Reply Brief — Natoya Cunningham, Petitioner v. Florida

No. 23-5171

IN THE

Supreme Court of the United States

NATOYA CUNNINGHAM,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA DISTRICT COURT OF APPEAL,

FOURTH DISTRICT

REPLY BRIEF FOR PETITIONER

CAREY HAUGHWOUT

Public Defender

PAUL EDWARD PETILLO

Assistant Public

Defender

OFFICE OF THE PUBLIC

DEFENDER

FIFTEENTH JUDICIAL

CIRCUIT OF FLORIDA

421 Third Street

West Palm Beach, FL 33401

SETH P. WAXMAN

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

THOMAS G. SPRANKLING

WILMER CUTLER PICKERING

HALE AND DORR LLP

ALEX W. MILLER

2600 El Camino Real

WILMER CUTLER PICKERING Suite 400

HALE AND DORR LLP

Palo Alto, CA 94306

7 World Trade Center

LEAH FUGERE*

250 Greenwich Street

WILMER CUTLER PICKERING

New York, NY 10007

HALE AND DORR LLP

350 S. Grand Avenue

Suite 2400

Los Angeles, CA 90071

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................... ii

ARGUMENT ....................................................................... 2

I.

THIS COURT HAS JURISDICTION UNDER

28 U.S.C. § 1257(a) ........................................................ 2

II. THE COURT SHOULD OVERRULE WILLIAMS ............ 5

A. Egregiously Wrong............................................... 6

B. Significant Negative Consequences ................... 9

C. Reliance ................................................................ 10

CONCLUSION ................................................................. 12

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Alleyne v. United States, 570 U.S. 99 (2013) ................... 5

American Cyanamid Co. v. Roy, 466 So. 2d 1079

(Fla. Dist. Ct. App. 1984)............................................. 4

Ballew v. Georgia, 435 U.S. 223 (1978) ............................. 7

Bosse v. Oklahoma, 580 U.S. 1 (2016) .............................. 3

Callendar v. State, 181 So. 2d 529 (Fla. 1966) ................. 2

Colgrove v. Battin, 413 U.S. 149 (1973) ............................ 9

DeBiasi v. Snaith, 732 So. 2d 14 (Fla. Dist. Ct.

App. 1999) ...................................................................... 4

Gotthilf v. Sills, 375 U.S. 79 (1963) ................................... 4

Ibanez v. Florida Department of Business &

Professional Regulation, 512 U.S. 136

(1994) .............................................................................. 2

Khorrami v. Arizona, 143 S.Ct. 22 (2022).............. 1, 8, 10

KPMG LLP v. Cocchi, 565 U.S. 18 (2011) ....................... 3

Local 174 v. Lucas Flour Co., 369 U.S. 95 (1962) ..........4-5

Market Street Railway Co. v. Railroad Commission of State of California, 324 U.S. 548

(1945) ............................................................................. 3

Nash v. Florida Industrial Commission, 389

U.S. 235 (1967) ...........................................................1-4

Persaud v. State, 838 So. 2d 529 (Fla. 2003) .................... 2

Ramos v. Louisiana, 140 S.Ct. 1390

(2020) ........................................................ 1-2, 6-7, 10-11

iii

TABLE OF AUTHORITIES—Continued

Page(s)

State v. Johnson, 616 So. 2d 1 (Fla. 1993) ........................ 5

Stogner v. California, 539 U.S. 607 (2003)....................... 9

Webster v. United States, 667 F.3d 826 (7th Cir.

2011) ............................................................................... 5

Whitaker

v.

Jacksonville

Expressway

Authority, 131 So. 2d 22 (Fla. Dist. Ct. App.

1961) ............................................................................... 3

Williams v. Florida, 399 U.S. 78 (1970) ................. 2, 6, 10

DOCKETED CASES

Ramos v. Louisiana, No. 18-5924 (U.S.) ......................... 11

STATUTORY PROVISIONS

28 U.S.C. § 1257 ............................................................... 2, 4

OTHER AUTHORITIES

American Bar Association, Principles for Juries

and Jury Trials (2005), https://www.

uscourts.gov/sites/default/files/aba_principles

_for_juries_and_jury_trials_2005.pdf ................... 7, 9

Fay, Nicolas, et al., Group Discussion as

Interactive Dialogue or as Serial

Monologue: The Influence of Group Size, 11

Psychol. Sci. 481 (2000) ................................................ 8

Florida Office of the State Courts Administrator, FY 2021-22 Statistical Reference Guide

(2023), https://tinyurl.com/22tn3z32......................... 10

Guerra, Alice, et al., Accuracy of Verdicts, 28

Sup. Ct. Econ. Rev. 221 (2020) ................................... 8

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Mukhopadhaya, Koushik, Jury Size and the

Free Rider Problem, 19 J. L. Econ. & Org.

24 (2003) ......................................................................... 8

Parisi, Francesco & Barbara Luppi, Jury Size

and the Hung-Jury Paradox, 42 J. Legal

Stud. 399 (2013) ............................................................ 8

Rose, Mary R., et al., Jury Pool Underrepresentation in the Modern Era: Evidence from

Federal Courts, 15 J. Empirical Legal Stud.

2 (2018) ........................................................................... 8

Saks, Michael J. & Molly Weighner Marti, A

Meta-Analysis of the Effects of Jury Size,

21 Law & Hum. Behav. 451 (1997) ............................. 7

Waller, Bridget M, et al., Twelve (Not So) Angry

Men: Managing Conversational Group Size

Increases Perceived Contribution by

Decision Makers, 14 Grp. Processes &

Intergrp. Rels. 835 (2011)............................................ 8

The Sixth Amendment’s “promise of a jury trial” is

“fundamental to the American scheme of justice.” Ramos v. Louisiana, 140 S.Ct. 1390, 1395 (2020). The scope

of that right is controlled by “what the term ‘trial by an

impartial jury’ … meant at the time of the Sixth Amendment’s adoption.” Id. Tellingly, Florida does not dispute

that “a mountain of evidence suggests that, both at the

time of the Amendment’s adoption and for most of our

Nation’s history, the right to a trial by jury for serious

criminal offenses meant a trial before 12 members of the

community.” Khorrami v. Arizona, 143 S.Ct. 22, 23

(2022) (Gorsuch, J., dissenting). To the contrary, Florida

acknowledges that the common law did impose a “12person jury requirement.” Opp.7-8.

Florida instead seeks to distract from the fundamental right at stake by raising a novel vehicle issue and

highlighting the one-time cost of correcting the Williams error. As to the former, Florida argues that Ms.

Cunningham failed to exhaust her options for state court

review because she did not ask the Florida Court of Appeal to certify the question presented to the Florida Supreme Court. But this Court already addressed that argument—and ruled against Florida’s position—nearly

sixty years ago. See Nash v. Florida Indus. Comm’n,

389 U.S. 235, 237 & n.1 (1967). Florida’s suggestion that

this Court should sub silentio overrule Nash based on a

ministerial change to the state Rules of Appellate Procedure is meritless. Indeed, this Court granted review

of several Florida Court of Appeal decisions even after

the tweak to Florida’s rules.1

1

This Court has called for a response in a half-dozen other

cases raising the same question presented. See Nos. 23-5173, 235455, 23-5567, 23-5570, 23-5575, 23-5579. This case should at least be

held pending resolution of those other petitions.

2

As to Florida’s latter argument—i.e., the fact that

overruling Williams v. Florida, 399 U.S. 78 (1970),

would require a slice of cases to be retried in a half-dozen

States—this is the “usual” consequence of adopting a

“new rule[] of criminal procedure,” Ramos, 140 S.Ct. at

1406. This Court vacated “nearly 800 decisions” following Booker v. United States and “[s]imilar consequences

likely followed” other landmark Confrontation Clause

and Fourth Amendment rulings. Id. Here, nearly 50

million Americans in the six affected States are currently being denied their right to a 12-person jury in

nearly all circumstances. “[T]he competing interests” of

a handful of States cannot outweigh “the reliance the

American people place in their constitutionally protected liberties.” Id. at 1408 (plurality op.).

ARGUMENT

I.

THIS COURT HAS JURISDICTION UNDER 28 U.S.C.

§ 1257(a)

“The Florida Supreme Court … [has] decided that it

lacks jurisdiction by appeal to consider per curiam” rulings from the Florida Court of Appeal. Nash, 389 U.S.

at 237 & n.1; accord Persaud v. State, 838 So. 2d 529, 531532 (Fla. 2003) (similar). The Court of Appeal’s per curiam summary affirmance thus “marked the complete

exhaustion of Florida’s appellate process” for Ms. Cunningham and “entitled [her] to seek relief in the Supreme

Court of the United States.” Callendar v. State, 181 So.

2d 529, 532 (Fla. 1966), cited in Nash, 389 U.S. at 237 n.1.

This Court has granted certiorari to the Florida Court of

Appeal under similar circumstances and on numerous

occasions. See, e.g., Ibanez v. Florida Dep’t of Bus. &

Prof’l Regul., 512 U.S. 136, 142 (1994) (granting certiorari when the “Court of Appeal ... affirmed the Board’s

final order per curiam without opinion,” leaving “no

3

right of review in the Florida Supreme Court”); KPMG

LLP v. Cocchi, 565 U.S. 18, 22 (2011) (similar).

Florida largely ignores this case law. Instead, it argues that Ms. Cunningham has lost the opportunity to

seek this Court’s review because she failed to ask the

Florida Court of Appeal to “certif[y] its decision ‘to be of

great public importance.’” Opp.5. But this Court already rejected this argument in Nash, where it acknowledged that Florida “litigants may file a suggestion that

a particular question be certified,” but nonetheless concluded that Florida law did not provide litigants with

“any right to call upon the State Supreme Court for review.” 389 U.S. at 237 n.1. As the Florida state-court

case Nash cited explains, this is because “[i]nherent in

every decision rendered by a District Court of Appeal is

the implication, unless otherwise stated or contrary action taken, that it does not pass upon a question of great

public interest.” Whitaker v. Jacksonville Expressway

Auth., 131 So. 2d 22, 23-24 (Fla. Dist. Ct. App. 1961). In

other words, under Florida law, a request for certification is akin to a request for rehearing. And “finality is

not deferred by the existence of a latent power in the

rendering court to reopen or revise its judgment” because “[s]uch latent powers of state courts over their

judgments are too variable and indeterminate to serve

as tests of [this Court’s] jurisdiction.” Market St. Ry. Co.

v. Railroad Comm’n, 324 U.S. 548, 551-552 (1945).2

2

That Ms. Cunningham was not required to seek certification

makes particular sense under the facts of this case. The question

presented could not possibly have been “of great public importance”

in a proceeding before the Florida Supreme Court, which remains

bound by Williams. See Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (“It

is this Court’s prerogative alone to overrule one of its precedents.”).

4

Florida also wrongly contends that—when Nash

was decided—“there was no mechanism under Florida

law for a litigant to request certification.” Opp.5 n.2.

Again, Nash itself recognized that a litigant had the ability to “file a suggestion” that certification was appropriate. 389 U.S. at 327 n.1. Numerous cases bear that out.

See, e.g., American Cyanamid Co. v. Roy, 466 So. 2d

1079, 1085 (Fla. Dist. Ct. App. 1984) (denying “petition

for rehearing and suggestion of question of great public

importance”).

Florida tries to circumvent Nash on the grounds

that Florida’s Supreme Court made a minor amendment

to its appellate rules that codified a litigant’s ability to

“move for certification.” Opp.5 n.2. But Florida points

to nothing suggesting the State intended such a ministerial change to have substantive implications. In reality,

“the purpose of the new language ... was not to provide

for a different type of reconsideration, but rather to permit a party to move for certification without being first

required to move for rehearing.” DeBiasi v. Snaith, 732

So. 2d 14, 16 (Fla. Dist. Ct. App. 1999). The Florida Supreme Court accordingly had no occasion to reconsider

the principle that underlay the Nash ruling—i.e., that a

certification request is akin to requesting rehearing.

Florida’s authority is not to the contrary. The two

cases Florida cites both dealt with the laws of other

States and predated Nash (meaning Nash necessarily

took them into consideration before weighing in on Florida law). Gotthilf v. Sills, for example, turned on the peculiarities of New York’s procedure for certifying interlocutory appeals of nonfinal orders. 375 U.S. 79, 80

(1963). Because Section 1257 accounts for “the structure

of [the relevant state’s] judicial system” and “the particularized provisions of [that state’s] laws,” Local 174 v.

Lucas Flour Co., 369 U.S. 95, 98 (1962), Gotthilf’s

5

analysis of New York law says nothing about Florida

law. Similarly, Gorman v. Washington University dealt

with a Missouri law that “expressly conferred the right

to an en banc rehearing by the Supreme Court of Missouri.” Local 174, 369 U.S. at 99. Here, there was no

rehearing “as a matter of right” and “no indication that

the decision” below was anything “other than the final

word” of the “final court” with jurisdiction to hear the

case. Id.3

II. THE COURT SHOULD OVERRULE WILLIAMS

“[T]he force of stare decisis is at its nadir” in cases

“concerning [criminal] procedur[e] rules that implicate

fundamental constitutional protection.” Alleyne v.

United States, 570 U.S. 99, 116 n.5 (2013). Here, every

factor this Court considers when evaluating precedent

favors overruling Williams. That decision is egregiously wrong both because of its inconsistency with history and Ramos and because the empirical studies it relied upon were almost immediately undermined. Pet.49. Williams has had significant negative consequences,

both in creating confusion in the case law and in permitting the use of six-member juries (which are less likely

to be representative and reliable than 12-member bodies). Pet.8-9. And overruling Williams affects only

3

Florida hints at—but does not make—a harmless error argument. Opp.1-2. Florida’s silence is for good reason: depriving a defendant of a 12-person jury is structural error. Webster v. United

States, 667 F.3d 826, 833 n.3 (7th Cir. 2011) (collecting cases). Similarly, Florida’s glancing reference (at 1-2) to the fact that Ms. Cunningham first raised her Sixth Amendment claim on appeal is irrelevant. A claim of “fundamental” constitutional error can be raised

for the first time on appeal. State v. Johnson, 616 So. 2d 1, 3-4 (Fla.

1993).

6

limited reliance interests—i.e., it necessitates retrials of

a finite number of pending cases.

A. Egregiously Wrong

Florida’s chief defense of Williams rests on sleight

of hand. Florida notes that Williams “devoted 13 pages

to the history and development of the common-law jury

and the Sixth Amendment” but concluded that “the

word ‘jury’ in the Sixth Amendment did not codify” the

12-person requirement. Opp.7-8. To be clear, Williams

came to that conclusion not because of the history but in

spite of it. Williams rejected a test governed by “purely

historical considerations” in favor of a functionalist approach, all while acknowledging that the historical record is clear that “the size of the jury at common law [was]

fixed generally at 12.” 399 U.S. at 89, 99. Had Williams

applied the proper, history-focused test laid out in Ramos, it could not have reached the same result.

Florida’s remaining attempts to defend Williams

are similarly unavailing.

First, Florida argues that not all common-law practices regarding the jury were “‘codified’” in the Sixth

Amendment. Opp.8. Ramos, however, rejected this approach when it refused to distinguish between “the historic features of common law jury trial that (we think)

serve ‘important enough’ functions to migrate silently

into the Sixth Amendment and those that don’t.” 140

S.Ct. at 1400-1401. Instead, the question is simply what

“the right to trial by jury included” “at the time of the

Sixth Amendment’s adoption.” Id. at 1402.4

4

Florida’s suggestion (at 8-9) that the Ramos test requires

“that a jury consist only of male landowners hailing from a particular county” was again rejected in Ramos itself. 140 S.Ct. at 1402

7

Florida relatedly relies on the “drafting history” of

the Sixth Amendment to limit the jury-trial right.

Opp.9-11. But as Florida concedes, Ramos explained

that the “snippet of drafting history” that Williams and

Florida rely upon “could just as easily support the opposite inference”—i.e., certain omitted language was unnecessary “surplusage.” 140 S.Ct. at 1400. In any event,

this argument “proves too much” because ignoring common-law history would “leave the right to a ‘trial by jury’

devoid of meaning.” Id.

Second, Florida distinguishes Ramos because it

overruled “a uniquely fractured decision,” while Williams garnered “a solid majority.” Opp.11. But this distinction does nothing to explain why Ramos’s six-vote

holding can be squared with Williams. Indeed, Ramos

explained that to the extent Apodaca established binding precedent, it should be overruled. 140 S.Ct. at 14041405.

Third, Florida defends Williams’s functionalist

logic, including by noting that it was not overruled by

Ballew. Opp.12-17. But Ballew refused to extend Williams’s logic to 5-member juries precisely because Williams’s foundations had been undermined. Ballew v.

Georgia, 435 U.S. 223, 232-237 (1978); see also Pet.7-8.

Post-Ballew studies have repeatedly proved the

Ballew Court right. Twelve-person juries deliberate

longer and share more facts, ideas, and challenges to conclusions during higher-quality deliberations. E.g., Saks

& Marti, A Meta-Analysis of the Effects of Jury Size, 21

Law & Hum. Behav. 451, 458-459 (1997) (considering 17

studies); see generally ABA, Principles for Juries and

n.47 (majority op.) (“further constitutional amendments … prohibit

[such] invidious discrimination”).

8

Jury Trials, Principle 3 cmt., at 17-21 (2005) (collecting

studies and endorsing 12-member-jury rule). Empaneling a smaller jury also decreases the probability that

members of minority groups (be they racial, religious,

political, or socio-economic) will serve. See, e.g., Rose et

al., Jury Pool Underrepresentation in the Modern Era,

15 J. Empirical Legal Stud. 2 (2018) (12-member juries

are more likely to include racial minorities).

Florida’s contrary “scholarship” is inapposite. One

article did not study six-person juries—it considered

whether breaking a 12-member jury into four-person

discussion groups would promote more effective deliberations. Waller et al., Twelve (Not So) Angry Men, 14

Grp. Processes & Intergrp. Rels. 835, 839 (2011). The

others either studied (1) unconstitutional five-member

groups, Fay et al., Group Discussion as Interactive Dialogue or as Serial Monologue, 11 Psychol. Sci. 481, 481

(2000) or (2) mathematical models (as opposed to testing

actual people/juries), Mukhopadhaya, Jury Size and the

Free Rider Problem, 19 J. L. Econ. & Org. 24, 27-43

(2003); Parisi & Luppi, Jury Size and the Hung-Jury

Paradox, 42 J. Legal Stud. 399, 408 (2013); Guerra et al.,

Accuracy of Verdicts, 28 Sup. Ct. Econ. Rev. 221, 232

(2020). And while Florida cites (at 15-17) bare conviction

rates across different States, it neither identifies scholarship interpreting those numbers nor attempts to control for potentially divergent features and practices of

state law (e.g., frequency of guilty pleas).

Finally, Florida argues that there is nothing “nefarious” about the fact that Florida law changed the minimum jury size from 12 to six a few weeks after the departure of federal troops following Reconstruction.

Opp.17-18. But Florida does not dispute that at least

some States “restricted the size of juries … to suppress

minority voices in public affairs,” Khorrami, 143 S.Ct. at

9

27 (Gorsuch, J., dissenting), and identifies no reason to

think that the racist political forces that held sway in late

19th century Florida were any different. It responds

that “Florida … retained 12-person juries in capital

cases.” Opp.18. But that 12-member juries are warranted in cases where the defendant faces death only

supports that 12-member juries are more rights-protective than six-person juries.

B. Significant Negative Consequences

Williams has had negative jurisprudential consequences. In Ballew, a split Court struggled to apply the

functionalist approach, with multiple members acknowledging that the six-member line had little foundation in

law or fact. Pet.7-8. And, of course, Ramos necessarily

rejected Williams’s approach. Supra pp. 5-7. The cases

Florida cites (at 11-12) as “reaffirming” Williams mention the decision only in passing or rely on the reasoning

Ramos rejected.5

Williams has also had negative, real-world consequences, as a “drop in jury size” poses a threat to both

the “representativeness” of the jury and the “reliability”

of the verdict. ABA, Principles for Juries and Jury Trials, Principle 3 cmt., at 19-20; see also supra pp. 7-8.

“[T]hat smaller panels tend to skew jury composition

5

Florida’s suggestion (at 19) that interpreting the Sixth

Amendment would require a change in Seventh Amendment jurisprudence is meritless. The Seventh Amendment’s reference to

“Suits at common law”—which “is not directed to jury characteristics, such as size, but rather the kind of cases for which jury trial is

preserved,” Colgrove v. Battin, 413 U.S. 149, 152 (1973)—could well

preclude adopting attributes of the common-law jury in that context. There is good reason for the Sixth Amendment to be more

protective than the Seventh: It protects “human liberty” rather

than “property.” Stogner v. California, 539 U.S. 607, 632 (2003).

10

and impair the right to a fair trial … is a sad truth borne

out by hard experience.” Khorrami, 143 S.Ct. at 27 (Gorsuch, J., dissenting).

Florida’s response to the “reliability” concern is

based on inapposite studies. Supra pp. 8. And Florida

does not dispute that a 12-member jury will sweep in a

broader cross-section of the community than a six-member body. It argues only that the “fair-cross section-requirement applies” to the jury pool, not the jury itself.

Opp.17 n.15. But the available evidence establishes that

the 12-member-jury requirement at least increases the

odds that jurors will embody the cross-section of humanity in the venire—an outcome Williams wrongly dismissed as “unrealistic,” 399 U.S. at 102.

C. Reliance

Florida argues that the reliance interests here “far

outstrip” those in Ramos. Opp.18. To the contrary, the

chief reliance interest asserted is the same: The need to

re-try a discrete number of non-final felony convictions.

Almost any new rule of criminal procedure will “affect[]

significant numbers of pending cases across the whole

country.” Ramos, 140 S.Ct. at 1406.

Florida also contends that the number of convictions

affected distinguishes this case from Ramos. Opp.18-19.

To be clear, this case would affect only those felony proceedings where a trial has been held and the case is not

yet final on appeal—a number that is currently historically low due to the COVID-19 pandemic.6 While Florida claims (at 19) that it would have to conduct “several

6

E.g., Florida Office of the State Courts Administrator,

FY2021-22 Statistical Reference Guide 3-20 to 3-22 (2023), https://

tinyurl.com/22tn3z32.

11

thousand” retrials, Florida provides no source and this

Court granted certiorari in Ramos despite Louisiana’s

similar argument that requiring jury unanimity “could ...

upset” “[t]housands of final convictions.” Opp.4, Ramos,

No. 18-5924 (U.S.). Moreover, this Court vacated

“nearly 800 decisions” following Booker and a “similar

consequence[] likely followed when Crawford v. Washington overturned prior interpretations of the Confrontation Clause or Arizona v. Gant changed the law for

searches incident to arrests.” Ramos, 140 S.Ct. at 1406

(citations omitted).

In the end, Florida ignores “the most important”

“reliance interest” of all—that “of the American people”

“in the preservation of our constitutionally promised liberties.” Ramos, 140 S.Ct. at 1408 (plurality op.). Nearly

50 million Americans are currently denied a right the

Framers intended all to enjoy, even while Florida recognizes that a 12-member jury is so important and fundamental that it is a necessary safeguard in death-penalty

cases. This Court alone has authority to step in and protect the rights of those millions. It should do so.

12

CONCLUSION

The petition should be granted or held. See supra

n.1.

Respectfully submitted.

CAREY HAUGHWOUT

Public Defender

PAUL EDWARD PETILLO

Assistant Public

Defender

OFFICE OF THE PUBLIC

DEFENDER

FIFTEENTH JUDICIAL

CIRCUIT OF FLORIDA

421 Third Street

West Palm Beach, FL 33401

SETH P. WAXMAN

Counsel of Record

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Ave., NW

Washington, DC 20006

(202) 663-6000

seth.waxman@wilmerhale.com

THOMAS G. SPRANKLING

WILMER CUTLER PICKERING

HALE AND DORR LLP

ALEX W. MILLER

2600 El Camino Real

WILMER CUTLER PICKERING Suite 400

HALE AND DORR LLP

Palo Alto, CA 94306

7 World Trade Center

LEAH FUGERE*

250 Greenwich Street

WILMER CUTLER PICKERING

New York, NY 10007

HALE AND DORR LLP

350 S. Grand Avenue

Suite 2400

Los Angeles, CA 90071

* Not admitted in California. Admitted to practice

in Colorado. Supervised by

members of the firm who

are members of the California bar.

OCTOBER 2023