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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-15773
Non-Argument Calendar
________________________
D.C. Docket No. 8:13-cr-00187-JDW-AEP-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CANETHA JOHNSON,
VANESSA COOPER,
SELENA BLANCHARD,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
________________________
(April 24, 2015)
Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Canetha Johnson, Vanessa Cooper, and Selena Blanchard appeal their
convictions for possession and conspiracy to possess with intent to distribute 500
grams or more of methamphetamine following a jury trial.
Before trial, the defendants filed two motions to suppress evidence
recovered from the hotel room where they were arrested. In denying the motions,
the district court found, with respect to the first motion, that Cooper gave voluntary
consent for agents from the Drug Enforcement Administration (“DEA”) to enter
the hotel room; and, with respect to the second motion, that the initial search of the
belongings and luggage inside the room was valid as a search incident to arrest and
that DEA then conducted a lawful custodial seizure and subsequent inventory
search of the items.
On appeal, Cooper challenges the district court’s denial of the motions to
suppress. Blanchard challenges the denial of the motions to suppress as well as the
sufficiency of the evidence against her as to the substantive possession offense.
And Johnson challenges the sufficiency of the evidence for her convictions on both
the conspiracy and substantive offenses. After careful review of the record and the
briefs, we affirm all convictions.
I. General Background
Briefly stated, the facts giving rise to this case are as follows. On April 1,
2013, DEA agents in San Diego, California, informed law enforcement in Tampa,
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Florida, that three drug couriers would soon be flying into Tampa carrying
methamphetamine. The three drug couriers were identified as the defendants.
DEA agents set up surveillance at the Tampa International Airport.
When the defendants arrived the next day, they were observed exiting the
terminal and getting into a car driven by Raul Carbajal, a co-defendant who later
pleaded guilty and testified at trial. Carbajal drove the defendants to a local hotel
and dropped them off. Thereafter, police stopped and searched Carbajal’s vehicle,
finding three cucumber-shaped packages containing a total of 834.1 grams of pure
methamphetamine.
Following his arrest, Carbajal told police that he had received the
methamphetamine from the defendants earlier that day. Carbajal stated the
defendants had secreted the drugs inside their bodies in order to pass through
security. Carbajal also admitted that he had picked up numerous drug couriers at
the Tampa International Airport over the previous six months, including Cooper
and Blanchard on several occasions.
Based on Carbajal’s statements, DEA agents who had remained at the hotel
went to the defendants’ hotel room. After being questioning by the agents, the
three defendants were arrested. The agents conducted an initial search of the
defendants’ belongings at the hotel and then took the items into custody.
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A federal grand jury indicted the defendants on two counts: conspiracy to
possess with intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846 (“Count One”); and
possession with intent to distribute 500 grams or more of methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii) (“Count Two”).
Cooper filed a motion to suppress, which Johnson and Blanchard adopted.
In the motion, Cooper challenged the DEA agents’ warrantless entry into the hotel
room. After a hearing, the district court denied the motion on the basis that Cooper
freely and voluntarily consented to the agents’ entry. Then, Blanchard and Cooper
filed motions to suppress evidence obtained from a search of the hotel room and
their personal belongings, such as travel receipts and other documentation. After a
second hearing, the district court found that the initial searches were lawful as
incident to arrest, and that, subsequently, the items were lawfully seized, taken into
DEA custody, and searched in order to inventory the contents.
Following a trial, a jury returned a guilty verdict on both counts against each
defendant. Johnson, Blanchard, and Cooper were sentenced to terms of
imprisonment of 168 months, 192 months, and 204 months, respectively. These
appeals followed.
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II. Denial of the First Motion to Suppress (Cooper and Blanchard)
Cooper and Blanchard argue the entry into the hotel room was invalid
because they did not consent to entry. Further, they contend, any consent obtained
by DEA agents was not voluntarily given because it was the result of acquiescence
to a show of police authority.
In reviewing the denial of a motion to suppress, we review the district
court’s findings of fact for clear error and its application of the law to those facts
de novo, construing all facts in the light most favorable to the party that prevailed
below—here, the government. United States v. Gibson, 708 F.3d 1256, 1274 (11th
Cir. 2013).
The Fourth Amendment protects an individual’s reasonable expectation of
privacy in a hotel room. 1 United States v. Mercer, 541 F.3d 1070, 1075 (11th Cir.
2008). Without a warrant, “a search is reasonable only if it falls within a specific
exception to the warrant requirement.” United States v. Watkins, 760 F.3d 1271,
1278 (11th Cir. 2014) (quotation marks omitted). One such exception is a
warrantless search or entry based on valid consent. Id. at 1279. Thus, a
warrantless search or entry “does not violate the Fourth Amendment where there is
voluntary consent given by a person with authority.” Bates v. Harvey, 518 F.3d
1233, 1243 (11th Cir. 2008).
1
There is no dispute in this case that the defendants had a reasonable expectation of
privacy in the hotel room.
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Whether consent is “voluntary” is a factual determination to be made based
on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218,
248-49, 93 S. Ct. 2041, 2059 (1973); United States v. Tobin, 923 F.2d 1506, 1512
(11th Cir. 1991) (en banc). The government bears the burden of proving that
consent was voluntarily and freely given and was not the product of coercion or
mere submission to police authority. United States v. Blake, 888 F.2d 795, 798
(11th Cir. 1989). We review the district court’s factual findings as to whether
voluntary consent was given for clear error. Id.
To assist courts in determining whether consent was voluntary in a specific
case, we have identified a non-exhaustive list of relevant factors, including the
following:
voluntariness of the defendant's custodial status, the
presence of coercive police procedure, the extent and
level of the defendant’s cooperation with police, the
defendant’s awareness of his right to refuse to consent to
the search, the defendant’s education and intelligence,
and, significantly, the defendant’s belief that no
incriminating evidence will be found.
Id. (quoting others sources).
The issue of consent often turns on credibility determinations made by the
district court. In general, we afford considerable deference to the district court’s
credibility determinations because the court “personally observes the testimony
and is thus in a better position than a reviewing court to assess the credibility of
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witnesses.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002).
And where, as here, opposing parties present directly conflicting accounts, the
district court’s choice of whom to believe is typically conclusive unless the court
credits testimony that, because it is exceedingly improbable or contrary to the laws
of nature, no reasonable factfinder could accept as true. Id.
Here, the district court did not err in denying the first motion to suppress on
the basis that the agents obtained voluntary consent to enter the hotel room. At the
suppression hearing, the district court was presented with two conflicting versions
of events. According to the agents’ testimony, as summarized by the district court,
the plan was to make contact with Cooper and her co-
defendants and solicit their cooperation, failing which
they would be arrested. To effect this, Gordon initiated a
“low key approach” to the hotel room, in plain clothes
and without weapons drawn. Agents Burnside and
McGee had a hotel employee knock on the door to Room
509 under the pretense of room service and when the
door opened, the employee stepped away and the agents
identified themselves, exhibited their credentials and
explained they were conducting a follow-up
investigation. Within a matter of seconds, Gordon joined
them at the door, identified himself to Cooper, and asked
to speak with her inside. According to Gordon, the
conversation was very cordial, Cooper invited them in,
walked over to the bed and sat down. The agents entered
and were joined by three more. Two agents were
assigned to question each Defendant. Cooper was
questioned in the room, while Johnson and Blanchard
were questioned outside.
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By contrast, according to Cooper’s and Johnson’s testimony, when Johnson
opened the door expecting to find a hotel employee, two agents aggressively
pushed past her, came into the room, and demanded to speak with Cooper. When
Cooper identified herself, an agent grabbed her by the arm, pulled her outside the
room, and began questioning her about the drugs.
The district court resolved all conflicts in the evidence in favor of the
government’s witnesses, despite noting some inconsistencies in the DEA agents’
testimony on collateral issues. The court found Cooper and Johnson’s version of
events “simply not credible.” In crediting the agents’ accounts, the district court
did not choose testimony that was so improbable that no reasonable factfinder
could accept it as true. See Ramirez-Chilel, 289 F.3d at 749. The agents and the
defendants simply gave conflicting accounts of the interaction at the hotel room,
and the court set forth plausible explanations for why it credited the agents’
testimony over that of the defendants. See id. at 749-50. Therefore, we defer to
the district court’s credibility determinations and disregard Cooper’s and
Blanchard’s reliance on testimony that is inconsistent with the court’s factual
findings.
The district court’s finding that Cooper’s consent was voluntary and was not
the product of coercion is well supported by the record. Despite opining that the
unexpected appearance of three DEA agents outside the hotel-room door could
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have been “intimidating, if not coercive,” the court nonetheless determined that
Cooper’s consent was voluntary. The court referenced a number of factors
supporting the voluntariness of consent, including the following: the agents were
in plain clothes with no weapons visible; they displayed their credentials, identified
themselves, and explained that they were conducting a narcotics investigation and
wished to speak with the defendants; the conversation was calm, cordial, and non-
threatening; Cooper’s testimony demonstrated that she was intelligent and capable
of refusing consent; and no contraband or illegal substances were found in the
room, indicating that the defendants would not have been motivated to prevent
entry to law enforcement. See Blake, 888 F.2d at 798. The fact that the agents did
not advise the defendants of their right to refuse consent does not, alone, vitiate
that consent. See Schneckloth, 412 U.S. at 247-49, 93 S. Ct. at 2058-59. In sum,
the circumstances do not show that Cooper was intimidated or forced into
consenting to the entry by a “show of authority” from the officers.
Blanchard and Cooper argue that the agents engaged in “trickery” by having
a hotel employee knock on the door to the hotel room and then, once the door was
opened, entering the room based on only the defendants’ failure to object. See
Ramirez-Chilel, 289 F.3d at 752 (“[T]he government may not show consent to
enter from the defendant’s failure to object to the entry. To do so would be to
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justify entry by consent and consent by entry.” (quotation marks omitted)); see also
United States v. Bautista, 362 F.3d 584, 591-92 (9th Cir. 2004) (same).
Under the circumstances, the “trickery” engaged in by the DEA to have the
defendants open the door does not undermine the consent obtained thereafter. Nor
do the facts show a simple failure to object to entry. The facts, as found by the
district court, demonstrate that after the door was opened, Cooper and the agents
engaged in a cordial conversation, the agents calmly explained the purpose of their
presence and requested entry, and then Cooper, with knowledge that the agents
were conducting a narcotics investigation, invited the agents into the room. Even
assuming that this “invitation” was non-verbal, Cooper gave officers the type of
“implied consent” that we have found sufficiently voluntary in similar
circumstances. See Ramirez-Chilel, 289 F.3d at 751-52 (finding a defendant’s
“yielding the right-of-way” to officers at the front door to be voluntary consent to
enter where four officers were present and no guns were drawn).
In contrast to the purported consent at issue in Bautista, Cooper’s consent
was not simply the product of compliance with police demands. See Bautista, 362
F.3d at 591-92 (holding that opening the door in response to a police demand and
then failing to object when officers entered was not voluntary consent); see also
Tobin, 923 F.2d at 1512 (explaining that courts have held that consent was not
voluntary in “cases in which police have used their position to demand entry”);
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United States v. Edmondson, 791 F.2d 1512, 1514-15 (11th Cir. 1986) (finding a
defendant’s “consent”—opening the door, stepping back, and placing his hands
upon his head—involuntary where it was prompted by a number of Federal Bureau
of Investigation agents who had surrounded Edmondson’s apartment, drawn their
weapons, and knocked on the door yelling, “FBI. Open the door.”). Here, in view
of the court’s factual findings, the DEA did not demand entry and did not enter
before receiving implied or express consent from Cooper.
In sum, the district court did not clearly err in finding that Cooper
voluntarily consented to the agents’ entry into the hotel room.
III. Denial of the Second Motion to Suppress (Cooper and Blanchard)
Cooper and Blanchard also argue that the district court erred in denying their
motions to suppress evidence found during a search of their luggage in the hotel
room. The search, they contend, cannot be justified as a search incident to arrest
because neither Cooper nor Blanchard could have accessed their luggage when
they were arrested.
A search incident to a lawful arrest is a well-established exception to the
warrant requirement. Arizona v. Gant, 556 U.S. 332, 338, 129 S. Ct. 1710, 1716
(2009). Under this exception, “officers may only search areas within the arrestee’s
control, construed as the area from within which [s]he might gain possession of a
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weapon or destructible evidence.” Holmes v. Kucynda, 321 F.3d 1069, 1082 (11th
Cir. 2003) (brackets and internal quotation marks omitted).
We do not decide whether the DEA agents’ search of the defendants’
personal belongings exceeded the permissible scope of a search incident to arrest
because Cooper and Blanchard do not challenge the district court’s determination
that, following the defendants’ arrest, DEA agents took custody of the personal
belongings and later conducted a lawful inventory search. Any evidence obtained
from the belongings introduced at trial either was or could have been discovered
during the inventory search. See United States v. Virden, 488 F.3d 1317, 1322
(11th Cir. 2007) (“Under the inevitable discovery exception, if the prosecution can
establish by a preponderance of the evidence that the information would have
ultimately been recovered by lawful means, the evidence will be admissible.”).
Therefore, we affirm the denial of the second motion to suppress on this alternative
basis.
“Inventory searches of an arrestee’s personal property are a well-defined
exception to the Fourth Amendment warrant requirement.” United States v.
Farley, 607 F.3d 1294, 1333 (11th Cir. 2010) (internal quotation marks omitted).
When police take custody of a defendant’s belongings, such as a bag or suitcase,
they may open the item and itemize its contents pursuant to standard inventory
procedures. Id. Inventory searches of property lawfully in police custody are
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permissible “as long as that search is consistent with the police caretaking
function.” United States v. O’Bryant, 775 F.2d 1528, 1534 (11th Cir. 1985); see
United States v. Khoury, 901 F.2d 948, 958 (11th Cir. 1990). In addition, the
former Fifth Circuit “has consistently recognized that the fourth amendment is not
violated when the police take custody of the property of persons they arrest to store
that property for safekeeping.” United States v. Gravitt, 484 F.2d 375, 378 (5th
Cir. 1973)2; see United States v. Lipscomb, 435 F.2d 795, 799-801 (5th Cir. 1970)
(holding that it was reasonable for “police officers to take all the arrested couple’s
personal belongings” from a hotel room and bring the belongings to police
headquarters).
Here, Cooper and Blanchard have abandoned any challenge to the validity of
the custodial seizure and subsequent inventory search. Blanchard’s brief does not
address the issue at all. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8
(11th Cir. 2003) (holding that issues not raised in an appellant’s initial brief are
deemed abandoned). And, while Cooper asserts in her issue statement that there
was no “immediate need to preserve evidence,” along with the bare statement that
court erred in finding the custodial seizure and inventory search valid, she did not,
thereafter, develop any supporting arguments or cite relevant authority. “We have
long held that an appellant abandons a claim when [s]he either makes only passing
2
We are bound by all Fifth Circuit decisions issued before October 1, 1981. Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
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references to it or raises it in a perfunctory manner without supporting arguments
and authority.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th
Cir. 2014). Consequently, we affirm the denial of the second motion to suppress
on this alternative basis. See id. at 683; cf. Farley, 607 F.3d at 1333 n.25
(“Because the inventory search ground is dispositive, we need not address the
search incident to arrest ground.”).
IV. Sufficiency of the Evidence (Blanchard and Johnson)
We review de novo the sufficiency of the evidence to support a conviction.
United States v. Howard, 742 F.3d 1334, 1341 (11th Cir. 2014). We view the
evidence presented at trial, and draw all reasonable inferences therefrom, in the
light most favorable to the government. United States v. Hansen, 262 F.3d 1217,
1236 (11th Cir. 2001). We will not disturb a guilty verdict unless, given the
evidence in the record, no reasonable trier of fact could have found that the
evidence establishes the defendant’s guilt. Howard, 742 F.3d at 1341; United
States v. Rodriguez, 218 F.3d 1243, 1244 (11th Cir. 2000). “We do not second
guess the jury’s determination of credibility issues. Nor will we reverse a
conviction simply because the defendant put forth a reasonable hypothesis of
innocence at trial.” Howard, 742 F.3d at 1342 (citations and internal quotation
marks omitted).
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To sustain a conviction for possession with intent to distribute illegal
substances under 21 U.S.C. § 841(a)(1), “the government must show that the
defendant had (1) knowing (2) possession of the drugs and (3) an intent to
distribute them.” United States v. Capers, 708 F.3d 1286, 1297 (11th Cir. 2013).
“To sustain a conviction for conspiracy to distribute drugs in violation of 21 U.S.C.
§ 846, the government must prove that 1) an agreement existed between two or
more people to distribute the drugs; 2) that the defendant at issue knew of the
conspiratorial goal; and 3) that he knowingly joined or participated in the illegal
venture.” United States v. Reeves, 742 F.3d 487, 497 (11th Cir. 2014) (internal
quotation marks omitted).
A.
Johnson argues that the only evidence linking her to the drug-trafficking
conspiracy was her statement admitting to bringing “the stuff” from San Diego to
Tampa. Other than this uncorroborated statement, she asserts, only circumstantial
evidence, such as Johnson’s presence in Carbajal’s car and her association with
Blanchard and Cooper, supported the finding that she aided the conspiracy. See
United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995) (“[C]lose association
with a co-conspirator or mere presence at the illegal sale of drugs is, by itself,
insufficient evidence to support a conviction for conspiracy to possess and
distribute drugs.”). Without additional evidence of her participation, Johnson
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contends, the government failed to present sufficient evidence to support her
conviction for the conspiracy offense.
We disagree that the evidence was insufficient. Instead, ample evidence was
presented for a reasonable jury to conclude that Johnson knowingly participated in
a drug-smuggling conspiracy along with Cooper and Blanchard. Before the
defendants flew into Tampa on April 2, Carbajal was informed by his cousin,
Roberto Carbajal, the head of the drug-smuggling operation, that three women
drug couriers would be flying in from San Diego. When the defendants arrived at
the airport, DEA agents observed Carbajal pick up them up and drive them to the
hotel. On the way to the hotel, the defendants put the methamphetamine on the car
floor. For their part, each of the defendants was to be paid $1,100. At the hotel,
Johnson admitted to a DEA agent that she was in Tampa to “bring the stuff,” that
she expected to be paid $1,100 or $1,200 for delivering “the stuff,” and that she
had delivered “the stuff” to Carbajal. The agent testified that it was clear to him
that “the stuff” referred to methamphetamine.
In addition, a reasonable jury could have inferred from the shape and
number of packages recovered from Carbajal’s car that Blanchard, Cooper, and
Johnson each personally transported one of the packages of meth. Janette Vega, an
admitted drug courier in the conspiracy who had previously worked with Cooper
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and Blanchard, testified about how the drug-smuggling operation packaged drugs
in a shape that allowed for vaginal smuggling.
Viewing this evidence in the light most favorable to the government, a
reasonable jury could have concluded that Johnson was not just associated with co-
conspirators or merely present in an area where a drug transaction occurred, but
instead was a knowing and voluntary participant in a conspiracy to distribute
methamphetamine. See Reeves, 742 F.3d at 497; Hansen, 262 F.3d at 1236.
Therefore, the district court did not err in denying Johnson’s motion for judgment
of acquittal as to the sufficiency of the evidence for her conspiracy conviction.
B.
Blanchard and Johnson argue that their mere presence in the back seat of a
car that contained contraband was insufficient to support a conviction for the
substantive offense of possession with intent to distribute. See United States v.
Stanley, 24 F.3d 1314, 1319-20 (11th Cir. 1994) (holding that “something more
than mere presence in the car” in which drugs are found is required to sustain a
conviction for the substantive offense of possession with intent to distribute). The
government, they assert, did not present any evidence that Blanchard or Johnson
either actually or constructively possessed the methamphetamine found in
Carbajal’s vehicle. At best, they contend, the government’s evidence showed that
they simply had knowledge of the methamphetamine in the vehicle.
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Once again, we disagree. The evidence shows more than Blanchard’s and
Johnson’s mere presence in the car and simple knowledge of the
methamphetamine. As explained above, the number of packages and their unique
shape suggests that each of the three defendants actually possessed the
methamphetamine before placing it on the floor of Carbajal’s car. This was
corroborated by the fact that Carbajal intended to pay each of the women an equal
amount. In addition, Johnson stated that she had delivered “the stuff” to Carbajal
and expected to be paid. There was also evidence that Blanchard previously had
engaged in similar transactions with Carbajal. Based on these facts, a reasonable
jury could have determined that both Johnson and Blanchard each knowingly
possessed methamphetamine.
Even if the evidence was somehow insufficient to show possession by either
Blanchard or Johnson, the evidence was clearly sufficient to show that the
methamphetamine came from at least one of the three defendants. And the jury in
this case was instructed on both Pinkerton 3 and aiding-and-abetting theories of
liability for the substantive possession count. Under Pinkerton, “Each party to a
continuing conspiracy may be vicariously liable for substantive criminal offenses
committed by a co-conspirator during the course and in the furtherance of the
conspiracy, notwithstanding the party’s non-participation in the offenses or lack of
3
Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180 (1946).
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knowledge thereof.” United States v. Mothersill, 87 F.3d 1214, 1218 (11th Cir.
1996). The individual culpability of a particular conspirator does not need to be
assessed, “provided the substantive crime was a reasonably foreseeable
consequence of the conspiracy.” Id. (internal quotation marks omitted).
Given what we have discussed previously, the evidence was sufficient for a
reasonable jury to find that both Blanchard and Johnson were guilty of conspiracy
and that the substantive crime of possession of methamphetamine with intent to
distribute was a reasonably foreseeable consequence of a drug-trafficking
conspiracy. See id. Consequently, Blanchard and Johnson remain liable even if
they did not actually possess or distribute the methamphetamine. See id. Thus, the
district court did not err in denying their motions for judgment of acquittal.
V. Conclusion
For the reasons stated, we affirm all convictions.
AFFIRMED.
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