CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 21, 2017

Stephens on Criminalizing HIV

Stefanie Nicole Stephens (Southern University Law Review) has posted Ending HIV: Stigma, Fear-Based Policing, and Criminalization in Louisiana Through Training of Law Enforcement and Prosecutors on SSRN. Here is the abstract:

Human immunodeficiency virus, commonly known as HIV is a lentivirus that if left untreated, can lead to acquired immunodeficiency virus, commonly known as AIDS. Currently, HIV/AIDS affects more than 1.2 million people living in the U.S, and 1 out of 8 people are not even aware that they have contracted HIV. HIV emerged during the 1980’s, and was originally seen as a type of cancer because of the severity of the disease, and the almost immediate manner in which it claimed an infected person’s life. Since then, many strides have been made medically in improving the quality and length of life of those who have contracted HIV. Despite these medical advancements, those who have contracted HIV now have obstacles to face criminally.

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April 21, 2017 | Permalink | Comments (0)

Thursday, April 20, 2017

Brewster & Buell on Global Anticorruption Enforcement

Rachel Brewster and Samuel W. Buell (Duke University School of Law and Duke University School of Law) have posted The Market for Global Anticorruption Enforcement (Law and Contemporary Problems, Vol. 80, No. 193, 2017) on SSRN. Here is the abstract:

In just two decades, enforcement of the Foreign Corrupt Practices Act (FCPA) has evolved from a backwater of corporate and international financial crime to one of the most prominent and feared laws in those fields. What accounts for the ten-fold increase, over just 15 years, in the annual FCPA case volume produced by United States enforcers? We explain the development as arising from a confluence of independent but nonetheless symbiotic international and domestic political and economic forces. First, in the international arena, policymakers dramatically shifted their beliefs in the harms from bribery. This change and the continuous American pressure to conclude an anti-bribery treaty created a new consensus among major exporting countries to criminalize foreign bribery. This opened up new political and institutional paths to pursue the supply of foreign bribes. Second, U.S. enforcement lawyers eagerly pursued these newly available paths, propelled by political pressure and professional considerations. Third and inevitably, a large and active FCPA defense bar emerged that, perhaps ironically, helps keep primed a now steady pump of FCPA actions into the U.S. corporate enforcement system. A fourth stage has begun in which other nations, particularly in Europe, are both assisting and competing with the U.S. in the field of anti-corruption enforcement. It remains to be seen how this latest development will, over the longer haul, affect the size of the global market for anti-corruption enforcement and the U.S. share of that market.

April 20, 2017 | Permalink | Comments (0)

Perlin on The Development of Therapeutic Jurisprudence

Perlin michaelMichael L. Perlin (New York Law School) has posted 'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence on SSRN. Here is the abstract:

This paper will be presented at a special event, hosted by the Victoria Legal Aid Society and RMIT University School of Law (Melbourne, Australia), on March 31, 2017. It traces the development of therapeutic jurisprudence (TJ) over the past three decades, and explains its impact on legal education, legal scholarship and legal practice. In it, I explain the initial insights of David Wexler and the late Bruce Winick, consider these insights in the context of the state of mental disability law in the late 1980s and early 1990s (when TJ first emerged), with a focus on their early essay collections and the initial TJ conference that I ran at New York Law School (where I taught for 30 years) in 1993.

I then discuss how TJ expanded beyond the relatively-narrow framework of “just mental disability law”, and the significance of that expansion, TJ’s internationalization, and its expansion from law to psychology, criminology, social work, and other disciplines (though interestingly, not, to any significant extent, psychiatry).

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April 20, 2017 | Permalink | Comments (0)

Gimbel on Body Cameras and Criminal Discovery

V. Noah Gimbel has posted Body Cameras and Criminal Discovery (Georgetown Law Journal, Vol. 104, No. 6, 2016) on SSRN. Here is the abstract:

As police departments nationwide operate under increasing public scrutiny following numerous high-profile instances of excessive and often lethal force against unarmed African-Americans and Latinos, calls for greater accountability have been nearly unanimous in supporting the use of Body-Worn Cameras (BWCs) by police officers. On September 21, 2015, the Department of Justice announced awards totaling over $23 million to local police departments for the purpose of implementing BWC programs. Announcing the project, Attorney General Loretta Lynch emphasized the hope that BWCs would “enhance transparency, accountability, and credibility” among beleaguered police departments nationwide. But, in addition to recording the activities of the police, BWCs also record the conduct and statements of criminal defendants, victims, and witnesses of crimes. BWC footage has been widely discussed for its potential to hold police accountable for their actions, but it has not yet been subject to scholarly examination for its potential use as evidence in criminal proceedings. This Note fills that gap, focusing on the conflict between the government’s interest in maintaining exclusive control over BWC footage and the defendant’s entitlement to pretrial discovery under Rule 16 of the Federal Rules of Criminal Procedure and the Due Process Clause of the Fifth and Fourteenth Amendments. Although witness safety concerns may justify some limitations on defendants’ access to body-cam footage in exceptional cases, this Note argues that the discovery rules governing analogous pre-existing technologies militate in favor of broad pretrial disclosure of BWC footage.

April 20, 2017 | Permalink | Comments (0)

Wednesday, April 19, 2017

Opinion requiring second notice of appeal to contest delayed restitution order

Justice Thomas delivered the opinion of the Court in Manrique v. United States. Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion. Justice Gorsuch took no part in the case.

April 19, 2017 | Permalink | Comments (0)

Opinion requiring return of conviction-related fees upon reversal without requiring showing of innocence

Justice Ginsburg delivered the opinion of the Court in Nelson v. Colorado. Justice Alito concurred in the judgment. Justice Thomas filed a dissenting opinion. Justice Gorsuch took no part in the case.

April 19, 2017 | Permalink | Comments (0)

Tuesday, April 18, 2017

Mandel & Ehrlich on Prosecuting Climate Change Dissent

Richard Mandel and Craig Ehrlich (Babson College and Babson College) have posted The Prosecution of Climate Change Dissent on SSRN. Here is the abstract:

A May 2015 op-ed in the Washington Post by Sen. Sheldon Whitehouse (D. RI) accused the fossil fuel industry of “funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution. Their activities are often compared to those of Big Tobacco denying the health dangers of smoking. Big Tobacco’s denial scheme was ultimately found by a federal judge to have amounted to a racketeering enterprise.” The Attorneys General of New York and Massachusetts began investigating Exxon Mobil because its chairmen expressed opinions such as - “Efforts to address climate change should focus on engineering methods to adapt to shifting weather patterns and rising sea levels rather than trying to eliminate use of fossil fuels.” We look at these two investigations through the lenses of the federal mail and wire fraud statutes (at issue in the racketeering case against big tobacco), and the First Amendment.

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April 18, 2017 | Permalink | Comments (0)

White on Causes of Intentional Homicide

Linn White has posted God, Guns & Money: A Global Perspective on Intentional Homicide (Western State Law Review, Vol. 44, No. 2, 2016) on SSRN. Here is the abstract:

Perhaps one of the most contentious issues in the United States is the ownership of personal firearms, with sharp divides between those who view access to firearms as a fundamental right, and those who view the ownership of personal firearms as an anachronism that has no place in modern society. Within the debate, both sides have produced a considerable volume of highly polarized, and often completely contradictory literature on the relationship between firearms and homicide rates. However, using a detailed analysis of international data, this paper reveals deep flaws in the reasoning underpinning both sides of the firearms debate.

Further, while economic issues also tend to receive a great deal of attention as causal factors for intentional homicide rates, this study points to a much stronger correlation that has largely been overlooked – namely the role of certain fundamentalist religious ideologies, which appear to be far more likely contributors to violent behavior.

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April 18, 2017 | Permalink | Comments (0)

Monday, April 17, 2017

Kent on The Anti-Jury Movement in the Gilded Age and Progressive Era

Kent andrewAndrew Kent (Fordham University School of Law) has posted The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era (91 S. Cal. L. Rev. (2018 Forthcoming)) on SSRN. Here is the abstract:

This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors.

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April 17, 2017 | Permalink | Comments (0)

Melissaris on Non-Citizens and Criminal Law

Emmanuel Melissaris (London School of Economics - Law Department) has posted Non-Citizens as Subjects of the Criminal Law on SSRN. Here is the abstract:

The article has a dual aim. The first is to contribute to the study of criminalisation at the border in Europe by outlining some ways in which Greek law organises the normative exclusion of at least one class of immigrants. Secondly, it tackles the theoretical question of whether such practices are justifiable. No sooner is a non-citizen involved in the criminal law that a web of duties and rights is activated marking the gradual inclusion of the non-citizen in the political community as its proper subject. This renders the differential treatment of non-citizens incoherent. The article also argues that it is both permissible and necessary for a state to treat non-citizens as the proper subject of the criminal law. The former because of the implicit consent provided by non-citizens; the latter out of the respect owed to citizens, whose normative position is impacted upon by their criminal law related interactions with non-citizens.

April 17, 2017 | Permalink | Comments (1)

Kantorowicz-Reznichenko on Reviving Day Fines

Elena Kantorowicz-Reznichenko (Erasmus University Rotterdam) has posted Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses. On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem. Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.

April 17, 2017 | Permalink | Comments (0)

Guinchard on Independent Computer Security Researchers

Audrey Guinchard (University of Essex - School of Law) has posted Transforming the Computer Misuse Act 1990 to Support Vulnerability Research. Proposal for a Defence to Hacking As a Strategy in the Fight Against Cybercrime on SSRN. Here is the abstract:

Despite the recent push towards security by design, most softwares and hardwares on the market still include numerous vulnerabilities, i.e. flaws or weaknesses whose discovery and exploitation by criminal hackers compromise the security of the networked and information systems, affecting millions of users, as acknowledged by the 2016 UK Government in its Cybersecurity Strategy.

Conversely, when security researchers find and timely disclose vulnerabilities to vendors who supply the IT products or who provide a service dependent on the IT products, they increase the opportunities for vendors to remove the vulnerabilities and close the security gap. They thus significantly contribute to the fight against cybercrime and, more widely, to the management of the digital security risk.

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April 17, 2017 | Permalink | Comments (0)

Hamilton on Sentencing Disparities

Hamilton melissaMelissa Hamilton (University of Houston Law Center) has posted Sentencing Disparities (7 British Journal of American Legal Studies (Forthcoming)) on SSRN. Here is the abstract:

This Article is concerned with disparities in penalty outcomes. More specifically, the study investigates upward departures in the federal guidelines-based sentencing system. No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.

The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions. Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).

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April 17, 2017 | Permalink | Comments (0)

Sunday, April 16, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 1,323 Why Prison?: An Economic Critique
Peter N. Salib
United States Court of Appeals for the Seventh Circuit
Date posted to database: 7 Mar 2017 [4th last week]
2 719 Law, Virtual Reality, and Augmented Reality
Mark A. Lemley and Eugene Volokh
Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Mar 2017 [1st last week]
3 497 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie, Andre Davis,David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Anthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 [2nd last week]
4 159 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [3rd last week]
5 131 Resurrecting Labor
Richard A. Bales
Ohio Northern University - Pettit College of Law
Date posted to database: 28 Mar 2017 [7th last week]
6 119 Neuroethics: Neurolaw
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [5th last week]
7 96 Criminal Employment Law
Benjamin Levin
Harvard Law School
Date posted to database: 3 Apr 2017 [new to top ten]
8 94 Incredible Women: Sexual Violence and the Credibility Discount
Deborah Tuerkheimer
Northwestern University - Pritzker School of Law
Date posted to database: 21 Feb 2017 
9 72 The Legal Consequences of Noncompliance with Federal Tax Laws
Allen D. Madison
University of South Dakota Law School
Date posted to database: 10 Feb 2017 [10th last week]
10 69 Sticky Liabilities: Corporate Essence and Identity in Criminal Law
Mihailis Evangelos Diamantis
University of Iowa, College of Law
Date posted to database: 2 Mar 2017 [new to top ten]

April 16, 2017 | Permalink | Comments (0)

Saturday, April 15, 2017

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

  • Weaver v. MassachusettsWhether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.

April 15, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 4,383 Encryption Workarounds
Orin S. Kerr and Bruce Schneier
The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society
Date posted to database: 22 Mar 2017 
2 308 Surveillance Intermediaries
Alan Z. Rozenshtein
Georgetown University Law Center
Date posted to database: 20 Mar 2017 
3 279 The Progressive Prosecutor's Handbook
David Alan Sklansky
Stanford University
Date posted to database: 15 Feb 2017 
4 248 The Undue Influence of Surveillance Technology Companies on Policing
Elizabeth E. Joh
University of California, Davis - School of Law
Date posted to database: 28 Feb 2017 
5 200 The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Independent
Date posted to database: 14 Feb 2017 [6th last week]
6 200 Reassessing Prosecutorial Power Through the Lens of Mass Incarceration
Jeffrey Bellin
William & Mary Law School
Date posted to database: 9 Mar 2017 [5th last week]
7 181 The Silence Penalty
Jeffrey Bellin
William & Mary Law School
Date posted to database: 22 Mar 2017 [new to top ten]
8 159 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [7th last week]
9 140 Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 [8th last week]
10 138 Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System
Rebecca Wexler
Data & Society Research Institute
Date posted to database: 21 Feb 2017 

April 15, 2017 | Permalink | Comments (0)

Friday, April 14, 2017

Pascoe on Comparative Drug Law

Daniel Pascoe (City University of Hong Kong (CityUHK) - School of Law) has posted Drugs Law and Legal Practice in Southeast Asia: Indonesia, Singapore and Vietnam (Hart 2016) (Book Review Essay) (Melbourne Journal of International Law, Vol. 18, No. 1, 2017) on SSRN. Here is the abstract:

Despite shifting global attitudes towards drug criminalisation, the death penalty for drug offences is making a comeback in Southeast Asia. It is in this increasingly punitive context that Hart’s publication of Drugs Law and Legal Practice in Southeast Asia: Indonesia, Singapore and Vietnam, the new monograph co-authored by Professors Tim Lindsey and Pip Nicholson from the University of Melbourne, proves so timely. The authors are amongst the world’s most highly regarded scholars on Southeast Asian legal systems. Their new text, funded by a Discovery Project Grant from the Australian Research Council, outlines the drugs laws and criminal justice practice of three Southeast Asian nations that retain capital punishment: Indonesia, Singapore, and Vietnam, following trilingual archival and interview-based fieldwork in those jurisdictions.

April 14, 2017 | Permalink | Comments (0)

Mungan on Over-Incarceration and Disenfranchisement

Mungan muratMurat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Over-Incarceration and Disenfranchisement (Public Choice, Forthcoming) on SSRN. Here is the abstract:

This article presents a model wherein law enforcers propose sentences to maximize their likelihood of reelection, and shows that elections typically generate over-incarceration, i.e., longer than optimal sentences. It then studies the effects of disenfranchisement laws, which prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group, and thereby causes the political process to push the sentences for criminal offenses upwards. Therefore, disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e., when criminals vote less frequently than non-criminals.

April 14, 2017 | Permalink | Comments (0)

Thursday, April 13, 2017

Cusick on Addiction and Mens Rea

Meredith Cusick (Fordham Law Review) has posted Mens Rea and Methamphetamine: High Time for a Modern Doctrine Acknowledging the Neuroscience of Addiction (Fordham Law Review, Vol. 85, No. 2417, 2017) on SSRN. Here is the abstract:

In American criminal law, actus non facit reum, nisi mens sit rea, “an act does not make one guilty, without a guilty mind.” Both actus reus and mens rea are required to justify criminal liability. The Model Penal Code’s (MPC) section on culpability has been especially influential on mens rea analysis. An issue of increasing importance in this realm arises when an offensive act is committed while the actor is under the influence of drugs. Several legal doctrines address the effect of intoxication on mental state, including the MPC, limiting or eliminating its relevance to the mens rea analysis. Yet these doctrines do not differentiate between intoxication and addiction.

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April 13, 2017 | Permalink | Comments (0)

Campos-Bui et al. on Juvenile Administrative Fees

Stephanie Campos-Bui, Jeffrey Selbin, Hamza Jaka, Tim Kline, Ahmed Lavalais, Alynia Phillips and Abby Ridley-Kerr (University of California, Berkeley - School of Law, University of California, Berkeley - School of Law, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley, School of Law, Students) have posted Making Families Pay: The Harmful, Unlawful, and Costly Practice of Charging Juvenile Administrative Fees in California on SSRN. Here is the abstract:

While regressive and discriminatory criminal justice fees have been described and critiqued in the criminal justice system for adults, this is the first in-depth study of the practice of charging families for their children's involvement in the juvenile justice system in a state (California).

Our research over the last three years reveals that juvenile administrative fees undermine the rehabilitative purpose of the juvenile system. They cause financial hardship to families, weaken family ties, and undermine family reunification. Because Black and Latino youth are overrepresented and overpunished relative to White youth in the juvenile system, families of color bear a disproportionate burden of the fees.

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April 13, 2017 | Permalink | Comments (0)