Sunday, January 27, 2019

Case o' The Week: Passengers Demur? For Sure! - Landeros, Fourth Amendment, Prolonged Searches, and Passengers

  Passengers not there for the search and seizure ride.
 United States v. Landeros, 2019 WL 166120 (9th Cir. Jan. 11, 2019), decision available here.

Players: Decision by Judge Berzon, joined by Judges Rawlinson and Watford. Big win for AFPD Lee Tucker, District of Arizona.

The Hon. Judge Marsha Berzon
Facts: Landeros was a passenger in a car stopped for speeding 11 miles over the limit. Id. at *2. Landeros refused to comply when the officer “commanded” him to produce an I.D. Id. The officer called for backup (prolonging the stop): ultimately Landeros gave in and exited the car. Id. Cops then saw open beer bottles on the floorboard, and Landeros was arrested. Id. The cops cuffed and searched him and found bullets, ultimately leading to a § 922(g) charge. Id. at *3.
 His motion to dismiss was denied. Id. Landeros entered a conditional plea, allowing him to appeal. Id. (An eminently reasonable process under the Rules of Criminal Procedure that is apparently available in Arizona, but which has yet to make it as far west as NorCal.)

Issue(s): “Our question is whether law enforcement officers may extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.” Id. at *1.

Held: We conclude that they may not do so. As a result, we reverse.” Id. at *1. “This case implicates two doctrines, one concerning the circumstances under which law enforcement can prolong a stop, and the other governing when law enforcement can require a person to identify himself.” Id. at *3. 
  “As explained above, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense. Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer's lawful order, Ariz. Rev. Stat. Ann. § 28-622(A). There was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.” Id. at *7.

Of Note: Eleven years ago, the Ninth delivered the aggravating Turvin decision.  517 F.3d 1097 (9th Cir. 2008). In Turvin, Judge Wallace held that an officer didn’t unlawfully extend a traffic stop when he took a little break from writing a traffic citation – to ask about a meth lab and get consent to search the truck! Id. at 1101-02.
  Dissenting Judge Paez didn’t buy the reasoning in Turvin. He compellingly complained that the officer in Turvin had no reasonable suspicion to prolong this traffic stop. Id. at 1106 (Paez, J., dissenting).

Hon. Judge Richard Paez
 It took over a decade, but Judge Paez has finally been vindicated. In Landeros, Judge Berzon recognizes that the Supreme’s 2015 Rodriguez decision (at least partially) abrogated Turvin. She accordingly employs the Gammie whammy to bring the Ninth’s law in line. Landeros, 2019 WL 166120, *4.
  Landeros is now the lead Ninth decision on prolonged traffic stops (and is a particularly well-written opinion): worth a close read in any traffic stop case.     

How to Use: Cops exploit traffic stops to search passengers. To borrow Judge Watford’s dissenting insight from the recent Lamar Johnson case, “it is no secret that people of color are disproportionate victims of this type of scrutiny.” United States v. Lamar Johnson, 2019 WL 137929, *10 (9th Cir. Jan. 9, 2019) (Watford, J., dissenting). 
   Judge Berzon’s thorough analysis in Landeros is just what the doctor ordered for these pretextual passenger searches. As she explains, “[a] demand for a passenger’s identification is not part of the mission of a traffic stop.” Landeros, 2019 WL 166120, *5 (emphasis added).
  When a driver’s expired tags devolves into your client-passenger being searched, turn to Landeros for welcome limits on this heavily-abused law enforcement tool.
For Further Reading: 51 judicial candidates have been re-nominated by President Trump last week.

The Honorable California Senators Feinstein and Harris

  Conspicuously absent from these re-nominations? Three previous Ninth nominees, that had previously been sent the Senate sans Cali blue slips: Patrick Bumatay, Daniel Collins, and Kenneth Kiyul Lee. See article here. 

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Image of the Honorable Senator Diane Feinstein and the Honorable Senator Kamela Harris from 

Steven Kalar, Federal Public Defender Northern District of California. Website at


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Sunday, January 20, 2019

Case o' The Week: The Fourth in the Ninth Goes Back to the Future - Lamar Johnson and Search "Incident" to Arrest

A search “incident” to arrest can happen before an arrest, and need not be supported by probable cause for the actual arrest that followed the search that was “incident” to arrest.

(And you thought the space-time quirks of “Back to the Future” were confusing.)
  United States v. Lamar Johnson, 2019 WL 137929 (9th Cir. Jan. 9, 2019), decision available here.

Players: Decision by Judge Wallace, joined by Judge Rawlinson.
 Compelling concurrence by Judge Watford.
  Hard-fought appeal by Oakland AFPD Robin Packel, Northern District of California.  

Hon. Judge J. Clifford Wallace
Facts: Johnson was stopped while driving. Id. at *2. The cop claimed he then smelled marijuana. Id. The officer asked for registration and insurance: Johnson explained he was borrowing the car and rummaged through the glovebox. Id. The officer opined this rummaging was inconsistent with how someone would (sincerely?) dig through a glove box. Id. The officer learned Johnson had been arrested for parole violations. Id. He asked Johnson to step out of the car, searched him, discovered he was wearing a bulletproof vest, and arrested him for being a felon in possession of body armor. Id. A later car search revealed a gun, drugs, scales, and plastic bags. Id.
  The defense motion to suppress was denied.
  This was the Northern District of California, so there was no conditional plea -- the defense and the District Court were forced to go through the rigamarole of a stip facts bench trial to preserve an important Fourth Amendment issue for appeal. Id. at *3.

Issue(s): “Johnson argues that the warrantless search of his person, [and] the warrantless search of his car . . . violated the Fourth Amendment.” Id. at *3. “[A] search, incident to a lawful arrest, does not necessarily need to follow the arrest to comport with the Fourth Amendment.” Id. “[W]hen the officer’s known facts provide probable cause to arrest for an offense, the officer’s subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause.” Id. at *3 (internal quotations and citations omitted).
  “The question presented in this case is whether these two well-established principles may coincide without violating the Fourth Amendment. Johnson contends that to do so would create a ‘search incident to probable cause’ rule, allowing officers to search a person whenever probable cause to arrest exists. Johnson argues that the existence of such a rule will cause widespread fishing expeditions that are pre-textual and discriminatory.” Id. at *4.

Held: “[T]he precise crime for which an officer has probable cause is irrelevant. . . . So long as the search was incident to and preceding a lawful arrest—which is to say that probable cause to arrest existed and the search and arrest are roughly contemporaneous, . . . the arresting officer’s subjective crime of arrest need not have been the crime for which probable cause existed.” Id. at *4.
  “We . . . join our sister circuits in holding that Knowles does not prevent a search incident to a lawful arrest from occurring before the arrest itself, even if the crime of arrest is different from the crime for which probable cause existed.” Id. at *4 (emphases added).

Of Note: Under Lamar Johnson, an officer can now:
  1) search "incident" to arrest before an arrest, and
  2) that search can later be upheld, even if the probable cause wasn’t for the actual arrest that (followed) the search “incident” to arrest!
Hon. Judge Paul Watford
  In a well-reasoned concurrence, Judge Watford politely tears apart this troubling holding. Id. at *7 *(Watford, J., concurring). He explains that he is forced to concur because of the Ninth’s 2004 decision in Smith. Id. Judge Watford persuasively explains, however, that the Smith decision is “doctrinally unsound” and not “consistent” with Supreme Court precedents. Id. at *9.
  The concurrence ends with a trenchant understatement: “it is no secret that people of color are disproportionate victims of this type of scrutiny.” Id. at *10. Judge Watford correctly warns, “So long as Smith remains the law of our circuit, it will only exacerbate this problem.” Id.
  Judge Watford is right - Smith (and Johnson) should go en banc. This dangerous Fourth Amendment decision, and this line of Circuit authority that has strayed far afield from SCOTUS precedent, merits a close second look by the en banc court.

How to Use: Don’t concede a Fourth challenge because of Lamar Johnson: preserve. La Lucha continues.
For Further Reading: Whither the Judiciary (and FPD) as the shutdown staggers into uncharted territory? For an article that accurately describes the looming crisis, see a helpful NYT piece here

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Steven Kalar, Federal Public Defender N.D. Cal. Website at

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Tuesday, January 15, 2019

      1.     US v. Landeros, No. 17-10217 (1-11-19)(Berzon w/Rawlinson & Watford). 

The 9th reverses denial of a suppression motion.  The 9th holds that a police officer cannot extend a lawfully initiated car stop because a passenger refuses to identify himself, absent a reasonable suspicion that the person has committed a criminal offense. The 9th recognizes that Rodriguez, 135 S. Ct 1609 (2015) abrogates previous 9th Circuit, US v. Turvin, 517 F.3d 1097 (9th Cir. 2008). Turvin allowed a reasonable “brief pause” while Rodriguez rejected such a reasonableness pause approach. Rodriguez requires a traffic stop can only be extended to conduct an investigation into matters other than the original traffic violation only if the officers have reasonable suspicion of an independent offense.  The stop here was for a traffic citation.  It ended.  Then the police asked for the passenger’s identity.  The passenger’s refusal to give his identity is not reasonable.  State law (Az) did not require the giving of identity absent reasonable suspicion. Thus, the bullets found and the smoking pipe had to be suppressed.

Congrats to Lee Tucker AFPD with FPD Az (Tucson).

The decision is here:


2.     US v. Hall, No. 17-10422 (1-11-19)(per curiam w/Gould, Berzon, & Block).
The defendant and his son were both convicted of fraudulent criminal conduct. A special condition of SR was that the defendant (father) was only “permitted to have contact with [his son] only for normal familial relations but is prohibited from any contact, discussion, or communication concerning financial or investment matters except matters limited to defendant’s own support.” Defendant objected. Fathers and sons need to talk.  The 9th sustained the objection, and reverses this condition. The 9th finds limiting contact to “normal familial relations” is unconstitutionally vague; “what is a normal family?” asks the 9th.* [*Cf.”All happy families are alike; each unhappy family is unhappy in its own way.” Leo Tolstoy, Anna Karenina.] The concern with engaging in further fraud or illegal activities is covered with the condition forbidding illegal activities and other conditions regarding financial dealings.

Congrats to Elisse Larouche and Dan Kaplan, AFPDs with FPD Az (Phoenix).

The decision is here:

This was a good week for the Az FPD in the 9th Cir.  We won US v. Lopez yesterday, and the two above today, and also got a remand on another SR condition in an unpublished opinion in US v. Harmon, No. 18-10087 (1-10-19).  This was another Dan Kaplan win.



Monday, January 14, 2019

US v. Valencia-Mendoza, No. 17-30158 (1-10-19)(Graber w/McKeown & Christen).   

In a 1326 sentencing case, the 9th considers what is a Guidelines “felony.” The Guidelines define a “felony” as an offense punishable by more than a year.  However, the 9th finds its prior precedent to be overruled by the Supremes, and that a binding state range of less than a year, even if the maximum is more than a year, is not a felony.  In this case, from Washington, the defendant had a prior with a theoretical maximum of five years.  Yet, because Washington sets a binding sentencing range unless specific additional findings are made, the top of Washington’s range was 6 months.  This was the actual maximum the defendant could have and did received.  The 9th found that Carachuri-Rosendo v. Holder, 560 US 563 (2010) and Moncrieffe v. Holder, 569 US 184 (2013) overruled the 9th’s past precedent and that the offense was not “punishable by imprisonment for a term exceeding one year.”

Editorial note: This case supports those States that have bridge or open ended sentences, arguably like Arizona’s “open 6.”

Congrats to Miles Pope of Fed Defenders of Eastern Washington & Idaho -- a significant victory with repercussions.

The decision is here:

2.  US v. Lopez, No. 16-10261 (1-10-19)(Bybee w/Friedman; dissent by Rawlinson).  This is an Arizona case (and win). The 9th writes:
          Defendant-Appellant Lashay Marie Lopez was convicted

on three federal charges stemming from her purchase of a

firearm through the use of false identification (ID). Because

Lopez admitted to the offense conduct, the only issue before

the jury was the affirmative defense of duress. Lopez claims

that she purchased a handgun for Hector Karaca using her

identical twin sister’s ID in violation of her probation and

federal law because Karaca threatened to harm Lopez and her

family if she failed to acquire a gun for him.

In support of her duress defense, Lopez asked the district

court to allow her to introduce expert testimony on Battered

Woman Syndrome (BWS) and the effects of past abuse.

Lopez, who had been physically and sexually abused by her

stepfather, contended that this evidence would “help provide

context” to the jury regarding her fear of Karaca and why she

did not seek help from the police. Lopez similarly asserted

that the expert’s description of the “characteristics of [a]

domestic violence victim” would help explain her

“counterintuitive” behavior regarding Karaca. The court,

however, excluded this evidence in a series of oral rulings,

concluding that BWS evidence is incompatible with the

duress defense’s use of an objective reasonable-person


We join the weight of authority in holding that such

expert testimony may be used by a defendant to support her

duress defense and rehabilitate her credibility. We therefore

find that the district court committed legal error in precluding

Lopez’s expert witness from testifying and conclude that this

decision was prejudicial to her defense. Accordingly, we

vacate her conviction and remand this case to the district

court for a new trial.

Dissenting, Rawlinson argues that the district court did not abuse its discretion in precluding the evidence.  The evidence is usually raised in self-defense, not duress.

Congrats to Mike Burke of Az FPD (Phoenix).

The decision is here:



Sunday, January 13, 2019

Case o' The Week: Congress takes the First Step, Ninth takes the Second -- Valencia-Mendoza and use of state priors as federal sentencing enhancements

The federal government of the United States just entered its longest shutdown in history.

Federal courts will run out of money next week.

Public defenders will soon join their CJA comrades and will be expected to mount vigorous, constitutionally-mandated defenses for our indigent clients – without pay.

Great news from the Ninth couldn’t come at a better time.
United States v. Valencia-Mendoza, 2019 WL 149827 (9th Cir. Jan. 10, 2019), decision available here.

Players: Decision by Judge Graber, joined by Judges McKeown and Christen. Huge win for AFD William Miles Pope, Fed. Defenders of Eastern Washington & Idaho.  

Facts: Valencia-Medonza pleaded guilty to illegal reentry. Id. at *1. He received a +4 OL increase under USSG § 2L1.2, because of a prior Washington “felony” conviction. Id. 
  Commentary to § 2L1.2 defines a felony as an offense “punishable by imprisonment for a term exceeding one year.” Id. The stat max for this Washington prior was five years. Based on Ninth precedent, the D.J. imposed the bump. Id. 
  Under Washington’s mandatory sentencing range, however, the actual max that Valencia-Mendoza could have received was six months. Id.  

Issue(s): “We must decide whether Defendant’s state conviction was a ‘felony’ for purposes of the federal Sentencing Guideline. According to the government, the statutory maximum punishment for Defendant’s state offense was five years, so he was convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’ U.S.S.G. § 2L1.2 cmt. n.2. Defendant acknowledges the statutory maximum but argues that, because the maximum sentence that he actually could have received was only six months, he was not convicted of an ‘offense punishable by imprisonment for a term exceeding one year.’” Id. at *3.

Held:Our precedent required the district court to disregard the maximum term that Defendant actually could have received under state law, in favor of the maximum term that Defendant theoretically could have received if different factual circumstances were present. Reviewing de novo the interpretation of the Sentencing Guidelines . . . we conclude that later Supreme Court decisions are clearly irreconcilable with our precedent on this point. Accordingly, we vacate the sentence and remand for resentencing.” Id. at *1. (citation omitted).

“In sum, the Supreme Court has held that courts must consider both a crime’s statutory elements and sentencing factors when determining whether an offense is ‘punishable’ by a certain term of imprisonment.” Id. at *9.

The Hon. Judge Susan Graber
Of Note: Judge Graber’s terrific decision parts ways with the Ninth’s precedent in Rios-Beltran,361 F.3d 1204, 1208 (9th Cir. 2004). See id. at *4. The Ninth has historically looked at the stat max when evaluating the viability of state priors for federal sentencing. Id. With a nice Miller v. Gammie whammy, the Ninth now comes in line with SCOTUS (and the Fourth, Eighth and Tenth Circuits). Id. at *8. 
  (The decision is also consistent with the government’s position in the Fifth! See id. at *8 & n.4 (a particularly enjoyable footnote)).
  Valencia-Mendoza is a thorough and well-reasoned opinion. The decision also brings the Ninth squarely in line with a solid phalanx of out-of-circuit authority, and the Supreme Court. The government’s p.f.r.e.b. efforts (if it even bothers) should (we hope) die quickly on the vine.

How to Use: California famously used to have mid-range determinate sentencing below the “stat max” – a scheme that got the State sideways with SCOTUS and Apprendi. See Cunningham, 549 U.S. 270 (2007). The State then quickly scrambled for a fix after Cunningham – S.B. 40 and the later Realignment Act re-jiggered the sentencing schemes. See generally summary here
  Do Cali’s current “sentencing triads” trigger the same limitations for federal enhancements as the Washington system in Valencia-Mendoza? See generally  sentencing overview here

   Yup! (We think). 

  Like Sriracha, Valencia-Mendoza’s spicy bite tastes good on everything. Glop the analysis onto state priors the government tries to assert in USSG § 2L1.2, USSG § 2K2.1, Career Offender, § 922(g) charges, § 924(e)(2)(A) and § 3559(c)(2)(F)(ii) (First Step Act revised) cases, § 851 allegations, ACCA sentences – yum!

For Further Reading: On Friday January 11th, AO Director Duff informed the Judiciary that we are almost out of dough. 
  Furloughs and “work without pay” loom for federal court staff – and for Federal Public Defenders – on the 19th, if the shutdown isn’t resolved next week. See generally article here

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Image of the Honorable Judge Susan Graber from 

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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Thursday, January 10, 2019

1.    US v. Martinez-Hernandez, No. 16-50423(1-9-19) (Hurwitz w/Rawlinson & Melloy).

This is an appeal from a 1326 conviction.  The issue is whether a prior conviction is an aggravated felony as a “crime of violence.” The 9th agrees that California Penal Code 211 robbery does not qualify as a COV. However, 211 robbery qualifies as a “generic theft offense” under 8 U.S.C. § 1101(a)(43)(G) and thus is an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The 9th finds the California robbery statute indistinguishable from a Washington State statute that the 9th addressed in Alvarado-Pineda, 774 US F.3d 1198 (9th Cir. 2014), and found to be a categorical theft offense.

The decision is here:


2.     US v. Johnson, No. 17-10252 (1-9-19)(Wallace w/Rawlison & Watford; Watford concurs).

In an appeal that raises a slew of 4th amendment issues, the 9th affirms convictions and sentences. Under US v. Smith, 389 F.3d 944 (9th Cir. 2004)(per curiam), the 9thallows a search incident to arrest before the actual arrest, so long as probable cause exists to make an arrest (even if for a different offense) and arrest follows quickly thereafter.  The 9th also found that a smell of marijuana, baggies, and the actions of the defendant formed probable cause for an arrest for marijuana transportation. The 9th allowed the search of the car under the automobile exception.  The subsequent search of the defendant’s home, under a warrant, was valid.

Watford grudgingly concurred.  Smith controls, but Watford would find that it is unsound.  He would adopt a more circumscribed approach, as the 7th Circuit did. The police can always argue for inevitable discovery for an arrest; but the doctrine should not place the search before the arrest.

Hard fought appeal by Robin Packel and Gabriela Bischof of the FPD Office, Cal N. (San Francisco).

The decision is here:


Wednesday, January 09, 2019

US v. Torres, No. 15-10492 (1-8-19)(N. Smith w/Thomas & Gleason).

Under Heller, undocumented aliens may be part of “the people” to whom Second Amendment protections extend.  The 9th is unable to say for certain whether that is true, or to what extent, and so sidesteps.  It assumes that some Second Amendment rights do apply, but that those rights are not unlimited.  This is the approach of other circuits.  Using intermediate scrutiny, the 9th holds that Congress can restrict possession under 922(g)(5).

The decision is here:

Saturday, January 05, 2019

Case o' The Week: Hidden Dough a Ninth No-Go - Hernandez-Escobar and Due Process Rights in Forfeiture Proceedings

  Hiding money from a spouse? 

Avoid stashing it with a drug-dealing son.
  United States v. Hernandez-Escobar, 2018 WL 6693487 (9th Cir. Dec. 20, 2019), decision available here.

Players: Decision by Judge Fisher, joined by Judges Berzon and Watford.

Facts: Roberto Hernandez (“Roberto”) pleaded guilty to drug charges. In his plea agreement, he agreed to forfeit $73,000 in cash that was found in his bedroom, alongside thirteen pounds of meth, guns, and pay-owe sheets. Id.
  After the plea, Roberto’s father (“Mr. Hernandez”) filed a claim on that money. Id. Mr. Hernandez claimed it was his cash. Mr. Hernandez explained that he had stored the dough in shoeboxes, and stashed it with his son to protect it from his wife during marital difficulties. Id. at *2.
  Before the forfeiture hearing, the AUSA met with Roberto. When Roberto (generally) confirmed his father’s story, the AUSA reminded Roberto of his plea agreement, said he thought Roberto was lying, and warned of potential false statement charges. Id. Not surprisingly, Roberto then asserted the Fifth at his father's forfeiture hearing. Id.
  The district court found that the cash was drug proceeds, denied Mr. Hernandez’s “bailor” argument, and forfeited the funds. Id.

Issue(s): “[Mr. Hernandez] argues that he is a bailor whose title to the cash is superior to the Government’s, and also that his due process rights were violated because his son did not testify at the hearing.” Id. at *1.

Held: “We affirm.” Id. “In Alcaraz-Garcia, we ruled that for the purpose of calculating the time to appeal, a criminal forfeiture proceeding is civil in nature . . . We need not determine whether this reasoning in Alcaraz-Garcia extends to due process questions, because even if Mr. Hernandez was entitled to due process protections coextensive with those afforded to criminal defendants, he has not shown a violation.” Id. at *6 (internal quotations and citation omitted).

Of Note: The main holding of Hernandez-Escobar is a predictable affirmance of the factual findings of the district court. A far more interesting question is the due process rights of a third party seeking funds slated for forfeiture.
  As noted above, Judge Fisher skirts that question by holding that Mr. Hernandez (the father) suffered no due process violation in any event – the son was not (we are told) coerced into not testifying. This due process question remains an intriguing issue for another day.

How to Use: What happens when a prosecutor bullies a central defense witness into silence, by threatening perjury charges? Judge Fisher delves into that problem, in the context of the – "admonitions" – this prosecutor gave to the defendant (the father’s key witness). Id. at *7.
  Judge Fisher warns that, “In other circumstances, a prosecutor’s stated belief that a potential witness is lying might be an unnecessarily strong admonition, but not on these facts.” Id. at *6 (internal quotations and citation omitted).
  This discussion in Herandez-Escobar is worth a close read when dealing with a “dissuading” AUSA: on slightly different facts, the prosecutor here might have well crossed the line.
The Hon. United States Attorney David Anderson
For Further Reading: Trump-nominee David Anderson is officially the new United States Attorney for the Northern District of California. On January 2, 2019, Mr. Anderson was confirmed by voice vote in the Senate. See Congressional site here. 
  The Honorable Anderson takes the corner office in the midst of a long government shutdown, as federal investigators work without pay, AUSAs ask for delays of civil cases, and the Judiciary contemplates contingencies just to pay juror fees. See NYT article here. 
  Welcome back to the Federal Building, Dave.

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Steven Kalar, Federal Public Defender N.D. Cal. Website available at 


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