suspicion was required to detain him.

In the face of conflicting testimony, we will not disturb the district court’s finding that Caicedo got out of the car on his own and not at the behest of Officer Mercado. Garcia, 866 F.2d at 151-52 (“swearing contest” between witnesses more appropriately resolved by the district court); Winfrey, 915 F.2d at 218 (district court’s conclusion adequately supported by the evidence where the court accepted the testimony of an officer over the defendant’s testimony). In any event, the record shows that Ryan was free to decline to answer the officer’s questions at any time, regardless of whether his companion was asked to get out of the car or whether he did not feel free to leave the scene physically without his companion. See Bostick, 501 U.S. at 435-36, 439, 111 S.Ct. at 2386-87, 2388. Testimony established that Officer Mercado asked for permission to speak to either Ryan or his passenger as Ryan drove toward the exit, and that Ryan voluntarily stopped the car. Sergeant Bogensehutz also obtained Ryan’s permission before asking him any questions, and Ryan responded to the questioning in a cooperative and polite manner. At no time did the officers touch or try to intimidate Ryan. Under Bostick, Ryan’s encounter with the officers prior to the discovery of the cocaine was simply not a seizure.

Without having suffered a violation of his own Fourth Amendment rights, Ryan may not vicariously assert the Fourth Amendment rights of Caicedo. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978) (citations omitted). In Wong Sun, heroin surrendered by defendant Yee was suppressed as against defendant Toy because it was the exploitation of the illegal arrest of Toy which led directly to the discovery of Yee and the heroin. Wong Sun, 371 U.S. at 487-88, 83 S.Ct. at 417-18. In contrast, the same heroin was admissible against a third defendant, Wong Sun, since the seizure of the heroin did not violate any constitutional rights of Wong Sun. Id. at 491-92, 83 S.Ct. at 419-20. Thereafter in Rakas, the Supreme Court explained:

A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Alderman [v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969)]. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule’s protections. See Simmons v. United States, [390 U.S. 377, 389, 88 S.Ct. 967, 973, 19 L.Ed.2d 1247 (1968)].

Rakas, 439 U.S. at 134, 99 S.Ct. at 425.

Here, we have concluded that Ryan’s Fourth Amendment rights were never implicated until his arrest. As explained above, only Caieedo’s constitutional rights were violated by Mercado, and it is only Caicedo who may properly object to the use of evidence tainted by this potential illegality against him. Wong Sun, 371 U.S. at 492, 83 S.Ct. at 419. In any event, counsel for Ryan acknowledged Ryan’s inability to challenge the admissibility of the cocaine before the district court:

[COUNSEL]: Just briefly.
Judge, I think it’s important that, and I don’t know if my memorandum is quite clear or not, but I am not attempting to suppress the contents of Caicedo’s bag because I don’t think that Ryan has an expectation of privacy in the contents of that bag, nor does he have standing to contest the search of that bag. That’s the first thing I want to make perfectly clear.
THE COURT: I understood that ...
[COUNSEL]: What I’m complaining about is the statements and corroborative evidence that were obtained as a result of Ryan’s arrest. That’s what I’m concerned about.

Ryan cannot now change his position and assert a “fruit of the poisonous tree” argument to suppress the cocaine. Therefore, the contraband found in Caicedo’s backpack need not be suppressed as against Ryan.

B.

In its order denying Ryan's motion to suppress, the district court found that probable cause existed for a warrantless arrest of Ryan, given the discovery of contraband in his passenger's backpack and the fact that "Officer Mercado watched [Caicedo] proceed directly to Ryan's car as if it were part of a plan, saw that Ryan appeared shaken when he saw the uniformed officer observing him and began to drive away prior to the passenger door being closed." The court concluded that "[t]hese observations suggested that Ryan probably knew what business the defendants were pursuing and that this was more than mere association." Id. Ryan continues to maintain on appeal that his nervousness and mere propinquity to Calcedo were insufficient grounds to justify his arrest, citing Sibron v. State of New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902-03, 20 L.Ed.2d 917 (1968) and Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). The facts and circumstances leading up to his arrest, he argues, would not lead a reasonable person to believe that Ryan had knowledge of Caicedo's "illicit cargo." Therefore, he contends that his arrest was illegal and that all statements he made to police following his arrest should be suppressed as a product of that illegality. We disagree. The facts leading up to the arrest of Ryan suggest much more than "mere propinqulty" to a criminal suspect.

Police may arrest a person without a warrant if they have probable cause at the time of the arrest to believe that the person has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); United States v. Sangineto-Miranda, 859 F.2d 1501, 1508 (6th Cir.1988). Probable cause is a standard more stringent than reasonable suspicion, see United States v. Braggs, 23 F.3d 1047, 1049 (6th Cir.), cert. denied, - U.S. -, 115 S.Ct. 274, 130 L.Ed.2d 191 (1994), but does not require any showing that the officer's suspicions prove to be correct or that they are more likely true than false. Sangineto, 859 F.2d at 1508 (citing Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983)). The determination of whether association with a person carrying "illicit cargo" provides sufficient probable cause for arrest is fact-specific.

Ryan's arrest occurred after the cocaine was discovered and after Mercado had observed Ryan's cohort make a "beeline" to his car, his apparent haste to leave the parking lot upon sighting Mercado and his nervousness in talking with Sergeant Bogenschutz. Once Mercado discovered the cocaine, the officers clearly had probable cause to arrest Ryan without a warrant as an aider and abettor in Caicedo's criminal activity. Because probable cause is largely an "assessment of probabffities," Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983), given the facts recited above we are not prepared to reverse the district court's determination of probable cause. Ryan's statements to police following his arrest and Miranda warnings therefore need not be suppressed.

C.

Lastly, we will examine the question of whether the search warrant for Ryan's residence was supported by probable cause. Probable cause to search has been defined as a "fair probabifity" that contraband or other evidence of a crime will be found in the place cited. Gates, 462 U.S. at 238, 103 S.Ct. at 2332. The issuing judge or magistrate "may give considerable weight to 'the conclusion of experienced law enforcement officers regarding where evidence of a crime is likely to be found' and is 'entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.'" United States v. Lawson, 999 F.2d 985, 987 (6th Cir.) (quoting United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir.1987) and United States v. Angulo-Lopez, 791 F.2d 1394, 1399 (9th Cir.1986)), cert. denied, - U.S. -, 114 S.Ct. 574, 126 L.Ed.2d 473 (1993). The determination by the issuing judicial officer is entitled to "great deference" by the reviewing court and should be scrutinized in a "realistic and common sense" manner. United States v. Algie, 721 F.2d 1039, 1041 (6th Cir.1983). Our review of the determination must consider the totality of the circumstances. Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

Ryan argues that the affidavit offered by Sergeant Bogenschutz does not support a belief that contraband or evidence would be found at Ryan’s home. He takes particular issue with the eighth and ninth paragraphs of the affidavit as demonstrating too much uncertainty on the part of the affiant. Paragraph eight stated that Ryan attempted to conceal his correct address from police, and that “the reason for hiding the correct residence could be that further evidence may be located at this location which could be used against Ryan in this particular investigation.” Paragraph nine also stated several times that Bogenschutz believed evidence may be found at Ryan’s residence.

Despite the affidavit’s use of “could be” and “may be,” the affidavit established that Sergeant Bogenschutz, the affiant, had 15 years’ experience in law enforcement generally and at least seven years’ experience specifically in narcotics investigations. The affidavit also attested to the fact that from Bogenschutz’s experience, “many drug traffickers utilize their homes to conduct their illegal narcotics trafficking activities ...,” and it listed several items drug traffickers were likely to keep at their residences. The affidavit further established Bogenschutz knew Ryan was arrested in connection with his companion’s possession of 565 grams of cocaine and that Ryan had lied about his address in statements subsequent to his arrest. Under the totality of the circumstances, we find it was reasonable to defer to the attesting officer’s expertise and that the affidavit adequately established probable cause to search. See Fannin, 817 F.2d at 1382. The district court’s ruling on Ryan’s motion to suppress is therefore affirmed.

The decision of the district court denying the defendants’ motions to suppress is AFFIRMED as to Ryan and REVERSED as to Caicedo.

      . The district court found that many of the officer’s statements at the suppression hearing were undisputed. Where there was a conflict, the court found Mercado credible and discounted Caicedo's version. Ryan did not testify. At oral argument Caicedo's attorney stated that he was not taking issue with any credibility determinations.


author: MOORE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Estell McCALL, Defendant-Appellant.
    No. 95-3047.
    United States Court of Appeals, Sixth Circuit.
    Submitted Jan. 29, 1996.
    Decided June 6, 1996.

      Thomas M. Bauer, Asst. U.S. Atty., briefed, Office of the U.S. Atty., Akron, OH, for Plaintiff-Appellee.
    Carolyn Kaye Ranke, briefed, Cleveland Heights, OH, for Defendant-Appellant.
    Before: NELSON, NORRIS, and MOORE, Circuit Judges.
   MOORE, Circuit Judge.

Defendant Estell McCall appeals his conviction and sentence for armed bank robbery, a violation of 18 U.S.C. § 2113. His primary argument is that the district court erred in failing to instruct the jury regarding his alibi defense, even though he did not request such an instruction at trial. In addition, McCall raises sundry challenges to the sufficiency of the evidence at trial, the order of proof, and the enhancement of his sentence for brandishing or displaying a firearm. For the reasons that follow, we affirm the district court’s judgment in its entirety.

I. BACKGROUND

In September 1992, an unmasked man wearing a dark baseball cap robbed the Tallmadge, Ohio branch of the Union Federal Savings Bank. The man displayed what appeared to be a revolver to the two tellers on duty and ordered them to fill his gym bag with money. As they complied, the tellers activated a security camera, which took pictures of the robbery in progress. In addition, the tellers placed some “bait money” in the gym bag, consisting of fifty-dollar bills with pre-recorded serial numbers. After the bag was filled, one of the tellers observed the robber leave the bank, enter the parking lot, and duck behind a row of parked cars. Moments later, both tellers and the branch manager saw a “brown or maroon” sedan with large, square taillights pull out of the same parking area and exit the lot.

After initial inquiries, local and federal authorities began to focus their investigation on McCall, who had been living in a nearby halfway house and who had signed out of the house on the day of the robbery. Further investigation revealed that MeCall’s mother, Phyllis Brown, also lived nearby and that her ear matched the description of the car leaving the bank. Brown consented to a search of her car, which yielded a dark baseball cap. In addition, Brown told the FBI that she had allowed her son to use the car on the morning of the robbeiy. From McCall’s fiancée, Silenthia Brown, the FBI recovered several fifty-dollar bills given to her by McCall that turned out to be some of the bait money. The federal authorities arrested McCall, who was then indicted for armed bank robbery, a violation of 18 U.S.C. § 2113(a) and (d), and using or carrying a firearm in the commission of a crime of violence, a violation of 18 U.S.C. § 924(c). No gun was ultimately recovered, however.

At trial, one of the tellers, Beverly Hutch-ens, directly identified McCall as the robber. She also testified that Brown’s ear, shown in photographs, appeared to be the car she had seen leaving the parking lot. Finally, she and the other teller, Georgina Ansell, identified the baseball cap found in Brown’s car as the one worn by the robber. The government then called Daryl Rocklin, a worker at McCall’s halfway house, and Michael Phillips, an FBI agent, to testify regarding the recovered bait money. According to Rocklin, McCall had left an envelope containing $900 in cash for Silenthia Brown. According to Phillips, it was later determined that this cash included numerous bills that had been pre-recorded as bait money. As the government pointed out at trial, McCall did not earn any money from his sales job with Encyclopedia Britannica, and so the $900 he left for his fiancée could only serve to compound any suspicion that he might be the bank robber.

McCall’s sole defense was an alibi. Although the robbery had taken place at about 11:40 a.m., Phyllis Brown testified that her son had been home with her between 11:30 a.m. and 12:00 p.m. that day. The government attempted to impeach this testimony by recalling Agent Phillips, who testified that Brown had previously told him that her son had used the car between 11:20 a.m. and 2:00 p.m. The defense objected at trial to this rebuttal testimony, but it did not recall Brown as a surrebuttal witness.

The jury found McCall guilty of bank robbery and not guilty of the separate § 924(e) firearm charge. The district court then sentenced him to 150 months in prison. In calculating McCall’s offense level under the sentencing guidelines, the court included a five-level enhancement for brandishing, displaying, or possessing a firearm during commission of the offense, under U.S.S.G. § 2B3.1(b)(2)(C). McCall objected, but the district court explicitly credited the tellers’ testimony that McCall had held what appeared to be a real gun.

II. THE ALIBI JURY INSTRUCTION

McCall’s alibi was his exclusive defense, yet he never requested an alibi jury instruction at trial. On appeal, McCall now argues that the district court’s failure to provide such an instruction, sua sponte, merits a reversal. In general, a defendant may assign error to the omission of a criminal jury instruction only when the defendant has requested the instruction and objected to its omission before submission of the case to the jury. See Fed.R.Crim.P. 30. If the defendant has failed to request a particular instruction or object to its omission, this court reviews the omission only for plain error. See United States v. Sanchez, 928 F.2d 1450, 1456 (6th Cir.1991); United States v. Hamilton, 684 F.2d 380, 385 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982).

We recognise that this court has previously held that the failure to give an alibi instruction may be plain error when appropriate alibi evidence has been presented. See Hamilton, 684 F.2d at 385. We note, however, that in Hamilton, the defendant made a clear request for an alibi instruction, and the district court simply failed to include it, without explanation. Although the Hamilton panel observed that the defendant should have specifically objected to the omission, it concluded that the district court's failure to include the instruction was nonetheless plain error, given the defendant's explicit request. In the instant case, by contrast, McCall never once alerted the district court to the need for an alibi instruction. In other words, not only was the district court deprived of an adequate opportunity to correct any potential mistake by McCall's failure to object, but also the district court was deprived of the knowledge that defendant even desired an alibi instruction by McCall's failure to request one. Given that the primary function of the alibi instruction is to remind the jury as to the government's burden of demonstrating all elements of the crime beyond a reasonable doubt, including defendant's presence at the crime scene, see District Judges Association of the Sixth Circuit, Pattern Criminal Jury Instructions, 6.02 (1991), given that the district court here did charge the jury that "[t]he government must prove every element of the crimes charged beyond a reasonable doubt," Tr. at 225, and given that McCall argued in his closing that the government had failed to prove his presence at the bank beyond a reasonable doubt, Tr. at 207, we conclude that the omission in the instant case did not rise to the level of plain error.

We note that the federal circuits are not in agreement as to whether the failure to give a requested alibi instruction is reversible error. Compare Hamilton and United States v. Zuniga, 6 F.3d 569, 571-72 (9th Cir.1993) with United States v. Laury, 49 F.3d 145, 152 (5th Cir.), cert. denied, - U.S. -, 116 S.Ct. 162, 133 L.Ed.2d 105 (1995), and United States v. Agofsky, 20 F.3d 866, 872 (8th Cir.), cert. denied, - U.S. -, -, 115 S.Ct. 280, 363, 130 L.Ed.2d 196, 316 (1994). However, all courts are in agreement that the failure to give an unrequested alibi instruction should not be deemed plain error. See Goldsby v. United States, 160 U.S. 70, 77, 16 S.Ct. 216, 219, 40 L.Ed. 343 (1895); United States v. Atkins, 487 F.2d 257, 259 (8th Cir.1973); United States v. Bynum, 485 F.2d 490, 503 (2d Cir.1973), vacated on other grounds, 417 U.S. 903, 94 S.Ct. 2598, 41 L.Ed.2d 209 (1974); United States v. Harris, 458 F.2d 670, 678 (5th Cir.), cert. denied, 409 U.S. 888, 93 S.Ct. 195, 34 L.Ed.2d 145 (1972). We follow these decisions and hold that omission of the instruction is not plain error, as long as the jury is otherwise correctly instructed concerning the government's burden of proving every element of the crimes charged, and the defendant is given a full opportunity to present his alibi defense in closing argument.

III. THE ORDER OF WITNESSES

McCall next asserts that the district court abused its discretion by permitting the government to recall Agent Phillips in an attempt to impeach Phyffis Brown's alibi testimony. McCall cites Federal Rule of Evidence 613(b), which provides in pertinent part: "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.” According to McCall, the government’s failure to present the evidence when Phillips first testified during the case in chief or to confront Brown on cross-examination denied Brown the “opportunity to explain or deny the same.”

We addressed a similar claim in United States v. McGuire, 744 F.2d 1197, 1204 (6th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1866, 85 L.Ed.2d 159 (1985), where we noted that “the prosecution should have confronted the [non-party] witness” with the alleged prior inconsistent statement on cross-examination, but we ultimately held that the district court’s procedure was not reversible error because the defense could have recalled its witness as a surrebuttal witness. This is consistent with the advisory committee notes to Rule 613(b), which explain: “The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine the statement, with no specification of any particular time or sequence.” Fed.R.Evid. 613 advisory committee notes. Because the defense in this case elected not to recall Phyllis Brown as a surrebuttal witness, arguing instead that the government’s impeachment attempt was a failure, we hold that there was no abuse of discretion.

IV. SUFFICIENCY OF THE EVIDENCE

McCall also argues that the evidence was insufficient to convict him, for two reasons: first, the defense’s alibi evidence was “uncontroverted”; second, the jury’s verdict was inconsistent. The first reason may be disposed of instantly. Beverly Hutchens’s testimony alone was sufficient to neutralize McCall’s alibi defense and sustain a conviction, because she affirmatively identified McCall as the robber of the bank. The defense misapprehends the standard of review on appeal, which requires the court to view the evidence “in the light most favorable to the prosecution.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Even if we were able to ignore the other compelling evidence against McCall—identification of his baseball cap and automobile, and the bait money recovered from Silenthia Brown—his conviction would still stand, based on Hutchens’s identification.

McCall’s second contention is that his acquittal on the firearm charge, 18 U.S.C. § 924(c), means he cannot be convicted under 18 U.S.C. § 2113(d), which prohibits bank robbery through “the use of a dangerous weapon or device.” This argument rests upon the premise that a “firearm” under § 924(c) and a “dangerous weapon or device” under § 2113(d) are the same thing, and an acquittal on one requires an acquittal on both. The premise is faulty. A “firearm” under § 924(e) is given a very specific definition:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

18 U.S.C. § 921(a)(3). A “dangerous weapon or device,” on the other hand, may include, but is not limited to, a firearm. For instance, a toy gun may be considered a “dangerous weapon or device” under § 2113(d), see United States v. Medved, 905 F.2d 935, 939-40 (6th Cir.1990), cert. denied, 498 U.S. 1101, 111 S.Ct. 997, 112 L.Ed.2d 1080 (1991), even though a toy gun does not meet the above definition of “firearm.” In the present case, because no gun was ever recovered, the jury could easily have found that the government failed to show the existence of a “firearm” beyond a reasonable doubt, but it could also have found that the government did show the use of a “dangerous weapon or device” beyond a reasonable doubt, based on the bank tellers’ testimony that they saw what looked like a revolver. In other words, the jury could have found that the government had proved, at a minimum, the existence of a toy gun or a phony gun. Under Medved, this falls under the definition of “dangerous weapon or device,” and as a result, we are not persuaded that the jury rendered an inconsistent verdict.

Furthermore, we should explain that even if the verdict was inconsistent, we still

would not be able to reverse. The Supreme Court has held that inconsistent verdicts do not give rise to a sufficiency of the evidence challenge, with the possible exception of a guilty verdict on mutually exclusive crimes. See United States v. Powell, 469 U.S. 57, 67-69, 105 S.Ct. 471, 478-79, 83 L.Ed.2d 461 (1984). Because McCall was clearly not convicted of mutually exclusive offenses, the verdict in this case, if inconsistent, remains "insulated" from review. Id. at 69, 105 S.Ct. at 479.

V. SENTENCING ENHANCEMENT FOR BRANDISHING A FIREARM

Finally, McCall challenges the five-point sentencing enhancement under U.S.S.G. § 2B3.1(b)(2)(C). Although the jury acquitted McCall of using or carrying a firearm in the commission of the bank robbery (the § 924(c) charge), the district court added five points to his offense level, under the 1992 guidelines, for "brandish[ing], display[ing], or possess[ing]" a firearm. United States Sentencing Commission, Guidelines Manual, § 2B3.1(b)(2)(C) (Nov.1991). McCall now contends that the § 924(c) acquittal precluded the district judge from making this enhancement.

A district court's determination that a defendant possessed a firearm during an offense "is a factual finding subject to the clearly erroneous standard of review." United States v. Duncan, 918 F.2d 647, 650 (6th Cir.1990), cert. denied, 500 U.S. 933, 111 S.Ct. 2055, 114 L.Ed.2d 461 (1991). In Duncan, this court was faced with virtually the same sentencing issue as found here, and we held that an acquittal under 18 U.S.C. § 924(c) does not necessarily preclude a sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b). The rationale for this conclusion was that the government's burden is significantly lighter for sentencing purposes: "[Am acquittal on a firearms carrying charge leaves ample room for a district court to find by the preponderance of the evidence that the weapon was possessed during the drug offense." Duncan, 918 F.2d at 652. The same rationale applies to McCall's sentence. Even though the government failed to prove beyond a reasonable doubt that McCall used or carried a firearm, the district court could logically have found that McCall did brandish, display, or possess a firearm by a preponderance of the evidence. Indeed, the district court explicitly cited Georgina Ansell's and Beverly Hutchens's testimony as the basis for the enhancement, stating that "none of these tellers indicated any doubt during the trial ... that this was, in fact, a firearm, and as a result, that is why subdivision C is being applied in this case." Sentencing Hr'g at 7-8. Given the unequivocal testimony at trial and the district court's clear citation in the record, we cannot say that the district court's factual finding was clearly erroneous. In addition, we discern no error in the application of H.S.S.G. § 2B3.1(b)(2)(C).

The district court's judgment is AFFIRMED.

      . Pattern Instruction 6.02, the alibi instruction, states:
      (1) One of the questions in this case is whether the defendant was present [at the scene of the crime].
      (2) The government has the burden of proving that the defendant was present at that time and place. Unless the government proves this beyond a reasonable doubt, you must find the defendant not guiIt~'.

      . We note, also, that after Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), an acquittal on a § 924(c) charge may not necessarily decide the issue of possession for another reason: "uses or canies" under that statute does not always mean the same thing as "possesses." See United States v. Moore, 76 F.3d 111, 113-14 (6th Cir.1996).


author: RALPH B. GUY, Jr., Circuit Judge. RYAN, Circuit Judge,

text:
    CINTECH INDUSTRIAL COATINGS, INC.; General Polymers Corporation; Superior Label Systems, Inc.; Sentry Paint Technologies, Inc.; PMC, Inc.; Individually and on Behalf of all Others Similarly Situated, Plaintiffs-Appellees, v. BENNETT INDUSTRIES, INC., et al., Defendants, Central Can Company, Defendant-Appellant.
    No. 94-4115.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 26, 1996.
    Decided June 11, 1996.

      Richard L. Creighton, Jr. (briefed), Louis Francis Gilligan, Keating, Muething & Klekamp, Cincinnati, OH, for Plaintiffs-Appellees Cintech Indus. Coatings, Inc., General Polymers Corp., Superior Label Systems, Inc., Sentry Paint Technologies, Inc.
    Richard L. Creighton, Jr., Louis Francis Gilligan, Keating, Muething & Klekamp, Cincinnati, OH, Richard A. Lockridge (argued), Schatz, Paquin, Lockridge, Grindal & Holstein, Minneapolis, MN, for Plaintiff-Appellee PMC, Inc.
    Patrick F. Solon, Mark Crane (argued), Mary Kay MeCalla (briefed), Hopkins & Sutter, Chicago, IL, for Defendant-Appellant Cent. Can Co.
    Before: MARTIN, GUY, and RYAN, Circuit Judges.
   RALPH B. GUY, Jr., Circuit Judge, delivered the opinion of the court, in which BOYCE F. MARTIN, Jr., Circuit Judge, joined. RYAN, Circuit Judge (pp. 1203-1204), delivered a separate dissenting opinion.

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Central Can Company, seeks to enforce a conditional “most favored nation” clause in its settlement agreement with plaintiffs in this antitrust action. Under that clause, plaintiffs agreed not to settle their claims against other defendants absent certain conditions without offering similar terms to Central Can. Central Can contends that plaintiffs’ motion to dismiss their claims against defendant Cleveland Steel Container Corporation triggered the most favored nation clause. The district court denied Central Can’s motion to enforce, and, pursuant to Fed.R.Civ.P. 54(b), directed entry of a final judgment as to that motion. We affirm.

I.

On March 12, 1992, plaintiffs, Cintech Industrial Coatings, Inc., General Polymers Corporation, and Superior Label Systems, Inc., initiated this antitrust class action against certain manufacturers of steel pails, including Central Can Company (Central Can), Cleveland Steel Container Corporation (Cleveland Steel), Van Leer Containers, Inc. (Van Leer), Fein Container Corporation, Southline Metal Products Company (South-line), Prospect Industries Corporation (Prospect), Brockway Standard, Inc. (Brockway), and Bennett Industries, Inc. (Bennett). Sentry Paint Technologies, Inc. and PMC, Inc. later brought actions asserting similar claims, which actions were consolidated with the pending case.

The plaintiff class consists of all United States customers who purchased new steel pails from defendants during the period January 1, 1989, through February 29, 1992. The complaint alleges that during that period, defendants and other unnamed co-conspirators conspired to suppress competition by fixing prices of the steel pails.

One of the defendants, Van Leer, entered into a written settlement on the day the complaint was filed and agreed to pay the plaintiff class $1.5 million, approximately 4 percent of the gross dollar amount of Van Leer’s sales of steel pails for one year during the period of the alleged conspiracy. That summer, Van Leer was indicted and pleaded guilty to price fixing in federal court.

Approximately one month after the complaint was filed, Central Can began settlement negotiations with plaintiffs. In its first meeting with plaintiffs, Central Can agreed to pay plaintiffs $625,000 plus interest, approximately 4 percent of its sales for one year during the period of the alleged conspiracy. As part of the agreement, however, Central Can insisted upon a most favored nation clause.

The parties negotiated language that reads as follows:

Plaintiffs agree that, unless present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant in these cases is substantially lessened or reduced, including, but not limited to, by reason of the entry of one or more court orders in these cases or the filing of a bankruptcy or similar petition by such similarly situated defendant, they will not enter into a settlement of their claims against any such similarly situated defendant that is more favorable to such defendant without offering similar terms to Central Can.

Within three months of the complaint having been filed, a settlement agreement was signed. That agreement represents “a full, complete, and integrated statement” of the terms agreed upon by the parties. While the parties agreed that the settlement “shall not constitute or be an admission” of liability by Central Can, the agreement makes clear that plaintiffs allege that Central Can “was a participant in an unlawful conspiracy to fix prices charged to purchasers of new steel pails” in violation of antitrust laws. Notwithstanding their claims, plaintiffs represented in the agreement “that it would be in their best interests and in the best interests of the Class” to settle with Central Can, and that the settlement was “fair, reasonable, and adequate and in the best interests of plaintiffs and the members of the Class.” The parties agreed that the claims “be settled, compromised and dismissed on the merits and with prejudice.” In partial consideration, Central Can agreed to pay $26,042 monthly to plaintiffs beginning on June 15, 1992, until May 15, 1994. Shortly thereafter, plaintiffs negotiated a similar settlement, including a most favored nation clause, with Bennett, in which the company agreed to pay $375,000, approximately 4 percent of its sales for one year during the period in controversy.

Extensive discovery then ensued involving the remaining defendants, Brockway, Cleveland Steel, Prospect, and Southline. In late April of 1993, Brockway agreed to settle on the same terms as Central Can and Bennett, paying $1.3 million, which represented 4 percent of its sales during the period in dispute. In June 1993, plaintiffs settled with Southline for $203,000, under the same terms as the Central Can, Bennett, and Brockway settlements.

During the discovery process, tens of thousands of documents and records produced by the various defendants were reviewed and more than 20 depositions were taken. By the conclusion of discovery in October 1993 only two defendants remained, Cleveland Steel and Prospect. Plaintiffs’ counsel, reviewing the evidence against both defendants, determined that there was insufficient evidence of Cleveland Steel’s participation in the events alleged in the complaint to continue to pursue plaintiffs’ claims against the company.

Plaintiffs informed Cleveland Steel that they would seek dismissal without prejudice of all claims against Cleveland Steel. Cleveland Steel, however, indicated that the dismissal should be with prejudice. Plaintiffs and Cleveland Steel then negotiated a mutual release, which “in consideration of the dismissal of all claims with prejudice against Cleveland Steel” also released each party from all claims arising out of the litigation.

On February 18, 1994, plaintiffs filed a motion to dismiss their claims against Cleveland Steel with prejudice, citing the lack of sufficient evidence as well as the Justice Department’s inaction against Cleveland Steel in the related criminal matter, and attaching the mutual release. Pursuant to the terms of the dismissal, Cleveland Steel customers would have the right to participate in any sums recovered as a result of this litigation.

While the negotiations with Cleveland Steel were ongoing, plaintiffs continued to pursue their claims against Prospect. On December 2, 1993, Prospect filed a motion for summary judgment. Plaintiffs vigorously opposed Prospect’s motion and submitted voluminous records, deposition transcripts and an opinion from an economist in support. Notwithstanding, the district court granted the motion on April 14, 1994. On June 27, 1994, pursuant to Fed.R.Civ.P. 23, the court gave preliminary approval to dismissing Cleveland Steel and then ordered that notice be sent to the plaintiff class of the proposed dismissal.

On the same day that the summary judgment motion was granted in favor of Prospect, Central Can filed its motion to enforce the most favored nation clause contained in its settlement agreement. Central Can contended that plaintiffs’ motion to dismiss their claims against Cleveland Steel, which was pending at the time Central Can filed its motion to enforce, was a settlement. It further contended that under that settlement, Cleveland Steel did not have to pay any monies to plaintiffs, and that under the most favored nation clause of Central Can’s settlement agreement, Central Can was therefore entitled to a complete refund of all monies it had paid into the settlement fund.

Plaintiffs opposed Central Can’s motion to enforce and included an affidavit by plaintiffs’ counsel elaborating on the reasons for their dismissal of the claims against Cleveland Steel. Central Can filed a reply and oral argument was held. At no time did Central Can seek an evidentiary hearing.

On June 27, 1994, the same day that the district court preliminarily approved the dismissal of Cleveland Steel, it also denied the motion to enforce. The district court construed the Cleveland Steel dismissal as a settlement, and it determined that the Central Can settlement agreement’s most favored nation clause was not triggered, since that clause permitted settlements under different terms when “present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant in these cases is substantially lessened or reduced.” The court concluded that as a result of extensive discovery, the posture of this litigation had materially changed so that the possibility of recovery against Cleveland Steel was significantly reduced or lessened, and therefore, under the clause plaintiffs were not obligated to offer Central Can the same terms as offered to Cleveland Steel. Subsequently, the court directed entry of a final judgment denying the motion to enforce pursuant to Fed.R.Civ.P. 54(b). On March 13, 1995, final approval was given dismissing all claims against Cleveland Steel.

II.

Under the most favored nation clause, plaintiffs were required to offer Central Can terms similar to those offered to Cleveland Steel under its later settlement with plaintiffs unless:

present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant in these cases is substantially lessened or reduced, including, but not limited to, by reason of the entry of one or more court orders in these cases or the filing of a bankruptcy or similar petition by such similarly situated defendant....

Neither plaintiffs nor Central Can contend that the language of the clause is ambiguous. In addition, plaintiffs, for the purposes of appeal, concede that Central Can and Cleveland Steel are similarly situated defendants as that phrase is used in the most favored nation clause contained within the agreement.

Central Can argues that the exception does not apply when the material change in present circumstances relates to plaintiffs knowledge of the facts concerning liability. In essence, Central Can contends that facts are immutable and therefore a change in plaintiffs’ awareness or understanding of such facts cannot trigger the exception. We disagree.

Under plaintiffs’ complaint, each defendant was charged with conspiracy to violate the antitrust laws. When Central Can settled with plaintiffs on June 5, 1992, the parallel criminal investigation had not been complex ed. There had been no discovery, and only a preliminary scheduling order setting discovery deadlines was in place. Central Can, rather than litigating to determine the extent of its liability, paid a set sum in settlement of plaintiffs’ claim. Thereafter, however, plaintiffs and the remaining defendants, including Cleveland Steel, engaged in substantial discovery to determine liability. The materials discovered and expert analysis of those materials showed a range of exposure among defendants. As for Cleveland Steel, discovery revealed insufficient facts to support liability. In addition, the criminal investigation had been completed and no indictment had been returned against Cleveland Steel.

Notwithstanding these facts, Central Can argues for a narrow construction of the clause at issue, relying on the rule of ejusdem generis. Under that rule, “where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.” Black’s Law Dictionary p. 517 (6th ed.1990). Central Can argues that the instances in which Cintech may settle under different terms are limited to those instances expressly set forth in the clause: by reason of entry of an order by the court or the filing of bankruptcy by a defendant.

The ejusdem generis rule only applies, however, if the provision in question does not express a contrary intent. Here, the clause provides that when

present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant in these cases is substantially lessened or reduced, including, but not limited to, by reason of the entry of one or more court orders in these cases or the filing of a bankruptcy or similar petition by such similarly situated defendant....

Numerous courts have found that the use of the words “including, but not limited to,” as appear in this clause, reflect such a contrary intent. For example, in Cooper Distributing Co. v. Amana Refrigeration, Inc., 63 F.3d 262 (3d Cir.1995), Cooper sought to enforce the rule of ejusdem generis against a sales reservation clause referring to sales “including but not limited to” sales to governmental entities, for export, etc. Id. at 280. Cooper argued that because “retail sales” were not included in the list and were not of a similar class to those types of sales listed, Amana was precluded under the language from engaging in retail sales. The Third Circuit rejected this argument, noting that the “including but not limited to” language “plainly expressed] a contrary intent” and therefore the rule did not apply. Id.; see also Ramirez, Leal & Co. v. City Demonstration Agency, 549 F.2d 97, 104 (9th Cir.1976) (the “including, but not limited to” language is often used to mitigate the rule of ejusdem generis).

Although case law involving most favored nation clauses is scarce, at least one court has interpreted the language, “unless present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant ... is substantially lessened or reduced,” to allow for settlements based on discovery. In re Corrugated Container Antitrust Litigation, No. 310, 1983 WL 1839 at *7 (S.D.Tex.1983) (concluding “if present circumstances changed as events of the litigation unfolded in the criminal or civil actions, as discovery progressed, or the governing law changed, the plaintiffs were free to settle on terms more favorable to a similarly situated defendant”).

Finally, we note the disfavored status of most favored nation clauses because they often inhibit compromise and settlement. See generally Manual for Complex Litigation (Third) § 23.23 at 182 (1995) and cases cited therein. This effect can be particularly disruptive in the orderly disposition of such complex litigation as antitrust class actions, which by their nature involve multiple defendants. For this reason, some courts have refused to recognize such clauses. See, e.g., In re Chicken Antitrust Litigation, 560 F.Supp. 943 (N.D.Ga.1979) (striking most favored nation clauses from antitrust settlement agreements); see also Manual at 182 (“court may have to consider voiding or limiting [most favored nation clauses] if enforcement becomes inequitable”). Although we do not adopt that approach here, these cases provide further support for the result reached in this case.

AFFIRMED.

RYAN, Circuit Judge,

dissenting.

In my judgment, the plaintiffs’ settlement with Cleveland Steel triggered the most favored nations clause in the agreement between the plaintiffs and Central Can, requiring the plaintiffs to offer Central Can comparable terms. Consequently, I respectfully dissent.

I.

The settlement agreement between the plaintiffs and appellant Central Can imposed three preconditions for application of the most-favored nations clause: (1) that the plaintiffs enter into a settlement with another defendant on terms more favorable than those accepted by Central Can; (2) that Central Can and the other defendant are similarly situated; and (3) that there has been no material change in circumstances which excuses compliance. Central Can argues that all three preconditions are met here. In response, the plaintiffs claim that their transaction with Cleveland Steel was not a settlement, and that information they learned during discovery constituted a material change in circumstances.

A.

The first requirement for application of the most-favored nations clause is that the plaintiffs must have entered into a “settlement” with Cleveland Steel. Although the majority opinion does not explicitly decide this question, I do not believe that there can be any serious question that a dismissal with prejudice in exchange for mutual releases is a settlement. Indeed, the proposition is entirely uneontroversial. A “settlement” is “an agreement by which parties having disputed matters between them reach or ascertain what is coming from one to the other.” Black’s Law DICTIONARY 1372 (6th ed.1990). If the plaintiffs had simply dismissed Cleveland Steel, for no consideration, and without discussing the matter beforehand with Cleveland Steel, such as taking a non-suit, I would be disinclined to call their action a settlement. If that had occurred, there would have been no communication between the parties, which is implicit in the term “settlement,” and the effort and cost would have been all on the plaintiffs’ side, with Cleveland Steel essentially being a recipient of largesse. But here, there was a negotiation and a bilateral exchange, a quid pro quo. The plaintiffs gave a dismissal with prejudice, and Cleveland Steel gave, in return, a release. Under these circumstances, it is plain that the parties reached a mutually acceptable resolution of their dispute, that is, a settlement. See, e.g., In re General Tire and Rubber Co. Sec. Litig., 726 F.2d 1075, 1079 (6th Cir.), cert. denied, 469 U.S. 858, 105 S.Ct. 187, 83 L.Ed.2d 120 (1984); Schott Enterprises, Inc. v. Pepsico, Inc., 520 F.2d 1298, 1300 (6th Cir.1975).

B.

Having determined that a settlement occurred, the remaining question we must decide is whether a plaintiff, who learns during discovery that his case against his opponent is not what he had hoped for, has encountered a material change in circumstances. I am firmly of the belief that they have not.

It is, perhaps, worth repeating at this juncture, the pertinent language of the most favored nations clause in the contract between the parties:

Plaintiffs agree that, unless present circumstances materially change so that plaintiffs reasonably conclude that the prospect or amount of ultimate recovery from any similarly situated defendant in these cases is substantially lessened or reduced, including, but not limited to, by reason of the entry of one or more court orders in these cases or the filing of a bankruptcy or similar petition by such similarly situated defendant, they will not enter into a settlement of their claims against any such similarly situated defendant that is more favorable to such defendant without offering similar terms to Central Can.

(Emphasis added.) Like the majority, I find this clause unambiguous. Further, I do not question the plaintiffs’ claim that they learned during discovery that “the prospect or amount of ultimate recovery from [Cleveland Steel] [was] substantially lessened or reduced.” Indeed, after discovery, the plaintiffs apparently concluded that the prospect of ultimate recovery had deteriorated to the level of thin-to-nonexistent.

But, it is plain to me that when a plaintiff learns of previously existing historical facts of which he was earlier unaware, this new knowledge is not a material change in the “present circumstances” that existed at the time of the settlement agreement. Obviously, Cinteeh’s case against Cleveland Steel was never very good; a fact of which Cinteeh presumably was unaware when it filed suit, and later when it settled with Central Can. Learning that a fact is not what, earlier, one mistakenly thought it was, or hoped it would be, does not mean that the fact changed; it is only the plaintiffs’ knowledge and understanding that was altered. Here, none of the facts bearing upon the liability of Cleveland Steel, or more specifically, “the prospect or amount of ultimate recovery” from Cleveland Steel, changed from the time plaintiffs settled with Central Can. As the plaintiffs’ lawyers went about their business of getting ready for trial and educating themselves about the facts and the law of the case, they learned what they very likely wished they’d known when they drew the complaint for their client: that they had no reasonable hope of obtaining a judgment against Cleveland Steel, and that they never had. That revelation is not a change in the circumstances that existed before any settlement discussion was undertaken and before discovery was conducted; it was simply a change in the plaintiffs’ awareness of those circumstances.

Central Can is entitled to the benefit of its bargain, despite the potentially unfortunate effect upon the prospects for settlement of all the claims involved.

II.

I would reverse the district court’s judgment.

      . Fein filed for bankruptcy on April 3, 1992. Plaintiffs pursued their claims in the bankruptcy court and negotiated a settlement for up to $75,-000, depending on the results of the sale of certain assets.

      . Defendants Bennett and Brockway, while not parties to this appeal, have indicated that they intend to take the position that any ruling as to this matter should be binding as to their settlement agreements as well. Defendant Southline, who agreed to pay $203,000, has the most favored nation clause in its settlement agreement as well, but has not joined in seeking a refund of monies.

      . At the oral argument in the district court, plaintiffs did not concede that Central Can and Cleveland Steel were similarly situated.