                                                              FILED
                                                               DEC 16 2016
 1                         NOT FOR PUBLICATION
 2                                                         SUSAN M. SPRAUL, CLERK
                                                             U.S. BKCY. APP. PANEL
                                                             OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP No.      WW-15-1178-TaKuJu
                                   )
 6   MARK E. PHILLIPS,             )      Bk. No.      14-18440-TWD
                                   )
 7                  Debtor.        )      Adv. No.     15-01052-TWD
     ______________________________)
 8                                 )
     MARK E. PHILLIPS,             )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     ESTATE OF ROBERT M. ARNOLD,   )
12                                 )
                    Appellee.      )
13   ______________________________)
14                     Submitted Without Oral Argument**
                             on November 17, 2016
15
                           Filed – December 16, 2016
16
               Appeal from the United States Bankruptcy Court
17                 for the Western District of Washington
18        Honorable Timothy W. Dore, Bankruptcy Judge, Presiding
19
     Appearances:     Appellant Mark E. Phillips pro se on brief; Alan
20                    J. Wenokur on brief for Appellee Estae of Robert
                      M. Arnold.
21
22   Before:   TAYLOR, KURTZ, and JURY, Bankruptcy Judges.
23
          *
24           This disposition is not appropriate for publication.
     Although it may be cited for whatever persuasive value it may
25   have (see Fed. R. App. P. 32.1), it has no precedential value.
     See 9th Cir. BAP Rule 8024-1(c)(2).
26
          **
27           The Panel unanimously determined that the appeal was
     suitable for submission on the briefs and record pursuant to
28   Rule 8019(b)(3).
 1                              INTRODUCTION
 2        Debtor Mark E. Phillips appeals from a summary judgment
 3   excepting from discharge a prepetition state court judgment
 4   pursuant to § 523(a)(4)1 and based on embezzlement.      He contends
 5   that the bankruptcy court erred in giving the state court
 6   judgment issue preclusive effect.
 7        We AFFIRM the bankruptcy court.
 8                                 FACTS
 9        In June 2006, Debtor incorporated Banana Corporation
10   (“Banana”) in the state of Washington.      At all relevant times,
11   he was the corporation’s sole director, officer, and majority
12   shareholder.
13        Debtor solicited a $5.5 million investment from Robert M.
14   Arnold allegedly to allow Banana “to develop concepts, trade
15   secrets and intellectual property regarding a mobile transaction
16   business . . . .”   The investment was made in several tranches
17   between June 2006 and May 2007.       In exchange, Arnold obtained a
18   15% ownership interest in Banana; Debtor retained the remaining
19   85% ownership interest.   There were no other shareholders of
20   Banana and no other cash investors aside from Arnold.
21        Debtor also owned A-Dot Corporation (“A-Dot”).      Before
22   forming Banana, he effectively rendered A-Dot inactive by
23   shifting substantially all its employees and assets to MOD
24   Systems, Inc. (“MOD”), yet another wholly owned company.
25
          1
             Unless otherwise indicated, all chapter and section
26   references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.
27   All “Rule” references are to the Federal Rules of Bankruptcy
     Procedure. All “Civil Rule” references are to the Federal Rules
28   of Civil Procedure.

                                       2
 1   Despite the transfers, Debtor retained a position as some type
 2   of employee at A-Dot, but MOD also employed him full-time.
 3        In July 2006, the month after Arnold’s infusions of capital
 4   to Banana commenced, Debtor caused Banana to enter into a
 5   contract agreeing to provide services to the now inactive A-Dot.
 6   Thus began a series of transactions between Banana and A-Dot
 7   that fall broadly into three general categories: consulting fee
 8   transfers, loans, and miscellaneous transfers.
 9        Consulting fees arrangements.   In December 2006, Banana
10   paid A-Dot a $1,000,000 “consulting fee.”    As the Washington
11   state court later found, however, there were no records
12   justifying this payment, documenting Banana's receipt of
13   consulting services, or reflecting any “deliverables, action
14   items, scheduling, scope of assignment, compensation rates,
15   deadlines or invoices . . . .”   [Findings of Fact & Conclusions
16   of Law at 5, Arnold v. Phillips, No. 10-2-10227-2 SEA (Super.
17   Ct. Wash., Sept. 26, 2013).]   Debtor concurrently caused A-Dot
18   to transfer the $1,000,000 “consulting fee” into his personal
19   brokerage account.   He later claimed that the fee was a
20   licensing fee rather than compensation for consulting services;
21   the state court was not convinced, noting that “the intellectual
22   property allegedly licensed had already been assigned by
23   [Debtor] to Banana in return for stock.”    [Id.]
24        Between June and December 2006, Debtor also caused Banana
25   to pay him $1,160,000 in “consulting fees”.    The state court
26   later found that there was no written agreement between Banana
27   and Debtor documenting a consulting arrangement or otherwise
28   “setting forth the scope of work, deliverables, action items,

                                      3
 1   deadlines or rates for these ‘consulting fees.’”     And there were
 2   no records as to “any deliverables, action items, scheduling,
 3   scope of assignment, compensation rates, deadlines or invoices
 4   . . . .”    [Id. at 7.]   The state court was skeptical of Debtor's
 5   ability to provide consulting services to Banana when he was
 6   employed more than full-time (60 hours a week) by MOD.
 7        In addition, Debtor caused Banana to enter into a
 8   consulting agreement with his longtime friend, Douglas Lower.
 9   Banana eventually paid a total of $450,000 in “consulting fees”
10   to Lower as an “advance” of the consulting fees.     The state
11   court later found, however, that the agreement did “not describe
12   a work assignment, provide[d] no fee schedule and identifie[d]
13   no rate of pay.”    [Id. at 9.]   The state court also found that
14   Debtor acknowledged that this fee constituted a “finders fee” to
15   Lower, “for getting [Debtor] access to [] Arnold and his money
16   through Lower’s wife . . . .”     [Id.]   Apparently, Lower’s wife
17   was a longtime employee of Arnold’s.      The state court found that
18   Debtor disguised the finder's fee to hide its true nature from
19   Arnold.
20        Loans.    In September 2006, Debtor caused Banana to loan
21   $2,385,000 to A-Dot; the loans came due and payable five years
22   later.    Debtor signed the loan documents as both lender and
23   borrower and without corporate board authorization; he did so in
24   contravention of A-Dot’s organizational documents and in
25   disregard of legal counsel’s advice that he “avoid conflicted
26   transactions unless an independent board approved the
27   transaction.”    A-Dot ultimately repaid only $50,000 on the loan
28   and never paid anything categorized as interest.     Despite these

                                       4
 1   facts, Banana’s financial records did not contain any
 2   documentation of loan accruals.       When the state court issued its
 3   findings of fact and conclusions of law, A-Dot owed Banana
 4   $3,095,709.558 on this loan.
 5        In February 2007, Debtor caused Banana to loan Lower
 6   $200,000.   The promissory note, signed by Debtor on Banana’s
 7   behalf, provided for a five year term and established a 5%
 8   annual interest rate.   Lower never paid the loan.
 9        Other transfers.   Finally, Debtor caused A-Dot to make the
10   following transfers, apparently using funds from the Banana
11   transactions:
12   C    October 2006: $150,000 wire from A-Dot to other Debtor
13        controlled entities;
14   C    February 2007: $500,000 wire from A-Dot to Debtor;
15   C    June 2007: $25,000 wire from A-Dot to Debtor;
16   C    2007: Two income tax payments by A-Dot for Debtor’s
17        personal taxes in the total amount of $705,000; and
18   C    Payments totaling at least $100,584.28 for repayment of
19        credit card purchases made for Debtor’s personal benefit.
20        The state court determined that all of the preceding
21   transactions lacked a business justification and “constituted a
22   related party transaction without an independent board review or
23   approval, self-dealing, and a breach of [Debtor’s] fiduciary
24   duty owed to Banana Corporation.”
25        The state court actions.     After he discovered these
26   transactions, Arnold sued Banana in Washington state court.      To
27   settle this first suit, Banana assigned to Arnold its claims
28   against Debtor and other defendants.      Arnold, as Banana’s

                                       5
 1   assignee, brought a second state court action against Debtor and
 2   others.   This complaint alleged several causes of action,
 3   including corporate waste and looting under Revised Code of
 4   Washington (“RCW”) § 23B.08.300,2 conversion and embezzlement
 5   under RCW § 23B.08.300, unjust enrichment, and breach of
 6   contract.    After Arnold died, his estate succeeded him in the
 7   lawsuit and asserted Banana’s claims.
 8        The state court subsequently entered an order granting
 9   summary judgment in Arnold’s estate’s favor on the above causes
10   of action (i.e., the causes Arnold’s estate was asserting on
11   Banana’s behalf).     In doing so, it found that Debtor’s “behavior
12   amounted to a deliberate looting or waste of funds invested by
13   [] Arnold in Banana” and established that Debtor was liable to
14   Banana.     It reserved the amount of damages for trial.
15        Following a trial on damages, the state court issued
16   written findings of fact and conclusions of law and entered a
17   judgment in favor of the Arnold estate, as Banana’s assignee.
18   The judgment awarded damages in the amount of $4,190,000.      The
19   state court adopted and expanded on its summary judgment
20   findings.     Debtor appealed the judgment to the Washington court
21   of appeal.
22        The nondischargeability action.     Debtor then filed a
23   voluntary chapter 7 petition.     The Arnold estate commenced a
24   nondischargeability action against him and sought to except the
25   state court judgment from discharge under § 523(a)(2)(A),
26
27        2
             RCW § 23B.08.300 relates to the general standards for
28   corporate directors under Washington law.

                                       6
 1   (a)(4), and (a)(6).    Debtor received his chapter 7 discharge.
 2        The Arnold estate later moved for summary judgment based on
 3   the issue preclusive effect of the state court judgment as to
 4   the claims based on § 523(a)(4) embezzlement and § 523(a)(6).
 5   Debtor, pro se, opposed.    As relevant here, he asserted that
 6   § 523(a)(4) embezzlement required “fraud in fact, involving
 7   moral turpitude or intentional wrong, rather than implied or
 8   constructive fraud.”    He contended that Washington law did not
 9   provide for a statutory or common law cause of action for
10   embezzlement.   And he argued that the state court did not make a
11   finding of fraud as required for § 523(a)(4) embezzlement.
12        At the hearing, the bankruptcy court granted summary
13   judgment on the § 523(a)(4) embezzlement claim but denied the
14   motion as to the § 523(a)(6) claim.     In a thorough oral ruling,
15   it meticulously set forth the basis for its decision,
16   specifically pointing out that the third element of § 523(a)(4)
17   embezzlement “require[d] only indicia of fraud as opposed to
18   proof of all elements of fraud.”     It found that
19        The state court’s findings and conclusions
          demonstrate[d] numerous indicators of fraud including
20        “intentional conversion of Banana’s funds”, self-
          dealing, the complete lack of disclosure to [] Arnold
21        of the improper payments, the lack of a business
          purpose for the improper payments, the lack of records
22        and invoices, clear and convincing evidence of bad
          faith, and mislabeling the payment of a substantial
23        finder’s fee in order to avoid disclosure to []
          Arnold.
24
25   Hr’g Tr. (May 15, 2015) at 25:6-14.
26        In denying the summary judgment motion on the § 523(a)(6)
27   claim, the bankruptcy court determined that the state court’s
28   findings and conclusions did not contain sufficient findings to

                                      7
 1   support the § 523(a)(6) willful injury requirement.    It noted,
 2   in particular, that “[t]he state court made very few findings
 3   regarding [Debtor’s] subjective intentions.”
 4        Following the bankruptcy court’s entry of the order on the
 5   summary judgment motion,3 Debtor timely appealed.
 6        While this appeal was pending, the Washington court of
 7   appeal issued a decision affirming the state court judgment “in
 8   all respects.”   See Estate of Arnold v. Phillips, 191 Wash. App.
 9   1014, 2015 WL 7260028 (Nov. 16, 2015) (unpublished).
10                               JURISDICTION
11        The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
12   §§ 1334 and 157(b)(2)(I).   We have jurisdiction under 28 U.S.C.
13   § 158.
14                                  ISSUE
15        Whether the bankruptcy court erred in granting summary
16   judgment to the Arnold estate by giving issue preclusive effect
17   to the state court judgment.
18                          STANDARDS OF REVIEW
19        We review de novo the bankruptcy court’s decisions to grant
20   summary judgment and to except a debt from discharge under
21   § 523(a).   See Ghomeshi v. Sabban (In re Sabban), 600 F.3d 1219,
22   1221-22 (9th Cir. 2010); Oney v. Weinberg (In re Weinberg),
23   410 B.R. 19, 28 (9th Cir. BAP 2009); see also Carrillo v. Su
24   (In re Su), 290 F.3d 1140, 1142 (9th Cir. 2002)
25
26        3
             The bankruptcy court’s order on the summary judgment
27   motion contained a Civil Rule 54(b) certification and stated
     that it was a final order. Thus, the order is final for the
28   purposes of this appeal.

                                      8
 1   (nondischargeability presents mixed issues of law and fact and
 2   is reviewed de novo).
 3          We also review de novo the bankruptcy court’s determination
 4   that issue preclusion was available.        Black v. Bonnie Springs
 5   Family Ltd. P’Ship (In re Black), 487 B.R. 202, 210 (9th Cir.
 6   BAP 2013).    If issue preclusion was available, we then review
 7   the bankruptcy court’s application of issue preclusion for an
 8   abuse of discretion.    Id.    A bankruptcy court abuses its
 9   discretion if it applies the wrong legal standard, misapplies
10   the correct legal standard, or if its factual findings are
11   illogical, implausible, or without support in inferences that
12   may be drawn from the facts in the record.        See
13   TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 832 (9th
14   Cir. 2011) (citing United States v. Hinkson, 585 F.3d 1247, 1262
15   (9th Cir. 2009) (en banc)).
16                                  DISCUSSION
17          Summary judgment.    Summary judgment is appropriate where
18   the movant shows that there is no genuine dispute of material
19   fact and that the movant is entitled to judgment as a matter of
20   law.    Fed. R. Civ. P. 56(a) (applicable in adversary proceedings
21   under Rule 7056).    The bankruptcy court must view the evidence
22   in the light most favorable to the non-moving party when
23   determining whether genuine disputes of material fact exist and
24   whether the movant is entitled to judgment as a matter of law.
25   See Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119,
26   1125 (9th Cir. 2014).      And it must draw all justifiable
27   inferences in favor of the non-moving party.        See id. (citing
28   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

                                        9
 1          Issue preclusion in a nondischargeability proceeding.        In a
 2   summary judgment context, the bankruptcy court may give issue
 3   preclusive effect to a state court judgment as the basis for
 4   excepting a debt from discharge.       Harmon v. Kobrin
 5   (In re Harmon), 250 F.3d 1240, 1245 (9th Cir. 2001).         The party
 6   asserting preclusion bears the burden of establishing the
 7   threshold requirements.    Id.   This means providing “a record
 8   sufficient to reveal the controlling facts and pinpoint the
 9   exact issues litigated in the prior action.”       Kelly v. Okoye
10   (In re Kelly), 182 B.R. 255, 258 (9th Cir. BAP 1995), aff’d, 100
11   F.3d 110 (9th Cir. 1996).    Ultimately, “[a]ny reasonable doubt
12   as to what was decided by a prior judgment should be resolved
13   against allowing the [issue preclusive] effect.”       Id.
14          We apply the forum state’s law of issue preclusion when
15   determining if issue preclusion is appropriate.       In re Harmon,
16   250 F.3d at 1245.    Here, that requires analysis under Washington
17   law.
18          Washington issue preclusion.    In Washington, issue
19   preclusion requires that:
20          (1) the issue decided in the prior adjudication is
            identical with the one presented in the second action;
21          (2) the prior adjudication must have ended in a final
            judgment on the merits; (3) the party against whom the
22          plea is asserted was a party or in privity with the
            party to the prior adjudication; and (4) application
23          of the doctrine does not work an injustice.
24   In re Estate of Hambleton, 181 Wash. 2d 802, 834 (2014).
25          On appeal, Debtor does not contest that the second,4 third,
26
            4
27           Under Washington law, a trial court judgment is final
     for preclusion purposes during an appeal. State v. Harrison,
28                                                      (continued...)

                                       10
 1   and fourth elements were satisfied.    Instead, he focuses on
 2   whether the issues decided by the state court were identical to
 3   those required for a determination of § 523(a)(4) embezzlement.
 4        Section 523(a)(4).    Section 523(a)(4) prevents discharge
 5   “for fraud or defalcation while acting in a fiduciary capacity,
 6   embezzlement, or larceny.”    Federal law (and not state law)
 7   supplies the definition of embezzlement within the meaning of
 8   § 523(a)(4).    First Del. Life Ins. Co. v. Wada (In re Wada),
 9   210 B.R. 572, 576 (9th Cir. BAP 1997).    It is defined as “the
10   fraudulent appropriation of property by a person to whom such
11   property has been [e]ntrusted or into whose hands it has
12   lawfully come.”    Id. (citing Moore v. United States, 160 U.S.
13   268, 269 (1895)).    And it “requires a showing of wrongful
14   intent.”    See Bullock v. BankChampaign, N.A., 133 S. Ct. 1754,
15   1760 (2013).    “Embezzlement, thus, requires three elements:
16   (1) property rightfully in the possession of a nonowner;
17   (2) nonowner’s appropriation of the property to a use other than
18   which [it] was entrusted; and (3) circumstances indicating
19   fraud.”    Transamerica Commercial Fin. Corp. v. Littleton
20   (In re Littleton), 942 F.2d 551, 555 (9th Cir. 1991) (internal
21   quotation marks and citation omitted).
22        Debtor does not dispute on appeal that he was entrusted
23   with Banana’s funds.    Nor can he credibly dispute the state
24   court’s findings, now affirmed by the Washington court of
25   appeal, that he acted inappropriately as to the funds.    Thus,
26
27        4
           (...continued)
28   148 Wash. 2d 550, 561–62 (2003).

                                      11
 1   the only question on appeal relates to the third element:
 2   whether the circumstances indicated fraud and whether the state
 3   court judgment previously adjudicated this issue.
 4        Issue preclusion was available.     As noted, in determining
 5   whether issue preclusion was available in this
 6   nondischargeability action, we must compare the elements
 7   establishing liability in the state court judgment with the
 8   elements required for a § 523(a)(4) embezzlement judgment.
 9   Here, this task is superficially complicated because there is no
10   civil cause of action for embezzlement under Washington law.
11   Instead, under Washington law, embezzlement is a form of
12   criminal theft.   See In re Disciplinary Proceeding Against
13   Schwimmer, 153 Wash. 2d 752, 761 n.2 (2005) (citing RCW
14   § 9A.56.020(1)(a)).   Thus, the state court civil cause of action
15   labeled as an embezzlement claim was not based on RCW
16   § 9A.56.020(1)(a), a criminal statute.     Instead, embezzlement
17   referred imprecisely to a claim for breach of Debtor’s duties as
18   a director under RCW § 23B.08.300.
19        The Washington action conversion claim presents another
20   facial problem.   In Washington, “[c]onversion is the willful
21   interference with another's property without lawful
22   justification, resulting in the deprivation of the owner's right
23   to possession.”   Lowe v. Rowe, 173 Wash. App. 253, 263 (2012).
24   But conversion under Washington law does not require a wrongful
25   intent,   Damiano v. Lind, 163 Wash. App. 1017 (2011), as is
26   necessary for a § 523(a)(4) embezzlement determination.
27        Notwithstanding these differences, we conclude that the
28   substance of the state court’s findings and conclusions taken

                                     12
 1   together support a determination that the circumstances
 2   sufficiently indicated fraud and a wrongful intent as required
 3   for a § 523(a)(4) nondischargeability judgment.
 4        Debtor primarily asserts error because the state court did
 5   not make an explicit finding of fraud.    We acknowledge this
 6   point but find it inapposite.   The finding required for a
 7   determination of § 523(a)(4) embezzlement is that Debtor’s
 8   actions indicated fraud.   Such a determination is not synonymous
 9   with an intent to defraud as required under § 523(a)(2)(A).      And
10   even if it were, § 523(a)(2)(A) does not necessarily require a
11   misrepresentation as Debtor argues.    Recently in Husky Int’l
12   Elecs., Inc. v. Ritz, 136 S. Ct. 1581 (2016), the United States
13   Supreme Court clarified that misrepresentation is not an element
14   of actual fraud under § 523(a)(2)(A).    That is, actual fraud may
15   include a wider array of misconduct.    The record here
16   sufficiently establishes misconduct that falls within the
17   broader definition of actual fraud and even more plainly meets
18   the § 523(a)(4) requirement of indicia of fraud.
19        The state court, at summary judgment, found that Debtor
20   “admitted in [a] hearing that he personally received ‘millions’
21   of dollars from Banana when Banana made ‘nothing’” and that his
22   “behavior amounted to a deliberate looting or waste of funds
23   invested by [] Arnold in Banana.”    And it found, in effect, that
24   Debtor misidentified the Lower $450,000 finder’s fee in Banana’s
25   records by characterizing it as a consulting fee and that he did
26   this to hide the fee’s true nature from Arnold.
27        Then, in its findings of fact and conclusions of law, the
28   state court found (or we can extrapolate that it found) that:

                                     13
 1   C   Debtor acted in bad faith in a number of unauthorized
 2       transactions between Banana and A-Dot;
 3   C   There was no Banana business justification for the
 4       unauthorized transactions;
 5   C   There were no records justifying the $1,000,000 “consulting
 6       fee” from Banana to A-Dot or the $1,160,000 “consulting
 7        fee” from Banana to Debtor;
 8   C   There were no accruals shown on Banana’s financial records
 9       for the loans that Debtor caused Banana to make to A-Dot or
10       Lower, Debtor’s longtime friend;
11   C   Debtor engaged in several related-party transactions on
12       Banana’s behalf without corporate authorization;
13   C   Debtor engaged in self-dealing in a number of the
14       unauthorized transactions;
15   C   Debtor improperly caused Banana to make several payments to
16       himself;
17   C   Debtor used some of the funds from Banana for improper
18       personal expenditures and obligations;
19   C   Debtor breached his fiduciary duties to Banana;
20   C   Debtor never disclosed to Arnold any of the fees, loans,
21       and payments made from Banana, even though Arnold was a 15%
22       shareholder;
23   C   Debtor’s attempt to characterize the $1,000,000 payment
24       from Banana to A-Dot as a “licensing fee” was baseless
25       since Debtor had already assigned the intellectual property
26       allegedly licensed to Banana in exchange for stock; and
27   C   Aside from a minuscule amount ($50,000), neither of the two
28       loans totaling $2,585,000, which Debtor caused Banana to

                                      14
 1        make to A-Dot or Lower, were ever repaid and no interest
 2        was paid on either loan.
 3        As stated, these findings were affirmed by the Washington
 4   court of appeal and are now final.    Nothing in the state court’s
 5   findings suggests that Debtor’s acts were a mistake or
 6   innocuous.   And Debtor’s actions were not a one time occurrence;
 7   numerous transactions transferred substantial amounts of
 8   Banana’s money to A-Dot — and then mostly to Debtor — during the
 9   time that Arnold invested money in Banana, all without
10   appropriate Banana business justification.   These facts indicate
11   fraud and evidence wrongful intent.
12        Debtor finally contends that “[t]he Bankruptcy Court was
13   forced to admit during oral argument, [that] there were no
14   findings regarding the ‘subjective intentions’ of [Debtor],
15   specifically such intentions that demonstrated he intended to
16   harm Banana or Arnold.”   The record shows, however, that the
17   bankruptcy court made this comment when discussing Arnold's
18   § 523(a)(6) claim.   Section 523(a)(6) requires willful injury, a
19   subjective intent to injure.    Kawaauhau v. Geiger, 523 U.S. 57
20   (1998) and Petralia v. Jercich (In re Jercich), 238 F.3d 1202
21   (9th Cir. 2001).   There is no authority requiring the same state
22   of mind for § 523(a)(4) embezzlement.    Thus, Debtor’s reference
23   to Geiger — a § 523(a)(6) case — is inapposite.
24        Based on the foregoing, granting summary judgment of
25   nondischargeability based on § 523(a)(4) embezzlement is proper.
26                               CONCLUSION
27        For the reasons stated, we AFFIRM.
28

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