When Innocence DOESN’T Matter

In New York State.  If there’s a guilty plea.

Oh, my.  We don’t know how this one got by us – and, it seems, everyone else – for so long.

Years ago (and yes, we increasingly find ourselves using that phrase) we ran through a little case law about “actual innocence” and federal habeas corpus and whatnot.  We were forced to point out that there is no such thing as a “free standing” claim to federal habeas relief based on “actual innocence”.

Which is fine, we suppose, since outside of death penalty cases federal habeas relief has ceased to exist.  Or maybe it’s better to say “inconsequential” rather than “fine”, because we don’t like that state of the law.  We think innocence should always matter.

In any event, we have the New York Court of Appeals telling us that an innocent person, as a matter of law, has no recourse under CPL 440.10(1)(h) based upon actual innocence after a guilty plea.  Here’s CPL 440.10(1)(h):

At  any  time after the entry of a judgment, the court in which it
  was entered may, upon motion of the defendant, vacate such judgment upon
  the ground that...... (h) The judgment was obtained in violation of a right of the defendant
  under the constitution of this state or of the United States;


In support of this conclusion the Court of Appeals (New York Court of Appeals, that is – a state high court, not one of those federal appeals courts) borrows from federal habeas corpus law, citing Schlup v. Delo and Tollett v. Henderson, SCOTUS cases with which we have more than a passing familiarity.  The bottom line in the federal system is that actual innocence does not, by itself, form a constitutional basis to vacate a conviction but may form the basis to pierce a procedural bar to habeas relief (such as the draconian statute of limitations the Congress imposed with the AEDPA in 1996) of which there are several thousand.

We jest.  There are barely 100.


So what does New York say about “actual innocence”?  Bear in mind that the State’s high court can make its own rules about whether actual innocence matters and how much.  It is not bound by federal court procedures, and while it is not free to find that there is a federal constitutional right to relief based on “actual innocence” it has the last word on whether the New York State constitution might be a little more generous to criminal defendants who are innocent even if they pleaded guilty.

Nothing doing, though.

Right off the bat, it’s a bad sign when the majority opinion cites all those SCOTUS federal habeas cases.  And the majority, by the way, includes the Court of Appeals’ Chief Judge (prosecutor type from beginning to end) whereas the dissent (there are two) are apparently bleeding heart Ivy League types.

We might have more to say about this case later.  In the meantime, it is worth noting that, just like the federal habeas cases, the opinion stresses that the factual admissions underlying a guilty plea must have preclusive effect on a later claim of actual innocence.  Also like the federal habeas cases, they do not anticipate the impact of such “reasoning” (we put the word in quotes because otherwise we intellectually gag on writing it) on an “Alford plea“, where there are no factual admissions and the defendant asserts innocence.  We should think this would make a difference in the reasoning.

Then again, we should think innocence would matter in the first place.



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Kavanaugh And “Sexual Assault”

A little rationality.  Seems out of place, but still.

The first step in any case is to figure out whether, assuming everything a claimant is alleging is true, it adds up to anything legally cognizable.  Not deciding that it is true.  Assuming it for purposes of analysis.

This, by the way, is something the vast majority of people seem to be incapable of.  Indeed there are times it seems to us we are the only ones, and that we would make a fine benevolent dictator.

But moving on.

In New York – and apparently Maryland also, where the 36 year old event is alleged to have occurred – there is a critical and delicate element of a sexual abuse or assault charge that no one has mentioned, so far as we can tell.  In fact it seems to have been left out of the conversation in a lot of similar contexts where it also might be a crucial determining factor, because we are instructed that we must look at the events from the victim’s point of view, whereas historically we have looked at things from the accused’s point of view.  Not that this instruction has much to recommend it, at least in the criminal context.  We just note it.

In any case, the critical and delicate element we are referring to is the accused’s purpose in whatever physical contact took place.  And that purpose has to be his own, or the other person’s, “sexual gratification”.  This is what we call the mens rea of the offense.

Now.  Let’s look at how high schoolers can sometimes behave.  Remember ever getting “pantsed” in high school?  Remember wedgies?  Remember anyone being “dared” to do this or that?

Which of these categories seems the better fit for Christine Blasey Ford’s allegations:  a “sexual assault” with the required mens rea; or boorish high school football player conduct falling in the latter category?

We think the latter is the better fit.  We admit the former is a possibility on the most expansive interpretation of the facts Ford alleges, but we do not believe in judging people guilty of criminal conduct or even charging them based on a possibility.

But let us consider something else, to address a concern that in the end is misplaced but nevertheless has some prima facie relevance:  could Ford have experienced the incident as a sexual assault?

And the answer to that is yes, certainly she could have.  And there would be nothing wrong with her feeling that way at all.  But her experiencing it as a sexual assault does not make it a sexual assault objectively based on the elements of a criminal offense.

It doesn’t add up to criminal assault simpliciter, either.  That requires an injury.

Here’s what it does add up to, at least in New York:  Harassment 2nd, which is a “violation”; that is, a non-criminal but public offense.

It also adds up to a civil assault, an intentional tort, because any unwanted, intentional touching of any kind is a civil assault.  That would apply to wedgies and “pantsing”, too, not that we’re recommending litigation over such things.  We’re just noting that such things could be litigated because they are legally cognizable.

And note that in the civil context, the focus shifts to the state of mind of the accuser, not the accused.  “Believe the victim” is perfectly appropriate in the civil context.

But people have no faith in litigating civil wrongs on their own behalf.  Seems they want the police, and through them and the criminal justice system the public, to validate their injury.  An FBI investigation, too?  That’s the “gold standard”.  We are not making this up.

Note well, please.  We performed our analysis based on the assumption that all of Ford’s allegations were true.  We do not say that they are true.  And we do not say that they are not true.  Like a court considering a case, we do not reach that question because we don’t have to reach it in order to resolve the dispute.  And we can resolve the dispute only one way:  based on the evidence, viewed in the light most favorable to the accuser, Judge Kavanaugh did not sexually assault Ms. Ford.  There is nothing for the FBI to investigate.

Throw in that this is something alleged to have happened about 36 years ago.  Throw in that we’re talking about minors at the time.

Conclusion:  someone – and probably many – in the chain of events whereby this became an embarrassing public spectacle has been extremely irresponsible.  If we are representing Ms. Ford our advice before this all blows up is:

“However traumatic you may have found this incident, it is fundamentally a civil matter and the time to do something about that is long past.  At this point bringing this accusation will bring nothing but grief to both you and the man you accuse, and your family and his, although of course the brouhaha may be of great value to political partisans.  But I advise you not to accept a ride on that tiger’s back.”

Politics ain’t beanbag, but there really should be limits.  Decency, at least.  We often don’t realize how far astray we’ve gone until long after the dust settles.  It’s unfortunate:


By the way, that’s the late Roy Cohn in some of the footage.  Cohn was notorious in many ways both good and bad, but he is noteworthy today more for his association with Donald Trump than his halcyon days with McCarthy’s HUAC




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Wow. Just Wow. Updated.

Apparently, we’re in for another financial “crisis” and the Wall Street Journal wants to be sure in advance that the spin is spun.

President Bush and Tim Geithner and Hank Paulson were the great heroes of the last crisis, you see.  They resisted the detestable Trumpian “populism” of the day to reward their friends with a $12 trillion dollar bailout to “save the whole economy” which was “on the line” in 2008.

Here’s the truth.  The “economy” they were saving is not really an economy as that term is usually and properly understood.  They “saved” the corporatist-socialist political system over which they perched then, and continue to perch today.  We say “saved” because it was a very expensive kick the can down the road maneuver that we must admit has exceeded all rational expectations for effectiveness in delaying things, but of course fundamentally changed nothing.  Which of course to overlords is the point:  the “system” as it is has been good to them.  Why change it?

So as we careen towards the next “crisis” which of course is actually a continuation of the previous one that was never actually solved, we have another thought about things economic.  We made a suggestion some time ago about a jubilee 28th amendment that would cancel existing debt and establish a gold standard.  Talk about a fundamental change.  We still like the idea a lot, but it appears we are the only ones.

Here’s another suggestion for a 28th amendment that is almost as good in theory but way simpler.  And to be frank it would probably be about as popular, but that’s a separate problem:

Neither the United States nor any state shall henceforth impose any tax upon, or otherwise permit the encumbrance of, residential real estate.

See, populism does indeed get out of hand (think French Revolution) but that doesn’t mean it should always be ignored.  It can function as a bellwether.

Anyway, comments on this proposal for a constitutional amendment will be appreciated.

UpdateThey always report it, at least somewhere, so it can never be said that your weren’t informed.


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An Open Letter To Barbara Underwood, Acting New York State Attorney General

So, you’re undertaking an investigation of sexual abuse in the Catholic Church?  Good for you.  See what you can dig up.  Our impression is that most of it is already out there, but who knows?  Pro tip:  we have it on good authority that going all the way back to Francis Cardinal Spellman might yield some much needed understanding of how “open secrets” came to be a Thing that shielded abusers and marginalized their victims for decades, since the 1930’s.  If you go there you might even outdo the Pennsylvania AG, in the depth and breadth and scope departments.

New York should always outdo Pennsylvania, we figure.

Plus, if you don’t outdo Pennsylvania, there’s a Johnny come lately, hopping the bandwagon feel to the whole thing.  We wouldn’t want that.  We wouldn’t want this much heralded investigation to seem, well, unserious.

But then we have another suggestion, of course.

We appreciate that the New York AG has jurisdiction to supervise in some respects charities and churches, although of course in the latter case there would appear to be 1st amendment concerns.  Or even without the 1st amendment. Do you know the story of Thomas Becket?  That kind of thing.

We will not tarry or digress, however.  Indeed, let us be blunt, and get right to the point. It’s our blog-letter, after all.

If sexual abuse tied to the abuse of power is an outrage worth investigating – and it is – then why be so selective?   There are other institutions, institutions that conveniently raise no 1st amendment concerns, that deserve a look.  Institutions like, say, police departments.

Oh, the stories we – and others – could tell.

Yet we have in mind a specific story.  Namely, the Mount Morris Police Department, circa 2004-2006.  Much more recent than most of the outrage you are likely to uncover in your Catholic Church investigation. So there’s that.

A little background.  We endeavor to avoid being cryptic.

Things were so bad that the department went through three chiefs in about 18 months. The consensus in the generally reliable rumor mill was that police officers in the department had a long standing practice of receiving sexual favors (often from underage girls) in exchange for not charging them with crimes. And whether those girls were actually guilty of any crimes was irrelevant: police could make up charges, and police were always believed.  Including of course then Mount Morris Police Officer William Rosica.  Who appears to have learned a lot in his time there.

All “official” proceedings related to these long standing and ongoing issues with the Mount Morris Police Department took place in “executive session” by the Village Board, however. Meaning everything that was really going on in the department was kept – yes – secret.  A few officers quietly moved to other departments.  Sound familiar?

Nevertheless, after all that a very courageous member of the Village Board sought to disband the department. That had to be approved by a referendum. Guess how that turned out, given that the real problems with the department were never disclosed, among other things?

Does our outraged attorney general’s office have anything to say about all this? And while we’re at it, how is it that so many elected public officials in New York become fodder for federal prosecutors, yet no one seems to ask: whither the Attorney General, the State’s “highest” law enforcement official?  Does the New York Attorney General have any responsibility to address malfeasance and criminal conduct by state and local officials or is this always the feds’ problem?

The AG gets all exercised over corruption only when there’s a politically agreeable angle, it seems. Investigating the Catholic Church is a politically safe play right now, but investigating corruption in police departments is never a safe play.  They have powerful unions.  And lobbies.  And clout.  And that’s putting it mildly.

The bottom line:  sexual abuse of the powerless by the powerful is the outrage du jour? Fine, let’s be even handed about it.  Let us, because we are responsible public officials with courage and integrity, investigate and if warranted by the evidence expose these monsters who have ruined lives by their perfidious acts, be they in the Catholic Church or in the Mount Morris Police Department.  And let the chips fall where they may.  Fiat justitia ruat coelum.

But let us – that is, us here at LoS – also be candid.  We have been around a while.  We do not believe that the New York Attorney General’s office has any integrity, or courage, or any genuine sense of responsibility, or any devotion to duty.  In fact we doubt that its current “investigation” of the Catholic Church is anything more than a cynical and highly political ploy to reap some undeserved benefit from the suffering of others because it happens at the moment to be generating some headlines that are easy to capitalize on: the political calculus is entirely different, of course, if the target is a police department.

No, we don’t believe that the New York Attorney General’s office cares about sexual abuse victims in the slightest, unless they can be the occasion for a plaudit fix.  We write this open letter now only because we harbor the exceedingly faint hope that in the wake of the astounding departure of the office’s most recent occupant there is, or at least could be – dare we even think it – a modicum of a sense of shame among those remaining. People who are, after all, lawyers.

Put another way: we are, as usual, disgusted.

Yet for that reason alone – because being regularly disgusted is decidedly unpleasant – we would be happy to be proven wrong. Do not doubt us on that point.

So we leave the matter with you, expecting nothing to come of our open letter, our plaintive pleas, our earnest importunings, other than the recklessly shallow and snobbish indifference to which we have grown so accustomed. Yet also prepared to be pleasantly surprised, even to render our assistance.

You see, unlike the New York Attorney General’s office, we are willing to move past cynicism. At least a little.

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Inversion. And “Flipping” Follies.

We are not even big Trump fans around here.  Or even Trump fans at all.  But we basically don’t care about rogues in the White House, the Republic has survived them before.  Arguably it has been better off when the People were more or less indifferent to the occupant on Pennsylvania Avenue.

The true oddity since the election of 2016 is not that we have a rogue in the White House; it’s the incredible shrieking and howling of the chattering classes.  They lurch from one breathless and overheated imbroglio to another, from week to week, with an hysterical clamor that should embarrass them – but of course does not.  Lots of living and dying and genuine turmoil is taking place in the world but the swamp, like some self-absorbed psychopath, is mired in its terminally parochial drama.

We wish we could just tune it out at this point, but that’s impossible without cloistering ourselves.

So, we have another brief comment, for what it’s worth.  And we’re putting it up here because we are quite surprised, even shocked, that virtually no one is pressing this rather important point, the only really important point in all of this.

The Beltway has been most recently hand wringing and agonizing over Trump’s supposed damage to our institutions of justice.  See here.  And here.  And here.

But this is an inversion of reality by a Beltway establishment that is patently unglued.

The independent counsel – a prosecutor with one case and one target – has always been an especially dangerous threat to the Republic.  But we at LoS cannot recall even these – and let’s explicitly turn the tables here – basically rogue officials ever having taken the fateful step of prosecuting a lawyer to get to the lawyer’s client.  That is the most profound subversion of the functioning of the third branch of government that has ever taken place in our lifetime.  And of course, the third branch was barely functioning, if even that, even before all this insanity.

But it’s one thing for the independent counsel to do it.  Idiotic excess can be expected of rogues.  It’s quite another for the rest of the Beltway establishment to cheer it on with no one – other than us, apparently – at least hesitating and pointing out the obvious.  Or what should be obvious to every lawyer, and the swamp is nothing if not the most lawyer laden place on earth.

And speaking of lawyers, there are lawyers outside the swamp – some of them prolific commentators about current events in the law – and in the prevailing madness all this seems to have gotten by them, too.

The real threat to our institutions, in other words, is not the rogue president; it is the unhinged Beltway establishment’s very braying, howling and shrieking about the rogue president being a threat to our institutions.  The chaos is, at this point, a perfect inversion of the truth.

Which is not a Good Thing.

Finally, and parenthetically, it is worth pointing out that the Trumpster is nowhere near as off base with his comments that “flipping” witnesses should be illegal.  A three judge panel of the 10th circuit Court of Appeals once, and not that long ago, wrote an opinion (very short-lived, but not because it had no merit) holding that very thing..  Maybe Rudy Giuliani should have pointed that out.  But his reflexes are all awry doing defense work it seems.

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Manafort and Cohen

Just a brief comment, which we’ll preface by saying that we have no dog in what is nevertheless unquestionably a fight to the death between the Trumpster and the swamp.

There’s been a lot of commentary on the Manafort trial and its significance.  But we think Professor Turley’s musings are interesting on a number of levels, and most because he’s wading into the province of the trial lawyer, criticizing the “hung jury strategy”.

We made our comments on that here and have nothing to add.

Meanwhile the Washington Post, consummate mouthpiece of received swamp beltway opinion, worries about Trump’s attacks on the “justice system”.  Yet the biggest and most obvious threat to the foundations of our justice system came not from the Trumpster, but from his lawyer Michael Cohen, and this has gone unremarked not only from the expected house organs like the Washington Post and the New York Times, but somewhat surprisingly from the blawgosphere which we usually rely upon to bring attention to such issues.

Specifically, how far can prosecutors go in pressuring a lawyer to betray his client?  Assuming the client is a horrible criminal, is it not a threat to the very structure of the system for prosecutors to bring charges against a lawyer so that they can get to the lawyer’s client?

Yet so far as we are aware, only the luminary Harvey Silverglate (Three Felonies a Day)(Princeton and Harvard, doncha know) has even mentioned what to us is an obvious question to ask, and this was back in April before the issue more formally came up this week:

Silverglate said not only Cohen but prosecutors could be disbarred for overstepping the well-established ethical boundaries.

Put another way, why isn’t the criminal defense bar rising up in one voice to deplore what is happening with Michael Cohen, not for his sake but for the system’s?  Should there not be some scrutiny of this prosecutorial decision, and the prosecutors involved, somewhere?

We’re on pins and needles over here waiting for that shoe to drop, but not holding our breath.  Ugh.




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Of Statistics And Stupidity

Sometimes statistics don’t lie.

Turns out there’s a handy and way succinct statistical demonstration that our “justice system” – well – isn’t.  After all, one necessary condition of a functioning one would have to be the overcoming of differentials in power, prestige and so on in the contest between competing narratives.

In other words, the little guy and the big guy are supposed to fight it out on an even playing field.  Does this happen?  Not as far as the judiciary is concerned, and a cursory review of a few SCOTUS opinions and their citation patterns prove it.

Take one of our favorite cases around here, Mooney v. Holohan.  Decided in 1935, it was a decision in favor of the the most despised little guy, the criminal defendant.  As of today, more than 80 years later, it has been cited 3,140 times according to Google Scholar.  With the exception of Napue v. Illinois its “progeny”, as we say, were generally cited far less:  Pyle v. Kansas (844 times since 1942); Waley v. Johnston (910 since 1942); Alcorta v. Texas (795 times since 1957); Miller v. Pate (767 times since 1967).

Our system never really liked Mooney, we surmise.  Of course, you might include another (and far more famous) case among its progeny – namely Brady v. Maryland, which has been cited 34,392 times since 1963.  But the reason for the exponential increase in citations is that Brady, while explicitly an “extension” of the Mooney case, has in practice become a limitation on it.  We’ve discussed this lamentable state of affairs extensively before.  A lot.  Put another way, Brady became far more popular among our judges because it rationalized findings against the little guy that might otherwise have been compelled by Mooney.

But now, contrast and compare.  If there is a SCOTUS case that can be truly said to embody, as a practical matter, the “principle” of favoring the big guy over the little guy, it would be 2009’s Ashcroft v. Iqbal.  We could explain at length why this is so, but let’s avoid that – because tedious – and just ask our readers (all three of them) to accept that proposition with our solemn assurance that it is unarguable.

Ashcroft has been cited almost 140,000 times in less than ten years.



*                                           *                                    *

Dear reader!

Let’s unpack the Mooney thing a little more.  A little closer to home, too.

Cited a little more than 3,100 times in 80+ years, how many of those were in the New York Court of Appeals (the state’s highest court)?

Five.  The last time Mooney was cited there was 1980 – almost 40 years ago –  in an opinion by then Judge Sol Wachtler.

Sol Wachtler famously coined the expression that a prosecutor could get a grand jury to “indict a ham sandwich“, which we’ll stipulate was a clever turn of phrase.  Later in life, he became famous for other things, a few of which led to his becoming a guest of the federal government.   While the feds were entertaining him, he was stabbed, in a place called Butner Correctional Facility.  These experiences taught him an empathy he presumably previously lacked.  His license to practice law in New York was (quite improbably, we might add) restored in 2007.  Good for him, we say.

Did Sol Wachtler, unlike most appellate judges nowadays, ever try a case to a jury as a lawyer?  We don’t know, and can’t find out from anything on the web.  Possibly.  We hazard a guess, though, that he never tried one representing a criminal defendant.  We quote extensively:

It is well settled that the defendant’s right to due process is violated if the People knowingly use perjured testimony on any material point … However, there is no reason why a disputed claim of fabricated evidence, involving only the credibility of witnesses, may not be resolved in the usual manner, by submitting the matter to the jury at trial…. It is hard to imagine … that jurors would hold a confession against the defendant if they find that it was entirely fabricated by the police. Notably the cited cases upholding the defendant’s constitutional right to a trial free of deliberately perjured testimony involved motions made after trial in which the perjury was conceded or irrefutably established, and the only question for the court concerned the materiality of the evidence. They did not involve pretrial or trial motions, requiring the court to pass upon pure questions of fact and credibility customarily reserved for the jury.

It would be difficult to pack more errors about Mooney into a short passage, but Judge Wachtler did pretty well.

First, the question of “materiality”.  It’s a prosecutor favorable, conviction-preserving escape valve for a Brady violation (which properly speaking is unintentional), not a Mooney violation (which is deliberate).  As we (and Judge Selya) have repeatedly noted.

Put another way, we would have to be stupid to allow a party to litigation to deliberately mislead us to a favorable outcome and then, when caught, argue that their own dishonesty did not affect the outcome.

Speaking of stupid, the whole point of Mooney and its progeny is that the 14th amendment requires the state to provide a remedy (“corrective process”) for state sponsored perjury and similar perfidy.  The state had argued otherwise.  The SCOTUS didn’t waste a lot of verbiage on the argument:

Reasoning from the premise that the petitioner has failed to show a denial of due process in the circumstances set forth in his petition, the Attorney General urges that the State was not required to afford any corrective judicial process to remedy the alleged wrong. The argument falls with the premise.

The “corrective process” the SCOTUS was referring to could not have been the trial, as Judge Wachtler wrote, because the right to a trial already existed quite apart from anything held in Mooney.  Because 6th and 14th amendments.  Duh.

This error is exacerbated by Judge Wachtler’s later reference to a “…defendant’s constitutional right to a trial free of deliberately perjured testimony…”, because the right recognized by Mooney and its progeny was about being convicted, not just being tried, thus 1942’s Waley v. Johnston and Walker v. Johnston and 1943’s New York ex. rel. Whitman v. Wilson all cited Mooney and all involved guilty pleas, not trials.*

Lastly, “…it is hard to imagine that jurors would hold a confession against the defendant if they find that it was entirely fabricated by the police.”  Seriously, Judge Wachtler?  What’s “hard to imagine” is that a jury would ever actually find that a confession, or any other evidence for that matter, was fabricated by police in the first place, even when it’s absolutely clear that it was.  If this was a situation “to be resolved in the usual manner” about the “credibility of witnesses” – that is, by letting a jury sort it all out – Mooney and its progeny would not exist.  But they do exist.

Not to mention that with good reason, based on experience, prosecutors expect their witnesses to be believed and are therefore very comfortable with “credibility” contests.  Indeed, this where the temptation for them to fabricate evidence and commit perjury comes from in the first place.

Mooney quite properly places the responsibility to check this temptation on the system’s officials – judges and lawyers (prosecuting and defending alike), not juries. It’s the only conclusion that makes any sense.  That isn’t, in other words, stupid.

Or worse.

Apparently the state of the law as practiced, though, is that Mooney – a truly landmark due process case – for more than 80 years has never really been implemented (indeed, many seem to believe it has been “generally subsumed” into Brady).

But you can’t have a right without a remedy – way basic.

At some point we have to go there.  Maybe like this.  But we’d have to trust the criminal defense bar not to abuse the remedy, and to that extent abandon its cult of “zealous advocacy“.  And we don’t, obviously.

It’s a mess.  Ugh.



* We also hazard a guess that Judge Wachtler’s law clerk found Bracy v. United States and was relying on that in drafting the opinion.  It should go without saying, but lamentably does not, that Bracy was not a decision of the SCOTUS and is not in any sense case law.  See more here.  Again, quelle stupid.  Ugh.



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