6th Circuit Discusses Split Re Intent Element to Prove Crime of Aiding and Abetting a Felon in Possession of a Firearm

Per U.S. v. Gardner , 488 F.3d 700 (6th Cir.(Tenn.) May 25, 2007) (NO. 05-6272)

The elements that the government must show to prove aiding and abetting are: (1) an act by a defendant that contributes to the commission of a crime; and (2) the intent to aid in the commission of the crime. Lawson, 872 F.2d at 181. Because there is evidence that Gardner brought both weapons into the car, Gardner certainly committed an act that contributed to McMillion's commission of the offense. Thus, we now consider whether Gardner had the required intent to aid in McMillion's commission of the crime.

We have yet to decide whether this element requires proof that the aider and abetter knew or should have known that the principal, McMillion in this case, was a convicted felon. The circuits are split on this question. The Ninth Circuit has held that the government need not show that the defendant knew the principal was a felon. United States v. Canon, 993 F.2d 1439, 1442 (9th Cir.1993); United States v. Graves, 143 F.3d 1185, 1188 (9th Cir.1998) ( " Canon decided the question of whether an aider and abettor is required to know of the principal's status as a felon."). Also, while the Seventh Circuit has not directly confronted this particular question, that court has held that a defendant in this type of case need only share the principal's knowledge that the principal possessed a gun. United States v. Moore, 936 F.2d 1508, 1527-28 (7th Cir.1991) ("Moore was clearly aware of Miles' use of a gun in both armed robberies and, thus, satisfied this prong of the 'aiding and abetting' test."). In contrast, the Third Circuit has held that the government must show that the defendant must know or have reasonable cause to know that the principal is a felon in order to sustain an aiding-and-abetting conviction under § 922(g). United States v. Xavier, 2 F.3d 1281, 1286 (3d Cir.1993).

The Ninth and Seventh Circuits offer little reasoning for their conclusions. In Canon, 993 F.2d at 1442 (citations omitted), the Ninth Circuit provides almost no support for its holding, writing that, because the government did not have to show that the principal knew his own felonious status, the government only had to show that the aider and abettor "associated himself with [the principal's crime], that he participated in it as in something that he wished to bring about, [and] that he *715 [sought] by his action to make it succeed." The Seventh Circuit followed similar reasoning, holding in passing that, because the "required state of mind" for a principal's § 922(g) violation is that the principal "knowingly possessed the gun," the government must only show that the aider and abettor knew the principal possessed the gun. Moore, 936 F.2d at 1526-28 (citations omitted).

The Third Circuit decision, in contrast, is well-reasoned and we concur with it.


S.D.N.Y. Notes Split Re Public Disclosure of Fraud Allegations in Qui Tam Actions Under the False Claims Act

Per U.S. ex rel. Anti-Discrimination Center of Metro New York, Inc. v. Westchester County, New York, --- F.Supp.2d ----, 2007 WL 2012901 (S.D.N.Y. Jul 13, 2007) (NO. 06 CIV 2860 DLC):

To determine whether the statutory bar to jurisdiction applies, a court must examine, among other issues, whether there was a "public disclosure" of the wrongdoing, and whether that disclosure occurred in one of the ways listed in the statute [the False Claims Act]. Doe, 960 F.2d at 323. "[A]llegations of fraud are publicly disclosed when they are placed in the 'public domain.' " Id. at 322 (citation omitted). This requirement precludes "qui tam suits based on information that would have been equally available to strangers to the fraud transaction had they chosen to look for it as it was to the relator." Kreindler & Kreindler, 985 F.2d at 1158 (citing United States ex rel. Stinson, Lyons, Gerlin & Bustamante, P.A. v. Prudential Ins. Co., 944 F.2d 1149, 1155-56 (3d Cir.1991)).

Insofar as the manner of public disclosure is concerned, the modes include state and federal hearings and trials, and federal government reports, hearings, audits, and investigations. See, e.g., Kreindler & Kreindler, 985 F.2d at 1158 (civil lawsuit filed in federal court); Doe, 960 F.2d at 323 (federal government agency investigation). The Second Circuit has not yet addressed whether state government reports, hearings, audits, and investigations are also encompassed by the jurisdictional bar, and other circuits are divided on the issue. Compare United States ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir.1997) ("Congress was not referring to administrative reports produced by non-federal government sources."), with United States ex rel. Bly-Magee v. Premo, 470 F.3d 914, 918 (9th Cir.2006) (agreeing with the Eighth Circuit in Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir.2003), that audit reports prepared by a state agency may be public disclosures).


M.D. Tennessee Notes Intra-Circuit Split Re Whether Court May Release Defendant Pending Sentencing for Exceptional Reasons

Per U.S. v. Mellies, --- F.Supp.2d ----, 2007 WL 2021947 (M.D.Tenn. Jul 10, 2007) (NO. 3:05-00132):

In an unpublished opinion, United States v. Cook, 42 Fed.Appx. 803, 804 (6th Cir.2002), the United States Court of Appeals for the Sixth Circuit held in light of the authority from other circuits that a district judge is not precluded from making a determination of exceptional circumstances in support of release under § 3145(c). The United States Court of Appeals for the First Circuit held similarly in another unpublished opinion. United States v. Weiner, 972 F.2d 337 (1st Cir.1992) (unpublished).

. . .

The Sixth Circuit unpublished opinion indicates that the circuit court may eventually issue a published opinion following the other circuits. Nonetheless, district courts within the Sixth Circuit are split on whether district courts may apply § 3145(c). Compare Salazar, 2007 WL 542390 (W.D.Ky.2007), Burnett, 76 F.Supp.2d 846 (E.D.Tenn.1999), and Rodriguez, 50 F.Supp.2d 717 (N.D.Ohio 1999) (applying § 3145(c)) with In re Sealed Case, 242 F.Supp.2d 489 (E.D.Mich.2003) (holding district court lacks jurisdiction under § 3145(c)).


N.D. Illinois (Banktcy Ct.) Notes Split Re Debt Dischargability for Intentional Breach of Contract In Chapter 7 Bankruptcy Proceedings

Per In re Salvino, Slip Copy, 2007 WL 2028577, (Bankr.N.D.Ill. Jul 09, 2007) (NO. 05-B-61546, 06-A-1092):

Section 523(a)(6) excepts from discharge debts for "willful and malicious injury by the debtor to another entity or to the property of another entity." Whether Acquisition's $1.5 million claim for breach of contract is nondischargeable under this provision depends on the extent to which "willful and malicious injury" encompasses intentional breaches of contract. The circuits are split on this question.

The Fifth Circuit holds that any breach of contract is nondischargeable as a willful and malicious injury if the debtor either intended to injure the other party to the contract by breaching it or if injury to the other party was "substantially certain" to result from the breach; tortious conduct is not required. See In re Williams, 337 F.3d 504, 510 (5th Cir.2003) ( "[D]ischargeability of contractual debts under Section 523(a)(6) depends upon the knowledge and intent of the debtor at the time of the breach, rather than whether conduct is classified as a tort....").

The Ninth Circuit, on the other hand, holds that "to be excepted from discharge under § 523(a)(6), a breach of contract must be accompanied by some form of 'tortious conduct' that gives rise to 'willful and malicious injury." ' In re Jercich, 238 F.3d 1202, 1206 (9th Cir.2001). Unreported decisions from the Sixth and Tenth Circuits are similarly split. FN7 The Seventh Circuit has not addressed the question.

FN7. Compare In re Sanders, No. 99-6396, 2000 WL 328136 (10th Cir. Mar. 29, 2000) (tortious conduct not required for "willful and malicious injury" under § 523(a)(6)) with In re Best, No. 03-5098, 2004 WL 1544066 (6th Cir. June 30, 2004) (breach of contract unaccompanied by tortious conduct cannot be a "willful and malicious injury"). An unpublished decision of the Fifth Circuit holds, contrary to Walker, that tortious conduct is required for § 523(a)(6) nondischargeability, citing Jercich for that rule. In re Deasy, No. 02-11200, 2003 WL 21018189 at *1 (5th Cir. Apr. 18, 2003) ("[A] bare breach of contract claim fails, as a matter of law, to establish ... a 'willful and malicious injury' for purposes of § 523(a)(6).").


Third Circuit Notes Split Re Interpretation of "Credit for Time at Liberty" Doctrine

Per Vega v. U.S., --- F.3d ----, 2007 WL 1989362 (3rd Cir.(Pa.) Jul 11, 2007) (NO. 05-5105):

The principal issue before us is whether Vega should receive credit toward his federal sentence for the nearly two years he spent at liberty as a result of his erroneous release from the state penitentiary system. Vega proposes that his two periods of incarceration should have run continuously, and thus, the unintentional lapse between the two sentences entitles him to have the intervening period of liberty counted toward his federal sentence. This proposition finds support in the case law of other circuits, where it is alternately referred to as the "rule" or the "doctrine" of credit for time at liberty. The origin of the rule in federal case law can be traced to White v. Pearlman, 42 F.2d 788 (10th Cir.1930). In that case, the Tenth Circuit established that "where a prisoner is discharged from a penal institution, without any contributing fault on his part, and without violation of conditions of parole, [ ] his sentence continues to run while he is at liberty." FN2 Id. at 789. However, the court noted that "[a]s to whether a prisoner, who knows a mistake is being made and says nothing, is at fault, we do not now consider." Id.

FN2. A number of circuits, including our own, have adopted the holding in White. See Free v. Miles, 333 F.3d 550, 554 (5th Cir.2003) ("[I]nadvertent prisoner releases ... present circumstances that courts have repeatedly held to be deserving of credit for time served."); United States ex rel. Binion v. O'Brien, 273 F.2d 495, 498 (3d Cir.1960).

While courts vary in their interpretation and application of the rule, most agree that a mere delay in the commencement of a sentence is insufficient to give a prisoner the right to credit for time at liberty. Most recently, in Leggett v. Fleming, 380 F.3d 232 (5th Cir.2004), the Fifth Circuit reiterated that "we have also held that a delay in the commencement of a sentence by itself does not constitute service of that sentence." Id. at 234; but see Smith v. Swope, 91 F.2d 260, 262 (9th Cir.1937) ("The prisoner is entitled to serve his time promptly if such is the judgment imposed, and he must be deemed to be serving it from the date he is ordered to serve it and is in the custody of the marshal under the commitment, if, without his fault, the marshal neglects to place him in the proper custody."). FN3

FN3. However, some courts have held that if the authorities cause an excessive delay in the commencement of a sentence, they may waive jurisdiction of their right to execute a sentence. See Shields v. Beto, 370 F.2d 1003, 1004-06 (5th Cir.1967) (noting that "delay in execution of a sentence is repugnant to the law").

. . .

[I]in order for a prisoner to receive credit for time he was erroneously at liberty, the prisoner's habeas petition must contain facts that demonstrate that he has been released despite having unserved time remaining on his sentence. Once he has done this, the burden shifts to the government to prove either (1) that there was no negligence on the part of the imprisoning sovereign, or (2) that the prisoner obtained or retained his liberty through his own efforts. This test is similar to tests created by our sister circuits who have addressed the issue.


E.D. Michigan Notes Split Re Statute of Limitations for Violation of Federal Tax Evasion Statute

Per U.S. v. Blanchard, Slip Copy, 2007 WL 1976359 (E.D.Mich. Jul 03, 2007) (NO. CRIM. 05-80355-1, CRIM. 05-80355-2):

The issue as to whether the general three year statute of limitations or the six year statute of limitations of § 6531(4) applies to violations of § 7202 is a novel one in this Circuit. However, numerous other courts have examined the issue. The court in United States v. Block, 497 F.Supp. 629 (D.Ga.1980) stated the issue succinctly: "The question presented is quite simply one of statutory interpretation. The question is: Does 26 U.S.C. § 6531(4), which establishes a six-year period of limitations for 'the offense of willfully failing to pay any tax,' apply to failure to 'pay over' third party taxes in violation of 26 U.S.C. § 7202?" Block, 497 F.Supp. at 632-33. Courts considering this question have reached different conclusions; some Courts have found that the general three-year statute of limitations applies, see Block, 497 F.Supp. 629; United States v. Brennick, 908 F.Supp. 1004 (D.Mass.1995), however the overwhelming majority of courts have found that the six-year statute of limitations applies. See United States v. Adam, 296 F.3d 327, 332 (5th Cir.2002); United States v. Gilbert, 266 F.3d 1180, 1186 (9th Cir.2001); United States v. Musacchia, 900 F.3d 493, 499-500 (2d Cir.1990); United States v. Porth, 426 F.2d 519, 522 (10th Cir.1970); United States v. Creamer, 370 F.Supp.2d 715 (N.D.Ill.2005).

. . .

Contrary to the statutory interpretation presented in the cases of Brennick and Block, the Court of Appeals for the Third Circuit examined the language of the statute in United States v. Gollapudi, 130 F.3d 66 (3d Cir.1997), and concluded that the six year statute of limitations applied:

Under a plain reading of this statute, we find it clear that violations of § 7202 are subject to a six-year statute of limitations under § 6531(4). Specifically, 26 U.S.C. § 7202 makes it an offense for an employer to willfully fail to "account for and pay over" to the IRS taxes withheld from employees. Given that § 6531 pertains to "failing to pay any tax," the District Court correctly found that the failure to pay third-party taxes as covered by § 7202 constitutes failure to pay "any tax," and thus, is subject to the six-year statute of limitations under § 6531(4). Gollaapudi, 130 F.3d at 70 (emphasis added) (citations omitted).

. . .

In holding that a six year statute of limitations applies to violations of 26 U.S.C. § 7202 this Court joins the chorus of courts that have already addressed this issue. See United States v. Adam, 296 F.3d 327, 332 (5th Cir.2002) (finding that the Defendant had "not shown a persuasive reason for creating a split among the circuits on this issue, and because we believe the plain language of § 6531(4) encompasses § 7202, we conclude that the district court correctly determined that the six-year statute of limitations applies to § 7202."); United States v. Gilbert, 266 F.3d 1180, 1186 (9th Cir.2001) ("Based on the holdings of the other three circuits, we find the six-year statute of limitations under § 6531(4) applies to § 7202."); United States v. Musacchia, 900 F.3d 493, 499-500 (2d Cir.1990), vacated on other grounds, 955 F.2d 3 (2d Cir.1990), but reaffirmed by United States v. Evangelista, 122 F.3d 112, 119 (2d Cir.1997) ("[W]e hereby reaffirm the holding of the original Musacchia opinion that 'a six year statute of limitations applies to the offense defined by 26 U.S.C. § 7202' "); United States v. Porth, 426 F.2d 519, 522 (10th Cir.1970) (finding that § 7202 was "clearly within the six-year exception to the general three-year statute of limitations of § 6531"); United States v. Creamer, 370 F.Supp.2d 715 (N.D.Ill.2005) ("[T]hese 'third party taxes' [United States v.] Block, 497 F.Supp. at 632, are still taxes, and section 6531(4) clearly applies to 'any tax.' We would have to ignore the plain meaning of 'pay any tax' in order to exempt from its coverage withholding taxes, which, despite their method of payment, are still taxes that must be paid."), partially vacated on other grounds, Case No. 04-CR-281-1, 2006 WL 2037326 (N.D. Ill. Apr 04, 2006)).


E.D. Pennsylvania Notes Split Re Which Party Bears Burden of Proving Waiver of the Right to a Jury Trial

Per Coleman v. Ameriprise Financial Services, Inc., Slip Copy, 2007 WL 2011447 (E.D.Pa. Jul 05, 2007) (NO. CIV A 05-6408):

While the right to a jury trial is guaranteed by the Seventh Amendment, it can be contractually waived if the waiver is knowing and voluntary. Aamco v. Marino, 1990 WL 10024, at * 1 (E.D.Pa., Feb.7,1990), citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389,393 (1936). "The United States Court of Appeals for the Third Circuit has not yet determined whether the movant or the opposing party bears the burden of proving the waiver of the right to a jury trial, and other circuits are split on this issue." Bishop v. GNC Franchising, LLC, 2006 WL2266251, at *1 (W.D. Pa., Jan 13, 2006) (citations omitted).

To determine whether a plaintiff's waiver of the right to a jury trial is knowing and voluntary, the following may be considered: "(1) whether there was a gross disparity in bargaining power between the parties; (2) the business or professional experience of the party opposing the waiver; (3) whether the clause containing the waiver was inconspicuous; and (4) whether the opposing party had an opportunity to negotiate contract terms." Id., citing Hydramar, Inc. v. Genernal Dynamics Corp., 1989 WL 159267 (E.D.Pa.1989). Here, these factors favor enforcement of the waiver.


Western District Of Louisiana Notes Split Re Continuing Violations Doctrine And Statutory Deadlines In Suits Alleging Agency Noncompliance

Per Schoeffler v. Kempthorne, --- F.Supp.2d ----, 2007 WL 1850711 ( W.D.La. Jun 26, 2007) (NO. CIV.A. 05-1573):
The continuing violations doctrine permits a plaintiff to sue on a claim that would be time-barred if considered in isolation, but where subsequent violations act to prevent accrual or otherwise toll the limitations period. The United States Court of Appeals for the Fifth Circuit has recognized the viability of the continuing violations doctrine to toll the statute of limitations. See Mayberry v. Conoco, Inc., 2001 WL 1751461(5th Cir.2001); Lariscey v. Smith, 1995 WL 535012, 4 (5th Cir.1995); Hendrix v. City of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir.1990). The scope of the doctrine is unclear, and the United States Supreme Court has not ruled on the issue. While the doctrine has not been applied in the Fifth Circuit in an ESA citizen suit against the government, it has been applied by other federal courts to toll the 28 U.S.C. § 2401 statute of limitations in citizen suits with fact patterns similar to the present one in which the government owed a continuing duty to the plaintiff. FN29

FN29. The federal circuits are split as to whether plaintiffs in suits alleging agency noncompliance with statutory deadlines may be able to avoid the statute of limitations by application of the continuing violation doctrine. The D.C. Circuit has applied the continuing violations doctrine to toll the statute of limitations in cases involving government agency inaction. See The Wilderness Soc. v. Norton, 434 F.3d 584 (D.C.Cir.2006) (holding that the six-year, general federal statute of limitations for civil actions against the United States does not apply to actions under the APA to compel agency action unlawfully withheld or unreasonably delayed because the plaintiff in such a suit seeks redress for an alleged continuing violation). Numerous un-appealed federal district court decisions have also considered the applicability of the doctrine. See. e.g. Modern, Inc. v. Florida, 2006 WL 1679347, 5 (M.D.Fla.2006); Heartwood v. Norton, 2005 WL 2656733 (S.D.Ohio.2005); Central Pines Land Co. v. United States, 61 Fed. Cl. 527, 537 (Fed.Cl.2004); Boling v. United States, 220 F.3d 1365, 1373 (Fed.Cir.2000); Fallini v. United States, 56 F.3d 1378, 1381 (Fed.Cir.1995), cert. denied, 517 U.S. 1243, 116 S.Ct. 2496, 135 L.Ed.2d 189 (1996) ( citing United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947)(providing that the statute of limitations does not begin to run until the challenged government actions have stabilized.)).


N.D. of Texas Notes Split Re Interpretation of Footnote Seven of the Heck Decision Relating to Fourth Amendment Claims

Per Johnson v. Knox, Slip Copy, 2007 WL 1975597 (N.D.Tex. Jul 05, 2007) (NO. 307-CV-0170-N):

The same applies to Plaintiff's illegal search and seizure claim against Defendant Castanon. It is not possible at this time to determine unequivocally whether Heck, would apply to the Fourth Amendment claims. In footnote seven of its Heck decision, the Supreme Court stated:

a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiff's still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful. Heck, 512 U.S. at 487 n. 7, 114 S.Ct. at 2372 n. 7. See also Haring v. Prosise, 462 U.S. 306, 103 S. Ct.. 2368, 76 L.Ed.2d 595 (1983) (holding that a plaintiff's guilty plea did not constitute a waiver of antecedent Fourth Amendment claims in a § 1983 action). The circuits are split as to the proper interpretation of footnote seven . FN3

FN3. At least three circuits have held that footnote seven creates a general exception to Heck for Fourth Amendment unreasonable search and seizure claims. See, e.g., Moore v. Sims, 200 F.3d 1170, 1171-72 (8th Cir.2000) (per curiam); Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir.1998); Datz v. Kilgore, 51 F.3d 252, 253 n. 1 (11th Cir.1995) (per curiam); see also Hughes v. Lott, 350 F.3d 1157, 1160-61 (11th Cir.2003). Other circuits permit such claims to go forward only after the district court makes an individualized determination that a favorable ruling in that case would not undermine the related criminal conviction or pending criminal proceedings. See, e.g., Ballenger v. Owens, 352 F.3d 842, 845-56 (4th Cir.2003); Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir.2000); Shamaeizadeh v. Cunigan, 182 F.3d 391, 398-99 (6th Cir.1999); Woods v. Candela, 47 F.3d 545, 546 (2d Cir.1995) (per curiam). Cf. Beck v. City of Muskogee Police Dept., 195 F.3d 553, 559 n. 4 (10th Cir.1999) (generally disagreeing with courts that make an individualized determination, but noting that the case before it was not the "rare situation ... where all evidence was obtained as a result of an illegal arrest").

Recently, the Third Circuit concluded that a Fourth Amendment claim can be brought under § 1983, even without favorable termination, if the district court determines that success on the claim would not necessarily imply the invalidity of the conviction. Gibson v. Superintendent of New Jersey Dept. of Law and Public Safety, 411 F.3d 427, 435-39 (3d Cir.2005), cert. denied, 547 U.S. 1035, 126 S. Ct.. 1571, 164 L.Ed.2d 326 (2006). However, in those cases in which a district court determines that success on the § 1983 claim would imply the invalidity of the conviction, the cause of action is deferred until the conviction is overturned pursuant to Heck. Id.


Southern District of Texas Notes Split Re Validity and Enforcement of Forum Selection Clauses

Per Boccard USA Corp. v. TigPro Inc., Slip Copy, 2007 WL 1894154 (S.D.Tex. Jul 02, 2007) (NO. CIV.A. H-07-0177):
If the forum-selection clause is valid, TigPro's contractual agreement waives objections that the venue is inconvenient or otherwise improper. See Nw. Nat'l Ins. Co. v. Donovon, 916 F.2d 372, 378 (7th Cir.1990) ("[T]he signing of a valid forum selection clause is a waiver of the right to move for a change of venue on the ground of inconvenience to the moving party."); Hodge v. Ampere Auto. Corp., No. 3:01-cv-0976, 2001 WL 1478794, at *3 (N.D.Tex. Nov.19, 2001). Courts in the Fifth Circuit analyze the validity of forum-selection clauses under federal law, regardless of whether jurisdiction is based on diversity or a federal question. FN4 See Haynsworth v. The Corporation, 121 F.3d 956, 962 (5th Cir.1997); Int'l Software Sys., Inc. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir.1996).

FN4. The circuits are divided on whether enforcement of a forum-selection clause is procedural and governed by federal law or substantive and governed by state law. The Second, Fifth, and Ninth Circuits refer to federal law when considering motions to dismiss predicated on forum-selection clauses. Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir.1990); Int'l Software Sys. v. Amplicon, Inc., 77 F.3d 112, 115 (5th Cir.1996); Manetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509 (9th Cir.1988). The Third Circuit has applied state law. General Eng'g Corp. v. Martin Marietta Alumina, Inc., 783 F.2d 352, 357 (3d Cir.1986). The Fourth Circuit in an unpublished opinion has applied state law without explanation. Nutter v. New Rents, Inc., No. 90-2493, 1991 WL 193490, at *5-6 (4th Cir.1991). Other circuits have declined to take a position on the question. Lambert v. Kysar, 983 F.2d 1110, 1116 (1st Cir.1993); Nw. Nat'l Ins. Co. v. Donovan, 916 F.2d 372, 374 (7th Cir.1990); 1202 M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 n. 4 (8th Cir.1999).

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