US v. David Anthony Taylor
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 7:12-cr-00043-GEC-1. [999371021]. [13-4316]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4316
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID ANTHONY TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.
Glen E. Conrad, Chief
District Judge. (7:12-cr-00043-GEC-1)
Argued:
May 15, 2014
Before WILKINSON and
Senior Circuit Judge.
Affirmed
opinion,
joined.
by
in
Decided:
THACKER,
Circuit
published opinion.
which Judge Thacker
Judges,
June 6, 2014
and
HAMILTON,
Judge Wilkinson wrote the
and Senior Judge Hamilton
ARGUED: Kari Elizabeth Jackson, Dennis Jones, DENNIS E. JONES &
ASSOCIATES, Abingdon, Virginia, for Appellant.
Jean Barrett
Hudson, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
ON BRIEF: Timothy J. Heaphy, United
States Attorney, Roanoke, Virginia, Anne H. Lippitt, Third Year
Law
Student,
OFFICE
OF
THE
UNITED
STATES
ATTORNEY,
Charlottesville, Virginia, for Appellee.
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WILKINSON, Circuit Judge:
David Anthony Taylor appeals his convictions for two counts
of Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) and one
count of using a firearm in furtherance of a crime of violence
in violation of 18 U.S.C. § 924(c).
the
government
failed
to
introduce
Taylor contends both that
sufficient
evidence
to
establish that his robberies affected interstate commerce and
that the district court erred in prohibiting him from showing
that the particular drugs he was seeking to steal did not affect
interstate
commerce.
Pursuant
supporting
the
ability
disruption
of
broad
interstate
to
of
commerce
Supreme
Court
Congress
to
and
own
our
precedent
punish
the
conforming
decisions in United States v. Tillery, 702 F.3d 170 (4th Cir.
2012), and United States v. Williams, 342 F.3d 350 (4th Cir.
2003), we affirm his convictions.
I.
A.
Taylor was a member of the “Southwest Goonz,” a group of
robbers led by George Fitzgerald and based in Roanoke, Virginia.
The Goonz focused on robbing drug dealers because they typically
have drug proceeds in their homes and, because of the illegal
nature of their activities, they are reluctant to report crime
to the authorities.
Taylor persuaded Fitzgerald to take him on
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several planned home invasions in order to steal drugs and drug
proceeds, such as money and jewelry.
One of these break-ins was planned for the residence of
Josh Whorley, where his girlfriend Latasha Graham and her two
children also lived.
had
learned
that
Fitzgerald chose Whorley’s home because he
Whorley
sold
an
exotic
and
high
grade
of
marijuana, a belief that he communicated to Taylor and two other
group members.
The robbers expected to find both drugs and
money there.
Their expectations were not unreasonable, because Whorley
had both used and sold drugs in the past.
regular marijuana user.
Graham herself was a
Additionally, Whorley’s house had been
broken into twice prior to the August 27, 2009 robbery, and a
housemate had been held at gunpoint in the driveway.
Taylor and his associates robbed Whorley’s house on the
night of August 27.
The four robbers kicked in the front door
and held guns to Whorley and Graham while searching the house.
During
pistol,
the
robbery,
groped
Taylor
her,
and
hit
clawed
Graham
the
in
rings
the
off
head
her
with
his
fingers.
Whorley was also repeatedly struck by one of the robbers.
The
robbers
and
demanded
that
marijuana were located.
Graham
tell
them
where
the
money
All in all, the robbers made off with
Graham’s jewelry, $40 from her purse, two cell phones, and a
marijuana cigarette.
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Another break-in was planned for the home of William Lynch,
who lived together with his wife, Whitney Lynch, and their three
children.
Fitzgerald chose Lynch’s home because he had been
told by a previously reliable source that Lynch sold marijuana.
The source further informed Fitzgerald that on a prior occasion
he had personally robbed Lynch, also known as “W.T.,” of twenty
pounds of marijuana.
Lynch surrounded himself with people who
used and possessed drugs.
Taylor and Fitzgerald both expected
to recover marijuana and drug proceeds during the home invasion.
The Goonz robbed Lynch’s residence on October 21, 2009.
Taylor
initiated
the
robbery
by
knocking
on
the
front
door.
After he entered the home, Fitzgerald and another group member
followed.
Once inside, Taylor held Lynch and his six-year old
son at gunpoint in the living room, while another robber forced
Lynch’s nine-year old daughter from her bedroom into the living
room.
Fitzgerald asked Lynch to tell him where the marijuana
was located.
Lynch insisted that he did not have it and claimed
that it was in another man’s possession.
Whitney Lynch emerged
from her bedroom at the sound of the commotion and was assaulted
by a robber, who attempted to remove her pants.
She struggled
with him while he demanded that she show him where the money and
drugs were located.
by her hair.
She was then dragged into the living room
The three robbers eventually took Lynch’s cell
phone and departed.
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B.
On July 26, 2012, Taylor was indicted by a grand jury in
the Western District of Virginia on two counts of Hobbs Act
robbery under 18 U.S.C. § 1951(a) and two counts of using a
firearm in furtherance of a crime of violence under 18 U.S.C.
§ 924(c).
Taylor’s first trial resulted in a hung jury.
A second trial was conducted from January 23 to 25, 2013.
Before
the
preclude
second
Taylor
trial
from
commenced,
offering
the
evidence
government
that
moved
robbing
a
to
drug
dealer who sells marijuana grown within the borders of Virginia
does not affect interstate commerce and thus does not violate
the Hobbs Act.
Taylor filed a Motion to Dismiss, contending
that such a ruling would violate his constitutional right to
present a complete defense.
The district court held a hearing
after which it granted the government’s motion on the grounds
that the enterprise of drug dealing affects interstate commerce
as a matter of law under United States v. Williams, 342 F.3d 350
(4th Cir. 2003).
See also United States v. Tillery, 702 F.3d
170, 175 (4th Cir. 2012) (upholding conviction for Hobbs Act
robbery of a business because it impacted interstate commerce
“in the aggregate”).
On January 25, the jury convicted Taylor on three of the
four counts in the indictment, including both of the Hobbs Act
offenses.
With regard to the Hobbs Act crimes, the jury found
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Taylor guilty of “knowingly and unlawfully taking and obtaining,
or attempting to take or obtain, by robbery, items having an
effect on interstate commerce by means of actual and threatened
force, violence, and fear of injury.”
J.A. 702.
Taylor moved
to set aside the verdict on the basis that the government had
not
offered
evidence
interstate commerce.
that
Taylor’s
actions
had
affected
The district court denied Taylor’s motion.
The court then sentenced Taylor to 336 months in prison followed
by supervised release for three years.
Taylor now appeals.
II.
Taylor
sufficient
commerce
argues
evidence
under
the
that
that
Hobbs
the
government
failed
robberies
affected
his
Act.
He
also
to
contends
present
interstate
that
the
district court erred in prohibiting him from showing that his
robberies of dealers of Virginia-grown marijuana likely did not
impact interstate commerce.
A.
We note at the outset the extraordinary breadth and reach
of the Hobbs Act.
That law reads, in pertinent part:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be [punished].
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18 U.S.C. § 1951(a).
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A Hobbs Act crime, then, has two elements:
“(1) robbery or extortion, and (2) interference with commerce.”
Tillery, 702 at 174.
With regard to the second element, it is
impossible to ignore Congress’ repeated use of the word “any.”
Indeed,
the
Supreme
Court
has
recognized
that
the
Hobbs
Act
“speaks in broad language, manifesting a purpose to use all the
constitutional power Congress has to punish interference with
interstate commerce . . . .”
212,
215
(1960).
Thus,
Stirone v. United States, 361 U.S.
the
jurisdictional
predicate
of
the
Hobbs Act requires only that the government prove a “minimal”
effect on interstate commerce.
United States v. Spagnolo, 546
F.2d 1117, 1119 (4th Cir. 1976).
Such an impact is not difficult to show.
The effect may be
so minor as to be de minimis, United States v. Buffey, 899 F.2d
1402, 1404 (4th Cir. 1990), and may be demonstrated by “proof of
probabilities,” United States v. Brantley, 777 F.2d 159, 162
(4th Cir. 1985).
Moreover, the government is not required to
prove that the “defendant intended to affect commerce or that
the effect on commerce was certain; it is enough that such an
effect was the natural, probable consequence of the defendant’s
actions.”
Williams, 342 F.3d at 354.
To determine whether a robbery affects commerce, we do not
simply examine the effect of the individual action in question;
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sufficient
that
the
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“relevant
class
measureable impact on interstate commerce.
174 (internal quotation marks omitted).
of
acts”
has
a
Tillery, 702 F.3d at
Considering the class
of activities in the aggregate in order to determine whether
they impact interstate commerce is nothing new.
The Supreme
Court has repeatedly found that Congress may regulate conduct
under
the
Commerce
Clause
interstate commerce.
that,
in
the
aggregate,
impacts
See, e.g., Gonzales v. Raich, 545 U.S. 1,
18-19, 22 (2005) (holding that Congress may regulate intrastate
marijuana market because of its aggregate impact on interstate
commerce);
Wickard
v.
Filburn,
317
U.S.
111,
128-29
(1942)
(finding that Congress is permitted to regulate activities that,
when
“taken
together
with
th[ose]
of
many
others
similarly
situated,” have an effect on interstate commerce).
We have likewise recognized that, because the Hobbs Act
reflects
the
full
breadth
of
Congress’
commerce
power,
aggregation principle applies in the Hobbs Act context.
Tillery, 702 F.3d at 174-75; Williams, 342 F.3d at 355.
the
See
Indeed,
to focus exclusively on an individual act would wholly undermine
Congress’
purpose
in
adopting
the
Hobbs
Act:
to
protect
commercial, interstate activity from criminal disruption.
See
United States v. Culbert, 435 U.S. 371, 373 (1978) (finding that
the
words
of
the
Hobbs
Act
“do
restrictive interpretation”).
8
not
lend
themselves
to
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In so ruling, we note the large number of circuits that
agree that the aggregation principle applies in the context of a
Hobbs Act violation. See United States v. Powell, 693 F.3d 398,
402
(3d
Cir.
2012)
jurisdictional
(“[B]ecause
element
and
the
Hobbs
criminalizes
Act
the
contains
a
‘fundamentally
economic’ crimes of robbery and extortion, violations of the Act
have
a
substantial
aggregate,
and
the
effect
on
interstate
government
need
not
commerce
prove
a
in
the
substantial
effect in each individual case.”) (citations omitted); United
States v. Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997) (same);
United
States
v.
Davis,
473
F.3d
680,
683
(6th
Cir.
2007)
(same); United States v. Marrero, 299 F.3d 653, 655 (7th Cir.
2002) (same); United States v. Bolton, 68 F.3d 396, 399 (10th
Cir. 1995) (same); United States v. Guerra, 164 F.3d 1358, 1361
(11th
Cir.
1999)
(same).
“Any
other
rule
would
leave
the
federal government helpless to deal with criminal acts that have
an individually trivial but cumulatively significant effect on
the
movement
of
goods
international boundaries.”
and
services
across
state
and
United States v. Thomas, 159 F.3d
296, 298 (7th Cir. 1998).
The
traced
requirement
in
aggregation
each
and
principle
that
every
and
the
precise
case
the
effect
would
class
of
not
on
only
acts
commerce
damage
principle
be
the
that
underlies it; it would also raise concerns of practicality which
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militate against a requirement of showing every charged crime’s
precise commercial effect.
See Marrero, 299 F.3d at 655 (“Nor
is it necessary that the individual criminal act . . . be shown
to have a measurable impact on commerce, which would usually be
impossible to show.
an impact.”).
It is enough if the class of acts has such
To the extent that United States v. Needham, 604
F.3d 673 (2d Cir. 2010), is in tension with our holding, we note
simply the observation of Judge Cabranes that “‘commerce’ for
purposes of the Hobbs Act -- that is, ‘commerce over which the
United
States
encompasses
has
jurisdiction,’
marijuana
that
is
18
grown,
entirely within a single state.”
U.S.C.
§ 1951(b)
processed,
and
-sold
Id. at 688 (Cabranes, J.,
dissenting in part and concurring in part).
If there is to be a
“marijuana exception” to traditional Hobbs Act principles, that
is a policy choice for the Congress to make.
Until it does, we
shall follow the plain lessons of Supreme Court cases and our
own precedent, which must of necessity govern our disposition of
this case.
It
is
of
no
relevance
commodity may be illegal.
that
the
market
for
a
certain
The jurisdictional predicate in the
Hobbs Act speaks of “commerce,” not just “legal” or “legitimate”
commerce, and commerce is well understood to encompass unlawful
transactions.
See Raich, 545 U.S. at 18-19 (holding that the
Commerce Clause empowers Congress to regulate and criminalize
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the
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national
commercial
market
for
enterprise
and
Pg: 11 of 18
marijuana).
robberies
Drug
of
drug
dealing
dealers
is
a
threaten
that enterprise; that is enough for a federal court to exercise
jurisdiction under the Hobbs Act.
See Williams, 342 F.3d at 354
(finding that “robberies of drug dealers . . . impact[] a trade
that plainly is both economic and interstate in character”).
Finally, it is not dispositive that the robberies involved
the invasion of the victims’ homes.
Many businesses, including
illegal drug enterprises, operate out of homes.
As the Supreme
Court has emphasized, commercial activities in or near the home
may
have
commerce.
in
the
a
significant
cumulative
effect
upon
interstate
See Raich, 545 U.S. at 19 (holding that, “when viewed
aggregate,
.
.
.
Congress
had
a
rational
basis
for
concluding that leaving home-consumed marijuana outside federal
control
would
.
.
.
affect
price
and
market
conditions”);
Wickard, 317 U.S. at 128 (“It can hardly be denied that a factor
of such volume and variability as home-consumed wheat would have
a
substantial
influence
on
price
and
market
conditions.”).
Thus, the locus of the commercial activity is not the litmus
test of a Hobbs Act violation.
B.
We now turn to the merits of Taylor’s claims.
contends
that
particularized
the
evidence
government
that
his
11
was
required
personal
He first
to
robberies
offer
affected
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interstate commerce and that, because the government offered no
such evidence, the district court lacked jurisdiction over his
prosecution under the Hobbs Act.
sufficiency
of
the
evidence,
we
In an appeal contesting the
view
“the
evidence
and
the
reasonable inferences to be drawn therefrom in the light most
favorable to the Government” and uphold the verdict if it is
supported by substantial evidence.
Williams, 342 F.3d at 355
(internal quotation marks omitted).
At the conclusion of trial, the district court instructed
the jury on the jurisdictional element as follows:
In considering . . . whether there has been an
obstruction, delay, or effect on interstate commerce,
I tell you that the government has met its burden of
proof if you find and believe from the evidence beyond
a reasonable doubt that the defendant reduced the
movement of articles and commodities in interstate
commerce, in this case illegal drugs and drug
proceeds, or attempted to do so by the robberies
charged in Counts One and Three.
It is not necessary for the government to prove that
the defendant intended to affect interstate commerce;
rather, this element may be proven by evidence that a
defendant’s actions were likely to affect interstate
commerce, even though the actual impact on commerce is
small.
J.A. 673-74.
These instructions were in accord with the law as
described above and Taylor’s argument thus rests solely on the
sufficiency of the evidence with regard to the jurisdictional
predicate.
But while Taylor contends that the government failed
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to prove the jurisdictional element, we find that the jury could
rationally have found that the government met its burden.
First, it was entirely reasonable for the jury to conclude
that
the
robberies
“would
have
the
effect
of
depleting
assets of an entity engaged in interstate commerce.”
899 F.2d at 1404.
“an
inherently
commerce.”
and
Buffey,
In Williams, we found that drug dealing was
economic
enterprise
342 F.3d at 355.
Taylor’s
the
robberies
that
affects
interstate
Although Williams involved cocaine
involved
marijuana,
the
principle
aggregation does not apply differently for different drugs.
of
See
Raich, 545 U.S. at 18-19 (applying the aggregation principle to
the
market
aggregate
for
marijuana).
necessarily
Because
affects
drug
interstate
dealing
in
commerce,
the
the
government was simply required to prove that Taylor depleted or
attempted to deplete the assets of such an operation.
Sufficient evidence was adduced at trial for a rational
jury to find that Whorley was a drug dealer and that Taylor
depleted or attempted to deplete his assets during the August 27
robbery.
The record shows that the Goonz were in the business
of robbing drug dealers, Fitzgerald testified that he selected
Whorley’s
house
to
rob
because
he
was
informed
that
a
drug
dealer lived there, and testimony further revealed that Taylor
took part in the robbery because he expected to find drugs and
drug proceeds in the home.
Furthermore, Whorley admitted to
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having sold drugs in the past and Graham did in fact possess
marijuana at the time of the robbery.
A Roanoke City detective
testified that drug dealers are commonly victims of repeated
home invasions and that he suspected Whorley of being a drug
dealer because Whorley’s house had been broken into at least
twice prior to the August 27 robbery.
Additionally,
the
money,
jewelry,
cell
phones,
and
marijuana cigarette that Taylor stole are sufficient to meet the
de minimis standard under the depletion-of-assets theory.
“We
have never held . . . that the depletion of assets theory has a
dollar-amount minimum.”
Tillery, 702 F.3d at 175.
But even if
these items together do not meet that low threshold, the jury
could rationally have concluded that Taylor attempted to steal
drugs and drug proceeds, and therefore satisfied the Hobbs Act
jurisdictional
element.
See
Brantley,
777
F.2d
at
163-64
(holding that Hobbs Act jurisdictional element may be satisfied
by inchoate crimes).
Likewise, the government proffered sufficient evidence for
a rational jury to conclude that Lynch was a drug dealer and
that Taylor depleted or attempted to deplete his assets in the
October 21 robbery.
was
a
group
testified
As with the robbery of Whorley, the Goonz
dedicated
that
he
had
to
robbing
received
drug
dealers.
intelligence
from
Fitzgerald
a
reliable
informant that Lynch was a drug dealer and had previously been
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of
robbed
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pounds
revealed
twenty
that
Taylor
proceeds in the house.
of
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marijuana.
thought
there
Additional
would
be
testimony
drugs
and
drug
Fitzgerald called Lynch by his nickname,
“W.T.,” and, when he demanded that Lynch hand over the drugs,
Lynch
told
him
that
the
marijuana
was
with
another
person.
Moreover, a federal officer testified that Lynch admitted that
he
had
sold
drugs
before
the
robbery
without
his
wife’s
knowledge and Lynch’s wife testified that he associated with
suspicious characters who used and possessed illegal drugs.
As
with Whorley, the jury could rationally have found that Taylor
attempted to deprive Lynch’s operation of both drugs and drug
proceeds and found jurisdiction accordingly.
There was thus
sufficient evidence at trial for the jury to have determined
that the jurisdictional element was satisfied under a depletionof-assets theory for both the Whorley and Lynch robberies.
Apart from the effect on the assets of an operation whose
character involves interstate commerce, there was evidence that
the
defendant
interstate
intentionally
commerce.
See
targeted
Powell,
a
693
business
F.3d
at
engaged
405.
in
While
evidence of the defendant’s intent is not required to prove that
his robberies had an impact on interstate commerce, that intent
is still probative on the question of whether his actions would
have had the “natural consequence[]” of affecting such commerce.
See id. (finding jurisdictional element met because defendant
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“deliberately sought to rob business owners to obtain proceeds
of businesses engaged in interstate commerce”).
Under the targeting theory, a defendant who robs a victim
in the belief that he will recover the proceeds of an enterprise
engaged
in
prosecution
interstate
commerce
under
Hobbs
the
Act
will
not
because
fortuitously
his
target
escape
did
possess those proceeds at the precise time of the robbery.
not
See
Brantley, 777 F.2d at 162 (“It may be enough [to prove the
jurisdictional predicate] that the parties intended to complete
a transaction which would have affected commerce, though their
intention was frustrated.”).
drug
dealing
enterprise
The amount of cash on hand in a
fluctuates
dramatically;
the
victims
were doubtless targeted by Taylor and the other Goonz in the
hope they would be found at a flush moment.
That they were not
does nothing to vitiate Taylor’s intent to target an enterprise
which by its nature engages in interstate commercial activity.
The evidence here was thus sufficient for two independent
reasons.
Whether viewed through the lens of the effect of the
defendant’s
crimes
(depletion
of
assets)
or
his
intent
(targeting), the government adduced sufficient evidence in this
case to meet the jurisdictional element of the Hobbs Act.
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therefore sustain Taylor’s Hobbs Act convictions. *
As Taylor
challenged his conviction for using or carrying a firearm in
furtherance
of
a
crime
of
violence
under
18
U.S.C.
§ 924(c)
solely on the ground that the Hobbs Act predicate was infirm,
that conviction too must be upheld.
This is not to imply that the reach of the Hobbs Act is
without limits.
All robberies are disruptive, but not every
disruption is an obstruction of commerce.
The Sixth Circuit,
for example, held that the jurisdictional element of the Hobbs
Act
was
not
satisfied
when
the
defendant
stood
convicted
of
robbing “private citizens in a private residence” of money, some
of
which
just
happened
to
“belong[]
to
a
restaurant
doing
business in interstate commerce.” United States v. Wang, 222
F.3d 234, 240 (6th Cir. 2000).
Whatever connection between the
robbery and the business was absent in Wang is plainly present
in the case at bar.
*
Taylor’s second argument is that the district court erred
in
granting
the
government’s
pretrial
motion
in
limine
precluding him from presenting evidence that the marijuana at
issue was grown in Virginia and thus was not connected to
interstate commerce. We review the district court’s evidentiary
rulings for abuse of discretion.
United States v. Moore, 27
F.3d 969, 974 (4th Cir. 1994).
The district court found that, because drug dealing
enterprises inherently affect interstate commerce, any argument
or evidence tending to show that the drugs in the particular
case had not moved across state lines was not relevant. For the
reasons expressed in Part II.A, supra, that ruling was correct,
and the trial court necessarily did not abuse its discretion in
granting the government’s motion.
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For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED
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