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UNITED STATES v. BAIRD

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 12, 1991

United States of America,
v.
David P. Baird

The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 On January 27, 1989, the bury returned a verdict in the above-captioned case finding the defendant David P. Baird guilty of violating 18 U.S.C. § 203(a) and (c), the federal conflict of interest statute. Now before the Court is a motion by the defendant for a new trial, based on newly discovered evidence.

 Upon careful consideration of defendant's motion, the supporting and opposing legal memoranda, and the underlying law, the Court shall deny the defendant's motion, because the evidence does not change the defendant's liability under the statute and would not result in an acquittal in the event of a new trial.

 I. Background

 This case has a long history which began with an Indictment filed in March, 1987. The Superseding Indictment in this case was filed on January 12, 1989, and charged the defendant with having violated 18 U.S.C. § 203(a) and (b)(2) (or c, as amended) by receiving or agreeing to receive compensation from the International Science and Technology Institute, Inc. ("ISTI") for services he performed or would perform for ISTI before the United States Coast Guard ("Coast Guard") while he was a special government employee with the Coast Guard. These services included a personal appearance by defendant on behalf of ISTI at a conference on August 9, 1985, at which ISTI presented a contract proposal to representatives of the Coast Guard concerning the New Orleans Vessel Traffic Systems Project.

 Trial was held in this matter commencing on January 23, 1989, and resulting in the defendant's conviction. The defendant then filed a motion for judgment of acquittal, which was denied by this Court on May 1, 1990. See Opinion, United States v. David P. Baird, 778 F. Supp. 534 (D.D.C. 1990) (attached hereto). The defendant was sentenced on June 1, 1990, to one year incarceration, execution of sentence suspended, and placed on one year's probation, with the requirement that he complete 200 hours of community service, pay a special assessment of $ 50, and not hold any future positions in the federal government. *fn1"

 The defendant filed a notice of appeal on June 11, 1990. The court of appeals issued a briefing schedule on November 23, 1990, which was suspended on February 14, 1991 pending the filing and resolution of the defendant's motion for a new trial in the district court. The motion for a new trial was filed in this Court on May 21, 1991, and finally became ripe for decision on October 31, 1991, when all the relevant papers and pleadings were before the Court. *fn2"

 The defendant now moves for a new trial because he asserts that he has acquired new evidence regarding his proper classification in the Coast Guard. The defendant says that the new evidence, in the form of amended orders, shows that he should have been classified as a Reserve Officer serving on "temporary active duty for other than training" ("TEMAC"), rather than as serving on "active duty for training" ("ADT") or "special active duty for training" ("SPACDUTRA") at the time set forth in the Indictment. See Def.'s Mot. for New Trial, Ex. 3. This difference is significant, the defendant contends, because a reserve officer on TEMAC is not a "special government employee" within the jurisdiction of 18 U.S.C. § 203, as defined in 18 U.S.C. § 202(a), and that therefore he was not subject to § 203. The government argues that the change does not exempt the defendant from the strictures of § 203(a), because he still qualifies as a special government employee, or, if he was not a special government employee, then he was an "officer or employee" of the United States within the ambit of the statute.

 II. Analysis

 A court may grant a motion for a new trial "if required in the interests of justice." Fed. A. Crim. P. 33. Where the basis for the motion is newly discovered evidence, the defendant must show: (1) the evidence was discovered after trial; (2) the defendant was diligent in seeking to procure the evidence; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) a new trial would probably produce an acquittal. United States v. Sensi, 279 App. D.C. 42, 879 F.2d 888, 901 (D.C. Cir. 1989), citing United States v. Kelly, 252 App. D.C. 308, 790 F.2d 130, 133 (D.C. Cir. 1986); United Stated v. Mangieri, 224 App. D.C. 295, 694 F.2d 1270, 1285 (D.C. Cir. 1982).

 Here, the defendant has failed to sustain his burden. Even if the evidence is considered newly discovered, *fn3" the defendant has failed to show that a new trial would probably produce an acquittal.

 The conflict of interest statute, 18 U.S.C. § 203, inter alia, forbids officers and employees of the federal government from seeking or receiving any compensation for representational services in any matter in which the United States is a party or has direct and substantial interest. 18 U.S.C. § 203(a). A special government employee is subject to § 203 only in more narrowly defined circumstances. 18 U.S.C. § 203(c).

 Special government employees are defined in 18 U.S.C. § 202(a):

 For the purpose of sections 203, 205, 207, 208, and 209 of this title the term "special Government employee" shall mean an officer or employee of the executive or legislative branch of the United States Government, of any independent agency of the United States or the District of Columbia, who is retained, designated, appointed, or employed to perform, with or without compensation, for not to exceed one hundred and thirty days during any period of three hundred and sixty-five consecutive days, temporary duties either on a full-time or intermittent basis . . . Notwithstanding section 29(c) and (d) of the Act of August 10, 1956 (70A Stat. 632; 5 U.S.C. 30r(c) and (d), a reserve officer of the Armed Forces, or an officer of the National Guard of the United States, unless otherwise an officer or employee of the United States, shall be classified as a special Government employee while on active duty solely for training. A Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203 and sections 205 through 209 and 218 . . .

 The defendant argues that since his "new evidence" shows that he was allegedly not a reserve officer on active duty solely for training, he was not a special government employee and therefore not subject to § 203. However, even assuming that the defendant was not a special government employee, the Court concludes that the defendant is subject to § 203 regardless, because if he was not a special government employee, he was an officer of the United States within the meaning of § 202 and § 203.

 The statute provides that a "Reserve officer of the Armed Forces or an officer of the National Guard of the United States who is voluntarily serving a period of extended active duty in excess of one hundred and thirty days shall be classified as an officer of the United States within the meaning of section 203". 18 U.S.C. § 202(a). The defendant began one set of orders on March 7, 1985, which ran for 139 days until July 23, 1985. His next set of orders indicate service began the very next day, on July 24, 1985, and ran for 69 days until September 30, 1985. See Gov't.'s Opp. to Mot., Ex. 1. While on the date of the events charged in the Indictment, August 9, 1985, the defendant was serving under orders for less than 130 days, he had been continuously serving, at that time, for over 130 days. The statute does not specify the circumstances through which a person must be serving more than 130 days. *fn4" A common-sense interpretation of the statute would indicate that the question is the amount of time served, not the format in which the orders appeared. In other words, if an officer is in the midst of serving more than 130 days, the statute logically should apply, whether or not the orders changed at some point in the interim. A reserve officer who is in fact serving more than 130 days is not entitled to the exemption from § 203 that Congress created for reserve officers who serve less than 130 days.

 The defendant also argues that he was not an officer within the meaning of § 203(a) because it was not established that the defendant was an officer within the meaning of 5 U.S.C. § 2104(a) and 2105 (a). This argument is without merit. The only time those statutes were used to define "officer or employee" for the purposes of 18 U.S.C. § 202(a) was in the 1990 Federal Criminal Code, at 18 U.S.C. § 202(c), having been added on November 30, 1989 (eleven months after trial in this action) through the Ethics Reform Act of 1989. See Pub. L. 101-194, title IV, § 401 (November 30, 1989). On May 4, 1990, through Public Law 280, Congress amended 18 U.S.C. § 202(c) to read it as it currently appears (with no reference to 5 U.S.C. § 2104 (a) and § 2105 (a)). The references to 5 U.S.C. § 2104 and § 2105 were not in existence in relation to 18 U.S.C. § 202(c) either at the time of the offense or the time of the trial.

 The defendant further argues that § 202(a) contains this reference to Title 5: "Notwithstanding section 29(c) and (d) of the Act of August 10, 1956 (70A Stat. 632; 5 U.S.C. 30r(c) and (d)), a Reserve officer of the Armed Forces . . . unless otherwise an officer or employee of the United States, shall be classified as a special Government employee while on active duty solely for training." The defendant states that 5 U.S.C. 30r(d) is the predecessor to 5 U.S.C. 2105(d), and a definition of "employee" is set forth in 5 U.S.C. 2105(a). He then argues that Title 5 contains the laws relating to government organization and is the "obvious source" for the definition of the term "officer or employee of the United States". See Def.'s Resp. to Gov't.'s Opp. at 4-5.

 This argument is also meritless. First, sections 29(c) and (d) of the Act of August 10, 1956 offer no support for the defendant's position. Section 29(d) provides, on the contrary, that when not on active duty, a Reserve officer "is not considered to be an officer or employee of the United States." 70A Stat. 632 (emphasis added). The implication (if any) appears to be that when the Reserve officer is on active duty, he or she is considered to be an officer or employee of the United States. Second, the fact that Congress deliberately added, and then removed references to 5 U.S.C. § 2104(a) and § 2105(a) demonstrates that it is not obvious that Congress intended the definitions given there to apply to 18 U.S.C. § 203.

 Finally, the defendant argues that the Indictment never charged him with being an "officer of the United States" within the meaning of § 203(a). This argument also fails. The Superseding Indictment, filed on January 12, 1989, states that on or about August 9, 1985, the defendant "was an officer and employee of the United States in the United States Coast Guard of the United States Department of Transportation, and was a special government employee, as that term is defined in section 202(a) of Title 18, United States Code". (Emphasis added.) This language includes a charge that the defendant was an "officer" within the meaning of § 203(a) in addition to the charge that he was a special employee. Admittedly, the emphasis of the Indictment was on the charge that the defendant was a special government employee. It stated a violation of 18 U.S.C. § 203(b)(2) (later § 203(c)), which applies only to special government employees. The evidence at trial focused on the defendant's supposed status as a special government employee, as did the Court's jury instructions. See Jury Instructions, January 26, 1989 at 1, 11. However, this focus does not invalidate the Indictment, since it encompasses the possibility that the defendant was an officer of the United States. Therefore, the "new evidence" is not at variance with the Indictment. See United States v. Tarantino, 269 App. D.C. 398, 846 F.2d 1384, 1391 (D.C. Cir. 1988) (stating that evidence must establish facts materially variant with an Indictment and the variance must cause substantial prejudice to warrant reversal).

 The fact that the evidence at trial may have emphasized the allegation that the defendant was a special government employee, and the jury was instructed on that basis, while the "new evidence" allegedly indicates that he was instead an officer of the United States, was not prejudicial. The defendant has not shown that a new trial with this additional evidence would probably produce a different result. On the contrary, given the evidence presented with these motions, it does not appear that the defendant and the government dispute the facts regarding the defendant's various assignments, but rather, they dispute the legal significance of these facts. The Court has determined that the "new evidence" does not alter the defendant's legal liability. Under either categorization he was subject to the statute under which he was convicted. Since all the other evidence in the trial remains the same, there is little likelihood that the addition of these new, undisputed facts would cause a jury to reach a different verdict. The allegations regarding the underlying conduct for which the defendant was brought to trial remain unchanged. Therefore, it decidedly would not serve the interests of justice to convene a new trial in this case.

 III. Conclusion

 For all of the reasons previously stated herein, the Court concludes that the defendant has failed to show that his "newly discovered evidence" would probably result in acquittal if a new trial were held. Accordingly, the Court shall deny the defendant's Motion for a New Trial, and shall issue an order of even date herewith in accordance with this Memorandum Opinion.

 ORDER - November 12, 1991, Filed

 Upon careful consideration of the submissions by the parties, the underlying law, and the entire record herein, and for the reasons stated in the Court's Memorandum Opinion in the above-captioned action, filed on this date, it is, by the Court, this 12th day of November, 1991,

 ORDERED that the defendant's Motion for a New Trial shall be, and hereby is, DENIED.

 ATTACHMENT

 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

 United States of America, v. David P. Baird.

 Criminal No. 87-0076

 OPINION OF CHARLES R. RICHEY UNITED STATES DISTRICT JUDGE

 On January 27, 1989, the jury returned a verdict in the above-captioned case finding the defendant David P. Baird guilty of violating 18 U.S.C. §§ 203(a) and (c), the federal conflict of interest statute. Now before the Court is a motion by the defendant for judgment of acquittal.1a Upon careful consideration of defendant's motion, the supporting and opposing legal memoranda, and the underlying law, the Court will deny the defendant's motion.

 Defendant advances essentially three arguments in support of his motion. First, defendant contends that the Court's instructions to the jury concerning the elements of the offense with which defendant was charged were incomplete because they did not contain the level of scienter required for the commission of that offense. Second, defendant maintains that the prosecutor suggested to the jurors that defense counsel was trying to mislead them by raising the issue of "consciousness of wrongdoing," even though "consciousness of wrongdoing" was not an element of the offense with which defendant was charged. Defendant argues that this suggestion by the prosecutor was particularly prejudicial in view of the fact that it was the prosecutor, and not defense counsel, who initially raised the issue of "consciousness of wrongdoing." Moreover, the defendant asserts that the Court improperly deprived him of the opportunity to rebut the government's evidence that defendant consciously knew that his acts were in violation of the law. Finally, defendant maintains that the government improperly read from a transcript, which was not received into evidence, during its rebuttal argument, and that the portion of the transcript read by the prosecutor was extremely prejudicial to him. The Court will address each of defendant's arguments in turn.

 The Indictment in this case charges defendant with having violated 18 U.S.C. § 203(a) by receiving or agreeing to receive compensation from the International Science and Technology Institute, Inc. ("ISTI") for services he performed or would perform for ISTI before the United States Coast Guard ("Coast Guard") while he was a special government employee with the Coast Guard. These services allegedly included a personal appearance by defendant on behalf of ISTI at a conference on August 9, 1985, at which ISTI presented a contract proposal to representatives of the Coast Guard concerning the New Orleans Vessel Traffic Systems Project.

 The statutory language of 18 U.S.C. § 203(a), in pertinent part, provides:

 (a) Whoever, otherwise than as provided by law for the proper discharge of official duties, directly or indirectly --

 (1) demands, seeks, receives, accepts or agrees to receive or accept any compensation for any representational services, as agent or attorney or otherwise, rendered or to be rendered either personally or by another --

 . . .

 B) at a time when such person is an officer or employee of the United States in the executive, legislative, or judicial branch of the Government, or in any agency of the United States,

 in relation to any proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest or other particular matter in which the United Stated is a party or has a direct and substantial interest, before any department, agency, court, court-martial, officer, or any civil, military, or naval commission; or

 (2) knowingly gives, promises, or offers any compensation for any such representational services rendered or to be rendered at a time when the person to whom the compensation is given, promised, or offered, is or was such . . . employee;

 shall be subject to the penalties set forth in section 216 of this title.

 18 U.S.C. § 203 (a) (emphasis added).

 Defendant argues that in instructing the jury on the elements of the offense with which the defendant was charged, the Court's omission of the term "knowingly" from the elements was error.2a Section 203(a) contains two subsections. The first subsection makes it a crime to demand, seek, receive, accept, or agree to receive or accept compensation under certain circumstances; the second subsection makes it a crime to knowingly give, promise, or offer compensation under certain circumstances. The language of the first subsection, which is the one defendant was charged with violating, is strikingly different from the second subsection in that it does not contain the term "knowingly." Congress' inclusion of the term "knowingly" in subsection 203(a)(2) and its omission of this term in subsection 203(a)(1) provide a strong suggestion that Congress intended to be harsher on government employees who received compensation resulting in a conflict of interest than on the donors of such compensation. United States v. Evans, 572 F.2d 455, 480 (D.C. Cir.) ("The purpose of [the conflict of interest statute] is to reach any situation in which the judgment of a government agent might be clouded because of payments or gifts made to him by reason of his position 'otherwise than as provided by law for the proper discharge of official duty.'"), cert. denied, 439 U.S. 870 (1978). Moreover, the only logical explanation the Court can discern for Congress' inclusion of the term "knowingly" in one subsection and its exclusion in the other is Congress' intent to treat government employees receiving payments from those interested in matters in which the United Stated is a party or has a direct or substantial interest more harshly than the donors of such payments. See Carter v. Director, Office of Workers's Compensation Programs, 243 App. D.C. 179, 751 F.2d 1398, 1401 (D.C. Cir. 1985) (explaining that maxim of statutory construction "expressio unius est exclusio alterius" only applies "when there is no apparent reason for the inclusion of one disposition and the omission of a parallel disposition except the desire to achieve disparate results").

 Even assuming that the omission of the term "knowingly" from subsection 203(a)(1) amounted to nothing more than inadvertence on the part of Congress, the fact that the Court did not include the term "knowingly" in its instructions to the jury concerning the elements of the crime with which defendant was charged is not fatal. Immediately after the Court outlined the elements of the offense for the jury, the Court instructed the jury as follows:

 All crimes require some kind of intent. Intent means that a person had a purpose to do a thing. It means that he or she acted with the will to do a thing. It means that he or she acted consciously or voluntarily, and not inadvertently or accidentally.

 Some criminal offenses require a "general intent" and others require a specific intent. This offense requires only a general intent. That means that, if you find that the defendant knowingly committed the act that the law here involved makes a crime, you may infer his intent to commit the offense from the fact that he did the illegal acts.3a

 Moreover, the fact that the Court instructed the jury on the question of intent after it instructed the jury as to the elements of the charged offense does not give the intent instruction any less weight. The Court instructed the jury that it was "to consider all of [the Court's] Instructions as a whole," and that it was not to "disregard any Instruction, or give special attention to any one Instruction, or question the wisdom of any rule of law."4a

 Plaintiff argues that he was prejudiced by the Court not permitting him to introduce evidence to rebut the government's argument that defendant knew what he was doing was in violation of the law. At bottom, any such evidence would have been irrelevant because defendant was charged with a general intent crime. As such, evidence as to defendant's consultation with lawyers prior to his appearing before the Board on August 9, 1985 or his ignorance of the federal conflict of interest statute and its commands would not have provided defendant with a basis for a valid defense. Compare United States v. Bristol, 473 F.2d 439, 443 (5th Cir. 1973) (ignorance of the law is not a defense to a general intent crime) with United States v. Chavis, 772 F.2d 100, 108 (5th Cir. 1985) ("ignorance of the law is relevant to the issue of specific intent"). The Court even instructed the jury accordingly. *fn5"

 Defendant's argument that he was prejudiced by the prosecutor suggesting in his rebuttal argument that his lawyer was attempting to mislead the jury by raising the issue of "consciousness of wrongdoing" must also fail. *fn6" In response to defendant's argument, the government asserts that its rebuttal argument was invited by certain statements that defendant's lawyer made in his closing argument. The Court is not in a position to decide whether the prosecutor's rebuttal argument was invited by or responsive to the closing argument of defendant's lawyer because of the passage of a significant period of time since the parties made their closing arguments and the absence of a transcript of those arguments. *fn7" As such, for the purpose of defendant's motion only, the Court VIII assume that the prosecutor's comments were not responsive to or invited by the closing argument of defendant's lawyer.

 "When examining a prosecution's rebuttal argument for constitutional error, [the issue is] whether the prosecution's comments '"so infected the trial with unfairness as to make the resulting conviction a denial of due process."'" United States v. Turk, 870 F.2d 1304, 1308 (7th Cir. 1989) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986) (quoting Donnelly v. De Christoforo, 416 U.S. 637, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974))). In other words, the Court is required to examine the objectionable comments in the context of the entire record "and consider the probable effect that the prosecution's comments had on the jury's ability to judge the evidence fairly." Turk, 870 F.2d at 1308 (citing United States v. Young, 470 U.S. 1, 12, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985)); see also United States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir. 1988) (explaining that prosecutorial misconduct must be evaluated in context of the entire trial record). Any comments that the prosecutor made about defendant's lawyer injecting the issue of "consciousness of wrongdoing" into the case, when reviewed in the context of the record as a whole, "did not substantially influence the jury decision or infect the trial with unfairness. The error, if any, was harmless." Turk, 870 F.2d at 1309; see also O'Connell, 841 P.2d at 1428-29 (holding that any harm resulting from personal attacks that the prosecutor made on defense counsel was "fully outweighed by the properly admitted evidence, which provided ample and convincing proof of [defendants'] guilt").

 Finally, defendant argues that the prosecutor's closing argument was improper in two respects. The first is that the prosecutor misread what was contained in a transcript of the August 9, 1985 conference, a tape recording of which was played for the jury by the defendant. The second is that the transcript was never received into evidence. Although defendant is correct that it was improper for the prosecutor to use the transcript in his rebuttal argument, "improper argument by the prosecutor is not grounds for reversal unless there is 'substantial prejudice as well as error.'" United States v. Kim, 193 App. D.C. 370, 595 F.2d 755, 768 (D.C. Cir. 1979) (quoting Cross v. United States, 122 App. D.C. 283, 353 F.2d 454, 456 (D.C. Cir. 1965)); see United States v. Flake, 746 F.2d 535, 542 (9th Cir. 1984) ("Improprieties in counsel's argument to the jury do not require a new trial unless they 'are "so gross as probably to prejudice the defendant," and any resulting prejudice is not 'neutralized' by the Court's instructions.'" (citations omitted)), cert. denied, 469 U.S. 1225, 84 L. Ed. 2d 360, 105 S. Ct. 1220 (1985). When examined in the context of the entire trial record, the prosecutor's reading from the transcript did not substantially prejudice the defendant's rights and amounted only to harmless error. United States v. Miranda, 556 F.2d 877, 879-80 (8th Cir. 1977) (denying motion for a mistrial where prosecutor in his rebuttal argument read from transcript of a wiretap tape which was played for the jury at trial).

 In his rebuttal argument, the prosecutor in this case stated as follows:

 Mr. Falvey says, "Meaning 360 days a year, or just how many days do you go a year?" And David Baird says, "How many days of reserve work do you go a year?" How does he do all these as a reservist? How can he possibly accomplish everything he's telling him he's done as a reservist? So what does Baird say? "Currently, statuswise, I'm unemployed," he says.8

 During the prosecutor's cross-examination of the defendant, the prosecutor had discussed with the defendant the portion of the transcript from which he read during his rebuttal argument. In going over the transcript, the prosecutor had asked the defendant how he responded when Mr. Falvey asked him "How many days of reserve work do you do a year?" *fn9" The defendant told the prosecutor that he told Mr. Falvey "currently status-wise I was on, I was unemployed. Then I started thinking, because of termination at Automatic Power." *fn10"

 While defendant used the past tense in responding to Mr. Falvey's question, the prosecutor used the present tense in his rebuttal argument when describing defendant's response to Mr. Falvey's question. Although the prosecutor may have misspoken in changing defendant's response from the past to the present tense, it is doubtful that this change prejudiced defendant when defendant's response to Mr. Falvey's question is examined in context. First, it appears that defendant's use of the past tense was a slip of the tongue because he was responding to a question asked of him in the present tense. In addition, he began his response with the word "currently." Moreover, defendant's lawyer, in his cross-examination of Lieutenant Commander Donald Ray Opedal, elicited testimony to the effect that defendant represented at the August 9, 1985 meeting that he was unemployed. *fn11" Finally, the Court instructed the jurors that the arguments of counsel were not evidence and that their recollection of the evidence controlled. *fn12" See, e.g., United States v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988) (holding that district court acted within its discretion in denying motion for mistrial when prosecutor commented on matter not in evidence in closing argument because "comment was not sufficiently prejudicial when taken together with the court's later jury instruction that '[the jury's] recollection of the evidence controlled and that the attorney's arguments were not evidence'"); United States v. Sarmiento, 744 F.2d 755, 762 (11th Cir. 1984) ("Although . . . prosecutor's closing did contain improper remarks, [a mistrial was not warranted because] those remarks were inadvertent rather than malicious, . . . they were not substantially prejudicial, and . . . any lingering prejudice was cured by the court's instructions to the jury."). *fn13"

 For the reasons set forth herein, the defendant's motion for a judgment of acquittal is denied. The Court will issue an Order of even date herewith memorializing these findings.

 ORDER


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