text:
The Supreme Court of Idaho found that the intentional shooting by a care-taker in the insureds' campground was not covered under the CGL policy. Farm Bureau Mut. Ins. Co. of Idaho v. Cook, 2018 Idaho LEXIS 71 (Idaho March 30, 2018).
The insureds allowed people to use a lake and campground on their property without charging a fee. Michael Chisholm lived on the property in a cabin in exchange for caring for the property. Chisholm had a disagreement with Joseph Stanczak and ended up shooting Stanczak with a handgun. Chisholm was charged with aggravated assault and pled guilty without admitting guilt to all the elements of his crimes. He was sentenced to prison.
The insureds had a policy with Farm Bureau. Stanczak sued Chisholm, the insureds and Farm Bureau. Farm Bureau denied coverage and filed a complaint for a declaratory judgment. Farm Bureau then moved for summary judgment which was granted.
On appeal, the insureds argued that the shooting - while intentional from Chisholm's point of view - was an accident from theirs, and thus was a covered "occurrence." Farm Bureau asserted that the injuries flowed directly from the intentional shooting, and thus were not an "occurrence."
Idaho followed the "nature of the event" test, whereby negligence claims against in insured that directly arose out of the intentional act of a third party were not covered because the underlying causative act was not covered. While the insureds argued that the incident fell precisely in line with the definition of an accident from their perspective - the shooting was an unexpected event resulting from their purported negligence - Idaho law used a contrary interpretation. A reasonable person would view Stanczak's injuries as resulting from an assault. An intentional shooting caused the injuries, and thus the shooting was not an "occurrence" under Idaho law.
Therefore, the court affirmed the trial court's grant of summary judgment to Farm Bureau.
The magistrate judge recommended that the insurer's motion for summary judgment seeking to determine there was no coverage for claims of faulty workmanship be denied. Greystone Multi-Family Builders v. Gemini Ins. Co., 2018 U.S. Dist. LEXIS 56770 (S.D. Tex. Feb. 26, 2018).
TPG (Post Oak) purchased an OCIP policy to cover construction of an apartment complex. TPG was sued by the contractor, Greystone, after TPG cancelled the construction contract. TPG filed a counterclaim against the contractor, alleging that Greystone had failed to properly perform in building a luxury apartment complex which resulted in monetary damages to TPG. The complaint further alleged that the project was nine months behind its substantial completion date, far from complete, and over budget when TPG cancelled the contract. The cost to fix the mismanagement caused by Greystone was $18.9 million.
The insurer denied coverage for the counterclaim against Greystone. Greystone then sued for a declaration judgment and the insurer cross-moved for summary judgment.
The insurer argued there was no occurrence because Greystone's actions were not an accident. The court, however, found no allegations in the underlying complaint that Greystone intended its work to cause the damage or that the damage was the natural and expected result of Greystone's actions. Simply because Greystone paid its subcontractors upfront did not mean Greystone intended the result to be shoddy workmanship. The up-front payments may have been a management failure, but not intentional conduct to cause poor construction of the project. Therefore, the allegations included actions meeting the definition of "occurrence."
Next, the insurer agreed that there was property damage, but argued most of the complaints were of increased costs of construction due to duplication of effort, purchasing gaps, use of wrong materials, deviations from plans and specifications, code violations, and delays. The court agreed that the counterclaim alleged that Greystone's shoddy work caused property damage. But there were also allegations that fell within the definition of property damage.
Finally, the court determined that the exclusions did not bar coverage. The insurer relied upon exclusion j (5) which barred coverage to "that particular part of real property on which you . . . are performing operations, if the 'property damage' arises out of those operations." The court noted that it must look not to when the construction defect occurred, but when the property damage itself occurred. Greystone argued that some of the damage could only have occurred after it was no longer working on its particular part of the project. There was no clear allegation in the counterclaim tying the property damage to a particular date. Therefore, exclusion j(5) did not allow the insurer to escape its duty to defend.
Exclusion j (6) was also not applicable. The exclusion barred coverage for "property damage" to "that particular part of any property that must be restored, repaired or replaced because 'your work' was incorrectly performed on it." The exclusion did not apply to property damage included in the products-completed operations hazard, i.e., when all of the work called for in the contract had been completed. The exclusion barred coverage only for property damage to parts of a property that were themselves the subject of defective work by the insured. The exclusion did not apply, however, for damage to parts of a property that were the subject of only nondefective work by the insured and were damaged as a result of defective work by the insured on other parts of the property.
The counterclaim alleged that some of Greystone's work that was non-defective was damaged by defective work. For example, the counterclaim alleged that due to defective structural work, "the floor of the structure began to sag and critical plumbing elements were damaged." The counterclaim further alleged that the roof was installed defectively, which caused water leaks on the property. The allegations also established that not all of Greystone's work was completed because the contract was never completed. Therefore, the products-completed operations hazard was inapplicable. Exclusion j (6) did not apply to the extent that the counterclaim alleged that non-defective work was damaged by defective work.
Consequently, the insurer had a duty to defend.
The Fourth Circuit affirmed the district court's determination that the duty to defend was limited by the policy's $100,000 limit. Gemini Ins. Co. v. Earth Treks, Inc., 2018 U.S. App LEXIS 7622 (4th Cir. March 27, 2018).
Kelsey Fabian sued Earth Treks, Inc., alleging she suffered sexual abuse by two of Earth Treks coaches when she was a 14-year-old member of Earth Treks' competitive youth climbing team. Earth Treks tendered to Gemini, who disputed liability. Gemini filed suit for a declaratory judgment, seeking a declaration that it owed no defense or indemnity for the Fabian lawsuit or, alternatively, that its liability was limited to $100,000 under several endorsements to the policy. Earth Treks counterclaimed for breach of the duty to defend.
Cross-motions for summary judgment were filed. The district court held that Gemini had a duty to defend, but that its liability was limited to $100,000 based alternatively on the "Sexual Abuse and Molestation" endorsement (SAM endorsement) or the "Assault, Battery, or Assault and Battery endorsement (A&B endorsement). The Fabian suit settled. Gemini and Earth Treks stipulated to the entry of final judgment and Earth Treks appealed challenging the ruling that limited Gemini's duty to defend to $100,000 based upon the endorsements.
Under Maryland law, an insured could establish a potentiality of coverage under a policy through the use of extrinsic evidence. Earth Treks submitted highlighted portions of deposition transcripts to support its arguments. The district court relied on portions of the transcripts that were not highlighted. Earth Treks argued that this was tantamount to considering extrinsic evidence provided by the insurer. The Fourth Circuit disagreed. The district court was not required to turn a blind eye to testimony that Earth Treks itself placed before the court.
Earth Treks next argued that the A&B endorsement was not applicable. Earth Treks submitted that the coaches' sexual contact with Fabian was not a battery because a reasonable factfinder could conclude that Fabian consented to, and was not harmed by, the contact. Under Maryland law, however, consent to sexual contact with an adult could not be given by a child as a matter of law.
Earth Treks also argued that the district court erroneously resolved factual disputes in favor of Gemini in determining that Fabian was harmed by the sexual contact. Assuming the district court erred, any such error was harmless. The sexual contact with a minor was harmful and injurious as a matter of law, regardless of whether she suffered any actual physical injury.
Therefore, the district court properly determined, as a matter of law, that the A&B endorsement limited Gemini's duty to defend to $100,000. The district court's judgment was affirmed.
Determining there were no allegations of bodily injury or property damage in the underlying lawsuit, the court found there was no duty to defend or indemnify the condominium's managing agent. State Farm Fire & Cas. Co. v. Certified Mgmt., 2018 U.S.Dist. LEXIS 71124 (D. Haw. April 27, 2018).
Frederick Caven sued Certified Management, dba Associa Hawaii ("Associa") on behalf of himself and a class. Caven alleged that he owned a condominium and was a member of the Regency homeowners' association. The suit alleged that Associa was the managing agent for the association. Caven sold his unit in April 2016. Caven asked Associa for condominium documents to provide to the purchaser. Associa charged Caven $182.29 to download 197 pages of condominium documents for Regency. Associa also charged Caven $286.46 for a one-page "fee status confirmation," a document prepared by Associa which contained financial and other information needed to complete the sale. Caven alleged that the fees charged by Associa and other unit owners were excessive and in violation of Hawaii law.
Regency was a named insured under a residential community association policy issued by State Farm. Associa tendered the Caven lawsuit to Regency under a defense and indemnity provision in a Management Agreement. Regency submitted the tender to State Farm. State Farm denied coverage.
Associa sued State Farm. State Farm moved for summary judgment. State Farm first contended it had no duty to defend or indemnify because Associa was not an "insured" under the policy. The policy clarified that one was an insured "If you are designated in the Declarations as . . . (4) An organization other than a partnership, joint venture or limited liability company. . ." Associa was not designated in the Declarations or otherwise as a named insured.
The policy further provided an insured was "any organization while acting as your real estate manager but only with respect to liability for 'bodily injury'." This provision also did not apply because there was no allegation of bodily injury in the underlying lawsuit. Instead, Caven alleged that Associa overcharged him and other unit owners for copies of condominium documents. Even assuming Associa was acting as Regency's "real estate manager," Associa was not an insured under the policy because there was no allegation of "bodily injury" in the underlying lawsuit.
Further, the underlying lawsuit did not allege "property damage" or "personal injury." Therefore, the court granted State Farm's motion for summary judgment.
Interpreting Hawaii law, the federal district court held that the standard for triggering the duty to defend is the same as the standard for the duty to advance costs under a D&O policy. Maui Land & Pineapple Co. v. Liberty Ins. Underwriters, 2018 U.S. Dist. LEXIS 56949 (D. Haw. April 3, 2018).
The underlying plaintiffs sued 22 defendants, including Maui Land Pineapple (MLP) and Ryan L. Churchill, concerning a residential development project known as The Ritz-Carlton Club & Residences. The underlying complaint alleged that MLP "directly or indirectly through wholly owned subsidiaries exerts control" over Kapalua Bay, LLC, the defendant in the underlying lawsuit. Kapalua Bay, LLC was created as a joint venture of which MLP held 51%. Churchill was a senior executive officer of MLP, President of Kapalua Bay, and an executive officer of Kapalua Realty, which participated in all aspects of the Project, such as financing, development, and construction.
In their second amended complaint, the underlying plaintiffs alleged nine Counts against the defendants, including breach of fiduciary duty. It was alleged that defendants were not transparent and kept owners in the dark regarding the status of the project. Several allegations named Churchill individually and described his alleged material misrepresentations to the underlying plaintiffs regarding the project's financing.
MLP had an indemnification agreement with its officer and director Churchill. The agreement obligated MLP to indemnify Churchill for costs incurring in a proceeding if Churchill acted in good faith and was not opposed to the interests of MLP. The agreement was of no effect, however, if MLP secured a D&O policy.
Liberty issued an Executive Advantage policy to Churchill and MLP. The policy obligated Liberty to provide coverage to "Insured Persons." The policy provided that the duty to defend was the duty of the insureds. Liberty, however, would advance on a current basis covered defense costs incurred by the insureds. The policy also provided MLP with coverage for its own wrongful conduct occurring "as a result of a Securities Action."
Liberty denied coverage for the underlying suit. MLP filed suit. Cross-motions for summary judgment were filed. Liberty argued that because Churchill was sued by the underlying plaintiffs in his capacity as director of the AOAO, rather than in his capacity as an officer of MLP, the Outside Service Exclusion was triggered. This exclusion barred coverage for an Loss arising from an Insured Person serving as a director or officer of any entity other than the Insured Organization. Liberty also argued that the underlying suit was not a Securities Action for which the policy provided coverage for MLP.
The court first ruled that the policy provided a defense for Churchill. Liberty argued that its duty to advance defense costs required that the insured establish that the underlying claims were within the basic scope of coverage. MLP, on the other hand, asserted that the general standard for triggering the duty to defend was the same as the standard to trigger the duty to advance costs under the policy. The court noted that the duty to advance defense costs would be illusory if the insured had to wait for a determination of actual coverage to obtain the necessary funding for its defense. Therefore, the standard for triggering the duty to defend was the same as the standard for triggering the duty to advance costs.
In the underlying suit, Churchill was sued both in his capacity as an officer of MLP and in his capacity as a director of the AOAO. Therefore, the allegations raised the possibility of coverage, triggering MLP's duty to advance defense costs. Liberty agreed that it provided excess coverage to Churchill in his capacity as an AOAO director. Liberty declined, however, to advance defense costs to indemnify Churchill for claims arising from his conduct as an MLP officer.
Liberty argued that no claims were directed at Churchill in the underlying lawsuit in his capacity as an MLP officer. But the second amended complaint alleged breach of fiduciary duty against all defendants, which included Churchill. The court in the underlying action had not made any finding that none of the allegations against Churchill were made in his capacity as an MLP officer and nothing in the record supported this.
Further, the Outside Service Exclusion was not applicable. The AOAO was MLP's subsidiary under the terms of the policy and was therefore an "Insured Organization." So even if Churchill was acting in his capacity as a director of the AOAO, the AOAO was not "another, uninsured entity." Therefore, the exclusion did not bar defense costs for Churchill.
The court next addressed coverage for MLP and whether the underlying action was a "Securities Action." To qualify as a Securities Action under the policy, the underling claim had to involve the purchase or sale of securities, or had to be brought by securities holders. The theory of the underlying lawsuit was that MLP, as developer of the project, hid the truth and misrepresented the status of the project, and its financial state, thereby injuring the underlying plaintiffs. The court agreed with Liberty that such a theory prevented characterization of the underlying lawsuit as an action "arising from or sale of, or offer to purchase or sell, any securities issued by the Insured Organization."
Accordingly, Liberty's Motion for Summary Judgment and MLP's Motion for Partial Summary Judgment were granted in part, denied in part.
The Illinois Court of Appeals reversed summary judgment entered for the insurer and found the general contractor, an additional insured under the policy, was entitled to a defense. Hastings Mut. Ins. Co. v. Blinderman Constr. Co., Inc., 2017 Ill. App. LEXIS 661 (Ill. Ct. App. Oct. 24, 2017).
Blinderman was the general contractor on a construction project for an elementary school. Blinderman hired JM Polcurr, Inc. to do the electrical work on the project. By contract, Polcurr was obligated to purchase a policy naming Blinderman as an additional insured for Polcurr's work on the project. Polcurr purchased the policy.
Polcurr's employee, Robert Woods, suffered a serious injury at work on the project. A court appointed Wood's daughter to serve as guardian for Woods and his estate.
Liability arising out of the sole negligence of the additional insured or by those acting on behalf of the additional insured.
Blinderman filed a third-party complaint against Polcurr, arguing that Polcurr should pay a share of any liability assessed against Blinderman because Polcurr failed to inspect the premises, improperly maintained Woods' work area, failed to warn Woods of dangerous conditions, and permitted Woods to use an unstable ladder without appropriate safety equipment.
Hastings then filed suit seeking a declaration that it had no duty to defend or indemnify Blinderman for its potential liability in the underlying case. Blinderman and Hastings both filed motions for summary judgment.
Blinderman supported its motion with its third-party complaint against Polcurr and depositions of two Polcurr employees. The employees testified that Blinderman gave no directions to Polcurr employee about their work. Polcurr employees, including Woods, used only Polcurr equipment.
Nevertheless, the trial court held it could not consider the allegations of the third-party complaint when determining whether Hastings had a duty to defend Blinderman. The court further held that the exclusion for liability arising from Blinderman's sole negligence applied, and Hastings had no duty to defend Blinderman because the underlying complaint did not allege that Polcurr acted negligently. Blinderman appealed.
The appellate court noted that Hastings had the burden of showing that Blinderman's liability arose out of the sole negligence of Blinderman or those acting on Blinderman's behalf and not from the negligent acts or omissions of Polcurr.
In the underlying case, the Estate of Woods did not specifically allege that Polcurr's acts or omissions cuased the injury. But the estate did not expect to recover damages from Polcurr and had no reason to include allegations about the acts or omissions of Polcurr. The complaint's silence concerning Polcurr's acts or omissions did not suffice to meet Hastings' burden of showing the Polcurr's acts or omissions did not contribute to causing the injury.
Further, Blinderman's third-party complaint aginst Polcurr included allegations consistent with the Estate's complaint, showing how Polcurr's acts or omissions might have contributed to causing Woods' injury. However, Blinderman would need to rely on those pleadings only if it bore the burden of proving that Polcurr's acts or omissions might have contributed to causing Woods' injury. Because the Estate's complaint included no allegations about Polcurr's acts or omissions, Hastings did not meet its burden of proving that Blinderman's liability in the underlying case arose out of Blinderman's sole negligence.
The summary judgment entered on behalf of Hastings was reversed.
In a long-standing dispute between a window manufacturer and its insurer, the federal district court found that the insurer was obligated to pay defense costs from the date of installation of the alleged faulty windows even though the underlying complaints did not allege when the damage occurred. Pella Corp. v. Liberty Mut. Ins. Co., No. 4:11-cv-00273 (S.D. Iowa Jan. 16, 2018). The case is here.
The court had previously addressed allocation among the insurer's various policies. It held that the CGL policies provided for pro rata allocation of indemnity payments where a single occurrence triggered multiple policies. The court also held that the CGL policies were ambiguous with respect to allocation of defense costs and thus interpreted the policies in Pella's favor, applying all-sums allocation. The court further granted summary judgment with respect to sample claims where the parties did not dispute which policies were triggered. The court denied summary judgment with respect to the remaining sample claims, finding genuine disputes of material fact prevented summary judgment in Liberty's favor on the issue of when the alleged damage began.
Pella now moved for summary judgment on the issue of when fourteen of the fifteen sample claims first triggered Liberty's obligation to reimburse defense costs. Pella argued that Liberty's duty to defend attached from the point that property damage could potentially have begun, Pella argued this was the time at which the underlying claimant installed the Pella windows at issue in the underlying cases. Liberty contended that the underlying complaints were silent as to when damage began, resulting in a factual dispute between the parties experts about when damage began.
The underlying allegations did not include the time period in which the damage occurred. But there were allegations as to when the allegedly defective windows were sold or installed. These allegations, along with additional facts in the record regarding the sale, delivery, and installation of the windows established that the sample claims were potentially brought within the policy periods of various policies highlighted by Pella.
Liberty argued the facts relied upon by Pella did not disclose when damages potentially occurred. The court disagreed. Facts such as when the windows were installed or when the structure containing the windows was completed shed light on when damage may potentially have occurred. The potential for coverage was sufficient to invoke Liberty's duty to defend. There was no genuine issue for trial on the question of which Liberty policies were triggered by the sample claims with respect to Liberty's duty to reimburse defense costs under the applicable policies.
One insurer's refusal to defend based upon its "other insurance" provision ultimately meant the insurer had to pay all of the insured's defense costs. Steadfast Ins. Co. v. Greenwich Ins. Co., 2018 Wis. App. LEXIS 51 (Wis. Ct. App. Jan. 17, 2018).
Milwaukee Metropolitan Sewerage District (MMSD) was a government agency that provided water reclamation and flood management services to the city. From March 1, 1998 to February 20, 2008, MMSD contracted with United Water Services Milwaukee LLC to operate the sewerage system. From March 1, 2008 on, MMSD contracted with Veolia Water North America-Central, LLC to operate the system.
Through agreements, both companies were obligated to indemnify MMSD for claims arising out of the operations and maintenance of the system and to obtain insurance to cover their indemnity obligations. Both companies complied.
In June 2008, heavy rain overwhelmed MMSD's sewer system and more than 8,000 homeowners reported basement sewage backups. Four rain event lawsuits were filed against MMSD. The suits alleged that MMSD and Veolia were negligent in the inspection, maintenance, repair and operations of the system. United Water was later named as a defendant in one of the lawsuits.
MMSD tendered its defense to Steadfast and Greenwich. Steadfast, the insurer for Veolia, which had named MMSD as an additional insured, accepted the tender and defended MMSD. Greenwich, United Water's insurer, did not accept the tender and did not pay any of the defense costs. The underlying suits eventually settled without MMSD or Steadfast making any contribution to the settlement. However, Steadfast reimbursed MMSD $1.55 million towards defense costs that MMSD incurred.
Steadfast then sued Greenwich to recoup the monies it paid to MMSD for defense costs. The parties filed cross-motions for summary judgment. The trial court denied Greenwich's motion, finding Greenwich had breached its duty to defend MMSD and thereby waived its rights to raise any coverage defense. After further motion practice, the court awarded Steadfast judgment against Greenwich in the amounts of $1.55 million as damages and $325,500 as attorney fees for the coverage action. Greenwich appealed.
The court first analyzed the other insurance provisions in the Greenwich and Steadfast policies. Other insurance provisions were effective in situations involving concurrent coverage. Here the policies were successive, not concurrent. They did not cover the same time period. The court concluded that the Greenwich policy provided primary coverage for the claims against MMSD for the earlier conduct of United Water in operating and maintaining the MMSD system, not excess coverage for that of the Steadfast policy.
Greenwich also argued that MMSD did not exhaust the $250,000 self-insured retention (SIR) in its policy. MMSD had submitted a declaration in the summary judgment proceedings stating that it had paid over $800,000 in defending the underlying cases. The appellate court agreed that the SIR had been met. As a consequence, Greenwich's policy provided primary coverage based on United Water's conduct in operating and maintaining MMSD's system. Further, MMSD was entitled to recover the defense costs, including attorney fees, from Greenwich based upon Greenwich's breach.
Steadfast, as the non-breaching insurer, had a claim for equitable subrogation against Greenwich, who breached its duty to defend. Upon payment to MMSD of defense costs, Steadfast stepped into MMSD's shoes and was entitled to recover from Greenwich the same damages that MMSD would have been entitled to recover from Greenwich.
Finally MMSD was entitled to recover the attorney fees incurred in the coverage action under the Greenwich policy. Under the doctrine of equitable subrogation, Steadfast stepped into MMSD's shoes and was equitably entitled to recover those fees in defending coverage.

matches: v. v. v. v. v. v. v. v.


text:
B.(1) Whoever commits the offense of crime against nature as defined by Paragraph (A)(1) of this Section shall be fined not more than two thousand dollars, imprisoned, with or without hard labor, for not more than five years, or both.
(5) Whoever commits the offense of crime against nature as defined by Paragraph (A)(2) of this Section, where the crime is between uncle and niece, or aunt and nephew, shall be fined not more than one thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.
C.(1) It shall be an affirmative defense to prosecution for a violation of Paragraph (A)(1) of this Section that, during the time of the alleged commission of the offense, the defendant was a victim of trafficking of children for sexual purposes as provided in R.S. 14:46.3(E). Any child determined to be a victim pursuant to the provisions of this Paragraph shall be eligible for specialized services for sexually exploited children.
Amended by Acts 1975, No. 612, §1; Acts 1982, No. 703, §1; Acts 2010, No. 882, §1; Acts 2012, No. 446, §1; Acts 2013, No. 83, §1; Acts 2014, No. 177, §1; Acts 2014, No. 564, §1; Acts 2014, No. 599, §1, eff. June 12, 2014, Acts 2014, No. 602, §4, eff. June 12, 2014; Acts 2018, No. 485, §1, eff. May 25, 2018.

matches: §1 §1 §1 §1 §1 §1 §1 §1 §4 §1


text:
Fayhee, M. John. Along the Arizona Trail. Photo available. Englewood. Westcliffe Pub. 1998. 4to. Hard cover. First edition. Illustrated in black, white and color by Jerry Sieve. Fine copy in fine (very light edge wear) dust jacket (in mylar).
Fazio, Tom. The Golf Courses of Fazio. Photo available. Jupiter. Tom Fazio. 1984. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in very good (edge chip top edge) dust jacket (in mylar).
Fears, J. Wayne. Hunting Whitetails Successfully. Photo available. Minneapolis. North American Hunting Club. 1986. Octavo. Gilt decorated hard cover. First edition. Illustrated. Fine copy.
Feasey, Peggy. Rubies and Roses. Gems Portrayed in Flowers. Photo available. Rutland. Charles E. Tuttle. 1970. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Feather, Norman FRS. An Introduction to the Physics of Mass, Length and Time. Photo available. Edinburgh. University Press. 1959. Octavo. Hard cover. First edition. Illustrated. Fine (owner name on end paper) copy in fine dust jacket (in mylar).
Feck, Luke. Yesterday's Cincinnati. Photo available. Miami. E.A. Seemann. 1975. Octavo. Hardcover. First edition. Illustrated. Important reference work. Fine copy in near fine (very light shelf wear) dust jacket (in mylar).
Fedden, Robin. The Country House Guide. Introducing over 200 Privately Owned Historic Houses in England, Wales and Scotland Open to the Public. Photo available. New York. W.W. Norton. 1979. Octavo. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Feddersen, Martin. Japanese Decorative Art. A Handbook for Collectors and Connoisseurs. Photo available. London. Faber and Faber. 1962. Octavo. Hard cover. First edition. Illustrated. Fine copy (owner names on end papers, edges) in fine dust jacket (in mylar).
Feder, Kenneth L. Frauds, Myths, and Mysteries. Science and Pseudoscience in Archaeology. Photo available. Mountain View. Mayfield. 1990. Octavo. Soft cover. Illustrated. Fine copy.
Feder, Norman. American Indian Art. Photo available. New York. Harry N. Abrams. 1969. 447 pps. Folio. Hardcover. First edition. Illustrated in black, white and color. Important reference work. Fine copy in fine dust jacket (in mylar).
Federal Writer's Project. The WPA Guide to California. The Federal Writer's Project Guide to 1930s California. Photo available. New York. Pantheon. 1984. 714 pps. Octavo. Soft cover. Reprint. Illustrated. Important reference work. Near fine copy (very light shelf wear).
Fedo, Michael W. 'They Was Just Niggers'. An Account of One of the Nation's Least Known Racial Tragedies. Photo available. Ontario. Brasch and Brasch. 1979. 189 pps. Octavo. Soft cover. First edition. Illustrated. Important reference work. Very scarce. Fine copy (light soiling to covers).
Feduccia, Alan. Birds of Colonial Williamsburg. A Historical Portfolio. Photo available. Williamsburg. The Colonial Williamsburg Foundation. 1989. Folio. Hard cover. First edition. Illustrated in black, white and color by H. Douglas Pratt. Fine copy in fine dust jacket (in mylar).
Feeney, Robert E. Professor on the Ice. Inscribed by the author. Photo available. Davis. Pacific Portals. 1974. Octavo. Soft cover. First edition. Illustrated. Inscribed by the author "March 1, 2004. To Nancy Mitt??? With appreciation of her fine Help. R.E. Feeney. Fine copy.
Fees, Paul. The West of Buffalo Bill. Frontier America; Art and Treasures of the Old West from the Buffalo Bill Historical Center. Photo available. New York. Harry N. Abrams, Inc. 1988. 128 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Folding plates. Fine copy in fine dust jacket (in mylar).
Fees, Paul. The West of Buffalo Bill. Frontier America; Art and Treasures of the Old West from the Buffalo Bill Historical Center. Photo available. New York. Harry N. Abrams, Inc. 1974. 289 pps. 4to. Hardcover. First edition. Illustrated in black, white and color. Folding plates. Important reference work. Fine copy in fine dust jacket (in mylar).
Feher, Zsuzsa & Gabor O. Pogany. Twentieth Century Hungarian Painting. Photo available. Budapest. Corvina Press. 1971. 4to. Hard cover. Enlarged edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Feherty, David. David Feherty's Totally Subjective History of the Ryder Cup. Photo available. New York. Rugged Land. 2004. 4to. Hard cover. First edition. Illustrated in color and black and white. Fine copy in fine dust jacket (in mylar).
Fehrenbach, T.R. Lone Star. A History of Texas and the Texans. Photo available. New York. Collier. 1980. Octavo. Soft cover. First edition thus. Fine copy.
Fehrenbach, T.R. Seven Keys to Texas. Photo available. El Paso. Texas Western Press. 1983. 140 pps. Octavo. Hardcover. First edition. Important reference work. Fine copy in fine dust jacket (in mylar).
Feiffer, Jules. A Room with a Zoo. Photo available. np. Michael de Capua. 2005. Octavo. Hard cover. First edition. Illustrated. Fine copy in fine dust jacket (in mylar).
Feiffer, Jules. Feiffer's Album. Photo available. New York. Random House. 1963. 4to. Decorated hard cover. First edition. Illustrated. Near fine copy (very light shelf wear).
Feiffer, Jules. I'm Not Bobby! Photo available. np. Self published. 2001. 4to. Hard cover. First edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Feiffer, Jules. I'm Not Bobby! Photo available. New York. Michael di Capua Books. 2001. 4to. Hardcover. Stated first edition. Illustrated in black, white and color. Fine copy in fine dust jacket (in mylar).
Feiffer, Jules. The Daddy Mountain. Signed by the author. Photo available. np. Michael di Capua Books. 2004. 4to. Hardcover. Stated first edition. Illustrated in black, white and color. Folding plate. Important reference work. Signed by the author. Fine copy in fine dust jacket (in mylar).

matches:
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine
in fine


§ 36-8-1. Definition of terms.
§ 36-8-2. Establishment of system.
§ 36-8-3. Responsibility for administration  Rules and regulations.
§ 36-8-3.1. Immunity of board members.
§ 36-8-4. Composition of retirement board.
§ 36-8-4.1. Fiduciary and continuing education requirements.
§ 36-8-5. Vacancies on board.
§ 36-8-6. Votes of board  Record of proceedings.
§ 36-8-7. Reimbursement of board members.
§ 36-8-8. Annual report and statement.
§ 36-8-8.2. Special pension benefits.
§ 36-8-9. Legal adviser  Treasurer  Executive officers and secretary.
§ 36-8-10. Accounts and statistical records  Clerical and professional assistance  Disbursements.
§ 36-8-10.1. Payment of administrative expense of the retirement board and maintaining the retirement system  Restricted receipts account.
§ 36-8-11. Collection of actuarial and experience data.
§ 36-8-12. Actuarial investigations authorized by board.
§ 36-8-13. Periodic actuarial investigations and valuations  Adoption of tables and rates.
§ 36-8-14. Annual valuation of assets and liabilities.
§ 36-8-15. Custody and investment of funds.
§ 36-8-16. Disposition of investment earnings.
§ 36-8-17. Improper interest in investments of board.
§ 36-8-20. Internal Revenue Code qualification.


The second paragraph of Shema (Deut 11:13-21) has significant overlaps with the first (Deut 6:4-9), including some identical phrases and core concepts. It was likely written as a later elaboration of the first, a process that may reflect the earliest stages of the Shema becoming a central text.
By the period of the Mishnah, the twice daily recitation of the Shema prayer, named after its first word (“hear”) and consisting of Deut 6:4-9 and 11:13-21, was a standard practice. Together they comprised the central biblical text in the rabbinic liturgy. The prehistory of this development is unclear. Neither of these units are especially significant in the Bible, and neither is presented as a prayer; each are presented as part of Moses’ long address.
The Nash Papyrus, from the second century B.C.E., which has Deut 6:4-5 following the Decalogue, may reflect the earliest liturgical use of that initial paragraph. Both Philo and Josephus, from the first century C.E., imply the recitation of what now constitutes the first two paragraphs of the Shema; this may suggest that these two paragraphs were part of the liturgy in the late Second Temple period.
These two units are connected in terms of style and content; although this might initially suggest that they are by the same author, I would propose that Deut 11:13-21 was written as an elaboration of Deut 6:4 (or 5-9).
As scholars have long recognized, the D source, comprising the bulk of Deuteronomy, is a complex composition with a long history. It should therefore not be surprising that one unit now found in Deuteronomy may have reworked another unit.
The following chart highlights the overlap between these units; it includes the verses in ch. 11 that contain significant similarities to ch. 6. This overlap is so significant that the Tosefta can imagine a person reciting the paragraphs of the Shema prayer from memory and getting confused between the first and second paragraph.
Deut 6:5 You shall love YHWH your God with all your heart and with all your soul and with all your might.
6:6 Take to heart these words with which I charge you this day.
6:7 Impress them upon your children. Recite them when you stay at home and when you are away, when you lie down and when you get up.
11:20 and inscribe them on the doorposts of your house and on your gates.
6:9 and 11:20 are identical (except for one minor difference in matres lectionis spelling) and contain the concept of writing these things on doorposts and gates, which is found nowhere else in the Bible.
The elements are ordered differently in the two units.
These differences suggest that the two passages are not by the same author.
Biblical books are not arranged in the order in which they were written—late material may be inserted toward the beginning of a book. Thus, it is not immediately obvious which of these two units in Deut 6 and 11 is earlier or later.
In some cases, linguistic evidence may be used to date the relative chronology of two texts, but neither of these units shows obvious signs of being later linguistically than the other. Several other factors, however, point to the priority of 6:5-9. No one of these factors is determinative, but together they suggest that 11:13-21 knows, and is interpreting, 6:5-9.
Later authors are conservative in nature, and thus typically add, but do not delete. Deut 11:13-21 contains two blocks of material not found in 6:5-9, in 11:14-17 and in 11:21. Both of these texts function to explain why the mitzvot must be observed. It makes sense that an author would add this to a text, but it is more difficult to imagine why an author would have deleted this particular material.
When compared side by side, Deut 11 shows two cases of likely simplification.
Changing ושננתם to ולמדתם – Deut 6:7 opens with the difficult word וְשִׁנַּנְתָּם, from the root שׁנן (sh-n-n), typically translated as “impress”; this word is hapax (unique) in this sense. Some believe that it is a biform of the root ש.נ.ה/י, which means “to repeat”; indeed, the sages of the period of the Mishna are called tannaim, “repeaters” (namely “memorizers”), from a related root. Other lexicographers relate it to the usual meaning of the root שׁנן (sh-n-n), “to sharpen,” and thus translate it as NJPS does, “impress.” In any case, the word is difficult.
Deut 11:19 reads instead וְלִמַּדְתֶּם אֹתָם, “and teach,” using a much more common and clear root—one first found in Deuteronomy, which characterizes that book. It is more likely that a later scribe would simplify a difficult word rather than replacing a common word with a difficult one.
Mark 12:30: you shall love the Lord your God with all your heart, and with all your soul, and with all your mind, and with all your strength.
Matthew 22:37: You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.
וּבְכָל מְאֹדֶךָ – בְּכָל מָמוֹנְךָ. דָּבָר אַחֵר בְּכָל מְאֹדֶךָ, בְּכָל מִדָּה וּמִדָּה שֶׁהוּא מוֹדֵד לְךָ הֱוֵי מוֹדֶה לוֹ בִּמְאֹד מְאֹד.
“And with all your might (me’odekha)” – with all of your money. Another interpretation: “With all your might”: with each and every measure (middah) that he measures out for you, thank him very much.
It would make more sense for a scribe to replace a difficult word with a more straightforward one, or omit it completely, than to add in a word with an unclear meaning.
Later scribes often introduce grammatical inconsistencies into the texts they rework, especially when they rework a text into a passage that has a different grammatical form or voice than the original passage. These inconsistencies are not always visible in English, for example, when grammatical gender alternates, or when the 2nd person singular and 2nd person plural, both of which are identical in English, alternate. Also, many translators tend to flatten out Hebrew grammatical inconsistencies to create a smoother translation. Deut 11:13-21 shows two such inconsistencies.
וְנָתַתִּי עֵשֶׂב בְּשָׂדְךָ לִבְהֶמְתֶּךָ, “I will also provide grass in the fields for your cattle” (v. 15).
Surely it is YHWH, and not Moses, who will provide the rain and grass! Although the LXX, SP, one Qumran mezuzah (8QMez), and one pair of ancient tefillin (4QPhyla) have an alternative reading here, “he will give” (ונתן, καὶ δώσει), these are likely secondary attempts to smooth over the text. And yet, chapter 11 is framed, like chapter 6, as Moses’ first person discourse, and also refers to YHWH in the third person, such as in v. 13, “loving YHWH your God” (לְאַהֲבָה אֶת יְ-הוָה אֱלֹהֵיכֶם). The inconsistent text is often later—such inconsistencies generally reflect incomplete editorial incorporation of other material.
Deut 11:13 If, then, you [plural] obey the commandments with which I charge you [plural] this day, loving YHWH your [plural] God and serving Him with all your [plural] heart and your [plural] soul.
Deut 11:21 to the end that you [plural] and your [plural] children’s days may be long in the land that YHWH swore to your [plural] fathers to assign to them, as long as there is a heaven over the earth.
דברים יא:טו וְנָתַתִּ֛י עֵ֥שֶׂב בְּשָׂדְךָ֖ לִבְהֶמְתֶּ֑ךָ וְאָכַלְתָּ֖ וְשָׂבָֽעְתָּ.
Deut 11:19 …when you [singular] stay at your [singular] home and when you [singular] are away, when you [singular] lie down and when you [singular] get up.
The second inconsistency is particularly stark, since the first half of this very same verse uses the second person plural: וְלִמַּדְתֶּם אֹתָם אֶת־בְּנֵיכֶם, “and teach [plural] them to your children.” The best explanation for these sudden shifts to second person singular is that the scribe composing this section was copying phrases from other verses which were in the singular—verses found in Deut 6:4-9.
The use of the singular pronouns in 11:19b is both easy to explain and directly relevant to the question of priority: the scribe has slavishly copied over 6:7, and has forgotten in this case to modify the singular suffixes to plural ones. The inconsistency in v. 15 is because, as I will explain below, v. 15 is summarizing and paraphrasing Deut 6:10-19, where Israel is addressed in the singular—that text has been reworked in ch. 11, but the author forgot to change the pronouns from singular to plural. Thus, the inconsistency of 11:13-21 in relation to the perfect consistency of 6:4-9 suggests that 6:4-9 is earlier than, and was used as the source for, 11:13-21.
Why Was Deut 6:5-9 Modified?
Deut 6:15 for YHWH your God in your midst is an impassioned God—lest the anger of YHWH your God blaze forth against you and He wipe you off the face of the earth.
The author of Deut 11:13-21 has taken the gist of these verses, and has added them into his revised text. He does so in two places, in 14-17, which discusses reward and punishment in agricultural terms, and in v. 21, which rewards obedience with land tenure, as in 6:18. He thus makes this unit more complete by stating that covenant obedience results in blessing, and disobedience in being cursed.
Anyone reworking a text is likely to clarify it, resolving lexical or syntactic difficulties. Both of these types of clarification are evident in 11:13-21 in relation to its base text of 6:5-9. Most people who recite the Shema are not aware of these difficulties since it is natural to take the interpretations of ch. 11 as the correct and only meaning of ch. 6.
The two lexical difficulties of ch. 6 that were resolved by the author of ch. 11 were noted above: the omission of lexically difficult וּבְכָל־מְאֹדֶךָ, literally, “all your veryness” (v. 5) and the simplification of the hapax וְשִׁנַּנְתָּם, either “you shall recite them” or “you shall impress them” (v. 7) to the more common וְלִמַּדְתֶּם אֹתָם, “you shall teach them” (11:9).
Other lexical issues were also clarified through the rewrite. For example, Deut 6:5 insists that God must be loved—but what does this mean? Is it an abstract love, or what has been called “covenant love,” love expressed through actions? 11:13, by adding the word וּלְעָבְדוֹ, “and to serve him,” after לְאַהֲבָה אֶת־יְ-הוָה אֱלֹהֵיכֶם, “loving YHWH your God,” clarifies that the latter is meant—love of God is expressed through divine worship.
Again, these examples of how Deut 11 revises Deut 6 illustrate how later texts typically clarify earlier ones; if the order of the texts’ composition is reversed, and ch. 11 is seen as earlier than 6, these differences are much more difficult to explain.
Instead, the phrase הַיּוֹם עַל־לְבָבֶךָ, “today upon your heart,” may be connected to the immediately preceding words, אֲשֶׁר אָנֹכִי מְצַוְּךָ, “which I command you,” namely, “which I command you today upon your heart.” In that case, the verse would mean something very different, and should be rendered as a preamble to the following v. 7; both verses together would them be translated: “You shall teach to your children these things that I am commanding you today upon your heart”—in other words, these things are being implanted into the heart of the wilderness generation, but need to be actively imparted to the next generations.
The paraphrase of this section in ch. 11 disambiguates this syntax when it uses the verb שִׂים, “to place,” in its paraphrase in v. 18: וְשַׂמְתֶּם אֶת־דְּבָרַי אֵלֶּה עַל־לְבַבְכֶם וְעַֽל־נַפְשְׁכֶם, “Therefore impress these My words upon your heart and your soul.” Thus, ch. 11 understands the syntax in the same way as NJPS, or, said more accurately, NJPS follows the understanding of the syntax of 6:6-7 that is evident in 11:18.
In other words, it is uncertain what the time clause introduced with בְּשִׁבְתְּךָ, “when you stay at home” modifies. Does it modify the preceding two words, וְדִבַּרְתָּ בָּם, “recite them,” or the entirety of the first half of the verse, the four words וְשִׁנַּנְתָּם לְבָנֶיךָ וְדִבַּרְתָּ בָּם, “Impress them upon your children and recite them”?
Why does this matter? Because it affects what you need to do “when you stay at home and when you are away, when you lie down and when you get up”: recite something, or both teach and recite something. NJPS assumes the former, that the verse refers to two separate activities, of teaching (always) and reciting (at home and away, when lying down or getting up). The second rendition is favored by the Masorah, which puts the etnachta (the sentence divider) under the fourth Hebrew word, suggesting that the verse is referring to a single activity.
The syntax of the first half of 11:19 favors reading impressing and reciting as two related rather than separate activities. The text in ch. 6 is ambiguous because it contains two verbs in the same aspect or “tense”: בָּם וְשִׁנַּנְתָּם וְדִבַּרְתָּ, “impress” “recite.” Deut 11:19, however, replaces the second verb form with a lamed (“to” or “-ing”) and an infinitive: וְלִמַּדְתֶּ֥ם אֹתָ֛ם אֶת־בְּנֵיכֶ֖ם לְדַבֵּ֣ר בָּ֑ם, “you shall teach your children-reciting them,” (or: “to recite them”) where the second verb, now an infinitive, is clearly modifying the first, and is not a separate, different action.
These various clarifications in 11:13-21 were not the main reason that motivated the paraphrase of 6:4-9—that was, as discussed above, the lack of reward and punishment in the unit. But while reworking the unit, these changes were naturally made along the way.
Is the Earliest Attested Interpretation Always Correct?
It is tempting to assume that the earliest extant interpretation of a passage is the most correct interpretation, especially in a case like this where it is from the biblical period itself; after all, the earliest interpretation is most proximate to the original text. But I would urge caution with regard to this principle.
For example, it is generally acknowledged that Daniel 9:24 is explaining the “seventy years” of Jer 29:10 to mean 490 years; this was not the original sense of the prophecy. Thus, I am uncertain if Deut 11 is always capturing the original intent of Deut 6. I am not at all positive that וְלִמַּדְתֶּם, “you shall teach” is a precise synonym for וְשִׁנַּנְתָּם, “you shall impress/repeat”; it may be the revisor’s paraphrase or guess, based on context. Nor am I certain that 11:19 properly understood the syntax of 6:7, which may indeed refer to two separate activities, as suggested by the NJPS, and against the Masorah.
As discussed in the introduction, we know very little about when and how the Shema became a central Jewish liturgical text. But this survey is of some value in that regard, for it shows that at some point in the biblical period, Deut 6:5-9 was important enough to be reinterpreted and supplemented. 2 Kings 23:25 also reuses the end of Deut 6:5 in relation to one of its heroes, Josiah, as a way of saying that he was fully faithful to (some form of) the Deuteronomic law.
Thus, this exploration of Deut 11:13-21 illustrates the beginning stages that suggest the importance of Deut 6:4-9 as a central text. Later, this central text would become a central prayer.
* I would like to thank the other editors of TheTorah.com, and Professors Bernard Levinson, Reuven Kimelman, Tania Notarius and Jeffrey Stackert, and Mr. Cody David, who offered helpful comments on earlier versions of this piece.
 Num 15:37-41 was added later and even in Mishnaic times it was unclear whether it should be recited twice daily or only in the morning recitation. See m. Berakhot 1:5, t. Berakhot 1:10. Moreover, the connection between the first two paragraphs is much tighter than the connection between them and the third paragraph; the first is explained in terms of accepting מַלְכוּת שָׁמַיִם, “the kingship of heaven,” namely belief in God, which logically precedes accepting עוֹל מִצְווֹת, “the yoke of the commandments” (m. Ber. 2:2).
 See Naomi G. Cohen, Philo Judaeus: His Universe of Discourse (Frankfurt am Main: Peter Lang, 1995), 129-170.
 For some discussion of this, see, David Frankel, “The Covenant in Moab: Deuteronomy Without Horeb,” TheTorah.com (2018); ibid., “Moses’ Commandments: The Secret of Nissim of Marseilles,”, TheTorah.com (2015); Zev Farber, “Does the Torah Really Want Us to Appoint a King?” TheTorah.com (2016).
 In this chart, the NJPS has been adjusted slightly to follow the Hebrew more exactly, highlighting more clearly the similarities and differences in the two passages.
 The overlap does not extend to Deut 6:4, which is omitted from this discussion.
 I am not the first scholar to see the connection between these two units; in fact, their similarity is responsible for their juxtaposition in the Shema prayer. For previous scholars, see esp. Eckart Otto, Deuteronomium 1–11 (Herders Theologischer Kommentar zum Alten Testament; Stuttgart: Herders, 2012), esp. 1059-1060, who acknowledges and discusses the connection between these two units, but offers a different solution, based on his particular understanding of the redaction and history of development of Deuteronomy. See also esp. Reinhard Achenbach, Israel zwischen Verheißung und Gebot: Literarkritische Untersuchungen zu Deuteronomium 5-11 (Frankfurt am Main: Peter Lang, 1991), 206-209, and Yitzhaq Bakon, “The First Two Portions of the Recitation of the Shema in the Book of Deuteronomy,” BetM 33 (1987), 355-366 (Heb), whose treatment of these issues is synchronic rather than diachronic. Reuven Kimelman was also kind enough to share sections on the Shema from his forthcoming book on the Jewish liturgy. My treatment uses many insights from all these works, but offers a different understanding of the connection between the two units.
One who recites the Shema and erred, and who does not know where he erred, should go back to the beginning [and recite the whole again]. If he erred in the middle of a paragraph, he should go back to the beginning of that paragraph. If he confused the first mention [of the words] “and you shall write” (Deut 6:9) with the second mention of “and you shall write” (Deut 11:20), [and thereby skipped from the first paragraph to the second], he should go back to the first mention.
 “Headband” is likely a better translation; see Jeffrey H. Tigay, “On the Meaning of ṭōṭāpōt,” JBL 101 (1982), 321-331.
 Genesis is an excellent example of this: The initial chapter is by P, who was later than J, the author of the following Garden of Eden story.
 On the criteria for determining that two texts are related, and the direction of their relation, see Ziony Zevit, ed., Subtle Citation, Allusion, and Translation in the Hebrew Bible (Sheffield: Equinox, 2017).
 For recent literature on inner-biblical interpretation, see the index of the book cited in the previous note, esp. s.v. Fishbane, Leonard, Levinson, and Sommer. For an introduction, see Benjamin D. Sommer, “Inner-biblical Interpretation,” in Adele Berlin and Marc Zvi Brettler, eds., The Jewish Study Bible (2nd edition; NY: Oxford Univ. Press, 2014), 1835-1841.
 See the comments on biblical redactors in Jeffrey H. Tigay, “Anthology in the Torah and the Question of Deuteronomy,” in David Stern, ed., The Anthology in Jewish Literature (NY: Oxford Univ. Press, 2004), 18-19.
 Compare the two main biblical lexica: HALOT takes the first view, BDB the second.
 The only other exception is in 2 Kings 23:15, which is quoting Deut 6:5.
 The New Testament is a significant source for how the Bible was understood in Jewish circles in the late first-century CE.
 Editors’ note: Double translation is an ancient strategy for unclear words. For a discussion of the LXX’s use of double translation, see Ziporah Talshir, “Double Translations in the Septuagint,” in VI Congress of the International Organization for Septuagint and Cognate Studies: Jerusalem 1986 (SCS 23; ed. Claude E. Cox; Atlanta: Scholars Press, 1987), 21-63. For a discussion of double translation in the Targumim, see Michael Carasik, “Syntactic Double Translation in the Targumim,” in Aramaic in Postbiblical Judaism and Early Christianity (eds., E. M. Meyers and P.V.M. Flesher; Winona Lake: Eisenbrauns, 2010), 217-231.
 I would like to thank David Steinberg for reminding me of this reference.
 This second interpretation is based on the associative assonance between the words me’od and middah.
 Many examples of this are adduced by Tigay in his book on Gilgamesh cited in the following note.
 For a similar phenomenon, note how the scribe who reworked the Atra-Hasis epic into tablet XI of the standard Gilgamesh epic, once forgot (in line 49) to change the flood story hero’s name from Atra-Hasis to Utanapishtim. For such inconsistencies, see in general, Jeffrey H. Tigay, ed., Empirical Models for Biblical Criticism (Philadelphia: Univ. of Pennsylvania Press, 1985), 46-49 and the more complete treatment in his The Evolution of the Gilgamesh Epic (Philadelphia: University of Pennsylvania Press, 1982).
 For example, “you walked” may refer to an individual or to a plural entity in English, while Hebrew would distinguish between these— הלכת (masculine singular subject) vs. הלכתם (masculine [or mixed gender] plural subject).
 For an excellent example, see the comments on the secondary Deut 5:9 in Bernard M. Levinson, “Deuteronomy,” in Adele Berlin and Marc Zvi Brettler, eds.., The Jewish Study Bible (second edition; NY: Oxford Univ. Press, 2014), 358.
 This is a classic, well-known problem in Deuteronomy, and is often used to sort out the different levels of the book’s composition. For a summary of some of the older positions, and an idiosyncratic solution, see Duane L. Christensen, “The Numeruswechsel in Deuteronomy 12,” in Duane L. Christensen, ed., A Song of Power and the Power of Song: Essays on the Book of Deuteronomy (Winona Lake, Indiana: Eisenbrauns, 1993), 394-402.
 This phenomenon has been explored in NT texts by my Duke colleague Mark Goodacre, who gives it the apt name “editorial fatigue.” See his “Fatigue in the Synoptics,” NTS 44 (1998), 45-58. In a soon to be published article, Jeffrey Stackert will explore this phenomenon more broadly.
 It is possible that the different ordering of material in chs 6 and 11 is a case of Seidel’s law, where a later source changes the order of material of this source (chiastically) to show that he is quoting; see Moshe Seidel, “Parallels between Isaiah and Psalms.” Sinai 38 (1955): 149-172, 229-240, 272-280, 335-355 [Hebrew]. Reprinted in: Moshe Seidel, Hiqrei Miqra (Jerusalem: Mossad Harav Kook, 1978), 1-97 [Hebrew]. For another example of Seidel’s law, see Hava Shalom-Guy, “Nehemiah 9: The First Historical Survey in the Bible to Mention Sinai and Torah,” TheTorah.com (2018).
 See Emanuel Tov, “The Nature and Background of Harmonizations in Biblical Manuscripts,” JSOT 31 (1985), 3-20.
 On this common usage, see Joüon-Muraoka, §119 h, l.
 For other indications that these verses are a reworking of earlier ideas, see David Frankel, “The Good Land of Israel,” TheTorah.com (2017).
 It is also possible that Deut 26 influenced our author to add sections on blessings and curses related to covenant obedience and disobedience.
 See Jon Levenson, “The Shema and the Commandment to Love God in Its Ancient Contexts,” TheTorah.com (2016).
 For a discussion of the what “these things” might refer to, see Nathan MacDonald, Deuteronomy and the Meaning of “Monotheism” (FAT21; Tübingen: Mohr Siebeck, 2003), 125-128.
 For a similar idea elsewhere in Deuteronomy, see my, “Is Israel’s Repentance a Foregone Conclusion?” TheTorah.com (2016).
 The biblical cantillation marks function not only as musical notes, but as punctuation marks of sorts. The etnachta ֑ divides the verse into two sections.
 This is one of many cases where the NJPS is not true to its claim that it follows MT; see the brief discussion in Emanuel Tov, “Textual Criticism,” Jewish Study Bible (second edition), 2151-152.
 It is also possible that the desire to recast Deut 6:4-9 in terms of communal rather than individual responsibility was another reason behind the revision in 11:13-21.
 See Sommer, “Inner-biblical Interpretation,” 1837-1838.


Franz Kafka’s novel The Trial relates the parable “Before the Law,” of a dying man who spends years by the open doorway of the Law asking a guard permission to pass through. The guard denies all his requests. Finally, the man beckons the guard, and asks: “Everyone strives to attain the Law, how does it come about, then, that in all these years no one has come seeking admittance but me?’” In response, the guard bellows: ‘No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it.” The parable is an apt simile to the experience of Illinois taxpayer defendants in Illinois False Claims Act (“IFCA”) proceedings.
Consider this scenario. An Illinois business consults an accountant or an attorney on a rule of tax law, and can prove it followed the advice. The business is sued for fraud on that rule of law. The business may hoist the defense, or at least the cost of defense, to the advisor or it may sue the advisor. In an IFCA scenario, consider instead that the business is an Illinois taxpayer, and the advice received and followed is in a regulation by the Department of Revenue (“Department”) – say, on the interstate commerce exemption of the Retailers’ Occupation Tax Act (“ROTA”).  Based on an anonymous allegation of fraud, the Department audits the exempt transactions and finds no liability to assess. If the government were to assess tax, despite the taxpayer’s compliance with the regulation, the liability would be abated in full, by law.  There is no similar statutory recourse, however, when the government allows a third party to sue alleging IFCA violations identical to, and for the same tax periods as, the anonymous allegations that triggered the audit that found no liability.
An Illinois taxpayer has these options today: (a) stop the transactions at issue because each day of complying with the regulation accrues potential liability in excess of its daily receipts, and watch as customers take their business to competitors not facing an IFCA suit; (b) pay a costly settlement (in which the government will share), but disregard the regulation going forward and risk future liability for over collecting tax from consumers; or, (c) bankrupt itself in years of litigation defending a baseless lawsuit. There is no right, nor just option — that is the dilemma for every Illinois taxpayer.
The government contends that its audits would not pick up communications between the retailer and its customers, and that a conversation, text or email, for example about shipping a purchased item to an out-of-state address, might evidence a conspiracy. That justification for the dilemma created by using the IFCA nullifies the basis for the statutory requirement to keep books and records and to make them available for audit by the government.  That position also turns on its head the government’s litigation position that testimony alone does not outweigh contrary books and records.  Respect for the rule of law is undermined when compliance with the law offers no shield against liability, for the following reasons.
Second, this approach holds a retailer liable under the Retailers’ Occupation Tax Act for post-sale (future) actions of a customer that, if they occur, should have triggered Use Tax Act liability for the customer. That unlawfully converts a retailer from a statutory collection agent into a guarantor of its customer’s tax liability for the customer’s own violations. The Supreme Court rejected such an approach in Hertz Corporation v. City of Chicago.  A seller’s inability to predict a customer’s future use of an item does not depend on whether a Chicago or State tax law applies.
Fifth, using IFCA prosecutions to fill in gaps in regulations is incompatible with the concept and definition of a “rule” under the Administrative Procedure Act.  The better policy is to amend the regulation for additional steps retailers must take or document to avoid becoming defendants and guarantors of their customer’s use tax obligations. The possible amendments could instruct retailers, for example, to: (a) record customer conversations and maintain the recordings; (b) script and maintain the script of conversations with customers (or obtain a Private Letter Ruling approving the scripted conversation); (c) archive all customer emails, voice-mails and text-messages; (d) print specific disclaimers or warnings on invoices that retailers do not provide tax or legal advice and that customers may owe taxes if they return shipped items to Illinois, or (e) simply send the business elsewhere if there is any suspicion – other than one based on race, gender, sexual-preference, religion, or any other actionable basis — of future taxable use by a customer.
The IFCA, under a different name at first, was enacted in 1993, and purposefully patterned on the federal False Claims Act. The federal FCA excludes from its scope violations of the Internal Revenue Code (“IRC). Although the IRC contains many excise and other taxes not based on income, a layperson probably associates it only with the income tax. Unfortunately, the General Assembly’s effort to mirror the federal FCA reflects that lay person’s understanding, so it excludes only the Illinois Income Tax Act from its scope, creating from the outset a lack of symmetry with the federal FCA that leaves all other State non-income taxes open to privateer enforcement. That lack of symmetry puts Illinois taxpayers at greater risk than other IFCA defendants because it is federal case law that is often cited in Illinois for instances which, due to the federal FCA’s exclusion of IRC matters, have never arisen under the federal law. For instance, there is one Cook County circuit court ruling holding that a prior disclosure to the Department is not a “public” disclosure because tax matters are statutorily confidential, i.e. not public, and so remain confidential unless litigated. Such a disclosure to an agency charged with enforcement of the alleged violation is sufficient to support dismissal in some federal judicial districts, and in Illinois courts where the Illinois agency with oversight of the alleged subject matter is not subject to statutory confidentiality. Illinois taxpayers therefore have fewer defenses than other IFCA defendants solely because of this accidental (negligent) lack of symmetry.
If there is a common thread to the hundreds of IFCA privateer actions filed for tax matters since 2003, it is the lack of a cohesive principle of tax enforcement from one case to the next. The first wave of tax IFCA cases alleged nexus use tax collection violations of Section 2 of the Illinois Use Tax Act. Litigation on these cases lasted over 10 years – the Department had no role in the selection of defendants nor in the arguments presented to the courts. In the second wave of IFCA cases hundreds of taxpayers felt coerced by the excessive costs of litigation to settle cases where, although they collected taxes on internet sales, they did not do so on shipping charges because they followed regulations allowing that treatment due to the Department’s failure to update the regulation for contrary case law.  In that instance, that door closed only after the Department and the Attorney General were sued by an industry group to cease IFCA prosecutions until the amendment of the regulations to reflect favorable private letter rulings – that amendment later allowed dismissal of the action.  In another belated reaction, the Attorney General, having declined intervention in a case at the trial court, filed as an amicus on appeal supporting denying the double recovery of a damages award and attorney fees to an IFCA plaintiff acting as its own attorney.  Yet, in the fifteen years preceding that high profile appeal the Attorney General had participated in, and received a statutory share of, hundreds of settlements that required payment of such a double recovery.
Variations of IFCA prosecutions continue, such as those based on conversations rather than documents, or by competitors of defendants who engage in no transaction with the defendants – e.g. lack first-hand knowledge of, and books and records for, actual transactions – but allege the competitors’ transactions are IFCA violations. No cohesive tax enforcement policy opened the doors to the courthouse for these cases, nor have cohesive policies arisen from these cases, other than a policy of accepting settlements, mostly on plaintiffs’ terms, and a policy to take belated common-sense action when issues achieve a high profile in the courts.
If you don’t know where you’re going, any road will take you there.  It is time government pick a direction, or formulate rules of the road, and not simply follow wherever the next plaintiff may lead.
If the Department does not agree with the asserted theory of liability, despite assuming that all alleged facts are true and that any unalleged but necessary facts would favor the plaintiff, deny the plaintiff permission to proceed in court.
If all the alleged facts are assumed to be true and the unalleged but necessary facts are assumed to favor the plaintiff, and the Department agrees with the theory of liability asserted by the plaintiff, then issue a subpoena to the potential defendant for any alleged facts the Department would like verified, and for any unalleged additional facts the Department requires to determine whether it would assess tax.
If the response to the subpoena is not satisfactory or not provided, grant the plaintiff permission to proceed in court.
On the other hand, if there is no alternate remedy at least as effective as proceeding in court, and the Attorney General determines the plaintiff has the expertise and financial ability to expeditiously prosecute the action in court, and that no other policy reason merits the exercise of prosecutorial discretion to dismiss the action, then grant the plaintiff permission to proceed in court.
If the Attorney General determines that plaintiff’s counsel lacks either or both the expertise and financial ability to expeditiously prosecute the action in court, intervene to take over the litigation or to dismiss for prosecutorial discretion.
A more difficult parameter to set is that of “materiality.” Relative to the cost of a Department audit, the cost of IFCA proceedings alone – aside from damages and penalties – ranges from punitive, e.g., exceeding the potential tax recovery, to confiscatory, i.e., where the taxpayer considers going out of business. Often, the potential recovery does not justify inflicting the crippling costs of defense on a taxpayer, even if all the allegations are assumed to be true.
The last 15 years of IFCA experience in tax matters have undermined the rule of law. Where the positions are contrary to regulations, or not based on books and records that comply with the regulations, or the costs of defense are out of all proportion to the potential recovery, the law is no longer “clear, publicized, stable and just,” nor is it “applied evenly,” nor can one say that “the processes by which the laws are . . . administered and enforced are accessible, fair and efficient.”  Illinois taxpayers deserve better. Through safeguards legislatively incorporated into the IFCA, or through reasonable, known principles for the use of IFCA in tax matters, government must restore taxpayers’ confidence in the rule of law.
*Michael J. Wynne is a partner in the Chicago office of the JONES DAY law firm. The views and opinions set forth herein are the personal views and opinions of the author and do not necessarily reflect those of the Firm. This article should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. The electronic mailing/distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship.
 740 ILCS 175/1, et seq.
 35 ILCS 120/1 et seq.; 86 Ill. Admin. Code § 130.605(c) and (e).
 The plaintiff in an IFCA suit is a private party who, upon meeting the statutory requirements to maintain the action on his, her, or its own behalf and on behalf of the State, is referred to as a “relator.” The term “plaintiff” will be used throughout this article to refer to such a party.
 35 ILCS 120/7. Also see, 35 ILCS 120/13, which makes it a criminal offense to fail to maintain or to produce books and records required by the ROTA.
 Mel-Park Drugs, Inc. v. Department of Revenue, 218 Ill. App. 3d 203 (1st Dist. 1988); Sprague v. Johnson, 195 Ill. App. 3d 789 (4th Dist. 1990).
 The IFCA provides that “[i]n no event” may a person bring an action which “is based upon allegation or transactions which are the subject of a civil suit or administrative civil money penalty proceeding in which the State is already a party.” 740 ILCS 175/4(e)(3). In State of Illinois ex rel Schad, Diamond and Shedden, P.C. v. QVC, Inc., 2015 IL App (1st) 132999, March 31, 2015, ¶ 27, the court found that it was not bad faith for the State to intervene to dismiss an action on the basis that a prior audit was a prior administrative civil money penalty proceeding, although it did not specifically decide the question of whether the audit was such a proceeding.
 35 ILCS 120/1g provides for exemption identification numbers, and 35 ILCS 120/2c provides for resale numbers.
 Searle Pharm., Inc. v. Dept. of Revenue, 117 Ill. 2d 454 (1987), held it was arbitrary and capricious to discriminate among similarly situated taxpayers and their use of net operating losses based solely on whether they filed as part of a federal consolidated income return.
 A “statement of general applicability that implements, applies, interprets, or prescribes law or policy” is a “rule” under the Illinois Administrative Procedure Act. 5 ILCS 100/1-70. The existence of multiple IFCA cases alleging the same violation by multiple defendants, all of whom can show they are complying with an existing rule, suggests a policy of general applicability has not been incorporated in a regulation, as it should be, and that perhaps a fairer solution is to amend a regulation rather than prosecute hundreds of taxpayers that fall in the interpretative gap the IFCA plaintiff has targeted. See, e.g., the decision in Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351 (2009), interpreting a Department of Revenue regulation in a consumer protection case, which regulation the Department finally amended to reflect the Kean decision many years, and hundreds of IFCA settlements, later.
 In the 19th and prior centuries, “privateers” were individuals authorized by a nation through a ‘letter of marque’ to attack and capture vessels of another nation at war with the issuer. The government’s authorization to a private IFCA plaintiff to pursue a recovery on its own and the State’s behalf is a bit similar, except the private plaintiff must allege the basis for the government to authorize the pursuit.
 Chimney Rock Winery, LLC, The Miner Family Winery, LLC, Staglin Family Vineyards, LLC and The Wine Institute v. Constance Beard, Dir. Ill. Dept. of Revenue, the Ill. Dept. of Rev., and Lisa Madigan, Ill. Atty. Gen., Cir. Ct. Cook County, 2015 L 050552 (Jul. 28, 2015).
 People ex rel. Schad Diamond & Shedden, P.C. v. My Pillow, Inc., 2018 IL 122487 (Sept. 20, 2018).
 Alice: “Would you tell me, please, which way I ought to go from here?” “That depends a good deal on where you want to get to,” said the [Cheshire] Cat. “I don’t much care where,” said Alice. “Then it doesn’t matter which way you go,” said the Cat. “—so long as I get SOMEWHERE,” Alice added as an explanation. “Oh, you’re sure to do that,” said the Cat, “if you only walk long enough.” Alice’s Adventures in Wonderland, Ch. 6, Lewis Carrol.
 Federal FCA case law imposes a demanding materiality standard to sustain a claim. Universal Health Servs., Inc. v. United States ex rel Escobar, 136 S. Ct. 1989 (2016). For example, where the Government reviewed an allegedly fraudulent enterprise several times, but found no need to terminate its contract with the enterprise or apply administrative penalties, the alleged fraud could not have been material to the Government’s decision to make a payment to the enterprise. United States v. Sanford-Brown, Ltd., 840 F.3d 445, 447 (7th Cir. 2016).


Michael Lewis Harris, Assistant Federal Public Defender, Kansas City, Kansas, for Defendant-Appellant.
Robin D. Fowler, Assistant United States Attorney (Jackie N. Williams, United States Attorney, and Nancy Landis Caplinger, Assistant United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.
Before EBEL,HOLLOWAY and LUCERO, Circuit Judges.
Defendant-Appellant John Smith pleaded guilty to possession of pseudoephedrine, one of the ingredients that may be used to make methamphetamine, and was sentenced under the guideline for attempt to manufacture methamphetamine. He argues that there was insufficient evidence that he had attempted to manufacture methamphetamine. We uphold the district court's finding and therefore AFFIRM.
The underlying facts in this case are not disputed. John Smith's girlfriend was in a car accident. The towing company reported a possible methamphetamine lab in the vehicle. DEA agents searched the car and found several jugs full of a milky substance with white sediment at the bottom, two glass cooking pans, a bottle of butane, coffee filters, and a digital scale. The milky substance contained more than 194 grams of pseudoephedrine, one of the main ingredients needed to manufacture methamphetamine using the ephedrine reduction method.(1) One step in this manufacturing process is to crush pseudoephedrine pills and soak them in water.
Also in the car were sales receipts for distilled water, fuel, solvent, filters, aluminum foil, acetone, and pickles. On the basis of these receipts, DEA agents obtained a surveillance video from a local Wal-Mart showing Smith buying the aluminum foil, a gallon of Coleman camp fuel, and a jar of pickles. All of these products have a role in the manufacturing process for methamphetamine. Even pickle jars have a role; they are commonly used as "improvised glassware."
DEA agents also found a handwritten note with telephone numbers for Brookside and Kalo, two businesses that distribute chemicals. Brookside sells iodine and red phosphorus, the other principle ingredients needed to make methamphetamine; it is unknown whether Kalo sells these products, as well. The note also contained a list of "need[s]" and "want[s]" that seemed unrelated to manufacturing methamphetamine, including, for example, mascara, throwing knives, and a dart board.
The agents did not find any evidence in the car of iodine, red phosphorus, sodium hydroxide, hydrochloric acid, or siphoning equipment, all of which are used in the ephedrine-reduction method of manufacturing methamphetamine. There is also no evidence that Smith had a recipe for manufacturing methamphetamine. In 1998, however, Smith was arrested for running a methamphetamine lab and was caught with red phosphorus, iodine, sodium hydroxide, and rubber tubing.
Smith pleaded guilty in this case to possessing pseudoephedrine (a "listed chemical") knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The relevant Sentencing Guideline for possessing a listed chemical (such as pseudoephedrine) is § 2D1.11. In Smith's case, his base offense level under § 2D1.11 for 194 grams of pseudoephedrine would be 18. That guideline provides, however, that "[i]f the offense involved . . . attempting to manufacture a controlled substance unlawfully, apply § 2D1.1 . . . if the resulting offense level is greater than" the level under § 2D1.11. See U.S.S.G. § 2D1.11(c)(1) & application note 2. The PSR determined that Smith was attempting to manufacture methamphetamine, a controlled substance, and therefore applied the cross-reference to § 2D1.1. Using a conservative 50% conversion rate, the PSR found that Smith could have produced 89.7 grams of pure methamphetamine from the pseudoephedrine found in Smith's car, for a base offense level of 30 under the Sentencing Guidelines in effect at the time of Smith's crime.
Smith objected to the application of § 2D1.1 instead of § 2D1.11. The district court overruled this objection and sentenced him to 92 months' imprisonment. On appeal, Smith argues that his actions were not an attempt to manufacture methamphetamine and therefore the application of § 2D1.1 was incorrect.
The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction to review the sentence under 18 U.S.C. § 3742(a). We review the district court's interpretation and application of the Sentencing Guidelines de novo and its factual findings for clear error. United States v. Arevalo, 242 F.3d 925, 927 (10th Cir. 2001). We must "give due deference to the district court's application of the guidelines to the facts." 18 U.S.C. § 3742(e).
To prove an attempt to manufacture methamphetamine, the government must show "(1) intent to manufacture methamphetamine, and (2) commission of an act which constitutes a substantial step towards commission of the substantive offense." United States v. Becker, 230 F.3d 1224, 1234 (10th Cir. 2000), cert. denied, 121 S. Ct. 1666 (2001). Because the main dispute on appeal is whether Smith's actions constituted a substantial step toward manufacturing methamphetamine, we discuss that prong first.
The "substantial step" question appears to be a factual one, or at least one regarding the application of the guidelines to a particular set of facts. See United States v. Neal, 78 F.3d 901, 906 (4th Cir. 1996) ("Whether conduct represents a substantial step depends on the surrounding factual circumstances and, therefore, such determinations are necessarily fact specific." (quotation marks omitted)); United States v. Montanye, 996 F.2d 190, 191 (8th Cir. 1993) ("Whether a defendant's conduct amounts to a substantial step necessarily depends on the facts of each case.").
The "substantial step" required to establish an attempt must be something beyond mere preparation. It must be an act adapted to, approximating, and which in the ordinary and likely course of things will result in, the commission of the particular crime. A substantial step is an appreciable fragment of a crime and an action of such substantiality that, unless frustrated, the crime would have occurred. The step must be strongly corroborative of the firmness of the defendant's criminal intent and must unequivocally mark the defendant's acts as criminal. It should evidence commitment to the criminal venture. However, it is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt . . . .
The dividing line between preparation and attempt is not clear and depends to a high degree on the surrounding factual circumstances.
United States v. DeSantiago-Flores, 107 F.3d 1472, 1478-79 (10th Cir. 1997) (quotation marks, alterations, and citations omitted), overruled on other grounds by United States v. Holland, 116 F.3d 1353 (10th Cir. 1997).
We have stressed that a defendant need not possess a full "working lab" to be convicted of attempting to manufacture methamphetamine. United States v. Leopard, 936 F.2d 1138, 1141 (10th Cir. 1991). Thus, in Leopard, we affirmed a conviction for attempting to manufacture methamphetamine even though the defendant did not have heat, aluminum foil, and distillation equipment, "items that are relatively generic and easily available when compared to the extensive array of sophisticated chemicals and equipment" that the defendant did have. Id. In United States v. Becker, 230 F.3d 1224 (10th Cir. 2000), the defendant possessed a recipe for the "hot" method of making methamphetamine and some (but not all) of the ingredients for that process, as well as most of the ingredients (but not a recipe) for the "cold" method. Id. at 1234. We found this evidence sufficient to support a conviction for attempting to manufacture methamphetamine, because "[m]any of the materials necessary for manufacturing methamphetamine were present, and it is not necessary for every chemical matching each recipe to be present." Id.
Becker and Leopard hold that assembling some (but not all) of the necessary equipment and ingredients can support a conviction for attempting to manufacture methamphetamine, depending on the degree of such assembly. Here, in addition to assembly, the first step of the manufacturing process, i.e., soaking the ground-up pseudoephedrine tablets in water, had already begun. Although Smith had yet to acquire some of the ingredients he would need later in the process, the evidence indicated that these additional items were not difficult to obtain, and that Smith had telephone numbers for two places where he might have been able to purchase them. In Becker, we also found it significant that there was evidence contradicting the defendant's proffered justification for possessing the materials. 230 F.3d at 1234. Here, likewise, it was reasonable for the district court to reject Smith's contention that he was merely making pure pseudoephedrine to sell to some other manufacturer of methamphetamine. In particular, the receipt for Coleman fuel, which is used near the end of the ephedrine-reduction process, casts doubt on this assertion. Although there are numerous legitimate uses for Coleman fuel, it provides some evidence that in the "likely course of things" Smith would have manufactured methamphetamine. Giving deference to the district court's determinations, we conclude the court did not err in finding that Smith had taken a substantial step toward manufacturing methamphetamine.
At oral argument, the Assistant Federal Public Defender asked us to establish a bright-line rule as to what constitutes a substantial step toward manufacturing methamphetamine. While we are sympathetic to his desire to be better able to counsel clients about their expected sentences, we do not believe a bright-line rule is appropriate. Whether the defendant has taken a substantial step is a heavily fact-specific question. Here, we hold only that it is not necessary as a matter of law to show that the defendant actually possessed all the needed precursor chemicals and that the district court did not err in finding a substantial step on the facts of this case.
Smith also objects that there was insufficient evidence that he intended to manufacture methamphetamine. "Intent and knowledge, however, can be inferred from surrounding circumstances." Leopard, 936 F.2d at 1141. Thus, in Leopard, the defendant's attempt to purchase most of the necessary ingredients was enough to allow a jury to infer beyond a reasonable doubt that he intended to manufacture methamphetamine. The evidence discussed above could give rise to an inference that Smith intended to manufacture methamphetamine. The district court did not clearly err in so finding.
Through a number of chemical reactions, the pseudoephedrine is extracted from the binding material of  cold medicines, then chemically altered to become meth. Other chemicals are also employed at each stage of the reactions (including methanol, acetone, muriatic acid, lye, etc.), but iodine, phosphorous and pseudoephedrine are the key components necessary to the ephedrine reduction method.
United States v. Hollingsworth, -- F.3d --, -- n.2, 2001 WL 849208 (8th Cir. 2001).