COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
JOHN ARTHUR YIAADEY
OPINION BY
v. Record No. 0506-98-4 JUDGE ROSEMARIE ANNUNZIATA
APRIL 20, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr., Appellate Defender;
Public Defender Commission, on briefs), for
appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
John Arthur Yiaadey ("appellant") was convicted of
possession of cocaine in violation of Code § 18.2-250. On
appeal, he contends the trial court erred in failing to dismiss
his indictment based on alleged violations of his rights under
the Interstate Agreement on Detainers ("the IAD"). He further
contends the Commonwealth violated his right to a speedy trial
under Code § 19.2-243. We find no error and affirm.
I.
BACKGROUND PRINCIPLES REGARDING THE IAD
Codified at Code §§ 53.1-210 to 53.1-215, "[t]he IAD
encourages the expeditious disposition of criminal charges
against out-of-state prisoners, and provides cooperative
procedures among member states to facilitate such disposition."
Beachem v. Commonwealth, 10 Va. App. 124, 128, 390 S.E.2d 517,
518-19 (1990). See Code § 53.1-210, Article I. When
authorities in one state ("the receiving state") lodge a
detainer against a prisoner in another state ("the sending
state"), the provisions of the IAD give the prisoner the right
to have that detainer disposed of within a certain time frame,
provided other conditions are satisfied. Should the receiving
state fail to try a prisoner on the charges underlying its
detainer within the required time frame, "the appropriate court
of the [receiving state] shall enter an order dismissing the
[prisoner's indictment] with prejudice, and any detainer based
thereon shall cease to be of any force or effect." Code
§ 53.1-210, Art. V(c).
The time limitations of the IAD vary depending on who
initiates the prisoner's transfer for trial in the receiving
state. Under Article IV, if the receiving state requests
custody of the prisoner, the receiving state must begin
prosecution within 120 days from the day the prisoner arrives in
the receiving state. 1 Under Article III, if the prisoner
1
Article IV of the IAD provides:
(a) The appropriate officer of the
jurisdiction in which an untried indictment,
information or complaint is pending shall be
entitled to have a prisoner against whom he
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requests final disposition of his detainer and complies with
other provisions of the IAD, prosecution in the receiving state
must commence within 180 days from the date the prisoner gives
proper notice. 2 In response to a request under either Article
has lodged a detainer and who is serving a
term of imprisonment in any party state made
available in accordance with Article V . . .
upon presentation of a written request for
temporary custody . . . to the appropriate
authorities of the state in which the
prisoner is incarcerated . . . .
* * * * * * *
(c) In respect of any proceeding made
possible by this article, trial shall be
commenced within 120 days of the arrival of
the prisoner in the receiving state . . . .
Code § 53.1-210.
2
Article III provides:
(a) Whenever a person has entered upon a
term of imprisonment in a penal or
correctional institution of a party state,
and whenever during the continuance of the
term of imprisonment there is pending in any
other party state any untried indictment,
information or complaint on the basis of
which a detainer has been lodged against the
prisoner, he shall be brought to trial
within 180 days after he shall have caused
to be delivered to the prosecuting officer
and the appropriate court of the prosecuting
officers' jurisdiction written notice of the
place of his imprisonment and his request
for a final disposition to be made of the
indictment . . . .
(b) The written notice and request for final
disposition referred to in paragraph (a)
hereof shall be given or sent by the
prisoner to the warden, commissioner of
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III or Article IV, the appropriate authority in the sending
state "shall offer to deliver temporary custody" of the prisoner
to the appropriate authority in the receiving state. Id. at
Art. V(a). The IAD "shall be liberally construed so as to
effectuate its purpose." Id. at Art. IX. The threshold issue
in this case is whether an Article III disposition was invoked.
II.
FACTUAL BACKGROUND
On April 4, 1994, appellant was indicted in the Circuit
Court of Warren County for possession of cocaine with the intent
to distribute. Before appellant could be tried on this
indictment, appellant was convicted and incarcerated in West
Virginia for an unrelated offense. At a hearing on August 22,
1994, the prosecuting Commonwealth's attorney ("the prosecutor")
asked the court to issue a detainer to secure appellant's
custody under the IAD. The court granted the prosecutor's
corrections or other official having custody
of him, who shall promptly forward it . . .
to the appropriate prosecuting official and
court . . . .
(c) The warden, commissioner of corrections
or other official having custody of the
prisoner shall promptly inform him of the
source and contents of any detainer lodged
against him and shall also inform him of his
right to make a request for final
disposition of the indictment, information
or complaint on which the detainer is based.
Code § 53.1-210.
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request. The prosecutor also informed the court that, according
to appellant's attorney, appellant was willing to reenter
Virginia for trial on the pending indictment.
On August 29, 1994, the prosecutor requested temporary
custody of appellant from the Administrator of the South
Regional Jail in West Virginia for the purpose of trying him on
the instant indictment. 3 The prosecutor communicated the request
on a standard form titled "Form V, Request for Temporary
Custody." On September 6, 1994, appellant's jailers informed
him that the Commonwealth had lodged a detainer against him and
had submitted a request for temporary custody.
On December 8, 1994, in accordance with the IAD and in
response to the Commonwealth's request, the acting warden of
Huttonsville Correctional Center offered to deliver temporary
3
The Commonwealth's request provides in pertinent part:
Please be advised that John Arthur
Yiaadey who is presently an inmate of your
institution, is under indictment in the
County of Warren, Commonwealth of Virginia,
of which I am the Commonwealth's Attorney.
* * * * * * *
I propose to bring this person to trial
on this indictment within the time specified
in Article IV(c) of the [IAD].
In order that proceeding in this matter
may be properly had, I hereby request
temporary custody of such person pursuant to
Article IV(a) of the [IAD].
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custody of appellant. 4 The warden sent the offer on "Form IV,
Offer to Deliver Temporary Custody" and included the certificate
of inmate status required by the IAD. Appellant's signature
appears at the bottom of Form IV, beneath a verification of his
counsel's identity, phone number, and address and separated from
the body of the warden's offer by a dashed line across the page.
Nothing on Form IV expressly indicates that appellant was
invoking his right to request final disposition of the
Commonwealth's indictment under the IAD. The Commonwealth's
Attorney's office received West Virginia's offer on December 12,
1994.
On March 21, 1995, Carolyn Meade, the Record Clerk at
Huttonsville, called the prosecutor to remind him that "the 180
day time frame [to try appellant under Article III of the IAD]
was running out." On multiple occasions from April 11 to
November 8, 1995, West Virginia correctional personnel requested
that the prosecutor send them Forms VI and VII in order to
complete appellant's transfer to Virginia. The prosecutor
4
West Virginia's offer provides in pertinent part:
Pursuant to the provisions of Article V of
the Agreement on Detainers between this
state and your state, the undersigned hereby
offers to deliver temporary custody of [John
Yiaadey] to the appropriate authority in
your state in order that speedy and
efficient prosecuting may be had of the
indictment, information or complaint which
is [a]scribed in your request for custody of
August 30, 1994.
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declined to file Forms VI and VII, believing they only applied
to an Article III, prisoner-initiated request for transfer under
the IAD and that appellant's case involved an Article IV,
state-initiated request for transfer. 5
In May 1995, a West Virginia Parole Board granted appellant
parole; however, appellant remained incarcerated under the
Commonwealth's detainer. On June 28, 1995, just over 180 days
after the Commonwealth received West Virginia's Form IV Offer to
Deliver Temporary Custody, appellant filed a habeas corpus
petition in West Virginia. Appellant claimed that he had
invoked his right to a final disposition of the Warren County
indictment under Article III of the IAD using West Virginia's
Form IV and that the 180-day time period for prosecution of the
indictment had expired. This petition became moot when the
Commonwealth released its detainer on November 17, 1995 upon
appellant's agreement to appear voluntarily in the Warren County
Circuit Court.
Appellant appeared in circuit court on March 5, 1996 and
moved to dismiss the indictment, citing a violation of the
Article III, 180-day time-table to initiate trial. In his
petition, appellant's counsel asserted that West Virginia
authorities told appellant that his signature on Form IV
constituted a waiver of extradition and required Virginia to
5
Appellant concedes that Form VII is only applicable to
prisoner-initiated requests.
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bring appellant to trial within 180 days. Counsel further
argued that appellant's signature on Form IV, when considered
with the prosecutor's knowledge that appellant was willing to
return to Virginia for trial on his indictment and with the
prosecutor's correspondence with West Virginia authorities,
constituted a written request for a speedy trial sufficient to
trigger the running of time under Article III. 6
Noting that Article III and Article IV represented two
distinct and separate procedures, the former involving a
prisoner-initiated process and the latter involving a
state-initiated process, the trial court ruled that this case
fell within an Article IV, state-initiated transfer of custody.
Finding that appellant had not requested final disposition of
his indictment, the court held that the Article III 180-day
limitation did not apply and denied appellant's motion to
dismiss.
After the court's initial ruling from the bench, it heard
further argument on appellant's motion to dismiss and clarified
its ruling. Appellant asserted summarily that his right to a
speedy trial within nine months has been violated, presumably
under Code § 19.2-243, which provides a statutory right to a
speedy trial. Code § 19.2-243 was never expressly cited as a
6
Appellant admits on appeal, however, that ideally he should
have filed standard Form II, which is a request for speedy
disposition of pending charges in other states, to trigger the
time limitation of Article III.
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ground for dismissal of the charge. Furthermore, appellant
neither argued for dismissal on this statutory ground nor asked
the court to rule on the issue. Instead, appellant focused on
restating his argument for dismissal on the basis of the alleged
violation of the Article III, 180-day time-table.
After the court reiterated its decision to deny appellant's
motion, appellant entered into a plea agreement in which he pled
guilty to possession of cocaine on the condition that he
retained the right to appeal "all issues relation [sic] to
Speedy Trial/Detainer." Explaining the issues that the
agreement would preserve, appellant's counsel had the following
discourse with the court:
[COUNSEL]: It is also further agreed that
the Commonwealth will not object, and the
Defendant does not waive his right to appeal
the issue of the speedy trial situation.
And it is further agreed, Your Honor, that
. . .
THE COURT: Are you talking about on the
Agreement on Detainers?
[COUNSEL]: The detainers.
THE COURT: The argument made here today?
[COUNSEL]: Yes, Your Honor, on the detainer
issue.
Further, upon accepting appellant's plea of guilty, the court
stated, "All right, I do understand this is a conditional plea,
reserving the one issue for appeal." In response, appellant's
counsel stated, "Yes, Your Honor."
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III.
MOTION TO DISMISS
Appellant concedes that he has not strictly complied with
the procedure for requesting final disposition under Article
III. Nevertheless, appellant argues that, given the information
and forms provided to him by West Virginia authorities following
the lodging of Virginia's detainer, he substantially complied
with the requirements of Article III and thus triggered its
180-day limitation on December 12, 1994, the day the
Commonwealth received West Virginia's Offer of Temporary
Custody. As such, appellant contends the Commonwealth failed to
timely prosecute the charge and asserts the trial court erred in
failing to grant his motion to dismiss the indictment. We
disagree.
Under Virginia law, a prisoner must strictly comply with
the procedure established in Article III for requesting final
disposition of an untried indictment. See Eckard v.
Commonwealth, 20 Va. App. 619, 627, 460 S.E.2d 242, 246-47
(1995) (surveying other jurisdictions' interpretation of Article
III and agreeing that strict compliance is required). Inter
alia, the prisoner must make a written request for final
disposition of an indictment upon which a detainer is based and
deliver that request to the warden of the institution where the
prisoner is incarcerated. See Code § 53.1-210, Art. III(b);
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Eckard, 20 Va. App. at 628, 460 S.E.2d at 246. Once the
prisoner does so:
“the warden must forward [the request],
together with a certificate providing
certain information about the prisoner's
terms of confinement, to the appropriate
prosecuting official and court of the
receiving State. The authorities in the
receiving State then must bring the prisoner
to trial within 180 days, absent good cause
shown, or the court must dismiss the
indictment, information or complaint with
prejudice, and the detainer will cease to be
of any force or effect.”
Delgado v. Commonwealth, 16 Va. App. 50, 56, 428 S.E.2d 27, 30
(1993) (quoting Carchman v. Nash, 473 U.S. 716, 721 (1985))
(emphasis omitted).
Requiring strict compliance with the provisions of the IAD
yields substantial benefits. Eckard, 20 Va. App. at 628, 460
S.E.2d at 247. Strict compliance enables the prosecuting
authority to avoid the severe Article V(c) sanction of dismissal
by ensuring that adequate notice of a prisoner's Article III
request has been given, lessens the administrative burden of
having to sort through every prisoner's correspondence and
pleadings for IAD references, and facilitates the prosecutor's
determination of whether to dedicate resources to the
prosecution of a prisoner. See id. Although Article IX states
the IAD "shall be liberally construed so as to effectuate its
purposes," we have held that permitting substantial
circumvention of IAD procedures does not comport with its
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purpose of attaining "the orderly and expeditious disposition of
charges pending in foreign jurisdictions and . . .
establish[ing] . . . cooperative procedures to facilitate such
disposition." Id. at 629, 460 S.E.2d at 247 (citing People v.
Garner, 224 Cal.App.3d 1363, 1370 (Cal. Ct. App. 1990)).
Of the justifications for requiring strict compliance with
Article III procedures, the Commonwealth's need for notice of a
prisoner's request for final disposition of a pending
indictment, is of singular importance under our decisions. In
Eckard, we stated, "[c]ompliance with the procedural
requirements [of Article III] is the only way the Commonwealth
can be placed on notice that they must bring the prisoner to
trial within 180 days." Id. 7 In Delgado, we held "that for [a]
prisoner to be entitled to a dismissal with prejudice of an
indictment pending in the receiving state, he or she must prove
not only that notice of the request for disposition has been
received [by the receiving state] but also that the request was
'accompanied by a certificate of the appropriate official having
custody,' together with the information required by [Article
III(a)]." Delgado, 16 Va. App. at 58, 428 S.E.2d at 32 (quoting
7
In Eckard, a prisoner sent a communication, purporting to be
an Article III request, directly to the Commonwealth by
certified mail. We held that the prisoner failed to trigger the
180-day limitation of Article III "because [his] request was
both unaccompanied by the warden's certificate and was sent to
[Commonwealth's officials] directly from [the prisoner] instead
of the warden . . . ." Id. at 626, 460 S.E.2d at 246.
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Code § 53.1-210). "'[T]he receiving state cannot be charged
with attempting to try the prisoner within 180 days until the
receiving state has been given notice, by the prisoner or by
officials of the sending state, of a request to proceed under
Article III.'" Id. at 57, 428 S.E.2d at 31 (quoting State v.
Moore, 774 S.W.2d 590, 595 (Tenn. 1989)) (emphasis omitted). 8 In
Fex v. Michigan, in addressing the importance of receiving
proper notice under Article III, the United States Supreme Court
refused to place the burden of a mistake by the sending state on
the receiving state, stating "[i]t is more reasonable to think
that the receiving State's prosecutors are in no risk of losing
their case until they have been informed[, by receipt of the
prisoner's request,] of the request for trial." 507 U.S. 43, 51
(1993).
In this case, appellant's failure to strictly comply with
the requirements of Article III is fatal to his claim.
Furthermore, the evidence is insufficient to prove the
Commonwealth received actual notice of his intent to invoke his
8
In Delgado, we rejected the defendant's argument that the
180-day time period of Article III commenced upon notification
to the sending state of his request for disposition, holding
that the period begins to run "[u]pon receipt of [the prisoner's
request and the appropriate certificate] by the court and
prosecutor in the receiving state." Id. at 58, 428 S.E.2d at
32. "We do not believe that the legislature intended to make a
sister state or territory warden, over which Virginia
authorities have no control, its agent for the purpose of
receiving notices and documents required by the IAD." Id. at
58-59, 428 S.E.2d at 32.
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rights under Article III. The prosecutor made a request for
temporary custody of appellant, specifically referencing Article
IV of the IAD. As required by Article V, the acting warden of
Huttonsville offered to deliver temporary custody of appellant,
using Form IV to do so. Nothing on the face of Form IV shows
that appellant requested or attempted to request final
disposition of his indictment under Article III of the IAD.
Indeed, Form IV plainly acknowledges that it is a response to
the Commonwealth request for custody. 9 Form IV further discloses
nothing more than appellant's identification of counsel followed
by appellant's signature, neither of which can be read as an
invocation of Article III rights.
In support of his argument, appellant cites several federal
and state cases that have dismissed indictments not tried within
180 days of a prisoner's attempt to obtain final disposition,
notwithstanding the prisoner's failure to strictly comply with
the procedures established in Article III. See United States v.
9
Form IV states:
Pursuant to the provisions of Article V of
the Agreement on Detainers between this
state and your state, the undersigned hereby
offers to deliver temporary custody of [John
Yiaadey] to the appropriate authority in
your state in order that speedy and
efficient prosecuting may be had of the
indictment, information or complaint which
is [a]scribed in your request for custody of
August 30, 1994.
(Emphasis added).
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Reed, 910 F.2d 621 (9th Cir. 1990); United States v. Hutchins,
489 F. Supp. 710 (N.D. Ind. 1980); Schofs v. Warden, 509 F.
Supp. 78 (E.D. Ky. 1981); Pittman v. State, 301 A.2d 509 (Del.
1973). The authorities cited by appellant, which predate our
holdings in Eckard and Delgado and the Supreme Court's decision
in Fex, are either inconsistent with or distinguishable from
controlling Virginia precedent.
In Hutchins, Schofs, and Pittman, prisoners sent
communications requesting disposition of pending indictments
directly to officials in the receiving state because of an error
committed by officials in the sending state. In each case, the
court found the prisoner's request adequate to trigger the
Article III time limitation, notwithstanding the fact that the
request was neither routed through the appropriate official in
the sending state nor accompanied by the necessary certificate
of the custodial official. See Hutchins, 489 F. Supp. at 712,
716-17; Schofs, 509 F. Supp. at 82; Pittman, 301 A.2d at 511,
513. See Code § 53.1-210, Art. III(a),(b). These cases plainly
contradict our holding in Eckard that the 180-day period of
Article III does not commence unless the appropriate official in
the sending state sends the prisoner's request to the
Commonwealth, together with the appropriate certificate, and are
not controlling. See Eckard, 20 Va. App. at 626, 460 S.E.2d at
246. See also Delgado, 16 Va. App. at 58, 428 S.E.2d at 32.
Furthermore, in these cases, the evidence showed that the
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receiving state had actual notice of the prisoner's intent to
invoke Article III, a fact which was material to the court’s
decision. See Hutchins, 489 F. Supp. at 712, 715-16; Schofs,
509 F. Supp. at 82; Pittman, 301 A.2d at 511, 513. Assuming
without deciding that Virginia would adopt the standard that a
receiving state's actual notice of a prisoner's Article III
request satisfies the IAD, for reasons already stated, the
evidence adduced in this case does not support a finding of
actual notice.
In Reed, the Court of Appeals for the Ninth Circuit found
the prisoner "clearly attempted" to request final disposition of
a federal indictment, notwithstanding the fact that he
incorrectly filled out the necessary forms, and dismissed the
indictment. 10 Reed, 910 F.2d at 625-26. Even were we to
conclude that the Reed holding is consistent with the dictates
of Eckard and Delgado, in the case before us, the evidence does
not support the conclusion that appellant attempted to request
final disposition of his Warren County indictment. Indeed, in
response to the Commonwealth's request for temporary custody of
appellant, West Virginia officials returned Form IV, which, on
its face, states the Commonwealth had initiated the request for
appellant's transfer. Form IV contains no statement whatsoever
10
The prisoner’s error was attributable to the erroneous
instructions of a custodial official in the sending state. See
Reed, 910 F.2d at 623.
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that appellant requested final disposition of his case by the
Commonwealth. Appellant's signature on Form IV merely verified
the identity of his counsel and nothing more. As the trial
court recognized, although appellant may have desired final
disposition of the indictment, he failed to notify the
Commonwealth by delivering a written request in strict
compliance with the IAD. Contrary to appellant's assertion, the
prosecutor's knowledge that appellant was willing to return to
Virginia for trial does not constitute an adequate substitute
for compliance with IAD procedures and did not provide notice
that appellant invoked his rights under Article III. Based on
the foregoing, the trial court properly denied appellant's
motion.
IV.
APPELLANT'S ARTICLE V ARGUMENT
Appellant further asserts the Commonwealth violated Article
V(c) of the IAD by failing to accept temporary custody of
appellant within a reasonable time after West Virginia made its
offer to deliver temporary custody. Article V(c) provides that
"if the appropriate authority shall refuse or fail to accept
temporary custody . . . the appropriate court of the
jurisdiction where the indictment, information or complaint has
been pending shall enter an order dismissing the same with
prejudice . . . ." Appellant's claim of error is barred under
Rule 5A:18 because he failed to raise this argument before the
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trial judge and, therefore, denied the judge the opportunity to
consider the question. Buck v. Commonwealth, 247 Va. 449,
452-53, 443 S.E.2d 414, 416 (1994) (barring appellant's argument
on appeal that the Commonwealth's reasons for striking potential
jurors were pretextual because appellant did not allege error on
this ground before the trial judge).
V.
ALLEGED VIOLATION OF STATUTORY RIGHT TO SPEEDY TRIAL
Finally, appellant contends the Commonwealth violated Code
§ 19.2-243, which provides that an accused must be brought to
trial within five months after his or her preliminary hearing if
he or she is in custody or within nine months if he or she is
not in custody. Appellant contends he preserved this issue in
his plea agreement. Relying on the same authority set forth
above, we find that appellant failed to preserve this argument.
Appellant failed to cite a violation of Code § 19.2-243 in
his written Motion to Dismiss, faxed to the circuit court on
March 4, 1996. During initial argument on the motion the next
day, appellant's counsel again failed to allege a violation of
Code § 19.2-243. Upon asking the court to hear further argument
on his motion to dismiss, counsel asserted in conclusory fashion
that his right to a speedy trial within nine months was
violated. Counsel did not specifically reference Code
§ 19.2-243 and did not state with particularity his grounds for
dismissal based on this statutory right. Further, counsel did
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not ask the court to rule on whether Code § 19.2-243 had been
violated. Counsel's passing reference to appellant's right to
speedy trial did not sufficiently raise the issue before the
trial judge to preserve it for appellate review.
We find no merit to appellant's further contention that
this issue has been preserved by reference in his plea
agreement. Although the agreement states that appellant retains
the right to appeal "all issues" relating to "Speedy
Trial/Detainer," appellant's counsel conceded twice before the
trial judge that the agreement only preserved appellant's
argument concerning the alleged violation of Article III of the
IAD. Appellant's claim of error has thus not been preserved.
For the foregoing reasons, appellant's conviction is
affirmed.
Affirmed.
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