FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

ALL FUNDS IN BLUFFVIEW

SECURITIES ACCOUNTS, LP,

Defendant,

v.

ANGELA MARIA GOMEZ AGUILAR;

ENRIQUE FAUSTINO AGUILAR

GOMEZ; GRUPO INTERNACIONAL DE

ASESORES S.A.,

Claimants-Appellants.

No. 13-55155

D.C. No.

2:11-cv-05472-

AHM-AGR

OPINION

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

February 10, 2015—Pasadena, California

Filed April 10, 2015

Before: Consuelo M. Callahan, Paul J. Watford,

and John B. Owens, Circuit Judges.
2 UNITED STATES V. AGUILAR

SUMMARY*

Default Judgment

The panel affirmed the district court’s denial of

claimants’ Fed. R. Civ. 60(b)(1) motion to set aside a default

judgment for forfeiture of funds held in a brokerage account.

The panel held that courts reviewing a Fed. R. Civ. P. 60(b)

motion to set aside a default judgment must apply the factors

outlined in Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)

(per curiam), to ensure that the “extreme circumstances”

policy is recognized, but a district court is not required to

articulate on the record particular “extreme circumstances”

before it denies the motion. Applying the Falk factors, the

panel held that claimants had no meritorious defense, and

concluded that the district court did not abuse its discretion in

denying their Rule 60(b)(1) motion.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. AGUILAR 3

COUNSEL

Fernando L. Aenlle-Rocha (argued) and Arash Sadat, White

& Case LLP, Los Angeles, California, for ClaimantsAppellants.

Jennifer Resnik (argued) and Robert E. Dugdale, Chief,

Criminal Division, Assistant United States Attorneys, and

André Birotte Jr., United States Attorney, Los Angeles,

California, for Plaintiff-Appellee.

OPINION

OWENS, Circuit Judge:

Angela Maria Gomez Aguilar (“Angela”), Enrique

Faustino Aguilar Gomez (“Enrique Jr.”), and Grupo

Internacional de Asesores S.A. (“Grupo”) (collectively the

“Appellants”) appeal the district court’s denial of their

Federal Rule of Civil Procedure 60(b)(1) motion to set aside

a default judgment for forfeiture. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.1

1 Appellants and the government have both moved for judicial notice of

a number of documents. We grant the government’s motion in full. See

United States ex rel. RobinsonRancheriaCitizensCouncil v. Borneo, Inc.,

971 F.2d 244, 248 (9th Cir. 1992) (“[W]e may take notice of proceedings

in other courts, both within and without the federal judicial system, if

those proceedings have a direct relation to matters at issue.” (internal

quotation marks omitted)). We grant Appellants’ motion in part as to the

four documents from the related criminal case, see id., and deny it in part

as to the FBI Form 302 memorandum, see In re Citric Acid Litig.,

191 F.3d 1090, 1105 (9th Cir. 1999) (declining to resolve dispute over
4 UNITED STATES V. AGUILAR

I. FACTS AND PROCEDURAL HISTORY

A. Preliminary Proceedings, Criminal Trial, and

Dismissal

Angela and her husband Enrique Faustino Aguilar

Noriega (“Enrique Sr.”) were stockholders of and controlled

Grupo, a Panamanian corporation. In December 2008, as part

of a long-term Foreign Corrupt Practices Act (“FCPA”)

investigation, the government seized approximately $2.4

million held at one time in Grupo’s name in a brokerage

account. The government believed that illegal payments to

Mexican officials had been funneled through Grupo’s

account. In June 2009, the government, Angela, and Enrique

Sr. entered into a stipulation to delay the filing of a civil

forfeiture complaint against the seized funds pending the

outcome of the criminal investigation.

In August 2010, agents arrested Angela while she was

traveling in Texas for business. An initial indictment was

filed, with a superseding indictment returned shortly

thereafter. It charged Angela with one count of conspiracy to

commit money laundering and one count of money

laundering.

2

It also charged two individuals and their

American company with conspiracy to violate the FCPA and

five substantive FCPA violations. All charges concerned the

whether “an FBI investigative report” was a proper subject of judicial

notice because it “would not change the result in this case”).

2 The superseding indictment also charged Enrique Sr. with various

related crimes (including conspiracy to violate the FCPA and launder

funds), but he remained a fugitive during the relevant time period.
UNITED STATES V. AGUILAR 5

alleged bribes to Mexican officials that the American firm

funneled through Grupo.

Before and during trial, the defendants repeatedly moved

to dismiss the superseding indictment for prosecutorial

misconduct. Shortly before jury deliberations began, two of

Angela’s co-defendants again moved to dismiss the

superseding indictment for prosecutorial misconduct (Angela

did not join this motion). On May 10, 2011, the jury found

Angela and her co-defendants guilty.

3 On June 3, 2011,

Angela and the government agreed, among other things, that

she would not contest any civil or criminal forfeiture

proceedings, and would take the steps necessary to pass clear

title for the Grupo brokerage account to the United States. 

She also agreed that the funds in the brokerage account could

be forfeited. In exchange for these concessions, the

government agreed to recommend a sentence of time served

and three years of supervised release. The district court

accepted the agreement, and Angela returned to Mexico.

Despite the guilty verdict, the co-defendants’ misconduct

motion remained pending. After an extensive hearing and

significant briefing, the district court concluded in a lengthy

order on December 1, 2011 that the government had engaged

in significant misconduct, ranging from permitting an agent

to testify falsely before the grand jury to “recklessly fail[ing]

to comply with its discovery obligations.” The district court

vacated the co-defendants’ convictions and dismissed the

superseding indictment. The government filed a notice of

appeal, but ultimately declined to challenge the December 1

3 The district court granted Angela’s Federal Rule ofCriminal Procedure

29 motion as to the substantive money laundering count.
6 UNITED STATES V. AGUILAR

order. The district court granted Angela’s subsequent

unopposed motion to vacate her conviction.

B. The Civil Forfeiture Litigation

On June 30, 2011, the government filed a civil complaint

seeking forfeiture of the Grupo funds in the brokerage

account. In November 2011, the clerk entered a default

against Angela, Enrique Sr., Grupo, and all other potential

claimants. After correspondence with counsel for Angela,

Enrique Sr., and Grupo, the government filed a motion for

entry of default judgment, which Angela, Enrique Jr. (the son

of Angela and Enrique Sr.), and Grupo opposed. Following

a hearing, the district court granted the government’s motion

for entry of default judgment. The court then denied

Appellants’ motion to set aside the default judgment under

Rule 60(b)(1).

Under Rule 60(b)(1), a court may set aside a default

judgment for “mistake, inadvertence, surprise, or excusable

neglect.” Applying our decision in United States v. Signed

Personal Check No. 730 of Yubran S. Mesle, 615 F.3d 1085,

1091 (9th Cir. 2010), the district court listed the three

disjunctive factors used to determine if “excusable neglect”

could permit setting aside the Appellants’ default: “(1)

whether the party seeking to set aside the default engaged in

culpable conduct that led to the default; (2) whether it had no

meritorious defense; or (3) whether reopening the default

judgment would prejudice the other party.”4 After concluding

that Appellants had acted culpably and Enrique Jr. lacked

4 Because the government did not contest prejudice, the district court did

not address this factor.
UNITED STATES V. AGUILAR 7

standing to contest the forfeiture,5the district court examined

the two potential defenses that Angela and Grupo had

asserted. It rejected the innocent owner defense for Angela,

as she was a shareholder in Grupo, but not an owner of the

funds.6In the alternative, the district court concluded that

any interest she had was “after-acquired” and thus did not fall

within 18 U.S.C. § 983(d)(2). The district court also rejected

the arguments of Angela and Grupo that the civil complaint

failed to state a claim, as the allegations were sufficient to

meet the government’s burden at this initial stage.

Because the defendants could not allege a meritorious

defense, the district court refused to set aside the default

judgment. The court did not specifically articulate any

“extreme circumstances” justifying entry of default and

default judgment.

II. STANDARD OF REVIEW

A district court’s denial of a motion to set aside a default

judgment under Rule 60(b)(1) is reviewed for abuse of

discretion. Brandt v. Am. Bankers Ins. Co. of Fla., 653 F.3d

1108, 1110 (9th Cir. 2011). “[T]he first step of our abuse of

discretion test is to determine de novo whether the trial court

identified the correct legal rule to apply to the relief

requested. . . . [T]he second step of our abuse of discretion

test is to determine whether the trial court’s application of the

5 We omit the district court’s discussion of both issues because we need

not reach either to resolve this case.

6 No one asserted that Grupo (which funneled the payments to the

Mexican officials) was an “innocent owner” of the contested funds, so we

do not address that issue here.
8 UNITED STATES V. AGUILAR

correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or

(3) without ‘support in inferences that may be drawn from the

facts in the record.’” United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc) (quoting Anderson

v. City of Bessemer City, 470 U.S. 564, 577 (1985)).

III. DISCUSSION

When a defendant seeks relief under Rule 60(b)(1) based

upon “excusable neglect,” “a court must consider[ ] three

factors: (1) whether [the party seeking to set aside the default]

engaged in culpable conduct that led to the default; (2)

whether [it] had [no] meritorious defense; or (3) whether

reopening the default judgment would prejudice the other

party.” Mesle, 615 F.3d at 1091 (alterations in original)

(internal quotation marks omitted). “This standard . . . is

disjunctive, such that a finding that any one of these factors

is true is sufficient reason for the district court to refuse to set

aside the default.” Id. Courts often refer to these factors as

the “Falk factors” because they were first articulated in our

decision in Falk v. Allen, 739 F.2d 461, 463 (9th Cir. 1984)

(per curiam).

A. “Extreme Circumstances”

Before addressing the Falk factors, we must decide if our

precedent requires a district court to state why a particular

case presents “extreme circumstances” that would permit a

default judgment to stand, even when it faithfully applies the

Falk factors. Appellants rely heavily on language in Mesle to

argue that the failure to do so mandates automatic reversal. 

To answer this question, we start with the origin of the phrase

“extreme circumstances.”
UNITED STATES V. AGUILAR 9

In Falk, we articulated “two policy concerns” that guide

our review of Rule 60(b) motions in the default judgment

context. The first was that Rule 60(b) is “remedial” and

“must be liberally applied.” The second was that a default

judgment “is a drastic step appropriate only in extreme

circumstances; a case should, whenever possible, be decided

on the merits.” Id. at 463. To ensure that we carried out

these two policies, we adopted the now familiar three-factor

test when “considering a motion to reopen a default judgment

under Rule 60(b).” Id. (citing Gross v. Stereo Component

Sys., 700 F.2d 120, 122 (3d Cir. 1983)).

The “extreme circumstances” policy language was

intended to remind courts that default judgments are the

exception, not the norm, and should be viewed with great

suspicion. When courts apply these factors, they must keep

this policy concern in mind. However, nothing in Falk (or

any other published decision) requires courts, in addition to

applying these three factors, to articulate why a particular

case presents “extreme circumstances.” Our court has

applied the Falk factors many times to ensure that default

judgments are entered only in extreme circumstances, but has

never imposed the “magic words” requirement that

Appellants seek.7 As we have explained: “The Falk factors

7

See, e.g., Brandt, 653 F.3d at 1111–12; Emp. Painters’ Trust v. Ethan

Enters., Inc., 480 F.3d 993, 1000–01 (9th Cir. 2007); Franchise Holding

II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 925–27 (9th Cir.

2004); Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753–54 (9th Cir.

2002); Speiser, Krause &Madole P.C. v. Ortiz, 271 F.3d 884, 886–87 (9th

Cir. 2001); TCI Grp. Life Ins. Plan v. Knoebber, 244 F.3d 691, 696–700

(9th Cir. 2001); Richmark Corp. v. Timber Falling Consultants, Inc.,

937 F.2d 1444, 1448–49 (9th Cir. 1991); Alan Neuman Prods., Inc. v.

Albright, 862 F.2d 1388, 1391–92 (9th Cir. 1988); Cassidy v. Tenorio,

856 F.2d 1412, 1415–17 (9th Cir. 1988); Direct Mail Specialists, Inc. v.
10 UNITED STATES V. AGUILAR

quite effectively capture in the default judgment context the

very equitable factors involved in the balance between the

competing interests in assuring substantial justice and in

protecting the finality of judgments that underlies Rule

60(b)(1).” TCI Grp., 244 F.3d at 696. In other words,

faithful application of the Falk factors ensures that default

judgments will stand only in extreme circumstances. There

is no need to require district courts, in addition to applying

these factors, to explain why a particular case is “extreme.”

A rule to the contrary would make little sense. For

example, if a claimant has no meritorious defense to a

forfeiture complaint (as is the case here), then it is unclear

what a further inquiry into “extreme circumstances” would

accomplish: “If . . . the defendant presents no meritorious

defense, then nothing but pointless delay can result from

reopening the judgment.” Id. at 697; see also Haw.

Carpenters’ Trust Funds v. Stone, 794 F.2d 508, 513 (9th Cir.

1986) (“To permit reopening of the case in the absence of

some showing of a meritorious defense would cause needless

delay and expense to the parties and court system.”). A

complete lack of meritorious defenses itself constitutes an

extreme circumstance.

A straightforward reading of Mesle confirms this

conclusion. In Mesle, we reversed a district court’s refusal to

Eclat Computerized Techs., Inc., 840 F.2d 685, 690 (9th Cir. 1988);

Meadows v. Dominican Republic, 817 F.2d 517, 521–22 (9th Cir. 1987);

Benny v. Pipes, 799 F.2d 489, 494 (9th Cir. 1986); Pena v. Seguros La

Comercial, S.A., 770 F.2d 811, 814–15 (9th Cir. 1985).
UNITED STATES V. AGUILAR 11

set aside entry of default against the pro se claimant.8 We

explained that the district court “ignored our oft stated

commitment to deciding cases on the merits whenever

possible, and held Mesle, a layman working without the aid

of an attorney, to the same standards to which we hold

sophisticated parties acting with the benefit of legal

representation.” 615 F.3d at 1091. We faulted the district

court for “turning the court’s attention to everyday oversights

rather than to whether there were any extreme

circumstances.” Id. We did not hold that the failure to recite

the words “extreme circumstances” automaticallyqualifies as

a reversible abuse of discretion. Rather, we simply held that,

in applying the Falk factors, the district court “failed to apply

this consideration when evaluating Mesle’s conduct.” Id. at

1093. As we put it another way in the conclusion, “[m]ore

generally,” the district court “engaged in its analysis without

demonstrating a proper awareness that ‘judgment by default

is a drastic step appropriate only in extreme circumstances; a

case should, whenever possible, be decided on the merits.’”

Id. at 1095 (quoting Falk, 739 F.2d at 463).

We confirm our three decades of precedent holding that

courts reviewing a motion to set aside a default judgment

must apply the Falk factors to ensure that the “extreme

circumstances” policy is recognized. However, nothing in

Rule 60(b) nor our precedent requires a district court to

articulate on the record particular “extreme circumstances”

before it denies a motion to set aside a default judgment.

 

8

 The standard for determining whether to set aside entry of default for

“good cause” under Rule 55(c) “is the same as is used to determine

whether a default judgment should be set aside under Rule 60(b).” Mesle,

615 F.3d at 1091. This factual difference is thus immaterial to our

analysis.
12 UNITED STATES V. AGUILAR

B. Meritorious Defense

We now apply the Falk factors. A district court may deny

relief under Rule 60(b)(1) when the moving party has failed

to show that she has a “meritorious defense.” “All that is

necessary to satisfy the ‘meritorious defense’ requirement is

to allege sufficient facts that, if true, would constitute a

defense: ‘the question whether the factual allegation [i]s true’

is not to be determined by the court when it decides the

motion to set aside the default. Rather, that question ‘would

be the subject of the later litigation.’” Mesle, 615 F.3d at

1094 (alteration in original) (citation omitted) (quoting TCI

Grp., 244 F.3d at 700). This approach is consistent with the

principle that “the burden on a party seeking to vacate a

default judgment is not extraordinarily heavy.” TCI Grp.,

244 F.3d at 700. Appellants contend that they have two

potentially meritorious defenses: (1) Angela and Enrique Jr.

argue that they are innocent owners of the funds in the Grupo

Account; and (2) all three Appellants argue that the

government’s complaint fails to state a claim.

We start with Angela and Enrique Jr.’s innocent owner

defense. Under 18 U.S.C. § 983(d)(1), “[a]n innocent

owner’s interest in property shall not be forfeited under any

civil forfeiture statute.” Angela and Enrique Jr. argue that

this provision applies because they were unaware of the

alleged bribery scheme. Even if they were in the dark, the

problem for Angela and Enrique Jr. is that they lack “an

ownership interest in the specific property sought to be

forfeited,” 18 U.S.C. § 983(d)(6)(A). As the district court

recognized, there is “no allegation that Angela [and Enrique

Jr.] personally owned any of the funds” in the Grupo Account

because—“as a shareholder”—neither “hold[s] legal title to

any of [Grupo’s] assets.” See also Dole Food Co. v.
UNITED STATES V. AGUILAR 13

Patrickson, 538 U.S. 468, 474–75 (2003) (“A basic tenet of

American corporate law is that the corporation and its

shareholders are distinct entities. An individual shareholder,

by virtue of his ownership of shares, does not own the

corporation’s assets . . . .” (citations omitted)); United States

v. Bennett, 621 F.3d 1131, 1136 (9th Cir. 2010) (“As early as

1926, the Supreme Court recognized that ‘[t]he owner of the

shares of stock in a company is not the owner of the

corporation’s property.’ While the shareholder has a right to

share in corporate dividends, ‘he does not own the corporate

property.’” (alteration in original) (citation omitted) (quoting

R.I. Hosp. Trust Co. v. Doughton, 270 U.S. 69, 81 (1926))).

Angela and Enrique Jr.’s only response to this claim is

that Panamanian, not American, corporate law governs

whether they have a personal ownership interest in the Grupo

Account. However, Angela and Enrique Jr. have failed to

cite any Panamanian statutes or cases that show how

Panamanian corporate law differs from American corporate

law in this context, either here or before the district court. As

a result, though the burden of alleging a potentially

meritorious defense is “minimal,” Mesle, 615 F.3d at 1094,

we will not “manufacture” this argument for them,

“particularly when, as here, a host of other issues are

presented for review,” Greenwood v. FAA, 28 F.3d 971, 977

(9th Cir. 1994).

We next consider Appellants’ joint defense that the

government’s complaint fails to state a claim. “In rem

forfeitures are conducted in accordance with the

Supplemental Rules for Certain Admiralty and Maritime

Claims.” United States v. Real Prop. at 2659 Roundhill Dr.,

194 F.3d 1020, 1024 n.3 (9th Cir. 1999). Under

Supplemental Rule G(2)(f), the government’s complaint must
14 UNITED STATES V. AGUILAR

“state sufficiently detailed facts to support a reasonable belief

that the government will be able to meet its burden of proof

at trial.” Few courts have interpreted Supplemental Rule

G(2)(f), but the advisory committee’s note indicates that the

language is designed to codify the “standard” that “has

evolved” from case law interpreting its predecessor—

Supplemental Rule E(2)(a)—and “carr[y] this forfeiture case

law forward without change.” Supplemental Rule E(2)(a)

requires that a complaint in an admiralty action “state the

circumstances from which the claim arises with such

particularity that the defendant or claimant will be able,

without moving for a more definite statement, to commence

an investigation of the facts and to frame a responsive

pleading.”

The leading case on Supplemental Rule E(2)(a)—again as

identified by the advisory committee’s note to Supplemental

Rule G(2)—is United States v. Mondragon, 313 F.3d 862 (4th

Cir. 2002). See Gang Luan v. United States, 722 F.3d 388,

398 & n.14 (D.C. Cir. 2013) (interpreting the advisory

committee’s note as “explaining that Supplemental Rule

G(2)(f) was intended to codify the interpretation of Rule

E(2)(a) set out in Mondragon”). In Mondragon, the Fourth

Circuit was clear that Supplemental Rule E(2)(a) does not

articulate an onerous standard. Looking to the text of the

rule, it held that a complaint must “state[] the circumstances

giving rise to the forfeiture claim with sufficient particularity

that [the claimant] [can] commence[] a meaningful

investigation of the facts and draft[] a responsive pleading”

and “permit a reasonable belief for pleading purposes that

[the property in question] . . . [is] subject to forfeiture.” Id. at

866-67.
UNITED STATES V. AGUILAR 15

Though we have held that this is a higher standard than

“notice pleading,” see United States v. $191,910.00 in U.S.

Currency, 16 F.3d 1051, 1068 (9th Cir. 1994), the

government’s complaint meets this low bar. In substance, the

government’s complaint mirrors the superseding indictment. 

It sets out the various payments from Lindsey Manufacturing

to Grupo, describes the various ways in which Enrique Sr.

bribed Mexican officials, and then details the various

contracts that Lindsey Manufacturing obtained as a result of

these bribes. Though Appellants are correct that there are

potential issues with the government’s case—including some

that the district court explicitly identified in its December 1

order—the facts detailed in the complaint “permit a

reasonable belief” that the Grupo Account is subject to

forfeiture and allow Appellants to “draft[] a responsive

pleading.” The Appellants’ detailed responses to the

government’s allegations in their briefing here and before the

district court bear out the latter point.

Even if, as the Appellants argue, the government may not

be able to show all of the claimed funds are tainted and

subject to forfeiture, this does not render the complaint

deficient. We have consistently instructed district courts to

wait until trial to adjudicate arguments that a portion of the

property that the government claims is not subject to

forfeiture. See, e.g., United States v. Two Tracts of Land in

Cascade Cnty., 5 F.3d 1360, 1362 (9th Cir. 1993) (holding

that “a triable issue of fact remain[ed]” as to whether a

“fractional interest” of the claimant’s home was not subject

to forfeiture); United States v. Real Prop. Located at Section

18, 976 F.2d 515, 517-18 (9th Cir. 1992) (remanding to allow

the claimant to “hav[e] her day in court” concerning her

argument that part of the seized lot was not subject to

forfeiture); see also United States v. One Parcel of Real
16 UNITED STATES V. AGUILAR

Prop., 921 F.2d 370, 375 (1st Cir. 1990) (“Whether none, all,

or only a portion of the defendant property is forfeitable is not

determined at the pleadings stage, but at trial.”). The

corollary of this instruction is that the government need not

show that all of the claimed property is tainted to satisfy

Supplemental Rule G(2)(f). Similarly, there is no merit to

Appellants’ argument that the government’s complaint is

legally insufficient because it relies on the lowest

intermediate balance rule. Since tracing is not at issue at the

motion to dismiss stage, the government’s current legal

theory is irrelevant. As we have said before in this context,

“the government is not required to prove its case simply to

get in the courthouse door.” United States v. Real Prop.

Located at 5208 Los Franciscos Way, 385 F.3d 1187, 1193

(9th Cir. 2004).

As a result, Appellants have no meritorious defense. 

Because this was “sufficient reason for the district court to

refuse to set aside the default,” Mesle, 615 F.3d at 1091, we

decline to reach the other two Falk factors.9

IV. CONCLUSION

In sum, the district court did not err by failing to articulate

why this case presents “extreme circumstances.” Though

9 We also decline to reach the question of Enrique Jr.’s standing. See

Noel v. Hall, 568 F.3d 743, 748 (9th Cir. 2009) (“[W]e need not reach the

question of the precise scope of statutory standing; such standing, unlike

constitutional standing, is not jurisdictional. We can thus bypass the issue

when, as is the case here, the plaintiff’s claims would fail anyway.”

(citation omitted)); see also United States v. $11,500.00 in U.S. Currency,

710 F.3d 1006, 1012–13 & n.2 (9thCir. 2013) (distinguishing compliance

with the “requirements of forfeiture claim rules” from the requirements of

“Article III standing” (alterations omitted)).
UNITED STATES V. AGUILAR 17

district courts should be mindful that default judgments are

disfavored when applying the Falk factors to Rule 60(b)(1)

motions, no magic words are required. In the absence of a

meritorious defense, we conclude that the district court did

not abuse its discretion in denying Appellants’ Rule 60(b)(1)

motion.

AFFIRMED.