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Mcveigh's Argument To Deny Justice Dept Any Role In Seeking Death Penalty

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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

Case No. M-95-98-H

UNITED STATES OF AMERICA

v.

TIMOTHY JAMES MCVEIGH

DEFENDANT'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISQUALIFY ATTORNEY GENERAL AND ALL OTHER OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF JUSTICE FROM PARTICIPATION IN DECISION WHETHER TO SEEK THE DEATH PENALTY, AND TO PRECLUDE SEEKING THE DEATH PENALTY UNTIL A LAWFUL PROSECUTORIAL DECISION CAN BE MADE WHETHER TO SEEK IT

Introduction

The accompanying Motion to Disqualify the Attorney General and All Other Officers and Employees of the Department of Justice from Participation in Decision Whether to Seek the Death Penalty, and to Preclude Seeking the Death Penalty Until a Lawful Prosecutorial Decision Can Be Made Whether to Seek It -- referred to herein as the "Motion to Disqualify" -- rests on four grounds:

(1) The procedure prescribed by 9-10.000 of the United States Attorneys' Manual is mandatory and precludes seeking the death penalty unless certain substantive predicates are present.

(2) This procedure has created a liberty interest in persons accused of capital crimes that is protected by the Due Process Clause of the Fifth Amendment. Pursuant to the safeguards of due process, the death penalty may not be sought against persons accused of capital crimes unless the 9- 10.000 procedure has been followed.

(3) Mr. McVeigh was deprived of this procedure when the government announced on April 19, and again on April 21, 1995, that it would seek the death penalty against him without having invoked or followed the 9- 10.000 procedure.

(4) The appropriate remedy for this deprivation is for the government to devise a procedure that assures an independent, de novo, and procedurally adequate determination of whether to seek the death penalty, which includes at a minimum, the disqualification of everyone in the Department of Justice from participation in the process in anything other than an information-providing role.

These grounds will be discussed in turn.

Argument

I. THE PROCEDURE ESTABLISHED BY 9-10.000 IS MANDATORY IN EVERY CASE IN WHICH DEATH IS A POSSIBLE PUNISHMENT AND PRECLUDES SEEKING THE DEATH PENALTY UNLESS CERTAIN SUBSTANTIVE REQUISITES ARE MET.

The Federal Death Penalty Act of 1994, 18 U.S.C. 3591- 3598, requires "the attorney for the government" to "serve on the defendant" "a reasonable time before trial ... a notice

(1) stating that the government believes that the circumstances of the offense are such that, if the defendant is convicted, a sentence of death is justified under this chapter and that the government will seek the sentence of death; and

(2) setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death. 18 U.S.C. 3593(a).

To implement this provision, the Attorney General has devised a procedure for making the determination whether the death sentence should be pursued in a particular case. This procedure, set out in 9-10.000 of the United States Attorneys' Manual, is the exclusive manner in which the government determines whether to give the notice required under 18 U.S.C. 3593(a). As explained in the summary section of 9-10.000, under the heading, "PURPOSE," the section

sets forth policy and procedures to be followed in all federal cases in which a defendant is charged with an offense subject to the death penalty, regardless of whether the United States Attorney intends to request authorization to seek the death penalty.

Exhibit C, at 1. Substantively, "[t]he authorization process is designed to promote consistency and fairness." Id. at 4.

The procedure established by 9-10.000 calls for a three- step process to determine whether the government will seek the death penalty. It begins with the United States Attorney. In any case in which the United States Attorney "intends to charge a defendant with an offense subject to the death penalty," he or she must prepare a "'Death Penalty Evaluation' form and a prosecution memorandum." Id. at 2. The memorandum addresses

the theory of liability, ... the facts and evidence, including evidence relating to any aggravating or mitigating factors, ... the defendant's background and criminal history, ... the basis for federal prosecution .... and ... any other relevant information.

Id. At least 30 days prior to the date on which the government is required to file the death penalty notice under 18 U.S.C. 3593(a), the United States Attorney must submit the memorandum, a copy of the indictment, and any written material provided by defense counsel in opposition to seeking the death penalty to the Department of Justice. Id.

The second step is a review of the case within the Department of Justice by "a Committee appointed by the Attorney General, including the Deputy Attorney General or designee and the Assistant Attorney General of the Criminal Division or designee." Id. This Committee "will consider all information presented to it...." Id. Within 15 days of receiving the information, "[t]he Committee should give the Attorney General its recommendation in writing...." Id. at 2-3

The third step is a review by the Attorney General. She "will conduct a review and make the final decision whether the Government should file a 'Notice of Intention to Seek the Death Penalty'" pursuant to 18 U.S.C. 3593(a). Id. at 3

The defendant, through counsel, must be given an opportunity to be heard during the first and second steps of this process. In the first, the United States Attorney "should give counsel for the defendant a reasonable opportunity to present any facts, including any mitigating factors, to [him or her] for consideration." Exhibit C, at 1. In the second, "[c]ounsel for the defendant shall be provided an opportunity to present to the [Attorney General's] Committee, orally or in writing, the reasons why the death penalty should not be sought." Id. at 2.

Finally, 9-10.000 requires that, during all three steps, the decisionmakers adhere to particular standards for making their determination:

In determining whether or not the Government should seek the death penalty, the United States Attorney, the Attorney General's Committee and the Attorney General must determine

[a] whether the statutory aggravating factors applicable to the offense and any non-statutory aggravating factors sufficiently outweigh the mitigating factors to justify a sentence of death, or,

[b] in the absence of any mitigating factors, whether the aggravating themselves are sufficient to justify a sentence of death.

[c] To qualify for consideration in this analysis, an aggravating factor must be found to exist beyond a reasonable doubt.

[d] Recognizing that there may be little or no evidence of mitigating factors available for consideration at the time of this determination, any mitigating factor reasonably raised by the evidence should be considered in the light most favorable to the defendant.

[e] The analysis employed in weighing the aggravating and mitigating factors that are found to exist should be qualitative, not quantitative.

[f] Finally, there must be sufficient admissible evidence of the aggravating factors to obtain a death sentence and to sustain it on appeal. Id. at 4.[FN1]

In summary, the procedure set out in 9-10.000 is universal -- it governs "all federal cases in which a defendant is charged with an offense subject to the death penalty." It is also mandatory -- the United States Attorney "shall" prepare and submit a memorandum and collateral materials "[i]n all cases" involving capital charges, the Attorney General's Committee "shall ... review[]" all the submissions from the United States Attorney and "will consider all information presented to it," and the Attorney General "will conduct a review"; in the course of these proceedings defense counsel "should" be given an opportunity to be heard by the United States Attorney and "shall" be given an opportunity to be heard by the Attorney General's Committee; and in making their recommendations or decisions all of the Department of Justice officers "must" be guided by a number of substantive criteria. And finally, a recommendation or decision to seek the death penalty will not occur unless the substantive criteria calling for the death penalty are satisfied.

II. SECTION 9-10.000 HAS CREATED A LIBERTY INTEREST THAT IS PROTECTED BY THE DUE PROCESS CLAUSE OF THE FIFTH AMENDMENT.

In numerous cases, the Supreme Court has examined whether the promulgation of administrative procedures by a governmental body has created "liberty interests" enforceable under the Due Process Clause, i.e., rights in the persons subject to the procedures to have the procedures followed consistently and fairly. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454 (1990); Board of Pardons v. Allen, 482 U.S. 369 (1987); Ford v. Wainwright, 477 U.S. 399 (1986) (O'Connor and White, JJ., concurring); Olim v. Wakinekona, 461 U.S. 238 (1983); Helms, 459 U.S. 460 (1983); Hicks v. Oklahoma, 447 U.S. 343 (1980); Vitek v. Jones, 445 U.S. 480 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Meachum v. Fano, 427 U.S. 215 (1976). The principles that have emerged in these cases require a determination that 9-10.000 has created a liberty interest protected by the Due Process Clause of the Fifth Amendment.

Liberty interests protected by due process may be created by statutes and regulations promulgated by the legislature and executive agencies. Meachum v. Fano, 427 U.S. at 223-27. The creation of "a careful procedural structure to regulate" a particular decision does not in itself give rise to a protected liberty interest. Hewitt v. Helms, 459 U.S. at 471. As the Court explained in Helms, in relation to prison regulations,

The creation of procedural guidelines to channel the decision- making of prison officials is, in the view of many experts in the field, a salutary development. It would be ironic to hold that when a State embarks on such desirable experimentation it thereby opens the door to scrutiny by the federal courts, while States that choose not to adopt such procedural provisions entirely avoid the strictures of the Due Process Clause. The adoption of such procedural guidelines, without more, suggests that it is these restrictions alone, and not those federal courts might also impose under the Fourteenth Amendment, that the State chose to require. Id.

If regulations go "beyond simple procedural guidelines," however, as they did in Helms, due process safeguards will come into play. Id. In Helms, the Court identified two criteria that determine whether a regulation has gone "beyond simple procedural guidelines. In that case, Pennsylvania's regulation "used language of an unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed, [reference to footnote omitted], and that administrative segregation will not occur absent specified substantive predicates -- viz., 'the need for control,' or 'the threat of a serious disturbance.'" Id. at 471-72 (emphasis supplied). In the Court's view, these factors were determinative:

[O]n balance we are persuaded that the repeated use of explicitly mandatory language in connection with requiring specific substantive predicates demands a conclusion that the State has created a protected liberty interest.

Id. at 472. Since Helms, this two-part analysis has consistently provided the test for determining whether a statute or administrative regulation has given rise to a liberty interest protected by Due Process. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U.S. at 462; Board of Pardons v. Allen, 482 U.S. at 377-78 & n.9; Ford v. Wainwright, 477 U.S. at 428 (concurring opinion); Olim v. Wakinekona, 461 U.S. at 249-50 & n.10.

While these principles have most often been applied in the context of state prison or pardon/parole regulations, they are applicable to any situation in which a statute or administrative regulation creates protected liberty interests. See, e.g., Ford v. Wainwright, 477 U.S. at 428 (concurring opinion) (statute setting forth procedure for dealing with condemned prisoners who are incompetent at the time of a scheduled execution); Hicks v. Oklahoma, 447 U.S. at 346-47 (statute requiring that the jury sentence the defendant in a felony trial).

In addition, while most of the cases examining whether a statute or regulation has created a protected liberty interest have arisen in relation to state statutes or state administrative regulations and procedures, and have thus invoked the Due Process Clause of the Fourteenth Amendment, that is not determinative. The Court has not made a distinction in the applicable due process analysis when dealing with a claimed due process violation in relation to federal, as opposed to state, regulations and procedures. See, e.g., Arnett v. Kennedy, 416 U.S. 134, 156-57 (1974).

Moreover, when addressing the enforceability of federal regulations, even though the Court has often not mentioned the government-created-rights due process analysis, it has applied that analysis in substance. Thus, in its decisions addressing federal regulations as "statutory" or "regulatory" matters, the Court has utilized the same formula it uses in the state- created- rights due process cases. In keeping with that formula, if the regulation in question has mandated a certain procedure for decisionmaking and, in connection therewith, limited the decisionmaker's discretion with substantive standards that must be satisfied by any decision, the Court has enforced the regulation. See, e.g., Morton v. Ruiz, 415 U.S. 199, 230-35 (1974) (when Bureau of Indian Affairs failed to follow its procedure requiring publication of all general assistance eligibility criteria, the denial of assistance based on those criteria could not be sustained); Service v. Dulles, 354 U.S. 363, 387-88 (1957) (regulation subjecting the Secretary of State's authority to discharge an employee "to [certain] substantive standards" and to "the procedural requirements that cases must be decided 'on all the evidence' and 'after consideration of the complete file, arguments, briefs, and testimony presented'" had to be followed); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-67 (1954) (regulation prescribing a mandatory procedure for processing an alien's application for suspension of deportation, in which the Attorney General delegated his authority to decide such applications to a board, reserving for himself the authority to review any decision by the board, "denie[d] [the Attorney General] the right to sidestep the Board or dictate its decision in any manner").

If, however, the regulation simply confines the decisionmaking authority to a particular office or officer within an agency or establishes non- mandatory guidelines for the exercise of a decisionmaker's discretion, the Court has held that the beneficiaries of the regulation have no right to enforce it. See, e.g., United States v. Caceres, 440 U.S. 741 (1979) (IRS regulation prohibiting "'consensual electronic surveillance'" between taxpayers and IRS agents unless appropriate prior authorization obtained, without substantively restricting the discretion of the authorizing agent to give prior approval to such surveillance, unenforceable in case in which evidence obtained without prior authorization was admitted); Sullivan v. United States, 348 U.S. 170 (1954) (executive order requiring authorization by Attorney General's office before evidence could be presented to a grand jury by local prosecutor, without specifying in any way how the Attorney General's responsibility should be exercised, unenforceable). See also United States v. Jones, 808 F.2d 561, 565 (7th Cir. 1986); Delay v. United States, 602 F.2d 173, 176-78 (8th Cir. 1979); United States v. Johnson, 579 F.2d 1184 (1Oth Cir. 1978) (all holding unenforceable the Justice Department's policy precluding the initiation or continuation of a federal prosecution following a state prosecution or a prior federal prosecution based on substantially the same act, acts, or transaction unless there is a compelling federal interest supporting the dual or successive federal prosecution (the "Petite" rule, after the case in which it was first noted, Petite v. United States, 361 U.S. 529 (1960)).[FN2]

Under these settled principles, 9-10.000 has created a protected liberty interest in favor of persons facing potential capital charges. As the discussion under Point I, supra, makes clear, 9-10.000 "has used language of an unmistakably mandatory character, requiring that certain procedures 'shall,' 'will,' or 'must' be employed," Hewitt v. Helms, 459 U.S. at 471: At every step of the process, the person or committee responsible at that level "shall," "will," or "must" review certain information and materials and evaluate the information and materials in light of specific standards. Even then, a decision to seek the death penalty "will not occur absent specified substantive predicates," Hewitt v. Helms, at 472: The evidence must establish one or more aggravating factors beyond a reasonable doubt, the aggravating factors must outweigh any possible mitigating factors (construing the evidence in the light most favorable to the defendant) and be sufficient in themselves to warrant the death penalty, and the evidence in support of the aggravating factors must be sufficient to obtain a death sentence and sustain it on appeal. Accordingly, there can be no reasonable dispute that, under the analytical principles of Helms, 9-10.000 has created a liberty interest protected by the Due Process Clause.

III. MR. MCVEIGH WAS DEPRIVED OF ANY MEANINGFUL PROCEDURE FOR DETERMINING WHETHER THE DEATH PENALTY WOULD BE SOUGHT IN HIS CASE WHEN THE PRESIDENT, THE ATTORNEY GENERAL, AND AN ASSISTANT UNITED STATES ATTORNEY RESPONSIBLE FOR PROSECUTING HIM ANNOUNCED- - LONG BEFORE ANY 9-10.000 PROCEDURE COMMENCED -- THAT THE GOVERNMENT WOULD SEEK THE DEATH PENALTY AGAINST HIM.

It is beyond dispute that, on three occasions between April 19 and 21, 1995, the government publicly announced its intention to seek the death penalty against Mr. McVeigh. Attorney General Reno announced it at a press conference on April 19, before Mr. McVeigh had been identified as a suspect. President Clinton announced it shortly after Mr. McVeigh had been identified as a suspect on April 21. Assistant United States Attorney Arlene Joplin announced it at Mr. McVeigh's first appearance hearing later in the day on April 21.

It is also beyond dispute that, prior to announcing this decision, the procedure set forth in 9-10.000 of the United States Attorneys' Manual had not been invoked or followed.

Finally, it is beyond dispute that on July 11, 1995, the government initiated the 9-10.000 procedure by notice to Mr. McVeigh's counsel, inviting counsel to submit any material or information in mitigation that he wished to present. In response to counsel's concern that this procedure could not possibly be meaningful in light of the long-announced intention of the government to seek the death penalty, the United States Attorney said nothing. No attempt was made to assure counsel that, notwithstanding the previous pronouncements of the President, the Attorney General, and an Assistant United States Attorney for the Western District of Oklahoma concerning the government's intention to seek the death penalty, this 9-10.000 procedure could still have meaning.

We believe that it cannot and for that reason have asked the Court to intervene to protect Mr. McVeigh's right to due process.

The government might argue that since there has not been a 9- 10.000 procedure before now, the procedure is meaningful, in the sense that it can affect whether the government seeks the death penalty. To argue this, however, the government would have to ignore the effect on the 9-10.000 procedure of the announcements by the President, Attorney General, and Assistant United States Attorney on April 19 and 21, 1995. There is no principled basis on which that could be done.

The Supreme Court had before it a somewhat similar situation in United States ex rel. Accardi v. Shaughnessy, supra. Underlying the case was an administrative procedure promulgated by the Attorney General for "processing an alien's application for suspension of deportation." 347 U. S. at 265. The procedure called for "decisions at three separate administrative levels below the Attorney General -- hearing officer, Commissioner, and the Board of Immigration Appeals." Id. at 266. The Board members were appointed by the Attorney General, served at his pleasure, and exercised the power and discretion conferred upon them by the Attorney General. Id. The Board's decisions were final "'except in those cases reviewed by the Attorney General...,'" which included any case the Attorney General "'direct[ed] the Board to refer to him.'" Id. In Accardi, the petition alleged that the Attorney General

included the name of petitioner in a confidential list of 'unsavory characters' whom he wanted deported; public announcements clearly reveal that the Attorney General did not regard the listing as a mere preliminary to investigation and deportation; to the contrary, those listed were persons whom the Attorney General 'planned to deport.' And, it is alleged, this intention was made quite clear to the Board when the list was circulated among its members. Id. at 267. Accardi argued that the Attorney General rendered the administrative procedure meaningless when he included Accardi on the list of persons he intended to deport.

In the course of determining that Accardi's claim was sufficient, the Court emphasized that the administrative procedure clearly intended that the Board exercise its own discretion concerning a case:

The clear import of broad provisions for a final review by the Attorney General himself would be meaningless if the Board were not expected to render a decision in accord with its own collective belief. Id. at 266. For this reason, "as long as the regulations remain operative, the Attorney General denies himself the right to sidestep the Board or dictate its decision in any manner." Id. at 267. Accordingly,"where the body charged with the exercise of discretion is a nonstatutory board comprised of subordinates within a department headed by the individual who formulated, announced, and circulated ... views of the pending proceeding [that dictated the way in which the Board should exercise its discretion]," Accardi's claim that he was denied the opportunity for a meaningful administrative proceeding was "quite sufficient." Id.

Despite the differences in the administrative procedure at issue in Accardi and this case, Accardi teaches a powerful lesson directly applicable here. When an administrative decisionmaking procedure calls for one or more subordinate individuals or committees to exercise their judgment in recommending, or making, a decision, the penultimate decisionmaker, the person who heads the agency -- or, as in Mr. McVeigh's case, the decisionmakers who head the agency and the entire executive branch of government -- cannot make the decision in advance and then claim that the administrative decisionmaking procedure can still go forward meaningfully. As Accardi recognized, it cannot. The subordinate decisionmakers cannot exercise the discretion they are delegated to exercise when the head of the agency has already made the decision that they are called upon to make.

For these reasons, there can be no meaningful 9-10.000 procedure available to Mr. McVeigh.

IV. THE GOVERNMENT BEARS THE BURDEN OF DEVISING A PROCEDURE THAT ASSURES A MEANINGFUL DETERMINATION OF WHETHER TO SEER THE DEATH PENALTY -- WHICH CANNOT INCLUDE THE ATTORNEY GENERAL OR ANYONE EMPLOYED BY THE JUSTICE DEPARTMENT -- AND UNTIL SUCH A PROCEDURE IS DEVISED AND CARRIED OUT, THE GOVERNMENT MUST BE PRECLUDED FROM SEEKING THE DEATH PENALTY.

Having deprived Mr. McVeigh of a valuable right protected by the Due Process Clause, the government bears the responsibility for devising a remedy. The remedy must afford Mr. McVeigh the same opportunity he would have had to avoid the government's seeking the death penalty had the President, the Attorney General, and the Assistant United States Attorney not made and announced any decision concerning whether to seek the death penalty. In the circumstances here, such a remedy must afford Mr. McVeigh the process he is due, a part of which requires the exclusion of the Attorney General and any Justice Department employee from the decisionmaking process.

While a decisionmaker is usually presumed to be able to disregard a prior decision and start anew, without his or her impartiality being questioned, when a supervisory body determines that the prior decision was in error, that rule does not apply in the circumstances presented here. The Attorney General took a highly public position, in the most highly publicized and notorious criminal case in the country's history, that the government would seek the death penalty. She had the backing of the President, and her position was faithfully stated in open court by her assistant in Mr. McVeigh's first appearance hearing. No one in her position could be presumed to be able to "start over" in making the decision whether to pursue the death penalty. Although the language applies to judges, the principle of impartiality described in In re Murchison, 349 U.S. 133, 136 (1955) is a principle that could not possibly be honored by the Attorney or anyone owing allegiance to her in these circumstances:

Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be define with precision. Circumstances and relationships must be considered. This Court has said, however, that 'Every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law.' Tumey v. Ohio, 273 U.S. 510, 532. Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between the contending parties. But to perform its high function in the best way, 'justice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14.

No one in the Attorney General's position could be expected to "'hold the balance nice, clear, and true" and fairly weigh the option of not seeking the death penalty against Mr. McVeigh. Nor could any of her colleagues in the Department of Justice, who owe allegiance to her and who ultimately serve at her pleasure and at the pleasure of the President.

The remedy must, therefore, exclude the Attorney General and anyone else in the Department of Justice from the decisionmaking role.

Finally, the remedy must include, provisionally, an order precluding the government from seeking the death penalty until such time as a properly devised procedure can be put into effect. If the government is allowed to pursue the death penalty under present circumstances, no properly devised procedure could be seen as having integrity. It would be seen as nothing more than a ratification of the government's longstanding, unlawfully- arrived-at, and already operative position.

* * * * *

Accordingly, Mr. McVeigh respectfully urges the Court to enter an order disqualifying the Attorney General and all of her subordinates from making the determination whether to seek the death penalty against him, and precluding the government from seeking the death penalty unless and until it proposes and effectuates a lawful process for determining whether to seek the death penalty.

Respectfully submitted,

STEPHEN JONES, OBA #4805 RICHARD BURR ROBERT NIGH, JR, OBA #011686

JONES, WYATT, & ROBERTS
114 East Broadway, Suite 1100
P.O. Box 472
Enid, Oklahoma 73702-0472
(405) 242-5500 fax (405) 242-4556
By /s/RICHARD BURR
Counsel for Timothy J. McVeigh

Of Counsel
Robert L. Wyatt, OBA # 13154
Michael D. Roberts. OBA #13764
James L. Hankins, OBA # 15506
Julia A. Sims, OBA # 16305
-------------------------------

ENDNOTES

1. The text in the original is not set out in separate paragraphs. All of the matter quoted is in a single paragraph. It has been set out in separate paragraphs here in order to highlight the distinct standards that guide the decisionmaking process.

2. This regulation, like others held unenforceable by the Supreme Court, simply confines the authority to decide whether to proceed in a dual or successive prosecution to an official in the Department of Justice and provides guidelines, not mandatory standards, for deciding on "a case-by- case basis" whether such prosecutions should be pursued. See 9-2.142, United States Attorneys' Manual.

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