United States of America v. Martin Cantu Ruiz

An early-morning shooting, a mysterious alias, and a

problematic eyewitness identification led police to the home

of Martin Cantu Ruiz, where they found a gun he wasn't

supposed to have. Ruiz appeals his conviction for Unlawful

Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1),

contending that the district court erred by denying his motion

to suppress a shotgun seized during the execution of a search

warrant at his residence. Ruiz argues that reckless omissions

by the search warrant affiant fatally undermined the

magistrate judge's finding of probable cause. We have

jurisdiction under 28 U.S.C. § 1291, and affirm the district

court's denial of Ruiz's motion to suppress.

BACKGROUND AND PRIOR PROCEEDINGS

Early on March 21, 2011, police responded to a call from

a trailer home in Payette, Idaho. When officers arrived, they

found that a man who lived there, Emmett Mills, had been

shot in the knee. Detective John Plaza spoke with Mills

briefly before he was taken to the hospital.

UNITED 4 STATES V. RUIZ

Mills told the detective he was at home with his

girlfriend, Charlene Scales, when he heard a knock on the

door at around 4:20 in the morning. The person at the door

identified himself as "McDog.”1 Mills opened the door and

"McDog” asked for Jessica, but Mills said Jessica wasn't

there. Mills described "McDog” as a larger Hispanic male in

his thirties with short hair and a black sweatshirt. Mills also

saw another, smaller man standing nearby wearing a white

clown mask and holding an assault rifle. Mills said the gun

looked similar to an AK-47. A neighbor watching from her

window also saw a man in a white "Halloween” mask

standing near the trailer.

The man who knocked, "McDog,” tried to force his way

inside the trailer, and a struggle ensued between Mills and

"McDog.” Scales was seated at a computer, where she could

observe the confrontation through a crack between the trailer

door and the wall where the door's hinges were attached.

Like Mills, Scales spoke with Detective Plaza immediately

after the shooting. She told the detective that she witnessed

the scuffle, heard the intruder identify himself as "McDog,”

and saw him try to force his way inside. She described

"McDog” as a Hispanic male wearing dark clothes. Scales

also reported hearing the popping of the assault rifle as it

fired twice. Mills, Scales, and the neighbor all agreed that

there had been two shots. After Mills was hit in the left knee

by one of the bullets, the assailants fled. Police later found

two spent casings outside the front door of the trailer that

were consistent with a semiautomatic pistol, not an assault

rifle. While searching the area near the front door, Detective

Plaza noted that a railing near the door to the home was

1 The spelling is uncertain, and at least one police officer wrote down

"Mick-Dog.”

UNITED STATES V. RUIZ 5

"pulled away from the house” where it looked like someone

had been "pushed.”

Detective Plaza sensed that Scales was evasive when she

spoke with police that morning, as if she were hiding

something. The police officers obtained consent to search the

trailer2 and found a handgun as well as methamphetamine and

a pipe with burnt residue, suggesting that one or more of the

home's occupants used drugs. Detective Plaza later testified

that Scales and others led him to believe that the items

belonged to two other people who had stayed in the back

bedroom the previous evening.

Detective Plaza soon learned that the narcotics division of

the Payette Police Department was investigating Scales for

suspected involvement in drug sales from the trailer. Later on

the day of the shooting, an undercover officer associated with

the narcotics investigation contacted Scales and made a

controlled buy of methamphetamine at the trailer. Caught in

the act, Scales and police officers discussed arranging

"consideration for her [criminal] charges” if she assisted with

future narcotics investigations as a confidential informant.

The officers told her that she would not receive extra

consideration for providing information about the shooting.

Scales seemed interested in the arrangement. The police also

noted that she believed the shooting had been related to drugs

and money.

The Payette Police Department sought the assistance of

nearby law enforcement to locate an individual with the alias

"McDog.” In response, they received a copy of Ruiz's

2 It is unclear from the record on appeal who consented to the search, but

there is no indication that Scales objected to the search.

UNITED 6 STATES V. RUIZ

criminal history, which included the alias "McDog,” from the

police department in Ontario, Oregon, just over the Snake

River. Officers learned that Ruiz had been booked in the

Payette County Jail earlier that month for a separate incident.

His address was listed in Nampa, Idaho, south of Payette.

Police assembled a photo lineup that included Ruiz,

which they showed to Mills and Scales two days after the

shooting.3 Mills could not identify anyone from the lineup,

but Scales zeroed in on two of the photos and eventually

settled on Ruiz's photo because she recognized a "thing on

his face.” She stated she was ninety percent sure Ruiz was

the intruder. On the day Scales identified Ruiz, neither she

nor the officers conducting the lineup mentioned the

previously discussed informant arrangement.

Payette police officers sought a warrant to search Ruiz's

residence. At the warrant hearing, Detective Plaza told the

state magistrate judge most of the factual background

described here, but he omitted what police officers knew

about Scales's drug-related activity, including: (1) her prior

sales of methamphetamine from the trailer; (2) her apparent

dishonesty about the presence of drug-related paraphernalia

in the trailer; (3) her interest in serving as a confidential

informant in the future in exchange for consideration of her

drug charges; and (4) her statement to police that the trailer

shooting was related to drugs and money. Detective Plaza

also failed to explain that Scales had initially focused on two

photographs in the lineup, and that she distinguished between

them by a mark on Ruiz's face.

3 From the record it appears the lineup included at least six photographs.

UNITED STATES V. RUIZ 7

The magistrate judge concluded that there was probable

cause to search Ruiz's residence based on the detective's oral

testimony. A search conducted at Ruiz's residence pursuant

to the warrant turned up a shotgun with an obliterated serial

number. The government indicted Ruiz on federal charges of

possession of an unregistered firearm, in violation of

26 U.S.C. § 5861(d), and unlawful possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Ruiz moved to exclude

evidence from the search, and the district court held a Franks

hearing to consider Ruiz's challenge to the probable cause

showing for the warrant. See Franks v. Delaware, 438 U.S.

154 (1978).

At the Franks hearing, the district court found that

Detective Plaza recklessly omitted material information about

Scales's involvement with drugs and her agreement to act as

a confidential narcotics informant in the future. See United

States v. Martinez-Garcia, 397 F.3d 1205, 1214–15 (9th Cir.

2005) (citing Franks, 438 U.S. at 155–56). The district court

rejected Ruiz's claims as to other allegedly reckless

omissions by the affiant. Taking into account the full record,

including the omissions it found, the district court concluded

the magistrate judge was not misled. Ruiz appeals.

DISCUSSION

We review for clear error the district court's finding that

a fact was not recklessly omitted from an affidavit supporting

probable cause. Martinez-Garcia, 397 F.3d at 1215 n.5. We

review de novo the district court's conclusion that reckless

omissions by a search warrant affiant did not fatally

undermine a finding of probable cause. United States v.

Elliott, 322 F.3d 710, 714 (9th Cir. 2003).

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The probable cause standard for a search warrant is

whether, based on common sense considerations, there was

"a fair probability that contraband or evidence of a crime

[would] be found in a particular place.” United States v.

DeLeon, 979 F.2d 761, 764 (9th Cir. 1992) (citing Illinois v.

Gates, 462 U.S. 213, 238 (1983)). The magistrate judge need

not determine "that the evidence is more likely than not to be

found where the search takes place. . . . The magistrate need

only conclude that it would be reasonable to seek the

evidence in the place indicated in the affidavit.” United

States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991)

(alteration in original) (citation and internal quotation marks

omitted).

To prevail on a claim that the police procured a warrant

through deception, the party challenging the warrant must

show that the affiant deliberately or recklessly made false

statements or omissions that were material to the finding of

probable cause. See Ewing v. City of Stockton, 588 F.3d

1218, 1223 (9th Cir. 2009). Our evaluation of materiality

requires that we consider the effect of any false statements or

omissions. "If an officer submitted false statements, the court

purges those statements and determines whether what is left

justifies issuance of the warrant.” Id. at 1224. "If the officer

omitted facts required to prevent technically true statements

in the affidavit from being misleading, the court determines

whether the affidavit, once corrected and supplemented,

establishes probable cause.” Id. "If probable cause remains

after amendment, then no constitutional error has occurred.”

Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir.

2011).

Assessing whether probable cause exists is "a common

sense determination.” United States v. Hall, 113 F.3d 157,

UNITED STATES V. RUIZ 9

159 (9th Cir. 1997). We are mindful that "[b]y reporting less

than the total story, an affiant can manipulate the inferences

a magistrate will draw,” and that "[t]o allow a magistrate to

be misled in such a manner could denude the probable cause

requirement of all real meaning.” United States v. Stanert,

762 F.2d 775, 781 (9th Cir. 1985), amended by 769 F.2d 1410

(9th Cir. 1985).

First, Ruiz contends that, in addition to the omissions

found by the district court, Detective Plaza deliberately or

recklessly omitted material information regarding Scales's

ability to observe the intruder at the doorway to the house.

We disagree. Enough facts were presented about the layout

of the trailer and Scales's position inside it for the magistrate

judge to inquire further if there was doubt about Scales's

ability to see the intruder clearly enough to make an

identification. The district court did not clearly err in this

part of its ruling.

Second, we reject Ruiz's argument that Detective Plaza

also deliberately or recklessly omitted information regarding

a potential discrepancy between the neighbor's observations

and Mill's and Scales's descriptions of the location of the

masked man relative to the home. From the record on appeal,

it appears that Detective Plaza accurately described the

neighbor's account. We cannot say that the district court's

finding on this point was clearly erroneous.

Third, the district court assumed it was reckless to fail to

inform the magistrate judge that Scales: (1) initially focused

on two of the lineup photos as potentially depicting the

intruder, and (2) distinguished between them by a mark on

Ruiz's face. We make the same assumption on de novo

review, and we agree with the district court that this failure

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was not misleading. Scales stated she was ninety percent

confident in the identification, indicating some degree of

uncertainty but also a high degree of confidence, and the

magistrate judge had this statement before him to weigh. The

magistrate judge could have inquired about why Scales was

not absolutely sure of her identification, if this was a

potentially determinative source of doubt.

Fourth, the drug-related information the district court

determined was recklessly omitted does raise serious

concerns about Scales's credibility and, to a lesser extent,

Mills's credibility. The magistrate judge knew nothing of

Scales's history of drug sales, her evasiveness concerning the

drug paraphernalia at the scene of the shooting, her

suggestion to police officers that the shooting was related to

drugs and money, or her sale of methamphetamine to an

undercover officer on the very afternoon of the shooting that

led to discussion of her potential role as a narcotics

informant. These are serious omissions. Scales, a drug

dealer who continued to operate the afternoon of the shooting,

could have been an interested party to a shooting related to

drugs and money with a motive to lie about the identity of the

intruder. The failure to disclose this information to the

magistrate at the time of the warrant hearing is a serious

breach of the duty Officer Plaza owed to the court. We fully

agree with the district court that "Officer Plaza took a

substantial risk in failing to reveal these facts.” The question

we must decide is "whether probable cause remains once the

[evidence presented to the magistrate judge] is supplemented

with the challenged omission[s].” Bravo, 665 F.3d at 1084;

see also Ewing, 588 F.3d at 1224.

In United States v. Hall, we considered whether probable

cause supported a search warrant where the government

UNITED STATES V. RUIZ 11

recklessly failed to disclose all of an informant's prior

convictions during a warrant hearing. 113 F.3d at 159. The

informant had recently been arrested for involvement in

cocaine dealing, and he was the sole source of crucial

information leading to the warrant. Id. at 157–59. The

government did not disclose several of the informant's

convictions, particularly one for making a false report to

police. Id. at 158. Nor did it disclose a "probation violation

involving death threats to a wounded police officer.” Id. We

held that probable cause to search the defendant's trailer for

drugs was lacking because, first, the conviction for making a

false report to the police seriously undermined the

informant's credibility and, second, there was no independent

evidence to corroborate the informant's claim that narcotics

would be found in the defendant's trailer. See id. at 159–61.

By contrast, in United States v. Reeves, we held that the

failure to disclose a confidential informant's prior criminal

history involving dishonest statements to the police did not

mislead a magistrate judge into granting a search warrant.

210 F.3d 1041, 1043, 1045–46 (9th Cir. 2000). We

distinguished Hall because of the presence in Reeves of

"countervailing evidence which diminishe[d] the adverse

effect of the [informant's] prior criminal history.” Id. at

1045. Specifically, the informant had "previously provided

truthful and reliable information to police that led to three

other search warrants, narcotics arrests and convictions,” and

this history rehabilitated and bolstered the informant's

credibility. Id.

In United States v. Patayan Soriano, we again considered

the credibility of an informant whose information provided

the sole basis for probable cause. 361 F.3d 494, 505 (9th Cir.

2003). After being arrested for forgery, a crime of

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dishonesty, the informant proceeded to implicate another

person in illegal activity, leading to the issuance of a search

warrant. Id. at 505–07. Concluding that the informant's

statements were sufficiently reliable to support probable

cause, we noted that his statements were self-inculpatory, that

he provided detailed observations, and that he had no

apparent motive to lie, even assuming his primary motive was

to get "more lenient treatment for himself by the authorities.”

Id. We reasoned that "there is no indication that [the

informant] had a prior criminal record, or any history of

unreliability in reporting criminal acts suggesting the

possibility that he would lie to the police to frame an innocent

man.” Id. at 507 (citation and internal quotation marks

omitted).

Finally, in Ewing v. City of Stockton, we considered

whether an eyewitness's description of a stabbing incident

and identification of a suspect were sufficient to establish

probable cause where the search warrant affidavit deceptively

represented that the suspect had an arrest record and

exaggerated the witness's certainty about a particular detail

supporting probable cause. 588 F.3d at 1223–24. We held

that the magistrate judge was not misled because the witness

provided "ample evidence” in the form of first-hand

observations implicating the suspect. Id. at 1224. We

reasoned that the individual was "a citizen witness, not an

informant, and such witnesses are generally presumed

reliable.” Id. We relied upon our prior case law holding that

"'[a] detailed eyewitness report of a crime is selfcorroborating;

it supplies its own indicia of reliability.'” Id.

at 1224–25 (quoting United States v. Banks, 539 F.2d 14, 17

(9th Cir. 1976)).

UNITED STATES V. RUIZ 13

Although Charlene Scales ostensibly was a citizen

witness, under the circumstances of this case her eyewitness

identification of Ruiz may not be self-corroborating. Her

dishonesty about the drug-related items in the trailer on the

morning of the shooting, her personal involvement in the drug

trade from which the shooting apparently arose, and her

interest in serving as a confidential informant all undermine

her credibility. Mills's credibility is likewise lessened, to

some extent, by the open presence of drug paraphernalia in

the trailer immediately after the shooting. It appears Mills at

least tolerated the use of illegal drugs in his home, and he

may have known about and tolerated Scales's drug

transactions. In light of these circumstances, we assume,

without deciding, that Mills's and Scales's eyewitness

statements, standing alone, were not sufficient to support

probable cause. But because there was corroboration that the

crime being investigated had actually occurred, as well as

some specific indication that Scales's identification of Ruiz

from the photo lineup was sufficiently reliable, we affirm the

district court's ruling.

First, there is no evidence that Mills and Scales knew

Ruiz, or his "McDog” alias, before the March 21 shooting.

This undermines any inference that Mills and Scales

conspired to frame Ruiz for the shooting.

Second, the record corroborates that the shooting occurred

generally as Mills and Scales described it. Mills, Scales, and

the neighbor all observed the two strangers at the trailer that

morning, and Mills and the neighbor stated that one of the

men wore a white costume mask. All of the witnesses

reported that a physical struggle took place around the

entrance to the home, and Detective Plaza observed that a

railing had been "pulled away” near the door where it looked

UNITED 14 STATES V. RUIZ

like someone had been pushed. All of the eyewitnesses told

police officers they heard two shots fired, and police found

two spent casings near the door of the trailer. Mills, of

course, was actually shot in the knee. Therefore, this case is

unlike Hall, where the only detailed description of the facts

underlying the search warrant came from an informant, and

there was no significant physical evidence to corroborate his

tip. See Hall, 113 F.3d at 157.

There was also sufficient corroboration of Scales's

identification of Ruiz from the photo lineup. Mills and Scales

agreed on the central details of the shooting as well as some

more minor details, such as the dark color of the intruder's

clothing. Mills described the intruder as a larger Hispanic

male in his thirties, which is generally consistent with Ruiz's

physical characteristics at the time of the shooting—he was

around six feet tall and twenty-nine years old. Both Mills and

Scales heard the intruder identify himself as "McDog.” Even

if Mills and Scales had been motivated to invent details in

order to set up Ruiz, it seems unlikely that, in the brief time

before police and paramedics arrived, they would have been

able to agree on so many details after Mills had already

sustained a painful gunshot wound to the knee.

Mills's and Scales's statements that the intruder identified

himself as "McDog” are crucial to the probable cause inquiry.

Even without Scales's identification of Ruiz from the lineup,

the connection between Ruiz and the "McDog” alias is

evidence supporting the probable cause finding. When police

officers from nearby Ontario provided Ruiz's criminal history

listing "McDog” as an alias, there was already a booking

record for him at the Payette County Jail from earlier that

month. This indicated his presence in the general area and

possible involvement in local crime. Ruiz lived in Nampa,

UNITED STATES V. RUIZ 15

not far away. There is no suggestion in the record that police

officers knew of any other individual in the area using this

alias.

The dissent focuses on reasons to presumptively doubt the

credibility of Scales's statements to police immediately after

the shooting—a point with which we agree. But even if no

statement had been taken from Scales after the shooting,

police would still have been led to suspect Ruiz because the

shooting victim, Mills, reported a physical description and

that he heard the shooter identify himself as "McDog.” The

police had a record of a person using that alias in the area, the

description for that person matched the physical description

provided by Mills, and both the neighbor's statement and the

physical evidence from the crime scene were consistent with,

and supported, Mills's account of the incident. These facts

bolster the credibility of Mill's and Scales's statements about

hearing the nickname "McDog,” and also the credibility of

Scales's identification of Ruiz from the photo lineup.

The record in this case does not show that either witness

had "any history of unreliability in reporting criminal acts

suggesting the possibility that [they] would lie to the police

to frame an innocent man.” Patayan Soriano, 361 F.3d at

507 (citation and internal quotation marks omitted). To the

contrary, common sense suggests that a man who was just

shot in the leg (and his girlfriend) would be very interested in

assisting police officers to catch the actual perpetrator.

Therefore, though Mills's and Scales's credibility was

diminished, it was not entirely undermined. Mills, in

particular, was a gunshot victim who did not mislead police

officers about the shooting and did not have any criminal

record of dishonesty. Mills reported hearing the intruder

identify himself as "McDog,” and his credibility was only

UNITED 16 STATES V. RUIZ

slightly impaired by the presence of illicit drugs at the

residence he shared with Scales.

Finally, there was no indication Mills or Scales

exaggerated or fabricated evidence related to the shooting.

Both individuals had several opportunities to identify Ruiz

more conclusively as the perpetrator, but they failed to do so.

If they were interested in framing Ruiz, they could have

identified him by name when police arrived at the scene that

morning, or at any point afterward. Mills could have picked

him out from the photo lineup, but instead he claimed not to

recognize any of the individuals in the photos. Scales could

have identified Ruiz outright from the lineup, rather than

focusing on two photos and then claiming to be ninety

percent certain—rather than one-hundred percent—that

Ruiz's photo was the right one. In fact, there is no evidence

that either individual knew Ruiz prior to the shooting. If, for

whatever reason, Mills and Scales intended to leave just

enough clues to lead police to Ruiz without arousing the

suspicion of law enforcement as to their designs, then it was

a trail of bread crumbs worthy of the Brothers Grimm.

We share the district court's concern about the police

conduct in this case, but we conclude there is enough

evidence in the record corroborating Mills's and Scales's

statements to "diminish[] the adverse effect” of their

credibility issues in the context of the probable cause inquiry.

Reeves, 210 F.3d at 1045. In light of the full record, there

was a "fair probability” that evidence of the shooting would

be discovered at Ruiz's residence. See DeLeon, 979 F.2d at

764; Ewing, 588 F.3d at 1225. The district court properly

UNITED STATES V. RUIZ 17

denied Ruiz's motion to suppress evidence obtained as a

result of the search warrant.

AFFIRMED.

GOULD, Circuit Judge, dissenting:

I agree with my colleagues that "the drug-related

information the district court determined was recklessly

omitted does raise serious concerns about Scales's

credibility.” Majority Opinion at 10. I regret that I cannot

agree that there was independent corroboration of Scales's

identification of Ruiz, sufficient to overcome my serious

concerns about Scales's credibility. I conclude that the

officer's reckless omissions about Scales's drug-related

history were not harmless. Under a practical approach, taking

into account common sense, a corrected affidavit, including

the drug dealing and informant status of Scales, does not

establish probable cause.

The record does not show sufficient corroboration that

Scales reliably identified Ruiz. Here, there is no question the

trailer shooting occurred, and I do not see Scales's and

Mills's recounting of the basic details of the shooting, such as

how two shots were fired or how the other assailant wore a

mask, as strong corroboration of Scales's overall veracity.

The shooting happened, but who did it? Was there

sufficiently reliable information of Ruiz's involvement to

justify the search warrant under the probable cause standard?

I conclude there was not.

UNITED 18 STATES V. RUIZ

I do not see how Scales's and Mills's statements that the

assailant wore dark clothing and was "a larger Hispanic male

in his thirties” contribute to corroborate Scales's

identification of Ruiz. See Majority Opinion at 14. This

general characterization could be true of many people and

does not significantly bolster Scales's reliability.

I also disagree with the "crucial” import the majority

gives to Scales's and Mills's statements that the assailant

identified himself as "McDog” and that police subsequently

linked the "McDog” alias to Ruiz through the records of a

nearby police department. See Majority Opinion at 14–15.

The majority claims that this shows Ruiz's "presence in the

general area and possible involvement in local crime.”

Majority Opinion at 14. This seems somewhat corroborative

until placed into the context that Scales was a known drug

dealer and was known to have lied to police when first

interviewed about her ownership of drug paraphernalia found

at the scene of the trailer shooting. Mills lived with Scales

and could not have been unaware of her drug-related

activities. There is little doubt that Scales had contact with

other people involved in local criminal activity. So if there

are serious outstanding concerns about Scales's credibility, I

do not see how the fact that police confirmed an alias of

"McDog” in the Payette area provides the type of

corroborating evidence that makes her identification of Ruiz

more reliable. It may only show that Scales knows Ruiz by

his alias, and tried to point a finger at him, a competing drug

dealer. The majority suggests that police might have

suspected Ruiz because of statements of Mills, but that does

not mean that there would have been probable cause to search

Ruiz's home. In my view, in this case there was not probable

cause for the search absent a credible identification of Ruiz

by Scales.

UNITED STATES V. RUIZ 19

Beyond the weakness of the corroborative evidence, the

vast majority of the additional information theoretically

supporting probable cause comes from Scales and Mills, not

from independent sources. See United States v. Meling,

47 F.3d 1546, 1555 (9th Cir. 1995). Because the

corroboration here derives from information provided by

Scales, it does not compensate for Scales's low credibility.

See id.

The magistrate judge knew nothing of Scales's recent

history of drug sales, Scales's statement to police that the

shooting was related to drugs and money, and Scales's sale of

methamphetamine to undercover police on the very afternoon

of the shooting, leading to her role as a narcotics informant.

The majority permits law enforcement to omit all of these

essential facts on a theory of harmless error, even where the

corroborating evidence is weak and largely comes from

Scales, the very interested party whose credibility is

challenged.

The Supreme Court has emphasized a "'flexible,

common-sense standard' of probable cause.” Florida v.

Harris, 133 S. Ct. 1050, 1053 (2013) (quoting Illinois v.

Gates, 462 U.S. 213, 239 (1983)). Under this common-sense,

totality-of-the-circumstances approach to probable cause, the

police's reckless omission of an important witness's possible

relationship to a past crime should be considered material and

misleading to a magistrate judge under circumstances where

the omitted information bears strongly on the credibility of

that witness and there is inadequate independent

corroborating evidence. Where there is significant doubt

about the propriety of police practice and its impact on an

important credibility determination supporting a probable

cause conclusion, we should exercise caution on the side of

UNITED 20 STATES V. RUIZ

the Fourth Amendment and improved police practices, rather

than a strained theory of harmless error. I respectfully

dissent.

Affirmed