Law and the Outdoors

Found this little jewel while researching something else.

Many men, including this writer, feel that a person who has never seen squirrels jump from limb to limb in the deep swamp on a frosty Fall morning; or has never heard a wild turkey gobble in April or seen him strut during mating season; or has never watched a deer bound through the woods and fields, or heard a pack of hounds run a fox, or tree a coon (racoon); or has never hunted the rabbit, or flushed a covey of quail ahead of a pointed bird dog; or has never angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook; has never lived.

Chief Justice Lee in Strong v. Bostick, 420 So. 2d 1356 (Miss. 1982).

How not to respond to a question in court

Kate Royals at The Clarion Ledger reports:

Grady Gibbons of Brandon, who appeared before Chancery Judge Dan Fairly in a divorce case, said Fairly wrongfully accused him of shaving to avoid a court ordered hair follicle test and threw him in solitary confinement in the Rankin County Detention Center, even though he had submitted to another drug test that showed no illegal drug use.

I wasn’t there to hear all the testimony so I won’t comment much other that to point out a statement made by Mr. Gibbons to Ms. Royals. Take a look at the Clarion Ledger video beginning at the :21 mark where Mr. Gibbons states:

Of course in court it got brought up and they asked me if I was living in Petal and I said it was none of their business.

In most every court where I have practiced, answering a question with “none of your business” is not the way to win any points with the court.  Parties and witnesses are in court to provide testimony.  They are not in court to rule on whether a question is relevant.  That is for the judge to decide.

It is worth mentioning that despite Mr. Gibbons’ claims of not attempting to evade the hair follicle drug test by shaving, he later tested positive for trace amounts of marijuana in a urine test ordered by the chancellor.  According to the Clarion Ledger article, Mr. Gibbons attributes the positive test to “second hand smoke while on a trip out west.”

Search terms……….Ask Randy v2

Version 2 of my previous blog post Ask Randy.   As stated in the previous post, it is a combination of Dear Abby, ask a friend and general Mississippi legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  Keep this legal notice in mind.

if a divorce goes to trial does the man always end up worse

Worse than what?  Worse than if he settled on equitable terms? Maybe.  Worse than if he never had a go through a divorce?  Probably so.  Worse than taking a horrible settlement offered by his future ex?  Doubtful.  Every case and potential settlement must be evaluated on its own terms.

what happens if you pick up your husband’s last name and u get divorce

You keep it unless you request that your maiden name be restored in the divorce.

what recourse is available to me if my husband did not tell me he murdered someone prior to us getting married.

That is a freaky situation, but not grounds for divorce in Mississippi.

wife cheats on husband and wins in court

A basis or ground for divorce may entitle you to divorce, but it is not outcome determinative.  While the court may consider marital fault, cheaters receive an equitable distribution of marital assets and debt.

since i married ten years ago my wife and her exbf want kill me

Strongly consider getting a divorce and moving on with your life.  No reason to stay around anyone that wants to kill you!

bringing mistress home to live before divorce is final does that hurt custody changes

It certainly doesn’t help your chances.  Just don’t do it.

how to divorce your crazy boyfriend

Leave.  No legal process is required to separate yourself from a boyfriend.

are muzzle loaders legal for felons

Not in Mississippi.

what is it call if you lie in a divorce court

It is called many things…..perjury, stupid, a bad idea, a good way to go to jail, how to piss of the judge, etc.  Just don’t do it.

how to make sure my wife gets nothing in divorce

That probably isn’t going to happen.  Get over it.

if a man leaves you 5 times and keeps coming back what are the odds of divorce

I am not sure Vegas would put odds on it, but at least 50/50 (meaning I don’t have a clue).

what can one due to stop grandparents from meddling in divorce proceding by funding adulterous son

Nothing.  His parents can pay whatever they want on his behalf.  Only worry about what is in your control.

i am with a man thats married thst says his attorney said to wait to grt divorced until the house sells

There is a decent chance that you will be waiting a LOOOOOOOONG time.

 

 

Landowners file suit against MDWF&P over dogs on private land

On February 2, 2015 three plaintiffs filed suit in Hinds County Chancery Court against the Mississippi Department of Wildlife, Fisheries and Parks, the Mississippi Commission on Wildlife, Fisheries and Parks, and Sam Polles, in his official capacity as Executive Director of the Mississippi Department of Wildlife Fisheries and Parks.  You can read the plaintiffs’ complaint here.

The plaintiffs claim that dog hunters have caused free ranging hunting dogs to cross their land and the MDWFP has failed to take any action to prevent these dogs from intruding on the property of the plaintiffs.  Plaintiffs also allege that the MDWFP has failed to implement a system of permitting and fines to reduce or eliminate the problems of which plaintiffs complain.  The plaintiffs’ legal theories are based on public nuisance, an unconstitutional taking of their property, civil trespass, and private nuisance.

Plaintiffs prayer for relief states

dogjpg

My Take:    This case is a dog that won’t hunt.  The plaintiffs will soon learn about something called the Mississippi Tort Claims Act that applies when you sue the State of Mississippi for money.  Assuming they complied with the notice provisions, there are several other provisions which they will soon find problematic.  For example:

§ 11-46-9. Exemption of governmental entity from liability on claims based on specified circumstances

   (1) A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim:

   (a) Arising out of a legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature;

   (b) Arising out of any act or omission of an employee of a governmental entity exercising ordinary care in reliance upon, or in the execution or performance of, or in the failure to execute or perform, a statute, ordinance or regulation, whether or not the statute, ordinance or regulation be valid;

   (c) Arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury;

   (d) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused;

   (e) Arising out of an injury caused by adopting or failing to adopt a statute, ordinance or regulation;

….

   (g) Arising out of the exercise of discretion in determining whether or not to seek or provide the resources necessary for the purchase of equipment, the construction or maintenance of facilities, the hiring of personnel and, in general, the provision of adequate governmental services;

   (h) Arising out of the issuance, denial, suspension or revocation of, or the failure or refusal to issue, deny, suspend or revoke any privilege, ticket, pass, permit, license, certificate, approval, order or similar authorization where the governmental entity or its employee is authorized by law to determine whether or not such authorization should be issued, denied, suspended or revoked unless such issuance, denial, suspension or revocation, or failure or refusal thereof, is of a malicious or arbitrary and capricious nature.

 

Alienation of Affection Case with John Daly Headed Back to Court

Yardbarker.com reports that an alienation of affection case involving pro golfer John Daly is headed back to court in Mississippi.  On January 15, 2015 the Mississippi Supreme Court denied review of a Court of Appeals case which revered the trial court’s ruling that Mississippi wasn’t a proper forum for the case.

[T]he alleged sexual activity between Cladakis and Daly within the state of Mississippi, which contributed to the breakup of Daly’s marriage with Miller, constituted a tort committed, at least in part, within this state. For whatever reason Cladakis and Daly chose Mississippi for the site of their liaisons, this Court finds that decision constituted a purposeful availment to activities within the state for purposes of personal jurisdiction.

Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339, 24-25 (Miss. Ct. App. June 17, 2014).  To make matters even worse for the defendant, the Court of Appeals also erased $78,307 in sanctions the trial court had awarded against the plaintiff as a sanction under the Litigation Accountability Act.

[O]ur reversal of the trial court’s judgment regarding jurisdiction undermines the trial court’s position on attorneys’ fees as well. Accordingly, we reverse the award of attorneys’ fees to Cladakis.

……

[A] claim is frivolous ‘only when, objectively speaking, the pleader or movant has no hope of success. Though a case may be weak or ‘light-headed,’ that is not sufficient to label it frivolous.”

Miller v. Provident Adver. & Mktg., 2014 Miss. App. LEXIS 339 (Miss. Ct. App. June 17, 2014).

Philip Thomas’ blog reviews a number of alienation of affection verdicts in Mississippi.  The verdicts range from zero to 7 digits.  Where this one will end is anyone’s guess.  Daly’s fiance, Cladakis, may have a decent defense if she can prove there was no love in the Daly marriage to alienate in part due to Daly’s ex-wife allegedly demanding $2,500 every time they had intercourse.  On a side note, if Daly marries Cladakis it will be his fifth marriage.  At some point Daly has to look in the mirror and realize the marital struggles might just be his fault rather than his exes.

Discovery of facebook content in civil litigation

images

In the first few years of my practice of law there was no facebook or myspace.  The little social media that existed consisted of bulletin boards or AOL chatrooms.  As a result there were no discovery disputes about the production of material within facebook accounts.  Today, very few cases of any type hit my desk where social media content doesn’t play some role in litigation.  It might be the facebook photos and responses under it of a cheating spouse and his paramour, bar room  pictures of a defendant drinking alcohol on the night of a collision, or pictures of a injured party doing some activity after a car wreck the the person claims he cannot do.  Regardless of the circumstances, the party with the facebook page claims the content is privileged or protected and the other party claims the opposite leaving the court to sort it out.

The recent case of Nucci v. Target Corp, et al from the Florida Fourth District Court of Appeals highlights one of these disputes.   Maria Nucci filed a lawsuit claiming she slipped and fell on the floor of a Target store.  She alleged:

  • bodily injury
  • pain from the injury
  • medical, hospital, and nursing expenses
  • suffered physical handicap
  • emotional pain and suffering
  • lost earnings
  • Lost the ability to earn money
  • Lost or suffered a diminution of ability to enjoy her life
  • Suffered aggravation of preexisting injuries
  • Suffered permanent or continuing injuries
  • Will continue to suffer the losses and impairment in the future

According to the court’s decision:

Target took Nucci’s deposition on September 4, 2013. Before the deposition, Target’s lawyer viewed Nucci’s Facebook profile and saw that it contained 1,285 photographs. At the deposition, Nucci objected to disclosing her Facebook photographs. Target’s lawyer examined Nucci’s Facebook profile two days after the deposition and saw that it listed only 1,249 photographs. On September 9, 2013, Target moved to compel inspection of Nucci’s Facebook profile. Target wrote to Nucci and asked that she not destroy further information posted on her social media websites. Target argued that it was entitled to view the profile because Nucci’s lawsuit put her physical and mental condition at issue.

Nucci v. Target Corp. at page 2.

Target served Nucci with a set of Electronic Media Interrogatories and a Request for Production of Electronic Media.  Nucci entered objections on the grounds of (1) privacy; (2) items not readily accessible; and (3) relevance, (4) overbroad; (5) brought solely to harass; (6) “over[ly] burdensome;” (7) “unduly burdensome”; and (9) unduly vague.

The Court found in favor of allowing the discovery despite Nucci’s objections.

[T]he photographs posted on a social networking site are neither privileged nor protected by any right of privacy, regardless of any privacy settings that the user may have established. Such posted photographs are unlike medical records or communications with one’s attorney, where disclosure is confined to narrow, confidential relationships. Facebook itself does not guarantee privacy. By creating a Facebook account, a user acknowledges that her personal information would be shared with others. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Because information that an individual shares through social networking web-sites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.

Nucci v. Target Corp. at page 9 (internal citations and quotations omitted).

A more difficult question is can an attorney advise a client to “clean up” a social media or facebook profile before litigation starts.  Roughly two weeks after the Nucci decision was released, the Professional Ethics Committee of the Florida Bar issued Proposed Advisory Opinion 14-1 discussing the issue and advised that the practice was acceptable in certain limited situations.

The committee also agrees that a lawyer may advise the client pre-litigation to remove information from a social media page, regardless of its relevance to a reasonably foreseeable proceeding, as long as the removal does not violate any substantive law regarding preservation and/or spoliation of evidence. The committee is of the opinion that if the lawyer does so, an appropriate record of the social media information or data must be preserved if the information or data is known by the lawyer or reasonably should be known by the lawyer to be relevant to the reasonably foreseeable proceeding.

The committee is of the opinion that the general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding 109 removal of information, the lawyer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.

In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.

Keep in mind this is only a proposed opinion, it is limited to Florida and has enough “known” or “reasonably known” thrown in that it should make any lawyer think twice before counseling a client to destroy any social media content.

Courts in other states may not view the issue the same.  For example, in Allied Concrete Co. v. Lester, 736 S.E.2d 699 (Va. 2013) a Virginia Court upheld sanctions of $542,000 against a lawyer and $180,000 against the client for spoliation of evidence when the client, at the lawyer’s direction, deleted photographs from client’s social media page, the client deleted the accounts, and the lawyer signed discovery requests that the client did not have the accounts.  As a side note, the main photograph they were apparently trying to suppress was one of the plaintiff wearing a shirt stating “I love hot moms.”  The half a million in sanctions to the lawyer wasn’t the end of it as later the attorney agreed to a five year suspension of his law license.

The takeaway from all of this is simple.  If your social media presence is contrary to your litigation claims, the other side will eventually find out.  If you attempt the delete your social media presence, the other side will eventually find out.  When they catch you being dishonest, your case will go down the toilet and you may very well end up owing the other side some significant attorney’s fees.  In two words—-Be honest.

Can a convicted felon legally hunt with a muzzle loader in Mississippi?

Not a hunting season goes by that someone doesn’t ask me this question so I figured it would be helpful to put the answer in writing for any convicted felons that might be considering hunting with a muzzle loader.

With respect to federal law, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has a handy Top 10 Frequently Asked Questions section on their website.  The number 1 question is “Can a person prohibited by law from possessing a firearm acquire and use a black powder muzzle loading firearm?”  The ATF’s response is:

The Gun Control Act of 1968 (GCA) prohibits felons and certain other persons from possessing or receiving firearms and ammunition (“prohibited persons”). These categories can be found at 18 U.S.C. § 922(g) and (n) in http://atf.gov/publications/download/p/atf-p-5300-4.pdf. However, Federal law does not prohibit these persons from possessing or receiving an antique firearm. The term “antique firearm” means any firearm (including any firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system) manufactured in or before 1898. The definition includes any replica of an antique firearm if it is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire ammunition which is no longer manufactured in the United States, and which is not readily available in ordinary channels of commercial trade. Further, any muzzle loading rifle, shotgun, or pistol which is designed to use black powder or black powder substitute, and which cannot use fixed ammunition, is an “antique firearm” unless it (1) incorporates a firearm frame or receiver; (2) is a firearm which is converted into a muzzle loading weapon; or (3) is a muzzle loading weapon which can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. See 18 U.S.C. § 921(a)(3), (a)(16). Thus, a muzzle loading weapon that meets the definition of an “antique firearm” is not a firearm and may lawfully be received and possessed by a prohibited person under the GCA. In addition, the GCA defines the term “ammunition” to mean “ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm.” Because an “antique firearm” is not a “firearm,” it would is lawful for a prohibited person to receive or possess black powder designed for use in an “antique firearm.” Also, the Federal explosives laws do not make it unlawful for a prohibited person to acquire and possess black powder in quantities not exceeding fifty pounds if it is intended to be used solely for sporting, recreational, or cultural purposes in “antique firearms.” See 18 U.S.C. § 845(a)(5) By contrast, a prohibited person may not receive or possess black powder firearms that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof. ATF has classified certain muzzle loading models as firearms. All of these models incorporate the frame or receiver of a firearm that is capable of accepting barrels designed to fire conventional rimfire or centerfire fixed ammunition. These muzzle loading models do not meet the definition of “antique firearm” as that term is defined in 18 U.S.C. § 921(a)(16), and are “firearms” as defined in 18 U.S.C. § 921(a)(3). Furthermore, as firearms, these and similar models, regardless of the barrel installed on the firearm or provided with the firearm, are subject to all provisions of the GCA. Persons who purchase these firearms from licensed dealers are required to fill out a Firearms Transaction Record, ATF Form 4473, and are subject to a National Instant Criminal Background Check System (NICS) check. Felons and other prohibited persons may not lawfully receive or possess these firearms or ammunition.

The following is a list of weapons that load from the muzzle and are classified as firearms, not antiques, under the GCA, because they incorporate the frame or receiver of a firearm:

  • Savage Model 10ML (early, 1st version)
  • Mossberg 500 shotgun with muzzle loading barrel
  • Remington 870 shotgun with muzzle loading barrel
  • Mauser 98 rifle with muzzle loading barrel
  • SKS rifle with muzzle loading barrel
  • PB sM10 pistol with muzzle loading barrel
  • H&R/New England Firearm Huntsman
  • Thompson Center Encore/Contender
  • Rossi .50 muzzle loading rifle

This list is not complete and frequently changes. There may be other muzzle loaders also classified as firearms. As noted, any muzzle loading weapon that is built on a firearm frame or receiver falls within the definition of a firearm provided in 18 U.S.C. § 921(a)(3). Finally, even though a prohibited person may lawfully possess an antique firearm under Federal law, State or local law may classify such weapons as “firearms” subject to regulation. Any person considering acquiring a black powder weapon should contact his or her State Attorney General’s Office to inquire about the laws and possible State or local restrictions. A list of State Attorney General contact numbers may be found at www.naag.org.

As referenced in the third to the last sentence above, a state may also classify muzzle loaders as firearms subject to regulation.  That is exactly what an Attorney General’s opinion does in Mississippi. See 2004 WL 555121 (Miss.A.G.) Opinion No. 2004-0043, dated February 13, 2004.  The opinion states:

Office of the Attorney General

State of Mississippi

Opinion No. 2004-0043

February 13, 2004

Re: Possession of Weapons by Felon

Honorable Mark A. Maples

George County Prosecutor

362 Summer Street

Lucedale, Mississippi 39452

Dear Mr. Maples:

Attorney General Jim Hood has received your letter of request and has assigned it to me for research and reply. Your letter states:

Sheriff Garry Welford and I hve recently been asked a question about a convicted felon and a firearm, and we pose the following question:

Section 97-37-5 of the Mississippi Code, 1972, as amended provides:

“(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this State, any other State, or the United States, to possess any firearm…”.

An individual in George County was previously convicted of burglary of a building and accessory after the fact to armed robbery. He received an eight-year and four-year sentence, respectively, and served a period of ten years before being discharged from the Department of Corrections custody. He is no on any type of parole or Department of Corrections supervision at this time. He wishes to hunt using a muzzle loading rifle or muzzle loading shotgun or bow and arrow.

Our question is this: Can a convicted felon possess (and consequently hunt) with a muzzle loading rifle, muzzle loading shotgun, a traditional bow and arrow, or a cross bow?

In response, Mississippi Code Annotated Section 97-37-5 provides:

(1) It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

(2) Any person violating this section shall be guilty of a felony and, upon conviction thereof, shall be fined not more than Five Thousand Dollars ($5,000.00), or committed to the custody of the State Department of Corrections for not more than three (3) years, or both.

(3) A person who has been convicted of a felony under the laws of this state may apply to the court in which he was convicted for a certificate of rehabilitation. The court may grant such certificate in its discretion upon a showing to the satisfaction of the court that the applicant has been rehabilitated and has led a useful, productive and law-abiding life since the completion of his sentence and upon the finding of the court that he will not be likely to act in a manner dangerous to public safety.

The above quoted statute prohibits a convicted felon from possessing of any “firearm” among other weapons. Black’s Law Dictionary defines “firearm” as:

An instrument used in the propulsion of shot, shell or bullets by the action of gunpowder exploded within it. A weapon which acts by force of gunpowder. The word comprises all sorts of guns, fowling pieces, blunderbusses, pistols, etc.

It is the opinion of this office that a muzzle loading rifle or a muzzle loading shotgun is within the meaning of the term “firearm” as used in Mississippi Code Annotated Section 97-37-5. However, the statute does not include weapons such as a traditional bow and arrow or crossbow. Therefore, a convicted felon may possess (and consequently hunt with) a traditional bow and arrow or crossbow.

If we may be of further service to you, let us know.

Very truly yours,

Jim Hood,

Attorney General

By: David K. Scott

Special Assistant Attorney General

Long story short, while the ATF is ok with felons possessing some black powder muzzle loaders under federal law, felons are prohibited from possessing any type of muzzle loader under Mississippi state law.  If you have been convicted of a felony and intend to hunt in Mississippi, you are limited to the use of a bow or crossbow unless you have received a pardon for the felony, have received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S. Code, or have received a certificate of rehabilitation pursuant to subsection (3) of 97-37-5.

Is calling someone an idiot actionable?

Apparently not in Nebraska.  Their Supreme Court recently upheld the dismissal of a case brought by a home inspector Matthew Steinhausen.  Steinhausen, a non-attorney, represented himself and also attempted to represent his business in the lawsuit against Shelly Nitz, Woods Brothers Realty and HomeServices.  The lawsuit claimed an email describing the home inspector as “a total idiot” was libelous.  The trial and appellate courts disagreed.  In doing so, the Nebraska Supreme Court analyzed a number of decisions that found similar words non actionable:

  • raving idiot
  • stupid
  • moron
  • nincompoop
  • raving maniac
  • pitiable lunatics
  • wacko
  • nut-job
  • hysterical
  • crazy

The decision brings to mind an old proverb. “Every man who is his own lawyer, has a fool for a client.”

Are you safe in the hospital?

According to Kaiser Health News Medicare is penalizing 721 hospitals with high rates of potentially avoidable mistakes that can harm patients.  Which hospitals in Mississippi made the list?

Anderson Regional Medical Center South Campus Meridian MS Lauderdale
Baptist Memorial Hospital Desoto Southaven MS Desoto
Bolivar Medical Center Cleveland MS Bolivar
Choctaw Health Center Choctaw MS Choctaw
Crossgates River Oaks Hospital Brandon MS Rankin
Delta Regional Medical Center Greenville MS Washington
Garden Park Medical Center Gulfport MS Harrison
Highland Community  Hospital Picayune MS Pearl River
Jasper General Hospital Bay Springs MS Jasper
Och Regional Medical Center Starkville MS Oktibbeha
South Central Reg Med Ctr Laurel MS Jones
University Of Mississippi Med Center Jackson MS Hinds

Update on former Arkansas Judge Mike Maggio

In March of last year a bribery scandal involving Arkansas Judge Mike Maggio hit my radar.  Jane Tucker has an update and it appears Maggio finally pleaded guilty to taking $24,000 in campaign contributions in exchange for reducing a verdict against a nursing home from $5.2 million to $1 million.  Even more details are available at the Arkansas Times.  Hopefully, the former judge will spill the beans so that lady justice’s hatchet can fall on the crooked businessmen involved with paying the bribe.

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