Table of Contents
Federal Crimes vs. State Crimes in the United States
The United States does not have a single criminal law system.
Instead, criminal law operates through a dual system of government. The federal government has authority to define and prosecute certain crimes, while each state has its own criminal code, courts, prosecutors, and enforcement agencies.
This creates an important distinction between federal crimes and state crimes.
A state crime is an offense created by the law of a particular state and generally prosecuted by that state’s government. A federal crime is an offense created by federal law and prosecuted by the federal government.
The distinction is not simply about where a crime occurs.
It is fundamentally about which government has legal authority to define the conduct as criminal and prosecute it.
Understanding that distinction requires understanding American federalism.
1. The United States Has Multiple Sources of Criminal Law
In the United States, criminal law comes primarily from:
- federal statutes;
- state statutes;
- certain territorial and tribal laws;
- and, in limited circumstances, common-law principles as incorporated into modern statutes or state law.
For most ordinary crimes, the states are the primary criminal-law authorities.
States traditionally exercise broad police powers to protect public health, safety, welfare, and order.
The federal government, by contrast, has only the powers granted to it by the Constitution.
This difference is one of the foundations of the American criminal-law system.
Cornell’s overview of federalism provides useful background on the division of governmental authority between the federal government and the states.
2. What Is a State Crime?
A state crime is an offense created by the criminal law of an individual state.
Every state has its own criminal statutes.
For example, a state may define and punish:
- murder;
- manslaughter;
- robbery;
- burglary;
- theft;
- assault;
- battery;
- rape and other sexual offenses;
- kidnapping;
- arson;
- fraud;
- drug offenses;
- vandalism;
- driving offenses;
- and numerous regulatory crimes.
The precise definitions and penalties vary from state to state.
There is therefore no single nationwide definition of “murder” or “burglary” that automatically governs every American criminal prosecution.
The applicable state law depends on the jurisdiction.
3. What Is a Federal Crime?
A federal crime is an offense created by federal law and enforceable by the federal government.
Federal criminal statutes cover matters falling within federal constitutional authority.
Examples include certain offenses involving:
- federal taxation;
- immigration;
- federal property;
- counterfeiting;
- federal fraud offenses;
- interstate criminal activity;
- organized crime;
- certain drug trafficking;
- terrorism;
- cybercrime;
- federal firearms offenses;
- crimes against federal officials;
- federal financial crimes;
- offenses occurring on certain federal lands;
- and conduct specifically regulated by federal statutes.
Federal criminal law is largely codified in Title 18 of the United States Code, although important federal crimes appear in other titles as well.
Cornell’s United States Code provides access to Title 18.
4. The Constitutional Foundation
The federal government is not a government of unlimited criminal jurisdiction.
The Constitution establishes a federal government with specifically enumerated powers.
Congress therefore generally needs a constitutional basis for federal criminal legislation.
Important sources of federal criminal authority include congressional powers concerning:
- interstate and foreign commerce;
- federal taxation;
- federal property;
- immigration and naturalization;
- national defense;
- federal institutions;
- international relations;
- and other constitutionally assigned subjects.
The Commerce Clause has been particularly important in the development of federal criminal legislation.
Cornell provides an overview of the Commerce Clause.
This does not mean that every federal criminal statute must directly regulate traditional commercial transactions. Federal criminal jurisdiction has developed through constitutional interpretation and congressional legislation.
5. Why Do States Handle Most Ordinary Crimes?
The American constitutional structure traditionally leaves broad authority over ordinary criminal conduct to the states.
This is connected to the idea of police power.
Police power refers broadly to the government’s authority to regulate conduct to protect:
- public safety;
- public health;
- morals;
- welfare;
- and order.
States therefore have extensive authority to criminalize conduct occurring within their territory.
A person who commits an ordinary assault in a state will generally face prosecution under that state’s criminal law rather than federal law.
The same is true of many ordinary thefts, burglaries, robberies, and homicides.
6. Why Does the Federal Government Criminalize Conduct?
Federal criminal law becomes particularly important when conduct involves a federal interest.
That can occur when the offense:
- crosses state boundaries;
- affects interstate commerce;
- targets federal institutions;
- involves federal property;
- implicates national security;
- involves federal programs;
- occurs on federal territory;
- involves international activity;
- or is specifically placed within federal jurisdiction by Congress.
The federal government may therefore prosecute conduct that would also constitute a crime under state law.
7. Federal Crimes vs. State Crimes: The Basic Difference
The easiest way to understand the distinction is to ask:
Which sovereign created the criminal prohibition?
| Federal Crime | State Crime |
|---|---|
| Created by federal law | Created by state law |
| Prosecuted by federal authorities | Prosecuted by state or local authorities |
| Federal jurisdiction required | State jurisdiction generally required |
| Federal courts | State courts |
| Federal prosecutors | State/local prosecutors |
| Federal sentencing rules | State sentencing rules |
| Federal prisons or other federal sanctions | State/local correctional systems |
This distinction is more important than the popular idea that federal crimes are necessarily “more serious.”
Some state crimes are extraordinarily serious.
Some federal offenses are comparatively minor.
Jurisdiction and legislative authority—not simply seriousness—determine the classification.
8. Federal Prosecutors and State Prosecutors
Federal crimes are generally prosecuted by United States Attorneys’ Offices under the supervision of the Department of Justice.
State crimes are generally prosecuted by:
- state attorneys general in certain circumstances;
- district attorneys;
- state’s attorneys;
- county prosecutors;
- or other state or local prosecutorial offices.
The precise terminology differs among states.
The distinction is important because the prosecutor represents a different sovereign.
A federal prosecutor is enforcing federal law.
A state prosecutor is enforcing state law.
9. Federal Courts vs. State Courts
The same distinction applies to courts.
Federal crimes are prosecuted in the federal court system.
State crimes are ordinarily prosecuted in state courts.
The federal judicial system is established under Article III of the Constitution, while state judicial systems are established under state constitutions and state law.
This creates two parallel court systems operating within the same geographic territory.
A person physically located in a state can therefore potentially be subject to both:
- state jurisdiction; and
- federal jurisdiction.
The existence of one does not automatically eliminate the other.
10. The Same Conduct Can Violate Both Federal and State Law
This is one of the most important concepts.
A single course of conduct can violate both federal and state law.
For example, imagine that a person:
- commits a fraud scheme inside one state;
- uses interstate communications;
- transfers proceeds across state lines;
- defrauds victims in several states.
The conduct might violate state fraud laws as well as federal fraud statutes.
Similarly, drug trafficking may violate:
- state drug laws;
- federal controlled-substances laws;
- or both.
A cyberattack may violate:
- state computer-crime statutes;
- federal computer-crime laws;
- or both.
The question is therefore not always:
“Is this a federal crime or a state crime?”
Sometimes the correct answer is:
It is potentially both.
11. Dual Sovereignty
The ability of both governments to prosecute related conduct is connected to the constitutional doctrine of dual sovereignty.
Under the dual-sovereignty doctrine, the federal government and a state are separate sovereigns.
Consequently, prosecution by one sovereign does not automatically prevent prosecution by the other.
The Supreme Court has recognized this principle in cases concerning successive prosecutions.
Cornell’s discussion of the dual sovereignty doctrine provides an overview.
This principle can be controversial because it means that the same underlying conduct can potentially produce criminal proceedings by different governments.
12. The Double Jeopardy Clause and Dual Sovereignty
The Double Jeopardy Clause of the Fifth Amendment generally protects a person from being prosecuted twice for the same offense by the same sovereign.
But the dual-sovereignty doctrine treats separate sovereigns as capable of enforcing their own criminal laws.
Thus, a state prosecution and a federal prosecution are not automatically considered the same prosecution for constitutional double-jeopardy purposes.
The distinction is between:
same sovereign
and
different sovereigns.
This is an important constitutional concept, but it should not be understood as meaning that federal and state prosecutors routinely prosecute the same person twice.
There are important limitations and policies governing successive prosecutions.
13. The Petite Policy
The federal government has its own internal policy concerning successive federal prosecutions following state proceedings.
This is commonly associated with the Petite Policy, named after Petite v. United States.
The policy generally seeks to avoid unnecessary successive federal prosecutions after a state prosecution based on substantially the same conduct, subject to exceptions and authorization requirements.
The important distinction is:
A prosecution may be constitutionally permissible without necessarily being pursued as a matter of federal prosecutorial policy.
Constitutional doctrine and prosecutorial policy are therefore not the same thing.
14. Concurrent Jurisdiction
Sometimes federal and state governments have concurrent jurisdiction over the same conduct.
This means that more than one sovereign possesses legal authority to prosecute.
For example, conduct involving:
- interstate drug trafficking;
- financial fraud;
- organized crime;
- human trafficking;
- cybercrime;
- firearms;
- or certain violent crimes
may potentially implicate both federal and state law.
The existence of concurrent jurisdiction does not mean both governments must prosecute.
Authorities generally decide whether prosecution is appropriate based on:
- evidence;
- seriousness;
- available resources;
- federal interests;
- state interests;
- sentencing considerations;
- investigative priorities;
- and other prosecutorial factors.
15. The Role of Federal Agencies
Federal criminal investigations may involve agencies such as:
- the Federal Bureau of Investigation;
- Drug Enforcement Administration;
- Bureau of Alcohol, Tobacco, Firearms and Explosives;
- Internal Revenue Service;
- Homeland Security Investigations;
- Secret Service;
- and other federal agencies.
These agencies investigate federal offenses within their statutory responsibilities.
State and local investigations are conducted by:
- state police;
- county sheriffs;
- municipal police;
- specialized state agencies;
- and other local authorities.
Investigations can also be joint.
Federal, state, and local agencies frequently cooperate when a case crosses jurisdictional boundaries.
16. Federal Jurisdiction Does Not Automatically Mean Federal Investigation
Another common misconception is that once conduct potentially violates federal law, federal agents automatically take control.
That is not how the system works.
A state or local investigation may proceed even when federal jurisdiction exists.
Federal authorities may become involved when:
- federal interests are substantial;
- the investigation crosses state lines;
- specialized federal resources are useful;
- federal statutes provide stronger tools;
- or the case falls within a federal enforcement priority.
The division is therefore often practical as well as legal.
17. Interstate Conduct and Federal Criminal Law
Crossing state lines can be legally significant.
Many federal statutes are based partly on congressional authority over interstate commerce or interstate activity.
Consider a hypothetical fraud scheme.
If the defendant defrauds one person locally, the matter may remain primarily within state jurisdiction.
But if the scheme involves:
- victims in multiple states;
- interstate wire transfers;
- interstate communications;
- transportation across state lines;
- or a broader interstate organization,
federal jurisdiction may become much more significant.
Crossing a state boundary does not automatically make conduct federal, but interstate elements can provide an important jurisdictional connection.
18. Federal Crimes on Federal Property
Certain conduct becomes subject to federal jurisdiction because of where it occurs.
Federal jurisdiction may apply on places such as:
- national parks;
- federal buildings;
- military installations;
- federal courthouses;
- certain federally controlled lands;
- and other federal enclaves.
The federal government may therefore prosecute conduct that resembles an ordinary state crime but occurs in a location subject to federal criminal jurisdiction.
The precise jurisdictional rules depend on the property and applicable law.
19. Federal Crimes Involving Federal Officials
Federal law also protects federal institutions and personnel.
Examples can include offenses involving:
- federal judges;
- federal law-enforcement officers;
- members of Congress;
- federal employees;
- federal property;
- federal elections;
- and federal governmental operations.
The federal interest is obvious: the federal government must be able to protect the functioning of its own institutions.
A similar principle exists at the state level.
States create crimes protecting their own officials, institutions, courts, and governmental operations.
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20. Federal and State Drug Crimes
Drug offenses provide an excellent illustration of overlapping jurisdiction.
States establish their own controlled-substance laws.
The federal government also regulates controlled substances.
Consequently, the same conduct may potentially violate both systems.
For example, a person distributing a controlled substance may face:
- state prosecution;
- federal prosecution;
- or, in some circumstances, both.
The applicable law depends on factors such as:
- the substance;
- quantity;
- location;
- conduct involved;
- interstate activity;
- federal jurisdiction;
- and prosecutorial decisions.
21. Federal and State Cybercrime
Cybercrime demonstrates why the federal-state distinction has become increasingly complicated.
A computer attack can occur physically in one state while affecting:
- servers in another state;
- victims across the country;
- companies operating nationwide;
- or systems located outside the United States.
State computer-crime statutes may apply based on the location of the defendant, victim, computer system, or other jurisdictional connection.
Federal statutes can apply when the conduct falls within federal jurisdiction.
Cybercrime therefore frequently produces overlapping or coordinated federal and state investigations.
22. Federal and State Homicide
Murder is generally associated with state criminal law.
There is no general federal murder statute that replaces state homicide law everywhere in the country.
But federal law does criminalize certain forms of homicide where Congress has constitutional authority.
Federal homicide jurisdiction can arise in circumstances involving:
- federal property;
- federal officials;
- military contexts;
- certain maritime or territorial situations;
- and other federally defined circumstances.
Thus, even a crime traditionally governed by state law can have a federal counterpart in specific circumstances.
23. Federal Crimes and Organized Crime
Organized criminal activity can create strong federal interests because criminal organizations may operate across state boundaries.
Federal statutes address areas such as:
- racketeering;
- conspiracy;
- money laundering;
- drug trafficking;
- firearms;
- human trafficking;
- and certain forms of fraud.
State prosecutors may simultaneously prosecute underlying conduct under state law.
This is another example of overlapping sovereign authority.
24. Federal Crimes and White-Collar Crime
White-collar offenses frequently illustrate the federal-state distinction.
Fraud, embezzlement, bribery, identity theft, securities offenses, tax offenses, and financial crimes can potentially involve both state and federal law.
Federal jurisdiction may become particularly significant when conduct involves:
- federally regulated financial institutions;
- interstate communications;
- federal programs;
- securities markets;
- federal taxation;
- or nationwide schemes.
But many fraud offenses remain primarily matters of state law.
The label “white-collar crime” therefore does not itself determine jurisdiction.
25. Federal Crimes and Immigration
Immigration is an area in which federal authority is particularly prominent.
Immigration and naturalization are primarily federal matters because the Constitution assigns important authority over these subjects to the federal government.
Federal immigration crimes can therefore be prosecuted by federal authorities.
States may still criminalize separate conduct involving the same individuals—for example, assault, theft, or drug offenses—but states generally cannot simply replace federal immigration law with their own independent immigration regime.
This illustrates how constitutional allocation of power can sharply limit state criminal jurisdiction in certain fields.
26. Federal Sentencing vs. State Sentencing
The consequences of federal and state prosecution can be substantially different.
Federal defendants are generally sentenced under federal sentencing law, including the federal sentencing framework and applicable statutes.
State defendants are sentenced under the law of the particular state.
States differ considerably in:
- sentencing ranges;
- mandatory minimums;
- parole rules;
- probation;
- sentencing guidelines;
- habitual-offender laws;
- and correctional systems.
Consequently, the same general type of conduct can produce very different legal consequences depending on the jurisdiction and offense charged.
27. Federal Prisons vs. State Prisons
Federal and state convictions also generally lead to different correctional systems.
Federal prisoners are ordinarily housed within the federal correctional system.
State prisoners are ordinarily housed in state correctional facilities.
The distinction is another consequence of the separate sovereigns.
A state conviction does not become a federal conviction merely because the defendant is transferred to a federal facility, and vice versa.
28. Why Federal Prosecution Can Sometimes Be Attractive
Federal prosecution can provide tools that may be particularly useful in complex cases.
Depending on the offense, federal authorities may have:
- nationwide investigative resources;
- specialized agencies;
- federal grand juries;
- interstate investigative authority;
- federal conspiracy statutes;
- federal forfeiture mechanisms;
- specialized financial-crime expertise;
- and federal sentencing structures.
This does not mean federal prosecution is inherently stronger or fairer.
It means that federal jurisdiction can offer a different institutional framework.
29. Why State Prosecution Remains Essential
State criminal law remains the foundation of everyday criminal justice in the United States.
Most criminal cases involve state law.
State governments handle enormous numbers of prosecutions involving:
- assault;
- theft;
- burglary;
- robbery;
- domestic violence;
- homicide;
- traffic offenses;
- drug offenses;
- property crimes;
- and many other offenses.
The federal criminal system is important, but it does not replace the state systems.
The United States is therefore better understood as a network of overlapping criminal jurisdictions rather than one unified criminal code.
30. Federalism and the Division of Criminal Power
The federal-state distinction reflects a broader constitutional philosophy.
Federalism divides governmental authority between:
the national government
and
the states.
Criminal law is one of the areas where this division becomes especially visible.
States retain broad authority to regulate ordinary conduct within their territories.
The federal government exercises criminal authority where the Constitution and federal statutes provide a sufficient basis.
This structure prevents the federal government from automatically possessing unlimited authority over every criminal act.
At the same time, modern society creates conduct that naturally crosses state boundaries.
Technology, transportation, finance, organized crime, and communications have therefore expanded the practical importance of federal criminal law.
31. Can the Same Person Be Charged Federally and by a State?
Yes.
A person can potentially face:
- a state prosecution;
- a federal prosecution;
- or both.
Whether both actually occur depends on the facts, applicable statutes, prosecutorial decisions, constitutional rules, and federal and state policies.
The existence of dual sovereignty makes overlapping jurisdiction legally possible.
But prosecutors ordinarily consider whether a second prosecution is necessary and appropriate.
32. A Practical Framework for Determining Federal vs. State Jurisdiction
When analyzing a criminal-law problem, ask the following questions.
Step 1: What conduct occurred?
Identify the precise acts and circumstances.
Step 2: Where did it occur?
Consider:
- state territory;
- federal property;
- tribal territory;
- territorial waters;
- or another jurisdiction.
Step 3: Did the conduct cross state lines?
Interstate activity may be relevant to federal jurisdiction.
Step 4: What law prohibits the conduct?
Identify the relevant:
- state statute;
- federal statute;
- or both.
Step 5: What federal interest exists?
Ask whether the conduct involves:
- interstate commerce;
- federal property;
- federal officials;
- federal programs;
- national security;
- immigration;
- or another federal interest.
Step 6: Which sovereign has jurisdiction?
Determine whether jurisdiction is:
- state;
- federal;
- concurrent;
- or otherwise divided.
Step 7: Who is investigating?
Identify whether the investigation is being conducted by:
- local police;
- state authorities;
- federal agencies;
- or a joint task force.
Step 8: Who is prosecuting?
Determine whether the case is being handled by:
- a state prosecutor;
- a federal prosecutor;
- or potentially both.
33. Common Misunderstandings
“Federal crimes are always more serious.”
No.
Some state offenses carry extremely severe penalties, while some federal offenses are comparatively minor.
“If a crime crosses state lines, it automatically becomes federal.”
No.
Interstate conduct can create federal jurisdiction, but the specific federal statute and constitutional basis must still apply.
“Every murder is a federal crime.”
No.
Most homicide prosecutions are conducted under state law, although federal homicide statutes apply in specified circumstances.
“State law cannot apply when federal law applies.”
Not necessarily.
Federal and state laws can sometimes apply simultaneously.
“Federal prosecutors control all criminal cases.”
No.
State and local prosecutors handle the vast majority of ordinary criminal prosecutions.
“Federal jurisdiction means the defendant will automatically be prosecuted federally.”
No.
Jurisdiction establishes legal authority; prosecution remains a matter of enforcement and prosecutorial decision-making.
“Federal and state crimes are completely separate.”
Not always.
The same conduct can violate both federal and state law.
34. The Deeper Principle: One Country, Multiple Criminal Sovereigns
The distinction between federal and state crimes illustrates something fundamental about the American constitutional system.
The United States is one nation, but it is not one undivided criminal jurisdiction.
Instead, criminal authority is distributed among different governments.
That arrangement creates both advantages and complications.
It allows states to develop their own approaches to:
- punishment;
- public safety;
- criminal definitions;
- sentencing;
- policing;
- and criminal justice policy.
At the same time, federal law can address problems that transcend state boundaries or implicate national interests.
The result is a criminal-law system characterized by overlap, specialization, and jurisdictional complexity.
35. Why the Distinction Matters
For a defendant, the difference between federal and state prosecution can affect almost every aspect of a case.
It can influence:
- the applicable statute;
- the elements of the offense;
- available defenses;
- investigative procedures;
- charging practices;
- prosecutorial authority;
- sentencing;
- imprisonment;
- forfeiture;
- and appellate review.
For lawyers and law students, jurisdiction should therefore be considered at the beginning of the analysis—not as an afterthought.
Before asking:
“Did the defendant commit a crime?”
it can sometimes be necessary to ask:
“Which government has the authority to define and prosecute this conduct as a crime?”
That is the federalism question underlying the entire distinction.
Key Takeaways
- The United States has both federal and state criminal-law systems.
- Most ordinary criminal prosecutions are handled under state law.
- Federal crimes are created by federal law and prosecuted by federal authorities.
- State crimes are created by state law and prosecuted by state or local authorities.
- Federal criminal jurisdiction must generally rest on constitutional authority.
- Interstate activity can be relevant to federal jurisdiction but does not automatically make conduct federal.
- Federal law applies to certain conduct involving federal property, federal officials, national interests, and other federally regulated areas.
- The same conduct can sometimes violate both federal and state law.
- The dual-sovereignty doctrine allows separate sovereigns to enforce their own criminal laws in appropriate circumstances.
- Federal and state prosecution involve different courts, prosecutors, sentencing systems, and correctional institutions.
- Federal crimes are not necessarily more serious than state crimes.
- Determining jurisdiction is an essential first step in analyzing an American criminal case.
Frequently Asked Questions
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What is the difference between a federal crime and a state crime?
A federal crime is created by federal law and prosecuted by the federal government. A state crime is created by the law of a particular state and generally prosecuted by that state or its local governments.
Are most crimes federal or state crimes?
Most ordinary criminal prosecutions in the United States are handled at the state and local level.
Can a crime be both federal and state?
Yes. The same conduct can violate both federal and state criminal statutes when both sovereigns have applicable jurisdiction.
Can someone be prosecuted by both the federal government and a state?
Potentially, yes. The dual-sovereignty doctrine recognizes federal and state governments as separate sovereigns. However, constitutional rules and prosecutorial policies can limit or discourage successive prosecutions.
Does crossing state lines make a crime federal?
Not automatically. Interstate conduct can establish an important basis for federal jurisdiction when a federal statute and constitutional authority apply.
Who prosecutes federal crimes?
Federal crimes are generally prosecuted by federal prosecutors in the United States Attorneys’ Offices and, in some cases, other federal prosecutorial authorities.
Who prosecutes state crimes?
State crimes are generally prosecuted by state or local prosecutors, such as district attorneys or state’s attorneys, depending on the state.
Are federal penalties always harsher than state penalties?
No. Penalties vary greatly according to the offense and jurisdiction. Some state crimes carry extremely severe penalties.
Can state law apply to conduct that is also prohibited federally?
Yes. Federal and state criminal laws can sometimes apply to the same conduct.
Why does the United States have two criminal-law systems?
Because the Constitution divides governmental authority between the federal government and the states. States retain broad authority over ordinary criminal law, while the federal government exercises criminal authority within its constitutionally assigned powers.
Conclusion
The distinction between federal and state crimes is ultimately a question of sovereignty and jurisdiction.
State governments possess broad authority to define and punish ordinary criminal conduct. The federal government possesses criminal authority in areas connected to its constitutional powers and specifically enacted federal statutes.
The two systems frequently overlap.
A drug trafficking operation can violate both state and federal law. A financial fraud scheme can implicate both sovereigns. A cyberattack can cross multiple states while creating both state and federal jurisdiction. Conduct occurring on federal property can be subject to federal criminal law even when the underlying behavior resembles an ordinary state offense.
The important lesson is therefore not that federal crimes are “bigger” crimes and state crimes are “smaller” crimes.
The real question is:
Which sovereign has the legal authority to prosecute the conduct?
That question leads directly to one of the defining features of American criminal law: federalism creates multiple criminal jurisdictions operating within a single constitutional system.
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Generally, when can an offeror revoke an offer?
Offers are generally revocable at will before acceptance (subject to real exceptions, like option contracts or firm offers for the sale of goods) — the offeror just has to actually get the revocation to the offeree before they accept.
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Contracts for the sale of goods are generally governed by which body of law in the U.S.?
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A merger/integration clause signals the written document is meant to be the entire deal — this triggers the parol evidence rule, generally barring earlier oral or written statements from being used to contradict the final written terms.
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