US v. Tremayne Blackwell, No. 09-4193 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4193 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TREMAYNE KENDRICK BLACKWELL, a/k/a Little Kenny, a/k/a Tremayne Oakley Kendrick, a/k/a Kenny, a/k/a Kendrick Jermaine Oakley, a/k/a Kendrick Tremayne Oakley, Defendant Appellant. No. 09-4202 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK RAYSHAWN PARKS, a/k/a Bam, a/k/a Bam Parks, a/k/a Rayshawn Parks, Defendant - Appellant. Appeals from the United States District Court for the Western District of North Carolina, at Statesville. Richard L. Voorhees, District Judge. (5:05-cr-00257-RLV-DCK-1; 5:05-cr00257-RLV-DCK-2) Argued: May 13, 2011 Decided: June 29, 2011 Before TRAXLER, Judges. Chief Judge, and SHEDD and DUNCAN, Circuit Affirmed by unpublished per curiam opinion. ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina; Scott Hadden Gsell, Charlotte, North Carolina, for Appellants. Richard Lee Edwards, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin A. Tate, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant Derrick Rayshawn Parks. Edward R. Ryan, United States Attorney, Adam Morris, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Based on distribution Carolina, evidence showing organization from 1999 to their operating 2005, involvement near in a Statesville, Appellants Tremayne drug North Kendrick Blackwell and Derrick Rayshawn Parks were charged in a one-count indictment with conspiring to possess with intent to distribute 50 grams or more of crack cocaine and five kilograms or more of cocaine powder. See 21 (iii); 21 U.S.C. § 846. U.S.C. § 841(a)(2), (b)(1)(A)(ii), The government also filed a notice that it intended to seek enhanced penalties under 21 U.S.C. § 851 based on Blackwell s and Parks prior drug-related convictions. Appellants court were imposed sentence their for a convicted life sentence Parks. convictions, after a for Appellants and jury trial. Blackwell district a 360-month and raise several challenges Parks The his challenges sentence. to We affirm. I. Briefly, the evidence at trial showed the following. Beginning in 1998-1999, Richard Eckles oversaw the operation of a cocaine distribution ring near Statesville. Eckles obtained kilogram-sized quantities of cocaine for distribution by lowerlevel dealers and stored the drugs in the homes of various relatives, including his sister Marlene and his niece Shonika. 3 Eckles used his sister s home to cook cocaine powder into crack. Milton Gaines, Shonika s boyfriend, helped Eckles prepare crack for distribution. Eckles Gaines, used and childhood. numerous Appellant distributors, Parks, whom including Eckles had Shonika, known since Parks initially bought drugs from Shonika and Gaines and later made at least four purchases directly from Eckles in quantities of 4.5 ounces for a total of half of a kilogram. Parks also purchased 9- to 18-ounce quantities from Robert Geter, who was also connected to the organization. Appellant Blackwell was a friend of Parks and spent time with Parks on a regular basis at Vin Booe s house, where Parks and Blackwell sold crack, and at Geter s house. Blackwell was also one of Shonika s customers; he purchased crack from Shonika in 4.5-ounce quantities. Blackwell also purchased crack directly from Gaines. Blackwell and Parks both purchased drugs from drugs to numerous members of Eckles organization. for example, was one of Eckles suppliers. and sold Toney Young, Young also made trips to Greensboro to buy drugs for Eckles in kilogram and half-kilogram quantities from Robert Dean. Before making these trips, Young would pool his money together with Eckles, Parks and others. also sold Blackwell also added money on one occasion. crack directly to Parks 4 and Blackwell, Young and he purchased from them on occasion as well. Likewise, Blackwell and Parks had a similar buyer-seller relationship with various participants in Eckles operation Oderia Chipley, Deleon Dalton, Okiera Myers, and Lashon Gaither. period of time in 2000 and Gaither testified that for a 2001, he purchased crack from Blackwell through an intermediary on a weekly basis. Blackwell was not gainfully employed, but he owned several vehicles equipped with expensive stereo components and other special features. Officers also seized $5,600 from Blackwell s bedroom, as as well $15,000 in cash from Parks bedroom. Moreover, scales with cocaine residue were also seized from the house where Parks and Blackwell were staying. At the close of the evidence, the jury found Parks and Blackwell Using a both guilty special on verdict the sole form, the count jury in also the indictment. found beyond a reasonable doubt that 50 grams or more of crack cocaine and 5 kilograms or more of cocaine powder was attributable to Blackwell and Parks. II. Approximately six months after the verdict, Appellants moved under Rule 33 of the Federal Rules of Criminal Procedure for a new trial on three grounds, only two of which they pursue on appeal: (1) that Juror Martin was biased against them and 5 failed to disclose during voir dire that he knew them; and (2) that the jury was tainted by threatening comments from third parties to various individual jurors. After an evidentiary hearing, the district court denied Appellants motion for a new trial. We review a district court s order granting or denying a motion for new trial under Rule 33 for an abuse of discretion. See United States v. Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). Finding no abuse of discretion by the district court, we reject Appellants claim of entitlement to a new trial on both of these grounds. Juror Bias. During voir dire, the district court asked the jury panel as a group whether anyone knew the defendants or the lawyers. Juror Martin did not respond, thereby silently indicating that he did not know either Parks or Blackwell. questioned individually by the attorneys, Martin When assured the court that he did not know of any reason he could not be fair and impartial, that he could render a decision based on the evidence and nothing more, and that he could find Appellants not guilty if the evidence dictated such a finding. In conjunction Appellants investigator submitted they with an hired their motion affidavit to interview from for a James jurors new trial, Allard, after about the effect of the third-party communications. the an trial Based on his investigation, Allard alleged that Juror Martin knew both 6 Parks and Blackwell prior to trial. According to Allard, Martin had seen them around town and knew that they had been tried on drug-related charges in a previous case but believed the judge or jury in that trial had passed it off. J.A. 1220a. Juror Martin also allegedly told Allard that while Appellants were being tried on these prior drug charges, Martin was at the courthouse on an unrelated matter and saw Appellants laughing just like it was a big joke [as if] they knew they were going to get off. J.A. 1220b. At the evidentiary hearing, however, Juror Martin, who did not recognize Allard in court or recall having spoken to a defense investigator, contradicted several of the assertions in the Allard affidavit. For example, Juror Martin testified that he did not know Appellants personally but that he had seen them driving on the street before. before trial, he had heard Juror Martin acknowledged that, co-workers discussing Parks and Blackwell s involvement in drugs when they learned that Martin could potentially serve as a juror. Juror Martin denied that he told Allard that the judge let off Appellants in the previous case or that he saw Appellants laughing and approaching their drug charges in a cavalier fashion. Finally, Juror Martin testified that he based his guilty verdict vote only on the evidence presented at trial and not on any previous out-of-court knowledge. 7 To obtain a new trial because of purported juror dishonesty during voir dire, a defendant must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); see Jones v. Cooper, 311 F.3d 306, 310 (4th Cir. 2002). Additionally, [e]ven where . . . the two parts of the McDonough test have been satisfied, a juror s bias is only established under McDonough if the juror s motives for concealing information or the reasons that affect the juror s impartiality can truly be said to affect the fairness of the trial. Conaway v. Polk, 453 F.3d 567, 588 (4th Cir. 2006) (internal quotation marks and alterations omitted). The district court assumed for purposes of analysis that the first McDonough prong was satisfied, i.e., that Martin failed to answer honestly a material question on voir dire. McDonough, 464 U.S. at 556. Nonetheless, the district court concluded that there was no actual or implied bias on the part of Juror Martin such that a for cause challenge would have necessarily succeeded: At most, Juror Martin knew or had heard something of Defendants . . . reputations in the community. Martin never had any personal dealings with either of the Defendants, nor did Martin possess any personal knowledge about the charged conduct. Martin was 8 consistent in advising Investigator Allard and the Court that he based his verdict on the evidence presented during trial as opposed to any extraneous discussions [he] overheard . . . . Although this Court likely would have excused Juror Martin for cause in an abundance of caution, [Appellants] fail to establish that an implied bias existed that would have required the Court to excuse Juror Martin for cause. For these reasons, the Court finds that the second prong of McDonough is not met. J.A. 1413-14. Appellants contend that the district court misapprehended the McDonough standard because McDonough obligates a defendant to establish only that the trial court had a valid reason to dismiss the dishonest juror, not that the trial court would have been required to dismiss the juror. As this court has observed, however, a McDonough claim necessarily fails unless the court would have committed reversible error-that is, abused its discretion-in failing to dismiss [a juror] . . . (1) where a per se rule of disqualification applies; [or] (2) where the court demonstrates juror. 2006) a clear disregard for the actual bias of the United States v. Fulks, 454 F.3d 410, 432 (4th Cir. (internal identified no quotation per se rule marks of omitted). Appellants disqualification light of Juror Martin s testimony at the hearing. have applicable in Moreover, we have found nothing in our review of the record to establish that the district court clearly erred in finding no actual bias. Juror Martin denied stating to Allard that he saw Appellants 9 laughing or that Appellants believed they would be acquitted. Rather, Juror knowledge them. of Martin the made Appellants clear and that was he only had no generally personal aware of Martin specifically denied any knowledge that Appellants were involved in drug-related activity. Therefore, Appellants have also failed to establish that the district court clearly disregarded any actual bias harbored by Juror Martin. We find no error in the district court s conclusion that Appellants were unable to establish McDonough. Accordingly, we reject Appellants juror bias claim. Third-Party Intimidation of Jurors. the second prong of During trial, various unknown individuals communicated in a threatening manner to a few of the jurors as they walked from the courthouse to have lunch. With Appellants consent, the district court questioned each of the jurors individually on the record. Juror Jolly stated that two people who had been observing the trial from the gallery told her that we, as jurors, if we found a conviction, we better be ready to deal with the consequences . . . [a]nd they know who we are. scared. J.A. 626. J.A. 624. Jolly admitted being very When Jolly told the other jurors what had happened, she was told not to worry about it. Juror Stover did not receive any outside communication directly; he indicated that he had heard that one of the other jurors had been told to let them go easy and that Jolly had 10 appeared to be very upset. Juror Watts and Juror Cooper subsequently confirmed that while they were eating lunch, some men dining in the restaurant turned around and told the jurors to go easy on Blackwell and leave him alone. The district court asked Stover, Watts and Cooper if they could still be fair, and they all responded affirmatively. Because individually Appellants the district regarding asked the court whether court did she bring her not could back question still and do be so. Jolly fair, The district court declined, but indicated it would ask the jury as a group, outside the presence of the spectators, if they are able to sit and hear the evidence and render a verdict based on the evidence and the law that the court gives to them. 645. J.A. Appellants did not object to the court s proposed group voir dire. The district court then questioned the jury as a whole as follows: [C]an all the jurors and each of you individually continue to sit and hear the case, hear the evidence, and render your verdict according to what you hear from the witness stand and the exhibits [admitted] into evidence and follow the law that the court gives to you? J.A. 651. There were affirmative nods from the jurors, and no individual juror gave a contrary indication. jury had Appellants moved for a mistrial, arguing that the been hopelessly tainted 11 by the unfortunate circumstances. J.A. 653. The district court denied the motion, concluding that the jury has not been tainted to the necessary extent to grant such a motion in terms of potential prejudice to the defendants. Id. In their motion for a new trial based on the alleged jury taint, Appellants relied on Allard s affidavit, which indicated that, in post-trial interviews, various jurors stated that Jolly had been very upset by the threats, was afraid for her life and her children, and did not want to be involved. 1220b. The district court, however, concluded J.A. that the additional evidence submitted in support of Appellants motion for a new trial was not significantly different either in kind or in scope than the information of improper juror contact that the Court was presented with during the trial. J.A. 1416. Because the district court concluded that the evidence was not newly discovered, it denied the motion as untimely and noted that it did not have the discretion to disregard the time limits imposed by Rule 33. See Fed. R. Crim. P. 33(b). On appeal, Appellants contend that their motion for a new trial was timely but that even if it was not, the district court should have exercised its discretion to consider the motion. We disagree. Under Rule 33(b), [a]ny motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. 12 Fed. R. Crim. P. 33(b)(1). However, [a]ny motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. 33(b)(2). trial Because Appellants did not file the motion for a new until required Fed. R. Crim. P. several present to months newly after their discovered verdicts, evidence in they were support of their motion. Newly discovered evidence under Rule 33(b) means evidence that, in fact, was discovered since the conclusion of the trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989); United States v. Bales, 813 F.2d 1289, 1295 (4th Cir. 1987). Nothing submitted by Appellants in support of the motion for a new trial could be considered newly discovered. During the court s in-chambers voir dire of Juror Jolly, Jolly admitted that she had been very comments made to her. aware of this and intimidated by the Other jurors confirmed then that Juror Jolly was upset and crying. were frightened The district court and the parties information during trial, and the scant additional details added by Appellants post-trial evidence did not reveal anything new about the effect of the communications to Jolly. Furthermore, Appellants purported newly discovered evidence is not the type of evidence that can support a Rule 33 motion. [A] Rule 33 motion is designed to rectify factual 13 injustice, not to correct legal error. 224 F.3d 670, 674 (7th Cir. 2000). United States v. Evans, Thus, a Rule 33 motion based upon newly discovered evidence is limited to where the newly discovered evidence relates to the elements of the crime charged. United States v. Hanoum, 33 F.3d 1128, 1130 (9th Cir. 1994); see United States v. Rollins, 607 F.3d 500, 504 (7th Cir. 2010) (explaining evidence that discovered innocent ). Rule after 33 deals with trial shows that contentions the accused that is As we have stated, a new trial should be granted under Rule 33 only if the evidence [would] probably result in acquittal at a new trial. Chavis, 880 F.2d at 793. Finally, we reject Appellants argument that the district court committed error by refusing to consider an untimely motion under Rule 33(b)(2). Although the district court mistakenly indicated that an untimely motion under Rule 33 deprived it of jurisdiction, see Rice v. Rivera, 617 F.3d 802, 809 (4th Cir. 2010) (per circumstances excusable Accordingly, curiam), Appellants suggesting neglect. we affirm failed to their that have filing was Fed. the R. Crim. district court s Appellants motion for a new trial as untimely. 14 P. present delayed any by 45(b)(1)(B). denial of III. A. Appellants raise three other issues. First, Appellants challenge the district court s decision to admit under Federal Rule of Evidence 1006 a chart offered by the government as a summary of Blackwell Eckles telephone were drug record connected distribution evidence to showing virtually operation. that every We Parks participant apply an and in abuse-of- discretion standard to a district court s decision to admit a See United States v. Foley, 598 summary chart under Rule 1006. F.2d 1323, 1338 (4th Cir. 1979). The case agent explained that the phone chart . . . was compiled [using] . . . probably over a hundred thousand telephone calls reviewed in this case and that use of the chart would assist him in explaining the telephone evidence to the jury. J.A. 1022. Essentially, the chart consisted of a circle of the names and numbers of other participants in the Eckles organization, all connected with arrows pointing to Parks, whose name was at the center of the circle. Blackwell s name appeared at the bottom center of the chart. During its deliberations, the jury asked to see the chart. Appellants objected, arguing that the chart was inaccurate and that the evidence is the testimony, not the chart[], which was introduced merely as an aid to the jury. 15 J.A. 1186. The district court overruled Appellants objection and sent the chart to the jury room with a cautionary instruction reminding the jury that charts and summaries . . . are only as valid as the underlying evidence tending to support them. . . . [I]t is that evidence on which you must rely. J.A. 1187. Federal Rule of Evidence 1006 provides as follows: The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court. Fed. R. Evid. 1006. of charts into Rule 1006, therefore, permits the admission evidence as a surrogate for underlying voluminous records ; its purpose is to reduce the volume of written documents that are introduced into evidence by allowing in evidence accurate derivatives from the voluminous documents. United States v. Janati, 374 F.3d 263, 272 (4th Cir. 2004). Thus, under Rule 1006, the summary chart itself may come into evidence provided it is an accurate compilation of the voluminous records sought to be summarized and the underlying records are otherwise . . . admissible in evidence. underlying documents themselves, however, do not need admitted for a Rule 1006 chart to come into evidence. at 272-73. 16 Id. to The be See id. We conclude that the district court acted well within its discretion in admitting the phone records chart. Appellants do not dispute that the underlying telephone records summarized in the chart were too voluminous to be conveniently examined in court, nor do admissible. they dispute that the telephone records were Appellants argue only that the chart summarizing the phone records was not sufficiently accurate as it listed only a fraction evidence. of the 100,000 call Brief of Appellants at 29. records entered into Similarly, Appellants suggested at trial that the chart was misleading in its central placement process of to Parks test name. the Rule accuracy Janati, 374 F.3d at 273. 1006, of the however, chart s afford[s] a summarization. Although the underlying evidence need not be introduced into evidence, Rule 1006 require[s] that the documents be examination permits made and the available copying district at a court to the reasonable to order documents actually be brought to court. opposing party for time and place and that the Id. underlying Appellants do not suggest that they were deprived of the opportunity to examine the underlying records or challenge the accuracy of the summary in court. Accordingly, this argument fails. See United States v. Strissel, 920 F.2d 1162, 1164 (4th Cir. 1990) (per curiam) (rejecting information argument and that were charts therefore 17 were based inadmissible on inaccurate because the underlying evidence [was] admissible and available to the opponent so that a proper cross-examination [could] be had ). Appellants illustrating also the conspiracy. challenge the organization of admission Eckles of drug a chart distribution The case agent prepared the chart as an aid to the jury based on trial testimony that had already been presented from various members of the conspiracy and others. Even assuming the district court committed error, and thereby abused its discretion, see United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007) (explaining that a district court abuses its discretion when it commits an error of law ), by admitting the organizational chart into evidence and sending it back to the jury room, harmless. the we nevertheless conclude that any such error The evidence connecting both Parks and Blackwell to conspiracy was overwhelming; indeed, Appellants challenge the sufficiency of the evidence on appeal. with the was government that the prejudicial do not We agree effect of the organizational chart, if any, would have been minimal in light of the substantial evidence introduced against Appellants. chart did not assign a role or title within the The Eckles organization to either Parks or Blackwell, nor did it purport to summarize alleged drug transactions by Appellants or the alleged amounts involved. Rather, the chart used lines with arrows to 18 show Appellants were acquainted with or were somehow connected to the other conspiracy members. Additionally, the district court s instructions to the jury further minimized any prejudicial effect, explaining that [a] chart and summary is not in itself evidence or proof of any fact and litigation that the merely chart offered facts in the case. created a in party s J.A. 1103. preparation for interpretation this of the The court twice cautioned jurors to disregard [the] chart entirely if they found the chart to be inaccurate or untruthful, J.A. 1103, and to base their decision on the underlying evidence. Accordingly, we reject Appellants argument that the district court committed reversible error in admitting the charts. B. Appellants next raise a Confrontation Clause challenge to the testimony of Clifford Watkins. Watkins testified that he was in the drug business with Leonard Clement and that Watkins met Parks through Clement. Watkins, at the behest of the police, recorded a conversation with Clement in which Clement talked about getting money from Bam who Watkins identified as Parks to purchase drugs. tape and Watkins The district court admitted the audio related Evidence 801(d)(2)(E). testimony under Federal Clement did not testify at trial. 19 Rule of The Confrontation Clause of the Sixth Amendment bars admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 53-54 (2004). determine if a statement was testimonial In order to and therefore excludable under the Confrontation Clause, we ask whether a reasonable person in the declarant s position would have expected his statements to be used at trial-that is, whether the declarant against would have another in expected a later or intended to proceeding. bear United witness States v. Udeozor, 515 F.3d 260, 268 (4th Cir. 2008); see United States v. Jordan, 509 F.3d 191, 201 (4th Cir. 2007) ( [T]he critical Crawford issue here is whether [the declarant], at the time she made her statements . . . , reasonably believed these statements would be later used at trial. ). person in Clement s position We conclude that a reasonable would not have expected his comments to be used subsequently at trial given that he did not know he was being recorded by his associate Watkins. See United States 2008) ( A informant and v. Watson, 525 statement unwittingly recorded by Confrontation the F.3d made 583, to government Clause a (7th confidential is purposes. ) 20 589 not Cir. testimonial Therefore, for Clement s statements were not testimonial within the meaning of the Confrontation Clause. * C. Finally, committed Appellant procedural Parks argues error in that the calculating district his court Guidelines sentencing range by relying on unsupported drug amounts. district court adopted the recommendation of the The presentence report (PSR) that 2.6 kilograms of crack was attributable to Parks for a base offense level of 36. In reviewing district court a did sentence, not we commit must any first ensure significant that the procedural error, such as failing to properly calculate the applicable Guidelines (2007). range. Gall v. United States, 552 U.S. 38, 51 Reliance on clearly erroneous facts will constitute significant procedural error. Id. However, procedural errors committed at sentencing are subject to harmlessness review. See United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 2010). Procedural error is harmless if we can say with fair assurance that the district court s explicit * consideration of the To the extent that Appellants challenge the district court s admission of Watkins testimony under the co-conspirator exception to the hearsay rule, see Fed. R. Evid. 801(d)(2)(E), we disagree. There was ample evidence tying Clement to Parks, including phone records, and Clement s statements were clearly in furtherance of the conspiracy. See United States v. Neal, 78 F.3d 901, 904-05 (4th Cir. 1996). 21 appropriate facts would not have affected the sentence imposed. Id. (internal quotation marks omitted). The record, including trial testimony from government witnesses and the sentencing testimony of Agent Ramsey, provides sufficient support for Eckles testified that cocaine powder 4 on the he court s supplied occasions; drug Parks the quantity with evidence cooked the 18 ounces into cocaine base. 4.5 finding. ounces suggested of Parks William Barber, Eckles nephew, testified that he saw Parks twice receive crack from Eckles -- 9 ounces one time and 18 ounces on the other. Young testified that from 2002-2003, he delivered 18 ounces of crack to Parks. Gaines testified that he gave Parks at least 2.5 ounces of cocaine powder on about 10 occasions, which was cooked into cocaine base. And Randall Stovall, a distributor for Eckles, testified that he gave Parks at least 4.5 to 9 ounces of crack. Based on the testimony of Eckles and Barber attributing 45 ounces or 1275.75 grams of crack to Parks; the testimony of Young attributing 18 ounces or 510.3 grams of crack; the testimony of Gaines attributing 25 ounces or 708.75 grams of crack; and the testimony of Stovall attributing 4 grams of crack, the district court arrived at a total of 2608.2 grams, or 2.6 kilograms, of crack cocaine attributable to Parks. There was additional evidence suggesting that the total amount found by the district court was a conservative figure. 22 Accordingly, we conclude that the district court did not commit clear error in finding the drug quantity attributable to Parks for sentencing purposes. IV. For the foregoing reasons, the convictions and sentences of Appellants are hereby AFFIRMED. 23

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