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PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

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

UNITED STATES OF AMERICA, )
Plaintiff, )
v. ) Case No. M-95-98-H
TIMOTHY JAMES McVEIGH, )
Defendant. )

BRIEF IN SUPPORT OF MOTION FOR
PRESERVATION OF EVIDENCE

Defendant, Timothy James McVeigh, through counsel moves this court to enter an order to preserve all evidence concerning the alleged crime. In support of this motion, Mr. McVeigh would state:

1. Counsel in order to adequately investigate the case needs to have access to all evidence pertaining to the crime. Access to all the available evidence will assist counsel in their ability to assess the case and effectively exercise the defendant's right to confrontation;

2. Counsel needs access to all material 80 that their experts may examine and assess it. This request extends to material used by the Government's experts in their tests, including the residue remaining from any Government tests;

3. Due to the sheer volume of the evidence, it is likely that evidence will be lost, destroyed or consumed during testing by the Government in their investigation. Thus, an order from the court is necessary to insure In support of this request, Mr. McVeigh presents the following argument and authorities:

THE COURT SHOULD ENTER AN ORDER TO PRESERVE ALL THE EVIDENCE

Mr. McVeigh's lawyers have a duty to conduct a complete investigation of this case. The American Bar Association's Standards for Criminal Justice, Defense Function 4-4.1, said:

"It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction." Here, the only way that counsel can comply with this duty is to have the court enter an order directing all governmental agencies preserve all evidence regarding this case. This order should include all physical evidence removed from the Alfred P. Murrah Building, including debris and even the residue left from the conducting of tests by the Government's experts.

Certainly, justice is better served when a defendant is provided with the most detailed information possible. Pierce v. State, 786 P.2d 1255, 1263 (Okl.Cr. 1990). An order directing that all evidence be preserved and that defense counsel have access to it will insure that Mr. McVeigh as a fair trial. See Goodwin v. Balcom, 684 F.2d 794, 805 (11th Cir. 1982)("At the heart of effective representation is the independent duty to investigate and prepare"); Gaines v. Harper, 575 F.2d 1147, 1149-50 (5th Cir. 1978)("[I]nformed evaluation of potential defenses and meaningful discussion with one's client of the realities of his case are cornerstones of effective assistance of counsel'"). Counsel can make no tactical decisions until they have seen the entirety of the evidence. See Mellem v. State, 106 Or.App. 642, 809 P.2d 1348, 1350 (1991)("A tactical decision must have some kind of factual predicate. Consequently, professional skill requires at least an attempt to find out facts before a final tactical decision is made").

The case of Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333 (1988) does not preclude this court from entering the requested order. There, the Court held that the failure of the police to preserve potentially useful evidence was not a denial of due process of law absent defendant's showing of bad faith on the part of the police. The case can be distinguished.

The facts in Youngblood dealt with facts that did not include a defense request to preserve the evidence while it was still in existence. The failure to enter an order now may mean that potential exculpatory or mitigating evidence may be lost. The effect of such a situation would be tantamount to the Government withholding of,evidence which the United States Supreme Court has long held to be a due process violation. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).

This court should foreclose a future Brady situation by ordering that the Government preserve all evidence and that defense counsel have access to it. The failure to preserve evidence even if not intentional or with bad faith can lead to a determination that evidence was improperly withheld. The Tenth Circuit Court of Appeals stated in Fero v. Kerby, 39 F.3d 1462 (10th Cir. 1994) the following:

To establish a Brady violation, the defense must prove that the prosecution suppressed the evidence, the evidence, would have been favorable to the accused, and the suppressed evidence was material. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. However, with respect to the first element, we have held that negligent or inadvertent suppression of evidence is nonetheless suppression for Brady purposes. United States v. Montoya, 716 F.2d 1340, 1345- 46 (10th Cir. 1983). 39 F.3d at 1472.

Also, with regard to the applicability of Youngblood, the court should review United States v. Bakhitan, 994 F.2d 970 (2nd Cir. 1993). There, the court noted the defense's argument:

The defendant's argue that it is also bad faith for a government agency to provide no reliable system for the preservation of evidence, citing United States v. Bryant, 439 F.2d 642 (D.C.Cir. 1971). As Judge Skelly Wright argued in Bryant, the only way to protect Brady material before the defendant requests its is to require the government to safeguard potentially exculpatory evidence. 439 F.2d at 650-53. 994 F.2d at 975.

The court in Bakhitan said, "Bryant may still have validity after Youngblood." 994 F.2d at 975. Accordingly, a review of Bryant is relevant.

In Bryant, the court set forth the issue. language states what is at stake here in this motion:

The right at stake in the cases before us is defendant's discovery of evidence gathered by the Government, evidence whose disclosure to defense counsel would make the trial more a 'quest for truth' than a 'sporting event.' This safeguard of a fair trial is surely an important one; but here it was undercut at the pretrial period by bureaucratic procedures and/or discretionary decisions of Government investigative agents who made no effort to preserve discoverable materials. When defense motions for discovery were made, it turned out that the material was unaccountably 'lost.' 439 F.2d at 644.

The court in Bryant also stated that, if there is a requirement that defense counsel must know what evidence he wants preserved before he can request that it be preserved, such a request would make Brady an "empty promise." 439 F.2d at 648. Here, the court should enter the appropriate order that potential exculpatory evidence can be preserved.

"The preservation of evidence is in every litigant's proper interests." Nissei Sangyo America, Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994). The Tenth Circuit Court of Appeal+ in United States v. Molina-Cuartes, 952 F.2d 345 (10th Cir. 1991), expressed its displeasure at the Government for the mishandling of evidence. That case involved a discrepancy between the weight of the narcotics seized and the weight of the narcotics weighed for sentencing purposes. The court said, "[w]e find this careless disregard for evidence preservation deplorable and suggest to the Government it should not allow this sort of disappearance to be repeated." 952 F.2d at 349-50.

On April 19, 1995, the United States Supreme Court decided Kyle v. Whitley, -- U.S. -- (1995), 63 USLW 4303, 1995 WL 227644. The Court granted habeas corpus relief because the prosecutors had withheld certain exculpatory evidence. Language from the opinion is relevant to this motion.

Justice Souter, writing for the majority, discussed the desirability of careful action with regard to disclosure of evidence. Although the language is directed to prosecutors, the language should have meaning to this court as well:

This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence. See Aqurs, 427 U.S., at 108 ("[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure"). This is as it should be. Such disclosure will serve to justify trust in the prosecutor as 'the representative ... of a sovereignty...whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). And it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal convictions. [citations omitted] The prudence of the careful prosecutor should not therefore be discouraged. 1995 WL 227644

Here, the court has the opportunity to insure that Mr. McVeigh will have complete access to all available evidence. This opportunity will enable him to receive the full benefit of his right to counsel. Also, by allowing complete access and preserving the evidence now the court forecloses any future claims about withheld evidence. Granting such an order now will prevent an appellate court from having to grant relief at a later date. See, e.g., United States v. Udechukwu, 11 F.3d 1101 (1st Cir. 1993) for an example of a case reversed because the Government failed to provide evidence to the defense.

Access to the entirety of the evidence will enable counsel for the defense to monitor the investigation of the Government. As the Tenth Circuit in Bowen v. Maynard, 799 F.2d 593 613 (10th Cir. 1986), "A common trial tactic of defense lawyers is to discredit the caliber of the investigation or the decision to charge the defendant, and we may consider such use in assessing a possible Brady violation." See also Lindsey v. King, 769 F.2d 1034, 1042 (5th Cir. 1985)(awarding new trial of prisoner convicted in Louisiana state court because withheld Brady evidence "carried within it the potential ... for the ... discrediting ... of the police methods in assembling the case"). Review of the evidence will aid Mr. McVeigh's lawyers in their duty to "investigate the investigation."

The court should note that the Government in certain Fourth Amendment situations are allowed to conduct searches without warrants in order to preserve evidence. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040 (1969). The justification of preservation of evidence allows an intrusion upon a person's Fourth Amendment rights. Here, Mr. McVeigh is not asking the court to abrogate the Government's right to do anything. He is only asking that the be directed to preserve the evidence, something that should not burden the Government in any way. The Government should not act "for the purpose of inflicting a disadvantage upon the defendant[]." United States v. Gordon, 580 F.2d 827, 837 (5th Cir. 1979). The Government should already have procedures in existence for preserving evidence. See e.a. United States v. Peltier, 800 F.2d 772, 778 (8th Cir. 1986)(court makes reference to internal operating procedures of FBI with regard to preservation of evidence).

CONCLUSION

For the reasons stated above, Mr. McVeigh requests this court to enter an order directing the United States to preserve all evidence concerning the alleged crime.

Respectfully submitted,

SUSAN M. OTTO
FEDERAL PUBLIC DEFENDER
215 Dean A. McGee, Suite 524
Oklahoma City, Okla. 73102
Telephone: (405) 231-5725

JOHN W. COYLE, III
COYLE & McCOY
119 N. Robinson, Suite 320
Oklahoma City, Okla. 73102
Telephone: (405) 232-1988

ATTORNEYS FOR DEFENDANT

--------

GOVERNMENT'S OPPOSITION TO MOTION TO PRESERVE
EYEWITNESS IDENTIFICATION

COMES NOW the United States, by Merrick Garland, Associate Deputy Attorney General, Rozia McKinney-Foster, U.S. Attorney for the Western District of Oklahoma, and Arlene Joplin, Assistant U.S. Attorney, and hereby files its Opposition to Defendant's Motion to Preserve Eyewitness Identification.

Although Defendant styles his motion as one to "preserve" eyewitness identification evidence, the motion is clearly mislabeled. As the motion makes clear, what Defendant seeks is an order compelling the government either to permit defense counsel to monitor the ongoing progress of the grand jury investigation by requiring their presence at all out-of-court identifications, or to create evidence by requiring the government to videotape or audiotape all such identifications.

To the government's knowledge, no court has ever entered an order of the type requested here; and Defendant cites no such case. Indeed, under the Supreme Court's decision in United States v. Williams, 504 U.S. 36 (1992), this court is without authority to enter such an order. The government and the grand jury are currently conducting a nationwide investigation into the bombing of the Murrah Building, and a nationwide manhunt for others who may have been involved. The procedures demanded by the defendant would substantially interfere government's efforts to bring the perpetrators of this crime to justice.

ARGUMENT

1. While courts can and must pass upon the legality of the means by which the government acquired information it seeks to introduce at trial, there is no basis for the defendant's effort to monitor the conduct of an ongoing investigation or to require the creation of evidence of the way in which it was conducted. Due process principles regarding suggestive identifications "protect[] an evidentiary interest" at trial rather than any out-of-court right of the person identified. Manson v. Brathwaite, 432 U.S. 98, 113 (1977) (emphasis in original). A defendant may have "due process protections against the admission of evidence derived from suggestive identification procedures." Id. at 105; but cf. Archuleta v. Kerby, 864 F.2d 709, 711 (10th Cir.) ("Even if an identification procedure is suggestive, the introduction of the identification evidence does not necessarily violate a defendant's due process rights), cert. denied., 490 U.S. 1084 (1989). However, "[u]nlike a warrantless search, a suggestive preindictment identification procedure does not in itself intrude upon a constitutionally protected interest." Manson, 432 U.S. at 113 n.13. Accordingly, even where pretrial identification procedures may subsequently be found to have been unnecessarily suggestive, there is no basis at the pretrial phase for prospectively regulating those procedures.

2. Defendant cites no case to support the order he seeks. His only citation to authority is a claim that the court may use its "supervisory powers" to prevent the "destruction of evidence discoverable under Rule 16 and Brady. But notwithstanding the rhetoric he has chosen, "destruction" of evidence is not what his motion is about. Defendant does not allege that the government is destroying records; to the contrary, he wants the government to create a record of eyewitness identifications that it would not otherwise create. Neither Rule 16 nor Brady require the government to create such evidence. The government is not obligated to create potentially exculpatory material that not exist. United States v. Harvey, 756 F.2d 636, 643 (8th Cir.), cert. denied, 474 U.S. 813 (1985). See United States v. Sukumolachan, 610 F.2d 685, 687 (9th Cir. 1980) ("Brady v. Maryland ... does not require the government to create exculpatory material that does not exist.").

Nor can the defendant rely on the court's "supervisory powers" to oversee the present grand jury investigation. The Supreme Court has repeatedly stressed that judicial supervisory power "deal[s] strictly with the courts' power to control their own procedures." United States v. Williams, 112 S.Ct. 1735, 1741 (1992). Indeed, in Williams, the Court held that "because the grand jury is an institution separate from the courts, over whose functioning the courts do not preside, we think it clear that, as a general matter at least, no such "supervisory" judicial authority exists and that the disclosure rule applied here exceeded the Tenth Circuit's authority." (emphasis added).

Exercising "supervisory" authority to create substantive standards of extrajudicial conduct for executive officers would contravene the Constitution's separation of powers. See United States v. Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991) ("By penalizing executive conduct that violates neither the Constitution nor a federal statute, the court invaded the domain of the legislature, whose role it is to establish limits on such conduct by law; and it invaded the province of the executive, whose function it is, within legal limits, to decide how to enforce the law"). Put another way, a court's supervisory power does not allow a "chancellor's foot veto" over otherwise lawful activities of the executive branch. United States v. Russell, 411 U.S. 423, 435 (1973); see also United States v. Payner, 447 U.S. 727, 737 (1980) (judicial supervisory power cannot justify suppression of illegally-seized evidence that the Fourth Amendment itself would not preclude).

3. Such case law as there is in this area is directly contrary to Defendant's claims. In Simmons v. United States, 390 U.S. 377 (1968), the Supreme Court specifically declined to exercise supervisory oversight of the procedures followed by the Federal Bureau of Investigation with respect to out-of-court identifications from photographs. The Court in Simmons noted "hazards of initial identification by photograph" (id. at 384), and it agreed with the defendant that "the identification procedure employed [there] may have in some respects fallen short of the ideal" (id. at 385-386 & n.6). Nonetheless, the Court was "unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement." Id. at 384.

Similarly, in United States v. Ash, 413 U.S. 300 (1973), the Supreme Court was "not persuaded that the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required." 413 U.S. at 321. And the Tenth Circuit has declined to require identification procedures beyond those required by Supreme Court case law. See Hallmark v. Cartwright, 742 F.2d 584, 585 (10th Cir. 1984) (though defendant is entitled under Supreme Court's rulings to have counsel present at post-indictment lineup, counsel is not entitled to be present at "post-indictment post-lineup interview").

4. Defendant will suffer no harm from the mere conducting of out-of- court identifications; if and when the prosecution seeks to introduce a witness' identification at trial, Defendant is free to challenge its admissibility or attack its weight. Cf. Simmons, 390 U.S. at 384 ("The danger that use of the [photographic identification] technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error").

By contrast, the investigation would be substantially impeded by the procedures Defendant seeks to require. There is an unquestionable and overwhelming public interest in permitting the nationwide investigation and manhunt to proceed as quickly as( possible, before evidence is destroyed and witnesses and suspects disappear. The defendant's procedures would put that investigation in a straightjacket that would delay and complicate investigative efforts, and intimidate potential witnesses.

Accordingly, based on the foregoing arguments, Defendant's Motion to Preserve Eyewitness Identification should be denied.

Respectfully submitted,

MERRICK GARLAND
Associate Deputy
Attorney General
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
(405) 231-5281

ROZIA McKINNEY-FOSTER
United States Attorney

ARLENE JOPLIN
Assistant U.S. Attorney
210 W. Park Avenue, Suite 400
Oklahoma City, Oklahoma 73102
(405) 231-5281

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ORDER

I. Before the Court are defendant's "motion to preserve eyewitness identification" and "motion for preservation of evidence" with supporting briefs. The Court has also reviewed plaintiff's responses (opposition) thereto.

II. On April 19, 1995, at approximately 9:00 a.m., a bomb explosion extensively damaged the Alfred P. Murrah Federal Building in downtown Oklahoma City, Oklahoma, and caused a large number of injuries and deaths. Investigation resulted in the filing of a complaint, and defendant's initial appearance on April 21, 1995, in accordance with Fed. R. Crim. P. 5.

The Assistant United States Attorney, Arlene Joplin, stated at this hearing that the United States would seek the death penalty as prescribed in the charge, 18 U.S.C. 844(f), and Susan Otto, Federal Public Defender, was appointed to represent defendant. Following the recommendation of the Federal Public Defender, the Court appointed John W. Coyle, II as co-counsel. Appointment of at least two attorneys is statutorily required and the selection of the specific attomeys is in the discretion of the Court in capital cases upon recommendation of the Federal Public Defender Organization. 18 U.S.C. 3005. On April 26, 1995, the Court denied without prejudice motions filed on behalf of defendant involving a motion to transfer, the application and motions of defense counsel to withdraw and for appointment of substitute counsel. The preliminary examination was held conjointly with the detention hearing at the El Reno Federal Correctional Institute on April 27, 1995. The Court found at that hearing that there was ample probable cause to find the defendant committed the offense alleged in the complaint, that defendant should remain in pretrial detention, and at this time the case awaits further proceedings in District Court. The motion to preserve eyewitness identification was initially presented orally at the preliminary examination and the Court requested a written motion, supporting brief and a response from the plaintiff.

III. Defendant argues that eyewitness identification evidence is critical to the government's prosecution of defendant. Defendant asserts that witnesses are being shown a composite of the suspect or a photographic spread. Defendant further asserts that his picture has been prominently displayed in the media, including the widely displayed images surrounding his transfer to federal custody, and moreover, a substantial reward has been offered for information leading to the arrest and conviction of the perpetrators. Defendant also argues that at some point in time the Court will have to ascertain the admissibility of any proffered identification, and if it arises subsequent to an out -of-court identification, then it can only be properly judged if a record of the identification process is properly preserved by audio or video taping of each witness interview in keeping with a series of cases involving lineup and showup identifications.

The Supreme Court has held that pretrial lineups are a critical stage of the crirninal proceedings that invoke the constitutional right to effective assistance of counsel. United States v. Wade, 388 U.S.218, 227 (1967). Eyewitness identification obtained in an illegal lineup is grounds for reversible error. Gilbert v. State of Cal., 388 U.S. 263, 272 -273 (1967); accord Stovall v. Denno, 388 U.S. 293, 298 (1967) ("the accused will often be precluded from reconstructing what occurred and thereby from obtaining a full hearing on the identification issue at trial"); Simmons v. United States, 390 U.S. 377, 384 (1968) (a substantial likelihood of irreparable misidentification is a violation of due process); Foster California, 394 U.S. 440, 442-443 (1969) (due process was violated by a repeated, suggestive lineup only resulting in an identification following a second lineup). "'[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."' Neil v. Biggers, 409 U.S. 188, 196-97 (1972) (quoting Simmons v. United States, 390 U.S. at 384). However, the Supreme Court has not been convinced that "the risks inherent in the use of photographic displays are so pernicious that an extraordinary system of safeguards is required." United States v. Ash, 413 U.S. 300, 321 (1973). In Neil v. Biggers, supra at 197, the Supreme Court stated:

The only case to date in which this Court has found identification procedures to be violative of due process is Foster v. California. There, the witness failed to identify Foster the first time he confronted him, despite a suggestive lineup. The police then arranged a showup, at which the witness could make only a tentative identification. Ultimately, at yet another confrontation, this time a lineup, the witness was able to muster a definite identification. We held all of the identifications inadmissible, observing that the identifications were 'all but inevitable' under the circumstances Id. (citations omitted). Factors to be considered to ascertain whether there exists a very substantial likelihood of irreparable misidentification are: 1) the opportunity of the witness to view the criminal at the time of the crime, 2) the witness's degree of attention, 3) the accuracy of the witness's prior description of the criminal, 4) the level of certainty demonstrated by the witness at the confrontation, and 5) the length of time between the crime and the confrontation. Id. at 199-200. Cross-examination at trial is an effective method of corroborating or undermining an identification. Simmons v. United States, 390 U.S. at 384.

The Court's review of the submissions at this pre-indictment stage of the proceedings confirms three crucial points: (1) that neither the factual nor legal averments are supportive of the necessity for taping, (2) this motion serves only to define the constitutional boundaries of post-indictment proceedings, and (3) constitutional precepts are not in issue at this time, and evidentiary considerations at the preliminary examination stage of this proceeding are generally inapplicable. Fed. R. Evid. 1101(d)(3). Also see Fed. R. Civ. P. 5.1 (a). Further, the movant makes no factual showing of improprieties by agents who may be conducting interviews of eyewitnesses or that evidence has been destroyed or mishandled, and the only cogent allegation is that "extensive media coverage" may taint the reliability of any eyewitness identifications. The five factors that are germane to the reliability of a pre-trial identification have been previously enumerated and they include witnesses viewing opportunity, attention, accuracy, level of certainty, and elapsed time between crime and confrontation. Neil v. Bi+gers, supra at 199-200; Grubbs v. Hannigan, 982 F.2d 1483, 1490 (lOth Cir. 1993). There is no due process issue of substantial likelihood of irreparable misidentification that would require displacement of the good sense and judgment of a jury in measuring the weight of the identification testimony when subjected to vigorous cross-examination. Questioned identifications can be fully tested when the witness is under oath in the courtroom without requiring investigators for plaintiff, and perhaps for defendant, to become qualified as electronic taping technicians who must comply with detailed taping protocols. In any event, the cases establish the preferred solution to any identification issues under these circumstances is the credibility and reliability of the witnesses' judgment which will be most discerningly resolved in courtroom forensics before a jury whose verdict will be rendered in keeping with appropriate jury instructions including identification instructions, if necessary. "Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature." Manson v. Brathwaite, 432 U.S. 98, 116 (1977).

IV. In the "motion for preservation of evidence," the defendant seeks accessibility to material used by government experts in testing, including the residue remaining from the government tests. The defendant cites several state and federal cases and the American Bar Association Standards for Criminal Justice as supportive of this proposition. However, these cases analyze evidence issues in a post- indictment setting and there is also no factual basis or other specification of the mishandling of physical evidence under circumstances that would require some preemptory and unprecedented intervention by the Court. The gravamen of this motion is a precursory statement by the defendant of ethical obligations shared by all parties, and discovery issues, including preservation of evidence are properly resolved at the appropriate time in keeping with Fed. R. Crim. P. 16. The Plaintiff has acknowledged its allegiance to Rule 16 discovery standards, but validly concedes the impossibility of preserving "every fragment of a bomb site." The Court finds no constitutional requirement or practical methodology for external supervisory investigative controls based on Defendant's generalized legal averments. United States v. Williams 112 S.Ct. 1735, 1741-1742 (1992).

V. Accordingly, in consideration of the motion to preserve eyewitness identification, the motion for preservation of evidence filed by the defendant and in further consideration of the plaintiff's opposition thereto, the motions are DENIED without prejudice.

Entered this 9th day of May 1995.

RONALD L. HOWLAND
UNITED STATES MAGISTRATE JUDGE

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