Opposition Brief — Nathan Russell Cates, Petitioner v. United States

Supreme Court briefJan 29, 2024

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No. 23-5903

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

NATHAN RUSSELL CATES, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

ALLAYA LLOYD

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

the

district

court

permissibly

determined

that

Federal Rule of Criminal Procedure 16 did not entitle petitioner

to

demand

additional

historical

detection dog’s reliability.

(I)

records

establishing

a

drug-

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-5903

NATHAN RUSSELL CATES, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A18-A52) is

reported at 73 F.4th 795.

The order of the district court (Pet.

App. A5-A17) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 10,

2023.

On September 27, 2023, Justice Gorsuch extended the time

within which to file a petition for a writ of certiorari to and

including November 8, 2023.

The petition for a writ of certiorari

was filed on October 25, 2023.

invoked under 28 U.S.C. 1254(1).

The jurisdiction of this Court is

2

STATEMENT

Following a conditional guilty plea in the United States

District

Court

for

the

District

of

Wyoming,

petitioner

was

convicted of possessing methamphetamine with intent to distribute,

in violation of 21 U.S.C. 841(a)(1) and (b)(1)(A).

Judgment 1.

The district court sentenced him to 180 months of imprisonment, to

be followed by five years of supervised release.

The court of appeals affirmed.

1.

Judgment 2-3.

Pet. App. A18-A52.

While conducting a drug interdiction detail in Laramie

County,

Wyoming

Highway

Patrol

Trooper

Scott

Neilson

saw

petitioner driving down Interstate 80 by himself in a Ford Explorer

SUV with New York license plates.

Pet. App. A19-A20.

Noting that

petitioner appeared “very rigid” as he drove past Neilson’s patrol

car, Trooper Neilson attempted to catch up to the SUV so that he

could run the plates and observe any traffic violations.

A6; see id. at A20.

took an exit ramp.

Id. at

When Trooper Neilson caught up, petitioner

Id. at A20.

Trooper Neilson followed, observed

petitioner speeding, and stopped petitioner in a parking lot.

Ibid.

Petitioner informed Trooper Neilson that the SUV was a rental

vehicle and that the rental contract might be on his phone.

App. A20.

from

a

Pet.

Aware from experience that retrieving rental agreements

phone

could

be

time

consuming,

Trooper

Neilson

asked

petitioner to join him in his patrol car while petitioner looked.

Ibid.

During the conversation, Trooper Neilson noticed a butane

3

lighter refueling cannister in petitioner’s SUV, which Trooper

Neilson knew could be used to heat methamphetamine into vapors to

smoke.

Id. at A7; see id. at A21.

Trooper Neilson also observed

that the back seats of the SUV were folded down to make room for

several duffel bags; that petitioner’s hand was trembling while he

tried to operate his phone; and that petitioner was unable or

unwilling to make “decent eye contact.”

Id. at A21 (citation

omitted).

When he returned to the patrol car with petitioner, Trooper

Neilson sent a message requesting that another Trooper, Andrew

Jackson,

run

a

drug-detection

petitioner’s vehicle.

dog

around

Pet. App. A21.

the

exterior

of

Trooper Jackson arrived

with his dog, May, shortly thereafter.

Id. at A22.

Trooper

Neilson later testified that “immediately upon seeing Trooper

Jackson and May, [petitioner] dropped his phone into his lap and

began taking extremely long, deep breaths and appeared like he

might be sick.”

Id. at A9.

May alerted at both the driver’s side

door and the passenger’s side door.

Id. at A22.

Trooper Neilson

then searched the vehicle and found approximately 48 pounds of

methamphetamine and 30 pounds of marijuana.

2.

Id. at A23.

A grand jury in the District of Wyoming returned an

indictment charging petitioner with possessing 500 grams or more

of methamphetamine with intent to distribute, in violation of 21

U.S.C. 841(a)(1) and (b)(1)(A), and possessing tetrahydrocannabinol

4

with intent to distribute, in violation of 21 U.S.C. 841(a)(1) and

(b)(1)(D).

Indictment 1.

Petitioner moved to suppress the evidence seized from his

SUV.

Pet. App. A23.

Petitioner asserted, inter alia, that May’s

alerts did not provide probable cause to search the vehicle.

at A23-A24.

Id.

Petitioner observed that the government had produced

evidence showing that May had been certified to perform drugdetection work by the California Narcotics Canine Association

(CNCA) on the day of the search, but had not provided additional

records about May’s training and deployment.

Ibid.

During the

suppression hearing, the government supplemented the certification

evidence

with

testimony

from

Trooper

Jackson,

including

descriptions of the certification process and ongoing training.

2/8/22 Tr. (Tr.) 81-97, 107-118 (testimony of Trooper Jackson).

The testimony established that May, who was purchased in 2015

from a company that provided her initial instruction, had been

certified (along with her handler, Trooper Jackson) by the CNCA to

detect odors of marijuana, cocaine, methamphetamine, and heroin

each year that she had been with the Wyoming Highway Patrol -with the last recertification occurring on the morning of the day

of the traffic stop (May 11, 2021).

84-86.

Pet. App. A26-A27; Tr. 81,

And as to that day-of recertification, Trooper Jackson

specifically confirmed that May had passed without any false

alerts.

Pet. App. A27; Tr. 88-89.

Trooper Jackson also explained

that the Wyoming Highway Patrol additionally conducts its own

5

internal assessment each year, with the most recent assessment

occurring in the fall of 2020, and that May had passed that

assessment as well.

During

Pet. App. A27; Tr. 90-91.

cross-examination,

defense

counsel

elicited

that

Trooper Jackson prepares monthly logs documenting his training

activities with May and also maintains monthly field-performance

logs that track how many times May was used in the field, whether

May alerted, and whether any narcotics were found.

A28; Tr. 94-97.

Pet. App. A27-

Petitioner then moved to obtain those reports,

but the district court found that petitioner had not made a

threshold showing, through witness testimony or tendered evidence,

of

a

question

about

the

validity

or

reliability

certification that would justify their production.

of

May’s

Pet. App. A28;

Tr. 97-107.

The district court then later denied petitioner’s motion to

suppress, finding that May’s alert provided probable cause to

search petitioner’s car. Pet. App. A5-A17.

The court explained

that the testimony and documentary evidence established that May

and Trooper Jackson had “successfully completed training courses

as documented.”

Id. at A15.

The court observed, in particular,

that petitioner’s cross-examination “did not elicit any testimony

that would cast doubt on the reliability of the CNCA training and

certification for May and Trooper Jackson.”

Id. at A15-A16.

And

the court accordingly found that petitioner “did not raise any

doubt regarding the reliability of May’s training or her alerts in

6

this

instance

to

warrant

production

of

further

regarding May’s training or performance.”

documentation

Id. at A16 (citing

Florida v. Harris, 568 U.S. 237, 247-248 (2013)).

Petitioner thereafter entered a conditional guilty plea to

the methamphetamine count, reserving his right to appeal the

district court’s denial of his motion to suppress.

3.

The court of appeals affirmed.

Pet. App. A30.

Pet. App. A18-A52.

On

the issue of whether petitioner had been entitled to additional

production under Federal Rule of Criminal Procedure 16, the court

of appeals explained that “the district court did not abuse its

discretion in determining that [petitioner] failed to meet his

burden” to “‘make a prima facie showing of materiality.’”

Pet.

App. A51 (citation omitted).

The

court

of

appeals

explained

that

“[a]lthough

the

materiality standard is not a heavy burden, the government need

disclose

Rule

16

material

only

if

it

enables

the

defendant

significantly to alter the quantum of proof in his favor.”

Pet.

App. A45 (quoting United States v. Graham, 83 F.3d 1466, 1474 (D.C.

Cir. 1996), cert. denied, 519 U.S. 1132 (1997)) (brackets omitted).

And the court determined that on the facts of this case, the

district court did not abuse its discretion in finding that the

records petitioner sought would not have aided his defense, because

the government had established through testimony and documentary

evidence that there was “sufficient reason to trust [May’s] alert.”

Id. at A51 (quoting Harris, 568 U.S. at 246).

The court observed,

7

in

particular,

successfully

that

Trooper

completed

her

Jackson

CNCA

testified

that

certification

for

May

had

various

narcotics on the morning of the stop without any false alerts, and

that petitioner had not identified any reason to believe that the

records he sought to obtain might show that May was unreliable on

the date of the traffic stop or in general.

Id. at A51-A52.

The court of appeals disagreed with petitioner’s claim that

this Court’s decision in Florida v. Harris invariably compels the

production of historical records every time a defendant challenges

a drug-detecting dog’s reliability. Pet. App. A46-A50. In Harris,

this Court rejected the Florida Supreme Court’s view that in cases

involving the alert of a drug-detection dog, the Fourth Amendment

requires the prosecution to present “an exhaustive set of records,

including a log of the dog’s performance in the field, to establish

the dog’s reliability” for a probable-cause finding.

240;

see

id.

at

242-243.

The

Court

instead

568 U.S. at

held

that

the

prosecution could show that it was reasonable to trust a dog’s

alert in a myriad of ways, including by introducing “evidence of

a dog’s satisfactory performance in a certification or training

program.”

Id. at 246.

And the court of appeals here observed

that while Harris “may speak to the relevance of historical canine

documents, * * * it does not discuss the case-by-case materiality

of such records under Rule 16,” but “[i]n fact” stated that a trial

court

“‘should

allow

the

parties

to

make

their

best

case,

consistent with the usual rules of criminal procedure.’”

Pet.

8

App. A47 (quoting Harris, 568 U.S. at 247) (emphasis added by court

of appeals).

The court of appeals disagreed with petitioner’s contention

that his case was materially similar to cases in which the Second

and Ninth Circuits required the production of certain canine

performance

records.

Pet.

App.

A48.

The

court

of

appeals

explained that “[u]nlike the district court in” United States v.

Foreste, 780 F.3d 518 (2d Cir. 2015), the decision of the district

court here had not relied on “sweeping generalizations” that fieldperformance

records

reliability,”

but

could

was

never

instead

be

“relevant

grounded

in

to

a

determination that there was no reason here to “doubt

reliability.”

Pet. App. A48-A49.

[a

dog’s]

case-specific

* * *

May’s

And while the court of appeals

acknowledged that “Ninth Circuit precedent requires disclosure of

a specific set of historical and canine records,” it observed that

“unlike the dog in” United States v. Thomas, 726 F.3d 1086 (9th

Cir. 2013), cert. denied, 572 U.S. 1108 (2014), the training

certificate in this case gave “no indication that May’s performance

was ‘marginal’ in any manner.”

Pet. App. A50 (citation omitted).

ARGUMENT

Petitioner renews his contention (Pet. 6-7) that Federal Rule

of

Criminal

Procedure

16

entitles

a

criminal

defendant

to

comprehensive discovery about a drug-detection dog’s training and

field

performance

in

every

case

where

a

search

is

performed

following the dog’s alert to the presence of controlled substances,

9

regardless of whether there is any basis to believe that that

additional evidence will cast doubt on the dog’s reliability.

The

court of appeals correctly rejected that contention, and its

decision does not conflict with any decision of this Court or

another court of appeals.

Accordingly, no further review is

warranted.

1.

a.

Under Federal Rule of Criminal Procedure 16, a

defendant has the right to discovery of “books, papers, documents,

[or] data” that are “within the government’s possession, custody,

or control” in three enumerated circumstances.

16(a)(1)(E).

Fed. R. Crim. P.

Two of those circumstances (that “the item was

obtained from or belongs to the defendant” or that “the government

intends to use the item in its case-in-chief at trial,” see Fed.

R. Crim. P. 16(a)(1)(E)(ii) and (iii)) are not relevant here.

And

the third circumstance is limited to cases in which “the item is

material

to

preparing

the

defense.”

Fed.

R.

Crim.

P.

16(a)(1)(E)(i).

In accord with the specific language of the Rule, a defendant

seeking discovery on that basis bears the burden of “mak[ing] a

prima facie showing of materiality.” 2 Charles Alan Wright & Peter

J. Henning, Federal Practice and Procedure § 254, at 113-114 (4th

ed. 2009) (Federal Practice and Procedure); see id. at 113-114 &

n.14 (collecting

cases);

5

Wayne

R.

LaFave

et

al.,

Criminal

Procedure § 20.3(g), at 486 (4th ed. 2015) (Criminal Procedure)

(“[T]he burden is on the defendant to demonstrate the requisite

10

materiality.”); 25 Moore’s Federal Practice § 616.05[1][b][i], at

616-51 to 616-53 (Matthew Bender 3d ed. 2023) (Moore’s Federal

Practice) (“The burden is on the defendant to demonstrate that a

requested item meets the standard of materiality.”).

Unless he

carries that burden, he cannot establish that his request falls

within the text of the Rule.

The

courts

of

appeals

have

accordingly

recognized

with

“remarkable uniformity” that, for purposes of Rule 16, “a showing

of materiality requires ‘some indication’ that pretrial disclosure

of

the

information

sought

‘would

have

enabled

the

defendant

significantly to alter the quantum of proof in his favor.’” United

States v. Goris, 876 F.3d 40, 44-45 (1st Cir. 2017) (quoting United

States v. Ross, 511 F.2d 757, 762 (5th Cir.), cert. denied, 423

U.S. 836 (1975)), cert. denied, 138 S. Ct. 2011 (2018); see ibid.

(collecting cases); Federal Practice and Procedure § 254, at 114115 (repeating same standard).

Thus, “‘[m]ateriality is not

established by a general description of the documents sought or by

a conclusory argument that the requested information is material

to the defense,’” and a “blanket request for all relevant evidence

is insufficient.” Moore’s Federal Practice § 616.05[1][b][i], at

616-53

to

616-54

(citation

omitted);

see

Criminal

Procedure

§ 20.3(g), at 486 (“[T]he use of the term ‘material’ suggests that

there must be some showing of potential significance for the

defense, going beyond mere relevancy.”).

11

“Instead, the defense must make a specific request for items

with an explanation of how the items will be ‘helpful to the

defense.’”

54.

Moore’s Federal Practice § 616.05[1][b][i], at 616-

And in particular, “[w]here the defense is seeking documents

not specifically tied to its case in order to establish a general

weakness in the prosecution’s presentation (e.g., a credibility

problem for its chief witness), courts will commonly require that

the defense show some grounding for believing that line of inquiry

could be productive.”

Criminal Procedure § 20.3(g), at 487-488;

see, e.g., United States v. Harney, 934 F.3d 502, 507-508 (6th

Cir. 2019) (explaining that government was not required to produce

information about computer networking technique used to identify

defendant because the defendant failed to “show, with more than

conclusory arguments, that the information will help him combat

the government’s case against him as to one of the charged crimes”)

(citation omitted).

b.

Petitioner errs in suggesting (Pet. 6) that this Court’s

decision in Florida v. Harris, 568 U.S 237 (2013), overrides the

textual materiality requirement when a defendant seeks records

about a drug-detection dog in support of a motion to suppress

evidence.

To the contrary, “Harris explains that when a state or

federal court is tasked with evaluating a defendant’s challenge to

the reliability of a dog’s alert, ‘[t]he court should allow the

parties to make their best case, consistent with the usual rules

of criminal procedure.’”

Pet. App. A47 (quoting Harris, 568 U.S.

12

at 247) (emphasis in court of appeals’ opinion).

Harris is in no

way an end-around to the strictures of Rule 16.

Thus, even

assuming that contesting a suppression motion is “preparing the

defense” that might trigger discovery obligations under Rule 16,

the

Rule

would

still

require

“material to” that effort.

that

the

requested

records

be

Fed. R. Crim. P. 16(a)(1)(E)(i); cf.

Fed. Crim. P. 16(a)(1)(E)(ii) (focusing on evidence “at trial”).

Indeed, if anything, the Court’s decision in Harris suggests

that detailed records of the sort that petitioner seeks here

ordinarily are not material to the probable-cause determination,

and thus ordinarily are not subject to discovery under Rule 16 or

analogous state rules of criminal discovery.

While acknowledging

that records “of the dog’s (or handler’s) history in the field

* * *

may sometimes be relevant” in assessing probable cause,

Harris, 568 U.S. at 247 (emphasis added), the Court explained that

“in most cases they have relatively limited import,” id. at 245.

That understanding is inconsistent with petitioner’s view (Pet. 67) that such records are always material and thus subject to

automatic disclosure under Rule 16.

The

Court

also

emphasized

that

“evidence

of

a

dog’s

satisfactory performance in a certification or training program

can itself provide sufficient reason to trust [the dog’s] alert”

without the need for additional records.

see

Pet.

App.

certification).

A51-A52

(discussing

Harris, 568 U.S. at 246;

evidence

of

May’s

And while the Court stated that a defendant “must

13

have

an

opportunity

to

challenge

such

evidence

of

a

dog’s

reliability, whether by cross-examining the testifying officer or

by introducing his own fact or expert witnesses,” Harris, 568 U.S.

at 247, the Court did not indicate that detailed training and

field-performance records will ordinarily be material to that

inquiry.

The Court instead highlighted witness testimony (either

direct testimony of defense witnesses or cross-examination of

government witnesses) as the standard means of challenging the

effectiveness of a dog’s training.

See ibid.; cf. ibid. (“The

defendant can ask the handler, if the handler is on the stand,

about field performance, and then the court can give that answer

whatever weight is appropriate.”) (brackets and citation omitted).

Therefore, as with any other discovery request under Rule

16(a)(1)(E),

a

defendant

who

seeks

to

obtain

canine-history

records from the government must point to “‘some indication’ that

pretrial disclosure of” those records will “‘significantly

alter the quantum of proof in his favor.’”

(citation

omitted);

potentially

do

so

see

pp.

through,

9-11,

for

supra.

example,

* * *

Goris, 876 F.3d at 45

A

defendant

testimony

could

that

the

particular records at issue would contain evidence that the dog

and

its

handler

did

not

perform

satisfactorily

in

a

recent

assessment of their capabilities in a controlled setting.

Cf.

United States v. Thomas, 726 F.3d 1086, 1096-1097 (9th Cir. 2013)

(concluding that district court should have ordered production of

unredacted training records where testimony at the suppression

14

hearing revealed that the drug-detection team achieved a “marginal

performance” in “search skills” in a controlled evaluation and

that “if the redactions were lifted,” the records would likely

contain “critiques of the team’s competence”), cert. denied, 572

U.S. 1108 (2014).

Or he could present “his own fact or expert

witnesses,” Harris, 568 U.S. at 247, to raise doubt about the

adequacy of the “certification or training program” identified by

the government, id. at 246.

But as with other records sought under

Rule 16, it is not enough simply to offer a “conclusory argument

that the requested information is material to the defense,” without

any case-specific indication that the canine-history records would

actually be helpful to the defendant.

Moore’s Federal Practice

§ 616.05[1][b][i], at 616-54 (citation omitted).

c.

The

court

of

appeals

correctly

found

no

abuse

of

discretion in the district court’s application of well-settled

Rule 16 standards here.

See Pet. App. A44-A52.

As the court of

appeals observed, “the government provided both testimony and

documentary evidence that May, and her trainer, Trooper Jackson,

were properly certified at the time of [petitioner’s] traffic

stop.”

Id. at A51.

That “‘evidence of [May’s] satisfactory

performance in a certification or training program,’

* * *

in

turn, ‘provide[d] sufficient reason to trust h[er] alert.’”

Ibid.

(quoting Harris, 568 U.S. at 246) (brackets in original).

And

petitioner identified no basis for believing that the additional

15

records he sought would cast any doubt on May’s reliability.

See

ibid.

Nothing

during

in

the

sworn

cross-examination

testimony

of

May’s

that

petitioner

handler,

Trooper

suggested that May had been unreliable in the past.

A52.

elicited

Jackson,

See Pet. App.

Nor did petitioner present any fact or expert witnesses of

his own to suggest that CNCA was not a reputable certifying

authority, or that the training methods Jackson described were

likely

to

lead

to

false

alerts.

Thus

here,

as

in

other

circumstances, “[t]he district court did not abuse its discretion

in

holding

that

the

discovery

sought

was

immaterial

and

‘essentially a fishing trip,’” United States v. Kienast, 907 F.3d

522, 530 (7th Cir. 2018) (rejecting similar argument in different

circumstances), cert. denied, 139 S. Ct. 1639 (2019).

2.

and

As the court of appeals explained (Pet. App. A48-A50),

contrary

to

petitioner’s

contention

(Pet.

4-6),

the

circumstances of this case differ from the circumstances at issue

in the Second Circuit’s decision in United States v. Foreste, 780

F.3d 518 (2015), and the Ninth Circuit’s decision in United States

v. Thomas, supra.

Some broad language in those decisions may lead

those circuits to, at some point, require extensive discovery of

drug-detecting dog records in every case where a defendant requests

it.

See Foreste, 780 F.3d at 528-529 (indicating that a “dog’s

field performance records are relevant” and discoverable in a

challenge

to

“‘the

adequacy

of

a

certification

or

training

16

program’” or “‘how the dog (or handler) performed’”) (citation

omitted); Thomas, 726 F.3d at 1096 (reciting pre-Harris circuit

precedent for proposition that production of various materials is

“‘mandatory’ when the government seeks to rely on a dog alert as

the evidentiary basis for its search”) (quoting United States v.

Cortez-Rocha, 394 F.3d 1115, 1118 n.1 (9th Cir.), cert. denied,

546 U.S. 849 (2005)).

But neither decision itself goes that far.

As the court of appeals explained, the district court in

Foreste erred by making “sweeping generalizations” that fieldperformance

records

can

never

be

“relevant

to

[a

dog’s]

reliability.” Pet. App. A48-A49 (citing Foreste, 780 F.3d at 529).

The Second Circuit then determined that the district court’s

“erroneous view of the law” required reversal, Foreste, 780 F.3d

at 529.

And in Thomas, the defendant presented evidence that the

drug-detection dog and its handler had been “one-tenth of a point”

away from receiving a “‘a failing score’” on an examination of

search skills, as well as cross-examination testimony from the “K9

Coordinator for the Border Patrol conced[ing]” that materials that

had

been

withheld

during

discovery

would

likely

enable

the

defendant to mount “critiques of the team’s competence as well as

discussions about areas for improvement.”

1096-1097.

While

viewing

pre-Harris

Thomas, 726 F.3d at

precedent

to

require

production under Rule 16, the court rejected the government’s

reliance on the law-enforcement privilege against discovery on the

ground

that

the

defendant

had

made

a

showing

“beyond

‘mere

17

suspicion’ that the undisclosed evidence will be helpful in his

criminal case.”

Id. at 1097 (citation).

The decision below did not view either the Second or Ninth

Circuit to always require, in every case, production of a drugdetection dog’s records, even where the defendant cannot make any

case-specific showing of materiality.

To the extent that those

courts’ decisions would require that, they would conflict with

Rule 16 -- and the uniform authority interpreting its text to

require a prima facie showing of materiality –- in a manner not

required by Harris.

And particularly in the absence of a robust

effort by either court to reconcile such a blanket approach with

the Rule, any disagreement in the courts of appeals does not

warrant this Court’s review in this case.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Acting Assistant Attorney General

ALLAYA LLOYD

Attorney

JANUARY 2024

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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