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Doe v. State

United States District Court, D. Nebraska

October 17, 2012

John DOE, et al., Plaintiffs,
State of NEBRASKA, et al., Defendants. John Doe, Plaintiff,
Nebraska State Patrol, et al., Defendants. John Doe, Plaintiff,
State of Nebraska, et al., Defendants.

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Jason E. Troia, Joshua W. Weir, Rodney C. Dahlquist, Jr., Stuart J. Dornan, Thomas J. Monaghan, Dornan, Lustgarten Law Firm, Omaha, NE, for Plaintiffs.

Corey M. O'Brien, David D. Cookson, Katherine J. Spohn, Kevin L. Griess, Ryan S. Post, Attorney General's Office, Lincoln, NE, Kimberly M. Watson, Dakota County Office, Dakota City, NE, Timothy K. Dolan Douglas County Attorney's Office, Omaha, NE, Todd Wilson, P.C., Elwood, NE, Michael E. Thew, Lancaster County Attorney's Office, Lincoln, NE, Michael A. Smith Sarpy County Attorney's Office, Papillion, NE, Tonya L. Peters, City of Lincoln, Lincoln, NE, for Defendants.


RICHARD G. KOPF, Senior District Judge.

Earlier I paraphrased Justice Oliver Wendell Holmes and observed that if the people of Nebraska wanted to go to hell, it was my job to help them get there.[1] By that, I meant that it is not my prerogative to second-guess Nebraska's policy judgments so long as those judgments are within constitutional parameters. Accordingly,

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I upheld many portions of Nebraska's new sex offender registration laws even though it was my firm personal view that those laws were both wrongheaded and counterproductive.

However, I had serious constitutional concerns about three sections of Nebraska's new law. After careful study, I granted summary judgment regarding one claim and decided that a trial was necessary to resolve my other concerns. The trial has now been concluded, and I have decided that the remaining portions of Nebraska's sex offender registry laws are unconstitutional.

In short, I can only help Nebraskans get to the figurative hell that Holmes spoke of if they follow a constitutional path. For three sections of Nebraska's new sex offender registry law, Nebraska has violently swerved from that path. I next explain why that is so.


A. Statutes at Issue

Plaintiffs [2] challenge the constitutionality— both facially and as applied— of parts of three statutes: Neb.Rev.Stat. §§ 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 (West, Operative Jan. 1, 2010). Generally, sections 29-4006(1)(k) and (s) require disclosure by persons required to register under the Nebraska Sex Offender Registration Act of remote communication device identifiers, addresses, domain names, and Internet and blog sites used; section 29-4006(2) requires registrants to consent to the search and installation of monitoring hardware and software; and section 28-322.05 criminalizes some registrants' use of social networking web sites, instant messaging, and chat room services accessible by minors.

In relevant part, these statutes provide:

Neb.Rev.Stat. § 29-4006(1)(k) and (s):

(1) Registration information required by the Sex Offender Registration Act shall be entered into a data base in a format approved by the sex offender registration and community notification division of the Nebraska State Patrol and shall include, but not be limited to, the following information:
(k) The person's remote communication device identifiers and addresses, including, but not limited to, all global unique identifiers, serial numbers, Internet protocol addresses, telephone numbers, and account numbers specific to the device; [3]
(s) All email addresses, instant messaging identifiers, chat room identifiers, global unique identifiers, and other Internet communication identifiers that the person uses or plans to use, all domain names registered by the registrant, and all blogs and Internet sites maintained by the person or to which the person has uploaded any content or posted any messages or information.[4]

Neb.Rev.Stat. § 29-4006(2):

(2) When the person provides any information under subdivision (1)(k) or (s) of

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this section, the registrant shall sign a consent form, provided by the law enforcement agency receiving this information, authorizing the:
(a) Search of all the computers or electronic communication devices possessed by the person; and
(b) Installation of hardware or software to monitor the person's Internet usage on all the computers or electronic communication devices possessed by the person.

Neb.Rev.Stat. § 28-322.05 :

(1) Any person required to register under the Sex Offender Registration Act who is required to register because of a conviction for one or more of the following offenses, including any substantially equivalent offense committed in another state, territory, commonwealth, or other jurisdiction of the United States, and who knowingly and intentionally uses a social networking web site, instant messaging, or chat room service that allows a person who is less than eighteen years of age to access or use its social networking web site, instant messaging, or chat room service, commits the offense of unlawful use of the Internet by a prohibited sex offender:
(a) Kidnapping of a minor pursuant to section 28-313;
(b) Sexual assault of a child in the first degree pursuant to section 28-319.01;
(c) Sexual assault of a child in the second or third degree pursuant to section 28-320.01;
(d) Incest of a minor pursuant to section 28-703;
(e) Pandering of a minor pursuant to section 28-802;
(f) Visual depiction of sexually explicit conduct of a child pursuant to section 28-1463.03 or 28-1463.05;
(g) Possessing any visual depiction of sexually explicit conduct pursuant to section 28-813.01;
(h) Criminal child enticement pursuant to section 28-311;
(i) Child enticement by means of an electronic communication device pursuant to section 28-320.02;
(j) Enticement by electronic communication device pursuant to section 28-833; or
(k) An attempt or conspiracy to commit an offense listed in subdivisions (1)(a) through (1)(j) of this section.
(2) Unlawful use of the Internet by a prohibited sex offender is a Class I misdemeanor for a first offense. Any second or subsequent conviction under this section is a Class IIIA felony.

Relevant definitions are found in Neb.Rev.Stat. § 29-4001.01: [5]

(3) Chat room means a web site or server space on the Internet or communication network primarily designated for the virtually instantaneous exchange of text or voice transmissions or computer file attachments amongst two or more computers or electronic communication device users;
(10) Instant messaging means a direct, dedicated, and private communication service, accessed with a computer or electronic communication device, that enables a user of the service to send and receive virtually instantaneous text transmissions or computer file attachments

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to other selected users of the service through the Internet or a computer communications network;
(13) Social networking web site means a web page or collection of web sites contained on the Internet (a) that enables users or subscribers to create, display, and maintain a profile or Internet domain containing biographical data, personal information, photos, or other types of media, (b) that can be searched, viewed, or accessed by other users or visitors to the web site, with or without the creator's permission, consent, invitation, or authorization, and (c) that may permit some form of communication, such as direct comment on the profile page, instant messaging, or email, between the creator of the profile and users who have viewed or accessed the creator's profile....

B. Prior Opinion

In my prior memorandum and order addressing the parties' motions for summary judgment (Filing 354), I determined that the plaintiffs' facial and as-applied challenges to the above-cited statutes raised four constitutional concerns that necessitated a trial— namely, issues arising under the First Amendment, the Due Process Clause, the Ex Post Facto Clause, and the Fourth Amendment.

With regard to the First Amendment, I decided that trial was necessary as to sections 29-4006(1)(k) and (s) and 28-322.05 to determine whether the requirement that sex-offender registrants disclose information about Internet use violates their right to freedom of speech guaranteed by the First Amendment and the Nebraska equivalent and whether the partial ban on Internet use by certain offenders, upon pain of criminal conviction, violates those speech rights as well. I noted that the parties had not presented an undisputed record of material facts that " explains how these two statutes would actually work in practice and without such a record I cannot determine the implications of this statute on Plaintiffs' First Amendment rights." (Filing 354 at CM/ECF p. 35.)

Similarly, I reserved for trial the issue of whether section 28-322.05 is void for vagueness under the Due Process Clause and Nebraska's equivalent provision because the parties failed to present a sufficient factual record to show how this statute works. Thus, I could not determine whether the statute provides fair notice of what is prohibited and whether a limiting construction could be applied to save the statute. (Filing 354 at CM/ECF pp. 32-33.)

As to Plaintiffs' claim under the Ex Post Facto Clause, I decided that a trial was necessary to determine whether sections 29-4006(1)(k) and (s), 29-4006(2), and 28-322.05 violate that clause of the United States Constitution and the Nebraska equivalent for offenders (1) who had served their time and were no longer under criminal justice supervision as of the effective date of the laws, January 1, 2010, and (2) who had been sentenced prior to January 1, 2010, but remained under criminal justice supervision on or after that date. (Filing 354 at CM/ECF p. 11.)

Finally, I decided that the consent-to-search and consent-to-monitoring [6] provisions of Neb.Rev.Stat. § 29-4006(2) are unconstitutional under the Fourth Amendment and the Nebraska equivalent, Neb. Const. art. I, § 7, as to the plaintiffs who were previously convicted of sex crimes but who were not on probation, parole, or

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court-monitored supervision on or after January 1, 2010. (Filing 354 at CM/ECF pp. 15-27.) However, I reserved for trial the issue of the constitutionality of Neb.Rev.Stat. § 29-4006(2) under the Fourth Amendment and the Nebraska Constitution as to those who were previously convicted of sex crimes and who were on probation, parole, or court-monitored supervision on or after January 1, 2010, as well as those persons associated with them. ( Id. )


A. Legislative History

The challenged legislation originated in LB 97 and LB 285, which the Nebraska Legislature passed and the Governor approved in May 2009. Among other things, LB 97 amended Neb.Rev.Stat. § 29-4006 to add the search-and-monitoring provision (now § 29-4006(2)) and to add information that sex-offender registrants must report # 6516 to the Nebraska State Patrol (now § 29-4006(1)(s)). LB 97 also created two new statutes— Neb. Rev. Stat. §§ 28-322.05 (criminalizing unlawful use of the Internet by a prohibited sex offender) and 29-4001.01 (definitional section). See Nebraska Laws, LB 97, §§ 14, 24, 26 (2009). LB 285 amended Neb.Rev.Stat. § 29-4006 to add what is now section 29-4006(1)(k) and amended sections 14 and 24 of LB 97. See Nebraska Laws, LB 285, § 7 (2009).

The Nebraska Attorney General's Office was the principal drafter and editor-in-chief of LB 97, which that office brought to Nebraska Senator Scott Lautenbaugh for introduction. (Ex. 156, Attorney General's 2009 Legislative Package; Ex. 301, Judiciary Committee Transcript at pp. 1-2, 4 (Mar. 11, 2009); Ex. 301, Floor Debate at p. 2 (Apr. 22, 2009).) Assistant Attorney General Corey O'Brien was the principal architect of LB 97, and in December 2008, he indicated in an e-mail to Senator Lautenbaugh that although he " would personally like to prevent [persons with prior sex offenses] from using the internet altogether, that would be unconstitutional. However, depriving them from accessing certain parts of the internet is perfectly constitutional." (Ex. 199.)

The Introducer's Statement of Intent for LB 97, which included Neb.Rev.Stat. § 28-322.05, states that it was intended to " protect children from sexual predators by strengthening penalties and bringing Nebraska's laws up to date." (Ex. 301, Introducer's Statement of Intent.) During the Judiciary Committee session on March 11, 2009, Senator Lautenbaugh stated:

[LB 97] was brought to me by the Attorney General's Office, and as I think I said at the outset on this, I am not sure if I'm the ideal senator to be introducing this or not, because I have sort of a ... this area is very troubling to me, and it provokes kind of a rage and maybe a lack of perspective that I probably shouldn't have as the sponsor of this bill or probably should have the perspective as sponsor of the bill.... [T]his is an area that I have trouble basically dealing with and processing in my own mind.... And as I indicated before, I have to confess to a certain revulsion, and I don't think this sets me apart when we discuss people who have these convictions. And these are ongoing restrictions, and it is good to believe in rehabilitation, and the fact that people can change. In this area, I don't buy that. I don't think that anyone who thought this was a good idea once actually changes their view on it.

(Ex. 301, Judiciary Committee Transcript at pp. 1-2, 12 (Mar. 11, 2009).)

During the Nebraska Legislature's discussion of the scope of the search-and-monitoring provisions, Senator Lautenbaugh admitted that " some of the provisions in here do seem harsh and restrictive

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and that's really the point .... for individuals with these particular proclivities and these particular past convictions, we do want to limit and track what they're using the Internet for to avoid a repeat offense." (Ex. 301, Floor Debate Regarding LB 97 at p. 6 (Apr. 22, 2009).) In his concluding remarks, Senator Lautenbaugh stated:

I questioned whether or not I was the ideal person to bring this [bill], because of the just revulsion I feel for people who have these convictions. Revulsion is not too strong a word. I mean these are not criminals that we're angry at. These are people that are just frightening to me and all of us, and I think rightfully so, and I don't have a lot of faith in our ability to rehabilitate people who would engage in this type of conduct.

(Ex. 301, Floor Debate Regarding LB 97 at p. 18 (Apr. 22, 2009).)

B. The Doe Plaintiffs & Experts

The parties stipulate that all plaintiffs are required to register under Nebraska's Sex Offender Registration Act and are subject to the provisions of Neb.Rev.Stat. §§ 29-4001 to 29-4014, with the exception of John and Jane Does B and D-K. The parties further stipulate that these plaintiffs are required to register under Nebraska's Sex Offender Registration Act because of a conviction for one or more of the offenses enumerated in Neb.Rev.Stat. § 28-322.05(1)(a)-(k): John Does 2, 3, 4, 6, 12, 13, 17, 18, 19, 24, 27, 35. Finally, the parties stipulate that the following plaintiffs committed one or more of the offenses in section 28-322.05(1)(a)-(k) by means of a computer or electronic communications device: John Does 2, 3, 12, 17, 24. (Filing 492 at CM/ECF p. 2.)

Ten of the plaintiffs participating in this case testified at trial, as well as the plaintiffs' expert. Their testimony is summarized below.

1. Professor David Post

For the past 15 years, Professor David G. Post has taught at Temple University's law school, specializing in copyright, trademark, other intellectual property law, and cyberlaw. (Tr. 66:19-67:4.) Prior to his position at Temple, Post twice worked as a law clerk for now United States Supreme Court Justice Ruth Bader Ginsburg; worked for more than six years at a large Washington, D.C., law firm in intellectual property and " high-tech transactions" involving software developers and systems integrators; and taught at Georgetown for three years. (Tr. 69:19-70:23.) Post has published several law journal articles and a law school casebook concerning the Internet and its legal ramifications. (Tr. 67:8-68:24.)

Post testified that Neb.Rev.Stat. § 28-322.05 and the statutory definitions for " chat room," " instant messaging," and " social networking web site" in Neb.Rev.Stat. § 29-4001.01 are ambiguous, and that these definitions either cover " almost everything on the Net" or " might cover virtually nothing on the Internet," depending upon how the terms are interpreted. (Tr. 74:17-21.)

Specifically, Post testified that a " broad reading" of the definition of " chat room" in section 29-4001.01 could include " ordinary telephone service," cellular telephone service, e-mail, and SMS text messages, as well as more conventional chat rooms that fall " clearly within the bull's-eye" of the statutory definition. (Tr. 84:7-85:25.) For example, " when I send you an e-mail— an ordinary electronic mail with text and maybe a file attachment, I think as a perfectly reasonable reading of the statute that we are now engaged in a chat room interaction because there's server space on the Internet that is designated for the instantaneous exchange of texts amongst the two of us." (Tr. 85:7-13.) Further,

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because, for example, " has server space that is designated for the instantaneous exchange of text between two or more computer users," it would also qualify as a chat room under the statute. (Tr. 86:8-17, 118:23-119:12.) Post acknowledged that a chat room allows " one-to-one communication and one to many" amongst those who are " in the room." (Tr. 112:21-25.)

Post also testified that the definition of " instant messaging" in Neb.Rev.Stat. § 29-4001.01(10) could include only " old-fashioned telephone" service if the statutory language " direct, dedicated, and private communication service" means " a line of a physical piece of wire that is dedicated to our communication [which is] the way that the telephone system actually works." Alternatively, this language could include " virtually all electronic communication" if interpreted to mean " communication[ ] that's not publicly accessible but is only accessible to the participants." (Tr. 92:1-22.) Post stated that instant messaging is " any system that allows one-to-one communication via text," which would include Google, Gmail, Hotmail, Facebook, Yahoo Messenger, Wikipedia, and YouTube because these services allow the " virtual instantaneous transfer of texts and computer file attachments." (Tr. 93:16-94:17, 120:9-13.) Post thinks use of the word " direct" in the statutory definition of instant messaging is confusing because " anything that's traveling over the Internet .... gets broken up into tiny pieces [and] ... converge[s] virtually instantaneously on your machine later." (Tr. 123:4-25.) Post's " guess is" that the Nebraska Legislature was " trying to capture a sort of private one-to-one nature of conversation as opposed to one to many or many to one." (Tr. 124:19-25.)

Post testified that the definition of " social networking web site" in section 29-4001.01(13) has a " threshold statutory ambiguity" caused by use of the term " collection of web sites" because that phrase " could cover everything that is on the World Wide Web because the World Wide Web is itself a collection of web sites." (Tr. 95:1-24.)

Even if you take that definition, read it a little more narrowly, you still have things like— you type in to your browser and it comes up with a search page, the familiar page. That page doesn't have profile information on it. I can't enter my profile on that page but I can enter a ... searchable profile on any number of pages that are linked to the Google web page so I can go from the page to Blogger, to Gmail, to YouTube ... and in one click I'm at a site where I can have a searchable profile that viewers can access. So ... even though [] does not have this functionality, is it part of a collection of web sites that has this functionality, and I think the answer is, yeah, it is because ... I know that they're in the same collection of web sites. Blogger is owned by Google so I suppose that makes it part of the same collection. It's one link away from Google so it's part of a collection.... [T]he site encourages you to go to Blogger, to go to YouTube.... [T]o me as a user ... when I'm at the page, ... I'm in a collection of web sites that has this functionality so the page is a social networking web site. Even though it does not have this functionality, it's part of the collection that does.

(Tr. 96:8-97:9.)

Aside from the " collection of web sites" issue, Post stated that the " functionality" described in this statute is the ability " to create a ... searchable profile. If I can create a searchable profile that others can

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comment on or communicate with me, they can find my profile and send me a message of some kind," then it is a social networking web site within the meaning of section 29-4001.01(13). (Tr. 95:13-17.) This definition would encompass " many commercial sites that wouldn't ordinarily think of themselves as social networking but they have this functionality," such as, L.L. Bean, Blogspot, and WordPress. (Tr. 97:16-99:8.) All of these sites have " a way for you to post your profile and talk to other users." (Tr. 98:22-23.)

Regarding the language in section 28-322.05(1) that prohibits sex offenders from using a social networking web site, instant messaging, or chat room service " that allows a person who is less than eighteen years of age to access or use" it, Post does not know of " any instant messaging services that even purport to keep minors out. Same for chat rooms." (Tr. 77:19-23, 78:23-79:4.) Further, Post testified that anyone of any age can " access" a site, if only to read the site's terms and conditions. (Tr. 78:1-16.)

Post testified regarding the reporting requirement in section 29-4006(1)(s) of " all blogs and Internet sites ... to which the person has uploaded any content or posted any messages or information." Post testified that " cookies files" are being invisibly uploaded to web sites people visit " hundreds of times ... daily as you're ... making your way around the Net." These text files— which contain information identifying when you last visited a web site and what you did there— " are being deposited on [an Internet user's] machine and then sent to the web sites from their machine the next time they go visit and that could be considered the uploading of content" within the meaning of the statute. (Tr. 108:20-109:24.)

In Post's opinion, the combined effect of the statutes at issue (depending upon how they are interpreted) could bar individuals from: (1) communicating via text message since every commercially available text messaging system could plausibly be classified as " instant messaging" under Neb.Rev.Stat. § 29-4001.01(10) and no text messaging systems prohibit minors' access; (2) communicating via cellular or landline telephone with any third party; (3) reading any blogs or online newspapers if those sites allow users to identify themselves and communicate with others via a " comments" or " discussion" functionality; (4) joining any discussion groups, listservs, or online communities; and (5) purchasing goods or services online from any site allowing user " ratings" and comments. (Ex. 304, Expert Report of David G. Post at pp. 18-19.)

2. Does 17 & F

Doe 17 is employed by his father, Doe F, and he installs and maintains video conferencing systems and runs an online training business. Doe 17 serves as the operations manager, helping to manage public rental of the business's video equipment, as well as installing video conferencing systems for clients off-site. (Tr. 285:1-287:15.) These systems use the Internet and server space, they operate virtually instantaneously, they transmit voice files, and they use hardware in the form of a CPU or electronic communication device. (Tr. 287:15-291:12.) They are also private. (Tr. 292:1-4.) Therefore, when Doe 17 performs a diagnostic check on a video conferencing system he installs, he believes he is using an instant messaging system and chat room within the meaning of the statutes at issue. (Tr. 291:16-25.)

Because Doe F and Doe 17 sometimes work from separate locations— the business's office and Doe F's home office— they often use Google Talk instant messenger to communicate with one another, although they also frequently talk by phone.

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(Tr. 293:8-14, 315:1-14.) They also communicate via text messaging and an IP-based phone system for convenience and cost reasons. (Tr. 293:20-294:3, 316:5-10.) Doe 17 regularly uses e-mail in both businesses. (Tr. 299:21-25.) Doe 17 maintains his Cisco certification through that company's web site, which requires him to create an account, give personal identifying information, review lessons, and take tests. The Cisco web site also allows one to communicate with a Cisco customer service representative or technician via e-mail and live chat and with others through help forums and blogs. (Tr. 294:4-295:11.)

Doe 17 uses chat rooms and instant messaging systems for his personal online training business, but he avoids using an industry-related online forum on the topic of video conferencing called VC Talk because users must create a profile, users have the ability to communicate with other users, the site has " an age limit of 13," and he is " trying to ... in good faith comply with the current law." (Tr. 295:18-299:16.) He has built web sites for clients that he believes may qualify as " social networking web sites" or " instant messaging" within the meaning of the statutes at issue. (Tr. 300:2-21.)

Doe 17 testified that if Neb.Rev.Stat. § 28-322.05 were applied to him, his business would shut down and he would be relegated to fewer job duties than when he was on parole because he would be prevented from answering the Internet-based phone and he could not provide training because " the method of doing training is remote training all over the web. It all involves audio and text chat." (Tr. 303:2-305:1.)

He frequently interfaces with law enforcement because he is required to update his Internet identifying information regularly because he has many web sites that he maintains for clients that require him to " upload[ ] data" and he " constantly" needs access to technical forums to " do new research on new issues." (Tr. 308:18-309:13.) Doe F testified that Doe 17 was integral to his small business. (Tr. 326:2-327:22.) According to Doe F, if section 28-322.05 were applied to Doe 17, Doe F would have to terminate his son's employment, and Doe F could not pass the business on to his son. (Tr. 330:6-9, 332:3-16.)

3. Doe 35

While Doe 35 does not use computers, cell phones, instant messaging, or chat rooms in the course of his work, he regularly texts his wife during the day, and occasionally his mother. (Ex. 211 at 10:20-12:4, 14:6-16.) He maintains a Facebook account to keep up with old friends. (Ex. 211 at 12:13-15, 15:16-16:8.)

4. Doe 31

In his current occupation, Doe 31 provides remote desktop and server support for one client, which involves basic hardware and software troubleshooting. (Tr. 341:20-342:6.) To do his job, Doe 31 must access his client's computers remotely, which allows him to share computer files back and forth and access the Internet on others' computers. (Tr. 343:4-24.) Although his job frequently requires him to access vendor web sites by creating a profile with a user name and password, Doe 31 has never used the chat capabilities that are available on those web sites. (Tr. 344:16-346:21, 350:19-23.) Doe 31 does not post any information on web sites for either work-related or personal reasons, but he e-mails and texts family and uses a cell phone for personal and business reasons. (Tr. 351:1-352:13.)

5. Doe 21

Doe 21 is the president of a music retail company and wholesaler. (Tr. 353:22.) Doe 21 uses e-mail, Google Chat, and text

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messaging to communicate with customers internationally. (Tr. 354:21-355:25.) He admitted that providing his e-mail addresses and online identifiers under Neb.Rev.Stat. § 29-4006(1)(k) and (s) has not ...

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