United States Court of Appeals
For the First Circuit
No. 03-1790
UNITED STATES OF AMERICA,
Appellee,
v.
LIBORIO RUBEN CARO-MUÑIZ,
Defendant/Appellant.
_________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Circuit Judge,
Howard, Circuit Judge,
Carter,* Senior District Judge.
Gael Mahony, for appellant.
Jose A. Ruiz, Assistant United States Attorney, with whom
H. S. Garcia, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, Thomas F. Klumper, Assistant
United States Attorney, were on brief for appellee.
April 22, 2005
*
Of the District of Maine, sitting by designation.
CARTER, Senior District Judge. Defendant Liborio Ruben
Caro-Muñiz (hereinafter “Caro”) appeals from a judgment of the
United States District Court for the District of Puerto Rico
convicting him, after a jury trial, of six counts of bribery, in
violation of 18 U.S.C. § 666(a)(1)(B), one count of money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i), and one
count of witness tampering, in violation of 18 U.S.C. §
1512(b)(1). In this appeal, Caro makes two challenges to his
convictions and one challenge to his sentence. First, he asserts
that the federal bribery statute is unconstitutional as applied
to the facts of this case. Second, Caro assigns error to the
district court’s failure to conduct an in camera review of tape
recordings made by a government informant during the course of
the federal investigation. Finally, Caro claims that the
district court erred in its application of sentencing
enhancements under the federal sentencing guidelines.1 For the
reasons set forth below, we will affirm Caro’s conviction on all
counts and remand the case for re-sentencing in light of the
district court’s error, agreed upon by both parties, in
calculating Caro’s Adjusted Total Offense Level.
1
Following oral argument, Caro filed a letter with the court
pursuant to Fed. R. App. P. 28j, in which he asks the court to
examine his sentence in light of the United States Supreme
Court’s decision in United States v. Booker, 125 S. Ct. 738
(2005). Because the parties agree that the district court erred
in determining Caro’s sentence, and because we vacate his
sentence and remand the case to the district court for re-
sentencing, we do not reach any Booker related issues.
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I.
Because this appeal follows a conviction, we recite the
facts in the light most favorable to the verdict. See United
States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 42 (1st Cir.
2004).
During the years 1999 and 2000, Caro served as the mayor of
the Municipality of Rincón, Puerto Rico. Rincón received federal
funds from the Federal Emergency Management Agency in excess of
$10,000 during the calendar years 1999 and 2000.
In 1999, the Federal Bureau of Investigation (hereinafter
“FBI”) commenced an investigation relating to the possible
solicitation of bribes by public officials. Caro was one
official targeted by the investigation. In furtherance of its
investigation, the FBI utilized a paid informant, José Calderón,
who was an engineer in the business of providing engineering
services to Puerto Rican municipalities. Calderón was equipped
with audio and video recording equipment, which he used to record
conversations with municipal mayors. As a result of Calderón’s
activities as an informant, the FBI accumulated 140 tapes of
conversations between Calderón and public officials -- including
Caro.
Calderón and Caro met multiple times during 1999 and 2000 to
discuss municipal construction projects in Rincón. At these
meetings, or shortly thereafter, Caro solicited bribes from
Calderón in connection with awarding government contracts.
Specifically, Caro solicited bribes for the preparation of two of
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four phases of a territorial allocation plan and the contract for
the design of a floodlight tower for a municipal sports complex.
The record does not support a finding that the territorial
allocation plan or the floodlight tower were funded with federal
monies.
At an August 18, 2000, meeting at the mayor’s office,
Calderón informed Caro that the cost of preparing the floodlight
towers would be $15,000. Caro responded by requesting $5000 for
awarding the contract. Caro received this $5000 payment from
Calderón on August 29, 2000. In early September 2002, Caro
solicited a bribe in the amount of $3000 from Calderón in
connection with the contract for the territorial allocation plan.
This bribe was paid in cash.
Caro subsequently used $3000 of the bribe proceeds to pay an
invoice at a print shop related to his purchase of political
materials for his reelection campaign. Caro also represented on
his Puerto Rico Elections Commission reports that the payments
received from Calderón were political contributions to his 2000
reelection campaign.
As a result of the FBI investigation, a federal grand jury
returned a ten count superseding indictment charging Caro with
solicitation of bribes (counts I-VI), extortion (counts VII and
VIII), money laundering (count IX), and witness tampering (count
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X).2 Following a twelve day trial, a jury convicted Caro of
counts I-VI, IX, and X. The district court sentenced Caro to a
term of imprisonment totaling seventy-two months and a three-year
term of supervised release. This appeal followed.
II.
Caro’s first challenge on appeal concerns the
constitutionality of the federal bribery statute, 18 U.S.C. §
666. The federal bribery statute provides in relevant part:
(a) Whoever, if the circumstance described in
subsection (b) of this section exists--
(1) being an agent of an organization, or of a
State, local, or Indian tribal government, or any
agency thereof--
...
(B) corruptly solicits or demands for the
benefit of any person, or accepts or agrees
to accept, anything of value from any person,
intending to be influenced or rewarded in
connection with any business, transaction, or
series of transactions of such organization,
2
The witness tampering count arose from Caro’s false representations
to the Elections Commission. 18 U.S.C. § 1512(b) provides that:
Whoever knowingly uses intimidation, threatens or corruptly
persuades another person, or attempts to do so, or engages in
misleading conduct toward another person, with intent
to--
(1) influence, delay or prevent the testimony of any
person in an official proceeding;
...
shall be fined under this title or imprisoned not more than
ten years, or both.
Id.
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government, or agency involving any thing of
value of $5,000 or more;
...
shall be fined under this title, imprisoned not more
than ten years, or both.
(b) The circumstance referred to in subsection (a) of
this section is that the organization, government, or
agency receives, in any one year period, benefits in
excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance,
or other form of Federal assistance.
18 U.S.C. § 666. Caro does not dispute that the Municipality of
Rincón received more than $10,000 in federal funds during the
relevant period, or that the value of the alleged bribery in this
case exceeded $5000. Instead, Caro asserts that section 666
“cannot constitutionally be applied in his case, because the
criminalization of alleged bribery transactions that are
unconnected to federal funds or a federally funded program is not
a necessary or proper means of furthering Congress’s legitimate
interest in protecting federal funds.” Brief for Appellant at
10.
We review challenges to the constitutionality of a statute
de novo. See Planned Parenthood v. Heed, 390 F.3d 53, 57 (1st
Cir. 2004). In Sabri v. United States, 124 S. Ct. 1941 (2004),
the United States Supreme Court held that section 666 was not an
unconstitutional exercise of congressional authority under the
Spending Clause, U.S. Const. Art. I, § 8, cl. 1, or the Necessary
and Proper Clause, U.S. Const. Art. I, § 8, cl. 18. Sabri, 124
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S. Ct. at 1942-43. Specifically, the Court stated:
It is true ... that not every bribe or kickback offered
or paid to agents of governments covered by § 666(b)
will be traceably skimmed from specific federal
payments, or show up in the guise of a quid pro quo for
some dereliction in spending a federal grant. But this
possibility portends no enforcement beyond the scope of
federal interest, for the reason that corruption does
not have to be that limited to affect the federal
interest. Money is fungible, bribed officials are
untrustworthy stewards of federal funds, and corrupt
contractors do not deliver dollar-for-dollar value.
Liquidity is not a financial term for nothing; money
can be drained off here because a federal grant is
pouring in there. And officials are not any the less
threatening to the objects behind federal spending just
because they may accept general retainers. It is
certainly enough that the statutes condition the
offense on a threshold amount of federal dollars
defining the federal interest, such as that provided
here, and on a bribe that goes well beyond liquor and
cigars.
Id. at 1946 (internal citations omitted). Caro suggests a narrow
reading of Sabri, whereby we would view the Supreme Court’s
decision as only standing for the proposition that section 666 is
facially valid. Under this interpretation, Caro suggests that
this court may entertain as-applied challenges to the
constitutionality of section 666 in instances where it is
established that there exists no direct connection between
charged bribery payments and federal funds. We decline this
invitation.
This court has previously rejected a challenge to a
conviction under section 666 in which the defendants contended
that there was an insufficient connection between their conduct
and federal funds received by a municipal police department. See
United States v. Cianci, 378 F.3d 71, 96 (1st Cir. 2004). The
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district court in Cianci instructed the jury -- without objection
-- that a connection between the alleged bribe and federal funds
was necessary. Id. at 96-97. On appeal, the Cianci panel
concluded that the application of United States v. Zanghi, 189
F.3d 71 (1st Cir. 1999), requires the court to “disregard the
nexus instruction upon which Corrente and Autiello base their
sufficiency challenges to their joint federal bribery conspiracy
convictions.” Cianci, 378 F.3d at 97.3 Because the Cianci panel
concluded that the nexus instruction was erroneous in light of
Sabri, the panel affirmed the appellants’ convictions and
implicitly held that a nexus requirement is unnecessary in
offenses charged under section 666.
Caro argues that the Cianci panel misapplied Sabri insofar
as the panel purportedly overlooked the fact that the Supreme
Court held in Sabri that section 666 was valid on its face, but
subject to as-applied challenges. In support of his position
that an as-applied challenge to section 666 may be entertained on
appeal, Caro cites United States v. Zwick, 199 F.3d 672 (3d Cir.
1999), and United States v. Santopietro, 166 F.3d 88 (2d Cir.
1999), both of which suggest a nexus between the charged bribery
and specific federal funds received by a municipality must be
established to support a conviction under section 666. However,
3
The Cianci panel stated that the rule of Zanghi was “an
unchallenged jury instruction that is faithful to the indictment
and ‘not patently incorrect or internally inconsistent’ becomes the
standard by which evidentiary sufficiency is to be measured.”
Cianci, 378 F.3d at 84 (quoting United States v. Gomes, 969 F.2d
1290, 1294 (1st Cir. 1992)).
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both Zwick and Santopietro predated the Supreme Court’s decision
in Sabri, and we find post-Sabri decisions to be more
instructive.
In addition to this court’s holding in Cianci, our sister
circuits have also held that after Sabri, section 666 does not
require a nexus between the alleged bribery and the receipt of
federal funds. See United States v. Spano, No. 03-1110, 2005 WL
674838, at *3 (7th Cir. Mar. 24, 2005) (“although Sabri involved
a facial constitutional challenge only, the opinion also
forecloses the defendants’ as-applied challenge .... [T]he
district court was correct in finding that a nexus between the
theft/bribe and the federal funds received by the Town of Cicero
was not an element of the crimes with which the defendants were
charged”); United States v. Kranovich, No. 03-10226, 2005 WL
665254, at *3 (9th Cir. Mar. 23, 2005) (“we ... hold the
government was not required to establish any connection between
the embezzled funds and a federal interest, apart from the
express requirement in section 666(b) that the County received
federal benefits in excess of $10,000”); United States v.
Mirikitani, 380 F.3d 1223, 1225 (9th Cir. 2004) (“the Supreme
Court [in Sabri] not only held that a federal nexus was not an
element of the crime, but it held that no federal nexus must be
shown at all.”).4 We now extend the implicit holding of Cianci
4
Caro points to no decisions -- nor does the court find any --
following Sabri in which a court has required proof of a nexus in
an offense charged under section 666.
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and join our sister circuits in holding that the government is
not required to prove a nexus between the bribery charged and the
municipality’s receipt of federal funds.5
III.
We now turn to the second issue raised on appeal: whether the
district court erred in failing to conduct an in camera review of
tape recordings as requested by Caro. Of the 140 tapes generated
by José Calderón’s work as an informant, the government disclosed
only seventy-one of these tapes to Caro prior to trial. Caro
moved for the production of all previously undisclosed recordings
on the basis that they might contain exculpatory or impeachment
evidence.6 The district court referred this motion to the
magistrate judge. In her order, the magistrate judge stated:
[T]he defense also filed a “Motion Requesting
Discovery” pursuing the disclosure of approximately 71
audio recordings, not yet provided in discovery. The
defense argues these may reveal exculpatory evidence
and that the government should not be the party making
such [a] determination. The government claims it has
disclosed all tapes where defendant appears talking to
José Calderón and that others are not exculpatory.
5
Caro’s challenge to his money laundering and witness tampering
convictions is based upon his claim that reversal of the bribery
convictions would eliminate an essential element of both the money
laundering and witness tampering convictions, thus requiring
vacation of these convictions. Because we affirm Caro’s bribery
convictions, and there being no other independent basis upon which
Caro challenges his money laundering and witness tampering
convictions, we affirm those convictions as well.
6
Although Caro did not specifically state the legal basis for his
discovery request, the Court assumes his request was made pursuant
to Fed. R. Crim. P. 16, Brady v. Maryland, 373 U.S. 83 (1963), and
Giglio v. United States, 405 U.S. 150 (1972).
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The government is instructed, unless it can argue that
disclosure will jeopardize the case, – an investigation
or life of others - to arrange for ways and means in
which the defense can examine those other related
recordings. (i.e. probably allowing for reading of
transcripts ...)
Order of August 9, 2001, at 2. Caro objected to the magistrate
judge’s order and specifically moved in the district court for a
vacation of this order. In an order dated February 28, 2002, the
district court ruled as follows:
[T]he United States will submit an affidavit sworn by
F.B.I. Special Agent Paul Bingham in which he avers that
he has listened to and received each of the recordings
that had not been disclosed to defendant, that he
represents under oath that none of them are related
directly or indirectly to this case, that defendant
Caro-Muñiz’s voice is not heard in any of them and that
nor [sic] is he or anyone related to the facts of this
case mentioned in these recordings.
Order of February 28, 2001, at 1. Caro did not object to this
order. Special Agent Paul Bingham submitted an affidavit pursuant
to the district court’s order and upon receipt of this affidavit,
the district court required the government to disclose three
recordings where Caro’s voice is heard, six additional recordings
that were directly or indirectly related to the Rincón
investigation, and transcripts of eight recordings that were not
directly or indirectly related to the Rincón investigation. Order
of April 25, 2002, at 1. Caro’s request for the remaining
recordings was denied. Caro did not move for reconsideration of
this order, nor did he raise again the issue at trial.
Caro now challenges the district court’s denial of his
request for an in camera inquiry into the contents of the
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recordings. The government contends that Caro has waived his
right to assert this claim on appeal because he failed to preserve
the issue at trial. We do not agree. The district court’s order
on Caro’s motion constituted a final resolution of the issue.
Caro had no basis upon which to believe that raising this pretrial
discovery issue again during the course of the trial proceedings
would be met with a more favorable result. Cf. Fusco v. Gen.
Motors Corp., 11 F.3d 259, 262-63 (1st Cir. 1993) (“where the
pretrial proffer is adequate and evidence is excluded
unconditionally by a pretrial order, then we think that the
proponent has preserved the issue for appeal”). The same
rationale applies here. Because appellant properly raised the
Brady discovery issue before the district court through pretrial
motions, we find that the issue is properly preserved for purposes
of appellate review. With that said, we turn to the merits of
Caro’s challenge.
We review the district court’s determinations under Rule 16,
Brady, and Giglio for abuse of discretion. See United States v.
Rosario-Peralta, 175 F.3d 48, 55 (1st Cir. 1999). At the outset,
we note that methods of enforcing disclosure requirements in
criminal trials are generally left to the discretion of the trial
court. See United States v. Valera, 845 F.2d 923, 927 (11th Cir.
1988).
The United States Supreme Court’s holding in Brady requires
the government to disclose any exculpatory evidence which is
“material either to guilt or to punishment.” Brady, 373 U.S. at
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87. “Information is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different." Rosario-Peralta,
175 F.3d at 53 (internal quotation and punctuation omitted).
However, “[a] defendant’s right to discover exculpatory evidence
does not include the unsupervised authority to search through the
[government's] files.” Pennsylvania v. Ritchie, 480 U.S. 39, 59
(1987). Similarly, Brady does not permit a defendant “to conduct
an in camera fishing expedition through the government's files
....” United States v. Pou, 953 F.2d 363, 367 (8th Cir. 1992).
Indeed, “[t]here is no general constitutional right to discovery
in a criminal case, and Brady did not create one.” Weatherford v.
Bursey, 429 U.S. 545, 559 (1977). Instead, “to establish a
violation of Brady, a defendant must provide the court with some
indication that the materials to which he ... needs access contain
material and potentially exculpatory evidence.” United States v.
Brandon, 17 F.3d 409, 456 (1st Cir. 1994).
In support of his position that the district court erred in
failing to conduct an in camera inspection of the tapes, Caro
relies on this court’s decision in Rosario-Peralta. In Rosario-
Paralta, we held that the district court abused its discretion
when it refused to review central communication records and tapes
related to the pursuit of defendants’ alleged drug-transporting
vessel. Rosario-Peralta, 175 F.3d at 54. The defendants argued
that disclosure of these materials was essential to their theory
that their boat could not have traveled from the location where
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bales of cocaine were dumped in the ocean to the location where
the defendants’ vessel was intercepted during the time frame
suggested by the government. Id. at 55. The defendants alleged
that the records and tapes requested in discovery contained
evidence that law enforcement lost sight of the vessel during its
pursuit. Id. at 54. This court held that “[i]n light of
defendants’ theory of the case, and in light of the fact that the
government does not dispute that the logs contain the seemingly
relevant times and locations of the units in the area, we find
that the district court abused its discretion in finding the logs
to be irrelevant without first reviewing them.” Id. at 55
(emphasis added).
This case is easily distinguishable. Caro has presented
neither a theory regarding the existence of potentially
exculpatory evidence on the tapes, nor has he made any showing
that the tapes would be of substantial assistance to his defense.
His discovery request to the district court only stated that
“[t]he recordings not provided in discovery may contain evidence
that exculpates the defendant.” Motion Requesting Discovery, at
2. This is insufficient to warrant an in camera review of the
tapes. Caro’s request that seventy-one tape recordings containing
hours of dialogue be reviewed by the district court is hardly
particularized. This is precisely the type of fishing expedition
that Brady does not permit. Caro identified no particular tape of
specific interest and has provided no basis for this court to
conclude that any recording contained potentially favorable
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evidence. In the absence of a particularized and focused request,
the district court is not required to troll through voluminous
recordings in search of potentially exculpatory evidence.
When a defendant fails to present a narrowly tailored and
specific request, Brady places the burden of disclosing evidence
favorable to the defendant on the government, not on the court.
See Ritchie, 480 U.S. at 59 (“In the typical case where a
defendant makes only a general request for exculpatory material
under Brady v. Maryland, 373 U.S. 83 (1963), it is the State that
decides which information must be disclosed. Unless defense
counsel becomes aware that other exculpatory evidence was withheld
and brings it to the court’s attention, the prosecutor’s decision
on disclosure is final.”); cf. United States v. Brooks, 966 F.2d
1500, 1505 (D.C. Cir. 1992) (“Although the defendant has
pinpointed specific files, he has not identified exculpatory
evidence [that the prosecution] withheld, so the case calls for
the usual prosecutorial rather than judicial examination.”)
(internal citation and punctuation omitted). Furthermore, “if the
government does fail to disclose Brady material, the defendant has
a constitutional remedy for the nondisclosure only if the
defendant can show that there is a reasonable probability that
‘the omission deprived the defendant of a fair trial.’” United
States v. Presser, 844 F.2d 1275, 1282 (6th Cir. 1988) (quoting
United States v. Agurs, 427 U.S. 97, 108 (1976)) (internal
citations omitted). Without a specific reference to potentially
exculpatory evidence, we hold that the district court did not
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abuse its discretion in allowing prosecutorial examination of the
tapes.
IV.
Having concluded that Caro’s convictions stand, we turn now
to the sentence imposed by the district court. Caro alleges that
the district court erred in its application of a sentencing
enhancement pursuant to United States Sentencing Guidelines
(hereinafter “U.S.S.G.”) § 2J1.7.
We review a district court’s interpretation of the sentencing
guidelines de novo. See United States v. McLaughlin, 378 F.3d 35,
38 (1st Cir. 2004).
Pursuant to U.S.S.G. § 3D1.2(c), the district court grouped
together the eight counts upon which Caro was convicted. In
accordance with U.S.S.G. § 3D1.3, the district court determined
that the appropriate offense level is that for the most serious
counts comprising the group. The district court properly
determined that Caro’s money laundering conviction was the most
serious of the eight counts. For sentencing purposes, a
conviction in violation of 18 U.S.C. § 1956(a)(1)(A)(i) mandates
the application of the “offense level for the underlying offense
from which the laundered funds were derived, if (A) the defendant
committed the underlying offense (or would be accountable for the
underlying offense under subsection (a)(1)(A) of § 1B1.3 (Relevant
Conduct)).” U.S.S.G. § 2S1.1. The Base Offense Level for
soliciting and receiving bribes is 10. The Court then applied a
number of enhancements to the Base Offense Level under the
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Sentencing Guidelines, one of which was a three-level enhancement
under U.S.S.G. § 2J1.7.7 It is the application of this enhancement
under § 2J1.7 that Caro contests. Caro alleges that the district
court erroneously applied the enhancement to the money laundering
offense when it could only properly be applied to the witness
tampering offense. He does so because this application yielded an
Adjusted Total Offense Level of 27 instead of 24.
The Government agrees that the district court’s application
of the § 2J1.7 enhancement was erroneous.
The United States concedes that the district court erred
at sentencing. The court improperly applied a three-
level enhancement under United States Sentencing
Guidelines § 2J1.7. Section 2J1.7 requires that the
three-level enhancement be only applied [to] the offense
committed on release. In this case, the witness
tampering offense was the only offense committed on
release. The sentencing court improperly applied the
three-level enhancement to the money laundering offense
which had been determined to be the highest offense
following United States Sentencing Guidelines § 3D1.2.
Therefore, Caro’s case should be remanded for re-
sentencing.
Brief for Appellee at 14-15. The position so expressed is
supported by the case of United States v. Bahhur, 200 F.3d 917
(6th Cir. 2000). We have carefully considered the sentencing
record herein and conclude that the agreed-upon position of the
7
U.S.S.G. § 2J1.7 reads as follows:
If an enhancement under 18 U.S.C. § 3147 applies, add 3
levels to the offense level for the offense committed
while on release as if this section were a specific
offence characteristic contained in the offense guideline
for the offense committed while on release.
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parties is correct and that the § 2J1.7 enhancement was improperly
applied, to the prejudice of the appellant, and improperly
inflated the Adjusted Total Offense Level. The sentence must be
vacated as erroneous.
V.
For the reasons set forth above, we affirm Caro’s convictions
on all counts. We vacate Caro’s sentence and remand the case to
the district court for re-sentencing consistent with this opinion.
All issues concerning application of the present advisory
guideline regime, post United States v. Booker, 125 S. Ct. 738
(2005), remain open for resolution in the district court on re-
sentencing.
SO ORDERED.
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