weeks to conduct discovery of the Department of Enforcement and [the Unit] so that we can gain the evidence.” Transcript of Preliminary Injunction Hearing at 119, D.L. Cromwell v. NASD Regulation, 01 Civ. 728 (S.D.N.Y. Feb. 15, 2001). In its motion for a new trial, Cromwell raises only its alleged recent discovery of the existence and timing of certain cooperating witness statements given to federal prosecutors. For the reasons stated, we hold that the district court properly consolidated the preliminary injunction hearing with a trial on the merits, and having done so, it correctly analyzed the state actor question under the preponderance of the evidence standard as opposed to the Jolly standard. See Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12, 24 (2d Cir.1971) (<HOLDING>); Jolly, 76 F.3d at 473. Ill To establish a
holding that the factual underpinnings of a restitution order must be proved by a preponderance of the evidence holding that the proper standard of proof is preponderance of the evidence holding that criminal conduct of which defendant is acquitted may be used as sentencing factor if proved by preponderance of the evidence holding at trial a criminal defendant has the burden to prove his insanity by a preponderance of the evidence holding injunctive relief proper if proved at trial by a fair preponderance of the evidence