United States v. Wardrick

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4831

DONALD WARDRICK,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 96-4908

PORTEAL GROOM,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-95-294-PJM)

Argued: December 5, 1997

Decided: April 13, 1998

Before MURNAGHAN, HAMILTON, and MICHAEL,
Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

ARGUED: Mark Jeffery Kadish, LAW FIRM OF MARK J. KAD-
ISH, Atlanta, Georgia, for Appellant Groom; Edward Smith, Jr., Bal-
timore, Maryland, for Appellant Wardrick. David Ira Salem, Assistant
United States Attorney, Stephen S. Zimmerman, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:
Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Donald Wardrick and Porteal Groom were convicted in the District
of Maryland for conspiracy to distribute heroin, 21 U.S.C. § 846, pos-
session of heroin with the intent to distribute it, 21 U.S.C. § 841, and
importation of heroin, 21 U.S.C. §§ 952, 963. The defendants appeal
their convictions, challenging several rulings and determinations
made by the trial court. Groom also appeals a three-level enhance-
ment imposed by the court at sentencing. Finding no reversible error,
we affirm.

I.

Wardrick and Groom were part of an international heroin smug-
gling enterprise which used young Americans as couriers to transport
the drug from Pakistan into the Washington, D.C. area. The story in
this case began in July 1994, when Minerva Mojica ran into her old
boyfriend, Donald Wardrick, while vacationing in Atlantic City, New
Jersey. Wardrick asked Mojica if she knew some people who would
be willing to "go out of town" and "make some money." Mojica
talked with two of her friends, Michael Sirianni and Jennifer Heitzen-

2
rater, who said that they were interested. Thereafter, in October 1994
Wardrick and Mojica met with Sirianni and Heitzenrater in Maryland
for initial discussions about the assignment. Wardrick informed Siri-
anni and Heitzenrater that they would be traveling to Pakistan as cou-
riers. Details came later. Wardrick arranged for passports and visas
for Sirianni and Heitzenrater. Wardrick gave them $5,000 for travel-
ing expenses, and he paid each of them $2,500, one half of the fee for
making the trip. Wardrick also gave them a set of new empty suit-
cases to take along. Sirianni and Heitzenrater were instructed to fly
to the Pakistani border town of Lahore by way of Karachi and Islam-
abad, and they were to stay at a hotel in Lahore called Falletti's. They
were told to wait at Falletti's until they were contacted by a man
named Mateen, who would exchange suitcases with them. They
would then bring Mateen's suitcases back to the United States and
give them to Wardrick. When they asked what they would pick up in
Pakistan, Mojica told them that it was "best that they didn't know."
Sirianni and Heitzenrater made the trip in November 1994, and every-
thing occurred as Wardrick had planned. Upon their return to the
United States, the couriers met Wardrick and Mojica in Atlantic City.
The four then drove to Maryland, where Heitzenrater turned the suit-
cases full of drugs over to Wardrick.

In the meantime, Wardrick had introduced Mojica to Porteal
Groom, who told her that he had made the journey to Pakistan himself
on a prior occasion. Wardrick later told Mojica that he and Groom
were partners who had invested in an earlier trip which had fallen
through because the heroin "wasn't right or something."

Wardrick contacted Sirianni again in December 1994 to recruit
other couriers to make the same trip to Pakistan, again for the same
fee. Sirianni contacted three of his friends, who made a trip in January
of 1995. At Wardrick's request, Sirianni also located three couriers
for a third trip in July 1995. The arrangements for the third trip were
the same as before, except that the exchange of suitcases was to take
place at the Kabana Hotel in Lahore rather than Falletti's. The three
couriers successfully completed the first part of the assignment, but
they were stopped by Pakistani Customs at Karachi Airport on their
way home. Pakistani Customs Inspector Abrar Ahmed detected
bulges in the lining of the suitcases carried by the couriers. When he
cut the linings open, he found 139 polythene bags containing 12 kilo-

3
grams of an off-white powdery substance. Ahmed field-tested the
substance, determined that it was heroin, and arrested the three couri-
ers. The drugs were kept in a government evidence warehouse in
Karachi until the next day when Ahmed forwarded samples to the
Pakistani National Health Laboratory in Islamabad. There, a govern-
ment chemist tested the samples and confirmed that they contained
heroin.

While being interrogated by Pakistani Customs, the couriers
revealed that they were to meet Sirianni at JFK Airport in New York
City. They also implicated Wardrick and Mojica. The Customs offi-
cial, Javaid Mughal, notified United States DEA agents in Pakistan,
who in turn contacted their colleagues at home. DEA agents appre-
hended Sirianni at the Pakistani International Airlines terminal at JFK
while he was waiting for the couriers to arrive. Sirianni thereafter
agreed to cooperate with the authorities.

The DEA used Sirianni to arrange a controlled delivery of the
heroin-laden suitcases at a Maryland hotel on July 13, 1995. One of
the DEA agents paged Wardrick using a code Sirianni had previously
used to get in touch with him. Wardrick and Mojica were together on
the evening of July 13 when Wardrick received the pages. Wardrick
told Mojica at that time that he had to meet Groom to talk about Siri-
anni. At about 10:30 that night, Wardrick and Mojica drove to the
hotel where Sirianni and the DEA were waiting. Groom came to the
hotel in a separate car. The agents observed Groom shifting from
location to location around the parking lot, performing what appeared
to be counter-surveillance. Groom made 39 cellular phone calls in
four hours, including eight to Wardrick's pager number. Groom also
called the cellular phone number of the heroin contact in Pakistan
from a nearby pay phone.

Wardrick instructed Mojica to call Sirianni from a pay phone and
ask him to come out and talk. Following instructions from the DEA,
Sirianni refused to leave his room, feigning illness. After a delay, Siri-
anni came out of the hotel with the suitcases, placed them on the side-
walk and returned inside. Upon Wardrick's instructions, Mojica was
to put the suitcases in a taxi in front of the hotel; she was to ride in
the taxi for a few blocks, meet Groom (who would be following) and
give the heroin to him. Mojica got no further than placing the suit-

4
cases into a taxi. At that point, Mojica, Groom and Wardrick were
arrested. Mojica later decided to cooperate with the authorities.

Wardrick and Groom were indicted, and trial was set for January 9,
1996. On December 15, 1995, the government was granted a continu-
ance (trial did not begin until May 21, 1996) because the prosecution
was taking steps to obtain evidence from the Pakistani government.
Thereafter, Wardrick's motion to dismiss for violation of the Speedy
Trial Act was denied.

At trial the government sought to introduce hotel records confirm-
ing the couriers' stay in Lahore. These records were admitted over
Wardrick's objection that they were not properly authenticated as for-
eign documents. The district court also admitted testimony about the
heroin seized in Pakistan over defense objection that the government
could not show an adequate chain of custody for the drugs. In addi-
tion, the court permitted expert testimony by Johnny Brown, a narcot-
ics consultant with the District of Columbia police department, who
testified about the methods of drug traffickers, including the use of
cellular phones and pagers.

Mojica also testified against Wardrick. While Mojica was in jail
awaiting trial, Mojica was shown a letter from Wardrick instructing
her to testify that Sirianni was "the man," that is, the person in charge
of the heroin operation. Mojica told the jury about the contents of this
letter. At the time, the court gave the jury a cautionary instruction,
stating that Mojica's testimony was admissible to show Wardrick's
criminal intent but that it was not admissible against Groom. When
Mojica unexpectedly testified that it was Groom and not Sirianni who
was "the man," the court repeated its cautionary instruction. The
court, however, denied Groom's motion for a severance.

Wardrick and Groom were convicted of conspiracy to distribute
heroin, possession with intent to distribute, and importation of heroin.
At sentencing Groom received an enhancement under§ 3B1.1 for
exercising management and supervisory responsibility in the conspir-
acy. Wardrick and Groom now appeal their convictions, and Groom
appeals his sentence.

5
II.

A.

Wardrick first argues that the district court erred in admitting regis-
ter entries and guest charges from the Pakistani hotels where the cou-
riers stayed. This evidence was admitted to place the couriers together
at the specific Pakistani hotels designated by Wardrick. Wardrick
argues that by failing to authenticate these records through the foreign
records certification procedure mandated by 18 U.S.C. § 3505, the
government forfeited the opportunity to introduce them at trial.

Section 3505 provides that a foreign record of a regularly con-
ducted activity shall not be excluded as hearsay if a foreign certifica-
tion attests that:

(A) such record was made, at or near the time of the
occurrence of the matters set forth, by (or from information
transmitted by) a person with knowledge of those matters;

(B) such record was kept in the course of a regularly con-
ducted business activity;

(C) the business activity made such a record as a regular
practice; and

(D) if such record is not the original, such record is a
duplicate of the original.

§ 3505(a)(1). A proper "foreign certification" requires a written decla-
ration by the custodian or "another qualified person" which subjects
the declarant to criminal penalty for falsification under the laws of the
foreign country. See § 3505(b) & (c)(2).

Here, each hotel custodian wrote the word "attested" and signed his
name on each page of the records. This, however, provided no real
indication that the hotel custodians were aware of or able to certify
that the records complied with the requirements of§ 3505(a)(1)(A)-
(D). As a result, the government offered the live testimony of Paki-

6
stani Customs Agent Mughal, who testified to each of the four statu-
tory requirements. The government argues that Mughal was "another
qualified person" under the statute because he had visited the hotels
and met with the custodians. Thus, according to the government,
Mughal became sufficiently familiar with the hotels' record keeping
systems to be able to lay a proper foundation for admissibility under
§ 3505.

The government relies on United States v. Hathaway, 798 F.2d 902
(6th Cir. 1986), a case in which an FBI agent's testimony that he was
familiar with the record keeping system of a corporation was suffi-
cient to authenticate the business records under the analogous busi-
ness records exception to the hearsay rule. See id. at 906; see also
United States v. Franco, 874 F.2d 1136, 1139-40 (7th Cir. 1989)
(holding that agent's "thorough description of the bookkeeping pro-
cess" qualified him to authenticate business records under Rule
803(b) despite not being custodian).

In this case, Mughal testified that he went to the hotels "a couple
of times" and was told that these records were made in the ordinary
course of business. We recognize that evidentiary rulings on the
admission of business records are left to the sound discretion of the
district court, and such rulings should be overturned only if the court
abused its discretion. See Franco, 874 F.2d at 1140. We are not con-
vinced that Mughal's testimony demonstrated a sufficient familiarity
with how records were kept at the hotels for him to pass muster as
a "qualified person" under the statute. His testimony does not reveal
the thorough understanding of a record keeping system that courts
require before an outsider can authenticate records. Accordingly, we
conclude that Mughal was not a qualified witness who could provide
a foreign certification under § 3505, and the hotel records were
improperly admitted.

Although the district court did err in admitting these records, its
error was harmless. The hotel records were offered for a very limited
purpose: to place the couriers together in Pakistan at hotels designated
by Wardrick. There is other evidence to connect the three couriers
with Pakistan, most notably their arrest there with heroin in their pos-
session. Furthermore, Mojica and Sirianni testified that Wardrick
instructed his couriers to go to these hotels in Lahore in order to pick

7
up the drugs. Given the weight of this other evidence, the documen-
tary evidence that the couriers signed registers and incurred charges
at two specific hotels in Pakistan fades in significance. Accordingly,
the district court's error in admitting the hotel documents under
§ 3505 was harmless.

B.

Wardrick further argues that the district court erred when it admit-
ted into evidence testimony that the packets of off-white powder
taken from the couriers in Pakistan contained heroin. He argues that
because the government failed to produce a witness from the Paki-
stani evidence warehouse, the chain of custody was broken between
the customs official who seized the contraband at the Karachi airport
and took it to the evidence warehouse and the National Health Labo-
ratory which received samples of the substance by messenger and
determined it to be heroin.

A determination by the trial court that an adequate chain of custody
has been established is reviewed for an abuse of discretion. See
United States v. Ricco, 52 F.3d 58, 61 (4th Cir. 1995). We have said
that:

precision in developing the "chain of custody" is not an
iron-clad requirement, and the fact of a missing link does
not prevent the admission of real evidence, so long as there
is sufficient proof that the evidence is what it purports to be
and has not been altered in any material aspect.

United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir. 1982)
(citations and internal quotation omitted). In Howard-Arias the prose-
cution failed to produce the DEA agent who transported bales of mar-
ijuana seized from a disabled boat to a DEA testing laboratory. It did
produce the Coast Guard officer who seized the marijuana, the officer
to whom he surrendered it, the DEA custodian at the laboratory and
the DEA chemist who tested the marijuana. We held that the purpose
of the chain of custody requirement is merely to"convince the court
that it is improbable that the original item has been exchanged with
another or otherwise tampered with." Id. Even though the one DEA

8
agent did not testify, we held that the district court did not abuse its
discretion in admitting the evidence. See id.

Here, the chain of custody of the heroin seized in Pakistan is suffi-
ciently clear from the testimony presented at trial. Pakistani Customs
Inspector Ahmed, who seized the heroin from the couriers, testified
that he hand-carried the substance to the evidence warehouse. He fur-
ther testified that the next day he sent samples of the contraband by
messenger to the National Health Laboratory. Mohammed Rajput, a
chemist at the Laboratory, testified that he received the evidence
intact and determined it to be heroin. Customs Agent Mughal testified
that he personally obtained more samples from the bags of heroin in
the evidence warehouse and gave it to DEA Agent Lowe. Agent
Lowe testified that these same samples were placed in sealed DEA
evidence envelopes in Pakistan and that the envelopes were trans-
ported to the United States by diplomatic pouch. The DEA chemist
testified that the envelopes were sealed when he received them. The
only missing link in the chain of custody is between the warehouse
and the Pakistani National Health Laboratory. We find this virtually
indistinguishable from Howard-Arias, where a missing link (the agent
who received the marijuana from the Coast Guard and transported it
to the DEA lab) did not prohibit the introduction of the drugs.
Accordingly, we conclude that the district court did not abuse its dis-
cretion in concluding that the chain of custody was sufficient to admit
into evidence the testimony that the powdery substance seized from
the couriers in Karachi was heroin.

C.

Mojica testified that while in jail awaiting trial a woman visited her
and showed her a letter from Wardrick. This letter, which had been
handwritten by Wardrick, instructed Mojica to implicate Sirianni as
"the man," that is, head of the heroin conspiracy. Mojica testified that
this was an attempt to persuade her to perjure herself because Groom,
not Sirianni, was the person in charge. Id. Wardrick challenges the
admission of Mojica's testimony about the contents of this letter for
purposes of establishing his guilt.

Over a century ago the Supreme Court held that an attempt to cause
a witness to perjure herself was itself evidence that "tend[s] to show

9
guilt." See Wilson v. United States, 162 U.S. 613, 621 (1896). We
have held that an attempt by a defendant to tamper with a witness is
admissible to show the defendant's criminal intent. In United States
v. Reamer, 589 F.2d 769 (4th Cir. 1978), the defendant met privately
with government witnesses prior to their trial testimony. Those wit-
nesses thereafter disavowed previous statements made to federal
agents. We upheld a jury instruction saying "if the jury found that the
defendant attempted to suppress evidence, it could consider such evi-
dence against him on the issue of consciousness of guilt." Id. at 770.
Here, Mojica testified that Wardrick told her in his letter to perjure
herself and implicate Sirianni (another conspirator cooperating with
the government) as the ringleader. In light of Wilson and Reamer the
district court did not abuse its discretion in admitting testimony on the
content of the letter as evidence of Wardrick's criminal intent.*

Groom also takes issue with the admission of the contents of the
letter, although for a different reason. He argues that the prosecution
improperly used Mojica's testimony about Wardrick's letter to impli-
cate Groom, despite the judge's instruction that the jury could only
consider the letter as evidence against Wardrick. Groom suggests that
the letter telling Mojica to lie, combined with her testimony implicat-
ing Groom as "the man," constituted a statement by a codefendant
(Wardrick) that implicated Groom. This, according to Groom, vio-
lated Bruton v. United States, 391 U.S. 123 (1968). In Bruton the
Supreme Court held that a defendant's Sixth Amendment right of
confrontation is violated when he is inculpated by a non-testifying
codefendant's prior statement. The Court held that such evidence
should not be admitted because the codefendant "cannot be tested by
cross-examination" without violating his Fifth Amendment rights. In
such situations, the trial court must either redact the codefendant's
statement or order a severance. See id. Groom argues that the district
court violated Bruton when it denied his motion for a severance.
_________________________________________________________________

* Wardrick also argues that permitting Mojica to testify as to the con-
tent of the letter violated the best evidence rule. Since the evidence
showed that the letter remained in the possession of one of Wardrick's
confederates (the woman who visited Mojica at the jail), and since
Mojica was available for cross-examination on the contents of the letter,
this argument has no merit.

10
In United States v. Campbell, 935 F.2d 39 (4th Cir. 1991), three
persons (Campbell, Best, and Gadson) were involved in a crack distri-
bution conspiracy. When Campbell was arrested, he spontaneously
stated that he had "gotten crack cocaine from Best." Id. at 43. At trial
Best cooperated with the government and testified to Gadson's role
in the conspiracy. Gadson argued that Campbell's post-arrest state-
ment (which was admitted at trial), combined with Best's testimony,
constituted a violation of Bruton. We rejected this argument because
"[s]tanding alone, Campbell's statement did not incriminate Gadson.
If the statement did incriminate Gadson in the manner he contends,
it is only because Best testified to Gadson's involvement in the con-
spiracy." Id. Since Best was available for cross-examination, Gad-
son's right of confrontation was not violated. See id.; accord United
States v. Locklear, 24 F.3d 641, 646 (4th Cir. 1994).

The facts in this case are similar to those in Campbell. Wardrick's
letter did not refer to Groom in any way. It referred to Sirianni. The
only possible connection to Groom is Mojica's testimony at trial.
Mojica, of course, was available for cross-examination on her state-
ment that Groom was "the man." Therefore, Groom's right to con-
frontation was not violated. Furthermore, the district court gave a
strong prophylactic instruction before Mojica's testimony, admonish-
ing the jury not to consider Mojica's testimony against Groom, and
repeating it after she was finished. Compare Locklear, 24 F.3d at 646
& n.2 (questioning whether limiting instruction was necessary in sim-
ilar situation). We therefore cannot say that the court abused its dis-
cretion in denying Groom's motion for a severance.

D.

Groom also challenges a three-level enhancement he received for
being a manager or supervisor in the conspiracy. Section 3B1.1 of the
Sentencing Guidelines provides for a three-level enhancement for a
defendant who "was a manager or supervisor (but not an organizer or
leader)." U.S.S.G. § 3B1.1(b). The Application Note for this section
sets forth the test to be used in determining whether a defendant was
a manager or supervisor:

Factors the court should consider include the exercise of
decision making authority, the nature of participation in the

11
 commission of the offense, the recruitment of accomplices,
the claimed right to a larger share of the fruits of the crime,
the degree of participation in planning or organizing the
offense, the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.

Id. App. Note 4. The district court's determination of a defendant's
management or supervisory role may only be reversed if clearly erro-
neous. See United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir.
1995).

In its factual findings at sentencing, the district court found that
Groom played a coordinating role in the heroin smuggling operation.
The court based this finding on evidence that Groom was Wardrick's
"partner" and that Groom made a number of phone calls to a heroin
contact in Pakistan while waiting for a delivery of drugs from Sirianni
outside a hotel in Maryland. Furthermore, Mojica testified that when
she was suspicious as to Sirianni's reluctance to meet her, she looked
to Groom for direction. From these facts, the court concluded that
Groom played a managerial or supervisory role in the conspiracy.
This was not clearly erroneous, so we affirm Groom's sentence.

E.

Wardrick also presented several other arguments. Because we find
them to be without merit, we will be brief in disposing of them.

1.

Wardrick claims that he was denied his right to a speedy trial
because the district court granted a continuance in order to permit the
government to obtain evidence from Pakistan. The Speedy Trial Act
permits a criminal trial to be delayed up to one year if "an official
request . . . has been made for evidence . . . in[a] foreign country."
18 U.S.C. § 3161(h)(9). The Act refers to a different section, 18
U.S.C. § 3292, for the definition of the term"official request." That
term is defined as:

a letter rogatory, a request under a treaty or convention, or
any other request for evidence made by a court of the

12
 United States or an authority of the United States having
criminal law enforcement responsibility, to a court or other
authority of a foreign country.

Section 3292(d) (emphasis added). Determinations of excludable time
are reviewed for clear error. See United States v. Revis, 48 F.3d 763,
770 (4th Cir. 1995).

Here, the government requested and received a continuance in
order to obtain evidence, namely drugs and packaging held by a Paki-
stani court. See JA at 44. This request was made to a Pakistani prose-
cutor on December 14, 1995, by telephone in an effort to shortcut the
more formal (and time consuming) diplomatic procedure of obtaining
a letter rogatory. The request by telephone is sufficient to constitute
an official request under § 3292, and the district judge did not err in
granting the government's motion for a continuance based on this
official request. The Speedy Trial Act permits the period (up to a
year) of such a continuance to be excluded. Wardrick was not denied
a speedy trial under the Act because his trial began within about five
months of December 15, 1995, the date the continuance was granted.

2.

Wardrick further complains about background testimony on the
heroin trade. Specifically, he points to the testimony of Johnny
Brown, who testified that drug traffickers frequently use pagers, cel-
lular phones and phone cards for communication. This testimony,
Wardrick argues, was impermissible character evidence.

We have repeatedly endorsed the use of expert testimony to illus-
trate the methods of drug trafficking, see, e.g. , United States v.
Gastiaburo, 16 F.3d 582, 589 (4th Cir. 1994), and we have specifi-
cally allowed testimony on the use of cellular phones and pagers by
drug traffickers, see United States v. Brewer , 1 F.3d 1430, 1436 (4th
Cir. 1993). Furthermore, Brown was careful to indicate that simply
carrying cellular phones or pagers is not evidence of guilt, noting that
he carried a pager himself. The district court did not err in admitting
Brown's testimony.

13
3.

Wardrick also argues that a note from the jury, delivered along
with the verdict, showed that the verdict was tainted. The note read:
"We have great concern for our safety, leaving the courthouse. Do we
have to report back to the Clerk's office?" The trial court responded
to this concern as follows:

THE COURT: With regard to your concern, I have, as
I say, no reason to belief [sic] that anything that's happened
untoward in this case, but in order to reassure you, what I've
arranged is I will ask everyone in the courtroom to remain
here, and you will be escorted to your cars by the marshals.
...

I would ask the forelady, if you would step up, forelady
and counsel, if you will.

(At the bench)

THE COURT: Madam Forelady, thank you for your
service. I had talked to counsel. I want to be sure no one has
made any sort of approach to any of the jurors, as far as you
know?

THE FOREPERSON: They have not.

THE COURT: They have not. This was just a general
concern?

THE FOREPERSON: Correct.

Wardrick suggests that this concern for safety tainted the verdict, and
that the district court erred by not making further inquiry into the
issue.

Defense counsel did not object to the trial court's handling of the
issue at the time. Accordingly, we review the issue for plain error. See
Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 731-32

14
(1993). Wardrick must therefore show that the trial court erred, that
the error was plain, and that it affected his substantial rights. Even if
these factors were satisfied, we will not exercise our discretion to cor-
rect the error unless it "seriously affected the fairness, integrity or
public reputation of judicial proceedings." Olano, 507 U.S. at 732
(citation and internal quotations omitted). Wardrick cannot point to
anything even suggesting that the jury's general safety concern had
any effect on the verdict. Nor does he demonstrate that the jury was
influenced by an improper motive in finding him guilty. We see no
error at all in the way the district court handled the jury's note.

III.

For the foregoing reasons, the convictions of Wardrick and Groom
are affirmed, and Groom's sentence is affirmed.

AFFIRMED

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