United States v. Patrick Carney (03-1735) Sean Carney (03-1736)

Relatedly, state make.60 Congress scope of feder- determine law does argu- Horton’s jurisdiction.61 diversity

al therefore, is, unavailing.

ment

IV light section 1348 construe

We jurisdictional maintain intent to

Congress’s the one national banks on

parity between corporations on banks and

hand and state that the definition We hold

the other. limited to the national bank’s

“located” is and the state place of business

principal and its certificate organization in its

listed in a This results

articles of association. having access to federal

national bank’s diversity jurisdiction to the same

courts similarly state bank or

extent as a situated that, under section It follows

corporation. necessarily is not a national bank every in each and state which

“located” branch, the district court did

it has a holding. in so

not err

AFFIRMED. America, STATES of

UNITED

Plaintiff-Appellee, (03-1735); Sean

Patrick CARNEY (03-1736),

Carney Defendants-

Appellants. 03-1735, 03-1736.

Nos. Appeals, Court of

United States Circuit.

Sixth 15, 2004.

Argued: June Filed: 2004.

Decided and Oct. Mas, at 1399. War- Pharm. Div.

60. Bianca Parke-Davis 61. Co., 396 & n. ner-Lambert Cir.1984). Detroit, MI, Attorney, United States Appellee. KRUPANSKY, RYAN,

Before: COLE, Judges. Circuit KRUPANSKY, J., delivered opinion court, RYAN, J., joined. in which COLE, 453-56), J. (pp. delivered a separate dissenting opinion.

OPINION KRUPANSKY, Judge. Circuit The defendants-appellants Patrick (“Patrick”) Carney Carney and Sean (“Sean”), (col respectively father and son lectively Carneys” “the or “the defen dants”), federally-licensed both firearms dealers, have assailed their jury correlative (1) multiple convictions for aiding counts abetting the felonious utterance of Chapman, Chap- knowingly ARGUED: Ronald W. false statements customers Associates, Hills, MI, man & Bloomfield in the defendants’ firearms transfer rec (18 (2) 924(a)(1)(A)),1 Appellants. Peregord, § for Jennifer J. As- ords U.S.C. and Detroit, Attorney, sistant United States the felonious creation or maintenance of MI, Appellee. for ON BRIEF: Ronald W. willful omissions falsehoods in their and/or Mammel, Chapman, Chapman David B. & firearms regarding transaction records the Associates, Hills, MI, name, Ap- age, place Bloomfield for and of residence of fire (18 922(b)(5)).2 pellants. Peregord, purchasers Jennifer J. Assistant arms U.S.C. subject posits: 1. The statute (5) any or-piercing firearm or arm am- (a)(1) Except provided as otherwise in this any person munition to unless the licensee chapter, whoever— records, required kept notes in his to be (A) knowingly any makes false statement pursuant chapter, to section 923 of this the representation respect or with to the infor- name, age, place and of residence of such required by chapter kept mation this to be individual, person person if the is an or the person in the a records of licensed under identity principal places and local chapter applying any this or in for license person person business of such if the is a exemption disability or or relief from under corporation entity. or other business provisions chapter; the of this 922(b)(5). A violation 18 U.S.C. "willful” proscription felony. of that a constitutes title, imprisoned shall be fined under this Choice, 924(a)(1)(D); U.S.C. United States years, not more than five or both. (6th Cir.2000). 201 F.3d 837 924(a)(1)(A). 18 U.S.C. requires a Proof of "willful” violation government produce greater quantum the stipulates: 2. That enactment proof prove a than that which would mere (b) "knowing” "knowing” It shall be violation. Whereas a unlawful for licensed manufacturer, importer, may by proof that the licensed violation be evidenced licensed dealer, actually falsity or licensed collector to sell or deliv- defendant knew the truth or issue, fact(s) er— the material a "willful” viola- required arms separate application written for the have framed five defendants error, assist the woman permit. each of which Johnson would assignments of individually of that form. After completion to be sufficient with the alleged have weapons permit all of their convictions. in the wom- securing some or invalidate name, transport would her to an’s Johnson to the sub- During pertinent all times store, he Carneys’ gun where would Carneys operated ject prosecutions, purchase select one or more firearms for Hunting Supply,” and Shooter’s “Carney’s by his any participation in the absence of Warren, Michigan. gun shop located Instead, accomplice cohort. his feminine February and June Between idly pass by, example, the time would occasions, 2000, on at least nine distinct pets, the store owners’ playing with Carneys sold automatic or semi-auto- smoking cigarettes standing outside while to David handguns matic and rifles John- After had select- the storefront. Johnson (a/k/a “Tone”) (“Johnson”), who, as a son pieces, his desired he would assist his ed felon, person was a previously-convicted le- companion completion with the purchasing or legally prohibited from ATF Form 4473.3 In each gally-requisite having firearms an interstate possessing instance, falsely that document identified foreign commercial nexus. 18 U.S.C. woman, signature, her over as However, 922(g)(1). each sale had os- firearm(s). buyer ultimate Howev- tensibly made instead to a female been er, negotiated purchase price Johnson Johnson’s, companion of which unlawful firearm; cash, paid, in for each of of each weapons aided and transfers were abet- weapons personally purchased; ted the defendants via their willful ac- purchased specimen carried each out of ceptance sup- and retention of fraudulent the defendants’ store. porting During documentation. scam, weapons-acquisition course of his grand On November a federal Johnson used at least six different wom- jury thirty-nine returned a count indict- putative purchasers of firearms en as defendants, Carney ment John- Carneys. from the Each of the “straw son, women; eight thirteen of those purchasers woman” had an unblemished charges alleged named the aid- no criminal record and hence confronted making of ers and abettors the false restriction(s) extraordinary on her legal statements, violative U.S.C. liberty possess to fire- purchase and/or 924(a)(1)(A),by § his accom- Johnson and arms. for dismissal plices. The moved them, the ratio- episode, charges against In each Johnson ad- of all on evidenced that, traders, operandi hered to an identical modus nale firearms licensed Initially, charged he would drive his selected fe- could not be under 924(a)(1)(A), § co-conspirator alleged male to the Detroit Police reasons exam- headquarters to enable her of a ined below. The district court denied that submission (Firearms Records) supported by proof offi- tion must be the Transaction are fact(s) pertinent cial records of the over-the-counter transfer of defendant knew both the and ownership portion title to firearms. A of that illegality pertinent understood the of the States, completed by buyer/trans- form must be the Bryan conduct. See v. United feree, remaining part 192-93, 1939, and the should be com- 524 U.S. pleted by the licensed seller/transferor. L.Ed.2d 197 completed Form 4473 seller must retain Treasury, Department 3. Al- within its business records. See 18 U.S.C. Bureau of cohol, ("ATF") 923(g). § and Firearms Forms Tobacco Johnson, by 210 counts the court motion. See United States district as a matter of (E.D.Mich.2002). Subse- F.Supp.2d 889 law for insufficiency the trial supporting July grand jury on the quently, evidence, Carneys proceeded the to their indictment which re- superseding issued jury second trial on the thirteen remaining 924(a)(1)(A) § the thirteen counts stated (each against counts them of which had against Carneys, but which also supe- subject ruling been of a mistrial in the alleged rinduced six counts which record- forum). 6, 2008, initial trial On March keeping offenses under 18 U.S.C. jury second convicted Sean on three 922(b)(5) § against plus Sean four similar alleged counts which had violations of against counts Patrick. 924(a)(1)(A), § and three additional counts which, had stated Following jury trial on Novem- offenses under 922(b)(5);4 § 4, 2002, resulted in the and it convicted Patrick ber defense-friend- on 924(a)(1)(A) ly disposition twenty-three charges of ten of four violations plus counts stated ei- four counts undergirded by via 922(b)(5).5 guilty” ther “not verdicts or dismissals of Ultimately, the trial court jurors Carney 924(a)(1)(A) 4. The convicted Sean of three 5. The four counts stated under 924(a)(1)(A), charges Carney on which Patrick anchored in 18 U.S.C. sustained convic- (aiding abetting tions were Count 21 and namely (aiding abetting Count and the mak- making by false statements Johnson and ing by Sonya of false statements Johnson and Mahogany Mitchell on an Form 4473 on ATF approxi- Stinson on an ATF Form 4473 on 2, 2000, approximately March to enable John- 25, 2000, February mately to facilitate John- purchase son's unlawful of one Kel-Tec nine illegal purchases Magnum son's of one Re- handgun millimeter and one Intratec nine pistol, search nine millimeter one HiPoint handgun); (aiding millimeter Count 27 and handgun, Hungarian- and nine millimeter one abetting making by of false statements rifle); produced AK-47 semi-automatic Count Tonya Johnson Stinson on an ATF and Form (aiding abetting making and of false 29, 2000, approximately 4473 on June to fa- by Cray statements and Johnson Sheritha on illegal purchases cilitate Johnson's of one In- 8, 2000, approximately March to enable John- handgun plus tratec nine millimeter one FEG acquisition son's unlawful of two Romanian- rifle); (aid- AK-47 semi-automatic Count 33 rifles); origin AK-47 semi-automatic and ing abetting making of false state- (aiding abetting making Count by ments Johnson and Eboni Harmon on an by Tonya statements Johnson and Stin- false approximately ATF Form 4473 on June 10, 2000, approximately son on March pur- to advance Johnson’s felonious support surreptitious purchases Johnson’s chases of two Intratec nine millimeter hand- handguns plus two Intratec nine millimeter gun and one Romanian-made AK-47 semi- rifle). one HiPoint nine millimeter In addi- rifle); (aiding automatic and Count 36 tion, recordkeep- Sean was convicted of three abetting making by of false statements ing offenses outlawed 18 U.S.C. Mary approximately Johnson and Marshall on wit, 922(b)(5), (failure Count 41 to record ac- June to further Johnson's illicit name, age, the correct and of the residence handgun quisitions .40 of one Kel-Tec caliber purchaser of one HiPoint nine millimeter plus Jennings pistol). one nine millimeter handgun, Magnum one Research nine millim- jurors also convicted Patrick on four pistol, Hungarian-fabricated eter and one AK- 922(b)(5), by namely § counts buttressed February 47 semi-automatic rifle on name, (failure Count 46 to record the correct 2000); (failure Count 43 to record the correct age, purchaser and residence of the of two name, age, purchaser and residence of of handguns Intratec nine millimeter on March two Romanian-assembled AK-47 semi-auto- 2, 2000); (failure to record the Count 8, 2000); name, matic on March and rifles Count age, pur- correct and residence of the name, (failure age, to record the correct and chaser of a Romanian-manufactured AK-47 purchaser pistols residence of the of two Intratec rifle and two Intratec nine millimeter 1, 2000); (failure handguns plus nine millimeter one HiPoint on June Count 48 record 10, 2000). name, age, nine millimeter rifle on March the correct residence twenty- required by provisions tion of this to six concurrent Sean sentenced imprisonment, and chapter kept terms of to be in the records a seven-month of eighteen-month concurrent imposed eight person subchapter licensed under this against Patrick. periods incarceration confinement, penal from Following release title, impris- shall be fined under this supervised shall be for two each defendant year, oned not more than one or both.

years. 924(a)(3)(A). (Emphases 18 U.S.C. add- alleged initial rationale As their ed). convictions, of their the defen for reversal However, contrary to the defen government that the protested dants have contention, of interplay dants’ law, erred, by proceeding of as a matter 924(a)(1)(A) 924(a)(3)(A), respec 924(a)(1)(A), under section against them which, whereby tively, pose does not an instance felony according statute to the de fendants, apply only against general statutory language entirely is su should maker(s) knowingly statutory false material state perseded specific terms which ments to a seller for inclusion Edmond v. precise address matter. firearms Cf. legally-required States, seller’s transac within the United U.S. S.Ct. which, allegedly by tion records but Although 137 L.Ed.2d 917 terms, negative implication of its facial undoubtedly countless instances exist the seller himself.6 apply cannot legitimately wherein a defendant could be Instead, note 1 above. the defendants See in under one section contro that, li argued have because were other, versy or the but not either dealers, arms the United States censed both, alternative nor such a circumstance un prosecuted should have instead them presently is not framed herein. Accord 924(a)(3)(A), der a misdemean- 18 U.S.C. ingly, appellate this court need not resolve provides: or rule which the full exclusive reach of either and/or (a)(3) dealer, licensed im- Any Rather, licensed statutory controversy. section manufacturer, or li- porter, licensed alleged the defendants’ conduct knowingly— censed collector who 924(a)(1)(A) counts conviction could (A) either, rep- statement or have sustained convictions under makes false both, to the respect resentation with referenced sections.7 informa- 924(a)(3) purchaser handgun legislative [§ ] Kel-Tec .40 caliber of the statute his one plus Jennings handgun Congress one nine millimeter tory indicate intended to do [sic] to 2, 2000); (failure on June and Count 49 anything option more than for the allow name, age, record the correct and residence prosecution misdemeanor for licensed dealers purchaser of an Intratec nine millime- forms, who make false statements on ATF pistol plus ter an FEG AK-47 rifle on June leaving felony prosecution while intact 2000). Kimp- structure those such as Michels and flagrant repeated ton whose actions in rejected legal 6. The trial court conten- accepting purchas ATF straw false forms from Johnson, F.Supp.2d tion. United States v. backdating notifi ers and ATF forms to avoid (E.D.Mich.2002). The lower court’s con- requirements felony punish cation won-ants statute, law, any ruling struction of a is like ment.”) added), (emphases part vacated in on subject to de novo review. United States v. grounds States v. Lo other sub nom. United Firearms, 414, (6th Ninety Three 330 F.3d 420 banc), (8th Cir.) gan, 210 F.3d 820 cert. {en Cir.2003). 1053, 659, denied, 531 U.S. 121 S.Ct. 148 option L.Ed.2d 562 "Without the of Al-Muqsit, 7. See United States v. 191 F.3d 928, (8th Cir.1999) ("There felony charging provisions under the simply dealers 935 is 924, § nothing language legislative history impossible would be for law en- in the of it

445 However, leged.... general There is .no government the elected rule leni- 924(a)(1)(A), § to the under proceed ty requires government to to fore- 924(a)(3)(A). §of See United exclusion go felony prosecution simply a because Batchelder, 114, 123-24, 442 v. U.S. States may misdemeanor applica- statute also be (in (1979) 755 60 L.Ed.2d ble.”) 99 S.Ct. (citations omitted). In the case in- conduct structing that where a defendant’s stanter, proof supportive record of each statute, federal offended more than one 924(a)(1)(A) § pertinent count of conviction any him may prosecute authorities under that revealed Johnson and his named fe- enactments); all such United States v. accomplice male had made material mis- (6th Schaffner, 715 F.2d Cir. representations of fact on the official Form 1983) that, (explaining where a defendant’s 4473, which the defendant seller to knew satisfied the elements of alleged conduct false, willfully be and which false data was offense, felony and a both a misdemeanor Carneys’ retained in the legally required to Attorney States was “free the United transaction records. any applicable statute prosecute under Accordingly, trial proof sup more regard without to which statute is that, ported jury’s finding tailored to the facts al- specifically 'go the extent that it to after’ the first link in chain is inconsistent with this forcement opinion.” Logan, Although supply 210 F.3d at 823. plentiful firearms which results in a by Circuit is not bound stare decisis Sixth violent We do not believe use in crime. prior ruling to the adhere sister pun- Congress insulate that intended to from circuit, this court nonetheless finds the rele Kimpton dealers such as Michels and ishment analysis Al-Muqsit vant and conclusion of the illegal gun knowingly participate in an who opinion, adopted by which was the en banc trafficking puts scheme that hundreds of fire- Eighth Logan, persuasive. Circuit via to be Chicago gang mem- arms in the hands of Abfalter, See also United States v. 340 F.3d (Em- Al-Muqsit, F.3d at 936. bers.” Al-Mu-qsit), (8th Cir.2003) (following 653-54 added). phases Although gun distributors - denied, -, rt. U.S. ce Al-Muqsit charged,' together in were with (2004); 157 L.Ed.2d 940 United States customers, lawbreaking conspiracy their with Rietzke, (7th 545-47 Cir. 924(a)(1)(A), § to violate court’s circuit 2002); Jarvouhey, United States suggested language sellers firearms 1997). Cir. independently charged could have been with principal legal authority by The invoked 924(a)(1)(A) offenses. See id. 935-36. support argument in of their Eighth Logan partial- The en banc Circuit in they should have been tried and sentenced as ly panel’s ruling Al-Muqsit by vacated the 924(a)(3)(A) misdemeanor offenders under panel’s reason of that erroneous constitution- felony rather than aiders-and-abettors of of- ruling al "confrontation” which had invali- 924(a)(1)(A) fenses under was the noncont- Al-Muqsit's dated co-defen- the conviction of rolling out-of-circuit inferior court edict is- Nevertheless, Logan. nothing dant contained Wegg, F.Supp. States v. sued United in the en banc decision detracted from the (E.D.Va.1996). reviewing This court con- persuasive reasoning panel's ruling Wegg poorly cludes that the decision was rea- knowingly a licensed firearms vendor who published soned and is-inconsistent with all matter; collaborated with the falsification of official authority thus circuit court on the may prosecuted records a customer be as a assign persuasive court will it zero this co-conspirator commission weight. have also touted United offenses, 924(a)(1)(A) felony Hunter, (E.D.Mich. rather than F.Supp. 235 States v. merely prosecuted 1994), as a licensed vendor who noncontrolling lower court de- another cision, knowingly created or maintained false rec- which in fact did not address the issue 924(a)(1)(A) provi- liability ords in violation of the accomplice misdemeanor under Indeed, dealers; 924(a)(3)(A). §of the en banc sions for licensed firearms thus it offered Eighth Logan expressly guidance regarding pertinent analytical Circuit in mandated: no opinion question panel “We also reinstate the earlier at bench. indictment, Carneys maintaining legally required the of not the superseding in the transactions; and abetted” Johnson and his records relative to the same had “aided (2) their section supporting cohorts or because the evidence feminine 922(b)(5) plot purchase § 924(a)(l)(A)-proscribed averredly their convictions was submitting fraudulent data on by firearms in that the record reflected insufficient 2(a) § 4473. See U.S.C. the Forms that ATF Forms 4473 each memorialized (“Whoever against (albeit an offense the commits subject transaction with falsified abets, aids, counsels, United States regarding buyer’s identity), data commands, procures its com- 922(b)(5) induces allegedly requires § whereas mission, principal.”) as a punishable is name, buyer’s any absence of record of the added). The record evidence (Emphasis However, age, and residence. because the that the defen- compellingly demonstrated meaning defendants have misconstrued the knowingly, willfully, ac- gun dant dealers 922(b)(5), §of neither assault withstands tively, repeatedly and collaborated with critical examination. ongoing conspi- felon’s unlawful convicted attack defendants’ their scheme, by including ratorial means their 922(b)(5) felony § convictions was an- acceptance of fraudulent official

willful Choice, chored United States v. documentation, exposed which them to (6th Cir.2000), F.3d 837 wherein the Sixth ” “accomplice felony liability under 18 924(a)(3)(A) (the § distinguished Circuit 924(a)(1)(a); hence, gov- §§ 2 U.S.C. & statute assigned which misdemeanor liabil- clearly ernment was not constrained to ity to a licensed firearms dealer who know- Carneys only prosecute instead under ingly representation made a false in his 924(a)(3)(A) rule, the section misdemeanor records) 922(b)(5) (the § transaction from 924(a)(1)(A) § indepen- does not even if liability basic statute which created for a dently apply to fabrications of material licensed armaments trader failed to who by on misinformation firearms dealers offi- name, maintain a age, record cial transfer documents. firearms, place buyer residence Thus, correctly reject- court the district court Choice further found to be ed defendants’ motion to dismiss punishable felony under 924(a)(1)(A) counts, § because those 924(a)(1)(D) transgression where that properly charged counts with “willful”). Choice, had been See having and abetted the felonious aided (“The plain language of this statute frauds committed Johnson and his ac- 924(a)(1)(D) governs indicates complices completion legally in the re- offense, Choice’s and therefore the district quired firearms transfer records. correctly court found that Choice had terms, pleaded guilty felony. By to a its Next, argued have 924(a)(3)(A) clearly applies only to li- if they properly were convicted as censed dealers who make false statements “aiders and abettors” of their customers’ sales, in connection with firearms and not representations fraudulent under keep any to those who fail to records at all. 924(a)(1)(A), then their associated con 924(a)(3)(A) Furthermore, § refers 922(b)(5) invalid, victions under were ei knowing implicitly offenses and therefore (1) ther an alleged because fatal inconsis from excludes Choice’s willful violation its tency jury inhered in the verdicts (Citations omitted). scope.”). the defendants purportedly could not be simultaneously guilty aiding of both Choice had failed to maintain record records, firearm, abetting although the creation of of the sale of a false contrast, By to required by square- law the Seventh Circuit knew that he was he in ly controversy addressed the issue in Following a record. Id. 838. maintain Rietzke, 279 F.3d 541 United States 922(b)(5) count, § to a guilty plea his Cir.2002). In prosecution, that defendant that unsuccessfully argued Choice Rietzke, federally licensed firearms deal- 924(a)(3)(A) proviso § misdemeanor should er, had sold a firearm to a convicted felon punishment of construed to control be through purchaser. a female Those straw by record-keeping offenses a licensed all completed required customers transac- distributor, including offenses un- firearms by, among things, falsely tion other form 922(b)(5). However, § Id. at 839-42. der name, listing buyer’s age, the straw and plea in his because Choice had admitted purchaser. address as that of to a “willful” violation agreement willfully defendant retained that false doc- 922(b)(5)’s against failing § to proscription ument in his business records. Id. at 542- name, age, of the and ad- keep records argued (unsuccessfully) 43. The defense buyer, triggered in turn dress of a that prosecuted only Rietzke could be un- felony provision penalty 924(a)(3) § der for the misdemeanor of 924(a)(1)(D), § the Sixth Circuit sustained knowingly maintaining a false transaction felony conviction under Choice’s record, 922(b)(5) felony but for the not 922(b)(5). name, willfully failing age, to record buyer. of the and address See id. at 543. court resolved Accordingly, the Choice rejected that argu- The Seventh Circuit liability felony will be available ment, resolving, among things, other “that a licensed firearms dealer who multiple apply when criminal statutes to maintain the records re- willfully fails to conduct, prosecutor the same has 922(b)(5); §by whereas mis- quired discretion to choose under which statute to liability can a licensed demeanor burden proceed.” (citing Id. at 545 United States merely knowingly firearms dealer who has Batchelder, U.S. containing maintained sales records false (1979)). case, “In L.Ed.2d 755 this 924(a)(3)(A). per Signifi- information prosecu- of her prosecution the exercise fire- cantly, the issue whether licensed charge torial Rietzke discretion chose neglect to record on a arms dealer’s willful felony provision under the of the statute completed ATF Form 4473 the correct it provision, and the misdemeanor and name, age, and residential address of the was within her discretion to do so.” Id. at is, buyer his willful recordation —that 546. material information as

retention false pronounced The Rietzke court further qual- to no information at all—can opposed 924(a)(3) “[n]othing suggests 922(b)(5) §a violation for failure to ify as li- it under which a provision is the sole information, of that as maintain a record charged.” could be censed firearms dealer 924(a)(3)(A) for opposed to a offense Rather, reading a fair Id. at 546. a false rec- merely knowingly maintaining 924(a)(3) 922(b)(5) §§ in tandem re- information, directly was not ord of sales Congressional permit vealed a intent According- court. posed before the Choice li- prosecutors option prosecuting ly, any language contained Choice which willfully censed firearms dealers who have might support pos- be construed to either name, age, and failed to record the correct (either interplay construction of the by sible omission or complete address information) regarded statutes must be as mere of false under two the substitution (the 922(b)(5) 924(a)(1)(D) felony §§ noncontrolling dictum. sufficient, because, knowingly retaining developed tions was provisions), or 924(a)(3)(A) (the § under above, false records prosecution the not restricted was statute). Id. at 546. misdemeanor subject proceeding on the to record only the defendants under reviewing court concludes The instant 924(a)(3)(A) § record-keep- for their willful analysis rul- Circuit’s and that the Seventh Likewise, persuasive, ing and thus failures. no fatal inconsis- ing in Rietzke were Whereas, it. hereby adopts court as this tency jury manifested the verdicts was relationship the between regarding which found the defendants liable for the 924(a)(1)(A) 924(a)(3)(A) §§ and evolved 922(b)(5) § willfully failing felonies of above, undoubtedly will exist situations accurate, complete, truthful transcribe proper- could be wherein a defendant name, age, information about the and ad- 924(a)(3)(A) § ly under either prosecuted firearms; buyer dress of the of certain 922(b)(5), not either in the alter- or but concomitantly guilty which found them both, nor such a circumstance was native aiding abetting their customer’s Rather, judice. in the sub posed cause 924(a)(1)(A) provision felonious of know- proof sup- the instant of record could have ingly false information for inclusion in the either, both, ported under convictions defendants’ sales transaction records. bottom, statutes. At the mere fact that willfully accepted, and main- Thirdly, the defendants have as records, tained in their incorrect informa- sailed the igno trial court’s “deliberate name, regarding age, tion and address instruction, jury rance” which had tracked firearms, buyer op- of certain nearly verbatim the Sixth Circuit’s Pattern posed simply failing to record infor- (“Deliberate Jury Ignor Instruction 2.09 subjects mation on those their transac- ance”).8 The Sixth Circuit has endorsed records, tion is an immaterial distinction. Jury Pattern Instruction 2.09 as a correct 922(b)(5) plain language The covers law, governing summation of the scenarios, both in that a licensed dealer’s data, jury forecloses the risk that a might con willful recordation of false instead of data, the accurate is both the moral and vict on the basis of negligent failure to equivalent the functional of the willful re- know rather than virtual knowledge. See regard- no information at all cordation of Mari, United States v.

ing legally required matters. See 18 (6th Cir.1995). Nonetheless, although a 922(b)(5). U.S.C. jury charge might be a correct statement law, of the a trial Accordingly, sup- give the record evidence court’s election to 922(b)(5) porting Carneys’ convic- that by reviewing instruction is examined (3)But this, ignorance” charge 8. The you "deliberate read to to do must be convinced jurors stated: beyond a reasonable doubt that the defen- (1) Next, explain something high probability I want to about dants were aware of a proving knowledge: a defendant's buyer David Johnson was actual of the (2) responsibility No one can avoid for a firearms, and that the defendants deliber- by deliberately ignoring crime the obvious. ately eyes closed their to what was obvious. you If are convinced that defendants Sean Carelessness, negligence, or foolishness Carney Carney deliberately ig- and Patrick part on defendants' is not the same as high probability nored a that David John- knowledge, enough and is not to convict. buyer son was the actual of the firearms course, This, you is all for to decide. indictment, you may named then find that David Johnson was the knew buyer actual those firearms. discretion,9 even L.Ed. 1557 See also States because United court for abuse (6th Cir.1993) Fountain, may, in F.3d facially instruction correct (instructing prove that the defendant must totality of the light proof, of record probable that “it is more than not that the jury charges, or other circumstances verdict.”). materially error affected the case, incomplete, misleading, confusing, be prejudicial. See United or otherwise protested have 621-22 Beaty, States presiding judge lower court had Cir.2001) that the trial court’s (directing prejudice by abused her discretion to their legally-correct recitation of a “deliberate instructing jury igno on “deliberate sup- ignorance” charge which was not proof rance” because no direct had been by the case evidence constituted an ported admitted either defendant’s actual discretion; however, that error abuse of knowledge that Johnson was actual harmless) Mari, ultimately (citing su- was buyer of the firearms. That as ); 702, 76 pra Corp., Innes v. Howell F.3d signment facially of error was ill-formulat (6th Cir.1996). 714 plain language pattern ed. The of the jury instruction authorizes a to find Conversely, legally-er even a “knowledge” upon based circumstantial justify jury charge roneous will not rever proof compels the conclusion that probable of a conviction if its effect on sal defendant(s) must have known the fact inconsequential. Barnes v. the verdict was at it op issue because was “obvious”—as Fiberglas Corp., F.3d Owens-Coming 201 having merely posed negligent been (6th (“We Cir.2000) not re 822 will subject failing to discover or realize the of an errone verse a decision on basis they fact which should have known. is jury ous instruction where error harmless.”). error, contrast, including By proof an if existed that No trial direct instruction, had that jury compel will re the defendants known Johnson erroneous buyer weapons, actual no a conviction unless the defen was the versal of dants) in- any ignorance” “deliberate prove alleged can “either that the need events, have arisen. In all inherently prej misconduct was struction would [or error] furnished no prejudice.” proof, that it caused actual the defendants have udicial or conjecture, speculation, empty than Barger, 931 F.2d 371 other United States v. (6th Cir.1991). proof hypothesizing, guesswork, or documen creative “Absent ju- thinking, that to conclude that the prejudice, tation of we do not assume wishful rors did not follow the clear letter of the prejudice occurred.” United States Maxwell, charge, or were ignorance” Cir. “deliberate Barnes, 1998). po any way confused or misled. See assessing a trial error’s When (“Federal generally courts impact, appellate 201 F.3d at 822 prejudicial tential jury will follow the instruc- presume “must take account of what the error court Mari, 47 F.3d jurors], singled correctly given.”); not out tions meant to them [the alone, (expounding to all that courts will standing but relation 785-86 jurors neglected that to follow the happened.” that Kotteakos v. United assume else them). States, instructions read to legally-correct 328 U.S. S.Ct. erly applies [an] the law uses erroneous 9. An abuse of discretion occurs "when Co., reviewing firmly convinced that a legal court is Romstadt v. Allstate Ins. standard.” (6th Cir.1995) has been made. A district court mistake (quotation clearly abuses its discretion when it relies on omitted). marks and citations fact, findings improp- or when it erroneous Furthermore, ar- assuming jury even rational and lucid would have juror guendo possibility found, subject record, that con some on the that the Car- misunderstanding fusion or inhered neys either that knew Johnson was the charge, prejudice no actual to the faulted buyer actual of the guns or had been delib- proof The record re resulted. erately fact, if ignorant of that even that the beyond flected contradiction Car jury erroneously at issue had misunder- neys precisely knew what Johnson was by concluding stood the instruction found, doing. jury unanimously be to find needed doubt, yond a reasonable that Patrick had had negligently failed to understand what consummated at least four transactions they “should have known” about Johnson’s with Johnson and four different women Accordingly, any ruse.10 unwarranted ad- 2, 2000; March and June between impact verse igno- which the “deliberate had closed at least three deals Sean may rance” instruction have had on the with Johnson and three different women ultimately defense case was harmless. 10, February 25 and March between 2000. identical, in highly Johnson followed the Fourthly, the defendants have operandi on modus criminating each occa contended that the trial prejudiced court sion, including assuming exclusive control by allowing their defense the United for, selecting, paying and carrying over out States, opposition, over their to introduce wanted, aiding firearms he his 404(b) Fed.R.Evid. evidence of similar female confederate in the fraudulent com Carneys transactions between the pletion of the ATF declaration. subjects Johnson which had been the acquittal dismissed counts or counts of at facts, light

In of those the conclu initial prosecu defendants’ trial. The inescapable sion per was rational proffered tion had son, proof that evidence as an experienced let alone licensed fire merchant, Carneys that the would have known knew that Johnson was arms buyer purchaser the true the actual of the weap Johnson was fire arms, Patently, proof ons. the defendants and as plan would have of a common or operandi scheme and consistent modus been convicted with or without the “delib ex Moreover, ignorance” instruction. erate ecuted the defendants and Johnson.11 operative posits: 10. The have also averred that the 11. The rule ignorance” jury charge preju- "deliberate had crimes, wrongs, Evidence of other or acts jurors diced because it authorized them prove is not admissible to the character of a find, proof, in the absence of direct that the person in order to show action conformi- defendants had known that Johnson was a however, ty may, therewith. It be admissi- precluded convicted felon from the lawful ac- purposes, ble proof for other such as However, quisition possession of firearms. motive, intent, opportunity, preparation, whether or not knew that Johnson was a plan, knowledge, identity, irrelevant, or absence mis- knowledge convicted felon was as take or accident[.] of that fact was not an element of either the 924(a)(1)(A) 404(b) added). (emphases Fed.R.Evid. counts of conviction nor of the 922(b)(5) charges 404(b) of conviction. actually To "This [Rule ] is a rule of contrary, respective exclusion, defendant’s knowl- inclusion rather than since Johnson, edge that rather than his female permissible one use is forbidden and several cohort, buyer subject was the actual of the uses of such evidence are identified. The list firearm(s) prove was sufficient to his knowl- permissible uses is not exclusive. Courts edge falsity implicated of the ATF Form recognized permissible have other uses of 4473, key which in turn was the material fact evidence; example, such to show a com- buttressing each count either defen- plan." mon scheme United States v. Blank- dant.

451 (6th Cir.1984), denied, cert. 469 allowance of U.S. judge’s A district 404(b) 1021, 440, is reviewed for abuse 105 83 L.Ed.2d 366 Rule evidence S.Ct. Mack, 258 States v. of discretion. United (6th Cir.2001) 548, (citing

F.3d Gener Feinman, United States v. 930 F.2d 142-3, Joiner, v. 522 U.S. al Electric (6th Cir.1991). (1997); 139 L.Ed.2d Inc., Roadway Express, v. Trepel have assailed the Cir.1999)). (6th jurist’s The trial evidentiary final ruling lower court’s its admissibility proffered Rule assessment wit, analytic stage, to that the faulted evi 404(b) follows: proceed should evidence probative substantially dence’s value out

First, trial court must ascertain prejudicial unfair im weighed potential its is rele proffered evidence whether pact upon the defense. “A district court is proper pur for a vant and admissible ‘very granted broad’ discretion deter Zelinka, pose. United States mining danger prej whether the of undue Cir.1988). (6th rele To be F.2d outweighs probative udice value of the vant, to a must relate “the evidence Vance, evidence.” United States issue,’ ‘in deal is and must matter which Cir.1989) (citation 572, 576 omit substantially conduct similar with ted). judicial “If self-restraint is ever de reasonably near time to the offenses sirable, [prejudicial it is when a Rule 403 being tried.” for which the defendant is a trial court is reviewed analysis of effect] 775 F.2d Blankenship, States v. United by appellate an States tribunal.” United Cir.1985) (citations (6th 735, omit 739 (6th Cir.1984) 384, Zipkin, 729 F.2d 390 ted). prof To determine whether the omitted). (citation conducting In review of proper for a fered evidence is admissible rejected objection, the prejudice” “undue decide, the trial court must purpose, in at the evidence “look[s] Sixth Circuit probative is of a “whether that evidence light proponent, to its max most favorable issue other than character.” material minimizing imizing probative its value and States, Huddleston v. U.S. United (citations prejudicial effect.” Id. at 389 its 681, 686, 1496, 1499, 99 108 S.Ct. omitted). (1988). L.Ed.2d adjudicator’s judgment trial that the The Finally, the court must determine of the evidence contro- probative worth probative whether the value of the evi- . any versy substantially outweighed possi- “substantially outweighed by dence is Carneys, prejudice ble risk of unfair prejudice.” of unfair Fed. danger prevailing under deferen- when examined Huddleston, 403; R.Evid. U.S. standards, sus- patently tial review was 687, 108 S.Ct. at 1500. The district Contrary pos- to the defendants’ tainable. balancing court has discretion broad 404(b) ture, merely not proof the Rule was probative against potential preju- value al- and cumulative of evidence Dabish, repetitive impact. dicial United States v. transac- (6th Cir.1983). ready concerning in the record We rather, Johnson; tions between them judge’s balancing of review a district probative valuable instances supplied it probative value prejudicial impact transactions, 404(b) were additional similar Fed.R.Evid. under an under that the government’s proof to the crucial abuse of discretion standard. United was Carneys actually knew that Johnson Holloway, 740 F.2d States v. added; omitted). Cir.1985) (em- phasis citations enship, 775 F.2d charged of the fire- purchaser implicitly explicitly agreed upon the true at some point prior to March 2000. arms. Furthermore, Sean has Carneys’ averment requested any limiting claimed that he had may the admission of the faulted evidence jury whereby instruction the trial bench exposed jeopardy have them to double re might jurors have to restrict garding transactions which had been the 404(b) the Rule evidence as him. subjects acquittal of counts of dismissal or events, In all if judge even the trial had speculation, at their initial trial was sheer her by admitting any abused discretion proof have offered no 404(b) (which all of the Rule evidence she juror by was motivated to convict a desire not), did that error would have been ulti for an punish uncharged the defendants mately harmless, light indepen events, government In all transaction. overwhelming proof sup dent of record prove probative need not “other acts” be portive of the defendants’ convictions. See doubt; rather, yond a reasonable 52(a) error, defect, (“Any Fed.R.Crim.P. merely proof sufficiently compel must be irregularity or variance which does not ling jury reasonably can such that “the rights affect substantial disregard shall be conclude that the act occurred and that the ed.”). Dowling defendant was the actor.” States, United 493 U.S. Fifthly, finally, Consequent 107 L.Ed.2d 708 claimed, review, have for the first time on ly, an evidence of act which had been the prejudice that the trial court erred to their subject acquittal prior count of in a by failing sponte sua to exclude evidence subsequent criminal trial is admissible in a allegedly tainted a suggestive “photo 404(b) if, prosecution as Rule evidence as graphic procedure. identification” Prior to judice, in the case sub that evidence trial, ATF investigators displayed photo passes Dowling reliability” “factual graphs of Carneys to each woman 349, 110 test. Id. at S.Ct. 668. employed by purchas Johnson as a “straw images er.” Those part any were not of Carney complained has that Sean larger photo array “photographic line evidence of June 2000 transactions with up,” presented but rather were in stand unduly Johnson prejudiced him because alone “photographic show-up” fashion. his final crime of conviction occurred on Each witness identified one or the of other 10, 2000; thus, claimed, March he has Carneys guns as the seller of to John June 2000 events pro could not have been trial, son on a particular occasion. At each 10, pre-March bative of his 2000 knowl Carneys those women identified one the 404(b) However, edge. expressly Rule charged as the seller of various firearms. permits the admission of relevant “other cross-examination, During each of those acts,” merely “prior acts.” The Car pre-trial female witnesses described the neys’ 10, post-March 2000 commerce with photo display. probative Johnson was material and their operandi Normally, shared modus and common reviewing court scheme, plan proof in that evidentiary that scrutinizes a ruling contested parties continued to adhere to the identical abuse discretion. United States v. 10, Bonds, (6th Cir.1993) pattern 540, March 2000 as that which 12 F.3d 554 after (citation omitted). they However, had prior followed to that date tend prove ed to pattern that had failed to preserve opposition been

453 testimony!)]”); Thigpen Cory, of the women’s tion v. 804 the admission trial court to (6th Cir.1986). 893, gun them as the sellers F.2d Each 895 trans identifications by any purported taint caused by reason of action a count of conviction was unduly suggestive procedure. See Sto an an ATF Form memorialized 4473 which 301-02, Denno, 293, 87- v. 388 U.S. vall Carney identified either Sean or Patrick as (1967). 1967, 1199 When 18 L.Ed.2d S.Ct. implicated weapon(s). the seller of the objection an neglects to mount a defendant Moreover, every eyewitness in-court iden trial, precluded at he is from to evidence tification harmonized with the ATF Form was appeal on that its admission arguing identity pertinent as to the sales unless, constituted flawed its allowance addition, eyewitness man. In identifi See, e.g.,. United States v. plain error.12 reliable, inherently cations were even Cir.2004) (6th Combs, 925, 369 F.3d 938 alone, standing by reason of the extended omitted). (citation “Plain error is defined opportunity each woman had to ob error, directly egregious an one seller; “high-im serve the firearms miscarriage justice.” leads to a United event; nature of pact” and the relative (6th 855, Krimsky, 230 F.3d 858 States v. temporal proximity of the events to the (citation Cir.2000) omitted),. . cert. de testimony two (approximately and one-half —- nied, -, 158 U.S. Manson, years). See 432 U.S. at doc “plain L.Ed.2d 92 error” States, 2243; Simmons v. S.Ct. United only in sparingly, be used trine “is to 19 L.Ed.2d U.S. S.Ct. solely exceptional circumstances (1968); 895; Thigpen, 804 F.2d justice.” miscarriage United avoid Hamilton, United States v. 684 F.2d (6th Hook, States (6th Cir.1982). (citations omitted). Cir.1986) A reviewing Hence, judge the district did not apply “plain error” doc court should plainly by failing sponte err sua to disallow if trine to “reverse errors were so testimony by any eyewitness. identification apparent rank that should have been Furthermore, if the had even defendants objection, or that judge to the trial without preserved opposition an to that properly fairness, honesty, or strike at fundamental evidence, the thereof would not admission trial.” reputation of the United public ’ an abuse of have constituted discretion. Evans, 496, 499 States Cir.1989). Accordingly, each of the defendants’ five assignments of trial error was miscon- satisfy cannot

Manifestly, ceived. The convictions of the defendants in in- exacting proof standard of AFFIRMED. are appeal. possibility No of misidentifi- stant Brathwaite, cation existed. Manson v. GUY, dissenting. Judge, Circuit 98, 114, 53 L.Ed.2d 432 U.S. S.Ct. (1977) in con- paperwork falsified in The (“reliability linchpin is the with sales of firearms to a admissibility of identifiea- nection their determining the rights. If these con- Any (unpreserved) assignment of that affects substantial forfeited 12. met, may "plain we exercise our discre- error is reviewed for error.” United ditions are only Page, 543-45 the error States v. and notice the error if tion fairness, Cir.2000). explained: integrity, has "seriously The Sixth Circuit or affects judicial proceedings.” public reputation of objection, review Where there has been no (citations omitted). 52(b). and brackets Id. at 543-44 plain is for error. Fed.R.Crim.P. Cotton, 535 U.S. See also United States v. pursuant an error to We cannot correct 631-32, 52(b) 152 L.Ed.2d 860 there is an "error” that is Rule unless "plain” or "clear” under current law and They gress were not option convicted felon. convicted for the of misde- “allow[ed] prosecution meanor for licensed falsifying paperwork of connection with dealers firearms, forms, ATF however; who make false statements on of their sales (1) leaving felony while intact the prosecution aiding-and-abetting were convicted of for ... flagrant structure those whose buyer’s paperwork; of falsification repeated accepting actions in false ATF (2) failing complete required paper- to purchasers forms from ... straw warrants work. felony punishment.” Al-Muqsit, 191 F.3d sense, purely In a literal Congress at 935. But the aim of treat —to to aided could be said have and abetted the knowing seriously violations more than un- buyer’s falsification of the records. But intentional accomplished violations—was view, virtually every under this instance in by the statute’s elimination of strict liabili- gun-seller a licensed knowingly which ty; requirement a the falsification fudges his an records facilitate other- “knowingly” component occur is now a of (misdemeanor) sale, illegal wise a violation felony provi- both the and misdemeanor 924(c), aiding will also constitute or sions. An “innocent” dealer could not be so, abetting a in doing (felony) non-seller 924(c), convicted even under because 924(a). violation of situation transcription dealer’s error or honest 924(c) superfluous is not is when mistake would have been made “know- record, sponte the seller sua falsifies the ingly.” The liability elimination of for in- input buyer. with no from the This is nocent, careless or negligent mistakes also likely cases, anbe infinitesimal subset of Congress might eliminates reason that given that the record-keeping require- have allowed the Government to “choose” mainly ments function to limit the universe felony between and misdemeanor liability gun purchasers, gun and that dealers for identical conduct. have little reason to identity fabricate the if Congress Even punish wanted to cer- buyers buyers their unless their or want types “knowing” tain falsification Thus, need their identities fabricated. un- federally severely licensed dealers more 924(c) der the majority’s reading, would than types “knowing” other falsification However, become practically superfluous. by federally dealers, licensed aiding is a principle statutory “[i]t cardinal abetting mechanism would have been an construction that ought, upon a statute extremely awkward and indirect means of whole, that, to be so construed if it can be doing so. Congress could have written: prevented, clause, sentence, no or word “Any federally licensed dealer who know- void, superfluous, shall insignificant.” be ingly falsifies record connection with Andrews, Inc. v. TRW 534 U.S. the sale of a may prosecuted firearm be (2001) (citation S.Ct. 151 L.Ed.2d 339 felony either a or a misdemeanor.” omitted). quotations Instead, majority’s under the reading, “the response, The Government’s seemingly liability] direct method [of would call for a adopted by majority, dupli- is that the misdemeanor, while the indirect method provisions merely cate the allow Govern- liability] felony.” [of would call for a ment to choose charging between the deal- Wegg, words, 919 In F.Supp. at 906. other felony er with a or charging the dealer majority’s the interpretation presumes with a misdemeanor. explanation— This Congress that indirectly tried to do it what Eighth articulated the easily Circuit Al- directly. could have done The Su- Muqsit Court, however, flat on two preme levels. The repeatedly has re- —falls court in Al-Muqsit Congress surmised that Con- fused “to assume that chose a

455 of a across convey transportation the woman state to an surprisingly indirect route message.” purposes.” lines for The statute easily “immoral expressed and important Prods., explicitly provide punish- 511 U.S. itself did not for Film Landgraf USI 1483, ing being transported, 229 was 114 128 L.Ed.2d the woman who S.Ct. States, the woman Dowling v. United but in Gebardi was convicted also See 3127, 226, theory. 207, aiding-or-abetting S.Ct. 87 under an The 473 U.S. (“The (1985) conviction, her Supreme ... Court reversed Government L.Ed.2d adoption of an in- that: stating presumes congressional prob- to a blunderbuss solution direct but supposed It to that the consent is not be consid- precision when lem treated with adultery of to with person an unmarried directly.”). ered the person, a married where latter alone offense, guilty is of the substantive final strike The third an or a would render former abettor is reading of the statute majority’s acquiescence conspirator, or of exception common-law to well-established age a under the of consent would woman routinely liability, which is aider-or-abettor co-conspirator her a with the man make which, of for lack a to crimes applied statutory upon to herself. rape commit tango. it to two description, better takes case, principle, The determinative this accom- explains, As the Model Penal Code is the same. liability not to conduct plice does extend (internal to the main “inevitably incident” is Id. at citations Thus, merely buys omitted). someone who offense. Similarly, in States v. United (2d personal Amen, Cir.1987), for use cannot be heroin 381-82 aiding abetting or the distribution with a Circuit held that statute that Second consents heroin; fourteen-year a old who con- applied “kingpins” to did not so-called forty-year old cannot be to sex with template aiding-or-abet- extension statutory aiding abetting charged with to ting liability apply accessories: acces- to her ser- rape; who sells prostitute liability sory kingpin to the statute would charged with a client cannot be treating kingpins vices to purpose defeat prosti- abetting the solicitation aiding or than harshly their subordinates. more 924(a) 924(c) case, § tution. In our true in our case. Con- The same holds inevitably two harshly deal with sides almost more than gress treated customers knowingly accepts fal- dealers; coin: a seller same dealers treat licensed licensed buyer from a who know- paperwork sified under- to the customers as accessories punish To ingly paperwork. falsifies Congress’s intent. mines aiding the latter abetting the former majority’s interpretation The is redundant. 922(b)(5) from the same suffers §of but interpretation Indeed, routinely problems its the federal courts have our decision in United also is at odds with statutes with this federal criminal imbued Choice, Cir. 201 F.3d 837 accomplice liabil- States exception common-law 2000). here, fairly is Carneys’ argument The it majority to do so ity; were the evidence showed straightforward: to conclude that have no choice but would records, not that they falsely filled out prosecuted under the were at all. fill out records failed to In v. United provision. Gebardi wrong however, argues, that the States, L.Ed. Government S.Ct. 287 U.S. when a dealer “is violated (1932), statute also Supreme interpreted Court name, age, and fails record the Act, wilfully to of Mann which outlawed scope purchaser, of the true in- address instead name,

serting age, America, a address of UNITED STATES purchaser.” straw Plaintiff-Appellee, Again, the reading Government’s would subject virtually all licensed dealers who liability,

file to false records dual render- PENSYL, Jon Clark Defendant- 922(b)(5) ing duplicative. Choice, And in Appellant. at when rejecting challenge No. 03-4468. felony conviction under provision 922(b)(5), arguing with the dealer United States Court of Appeals, 924(a) subjected only him to misdemean- Sixth Circuit. liability, explicit we an drew distinction submitting

between false records Argued: Sept. 2004. records, keeping noting no Congress Decided and Filed: Oct. 2004. “punish[ed] knowing- licensed dealers who ly falsify harshly records less than dealers willfully keep

who fail to at records

all.” Id. at language 840. This Choice not, majority contends,

was as the “mere * *) noncontrolling (Majority dictum.”

Rather, if the reading Government’s

statute were correct—that the falsification inevitably

of records also resulted dis- liability

tinct for the attendant failure to

record the true information' —then the ba- holding

sis for our in Choice would be

undermined.

In both of holdings, majority its has statutory interpretations

embraced Congress

assume that created

multiple liability for the same conduct cases, all

virtually but also that it did inso

an indirect when a fashion more direct

means was available to it. I give would

the statutes their natural reading, which

leads to the inevitable conclusion that Con-

gress wanted federally licensed dealers

who falsified paperwork charged only be federally licensed dealers who falsified

paperwork. I therefore would reverse the

convictions. reasons,

For preceding respectful- I

ly dissent.

Case Details

Case Name: United States v. Patrick Carney (03-1735) Sean Carney (03-1736)

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 8, 2004

Citation: 387 F.3d 436

Docket Number: 03-1735, 03-1736

Court Abbreviation: 6th Cir.