Filed 6/30/21 P. v. Rojas CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076643
Plaintiff and Respondent,
v. (Super. Ct. No. SCS300326)
ARMANDO FLORES ROJAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Garry Haehnle, Judge. Affirmed.
Britton Donaldson, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorneys General, Charles C.
Raglan and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and
Respondent.
Armando Flores Rojas challenges his conviction for importing a
controlled substance after nearly four kilograms of cocaine was found hidden
inside his truck. He contends that comments made by both the prosecutor
and the court prejudiced his trial. We reject his arguments and affirm the
judgment, finding little in the record to substantiate his claim of error, and
even less to support his assertion of prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
While attempting to cross from Mexico into the United States in the
early morning hours, Rojas was stopped by border patrol agents after one of
their trained dogs alerted to his Dodge Ram truck. Agents initially recovered
two packages from Rojas’s vehicle that turned out to contain cocaine.
Subsequent searches of the truck yielded more cocaine. In all, almost four
kilograms was discovered hidden in different areas within the cab of the
truck, including underneath the dashboard, near the steering column and
under the rear mounting brackets of the car seats.
Rojas owned the truck, and he indicated no one else had done work on
his vehicle. The cocaine was packaged in a cellophane material that had
been slathered in a black, greasy substance and wrapped along with “Little
Trees” air fresheners. These same air fresheners were found elsewhere in
Rojas’s car. His hands were also streaked with black grease.
The San Diego County District Attorney charged Rojas with three
felony counts: (1) importation of over one kilogram of cocaine (Health & Saf.
Code, § 11352, subdivision (a)), (2) possession of over one kilogram of cocaine
for sale (Health & Saf. Code, § 11351), and (3) using a false compartment to
smuggle drugs (Health & Saf. Code, § 11366.8), along with some additional
allegations.
2
At Rojas’s trial, the primary contested issue was whether Rojas knew
about the cocaine in his truck. The prosecution offered significant
circumstantial evidence that he did, including recorded conversations
between Rojas and his girlfriend, Lydia Ochoa, indicating that Rojas was in
the drug business.1 Julian Villagomez, an expert who reviewed the calls and
testified for the prosecution, thought Rojas was coaching Ochoa to continue
selling cocaine while he was in jail. Although they used the terminology of
“screws” and “boxes of screws,” to discuss their product, in the expert’s
opinion this was a thinly veiled reference to narcotics. The “screws” were
sold for $600 per box, and in quantities corresponding to weights often used
in drug sales—28 grams per ounce.
Other details from the calls supported this interpretation. In one call,
Ochoa told Rojas she was carrying something in her socks and had flushed it.
Rojas also repeatedly told Ochoa to be careful, and although some of these
admonitions might have been on account of Ochoa’s recent pregnancy,
Villagomez thought Rojas was concerned Ochoa could get hurt or ripped off
by a client during a sale, particularly because she was a woman. He also
opined that Ochoa became increasingly comfortable over time with her new
role, and even began making her own decisions about how to deal with
customers. All of this led Villagomez to conclude that both Rojas and Ochoa
were “very actively involved in the sales and distribution of narcotics.”
In addition to the phone calls, the prosecution submitted and compared
Rojas and Ochoa’s recent border crossing histories. In the six months leading
up to Rojas’s arrest, he crossed the border in his Dodge truck 55 times.
During that same period, Ochoa’s crossing history showed a strong pattern:
1 These recordings were from both Rojas’s jail calls and in-person
visitation.
3
most of the time, she crossed as a pedestrian around the same time that
Rojas was crossing in the Dodge. This indicated that Rojas and Ochoa were
actually crossing together, but that Ochoa left the truck temporarily and
walked across the border to distance herself from the Dodge and, presumably,
the controlled substance it carried—a “common technique” in drug
smuggling.
The defense provided an alternative theory that Rojas was the victim of
unknown drug smugglers who used him to get their product across an
international border. As to the other evidence, the defense generally sought
to undermine the People’s witnesses and suggested innocent explanations for
Rojas’s conduct.
Rojas was convicted on count one, for importing cocaine, but on the
other two counts—possession of cocaine for sale and using a false
compartment to smuggle drugs—the jury deadlocked 11‒1 in favor of guilt.
The court declared a mistrial as to those counts and granted the People’s
subsequent motion to dismiss.
DISCUSSION
Rojas raises two issues on appeal, claiming (1) that certain remarks
made by the prosecutor in closing argument diluted the People’s burden of
proof, and (2) that comments the trial judge made during voir dire about
collaborative courts impermissibly invited the jury to consider punishment in
determining guilt. As we explain below, we find no prejudicial error in either
instance.
1. Closing Argument
Rojas asserts that the prosecutor’s closing argument misled the jury by
conflating a reasonable inference with the reasonable doubt standard and
referencing the philosophical principle of Occam’s razor in his rebuttal. We
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address each of these contentions, but ultimately find no prejudice. Most of
the prosecutor’s argument was proper, and Rojas fails to demonstrate that
the only truly questionable comment created a reasonable likelihood that the
jury misapplied the reasonable doubt standard.2
Since the primary issue was whether Rojas knew about the cocaine, the
prosecutor focused his closing argument on the knowledge element in counts
one and two,3 highlighting the circumstantial evidence that tended to show
Rojas was aware of the drugs. He went over Rojas’s jails calls and argued
these communications showed that Rojas was “actually and actively selling
and moving drugs.” He recounted Rojas’s border crossing history with Ochoa,
which tended to show they both knew there were drugs in the truck. He
further reminded the jury that there was black grease found on both the
packages and the defendant’s hands, arguing that “in this particular case, the
grease quite literally puts the drugs in defendant’s hands just prior to
crossing the border.”
Beyond all of this, the prosecutor critiqued the defense’s theory of the
case by walking through the steps that hypothetical criminals who hid the
cocaine in Rojas’s car without his knowledge would have had to do.
Specifically, they would have had to break into Rojas’s car multiple times
without being seen to identify good hiding places for the drugs, modify the
cab, stuff the various compartments, and put everything back together
inconspicuously. Then they would have had to track Rojas and wait for
2 In recognition that his defense counsel did not timely object, Rojas also
raises an ineffective assistance of counsel claim, which we need not reach
since we conclude he was not prejudiced.
3 Both crimes require the prosecution to prove the defendant knew about
the presence of the controlled substance. (CALCRIM Nos. 2300 and 2302.)
5
another opportunity to break into his car again to recover their product. The
prosecutor argued that this theory was not a reasonable interpretation of the
evidence.
Contrary to Rojas’s assertions, these comments—which account for
most of the prosecutor’s references to “reasonableness”—were proper.
“Advocates are given significant leeway in discussing the legal and factual
merits of a case during argument” (People v. Centeno (2014) 60 Cal.4th 659,
666 (Centeno)), and it is permissible for a prosecutor “to argue that the jury
may reject impossible or unreasonable interpretations of the evidence and to
so characterize a defense theory.” (Id. at p. 672.) The prosecutor was well
within permissible bounds in arguing that the defense theory was not
reasonable, and that the jury should look at the evidence in aggregate. (Ibid.)
But one of the prosecutor’s statements about reasonableness falls
somewhat outside these permissible bounds. After arguing (as an analogue
to the defendant’s car) that it was certainly reasonable to infer the prosecutor
knew the contents of his own briefcase, he went on to say, “But even if we
stopped right there, you could find beyond reasonable doubt, reasonable, that
[Rojas] knew the drugs were there. You could. That is reasonable. It is
common sense. It is common sense right there.”
The problem with this statement is the potential conflation of the
reasonable doubt standard with a common sense inference. Prosecutors may
not make statements that could be interpreted by the jury as reducing their
burden to prove each element of the charged crimes beyond a reasonable
doubt. (Centeno, supra, 60 Cal.4th at p. 666.) And “it is error for the
prosecutor to suggest that a ‘reasonable’ account of the evidence satisfies the
prosecutor’s burden of proof.” (Id. at p. 672.) Although this might have been
no more than an attempt to explain how circumstantial evidence can satisfy
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the reasonable doubt standard, the prosecutor’s invocation of “common sense”
at the same time as “reasonable doubt” risked blurring the line between these
two concepts.4
Rojas likens his case to one of the errors identified in Centeno, supra,
60 Cal.4th 659, where the prosecutor’s extensive remarks on
reasonableness—in which she repeatedly asked the jury if it was more
reasonable to believe the defendant or the victim as to various aspects of the
case—“left the jury with the impression that so long as her interpretation of
the evidence was reasonable, the People had met their burden.” (Id. at
p. 672.) Here, in contrast, almost all the prosecutor’s comments on
reasonableness were confined to characterizing the defense’s theory as
unreasonable—a tactic explicitly approved in Centeno. (Ibid.) And unlike in
Centeno, here there was no climactic syllogism urging the jury to conclude the
defendant was “good for” the charged crimes because “that is what is
reasonable.” (Ibid.) Another case Rojas invokes, People v. Ellison (2011)
196 Cal.App.4th 1342, 1352 (Ellison) is similarly inapt; there, the prosecutor
argued more than once that the reasonable doubt standard was satisfied
unless it was reasonable to believe the defendant was innocent. That was a
clear misstatement of the law, but not akin to the argument here.
Returning to the most problematic statement in this case, even if we
were to deem it an error, it is nonetheless harmless unless the defendant
demonstrates prejudice. To do so, he must show that, taken in the context of
the argument and jury instructions as a whole, “there was ‘a reasonable
likelihood the jury understood or applied the complained-of comments in an
4 In evaluating prosecutorial error, the intent of the prosecutor is
irrelevant. (People v. Hill (1998) 17 Cal.4th 800, 822‒823.)
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improper or erroneous manner.’ ” (Centeno, supra, 60 Cal.4th at p. 667.) And
reviewing courts “ ‘do not lightly infer’ that the jury drew the most damaging
rather than the least damaging meaning from the prosecutor’s statements.”
(Ibid.) In other cases that weigh prejudice in the wake of prosecutorial error,
the severity of the error is considered, along with whether the jury was
correctly instructed on the law, whether the court admonished the jury to
disregard improper statements, whether defense counsel objected, and the
strength of the evidence against the defendant. (Id. at p. 676; see also People
v. Otero (2012) 210 Cal.App.4th 865, 873 [the court’s admonishment that the
jury disregard improper argument, coupled with proper instruction on
reasonable doubt and a strong case against the defendant rendered
prosecutor’s error harmless]; People v. Katzenberger (2009) 178 Cal.App.4th
1260, 1269 [same]; People v. Mendoza (2007) 42 Cal.4th 686, 703 [court’s
admonishment and correct statement of the law cured the prosecutor’s
misstatement].)
Here, there was no objection or admonition. Those factors weigh in
Rojas’s favor. But every other relevant consideration does not. The jury was
formally instructed twice on the reasonable doubt standard and reminded of
it no less than seven times before closing arguments. During the prosecutor’s
closing argument, he reminded the jury of his burden on another three
occasions, stating twice that he had to prove each element of the charged
crimes beyond a reasonable doubt. In addition to these reminders, the jury
was also instructed to follow the law as the judge explained it and to do so
even if a statement by the attorneys conflicted with their instructions.
Apart from these correct statements of the law and reminders, other
relevant considerations indicate the jury understood and applied the
reasonable doubt standard properly. The jury deadlocked on two of the three
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counts charged, coming to a consensus that Rojas imported more than one
kilogram of cocaine, but not that he possessed that amount in order to sell it
or that he used a false compartment to smuggle drugs. This result alone
indicates that the jury deliberated on the individual elements of the crimes
rather than jumping to an undifferentiated conclusion. (See Ellison, supra,
196 Cal.App.4th at p. 1353 [the jury’s acquittal of the defendant on some
counts demonstrated “that it understood the applicable burden of proof as it
was instructed, and applied it to the defendant’s advantage”].) It also sent a
note asking whether possession of more than one kilogram of cocaine implies
an intent to sell under the law, which indicates that the jury grappled with
the extent to which the volume of cocaine in Rojas’s car provided
circumstantial evidence that he planned to sell it. All of this points to a
discerning and critical jury focused on its proper task. Coupled with the
strong evidence presented against Rojas, it is not reasonably likely that the
prosecutor’s statement obfuscated the reasonable doubt standard and caused
the jury to misapply it. On this record, we find no reason to depart from the
“ordinary” conclusion that the jury followed the court’s instructions as to the
law and disregarded any improper standard implied by the prosecutor.
(People v. Osband (1996) 13 Cal.4th 622, 717.)
The other comment that Rojas highlights is the prosecutor’s invocation
of Occam’s razor in his rebuttal. He stated as follows: “In cases like this,
I like to think of a theory known as Occam’s razor. I don’t know if anyone has
heard of it. But Occam’s razor is a principle from philosophy. And Occam’s
razor says this: All things being equal, the simplest answer is usually the
correct one. [¶] And when we look at the facts and the evidence here, you
can come up with a million explanations for any piece of evidence, right.
A million innocent explanations. [¶] But when you look at the totality of the
9
circumstances, all things being equal, the simplest answer is that this
defendant, in his truck with the compartments with the drugs, is the one that
knew that the drugs were there.”
Taken in context, this commentary did not, as Rojas suggests, dilute
the People’s burden. The prosecutor was responding to the defense’s closing,
in which defense counsel argued one point above all—that there was
reasonable doubt as to whether Rojas knew the drugs were there. In support
of the unwitting drug mule theory, she argued that a network of drug
smugglers could have observed Rojas’s border crossing patterns over time,
broken into his truck relatively quickly, and stashed cocaine inside of it
without detection. She further asserted that the changes to the truck were
not very obvious and that unreported crimes are ubiquitous south of the
border, where drug smugglers hardly balk at committing additional lawless
acts in service of their primary criminal enterprise.
The prosecutor’s reference to Occam’s razor was a counterpoint to all of
this, illustrating that the simplest explanation for the presence of the cocaine
in Rojas’s car was that he knew about it because he put it there. And
although the prosecutor stated the primary thrust of the principle—that the
simplest explanation is usually the correct one—he did not on that basis
alone urge the jury to convict, or otherwise muddle the standard of proof.
In fact, immediately following this comment, he explained that it is possible
for people to not be aware of items in their own car, but implied it is more
likely to happen to someone like an Uber driver or result in the discovery of
an errant cracker—not four kilograms of cocaine. In total, his invocation of
Occam’s razor did no more than illustrate that the defense theory was less
10
than reasonable.5 As we previously explained, such argument is entirely
permissible.6 (Centeno, supra, 60 Cal.4th at p. 672.)
2. Commentary on Collaborative Courts
In order to understand the comments the trial judge made about
collaborative courts, it is helpful to first know the context. During voir dire,
no less than four potential jurors related difficult experiences with the
criminal justice system and/or expressed, to varying degrees, their hesitance
to be part of a jury. One prospective juror described a prior jury experience in
which they felt rushed to return a verdict. This same individual taught at a
prison and a juvenile facility, and expressed a desire to “bring people out of
prison” rather than being a part of “putting them in.”7 This teacher also
disclosed that a student was brutally assaulted in prison and nothing was
done about it.
A second prospective juror described their spouse’s prior jury service in
a case where the police, acting on a bad tip, went to the wrong house and shot
an innocent person—and then spent significant energy “covering . . . each
other’s backs” for the mistake. A third prospective juror simply expressed,
5 For an example of similar use, see People v. Pope (Ill.Ct.App. 2020)
157 N.E.3d 1055, 1069, where the prosecutor’s reference to Occam’s razor to
demonstrate that “the defendant’s explanation required the jury to assume
‘everyone [else] is lying’ ” was deemed proper.
6 This is not to approve the use of a concept like Occam’s razor for any
purpose in any closing argument. “[T]inkering with the explanation of
reasonable doubt is a voyage to be embarked upon with great care” (Centeno,
supra, 60 Cal.4th at p. 671), and this is no less true of philosophical
principles than of visual aids.
7 In response to this comment, the court clarified, “that is not for you to
decide whether or not they are going in. That would be a decision I make,
whether or not the defendant goes to prison or not.”
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“I have opinions about the justice system and about the court system.
I haven’t been living under a rock for the last 25 years. So it’s kind of
questionable whether I can be a fair and impartial juror at this point.”
A fourth prospective juror relayed a personal experience with a drug
conviction about twenty years ago, saying these previous addiction issues
were “horrible” and that going through the legal system caused additional
pain.
After the attorneys finished questioning the prospective jurors, the
court paused to respond to these comments and offered the following
perspective:
“Before I begin and thank and excuse some jurors, I want to
take this moment . . . . I really want to apologize for those
people who, through themselves or through people they
know or through other members of the community, feel like
the justice system and the court system has let them down
or is not doing what it should be doing, and I want to
apologize to you. . . . [¶] Justice doesn’t necessarily mean
guilty verdicts and stiff sentences. [¶] The word ‘sentence’
over the years has come to a meaning of something
negative. Here in California, especially here in San Diego,
we have a number of collaborative courts. Those are courts
that work with members of the community to deal with
veterans’ issues, mental health issues, drug addiction . . . .
[¶] And in those courts, the people that are assigned to
those courts make it through those once they have been
convicted, but part of their sentence is the treatment
program. It’s not a punishment. It’s not a sentence to
prison. It’s a treatment program. [¶] If they finish those
treatment programs successfully and prove that they can
be valued members of our community, they get some of
their cases dismissed because of that, if the case is more
due to their mental health or due to their drug addiction or
due to mental health indications that they suffered when
they were in battle or through the military. [¶] So I just
want to put out to you that we are working on the court
system very hard, and we’re trying to make sure it gets
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better and better every day. [¶] And just for those of you
who may have been taken aback by it, I just want to
apologize and let you know we are working as hard as we
can to be about that. So I just wanted to put that out
there.”
Although she made no objection at the time, a few days later Rojas’s
attorney expressed her concern to the court that a juror might interpret its
comments to mean Rojas could be sentenced to drug court and take
convicting him less seriously as a result. In response, the court promised it
would address the issue and make sure the jury was “very clear” that, in the
event of a guilty verdict, “whatever becomes of Mr. Rojas is totally up to me,
and they are not to take that into consideration one way or the other.”
At the end of the trial, the court instructed the jury to “reach your
verdict without any consideration of punishment” and elaborated, “Ladies
and gentlemen, when I talk to you about reaching your verdict without any
consideration of punishment, that goes all ways. Whether or not he is going
to be eligible for any programs I told you about or whether or not he is going
to go to prison, that is for me to decide and is outside of your purview. Your
job only is to decide whether the evidence has convinced you beyond a
reasonable doubt that the defendant is guilty.”
The defense expressed no further concerns after this clarification, but
on appeal Rojas now takes the position that the court only deepened the
damage from its earlier comments by bringing up collaborative courts a
13
second time.8 He argues that the trial court erred by “failing to tell the jury
NOT to consider punishment” and points to the jury’s vote split and the
nature of the counts as evidence of prejudice. Putting aside the question of
whether this issue was even preserved, as is our purview (People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6), we disagree with Rojas on both points.
He is certainly correct that punishment is an impermissible
consideration for juries. (People v. Mendoza (1974) 37 Cal.App.3d 717, 727;
People v. Moore (1968) 257 Cal.App.2d 740, 750.) But we do not share his
view of what was communicated during the final jury instructions, nor his
assessment of prejudice. Regarding the first issue, the trial judge did tell the
jury not to consider punishment. He did this precisely when he instructed
them to reach their verdict without any consideration of punishment. He
then reiterated the point when he told the jury Rojas’s punishment was “for
me to decide” and “outside of your purview.” As a final word on the matter,
he directed them to focus on their only task: determining guilt using the
reasonable doubt standard. We presume the jurors understood and followed
these instructions. (People v. Delgado (1993) 5 Cal.4th 312, 331.)
As to prejudice, Rojas contends that the only charge he was convicted
of, importation, is a crime relating to addiction; he characterizes the other
counts—possession for sale and use of a hidden compartment—as related to
8 We find this reasoning dubious for two reasons. First, the judge
addressed his earlier comments at the request of defense counsel, which
rather lessens the force of Rojas’s complaint. (See, e.g., People v. Payton
(1992) 3 Cal.4th 1050, 1068 [disfavoring appellate argument that the court
should have answered a jury note regarding a factual matter where defense
counsel asked the court not to respond].) Second, we are hard pressed to see
how a corrective comment directing the jurors not to consider Rojas’s
postconviction fate in their deliberations would prompt them to do exactly
that.
14
the business of selling drugs. And because the jury deadlocked on the latter
two crimes with an 11‒1 split favoring guilt, he suggests there was a single
holdout juror who viewed this case as fundamentally driven by Rojas’s
addiction. That juror, as Rojas tells it, might have been encouraged by the
court’s comments to convict on what he characterizes as the addiction-related
count, thinking Rojas could then receive treatment for his problem in a
collaborative court setting.
This rather creative framing of the case does not withstand scrutiny.
Someone who is caught importing almost four kilograms of cocaine is not
merely dogged by the personal demon of addiction. Nor could the jury be
under that illusion. In addition to all of the evidence indicating Rojas
regularly imported and sold large quantities of a controlled substance, the
People also presented testimony about the business of drug distribution,
including an explanation that “users” usually purchase “street level small
amounts [for] personal use because of their addiction” that consist of “gram or
half-gram” weights. A supply of drugs in the higher volume of ounces or even
quarter pounds occurs upstream in the supply chain, eventually reaching
“[k]ilogram levels.” The clear import of this testimony was that someone in
possession of kilograms of cocaine is much more than a user.
Returning to our analysis, we assess possible prejudice in light of “the
magnitude of the error and the closeness of the case.” (People v. Vasquez
(2017) 14 Cal.App.5th 1019, 1041.) The error here, if any, was minimal. The
court’s comments about improving the legal system every day, and offering
treatment to those who need it, were clearly a response to the prospective
jurors who voiced their negative experiences with the court and prison
systems. We believe anyone who was present for that exchange would have
understood that the court was apologizing to these potential jurors and
15
offering a perspective that might restore some of their faith in the fairness of
the criminal process. It could hardly have been taken as an invitation for
jurors to consider sending Rojas to a treatment program by convicting him for
that purpose. And insofar as the comments could have planted that idea in a
juror’s mind, the court explicitly instructed the jurors right before they
deliberated to put away any such notions and focus on their proper role of
deciding whether Rojas violated the law.
As to the weight of the evidence, this case was not a close one. There
was overwhelming circumstantial evidence that Rojas knew about the
cocaine. Rojas and Ochoa’s border crossing histories and jail communications
alone provided compelling evidence that Rojas was not an unwitting mule.
The grease on his hands and the unlikelihood that someone else could have
packed his car with cocaine without his knowledge only strengthened the
People’s case. To that end, the jury’s deadlock on two of the three counts is
curious, but it seems that only one juror was unconvinced of Rojas’s guilt on
all three counts. We do not infer from that single juror’s position that this
case was a close one.
Given the minimal (if any) mistake by the trial court, the strong case
against Rojas, and the almost fantastical series of events that would have
had to take place for the court’s comments to result in an erroneous
conviction, we find no prejudice here even under the most stringent standard.
(See Chapman v. California (1967) 386 U.S. 18, 24.) There is no nontrivial
possibility that the court’s comments during voir dire inspired the holdout
juror to disregard all the other instructions as to reasonable doubt, the court’s
own curative attempt, and their role as a juror in order to indirectly send
Rojas to a treatment program via a felony conviction. We find “no indication
16
from the record that the trial court’s [comments] had such an effect.” (People
v. Jackson (1986) 177 Cal.App.3d 708, 714.)
DISPOSITION
The judgment is affirmed.
DATO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
IRION, J.
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