United States v. Ba , 369 F. App'x 503 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4775
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER BABB, a/k/a B, a/k/a Brian, a/k/a WB,
Defendant - Appellant.
No. 07-4776
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES MOORE, a/k/a Duffy, a/k/a Fat James,
Defendant - Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore. Andre M. Davis, District Judge.
(1:04-cr-00190-AMD)
Argued: January 28, 2010 Decided: March 15, 2010
Before TRAXLER, Chief Judge, and KING and GREGORY, Circuit
Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Chief Judge Traxler and Judge King joined.
ARGUED: Joseph Murtha, MILLER, MURTHA & PSORAS, LLC,
Lutherville, Maryland; William Collins Brennan, Jr., BRENNAN,
SULLIVAN & MCKENNA, LLP, Greenbelt, Maryland, for Appellants.
John Francis Purcell, Jr., OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: William A.
Mitchell, Jr., BRENNAN, SULLIVAN & MCKENNA, LLP, Greenbelt,
Maryland, for Appellant Walter Babb. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
James Moore and Walter Babb were convicted in the United
States District Court for the District of Maryland for their
participation in a large drug conspiracy which involved the use
of firearms. On appeal, they jointly argue that the district
court erred in refusing to give multiple conspiracies and
reasonable doubt instructions, the District of Maryland was not
the proper venue for the prosecution of one of the firearms
offenses, and the district court should have conducted voir dire
to determine whether jurors had been intimidated by spectator
conduct. 1 Because we find none of petitioners’ arguments
persuasive, we affirm both Babb and Moore’s convictions in their
entirety.
1
James Moore sought, and we granted, permission to file a
pro se supplemental brief after this case was calendared for
oral argument. In it he raises arguments concerning speedy
trial, double jeopardy, and failure to indict on conduct used as
other acts evidence at sentencing. Because settled circuit
precedent controls on these issues, see United States v. Keith,
42 F.3d 234, 238-39 (4th Cir. 1994) (holding that where a
defendant acquiesces in a continuance, that time is excluded
from the speedy trial calculation), United States v. Camps, 32
F.3d 102, 106 (4th Cir. 1994) (holding that multiple sentences
for offenses under 18 U.S.C. § 924(c) are appropriate when
multiple, separate acts of firearm use have occurred even if
they are related to the same underlying offense), and United
States v. Grubbs, 585 F.3d 793, 798-99 (4th Cir. 2009) (citing
United States v. Watts, 519 U.S. 148, 157 (1997)) (holding that
uncharged conduct may be considered at sentencing when that
conduct is proven by a preponderance of the evidence)
respectively, we decline to address these issues further and
find the district court did not err on those grounds.
3
I.
During the mid-1990s, Richard Jackson (“Jackson”) began
selling cocaine in the Danville, Virginia area. Beginning in
1999 or 2000, Willie Robinson (“Robinson”), a friend of
Jackson’s from when they both lived in New Rochelle, New York
but who now resided in Danville, began buying cocaine from
Robinson. Jackson sold the cocaine to Robinson in powder form
and then taught Robinson how to “cook” it into crack for sale.
By January 2003, Robinson was buying approximately one kilogram
of cocaine per week from Jackson.
Jackson met Walter Babb (“Babb”) in 1996 or 1997 in North
Carolina. Babb purchased cocaine from Jackson from 1996 until
Babb was incarcerated. When he was released in 2000, Jackson
again became his supplier. In the spring of 2002, Babb
regularly bought several ounces of crack from Jackson a couple
times a week for his own distribution. Adrian Williamson
(“Williamson”) then sold the crack for Babb. Babb continued to
buy from Jackson until Jackson was arrested for drug trafficking
offenses in January 2003. At that time, Babb owed Jackson about
$12,000 for crack sold on consignment, and Jackson, from jail,
arranged for Robinson to collect payment from Babb. Even though
Jackson had been a source of their cocaine, Babb and Williamson
continued to distribute crack in the Greensboro area after
Jackson’s arrest.
4
Walter Moore (“Moore”) was also from New Rochelle and was
involved in drug trafficking with Robinson before Robinson moved
to North Carolina. When Moore subsequently moved to Andrews,
South Carolina, he contacted Robinson again, offering to connect
him with a source for cheaper cocaine so that Robinson could
continue his drug trafficking operations after Jackson’s arrest.
To this end, Moore traveled to El Paso, Texas in August of 2003.
While there, he attempted to get a friend he met in jail, Rey
Sanchez (“Sanchez”), to give him several kilograms of cocaine on
consignment. However, Sanchez refused to front any drugs, and
Moore returned home after a week. During this time, Moore made
several telephone calls from Sanchez’s body shop in El Paso to
his longtime girlfriend, Davita Bush (“Bush”), the records of
which were admitted at trial.
In October 2003, Moore again attempted to secure cocaine
from Mexico and traveled to El Paso for three weeks. This time
he went with Robinson to broker a deal between Robinson and
Sanchez, though Moore complained to Bush during a phone call
that Robinson was being greedy. Babb also accompanied them, and
sent money via Western Union to Bush, the record of which was
admitted at trial. While Babb was in Mexico, Porsha Harper
(“Harper”), one of his girlfriends, looked after his apartment.
Harper met Babb in 2001 in Greensboro, and they had an on-again-
off-again relationship. In October 2003, Babb called her and
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asked her to check on his house and do his laundry while he was
away, which she did. In late October when Moore, Babb and
Robinson returned to Greensboro, Moore stayed with Babb in his
apartment. That was the first time Harper met Moore, and they
became friends.
On November 5, 2003, Moore asked Harper if she would drive
him to New York, and she agreed. Very early the next morning,
Moore and Babb arrived at Harper’s house driving a Dodge
Intrepid. Harper had seen the Intrepid before and knew that
Babb used in his drug business, so she asked Babb if there were
drugs in the car. He said no. Babb also told her that
something had come up and that he was no longer going to be
going on the trip to New York. Harper then left with Moore and
drove for several hours until they entered Maryland, then Moore
took over driving. During the drive, Moore told her that he was
the “connect” on a drug deal with Babb in Mexico. He also told
her there was $300,000 in the car.
At approximately 10:28 a.m. that day, Moore and Harper were
stopped by Trooper Cameron, a Maryland State Police Officer, for
a speeding violation while traveling on Interstate 95. Moore
was unable to produce any identification or a driver’s license,
and he and Harper gave conflicting stories. Trooper Cameron
noticed that the trunk of the car was riding low and asked
Harper about it. She stated the trunk was full of clothing and
6
offered to show him. Harper got the keys from inside the car,
walked to the trunk, and opened it. Trooper Cameron and the
backup officers he had called saw two dead bodies wrapped in
blankets and garbage bags laying in the trunk. Harper
immediately noticed that the blankets the bodies were wrapped in
were the same blankets she had previously laundered at Babb’s
house.
Harper and Moore were arrested. Moore waived his Miranda
rights and spoke with police. He told them he was running drugs
for Rey Sanchez and that he had hundreds of thousands of dollars
in the car. He denied knowledge of the bodies. The victims
were identified as Robinson and Alexandria Withers, another
participant in the drug conspiracy. Both had been shot multiple
times at close range. Upon forensic examination, Moore’s
fingerprints were on the garbage bags the victims were wrapped
in. 2
After Moore was arrested, Babb spoke with Bush via
telephone and started sending her significant amounts of money
via Western Union. Bush in turn arranged three-way phone calls
between Moore in jail and Babb. During these calls, Moore and
Babb arranged for payments to Bush, as well as for her to come
2
There was myriad other evidence concerning the murders
presented at trial that is not pertinent for the questions
before this Court.
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to Greensboro to get drugs for sale from Babb. She traveled to
Greensboro in early 2004 and received 200 grams of crack cocaine
from Babb. In another visit she received crack and cocaine
powder. Bush was arrested on July 14, 2004, for her involvement
in the drug trafficking scheme.
On June 9, 2004, a search warrant was executed on Babb’s
former apartment, which was uninhabited after he had moved out.
The police found evidence of bloodstains on the carpet and
elsewhere in the apartment. On August 17, 2004, Babb was
arrested in Greensboro. His current residence was searched, and
two assault rifles were recovered from a crawl space in the
ceiling right next to the door. A Taurus forty-five caliber
handgun was recovered from the insulation, and other guns were
found in a bag in the attic.
Babb and Moore were charged in the District of Maryland in
a seven-count indictment with: Count One conspiracy to possess
with intent to distribute five kilograms or more of cocaine base
in violation of 21 U.S.C. § 841(a)(1); Count Two conspiracy to
carry and use firearms during and in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(o); Count
Three knowingly carrying and discharging a firearm against
Willie Robinson in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c); Count Four knowingly using and
discharging a firearm against Alexandria Withers in relation to
8
a drug trafficking crime in violation of 18 U.S.C. § 924(c);
Count Five causing the death of Willie Robinson by discharging a
firearm during a drug trafficking crime in violation of 18
U.S.C. § 924(i); Count Six causing the death of Alexandria
Withers by discharging a firearm during a drug trafficking crime
in violation of 18 U.S.C. § 924(i); and Count Seven knowingly
possessing firearms in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c).
At trial, the United States dismissed Counts Five and Six
of the indictment at the close of evidence. The jury found
Moore guilty of Counts One, Two, Three, Four and Seven. He was
sentenced to life on Count One, 240 months on Count Two, 120
months on Count Three, 120 months on Count Four, and 300 months
on Count Seven. The jury failed to reach a verdict on Counts
Three and Four as to Babb, and convicted him of Counts One, Two
and Seven. Babb was sentenced to life on Count One, twenty
years on Count Two, and sixty months on Count Seven. This
appeal followed.
II.
On appeal, Babb and Moore raise questions concerning the
jury instructions given at trial, venue, and jury intimidation.
We address each of these issues in turn.
9
A.
A district court’s denial of a requested jury instruction
is reviewed by this Court for abuse of discretion. United
States v. Romer, 148 F.3d 359, 367 (4th Cir. 1996). Babb and
Moore argue that the district court erred in failing to give
both a multiple conspiracies instruction and a reasonable doubt
instruction. We disagree.
1.
Babb and Moore first argue that the district court erred in
failing to give a multiple conspiracies instruction when they
requested it. They contend that there was no overarching
conspiracy between them, just individual drug conspiracies, and
even if they did conspire together, the evidence supports a
finding that the conspiracy began in October 2003, and not
earlier as charged. However, sufficient evidence exists to
demonstrate that their drug trafficking activities were related
and, thus a multiple conspiracies instruction was not warranted.
A district court need not instruct on multiple conspiracies
each time a defendant requests it. Rather, “[a] court need only
instruct on multiple conspiracies if such an instruction is
supported by the facts.” United States v. Mills, 995 F.2d 480,
485 (4th Cir. 1993). Thus, “[a] multiple conspiracy instruction
is not required unless the proof at trial demonstrates that
appellants were involved only in ‘separate conspiracies
10
unrelated to the overall conspiracy charged in the indictment.’”
United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)
(quoting United States v. Castaneda-Cantu, 20 F.3d 1325, 1333
(5th Cir. 1994)). Furthermore, even if one overarching
conspiracy is not apparent, failure to give a multiple
conspiracies instruction is reversible error only when it causes
substantial prejudice to the defendant. United States v.
Tipton, 90 F.3d 861, 883 (4th Cir. 1996). To find such
prejudice, “the evidence of multiple conspiracies [must have
been] so strong in relation to that of a single conspiracy that
the jury probably would have acquitted on the conspiracy count
had it been given a cautionary multiple-conspiracy instruction.”
Id.This Circuit has addressed several other large drug
conspiracies where both the participants and the level of their
involvement evolved during the time charged. In United States
v. Tipton, 90 F.3d 861 (4th Cir. 1996), the drug conspiracy
charged began in New York and moved to Richmond. As a
consequence, the leadership changed over time, and new
participants entered and left the conspiracy. The Court held
that no multiple conspiracy instruction was due in that case,
even for the participant who joined shortly before the
conspiracy was interrupted by arrests, because the evidence
11
demonstrated one enduring conspiracy dedicated to distributing
drugs. Id. at 882-83.
Similarly in United States v. Banks, 10 F.3d 1044 (4th Cir.
1993), the coconspirators charged were cocaine suppliers and
distributors in the Tidewater Virginia area. Even though the
dealers were actually in competition with one another, this
Court held they were all properly joined in one conspiracy
because they had the same goal of creating a large cocaine
market in the area. Id. at 1054. The Court further held that
“one may be a member of a conspiracy without knowing its full
scope, or all its members, and without taking part in the full
range of its activities or over the whole period of its
existence.” Id.These cases show that drug conspiracies, though they may
have shifting membership, are one unit of prosecution when they
have a common unifying goal. The evidence presented in this
case demonstrates a single drug conspiracy during the time
charged in the indictment. At the time the indictment charged
as the beginning of the conspiracy, there was a well-established
conspiracy involving Jackson, Robinson, Babb and Williamson.
Jackson would sell powder cocaine to Robinson who would then
cook it into crack. Babb would buy crack from Jackson, and then
Williamson would sell it. This pattern of the conspiracy
continued until Jackson was arrested in January 2003. At that
12
time, Babb repaid the debt he owed to Jackson by giving it to
Robinson. Babb and Williamson then continued their distribution
activities. Meanwhile, Robinson reestablished contact with an
old friend from New York, Moore, who promised to help him secure
a replacement, cheaper source for cocaine. As a result, Moore
traveled twice to El Paso, once alone and once with Babb and
Robinson, in order to secure the cocaine. Moore was arrested on
November 6, 2003 after Robinson was murdered, but he continued
communicating with Babb and Bush to arrange for funds
originating from the drug conspiracy to be transferred to Bush
and for her to receive cocaine for sale. Bush was arrested in
July of 2004, and finally Babb was arrested in August of 2004.
Several firearms and a drug scale were found at his house.
Given the evidence enumerated above, there was sufficient
evidence for a reasonable jury to determine that there was one
continuous conspiracy. Williamson and Babb continued their
distribution activities after Jackson’s arrest, while Robinson
and Moore planned to secure another source of cocaine. That
they shared the same goal is manifested by their joint trip to
El Paso with the purpose of securing cocaine from Sanchez.
Therefore, the evidence does not compel the conclusion that
there were two separate conspiracies. Moore and Babb thus
cannot demonstrate that the jury would have acquitted as to the
conspiracy count if they had been given the cautionary multiple
13
conspiracies instruction, and we find no prejudice to the
defendants and hold that the district court did not abuse its
discretion denying such an instruction.
2.
With regard to the question of whether a reasonable doubt
instruction was required when requested by the defendants, this
Court is bound by both Supreme Court and Circuit precedent
directly contrary to the appellants’ contention. This Court
held in United States v. Oriakhi, that no reasonable doubt
instruction is constitutionally required, unless the jury
requests it. 57 F.3d 1290, 1300 (4th Cir. 1995). Further, the
Supreme Court held in Victor v. Nebraska that “the Constitution
neither prohibits trial courts from defining reasonable doubt
nor requires them to do so as a matter of course.” 511 U.S. 1,
5 (1994). There has been no subsequent decision which would
lead this Court to rethink its precedent that “the words ‘beyond
a reasonable doubt’ have the meaning generally understood for
them and that further efforts to restate their meaning with
different words tend either to alter or to obfuscate that
meaning.” Oriakhi, 57 F.3d at 1300.
B.
The second issue Moore and Babb raise on appeal concerns
venue. As venue is a legal question, this Court reviews the
decision of the district court de novo. United States v.
14
Wilson, 262 F.3d 305, 320 (4th Cir. 2001). Moore and Babb argue
that venue for the 924(c) offense charged in Count Seven was
improper in the District of Maryland because the conspiracy had
ceased at the time the firearms were seized from Babb’s home,
and thus no element of those offenses occurred in Maryland.
This claim relates to their unsuccessful multiple conspiracies
argument above and is similarly unavailing.
1.
Article III of the Constitution provides, as is relevant
here, that “[t]he Trial of all Crimes . . . shall be held in the
State where the said Crimes shall have been committed.” U.S.
Const. art. III, § 2, cl. 3. The Sixth Amendment reinforces
this command, stating that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the State and district wherein the crime
shall have been committed.” U.S. Const. amend. VI; see Fed. R.
Crim. P. 18 (“Unless a statute or these rules permit otherwise,
the government must prosecute an offense in a district where the
offense was committed.”). When multiple counts are alleged in
an indictment, venue must be proper on each count. See United
States v. Bowens, 224 F.3d 302, 308 (4th Cir. 2000). Venue on a
count is proper only in a district in which an essential conduct
element of the offense took place. Id. at 309. The burden is on
the government to prove venue by a preponderance of the
15
evidence. See United States v. Barsanti, 943 F.2d 428, 434 (4th
Cir. 1991).
For episodic crimes, venue is proper in the district where
an essential element of the crime occurred. In continuing
crimes, such as conspiracy, venue is proper in the location of
any of the criminal acts. United States v. Rodriguez-Moreno,
526 U.S. 275, 279, 282 (1999). Further, in continuing offenses
that are based upon some underlying criminal offense, venue for
the continuing offense is proper in any district where venue
lies for the underlying offense. United States v. Robinson, 275
F.3d 371, 379 (4th Cir. 2001). In Robinson, this Court held
that where the defendant was charged with a violation of 18
U.S.C. § 924(j) (causing the death of a person during and in
relation to a crime of violence) he could be charged in any
district in which the underlying offense, a violation of 18
U.S.C. § 924(c), could have been prosecuted. Id. at 378.
Additionally, and most important for this case, in Rodriguez-
Moreno, the Supreme Court held that for charges of a violation
of 18 U.S.C. § 924(c), venue for the weapons charge is proper
anywhere the underlying crime of violence or drug crime could be
prosecuted. 526 U.S. at 281-82.
2.
Thus, whether venue was proper for the section 924(c)
violation charged in Count Seven depends on whether an overt act
16
occurred in Maryland. Babb and Moore argue that the conspiracy
had been terminated by the arrests of Moore, Babb, and Bush at
the time the weapons were seized. However, because there was no
termination of the conspiracy and an overt act occurred in
Maryland, venue was proper there.
A conspiracy is not terminated merely because its
participants are arrested. United States v. Urrego-Linares, 879
F.2d 1234, 1240 (4th Cir. 1989). Even if substantial time has
passed between the formation of the conspiracy and the last
overt act, the conspiracy has not necessarily ended. Joyner v.
United States, 547 F.2d 1199, 1203 (4th Cir. 1977) (holding that
the end of a conspiracy must be “affirmatively shown”).
Instead, the defendant bears the burden to show that the
conspiracy terminated when “the former coconspirator acted to
defeat or disavow the purposes of the conspiracy.” United
States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986). Mere
withdrawal is not enough.
Here, even though Bush had been arrested a month before the
weapons were seized and there was no evidence of contact between
Babb and Moore, the conspiracy had not terminated. The weapons
and drug scale found inside Babb’s home are evidence that the
conspiracy was ongoing, with Babb as its source outside of jail.
The defendants presented no evidence which suggests termination
other than the arrests, and there was no evidence of disavowal.
17
Therefore, there was sufficient evidence for the jury to
conclude that the possession of the weapons was in furtherance
of the drug trafficking conspiracy.
The conspiracy also had an overt act in the District of
Maryland, which Babb and Moore concede in their brief. They
acknowledge that venue was proper in Maryland for the
substantive drug traffic charge in Count One. Venue was proper
in Maryland because an overt act of the drug conspiracy, the
carrying of money and bodies into the state on Interstate 95,
occurred there. Therefore, under Robinson and Rodriguez-Moreno,
venue for the section 924(c) counts is proper as well because
those charges could be brought in any district in which the
underlying drug offense had venue.
C.
Finally, for the first time on appeal, Babb and Moore argue
that the district court erred in failing to voir dire the jury
concerning possible juror intimidation. As they did not object
at trial, this Court reviews the district court’s actions for
plain error. Fed. R. Crim. P. 52(b). In order to prevail under
plain error review, a petitioner must demonstrate that: (1) an
error occurred; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
U.S. 725, 732 (1993). If these three elements are met, this
Court may exercise its discretion to notice error only if the
18
error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks and citations omitted); see also United States v. Hughes,
401 F.3d 540, 555 (4th Cir. 2005).
1.
The defendant’s right to a fair trial by an impartial jury
free from the potentially prejudicial influence of third parties
includes the right to have a jury free from contact by third
parties. Mattox v. United States, 146 U.S. 140, 150 (1892)
(“Private communications, possibly prejudicial, between jurors
and third persons, or witnesses, or the officer in charge, are
absolutely forbidden, and invalidate the verdict, at least
unless their harmlessness is made to appear.”). There is a
presumption of prejudice to the defendant when there is “any
private communication, contact, or tampering, directly or
indirectly with a juror during trial about the matter pending
before the jury.” Remmer v. United States, 347 U.S. 227, 229
(1954). However, this presumption only arises when the
defendant establishes that extra-judicial contacts occurred
which cast doubt on the validity of the jury’s verdict.
Stockton v. Virginia, 852 F.2d 740, 747 (4th Cir. 1988). The
only case where this prejudice was said to arise because of
intimidation in the courtroom was in the Ninth Circuit’s
decision in United States v. Rutherford, 371 F.3d 634 (9th Cir.
19
2004). The court held that when the intimidation inside the
courtroom was coming from the government, there was a
presumption of prejudice due to the “heightened concern that the
jurors will not ‘feel free to exercise [their] functions’ with
the Government ‘looking over [their] shoulder[s].’” Id. at 643(quoting Remmer, 347 U.S. at 229).
Further, even if improper influence is suggested, there is
no requirement that the court conduct individualized voir dire
each time. The Seventh Circuit has held that individual
questioning, which may tend to unsettle the jury, is only
warranted in cases where there is a strong indication of bias or
irregularity. United States v. Stafford, 136 F.3d 1109, 1112-13
(7th Cir. 1998.)
2.
In this case, the conduct complained of was not mentioned
by defense counsel, but rather the district court, and as a
result this Court has very little information on what the
improper influence could have been. The evidence of any bias
comes in the form of this brief statement by the district judge
outside of the presence of the jury and spectators:
Be seated. Counsel, there have been some regular
attendees at this trial who I take it are family
members, acquaintances of one or both of the
defendants. It would appear that perhaps jurors
believe too much attention is being paid to them.
It’s a rather unusual circumstance, but I’ve heard it
before. Obviously, it’s not unusual for participants
20
in a trial to watch the jury, but we want to be sure
that the jury is not made uncomfortable.
So if I’m correct that the regular attendees have been
members of the family or friends of the defendants, I
would appreciate counsel commenting to them when and
as appropriate that we don’t want to make the jurors
uncomfortable, and what’s actually a lot more
interesting about a trial is what goes on in the well
of the court and from the witness stand as opposed to
the jury. So I share that with you just so you can
convey the court’s mild concern that the jurors not be
made uncomfortable. It’s nothing more than that.
Okay?
J.A. 915-16. There was no evidence that the judge had been
notified by the jury that they were uncomfortable or whether he
noticed it on his own.
On this evidence alone, the defendant has certainly not
carried his burden of showing that the jury was improperly
influenced, much less that the influence was so serious that it
required individual voir dire by the judge.
III.
For the foregoing reasons, both Babb and Moore’s
convictions are
AFFIRMED.
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