[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 1, 2005
No. 04-15615 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00056-CR-ORL-19-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARNOLD DALE WIGGINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 1, 2005)
Before TJOFLAT, DUBINA and FAY, Circuit Judges.
PER CURIAM:
Arnold Dale Wiggins appeals his conviction for using a cellular telephone to
communicate a bomb threat in violation of 18 U.S.C. § 844(e). He argues that
there was insufficient evidence to support the jury’s conviction and that his motion
for a judgment of acquittal should have been granted. For the reasons stated more
fully below, we affirm the denial of his motion for a judgment of acquittal based on
the sufficiency of the evidence.
The charging indictment alleged that Wiggins used his cell phone to
communicate a bomb threat to his employer, the Precision Engineering and
Construction Company (“PECC”) on or about June 1, 2001. A jury found him
guilty after a trial and Wiggins received a sentence of 18 months’ imprisonment.
At trial, the government presented the testimony of Raeann Smith, a PECC
secretary on the pertinent date of June 1, 2001, whose job included answering the
telephone. She testified that the PECC work number was 813-754-7916, and that
on June 1, 2001, while answering the telephone, she received a call from someone
who said: “You’d better get your guys out of the Cape.1 I have a bomb, and it’s
going to go off.” Smith did not remember much about the voice, but told someone
during an investigative interview that she thought the voice sounded “like a black
guy.” She also recalled that the voice sounded muffled, “like maybe someone had
1
“The Cape” is an apparent reference to Cape Canaveral in Florida.
2
their hand over the phone.” After receiving the call, Smith contacted “Brad,” the
owner of the company, and Brad picked up the phone for line 754-7916 and dialed
star 69 (*69) to retrieve the number of the last phone call made to that phone. On
cross-examination of Smith, the defendant, Wiggins, was asked to read the
statement allegedly made to Smith on June 1, and after the statement had been
read, Smith was unable to say for a fact that Wiggins’s voice matched the voice of
the caller who had phoned in the bomb threat.
Next, the government called Brad Hite, one of PECC’s owners, who testified
that Smith is his secretary. Hite testified that in June 2001, PECC was doing
construction at Space Launch Complex 37 at Cape Canaveral Air Force Station
(“the Cape”) and using roughly 100-200 men employed from local union halls.
All of the workers selected were employees of PECC. According to PECC
records, Wiggins was employed by PECC in 2001. Hite testified that, on June 1,
2001, PECC received a phone call and the caller indicated that there was a bomb at
PECC’s job site at the Cape. Smith received the call, relayed the information to
Hite, and Hite dialed star 69 (*69) to find the caller’s number. Hite wrote the
number down and called “Mr. Farrell,” who was the superintendent in charge of
the job site at the Cape. On cross-examination, Hite stated that he never received
any reports or complaints regarding Wiggins or his work, nor did Hite have any
3
communication with Wiggins. Hite admitted that, nearly seven months after the
bomb threat, Wiggins was suitable and eligible to be rehired.
The government also called Richard Farrell, who was the project manager
at PECC’s Cape Canaveral project on June 1, 2001. Farrell estimated that maybe
50-100 persons were working for PECC that day, and testified that he received a
call from Hite on June 1, 2001, informing Farrell that there had been a phone call
indicating that a bomb was on-site. In response, Farrell contacted his client, and he
believed it was his secretary who placed a call to security. Farrell testified that he
seemed to remember Hite telling him that he had star 69'd the caller and provided
Farrell with the number, which he passed on to Washington Group (the client).
Farrell could not recall seeing Wiggins until the day of the bomb threat, and further
testified that he had recently become aware that Wiggins was rehired by PECC
several months after the bomb threat occurred. Farrell could also not recall having
received any sort of communications from Wiggins or any occasion on which
Wiggins had been reported as being disgruntled or upset at the company. Finally,
Farrell testified that the decision to hire Wiggins was part of a general request to
the union and, therefore, the company had no control over who the union would
send.
The next witness was Judith Parish (formerly Judith Jinks), who worked as a
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security dispatcher at the Kennedy Space Center receiving, inter alia, all 911 and
emergency calls made at Space Launch Complex 37 at the Cape. Parish testified
that, on June 1, 2001, she received a 911 call from Complex 37 indicating that a
bomb threat had been called in. Parish was given the phone number of the phone
that had been used to call in the bomb threat, which she dialed, testifying that “it
sounded like somebody picked it up and hung up.” Parish called a second time,
and this time Wiggins answered and, when asked whether he had placed a bomb
threat, responded that he had not. Parish asked Wiggins to meet a captain “down at
the gate.” She stated that the number she called was 352-416-3530. On cross-
examination, Parish indicated that, after Wiggins answered the phone, he remained
on the phone and was cooperative at all times, but she could not recall whether or
not she had given a statement indicating that Wiggins sounded shocked to have
been suspected of making the call.
Gary Hogeland, a criminal investigator at the Kennedy Space Center, also
testified regarding the events of June 1, 2001. That day, Hogeland was called to
respond to a bomb threat at Complex 37 and, upon arrival on the scene, was
informed that someone on the complex had called in the threat from a cell phone.
Eventually, the cell phone was brought to Hogeland, who delivered it to Air Force
Office of Special Investigation (“OSI”) agents without dialing any numbers,
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tampering with it, or turning it on in any way. Hogeland admitted that he could
neither identify the person who brought him the phone or the person to whom he
delivered the phone.
After Hogeland had testified, the government called Wilfredo Torres-
Negron, a special agent with the OSI, whose job it is to investigate crimes at Air
Force facilities. His testimony established that the cell phone was delivered to OSI
agent Biel, and that the cell phone remained within the OSI’s chain of custody.
The phone was taken out of the evidence locker one time for photos to be taken of
it, and then remained locked up, in unchanged condition, until it was brought to
trial. Torres-Negron testified that he could not say whether the phone remained in
the evidence room during each change of custodian. The phone further left the
evidence room on one other occasion, and was removed by another evidence
custodian for additional photos to be taken, at which point the phone was turned on
to “look for the numbers.”
The government then called Nextel Communications strategic care specialist
Cathy Casias, who handles billing issues for Nextel cell phone customers across
the United States. She testified that, after a customer places a cell phone call, that
call is automatically recorded by computer and logged into the customer’s account
within two hours. Casias accessed Wiggins’s account at the government’s
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direction, and Wiggins’s account showed that, on June 1, 2001, at 10:34 a.m., a
call was placed from phone number 352-516-4530 to phone number 813-754-7916
(PECC) in Plant City, Florida. On cross-examination, Casias admitted that
customers occasionally complain about calls showing up on their bills that they
didn’t make. However, with respect to Wiggins’s account, she testified that the
only way the computer could have made a mistake was if the cell phone number
itself had been cloned, and that Nextel’s security makes it difficult, although not
impossible, to clone a number.
Also testifying was Michael Little, who works in Nextel’s Information
Technology department for records and billing. Little explained that, when a
Nextel caller places a call, all of the information is relayed to a “switch” where
information is logged as a record that Little’s “area” retrieves by logging into the
switch and then sending the information to a billing system that electronically
invoices the call record. Little further explained that Nextel operates on a digital,
as opposed to analog system, the importance being that in an analog system, it was
possible to “pick” a cell phone’s serial number and subscriber number from
airwaves generated by an analog system, enabling someone to “clone” or
“replicate” another subscriber within the same switch used to generate the original
call, thereby permitting the person to make phone calls billed to a bona fide
7
subscriber. Since he had begun working with Nextel, Little could not recall ever
encountering a “true clone.” However, Little also testified that Nextel’s billing
system would “error out” an attempted “clone” call due to mismatches in certain
subscriber-related information. Finally, Little testified that Nextel’s phones record
a date and time stamp sent from a tower to the phone every time a number was
dialed from that phone, and if a call were made from a particular phone at 10:34
a.m. on June 1, 2001, that number would immediately become stamped in the
phone’s memory and remain unchanged.
On cross-examination, Little stated that the computer used to generate
electronic billing records was not perfect and occasionally made mistakes. He also
testified that a cell phone’s memory is capable of storing at least the ten most
recently dialed numbers and that, after about ten calls had been made, the
subsequently dialed numbers would replace those in the memory, thus “purging”
the older numbers from the phone.
Next, OSI Agent Douglas Biel testified that he was assigned to the Cape on
June 1, 2001, received a call that day to respond to a bomb threat that had been
called into the Cape and, upon arrival, learned that the bomb threat was false. As
part of the investigation, Biel received a cell phone from Gary Hogeland and
recorded the information on Air Force form 52, and based on that form, testified
8
that the phone had been located at Patrick Air Force Base since June 1, 2001. Biel
testified that he had personally taken the phone apart for the purpose of taking
photographs of the phone and its components, and those photographs were
admitted at trial.
While investigating, Biel and another agent interviewed Wiggins, who
indicated that he had been at work the morning of June 1 and made a few a phone
calls to his wife and his union hall. After returning from break between 9:00 a.m.
and 9:30 a.m., Wiggins stated that he had the phone in his possession the entire
time with a 10-15 second lapse to avoid an obstacle, at which time Wiggins took
the phone off of his work belt but had it in his eyesight the entire time. At no point
did Wiggins indicate that he had given his phone to a coworker. Wiggins
consented to the government’s search of his phone records.
On cross-examination, Biel testified that, on June 1, 2001, Wiggins was not
employed by PECC, but rather by a different company, Precision Mechanical,
which did not receive a bomb threat. Biel admitted that, when he testified before
the grand jury, he made a mistake and gave the jury incorrect information
regarding Wiggins’s employer as of June 1, 2001. Biel also testified that nothing
in his investigation revealed Wiggins’s motive for calling in a bomb threat. He
further admitted that (1) he was not present when photographs of Wiggins’s phone
9
and the phone’s screen depiction were taken; (2) he was aware that Adrianna
Vorderbruggen was the photographer; and (3) the reason why her name was never
listed on Air Force form 52 was because, pursuant to OSI policy, the only person
who could sign the phone out of custody was the evidence custodian, who at that
time was Torres-Negron. It was further shown that, at the time Biel testified before
the grand jury, he had indicated that there were no numbers stored in Wiggins’s
cell phone caller identification. However, Biel testified that his testimony before
the grand jury was inaccurate and a mistake, as the cell phone’s call history had
numbers stored in it. Biel also testified that Wiggins’s employer was not important
to the investigation and that all of the workers at the Pad that day were evacuated
and did not return to work.
The government rested its case and Wiggins moved for a judgment of
acquittal pursuant to Fed.R.Crim.P. 29. Wiggins presented his own summary of
the government’s evidence and proceeded to argue that it was “not sufficient to
send this case to a jury so that they can guess and speculate as to the possibilities
out there.” Wiggins described those possibilities as follows: (1) Wiggins did it;
(2) someone else working with him did it; (3) the computer malfunctioned; and
(4) someone tampered with the phone and programmed the number in it after the
fact. Based on the foregoing, Wiggins argued:
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Jurors aren’t asked to guess and to speculate. . . . [T]his evidence is
not enough pointed at this defendant to go back to that jury. . . .
[T]hey would have to guess, to speculate. They couldn’t come back
and find this defendant guilty on that evidence. They could find
easily that that phone was used, but they can’t find he used it. . . . It’s
not their job to go back and connect the dots and guess and
speculate. . . . I say to this court that [the] evidence is not here in this
case today.
The district court reserved ruling on the motion pending presentation to the
jury. Wiggins then took the stand to testify on his own behalf. In June 2001,
Wiggins worked as a pipefitter for a local union hall installing piping systems,
valves, and clean flow systems. The union hall itself offered jobs to Wiggins
depending on the demands of local contractors and, as a result, Wiggins often did
not know in advance how long a particular job would last. Wiggins admitted that
he had been convicted of a felony. In March and April of 2001, Wiggins was sent
to work for PECC, and he reported no problems with his work, calling PECC a
“great company.” The job ended on April 10, 2001, at which point Wiggins
obtained another job, and eventually, Wiggins was hired by PECC again in
December 2001.
On June 1, 2001, Wiggins worked for Precision Mechanical at Launchpad
37 at the Cape. That morning, between 10:00 and 10:30 a.m., he was working
inside a small metal tower, standing on a ladder, and removing 50-60 pound iron
valves. Wiggins’s task was to hook the pipe valves on a rope and then lower them
11
down to the ground a few feet at a time, avoiding the other pipes, conduits,
hangars, and mechanical systems. At one point, Wiggins climbed around a valve
and his “phone got hung up on the rope from the valve, so [he] took the phone off,
tossed it down to [his] partner’s foot and asked him to sit it down.” Wiggins
testified that he then dropped his phone down from three stories to “Foots,”
another pipefitter, who caught the phone and held on to the phone for maybe 10 to
15 seconds. Soon after, Wiggins’s boss told him that everyone was being
evacuated and, as he and the other crewmembers were leaving, Wiggins received a
phone call and lost the signal.
After he regained a signal, Wiggins received another phone call from a
person he identified as Ms. Jinks (Parish) from Cape Canaveral security, asking
Wiggins if he had placed a bomb threat with that phone. Wiggins denied that he
had and then complied with Jinks’s instructions, describing his clothing and
agreeing to meet a security officer as requested. He testified that he was
interviewed and did his best to cooperate with the government’s investigation and
told agents about “Foots.” As to the government’s theory of motive, i.e., that
Wiggins wanted to start a long weekend early, Wiggins testified that he was
scheduled to work Friday, Saturday, Sunday, and Monday, and that he preferred
working on weekends because the pay was higher. Wiggins did not recall ever
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seeing Foots again and, while he was willing to state that it was possible that
someone else placed the bomb threat after he had relinquished control of his phone,
Wiggins was unwilling to do so because he did not know for certain whether that,
in fact, was what happened.
On cross examination, the government questioned Wiggins regarding the
written statement he gave to investigators knowing that there had been a bomb
threat called in to the Cape and that investigators believed the call originated from
Wiggins’s phone. In that statement, Wiggins stated that, when his phone got
caught on the rope, he sat the phone down for a “split second,” and no mention was
made of “Foots.” Wiggins admitted that there was a difference between a split
second and 10-15 seconds and he agreed that the investigators should have been
aware that Foots had Wiggins’s phone in his possession if, in fact, it were true.
Wiggins further admitted that, after a full day had transpired, he again failed to
inform investigators that “Foots” had possession of Wiggins’s phone, stating that it
must have slipped his mind.
Next, the government presented Wiggins with his old cell phone and, after it
had been turned on, Wiggins admitted that the call history revealed that, on June 1,
2001, one of the calls was received at 11:08 a.m. and that the number was 321-867-
7627, the number of the security dispatcher, Jinks (Parish). Wiggins did not
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dispute receiving that call. The phone also revealed that a phone call had been
made at 10:34 a.m. to 813-754-7916, and Wiggins admitted that the phone call had
been made to that number, which belonged to PECC. Finally, Wiggins admitted
that he had twice been convicted in state court for writing worthless checks. On
redirect, Wiggins reiterated that he had not phoned in a bomb threat and had no
idea how the bomb threat got called in. Wiggins rested his case and reserved his
Rule 29 motion for judgment of acquittal.
After closing arguments, the district court instructed the jury regarding the
government’s burden of proof beyond a reasonable doubt, the equal weight to be
given to direct and circumstantial evidence, and the credibility of witnesses. The
jurors were instructed that, in order to convict Wiggins, the government had to
prove that he (1) made or caused to be made a threat to kill, injure, or intimidate
any individual or to unlawfully damage or destroy a building by means of fire or an
explosive; (2) used or caused to be used an instrument of commerce, such as a
telephone, to communicate the threat; and (3) did so knowingly and willingly. The
jury convicted Wiggins.
The court then gave Wiggins a chance to argue his Rule 29 motion for
judgment of acquittal, and he adopted his original argument and further argued that
he worked for a different company than PECC at the time of the bomb threat. He
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also argued that he had taken the stand and denied making the call, a statement that
was essentially unrefuted by any direct evidence. Wiggins stated that none of the
circumstantial evidence proved that he dialed the number on the phone and,
therefore, the government had not proven that he was the caller, requiring that he
be acquitted. The court denied the motion and found that Wiggins’s testimony at
trial was different from the statement he made to investigators right after the bomb
threat had been made, giving the jury the right to choose whether to believe
Wiggins’s testimony. Because the inconsistencies gave the jury a reasonable basis
for disbelieving Wiggins, the court found that the jury had a reasonable basis for
entering the verdict that it did. Wiggins was sentenced to 18 months’
imprisonment.
On appeal, Wiggins argues that the district court erred by denying his
motion for a judgment of acquittal because the evidence failed to show that
Wiggins made a bomb threat. He argues that the jury’s verdict was predicated on
unreasonable inferences and speculation based on circumstantial evidence,
meaning that the government did not satisfy the Due Process Clause’s requirement
that a defendant’s guilt be proven beyond a reasonable doubt. Wiggins argues that
the government was unable to show that Wiggins actually made the call or was on
the phone at the time of the bomb threat on June 1, 2001, and that the testimony
15
indicating that Wiggins, who is white, sounded “like a black guy” and was
“shocked” undercut any inference to the contrary. Finally, Wiggins argues that the
government cannot rely on the fact that Wiggins testified in order to support his
conviction on appeal because the issue is whether the government established its
case in chief. If it were otherwise, Wiggins argues that he would, in essence, be
forced to give up his right to testify in order to preserve his sufficiency of the
evidence argument on appeal, which impermissibly would force defendants to
surrender one constitutional right for another.
We review a challenge to the sufficiency of evidence de novo. United States
v. Silvestri, 409 F.3d 1311, 1327 (11th Cir. 2005). A guilty verdict will not be
disturbed unless, “given the evidence in the record, no trier of fact could have
found guilt beyond a reasonable doubt.” Id. (quotation omitted). When evaluating
the sufficiency of the evidence, we examine “the evidence in the light most
favorable to the government, drawing all reasonable inferences and making all
credibility choices in the government's favor.” Id. Furthermore, “it is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every conclusion except that of guilt, provided that a
reasonable trier of fact could find that the evidence established guilt beyond a
reasonable doubt. A jury is free to choose among the constructions of the
16
evidence.” United States v. Calderon, 127 F.3d 1314, 1324 (11th Cir. 1997).
Finally, we are “bound by the jury’s credibility determinations, and by its rejection
of the inferences raised by the defendant.” United States v. Peters, 403 F.3d 1263,
1268 (11th Cir. 2005).
In order to convict Wiggins under 18 U.S.C. § 844(e), the government was
required to prove that Wiggins (1) used a telephone or other instrument affecting
interstate commerce; (2) made a threat concerning an attempt to kill, injure, or
intimidate any individual or to unlawfully damage or destroy any building by
means of fire or an explosive; and (3) did so willfully. See 18 U.S.C. § 844(e).
The evidence in this case, taken in a light most favorable to the government,
supports a reasonable inference of guilt. Testimony at trial established that a call
was placed to PECC from a phone whose number was traced to Wiggins’s cell
phone and account with Nextel. The account records showed that a call was placed
from Wiggins’s phone, number 352-516-4530, to PECC, number 813-754-7916, at
10:34 a.m. on June 1, 2001. The phone’s “call history” also indicated that the call
was made. The caller stated that there was a bomb located at “the Cape,” or Cape
Canaveral. During an interview with OSI agents, Wiggins stated that he had the
phone in his possession or within eyeshot the entire morning. Finally, there was
testimony indicating the improbability that the phone call was generated from
17
either a “cloned” number or was a “computer error” in light of the fact that the
phone itself had date stamped the phone call, date, and time.
Wiggins argues that the jury could not have found him guilty beyond a
reasonable doubt based on this evidence because it lends nearly equal support to a
theory of guilt and a theory of innocence, citing Cosby v. Jones, 682 F.2d 1373,
1383 (11th Cir. 1982). This argument is misplaced. The evidence viewed in a
light most favorable to the government demonstrates only that the government did
not have a direct witness to Wiggins placing the phone call. This is not surprising
given the brevity of the phone call and the location from which the phone call was
made. Wiggins makes much of the fact that a witness testified that the caller
sounded “like a black guy” and that when asked about whether he had called in a
bomb threat, a witness said he “sounded shocked.” But that evidence does not
change the fact that Wiggins’s cell phone and cell phone account records
demonstrated that, on June 1, 2001, a phone call was made from his phone to
PECC, a phone call was made from security to his cell phone shortly thereafter,
and the cell phone was in his possession or eyeshot throughout the morning.
Furthermore, Wiggins chose to testify on his own behalf, testifying that, at
some point that morning, just prior to being evacuated from the premises, he
dropped his phone 35 feet through pipes, conduits, hangars, and mechanical
18
systems to “Foots,” who had the phone for at least 10-15 seconds before Wiggins
retrieved it. As we have held, “when a defendant chooses to testify, he runs the
risk that if disbelieved the jury might conclude the opposite of his testimony is
true.” United State v. Brown, 53 F.3d 312, 314 (11th Cir. 1995). “[A] statement
by a defendant, if disbelieved by the jury, may be considered as substantive
evidence of the defendant's guilt.” Id. Here, it was the jury’s province to gauge
Wiggins’s credibility, and it was free to disbelieve his testimony. See Peters, 403
F.3d at 1270 (“[i]t is the jury’s prerogative to disbelieve a defendants
testimony. . . .” (quotation and citation omitted). Given that Wiggins’s testimony
conflicted with the statements he gave OSI agents and Wiggins had two prior
felony convictions for writing worthless checks (crimes of dishonesty), it was not
unreasonable for the jury to disbelieve Wiggins’s testimony or, for that matter, his
theory of innocence.
Wiggins seeks to circumvent Brown by arguing that there was no
corroborative evidence to support an inference that Wiggins made the phone call.
See, e.g., United States v. McCarrick, 294 F.3d 1286, 1293 (11th Cir. 2002)
(holding that, under Brown, there must be some corroborative evidence in addition
to the defendant’s testimony to affirm a jury’s guilty verdict). This argument is
without merit. The government’s case, as noted above, proved that the call was
19
made from Wiggins’s phone and, prior to Wiggins taking the stand, Agent Biel
testified that Wiggins had stated that the phone was in his possession or eyeshot at
all times during the morning of June 1, 2001. No mention was made of “Foots” or
the fact that someone other than Wiggins might have had possession of the phone
for a sufficient length of time to make the phone call. While there was no direct
witness to the phone call, the circumstantial evidence, taken in a light favorable to
the government, supported an inference that Wiggins, and not someone else, made
the phone call. This inference is a reasonable one, especially in light of testimony
establishing that it was highly improbable that the call was a computer error or
made from a “cloned” number. As noted above, the evidence need not exclude
every possible hypothesis of innocence. Thus, there was corroborating evidence
supporting a reasonable inference of guilt.
Wiggins’s final argument is that the rule in Brown creates “an intolerable
situation wherein a criminal defendant is forced to give up his right to testify in
order to preserve a sufficiency of the evidence argument on appeal.” However, as
we noted in Brown, “a defendant who chooses to present a defense runs a
substantial risk of bolstering the Government’s case.” Brown, 53 F.3d at 314. “A
defendant whose motion for acquittal at the close of the Government’s case is
denied must decide whether to stand on his motion or put on a defense, with the
20
risk that in so doing he will bolster the Government case enough for it to support a
verdict of guilty.” Id. (quotation and citation omitted). Wiggins could have
decided not to testify, but having chosen to do so, he ran the risk that the jury
might disbelieve his story. We conclude that Wiggins’s testimony, combined with
corroborative evidence viewed in a light most favorable to the government,
supported a reasonable inference of guilt. We, therefore, affirm Wiggins’s
conviction.
AFFIRMED.
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