Posted On: April 24, 2013

Eleventh Circuit Rules Felon’s Possession of Handgun Qualifies as Crime of Violence - U.S. v. Hall

I’ve written here several times before about appeals of criminal sentences that were enhanced by one or another “tough on crime” measure. Legislatures love to pass laws making already illegal acts punishable even more harshly, because it helps them demonstrate to voters that they oppose crime. Unfortunately, these laws are sometimes unclear about what conduct is required to enhance the sentence—and the resulting sentences are so inflated that the defendants have a strong incentive to pursue an appeal. In United States v. Hall, Derrick Hall received a sentence enhancement under the U.S. Sentencing Guidelines for having a prior “crime of violence,” which in his case was possession of an unregistered sawed-off shotgun. Hall’s appeal argued that this possession crime could not be a crime of violence. But the Eleventh U.S. Circuit Court of Appeals ultimately concluded that it was.

Hall’s instant crime was possession of a firearm by a felon. He pleaded guilty to that charge. However, the district court enhanced his sentence for a prior “crime of violence”—a 2006 felony conviction for possession of an unregistered sawed-off shotgun. The Sentencing Guidelines say a “crime of violence” is any state or federal offense punishable by more than one year in prison, that has as an element the use, attempted use or threatened use of force against someone else’s person, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This gave Hall a base offense level of 20, which was then reduced by three levels for acceptance of responsibility. He ultimately ended up with a Guidelines range of 30 to 37 months in prison and was sentenced to 37 months.

The Eleventh Circuit started by noting that the commentary to this Guideline expressly notes that unlawfully possessing a sawed-off shotgun is a crime of violence. The Sentencing Commission amended the commentary in 2004 to reflect Congressional determination that possessing that weapon or others described by federal law is “inherently dangerous and when possessed unlawfully, serve only violent purposes.” In addition, the Eleventh noted, recent of its own cases have permitted it to rely on the Armed Career Criminal Act’s definition of “violent felony.” Hall argued that the sawed-off shotgun conviction is not “roughly similar in kind” to the other offenses listed in the Guideline, and that commentary to the Guidelines is not binding because of the Supreme Court’s determination that the Guidelines are advisory. The Eleventh disagreed, pointing to a 1993 Supreme Court decision saying the commentary is authoritative. Thus, it affirmed Hall’s sentence.

Interestingly, the case Hall relied on to argue that the commentary should be disregarded is from 2005, making it 12 years newer than the 1993 case the Eleventh Circuit relied on. For that reason, and because courts have rejected enhancements for firearm possession under the Armed Career Criminal Act, it wouldn’t surprise me to see a different federal appeals court come to a different conclusion. Possession of a firearm by a felon is prohibited for public safety reasons, but that public safety prohibition does not require us to conclude that mere possession is violent. It’s not clear how much extra time Hall will serve on his new firearms charge as a result, but it’s clear to me that when someone’s freedom is at stake, courts should be careful and precise about their language.

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Posted On: April 23, 2013

Eighth Circuit Upholds Transporting a Minor Conviction for Man Who Financed Runaway – United States v. Goodwin

It is a federal crime to transport a minor with the intent to engage in sexual activity. Most people might imagine this to involve kidnapping a child or enticing a child over the Internet to meet an older adult for sex. But in United States v. Goodwin, the minor in question was 17 years old and the “transportation” was financial support provided to help her run away. Rodney Goodwin of Texas struck up an online relationship with J.B., who said she was abused and unhappy living with her grandparents in North Dakota. But when Goodwin tried to finance J.B.’s attempt to run away to him in Texas, she failed to get out of North Dakota and Goodwin was prosecuted for attempting to transport a minor. Goodwin argued to the Eighth U.S. Circuit Court of Appeals that the evidence was insufficient to show that he “transported” her or that he financed the trip for sexual purposes, but the Eighth Circuit upheld his conviction.

Goodwin, whose age was not given, met J.B. online when she was sixteen. Many of their messages and phone calls were sexual, and J.B. also told Goodwin she was being abused in the home she shared with her grandparents. On her seventeenth birthday, Goodwin wrote to J.B. that they could be together in 364.25 days. But she said he was impatient, and they started planning for her to run away to meet him in Dallas. Goodwin provided information to J.B. about the Bismarck bus schedule and told her to buy a prepaid phone card and a debit card he could fund. On the appointed day, she tried to run away, but ultimately decided to go home. It’s not clear how Goodwin was found out, but in later interviews with authorities, both parties testified that they intended to have a sexual relationship. Goodwin was ultimately convicted of attempting to transport a minor and sentenced to 121 months in prison.

Goodwin first argued on appeal that his conduct didn’t show enough intent to transport J.B., because he gave her money only to pay for a bus ticket. But the Eighth Circuit said caselaw says “transporting” includes causing people to be transported, by financing and making their plans, as well as physically transporting them. Thus, the evidence was sufficient for his conviction. Goodwin next argued that he didn’t transport J.B. with intent to have sex with her, but to remove her from an abusive household. But according to past cases, the court said, sexual activity need not be the dominant purpose of the trip as long as it is one of the purposes and not incidental. Both parties testified that they intended to have a sexual relationship, the court noted, so Goodwin could have committed the crime of sex with a minor, and that was sufficient to uphold the verdict even though the child porn charges the prosecution suggested were not borne out by the evidence. Their sexual relationship would have been legal in Texas, the court noted, but North Dakota law criminalizes out-of-state solicitation of North Dakota minors. Finally, it upheld the jury instructions as not plainly erroneous despite including descriptions of crimes he did not commit.

I am disappointed that the Eighth Circuit didn’t go into more detail about whether Goodwin’s relationship with J.B. was coercive or not. Transporting a minor for sexual activity is illegal because society wants to protect young people from predators. But because J.B. was 17—nearly an adult—it’s possible that she could have had a healthy adult relationship with Goodwin, rather than an exploitive one. The apparent attempt by prosecutors to charge Goodwin with child pornography crimes reinforces the idea that they were reaching for ways to criminalize behavior that might have been lawful if they had just waited a year. In Florida, we have graduated statutory rape laws that stop prosecutions when the sexual activity was between people of roughly similar ages, even when one party was a few years older than the other. In Texas, apparently, the planned sexual relationship would have been legal. It’s worth asking whether Goodwin was sentenced to 10 years in prison solely because North Dakota is more restrictive.

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Posted On: April 18, 2013

Florida Supreme Court Upholds Longer Sentence for Prison Release Reoffender – Paul v. State

Federal and Florida law have several statutes that increase sentences for people perceived as recidivists. At the state level, one such law labels offenders Prison Release Reoffenders if they commit certain felony crimes within three years of being released from prison. This status requires the judge to sentence the offender to the maximum allowable penalty. Not surprisingly, with so much at stake, offenders given PRR status frequently try to challenge their status. That was the challenge in Paul v. State, an appeal from Charles Paul of a conviction for shooting a gun into an occupied vehicle. Paul argued that the charge was not a qualifying felony for the PRR law. The Fourth District Court of Appeal disagreed, but the decision conflicted with a First District decision, so the Florida Supreme Court took it up and ultimately agreed that Paul qualified as a PRR.

Paul was convicted of shooting into an occupied vehicle. His PRR status comes from the PRR statute’s “catchall” provision, which says the law applies to a defendant who commits “any felony that involves the use or threat of physical force or violence against an individual.” The trial court therefore sentenced Paul to 15 years in prison. He filed a postconviction motion disputing his sentence, which was denied. On appeal at the Fourth District, he argued that shooting into an occupied vehicle is not a felony that triggers the PRR law. The Fourth District affirmed, saying that it had been filed under the wrong rule, but even if it had been filed correctly, it lacked merit because firing into an occupied vehicle necessarily includes the use of force against an individual. This was a direct conflict with the First District’s decision in State v. Crapps, which found that the PRR law did not apply to Alander Crapps, convicted of throwing a deadly missile into an occupied vehicle.

The Florida Supreme Court ultimately sided with the Fourth District, agreeing that shooting into an occupied vehicle triggers longer sentences under the prison release reoffender law. Only the statutory elements of the offense can be considered when analyzing whether the PRR law applies to a particular offense, the court said; the circumstances of this particular offense are not important. Thus, it looked to the statute to determine whether violating it “involves the use or threat of physical force or violence against an individual.” The text of the statute Paul was convicted of violating, and past cases, make it clear that an element of the crime is that a person must be using or occupying it. Paul argued for a definition of “use” that didn’t necessarily require an occupant, but the high court felt this would broaden the statute to reach behaviors the state legislature didn’t intend to prohibit; vehicles would always be “in use.” It therefore upheld Paul’s sentence.

I cannot fault the logic of the high court—but as a criminal defense attorney, I’d like to talk a little about the prison release reoffender law and similar laws. All of these laws have the noble goal of attempting to discourage recidivism or protect law-abiding people, but it’s worth asking if they achieve that goal at all, or if they achieve it at a worthwhile price. By taking away judges’ discretion to sentence offenders to a penalty they think is appropriate, the PRR law and others like it fill our prisons without regard for circumstances, which is expensive and wastes lives. They also make judges into mere rubber stamps for the Legislature, which undermines the goals of having judges in the first place. That’s why I don’t blame Paul and others like him from doing their best to avoid the PRR law.

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Posted On: April 17, 2013

Seventh Circuit Vacates CP Sentence Based on Enhancement for Distribution – United States v. Robinson

Last week, I wrote here about a child pornography distribution defendant who unsuccessfully argued that keeping the pornography in the “shared” folder of his peer-to-peer file-sharing program couldn’t support a charge of distribution. So I was interested to see a newer case in which the Seventh U.S. Circuit Court of Appeals did accept an argument that sharing material through file-sharing software’s default behavior did not support distribution. In United States v. Robinson, Larry Robinson of southern Illinois was convicted of possession, but had his Sentencing Guidelines level enhanced for distribution, which he contested. The district court sentenced him to a within-guidelines sentence for distribution, but the Seventh Circuit, in an opinion that includes several screenshots, vacated the sentence and sent it back for resentencing according to what Robinson knew or probably knew about distribution.

As with many Seventh Circuit opinions, this one is short on factual history. Robinson was convicted, after a jury trial, of possessing child pornography. His Guidelines sentence was raised 15 levels from the base offense level, and two of those levels were for an enhancement for distributing the pornography. (He had not been charged with the separate offense of distributing child pornography.) This would have resulted in a sentence of 135 to 168 months, but that placed Robinson’s sentence above the statutory maximum of 120 months; the judge ultimately sentenced him to the lowest Guidelines sentence without the two-level enhancement, which was 108 months, followed by 10 years of supervised release. Robinson argued at trial and on appeal that the two-level increase should not apply to his actions, saying he didn’t know other people could view the materials he downloaded.

The Seventh Circuit found that this argument deserved further investigation. The guidelines say “distribution” can include “posting material… on a website for public viewing.” In this case, Robinson downloaded the material through the file-sharing programs FrostWire and LimeWire, which by default put downloaded material in a “shared” folder that other users can access. Prosecutors argued that the guideline doesn’t require Robinson to know that the material can be accessed by others, but the Seventh Circuit disagreed. In so doing, it agreed with a 2010 Eighth Circuit decision, United States v. Durham, which found that the defendant must be found to have known or recklessly failed to discover that the material could be seen by others. This also expressly disagreed with the Tenth Circuit’s decision in United States v. Ray. The Seventh further noted that trial evidence suggested Robinson, 61, is “barely computer literate,” and that the software doesn’t make it explicit what is shared. Because the sentencing range could have influenced the judge’s sentencing decision, the court said, Robinson is entitled to a new sentencing hearing, taking into account evidence about what he knew about sharing.

Judging by this opinion, the issue of distribution via file-sharing is the subject of a small split between the circuits. I believe the Seventh’s standard is the right one: the defendant must know or probably know that the material is being shared in order to be convicted of distribution or have a sentence enhanced for distribution. Because I frequently defend people accused of serious cyber crimes, I’m eager to see whether it’s resolved by a Supreme Court case or by action from the Sentencing Commission. The Commission has recently been examining issues related to child pornography crimes and urged action by Congress. This could create a quicker resolution to the issue—if Congress acts. Unfortunately, the fear of political consequences for being seen as “soft” on child pornography has kept Congress from enacting other common-sense reforms, and this could go the same way.

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Posted On: April 9, 2013

Florida Supreme Court Rules Offender Cannot Be Committed Because Custody Unlawful – State v. Phillips

The Florida Supreme Court recently decided an unusual issue: can the state start involuntary civil commitment proceedings against an offender who should already have been released from prison? In State v. Phillips, Larry Phillips was held in prison past the time when he should have been released, thanks to a post-conviction award of time served. Authorities wished to commit Phillips involuntarily under the Jimmy Ryce Act, as a sexually violent predator, after he committed three sex crimes, but Phillips moved to dismiss because, he said, he should already have been released. The trial court disagreed and denied his motion, but the appeals court disagreed and ordered Phillips’s immediate release. The Florida Supreme Court ultimately upheld that order, finding that the state has no jurisdiction to start civil commitment proceedings against someone who should already have been released.

Phillips was prosecuted for separate offenses in both Georgia and Florida in 1990. The Georgia offense wasn’t specified; the Florida offense was lewd and lascivious assault. He served three years in Georgia, then sentenced to time served for the Florida case. He served his probation for both states in Georgia, but violated it in both states with a new charge of aggravated child molestation. After being paroled from a Georgia prison sentence, he was sent to Florida and sentenced to 5.5 years, less 177 days of time served. He later successfully moved to correct his sentence to reflect two years of time served granted by the Florida court for the original crime. Two months later, Florida authorities released him to a civil commitment center and started evaluation of whether he was a sexually violent predator under the Jimmy Ryce Act. Three and a half years later, still in custody without the benefit of a trial, Phillips moved to dismiss the commitment petition on the grounds that he should have been released when his sentence was over with credit for time served—which was before the transfer to the civil commitment center.

The district court denied the motion to dismiss, saying Phillips had been in lawful custody according to the full 5.5-year sentence. Phillips appealed to the Second District Court of Appeal, which reversed. That court found that Phillips was not in lawful custody because the sentencing court failed to award credit for prior time served, and that defendants cannot be committed if they are not in lawful custody. It dismissed the civil commitment case with prejudice and ordered him released from civil commitment detention.

The Florida Supreme Court accepted the case and granted a stay of the Second District’s order, but ultimately agreed with that court. The high court had previously interpreted the Ryce Act’s references to “custody” as requiring lawful custody. After a thorough review of prior cases, the court found nothing to meaningfully distinguish this case from its previous decisions. A dissent argued that releasing Phillips here would permit offenders to game the system by delaying their motions for sentence corrections, but the majority said offenders do not have sole power to determine the timing of Ryce Act proceedings relative to their own motions. The Supreme Court also noted that civil commitment requires due process of law, and urged everyone in the justice system to avert this problem by making sure sentencing orders are accurate.

The practice of civilly committing those who committed sex crimes has attracted a lot of criticism as a violation of those offenders’ civil rights. The story behind the appeal by Phillips does a lot to reinforce those concerns. This defendant apparently should have been released six months before his civil commitment proceedings began, but was nonetheless held without a trial for four years after the correct release date. In a criminal proceeding, this would have clearly violated his constitutional right to a swift trial. I suspect there is little concern about the constitutional rights of sex offenders; indeed, it’s not clear that civil commitment is primarily intended to serve public safety rather than revenge. If we are going to have the Ryce Act (and other state laws like it), I agree with the Florida high court that it’s vital to respect the due process rights of offenders like Phillips, even if we don’t like the crimes they committed.

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Posted On: April 8, 2013

Appeals Court Upholds Distribution of Child Porn Conviction for Sharing on LimeWire – U.S. v. Richardson

Defendants accused of distributing child pornography face more serious charges than those accused of possession alone. That’s why many defendants are disappointed to discover that appeals courts routinely uphold distribution charges against people who shared child pornography via a file-sharing program, even when they didn’t actively distribute it or even know that the file-sharing was on. That was the case in United States v. Richardson, in which the Fifth U.S. Circuit Court of Appeals upheld a distribution conviction against Bennie Richardson IV of Texas. Richardson argued unsuccessfully that he didn’t distribute child pornography by keeping it in the “shared” folder attached to the peer-to-peer file-sharing software LimeWire. He also unsuccessfully challenged a sentence enhancement for using a computer in committing this crime.

Richardson was caught sharing child pornography by a Houston-area police officer looking for illegal materials on LimeWire. The police followed up with a search warrant for Richardson’s home, where they found him actively downloading adult pornography via LimeWire. LimeWire downloads files by default into a “shared” folder, though users can download files elsewhere; anything in the shared folder can be downloaded by others. Richardson told police he knew he was sharing the materials in the shared folder, that he knew common child porn search terms and that the computer was only used by him. He and prosecutors ultimately agreed to stipulate certain facts and hold a bench trial solely on the issue of whether Richardson’s behavior constituted distribution. He was ultimately convicted of both possession and distribution and sentenced to a total of 151 months in prison.

On appeal, Richardson argued that his conduct did not amount to distribution, because the plain meaning of distribution is delivery. He did not take active steps to transfer possession of the child pornography, he argued; rather, he downloaded the materials and permitted them to stay in the shared folder. This, he argued, is more like leaving magazines around than delivering magazines to a specific address. The Fifth disagreed. It has already ruled several times that peer-to-peer file sharing can constitute distribution for Sentencing Guidelines purposes, it said. Furthermore, it was persuaded by its sister circuits’ rulings on the issue, citing with approval a Tenth Circuit case with a similar fact pattern and argument on appeal. That opinion concluded that making the material available is adequate evidence of distribution, and the Fifth Circuit agreed. It went on to reject Richardson’s argument that a sentence enhancement for use of a computer was double-counting because the underlying crime also involved a computer, saying there’s nothing in the statute that prevents double-counting.

The “use of a computer” enhancement may soon be abandoned, regardless of whether it is correctly applied in this situation. As defendants, judges, prosecutors and cyber crime attorneys like me know very well, almost all child pornography crimes nowadays are committed via computer. This sentence enhancement may have made sense when it was written, but it is now so redundant that the U.S. Sentencing Commission’s recent report on reforming child porn sentencing has called for its elimination, saying it inflates sentences unnecessarily. While file-sharing software wasn’t addressed in the Commission’s report, I believe that issue could benefit from some updating or clarification as well. Most courts have ruled that experienced, knowledgeable users are distributing if they use the shared folder, but the rules should make it clear that people should not be prosecuted if they don’t understand how file-sharing works.

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Posted On: April 4, 2013

Police May Not Use Drug Sniffing Dogs Outside Front Doors, Supreme Court Rules – Florida v. Jardines

I was very pleased to see that a South Florida criminal case made it all the way to the U.S. Supreme Court—which made a recent ruling protecting homes from unreasonable searches. In Florida v. Jardines, Joelis Jardines of Miami-Dade County was convicted on drug charges after police used a drug-sniffing dog to sniff around his front door. The dog indicated the presence of drugs, and police later discovered that the home was a marijuana “grow house” entirely filled with plants. Jardines moved successfully to suppress the search evidence, causing a series of appeals that led to a defendant-friendly ruling from the Florida Supreme Court. Last week, the U.S. Supreme Court upheld that ruling, finding that the area immediately surrounding a home (“curtilage”) is part of the home itself for the purposes of the Fourth Amendment right against unreasonable search and seizure.

The Miami-Dade Police Department got an anonymous tip that Jardines’s home was being used to grow marijuana. A month later, a team of officers visited the home. After 15 minutes of surveillance, two officers approached with a drug-sniffing dog on a long leash. The dog indicated the presence of marijuana, most strongly by the front door. The officers obtained a search warrant based on the dog’s behavior and discovered a grow house; Jardines was prosecuted for marijuana trafficking and grand theft. He succeeded in suppressing the search information at trial, but the Third District Court of Appeal reversed. The Florida Supreme Court reversed again, finding that the use of the drug-sniffing dog was a search of the home within the meaning of the Fourth Amendment. Thus, the search was illegal, the court agreed, and the evidence could not be used.

The Miami-Dade State’s Attorney’s office appealed to the United States Supreme Court—but that court agreed with the Florida high court. The Fourth Amendment requires police officers to get a search warrant before physically intruding into a person’s home, the court noted. “That right,” wrote Justice Scalia for the majority, “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” Previous cases have held that a home’s “curtilage,” the area immediately surrounding and associated with the home, is protected by the Fourth Amendment as well. Thus, the search with the dog required a search warrant. And because the police didn’t have one, the high court upheld the suppression of the search evidence. Concurring justices added that the search implicated privacy concerns; a dissent said there should be no reasonable expectation of privacy at a front door that many people may approach.

This case will have important results for defendants accused of all kinds of drug crimes. Because proving the existence of the drug is enough to create a conviction, drug-sniffing dogs are a valuable tool for law enforcement. If law enforcement doesn’t need any reasonable suspicion to use drug-sniffing dogs outside everyone’s home, there is nothing to stop officers from simply walking the dogs up to every home in their city, trolling for people to charge with drug crimes. That’s not a result the founders of our country envisioned when they wrote the Fourth Amendment, and I don’t believe it’s a desirable result in any century.

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Posted On: April 3, 2013

Eighth Circuit Upholds Order Separating Child Porn Offender From His Kids – U.S. v. Hobbs

I was saddened to read a case recently in which a court was permitted to order a child pornography possession defendant separated from his children. In United States v. Hobbs, Todd Hobbs of Nebraska pleaded guilty to possession of child pornography. He was sentenced to five years in prison—a relatively light sentence for this crime—but also five years of supervised release. Among the conditions of that release: Hobbs will not be permitted to live with or contact any children under the age of 18, and he may not possess any “material that is sexually stimulating or sexually oriented.” The Eighth U.S. Circuit Court of Appeals ruled that the trial court did not abuse its discretion with the order, because the restrictions at issue affected constitutional rights but are not sweeping.

Police officers in Lincoln, Nebraska found Hobbs sharing child pornography online. They obtained a search warrant and ultimately found more than 20,000 images, including videos, in Hobbs’s collection. Hobbs admitted to collecting it for more than seven years. After an arraignment, Hobbs was granted pretrial release, but on the condition that he not drink alcohol, as well as attending counseling for a pornography addiction. He was caught drinking by a probation officer on Valentine’s Day, which led to the revocation of the supervised release. In the interim, he took a plea deal involving a guilty plea to one count of child pornography possession. The district court granted a downward variance on prison time, in part because of Hobbs’s alcoholism, but imposed five years of supervised release with the disputed conditions. Hobbs’s counsel objected, saying he should be able to live with his own children—two of whom will still be minors after his release—but the judge disagreed, in part because of the alcoholism.

The Eighth Circuit noted that Hobbs has a good relationship with both boys, that his psychological evaluation put him at low risk of molesting a child, and that the Due Process clause protects the parent-child relationship. Nonetheless, the Eighth Circuit said it has upheld this type of restriction repeatedly. The court agreed that if the sole focus of its analysis were on the risk of future sex offense, it would see no need to restrict Hobbs from living with his children without a probation officer’s okay. But because Hobbs’s probation officer found he was dangerous when drinking, and because Hobbs didn’t stop drinking despite the pretrial release restriction, the court found that the special condition was not an abuse of discretion. If Hobbs is able to stop drinking and kick his pornography addiction, the court said, his probation officer “will doubtless approve his living with his family.” It noted that the probation officer should decide quickly whether Hobbs can live with his family directly after release from prison, and advocated for him to do so.

As a cyber crime defense attorney, I’m used to stringent conditions of supervised release for child pornography offenders. The Eighth upheld the constitutionality of the condition preventing Hobbs from having pornography, and I’ve seen similar conditions upheld. But it’s very sad that the court agreed to separate Hobbs from his children. The court made it clear that its only concern is the defendant’s alcoholism and the bad behavior it apparently leads to; there was no concern that Hobbs might molest his kids. Furthermore, ex-child porn offenders have a very, very difficult time finding housing even when they are allowed to live with relatives. For that reason, I think a better result would have given Hobbs a chance to be released straight to his family’s home, rather than creating a situation where he would have to jump through bureaucratic hoops first.

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