JOHN A. WOODCOCK, JR., Chief Judge.
The Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) seeks summary judgment against Richard Suydam, a federally licensed firearms dealer, upholding its revocation of Mr. Suydam's license for his willful violation of the record-keeping requirements of federal firearms regulations. The Court concludes that the ATF's revocation was authorized and summary judgment for the ATF is appropriate.
On February 11, 2011, Richard Suydam filed a complaint seeking de novo judicial review, pursuant to 18 U.S.C. § 923(f)(3), of the ATF's revocation of his federal firearms license. Compl. (Docket # 1). The ATF answered on May 4, 2011. Answer (Docket # 7).
On June 17, 2011, the ATF moved for summary judgment and filed a statement of material facts. Def.'s Mot. for Summ. J. (Docket # 9) (Def.'s Mot,); Def.'s Statement of Undisputed Material Facts in Support of Def.'s Mot. for Summ. J. (Docket # 10) (DSMF). Mr. Suydam filed his opposition on June 30, 2011, along with a response to the ATF's statement of facts and a set of additional facts. Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. (Docket # 14) (Pl.'s Opp'n); Pl.'s Opposing Statement of Material Facts (Docket # 15) (PRDSMF, PSAMF). The ATF filed its response to Mr. Suydam's opposition and a reply statement of facts on July 14, 2011. Def.'s Reply Mem. in Support of Mot. for Summ. J. (Docket # 17) (Def.'s Reply); Def.'s Reply Statement of Material Facts (Docket # 18) (DRPSAMF).
Upon Mr. Suydam's motion, the Court held oral argument on the ATF's motion for summary judgment on February 17, 2012.
Richard E. Suydam has held ATF Importer's Federal Firearms License (FFL) No. 6-01-017-08-3D-33134 since 1987. DSMF ¶¶ 1, 3; PRDSMF ¶¶ 1, 3. The Veterans Administration has determined Mr. Suydam to be 70% disabled and the Social Security Administration has determined him 100% disabled. PSAMF ¶ 12; DRPSAMF ¶ 12. He is an insulin-dependent diabetic; prolonged physical exertion
On September 9, 2008, Industry Operations Investigator (IOI) Adrienne Brown inspected Mr. Suydam's business for compliance with the requirements of the Gun Control Act (GCA) and related federal firearms regulations. DSMF ¶ 4; PRDSMF ¶ 4. During the inspection, IOI Brown asked to review Mr. Suydam's Acquisition and Disposition Records (A & D Book). DSMF ¶ 6; PRDSMF ¶ 6. Mr. Suydam produced an A & D Book for the period from 2002 to the date of the inspection but was unable to produce an A & D Book for the period from 1989 to 2002. DSMF ¶¶ 7-8; PRDSMF ¶¶ 7-8.
During the inspection, IOI Brown reviewed with Mr. Suydam the GCA's federal firearms regulations with which Mr. Suydam was required to comply. DSMF ¶ 9; PRDSMF ¶ 9. This review included the requirement that all federal firearms licensees maintain an A & D Book, pursuant to 27 C.F.R. § 478.125(e), and maintain their records for no less than twenty years, pursuant to 27 C.F.R. § 478.129. DSMF ¶¶ 11-12; PRDSMF ¶¶ 11-12. During this review, IOI Brown completed and Mr. Suydam signed an Acknowledgement of Federal Firearms Regulations checklist, listing each regulation IOI Brown and Mr. Suydam had reviewed. DSMF ¶ 10; PRDSMF ¶ 10.
Following the September 9, 2008 inspection, IOI Brown completed a Report of Violations (ROV), setting forth the violations of the federal firearms regulations she said she discovered by her inspection.
On February 5, 2009, IOI Brown and Chris S. Turett, Area Supervisor, Boston Area Office, ATF, held a warning conference with Mr. Suydam. DSMF ¶ 18; PRDSMF ¶ 18. Supervisor Turett and IOI Brown discussed with Mr. Suydam his violations, as set forth in the ROV, and the importance of complying with federal firearms regulations, especially the importance of maintaining an A & D Book and having it available for review by the ATF. DSMF ¶ 19; PRDSMF ¶ 19. At the conference, Mr. Suydam stated that he understood the regulations requiring proper maintenance of an A & D Book and the importance of compliance with these regulations. DSMF ¶ 20; PRDSMF ¶ 20. The next day, on February 6, 2009, Supervisor Turett sent a follow-up letter to Mr. Suydam via certified mail, which Mr. Suydam received and signed for. DSMF ¶ 21; PRDSMF ¶ 21. The letter set forth the ATF's understanding of the discussions at the warning conference. DSMF ¶ 22; PRDSMF ¶ 22. The letter also reminded Mr. Suydam that "future violations, repeat or otherwise, could be viewed as willful and may result in the revocation of [his] license" and that he could "anticipate further inspections to ensure [his] compliance." DSMF ¶¶ 23-24; PRDSMF ¶¶ 23-24.
On July 12, 2009, Mr. Suydam requested a variance from the ATF concerning the keeping of an A & D Book.
In mid to late November of 2009, Mr. Suydam realized his A & D Book was missing. PSAMF ¶ 1; DRPSAMF ¶ 1. Mr. Suydam assumed workers had inadvertently moved the book into his second floor storage room (without Mr. Suydam's knowledge or permission) when they were moving some other books in his home. PSAMF ¶ 2; DRPSAMF ¶ 2.
The second floor storage room is approximately 12 feet long and 9 feet wide. PSAMF ¶ 3; DRPSAMF ¶ 3. The room held at least 5,000 books at the time the 2002 A & D Book went missing.
Mr. Suydam asserts that upon realizing the book was missing, he notified the ATF and an agent told him to start a new book until he found the missing one.
After realizing the book was missing, Mr. Suydam scanned the stacks of books in the storage room, making a visual
Because of his physical limitations and numerous medical conditions, Mr. Suydam believed that he could not conduct an extensive search for the missing A & D Book himself.
Mr. Suydam asserts that he was not indifferent to finding the book between the time it went missing in late November of 2009 and the March 3, 2010 inspection,
On March 3, 2010, ATF agents IOI Matthew Gagne and IOI Nicholas O'Leary conducted an inspection of Mr. Suydam's premises. DSMF ¶ 30; PRDSMF ¶ 30. During this inspection, IOI Gagne requested to review Mr. Suydam's A & D Book. DSMF ¶ 31; PRDSMF ¶ 31. IOI Gagne had read IOI Brown's report and knew Mr. Suydam would not have his A & D Book for the period before 2002. DSMF ¶¶ 32-33; PRDSMF ¶¶ 32-33.
At the inspection, Mr. Suydam produced an A & D Book for the period from November 30, 2009 to March 3, 2010, the date of inspection. DSMF ¶ 34; PRDSMF ¶ 34. The first page of the A & D Book stated "This Ledger import/dealer '08, was opened on November 30th, 2009 as of 13:00 as a replacement of the original lost/misplaced item." DSMF ¶ 35; PRDSMF ¶ 35. IOI Gagne asked Mr. Suydam to provide his A & D Book for the period before November 30, 2009, at which point Mr. Suydam admitted that he had lost the book at some point before November 30, 2009 and was unable to produce it. DSMF ¶¶ 36-37; PRDSMF ¶¶ 36-37. Mr. Suydam told the ATF investigators that he had hired some individuals to move various books from the first floor of his home to a room on the second floor and that, because he usually kept the A & D Book on the first floor, he assumed his A & D Book had likely been moved along with the other books to that second floor storage room. DSMF ¶¶ 38-39; PRDSMF ¶¶ 38-39. Mr. Suydam admitted to the ATF investigators that after the movers left, he had been unable to find his A & D Book and had concluded that it had likely been moved with the rest of his books, even though he had not intended for that to occur. DSMF ¶ 40; PRDSMF ¶ 40.
IOI Gagne asked Mr. Suydam if he had searched for the lost A & D Book. DSMF ¶ 42; PRDSMF ¶ 42. Despite believing that the book was likely in his second floor storage room, Mr. Suydam admitted that he had only made a "cursory search" but it
On July 8, 2010, the ATF issued a Notice of Revocation of License to Licensee to Mr. Suydam via Certified Mail, but the letter was not signed for and was returned to the ATF undelivered. DSMF ¶¶ 50-51; PRDSMF ¶¶ 50-51. On July 20, 1010, the ATF issued a second Notice of Revocation of License to Licensee, which was hand-delivered to Mr. Suydam by IOI Gagne. DSMF ¶¶ 52-53; PRDSMF ¶¶ 52-53.
During the administrative hearing on Mr. Suydam's FFL revocation, Mr. Suydam testified that he understood that federal firearms regulations required him to maintain an A & D Book at all times, and that the purpose of maintaining such records was to be prepared to provide them to the ATF upon request. DSMF ¶¶ 47-48; PRDSMF ¶¶ 47-48. Mr. Suydam also testified that he knew it was his responsibility to maintain an A & D Book and to have it ready for inspection by the ATF:
DSMF ¶ 49; PRDSMF ¶ 49; DSMF Attach. 1 Chabra Decl. Ex. B (Revocation Tr.) at 61.
The ATF argues that Mr. Suydam's petition for de novo review of its revocation of his federal firearms license must fail as a matter of law. Def.'s Mot. at 1. The
Mr. Suydam opposes the ATF's motion for summary judgment, arguing that the disappearance of his second A & D Book (containing transactions from 2002 through November 2009) is not grounds for license revocation because it was not a willful violation. Pl.'s Opp'n at 10-11. Mr. Suydam denies that he was plainly indifferent to or that he recklessly disregarded federal firearms regulations and, in fact, he "cared very deeply about his legal responsibilities," but was physically and medically unable to search for the misplaced record book on his own. Id. at 3-5, 10. He asserts that it would have taken "many hours, and perhaps even days or weeks, and a lot of physical effort to look through all of the stacks of books to find that one," and that he was unable to hire outside help whom he trusted until August of 2010. Id. at 4.
In reply, the ATF reiterates that Mr. Suydam admits he knew and understood the record-keeping requirements of the GCA and federal firearms regulations and that he admits to violating those requirements after multiple ATF explanations and warnings about properly maintaining his firearm transaction records and having them available for ATF inspection. Def.'s Reply at 1. The ATF argues that Mr. Suydam's sole defense — that he suffers from various mental and physical impairments — has been unanimously rejected as a defense to willful federal firearms violations. Id. at 1, 3-6. The ATF further contends that the evidence clearly shows that Mr. Suydam's inability to provide his 2002-2009 A & D Book to ATF agents at the March 3, 2009 inspection was not "inadvertent," but rather that "he knew he was required to locate his lost A & D Book, but for many months took functionally no steps to locate it and comply with federal law." Id. at 3.
"Notwithstanding the posture of this case as an appeal of an administrative decision, the summary judgment standard is the same as in any other civil action." Gilbert v. Bangs, 813 F.Supp.2d 669, 673 (D.Md.2011). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(a). A fact is material where "its existence or nonexistence has the potential to change the outcome of the suit." Tropigas de Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London., 637 F.3d 53, 56 (1st Cir.2011) (citing McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995)). An issue is genuine where "a reasonable
The initial burden is on the moving party to show that there exists an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party meets this initial burden, then the non-moving party must set forth specific facts showing that there is a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The standard for judicial review of an FFL revocation is found in 18 U.S.C. § 923(f)(3):
Id.
Because the First Circuit has not addressed the license revocation portions of the GCA and relevant regulations, the Court is guided by the text of the statute and regulations and by other circuit analysis of the issue. In general, although the law provides for a de novo review, the statute makes it clear that the focus of that review is narrow: whether the Attorney General was "authorized" to revoke the license. 18 U.S.C. § 923(f)(3).
"Under the de novo standard of review for a decision of the ATF, the district court may give the agency's finding and decision such weight as it believes they deserve, but need not accord any particular deference to those findings." Gilbert v. Bangs, 813 F.Supp.2d 669, 672-73 (D.Md.2011) (internal quotation marks omitted); see also Stein's, Inc. v. Blumenthal, 649 F.2d 463, 467 (7th Cir.1980); Article II Gun Shop, Inc. v. Ashcroft, No. 03-C-4598, 2005 WL 701053, at *2-3, 2005 U.S. Dist. LEXIS 18873, at *9 (N.D.Ill. Mar. 25, 2005). In other words, the decision under review "is not necessarily clothed with any presumption of correctness or other advantage." Stein's, 649 F.2d at 466-67. A court "can receive and consider evidence in addition to that submitted in the administrative proceeding," Gilbert, 813 F.Supp.2d at 673, "when some good reason to do so either appears in the administrative record or is presented by
By confining a court's inquiry to whether the Attorney General's decision was "authorized," § 923(f)(3) "does not call upon this Court to decide whether it would revoke the license in its own judgment, but whether all of the evidence presented is sufficient to justify the Attorney General's revocation of the license." Morgan v. U.S. Dep't of Justice, 473 F.Supp.2d 756, 762 (E.D.Mich.2007) (quoting Pinion Enters., Inc. v. Ashcroft, 371 F.Supp.2d 1311, 1315 (N.D.Ala.2005)); see also Procaccio v. Lambert, No. 5:05-MC-0083, 2006 WL 2090166, at *2, 2006 U.S. Dist. LEXIS 50748, at *6-7 (N.D.Ohio Jul. 25, 2006) ("the Court considers whether the Attorney General's revocation was authorized, not whether this Court would make the same decision if originally presented with the issue"); Armalite, Inc. v. Lambert, 544 F.3d 644, 650 (6th Cir.2008); Article II Gun Shop, Inc. v. Gonzales, 441 F.3d 492, 494 (7th Cir.2006); Perri v. Dep't of Treasury, 637 F.2d 1332, 1335 (9th Cir.1981); Lewin v. Blumenthal, 590 F.2d 268, 269 (8th Cir.1979); Prino v. Simon, 606 F.2d 449, 450 (4th Cir.1979).
The ATF is authorized to "revoke any license issued under [the GCA] if the holder of such license has willfully violated" any provision of the GCA or related regulations. 18 U.S.C. § 923(e). "Willful," in this context, does not require a showing that the violation was intentional or purposeful, but merely that the violation was made with reckless disregard of or plain indifference toward the regulations.
In the words of the Fourth Circuit, proving willfulness in the context of a failure to act often requires a court to "infer willful omission" where there exists evidence that the party either "knew of the requirement" or "knew generally that his
In general, physical illness does not excuse a licensee from complying with federal record-keeping regulations. See, e.g., Vineland Fireworks Co., Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 544 F.3d 509, 522 (3rd Cir.2008) (affirming finding of willfulness, applying GCA's willfulness standard to explosives case, despite bookkeeper's illness where explosives licensee's failure to properly record transactions "was not a `one-off event,'" "but instead extended for months" during bookkeeper's absence for cancer treatments).
Nor do mental defects, such as attention deficit disorder, necessarily excuse or overcome a finding of willfulness. See Sturdy, 129 F.3d 122, at *1-2 (rejecting licensee's claim of attention deficit disorder and finding willful violation where licensee had been cited for similar violations in previous inspections and received descriptions of the violations and warnings that future violations would result in license revocation). As the Eastern District of Missouri recently noted, when rejecting a federal firearms licensee's claim that her mental incapacity negated willfulness, "policy reasons weigh against having the court read into the statute a dispensation for firearms dealers who, because of their own diminished capacity, might sell guns to unqualified individuals." Gun Shop LLC v. U.S. Dep't of Justice, No. 4:10CV01459MLM, 2011 WL 2214671, *9 n. 9, 2011 U.S. Dist. LEXIS 59586, at *30 n. 9 (E.D.Mo. Jun. 3, 2011) (emphasis in original).
There is a certain tension between the Court's obligation under the statute to perform a de novo review to determine whether the ATF decision was "authorized" and the Court's corresponding obligation under Rule 56 to view the facts in the light most favorable to the non-movant. Compare 18 U.S.C. § 923(f)(3), with FED. R. CIV. P. 56. Merely by presenting conflicting facts, each licensee could effectively block the summary disposition of his case and demand a full evidentiary hearing, a result that would run contrary to the statutory directive of a de novo review only on whether the ATF decision was authorized. Willingham Sports, Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 348 F.Supp.2d 1299, 1306 (S.D.Ala.2004) ("that the [GCA] provides
Under the GCA and its regulations, federally licensed firearms dealers are required to keep detailed records, including a record of all acquisitions and dispositions, and to make these A & D Books available for inspection at the ATF's request. 27 C.F.R. § 478.121(b). Thus, for the revocation to have been authorized and for the Court to grant summary judgment in favor of the ATF, the undisputed facts must demonstrate: 1) that Mr. Suydam was aware of the record-keeping requirements imposed on him by federal firearms regulations and 2) that he intentionally or knowingly failed to comply with or recklessly disregarded or was plainly indifferent to his obligation to keep detailed records of all firearm acquisitions and dispositions and be able to provide that information to the ATF upon request. See, e.g., Athens Pawn Shop, 364 Fed. Appx. at 59.
Here, the record, even when viewed most favorably to Mr. Suydam, does not raise a genuine issue of material fact. There is no factual dispute on the first factor — Mr. Suydam's awareness of the need to maintain records and to produce those records to the ATF.
The undisputed facts support the conclusion that Mr. Suydam was plainly indifferent to the record-keeping requirements of his FFL. A conscientious licensee would not have misplaced the A & D Book in the first place. In September 2008, the ATF warned Mr. Suydam about the imperative to maintain the A & D Book, and it was the very next fall that he hired others to move his books. Yet on moving day, Mr. Suydam failed to adequately sequester this essential, federally-mandated record book from the rest of his extensive library. Allowing the intermingling of the A & D Book with the other books in his voluminous collection is evidence of reckless disregard or plain indifference to his legal obligations as the holder of an FFL to maintain and make available the mandated records.
After losing an A & D Book, a federal firearms licensee who was not indifferent to his record-keeping obligations would make every effort to find the book. Mr. Suydam had more than three months from late November of 2009 when he noticed the 2002-2009 A & D Book was misplaced, until the ATF's March 3, 2010 inspection to locate — or arrange for assistance in locating — the book in his home and make it available should the ATF request to inspect his records. Other than one "cursory" visual search of the storage room around the time the book went missing in late November of 2009, Mr. Suydam did not look further and did not hire anyone to look for it until August of 2010, after receiving notice of the revocation of his FFL on July 20, 2010. Chabra Decl. Ex. C-3 Notice of Revocation; DSMF ¶ 45; PRDSMF ¶ 45. Although he asserts that he did not leave his house much between November of 2009 and the March 3, 2010 inspection, the record is silent as to why it took until August — and only after he received notice of his license revocation — for Mr. Suydam to arrange for assistance in searching the storage room for the book. Nine months elapsed with nothing but one "cursory search" for the missing A & D Book. Even if Mr. Suydam's physical and mental conditions prohibited him from conducting more than a brief cursory search at any given time, there is no evidence that he searched the room more than once. A cursory search, if systematically repeated daily or even weekly, becomes more than cursory over time; however, the evidence both at the revocation hearing and before the Court confirms that Mr. Suydam limited his search for the missing A & D Book to that one "cursory search" conducted around the time the book went missing in November of 2009.
Even viewing the evidence in the light most favorable to Mr. Suydam, the undisputed facts make clear that he plainly knew, as the holder of a federal license to buy and sell firearms, that the license came with an obligation to maintain and
Mr. Suydam's most earnest contention is that his physical and mental conditions effectively deflect the statute's willfulness requirement. His argument is that physical and mental inability is not volitional and therefore not willful. Even assuming that in a highly unusual case, a temporary and severe physical or mental condition could effectively blunt the willfulness requirement, this is not that case. Mr. Suydam's physical and mental conditions were not so severe that they justified his prolonged failure to find or make arrangement to find the mandatory records. Although the Court is sympathetic to Mr. Suydam's physical and mental conditions, those conditions do not excuse him from maintaining proper records and having them available for inspection. See, e.g., Vineland Fireworks Co., 544 F.3d at 522; Sturdy, 129 F.3d 122, at *1-2.
Here, the facts belie the defense. After nine months of lost records, Mr. Suydam finally galvanized himself and hired someone to perform a more systematic and serious search of his storage room. The A & D Book was discovered within a day. Mr. Suydam has not been able to satisfactorily explain why what was easily found — nine months after it went missing — could not have been found immediately, if only he or someone on his behalf had looked for it. The ATF is not required to wait for months as its licensees delay production of mandatory records.
The public safety concerns behind imposing such requirements on federal firearms licensees are obvious, and need not be expounded here. See, e.g., Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 39 L.Ed.2d 782 (1974) (noting importance of GCA's record-keeping requirements for firearms dealers because "[t]he principal agent of federal enforcement is the dealer"); Am. Arms Int'l, 563 F.3d at 79 n. 1 ("[p]roper records maintenance is crucial to law enforcement, which uses the information contained in these records to trace firearms involved in crimes"). Especially concerning is the fact that the two missing A & D Books represent a full twenty years of firearm acquisition and disposition records that Mr. Suydam was required to maintain and produce and yet was unable to provide to the ATF for inspection. The Court concludes that there is no genuine issue of material fact as to whether the ATF was authorized to revoke Mr. Suydam's FFL based on his willful violation of the provisions of the GCA and related federal firearms regulations.
The Court GRANTS the ATF's Motion for Summary Judgment (Docket # 9).
SO ORDERED.
DSMF ¶ 13. In support of this statement, ATF cites Exhibit C to Exhibit B of S. Roy Chabra's declaration. DSMF ¶ 13, Attach. 1, Decl. of S. Roy Chabra, Ex. B (Docket # 10), Attach. 3, Ex. B, Tr. of Oct. 6, 2010 Hr'g 21, Ex. C., Report of Violations (Sept. 22, 2008). The attached exhibit is entitled "Report of Violations" and sets forth two violations arising from the September 4, 9, and 22, 2008 inspections. Id. The Report of Violations has what appears to be Mr. Suydam's signature. Mr. Suydam interposed a qualified objection to paragraph 13:
PRDSMF ¶ 13. For support, Mr. Suydam cites paragraph 8 of his affidavit, which reads:
Id. Attach. 1, Aff. of Richard Suydam ¶ 8 (Docket # 15). The "reasons stated in response to alleged fact # 7" are:
PRDSMF ¶ 7. Although the Court notes Mr. Suydam's qualified response and has altered the ATF statement to reflect that these are violations the ATF asserted, whether Mr. Suydam actually violated ATF regulations in 2008 is not before the Court. ATF points to the 2008 inspection and the ROV to support its contention that Mr. Suydam was aware of the ATF record-keeping regulations and the importance of compliance. Mr. Suydam admits that he reviewed the September 22, 2008 violations with ATF agents and received multiple explanations and warnings after the 2008 inspection. PRDSMF ¶¶ 9-12, 16-19, 21, 23-24.
The testimony and the affidavit are not flatly contradictory. First, as to his assertion that he knew very few people in the area, there is no contradiction at all. Second, as to his friendship with Father Beegan, there is no evidence that Father Beegan would have been available to spend days or weeks looking for the book. Compare Revocation Tr. at 63:2-15 with PSAMF ¶ 22. The Court overrules the ATF's objection to paragraph 22.
The ATF also objects to Mr. Suydam's statement that none of his friends was available to "spend several days or weeks looking for the book," on the grounds that when someone finally began to look for the book in August of 2010 it was found, by Mr. Suydam's admission, after only one day of searching. DRPSAMF ¶ 22; DSMF ¶ 46; PRDSMF ¶ 46. Because, prior to finding the book, no one could have known how long the search would take, the Court adopts Mr. Suydam's version for purposes of this motion.
The ATF also objects to Mr. Suydam's statement that he was unable to find anyone he trusted to search for the book, claiming it contradicts his testimony at the license revocation hearing, again citing Thore v. Howe, 466 F.3d at 186 n. 7. DRPSAMF ¶ 26. For the reasons stated in footnote 8, supra, the Court overrules this objection and adopts Mr. Suydam's version.
