December 2006 Archives
About not posting anything until January 2, anyway. Just got the word on the disciplinary case against Richard Agopian, the Cleveland lawyer who'd been accused of presenting excessive fee bills. I did a post on this back when the Court had oral orgument on it four months ago, which you can read here.
The Board of Commissioners on Grievances and Discipline had recommended a one-year suspension stayed on conditions. The Court, by 4-3 vote, rejected the recommendation, and instead gave Agopian a public reprimand.
You can read the opinion here.
If you check below the blogroll on the right, you'll see a little icon that says "Sitemeter." If you click on it, you won't find anything, but if I do, I'll be taken to a site which keeps track of how many people visit The Briefcase. It also tells me from where; for reasons unknown to me, for example, I have a regular reader somewhere in North Carolina. It will also tell me how they got here. I still get people showing up here who've entered "christine agnello russo" into Google. Some stories just die hard.
From time to time here on out, I'll post the weirdest search phase that anybody has used to hit my site. This week's winner, hands down, is the phrase "blonde police foot worship." It was from someone in San Francisco. Gee, there's a surprise...
As you might have figured out, Friday's become my day to pull stuff off the web that might be informative/interesting/entertaining. Here's a feel-good piece about a 75-year-old Dade County attorney that starts with this exchange in court:
Attorney: I'm here on a mission of mercy for this poor innocent child, your honor.
Judge: How old is this `poor child'?
Attorney: He's 23 years old, your honor . . . a babe in the woods.
Judge: If I recall, once you reach 18, you're not a child anymore.
Attorney: I have suits that are older, your honor.
Judge: You have speeches that are older. I've heard them all, Mr. Gaer. Motion denied.
And from Doug Berman's Law and Sentencing Policy blog, here's a feel-bad piece about a black man in Georgia who was sentenced to 10 years in prison without parole for having consensual oral sex with a 15-year-old girl at a New Year's Eve party when he was 17 years old. Links to the background stories, and good questions from Prof. Berman, one being, "Doesn't this story sound like one we might hear from some repressive foreign country, and not from a state in a country that supposedly prides itself on liberty and freedom?"
Here's a short post on why legalizing marijuana and taxing it probably wouldn't result in the bonanza that many people think. Good piece, but what jumped out at me was that 43% of all drug arrests last year involved marijuana.
Closer to home, the Ohio Supreme Court rejected, by a 4-2 vote, a proposed change to Criminal Rule 16 which would have basically provided the defense with the same information available to the prosecution, with protection for work product and some restrictions on copying, use, and disclosure.
If you feel bad about charging that client $2500 for representing him on a DWI -- the one where if he'd gone in without you the day of arraignment and pled no contest, he'd have wound up with the exact same sentence -- you'll feel better after reading this. Seems that the lawyers for Jeff Skilling, the Enron CEO, are billing him -- wait for it -- $70 million in attorney fees for their representation in his criminal case. You remember, the one where he was found guilty and sentenced to 24 years in prison. They already got $40 million, and are asking for another $30 million for the 12 lawyers and 5 paralegals they brought down for the trial. Good thing they used all those guys. If they'd only had, say, 10 lawyers and 3 paralegals, he might have been convicted on all the counts. Oh, wait, he was...
I'll be taking a break from blogging over the holidays, namely, all next week and New Year's Day. I'll be back on January 2 with two weeks of court updates, tips on how to win an inventory search case, an explanation of why Ohio Jury Instructions have screwed up the instructions on assumption of risk, and whatever else pops into my mind between now and then. See you in a little over a week, and have the best of holidays.
I was going to do a post on self-defense, but that'll have to wait until after the holidays. The Ohio Supreme Court handed down a couple of cases today, which served as the functional equivalent of sticking a lump of coal into the stockings of personal injury and criminal defense lawyers.
In Robinson v. Bates, the plaintiff's medical care provider had charged her $1,900. Her health insurance company had paid $1,300, and the provider had written off the rest. Of course, one of the items of damages in a PI case is the amount of the medical bills. What was it in this case -- the amount the provider charged, or the amount that was actually paid?
The plaintiff argued that evidence of what was actually paid shouldn't come in because of the collateral source rule, which essentially prohibits evidence of plaintiff's insurance benefits. The Court disagreed, holding that the proper question was the reasonable and necessary expenses incurred by the plaintiff, and that both figures were therefore allowable in evidence.
This is in line with the gradual deterioration of the collateral source rule over the years. RC 2315.20, for example, which took effect in April of 2005, rolled back the rule by allowing evidence of benefits received by the plaintiff.
But this ruling substantially accelerates that deterioriation. 2315.20 didn't allow the evidence of benefits if they were subrogated, that is, if the plaintiff had to pay back the benefit provider from the proceeds of the litigation. In this case, 2315.20 wouldn't have had any effect: since the insurance company did have a subrogation claim, the fact that they'd paid $1,300 wouldn't have been allowed, and the plaintiff could have submitted the $1,900 bill as proof of her damages.
Under the court's ruling in Robinson, the jury gets to hear both figures. The Court's argument that the jury can then decide which figure best approximates the actual cost of plaintiff's care is a bit disingenuous; it's hard to see a jury concluding, "Well, the medical provider only got $1300, but we're going to pretend that the plaintiff actually had to pay $1900 and award her that amount in specials." The Court notes that this is ultimately a question for the legislature:
whether plaintiffs should be allowed to seek recovery for medical expenses as they are originally billed or only for the amount negotiated and paid by insurance is for the General Assembly to determine.
Given our state legislature, you don't have to call the psychic hotline to figure out how that's going to turn out.
On the plus side, the Supreme Court held that the court of appeals was correct in reversing trial court's grant of a directed verdict to defendant on the open and obvious doctrine. This would normally make me happy; as my legion of faithful readers know, I'm not particularly fond of the doctrine, and my antipathy only deepened earlier this week when I got hammered in the trial of my slip and fall case. As I'd mentioned, the judge had booted me out on summary judgment, but I knew better, so I got him reversed in the court of appeals. Took the jury less than an hour to tell us who'd been right and who'd been wrong on that one. It was a construction site accident, and it didn't help that defense counsel had a picture of the site blown up to a size where it looked like you needed a monster truck to negotiate the clods of dirt that lay clustered around. He put the picture on an easel in opening statement, then spent the rest of the trial doing crossword puzzles. Every couple of hours, he'd look up, go "Pssst!" to the jury, and point to the picture. That's all it took.
Guess I showed that judge, huh?
Anyway, the Supreme Court did say in Robinson that the case shouldn't have been kicked out, but it's not that big a deal. This was a case involving not just a landowner, but a landlord, and for reasons I'll discuss some other time, the courts have held that open and obvious doesn't apply where a landlord has a statutory duty to keep the property safe and in repair. Which he did here.
The damage to criminal defense attorneys was less, and much more anticipated. In State v. Azbell, the Court held
For purposes of calculating speedy-trial time pursuant to R.C. 2945.71(C), a charge is not pending until the accused has been formally charged by a criminal complaint or indictment, is held pending the filing of charges, or is released on bail or recognizance.
I had a post back in June on the case when they did the oral argument, and predicted that the appellate court's decision that speedy trial was violated would get reversed. As I noted then, the Supreme Court's ruling is in keeping with prior 8th District decisions.
The police conduct a warrantless search of a house, and come across a marijuana-growing operation. On that basis, they obtain a warrant, raid the house, and seize the evidence of drug manufacturing and trafficking. The trial court determines that the original, warrantless search of the house was improper. Does that mean that the evidence seized in the search conducted with a warrant gets tossed?
You'd certainly think so. After all, under the "fruit of the poisonous tree" doctrine, an unconstitutional search or seizure taints whatever follows: there are any number of cases holding that information obtained from an illegal search can't be used to obtain a warrant to conduct a second, legal search.
But last year, in US v. McClain, the 6th Circuit decided that the illegality of the first search didn't require suppression of the evidence obtained in the second. The court noted that the case offered an opportunity to analyze the fruit of the poisonous tree doctrine in light of the "good faith" exception to the warrant requirement under US v. Leon, the 1984 US Supreme Court case which established that the exclusionary rule would not be applied to a search conducted with an invalid warrant as long as the police have a good faith belief that the warrant is valid. The court decided that the initial warrantless search was "close enough to the line of validity" to allow upholding the warrant search under the Leon exception. (In fact, one of the judges concurred on the grounds that he believed the initial search was valid, so there wasn't even an issue of taint.)
The 6th Circuit denied an en banc hearing this past summer, and last month the Supreme Court denied certiorari.
The court's decision is understandable, especially if one agrees with Leon's theory that the societal costs of excluding evidence for improper police conduct is not worth it where the police have no reason to believe that their conduct is improper. But the decision comes perilously close to establishing a good faith exception for a warrantless search, as this language indicates:
Because the officers who sought and executed the search warrants acted with good faith, and because the facts surrounding the initial warrantless search were close enough to the line of validity to make the executing officers' belief in the validity of the search warrants objectively reasonable, we conclude that despite the initial Fourth Amendment violation, the Leon exception bars application of the exclusionary rule in this case.
Obviously, under the court's analysis, if the first search had been completely bogus, the second set of officers wouldn't have had an objectively reasonable belief in the validity of the warrants. In short, the officers' "good faith" depended in large part upon their belief that the first search was valid, not the warrant.
This is bound to come up again, and it's not too difficult to imagine courts using McClain to uphold warrant searches based on borderline stop and frisks or similar situations. One of the problems with the exclusionary rule is that its costs are apparent: you know you're tossing out evidence which could result in the defendant's conviction. For that reason, there's a natural tendency by judges to avoid that result by upholding the search in marginal cases; this is one area where the defendant almost never gets the benefit of the doubt.
A couple of things to keep in mind. First, although Ohio courts pay deference to 6th Circuit decisions on Federal issues, those decisions aren't binding on the Ohio courts. McClain notes that the 9th and 11th Circuits have held that an illegal search taints a later warrant search, despite Leon, and it's perfectly proper to cite those cases. Secondly, as I pointed out back in July, the Ohio Supreme Court's decision in State v. Farris establishes that the Ohio constitution can serve as an independent basis for rights, and may extend more protection than the US constitution does in certain circumstances. It's worth a second look. But that means you have to assert it; if you haven't changed your form suppression motions to allege Ohio constitutional violations, it's a good time to do that.
Interesting decision last week by the 8th District on sex offender registration in State v. Fitzgerald. In a nutshell, the defendant had been convicted of rape. As a sexually oriented offender, he was required to register within seven days in the county where he was residing. He refused to tell the institution where he was going to live, so they put down Cuyahoga County, where he'd resided at the time of his conviction. When he didn't register within a week of his release, a warrant was issued for his arrest. He'd actually moved to Massachusetts, and wound up being arrested there, then extradited to Ohio.
And that's when things got a little weird. Despite the fact that the trial judge had failed to notify him of post-release controls, the APA determined he was a parole violator, and locked him up for six months. At the conclusion of that, he was brought to trial in Cuyahoga County for failing to register as a sex offender. He was convicted, and the appellate court upheld his conviction by a 2-1 vote. All this despite the fact that although he was convicted of failing to register in Cuyahoga County, he never resided in Cuyahoga County after getting out of prison.
It's easy to understand the majority's conclusion that Fitzgerald was trying to "slip under the radar" of the registration requirement. Still, it's hard to dispute Judge Karpinski's point in dissent that "the state failed to prove that defendant, charged with failure to register in Cuyahoga County, ever resided in Cuyahoga County, an essential element of the crime."
More worrisome was the court's handling of the PRC issue. In a trilogy of decisions culminating with Hernandez v. Kelly, the Ohio Supreme Court has held that a failure of a trial court to advise the defendant of PRC at sentencing leaves the APA powerless to impose them. Fitzgerald argued that this gave him a speedy trial argument: since the PRC violation was illegal, this meant the six months he'd spent doing time for the violation should've counted as 3 for 1 under the speedy trial statute, taking his trial well beyond the limit.
The court's rationale for rejecting that is troubling. According to the court, first, the only way for Fitzgerald to raise this issue was through a habeas corpus petition, and second, Hernandez has been superceded by statute.
While Hernandez was decided on a habeas petition, the Court never suggested that was the sole remedy; in fact, the Court held that PRC was void ab initio if it wasn't specified by the trial court. Void doesn't mean voidable; if there was no PRC, then the APA didn't have any authority to violate the defendant, and the six months he spent in prison for that should have counted toward the indictment for speedy trial purposes.
As the dissent also shows, the claim that Hernandez has been superceded by statute is highly questionable, too. I talked about the statutes in question shortly after they were enacted in July, and you can read about that here; basically, the statutes state that PRC is automatically imposed for sex offenses, regardless of whether the trial court says anything about it. The dissent argues in Fitzgerald, though, as I did back in August, that the statutory amendments are unconstitutional. Hernandez was based on a separation-of-powers argument: since only the judiciary branch can impose punishment, the APA can't put someone on PRC unless the trial court gives them the power to do that. Amending the law doesn't solve that; it's a constitutional, not statutory, problem.
Most puzzling of all was the Fitzgerald majority's handling of the amendments as applied to the defendant's case. After all, they took effect long after he had been originally sentenced, and in fact after he'd been released. No problem: the court held that the amendments were intended to be "remedial," and thus could be applied retroactively to Fitzgerald. This is in direct contradiction to the statute: it specifies that the amendment applies only to sentences imposed on or after the effective date of the amendment.
As I said, the majority was obviously troubled by the defendant's attempt to game the registration requirements, and there certainly is some societal interest in keeping tabs on sex offenders, especially someone with a prior conviction for rape. But in validating that interest, the Fitzgerald decision treats the offender registration statute badly and the PRC issue even worse.
I covered the major cases from the Supreme Court on Friday -- there wasn't much of interest besides the two death penalty appeals -- so let's take a look at the court of appeals cases from the past week.
Civil. Allowing plaintiff to seek per diem amount of damages in final portion of closing was error, says 8th District, but was waived by defendant's failure to request permission to rebut... 1st District holds that threat of harm, not actual harm, appropriate standard for issuance of preliminary injunction... Good discussion of standards for determining underemployment for child support purposes in this 9th District case... 2nd District upholds award of $994 in attorney fees as discovery sanctions for counsel's failure to procure court reporter for deposition...
Criminal. 8th District reverses speeding conviction, continues its holding, also shared by 2nd and 3rd Districts, that officer's visual estimation of speed not sufficient to convict... Dismissal proper where police officer violates department policy by taping over videotape of DWI defendant's arrest, says 1st District; I did a post on this back here... 3rd District holds that denial of suppression motion proper where defendant voluntarily appeared at police station to make statement... Prior acts were admissible, despite fact they occurred eight years ago, holds 12th District... 5th district rules that uncounseled misdemeanor conviction can serve as basis for revoking probation...
Guess you have to punch the lawyer. Occupational hazards: when the attorney in State v. Vaughn presented a plea offer to his client and suggested he take it, the client not only rejected the deal but called the lawyer "a dirty mother fucker" for having the audacity to bring it to him. The 8th District held this didn't "represent a breakdown in communication between him and his counsel of sufficient magnitude to represent a denial of counsel, such that new counsel should have been appointed."
And in light of Ohio's new smoking ban, you might want to check out this case, in which the court of appeals devotes thirteen pages, including a concurring and a concurring-and-dissenting opinion, to upholding a $35 fine for disorderly conduct for defendant's confronting several people about smoking at a youth baseball game.
I've got a trial coming up on Monday; it's a slip and fall that the judge threw out on summary judgment, but I got him reversed in the court of appeals, so you can imagine how happy he'll be to see me. The defense attorney wants to try a personal injury case the week before Christmas like he wants to have an anesthetic-free root canal, but the judge assured him that the jury wouldn't even think about Christmas. They will after I get done. I figure my opening line in summation will be, "In this season of giving..."
Anyway, I've got that to do, and I'm lazy, so I'm just going to pick some stuff off the web for today...
The Ohio Supreme Court had a flurry of activity the other day, handing down over a half dozen decisions, including two affirmances on capital punishment cases. In one of them, the court upheld the death penalty, but vacated the non-capital sentences and remanded for resentencing because of Foster violations. That's sort of the ultimate good news/bad news joke, I suppose. The case is otherwise notable for the assignment of error arguing that the trial court erred in refusing to allow the jury to take "smoke breaks," thus possibly diverting the attention of the one smoker on the panel from the task at hand because of his "mentally wanting, and physically needing to smoke tobacco."
On the other hand, despite these decisions, the number of death penalties imposed in the United States continues to fall. As this article notes, while about 300 people were put to death in the US each year during the 90's, from 1999 that number steadily declined. Last year, it was 128, the lowest since capital punishment was reinstated by the Supreme Court in 1976. According to the Death Penalty Information Center, the number so far this year is 114. Well, 115. Florida executed someone yesterday, and as this article points out, it took 34 minutes and another round of injections for the guy to die.
In fact, the Gallup poll notes that the public is now almost evenly split between preferring the capital punishment and life imprisonment without parole as penalties for murder; up until recently, the death penalty was preferred almost 3-1. There's a downside to this, though; as I mentioned back in July, some research has shown that the effect of offering the possibility of life imprisonment without parole has been that the number of capital sentences are reduced marginally, while the number of people serving LIOP sentences for non-capital crimes has increased dramatically. (In Ohio, for example, LIOP is available for any aggravated murder, and even some non-homicide cases.) Whether that's a good thing or a bad thing is a matter for debate, I suppose, but I'm fairly sure it wasn't intended.
Ran across an interesting article on the Volokh Conspiracy website about a small-claims case in which the judge threw out the suit brought by a Muslim woman because she refused to remove her veil. The judge stated that if her face remained covered, he couldn't properly evaluate her credibility. The author of the article agrees with the judge, pointing out that viewing a witness, including her facial expressions, is regarded as a superior method of gauging truthfulness. Not sure I agree with that, but that is one of the reasons an appellate court will almost invariably defer to the fact-finder's determinations of credibility. There's a discussion about the whole thing on the site that makes for some interesting reading.
If you're a lawyer with a PDA, or thinking about getting a PDA, this is the site for you.
Speaking of Christmas -- and you were going to get a PDA for Christmas, right? -- a while back I had a post linking to another blog's Christmas Gift Guide for Lawyers. Well, I got email from another lawyer asking me to tout his album of humorous lawyer-oriented Christmas carols, which you can sample and, er, um, buy at this site.
And speaking of emails, I also got one from the editor of a newspaper in Guernsey County, who'd stumbled across this piece I'd done three months ago on lawyers fees in appointed criminal cases, where I'd written that Guernsey County would be a good place to practice. Why? he wanted to know. So I wrote him an email back, explaining the figures that I had showed that Guernsey County paid the highest hourly rates ($60 for both in-court and out-of-court time) in the state, and that they pay among the highest maximums for felony ($3,000) and death penalty ($50,000) cases as well. Of course, I told him in my best snobbish manner, you probably don't get a whole lot of death penalty cases down in Guernsey County.
The other death sentence that the Supreme Court affirmed on Thursday was from, you guessed it, Guernsey County.
It can happen to anybody, you tell yourself. The secretary screwed up, or the law clerk did, or you did, but the bottom line is that you blew the statute of limitations on that personal injury case: it expired last week. Anything you can do?
Well, yes. Welcome to the weird world of RC 2305.15(A), which provides:
When a cause of action accrues against a person, if the person is out of the state, has absconded, or conceals self, the period of limitation for the commencement of the action... does not begin to run until the person comes into the state or while the person is so absconded or concealed. After the cause of action accrues if the person departs from the state, absconds, or conceals self, the time of the person's absence or concealment shall not be computed as any part of a period within which the action must be brought.
If you interpret that to mean that the statute of limitations is tolled for the two weeks that the putative defendant loaded up the family in the minivan and went to visit Aunt Emma in Georgia, you're absolutely right. You'll notice that the statute says "...is out of state, absconds, or conceals self." It's in the conjunctive: the defendant need not intend to avoid process. He doesn't even have to be aware that there's a lawsuit in the offing. As long as he's out of state, the time is tolled.
So all you have to do is file suit, take the defendant's deposition, and hope that he spent seven days in the past two years out of state. In fact, it doesn't have to be seven whole days; there's case law to the effect that even a fraction of a day tolls the time.
That's almost exactly what happened to the defendant in Johnson v. Rhodes, the last case on the statute to reach the Ohio Supreme Court, back in 2000. The plaintiffs had filed their complaint two days after the statute ran, but found out that the defendant had spent ten days vacationing in Kentucky during that time. The court held the statute was tolled during that absence.
There are some limits to the statute. Back in 1988, the US Supreme Court held that 2305.15(A) was unconstitutional as applied to foreign corporations, because it constituted a burden on interstate commerce; unless a defendant corporation had a statutory agent here -- and thus subjected itself to the general jurisdiction of Ohio, waiving any claim of lack of personal jurisdiction -- it basically had no statute of limitations defense. A couple of weeks back, the 2nd District in Grover v. Bartsch held that applying the statute to a non-resident individual also was an impermissible burden on interstate commerce. The commerce argument was also presented in Johnson, but the Court rejected it, holding that leaving the state for non-employment reasons didn't implicate the commerce clause.
It's pretty likely that the statute will be limited to those situations. There's case law out there saying that it doesn't apply if an Ohio resident moves out of state to obtain employment elsewhere, or stays in Ohio but leaves the state occasionally for business purposes. And frankly, I wouldn't be surprised to see a Federal court in a diversity case strike down the statute even in situations where the defendant leaves for personal reasons.
What's interesting is that just about everybody agrees the statute, which was passed 153 years ago and has remained virtually unchanged since then, has long outlived its purpose. Back in the stagecoach days, the plaintiff had to get service within the statute of limitations, and only personal service was allowed. Now, a plaintiff has a year after the statute to perfect service, and if he sends it by certified mail and it gets returned unclaimed because the defendant happens to be vacationing in the Great Smokies, the plaintiff can simply send it out by ordinary mail, and service is perfected at that point as long as the letter doesn't come back.
Still, the statute says what it says, and the Supreme Court has held that it's up to the legislature to change it. Maybe they'll get around to it when they get done with the more important stuff, like designating the Official State Prehistoric Monument. In the meantime, if you blow a statute, just hope that the defendant liked to take vacations.
Last week, I mentioned that the Supreme Court's decision in State v. Foster had nullified the "second sentence" provided by Repeat Violent Offender and Major Drug Offender statutes. Under those statutes, the trial judge could sentence a defendant to the maximum for the base felony, then impose an additional 1 to 10 years on top of that.
Foster found no problem with imposing the maximum, but held that the additional sentence was barred. The reasoning was pretty simple. The statute permitted the court to impose more time only if it found both of the following:
(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.
(ii) The terms so imposed are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender's conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender's conduct is less serious than conduct normally constituting the offense.
In short, the statute required a trial court to make "judicial findings of fact" before imposing the additional sentence, and thus violated Blakely.
Well, our legislature got to work and, on August 3, an amendment went into effect on RVO and MDO sentencing. The new statute gives the trial court five criteria that must be met before giving the additional time. Here are the last two:
(iv) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are inadequate to punish the offender and protect the public from future crime, because the applicable factors under section 2929.12 of the Revised Code indicating a greater likelihood of recidivism outweigh the applicable factors under that section indicating a lesser likelihood of recidivism.
(v) The court finds that the prison terms imposed pursuant to division (D)(2)(a)(iii) of this section and, if applicable, division (D)(1) or (3) of this section are demeaning to the seriousness of the offense, because one or more of the factors under section 2929.12 of the Revised Code indicating that the offender's conduct is more serious than conduct normally constituting the offense are present, and they outweigh the applicable factors under that section indicating that the offender's conduct is less serious than conduct normally constituting the offense.
Now, maybe it's just me, but it seems that other than a few additional words which don't affect anything, the new section is pretty much the same as the version that the Supreme Court struck down. In fact, in the key parts, which I've bolded, they're identical: both require the judge, before imposing the enhancement, to find that the base sentence wasn't sufficient to protect the public, and that it demeaned the seriousness of the crime. If this didn't pass constitutional muster in February, it's pretty hard to see how the intervening time has changed anything.
Bottom line: the new statute is every bit as unconstitutional as the old one was. At least, the enhancement is. Keep in mind that the trial court can impose the maximum base sentence for the RVO or MDO spec without making any findings.
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