CAAFlog » September 2015 Term » Howell v. United States

Unsurprisingly, last week the Supreme Court denied a petition for rehearing of its denial of certiorari in Howell v. United States, No. 16-536 (CAAFlog case page).

Howell is a long running case that was tried twice. The first time it was reversed by the CCA based on the appearance of unlawful command influence (discussed here) (see also our #4 Military Justice Story of 2014). A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside). Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

CAAF split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute, remanding the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit (opinion analysis here).

Howell then sought certiorari (noted here).

What’s next for this case you might wonder? I’m pretty certain the answer is: Convening authority’s action.

This week at SCOTUS: Last Monday a petition for certiorari was filed in Howell v. United States, No. 16-536. In Howell v. United States, 75 M.J. 386 (C.A.A.F. Jul. 19, 2016) (CAAFlog case page), CAAF unanimously affirmed that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, but split 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute.

I’m not aware of any other military justice developments at the Supreme Court, where I’m tracking two cases:

This week at CAAF: CAAF will hear oral argument in four cases this week:

Tuesday, October 25, 2016, at 9:30 a.m.:

United State v. Fetrow, No. 16-0500/AF (CAAFlog case page)

Issues:
I. Whether the Air Force Court of Criminal Appeals committed legal error when it found that in order for conduct to constitute child molestation under Mil. R. Evid. 414, the conduct must have been an offense under the UCMJ, or federal or state law, at the time it was committed and, if offered under Mil. R. Evid. 414(d)(2)(a)-(c), that the conduct must meet the definition of an offense listed under the version of the applicable enumerated statute in effect on the day of trial.

II. Whether the Air Force Court of Criminal Appeals committed legal error when it found that the erroneous admission of two acts of indecent liberties committed by appellee on his child age daughter had a substantial influence on the members’ verdict requiring set aside of the findings and sentence.

Case Links:
AFCCA’s opinion (75 M.J. 574)
Blog post: A significant Mil. R. Evid. 414 decision
Appellant’s (Government) brief
Appellee’s brief
Appellant’s (Government) reply brief
Blog post: Argument preview

Followed by:

United States v. Dockery, No. 16-0296/AF (CAAFlog case page)

Issues:
I. Whether the military judge erred by granting, over defense objection, the Government’s challenge for cause against MSgt LW.

II. Whether the Air Force Court of Criminal Appeals erred by finding that the military judge did not err, and by concluding that even if the military judge did err there was no prejudice, contrary to this court’s precedent in United States v. Peters, 74 M.J. 31 (C.A.A.F. 2015), United States v. Woods, 74 M.J. 238 (C.A.A.F. 2015), United States v. Nash, 71 M.J. 83 (C.A.A.F. 2012), United States v. Clay, 64 M.J. 274 (C.A.A.F. 2007), and United States v. Dale, 42 M.J. 384 (C.A.A.F. 1995).

Case Links:
AFCCA’s opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

Wednesday, October 26, 2016, at 9:30 a.m.:

United States v. Gomez, No. 16-0336/CG (CAAFlog case page)

Issue: Whether the military judge erred by permitting two complaining witnesses to testify on sentencing that appellant was responsible for their pregnancy complications with no evidence connecting his misconduct to the complications.

Case Links:
CGCCA opinion
Appellant’s brief
Appellee’s (Government) brief
Appellant’s reply brief
Blog post: Argument preview

Followed by:

United States v. Wilson, No. 16-0267/AR (CAAFlog case page)

Issue: Whether the military judge erred in denying the defense motion for appropriate relief under Rule for Court-Martial 917 where the military judge improperly applied Article 130, housebreaking, to a motor pool.

Case Links:
ACCA opinion
Appellant’s brief
Appellee’s (Government) brief
Blog post: Argument preview

This week at the ACCA: The next scheduled oral argument at the Army CCA is on November 4, 2016.

This week at the AFCCA: The next scheduled oral argument at the Air Force CCA is on November 17, 2016.

This week at the CGCCA: The Coast Guard CCA’s oral argument schedule shows no scheduled oral arguments.

This week at the NMCCA: The Navy-Marine Corps CCA’s website shows no scheduled oral arguments.

CAAF decided the certified Marine Corps case of Howell v. United States, 75 M.J. 386, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page) (link to slip op.) on Tuesday, July 19, 2016. Unanimously affirming that a CCA has jurisdiction to consider a Government petition for extraordinary relief under the All Writs Act, CAAF splits 3-2 to find that the military judge erred in finding that the Government violated the Article 13 prohibition against pretrial punishment in connection with a pay dispute. CAAF remands the case back to the NMCCA for further consideration of the Government’s request for a writ of prohibition to prevent application of the military judge’s award of 343 days of confinement credit.

Judge Sparks writes for the court (in his first opinion), joined by Senior Judge Lamberth of the United States District Court for the District of Columbia (sitting by designation). Judge Stucky writes separately, concurring in the result. Judge Ohlson dissents from the result, joined by Chief Judge Erdmann, both of whom would find that Article 13 was violated.

CAAF reviewed four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?

III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?

IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of Staff Sergeant Howell’s conviction of sexual assault. A rehearing was authorized. Howell was restored to his rank of E-6 and to full duty pending that rehearing, however he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes and Article 75(a) which addresses restoration after a court-martial is set aside).

Howell complained and the military judge agreed that he was entitled to be paid as an E-6, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

The rehearing proceeded and Howell was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in 343 days of confinement credit due to Howell. But then, prior to the convening authority taking action, the Government filed a petition for a writ of prohibition at the Navy-Marine Corps CCA seeking to reverse the military judge’s award of confinement credit. The NMCCA stayed the post trial proceedings and (in an opinion discussed here) granted the Government petition in part, reducing the award of credit to 308 days. The Judge Advocate General of the Navy then certified the case to CAAF.

With yesterday’s opinion CAAF overwhelmingly affirms the Government’s ability to seek such relief, and narrowly interprets Article 13 to require evidence of actual intent to punish (and not merely punitive effect).

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Audio of today’s arguments at CAAF is available at the following links:

Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page): Oral argument audio.

EV v. United States & Martinez, No. 16-0398/MC (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the certified Marine Corps case of Howell v. United States, Nos. 16-0289/MC & 16-0367/MC (CAAFlog case page), on Wednesday, May 11, 2016, at 9:30 a.m. The case presents four issues certified by the Judge Advocate General of the Navy; one certified at the request of the Defense and three certified at the request of the Government:

Defense issue:
I. Whether the Government may invoke Article 66, UCMJ, as the jurisdictional basis for an extraordinary writ pursuant to the All Writs Act when the issue is not included as a basis for Government appeal under Article 62, UCMJ?

Government issues:
II. Whether the military judge, in finding an Article 13, UCMJ, violation, exceeded his authority by rejecting applicable holdings of the U.S. Court of Appeals for the Federal Circuit and the Court of Federal Claims, in order to conclude that appellee was entitled to pay at the A-6 rate pending his rehearing?
III. Whether the lower court erred by concluding that the setting aside of appellee’s findings and sentence rendered his reduction to pay grade E-1 prospectively unexecuted pending rehearing?
IV. If a member’s original sentence includes an executed reduction to pay grade E-1 and the sentence is subsequently set aside, does the action of paying that member at the E-1 rate pending rehearing constitute illegal pretrial punishment in the absence of any punitive intent?

This case was included in our #4 Military Justice Story of 2014, as the appearance of unlawful command influence led to the reversal of a sexual assault conviction with a rehearing authorized. Howell was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, he was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

Howell complained, asserting that he was entitled to be paid as an E-6, and the military judge agreed, finding that the Government’s actions constituted illegal pretrial punishment in violation of Article 13. As a remedy the military judge ordered that Howell receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate.

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In United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (discussed here), the NMCCA split 4-4 to partially grant the Government’s post-trial petition for extraordinary relief from the military judge’s ruling that it was unlawful punishment to fail to pay the accused at his restored grade of E-6 after his case was reversed on appeal. The Navy JAG subsequently certified the case to CAAF (discussed here) and the accused also filed a writ-appeal petition.

Judge Ryan has recused herself from the case:

Notice of Recusal and Designation

Nos. 16-0289/MC and 16-0367/MC. U.S. v. Stephen P. Howell. CCA 201200264.  Notice is hereby provided that Judge Margaret A. Ryan has recused herself from participation in the above-captioned case. At the request of Chief Judge Charles E. “Chip” Erdmann, Chief Justice John G. Roberts, Jr., has designated Senior Judge Royce C. Lamberth of the United States District Court for the District of Columbia to perform the duties of a Judge of the United States Court of Appeals for the Armed Forces in this case pursuant to Article 142(f), Uniform Code of Military Justice, 10 U.S.C. § 942(f) (2012).

Recusals are rare at CAAF. I’m only aware of a few in recent history:

  • Judge Ohlson’s recusal from United States v. Newton, 74 M.J. 69 (C.A.A.F. Feb. 25, 2015) (CAAFlog case page).
  • Judge Ryan’s recusal from United States v. Hernandez, No. 15-0178 (C.A.A.F. Jul. 16, 2015) (vacated as improvidently granted).
  • The recusal of then-Chief Judge Effron, Judge Baker, and Judge Ryan from United States v. Schweitzer, 68 M.J. 133 (C.A.A.F. 2009), and United States v. Ashby, 68 M.J. 108 (C.A.A.F. 2009).

Last month, in this post, I reviewed the 4-4 en banc decision of the NMCCA on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015).

Last week the Judge Advocate General of the Navy certified the case to CAAF:

No. 16-0367/MC. United States, Appellant/Cross-Appellee v. Stephen P. Howell, Appellee/Cross-Appellant.  Notice is hereby given that a certificate of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals was filed under Rule 22 this date on the following issues:

WHETHER THE GOVERNMENT MAY INVOKE ARTICLE 66, UCMJ, AS THE JURISDICTIONAL BASIS FOR AN EXTRAORDINARY WRIT PURSUANT TO THE ALL WRITS ACT WHEN THE ISSUE IS NOT INCLUDED AS A BASIS FOR GOVERNMENT APPEAL UNDER ARTICLE 62, UCMJ?

WHETHER THE MILITARY JUDGE, IN FINDING AN ARTICLE 13, UCMJ, VIOLATION, EXCEEDED HIS AUTHORITY BY REJECTING APPLICABLE HOLDINGS OF THE U.S. COURT OF APPEALS FOR THE FEDERAL CIRCUIT AND THE COURT OF FEDERAL CLAIMS, IN ORDER TO CONCLUDE THAT APPELLEE WAS ENTITLED TO PAY AT THE E-6 RATE PENDING HIS REHEARING?

WHETHER THE LOWER COURT ERRED BY CONCLUDING THAT THE SETTING ASIDE OF APPELLEE’S FINDINGS AND SENTENCE RENDERED HIS REDUCTION TO PAY GRADE E-1 PROSPECTIVELY UNEXECUTED PENDING REHEARING?

IF A MEMBER’S ORIGINAL SENTENCE INCLUDES AN EXECUTED REDUCTION TO PAY GRADE E-1 AND THE SENTENCE IS SUBSEQUENTLY SET ASIDE, DOES THE ACTION OF PAYING THAT MEMBER AT THE E-1 RATE PENDING REHEARING CONSTITUTE ILLEGAL PRETRIAL PUNISHMENT IN THE ABSENCE OF ANY PUNITIVE INTENT?

In an interesting decision on a Government petition for extraordinary relief in United States v. Lieutenant Colonel Jones, Military Judge, and Howell, Real Party in Interest, No. 201200264 (N-M. Ct. Crim. App. Dec. 29, 2015) (en banc) (link to slip op.), the Navy-Marine Corps CCA splits 4-4 (one judge did not participate) to grant only a small part of the relief requested by the Government.

Our #4 Military Justice Story of 2014 included discussion of the Marine Corps case of United States v. Howell, in which the appearance of unlawful command influence led to the reversal of a sexual assault conviction. The CCA authorized a rehearing, and the accused was restored to his rank of E-6 and to full duty pending that second trial. However, even though he wore E-6 rank insignia and performed commensurate duties, the accused was only paid at the E-1 rate (based on the Government’s interpretation of the applicable military pay statutes).

The accused complained about his pay, asserting that he was entitled to be paid as an E-6, and the military judge agreed. The military judge then found that the Government’s actions constituted illegal pretrial punishment in violation of Article 13, and he ordered that the accused receive credit against any sentence to confinement in the form of one day of confinement credit for each day of pay at the E-1 rate beginning on the date the original findings and sentence were set aside.

The trial proceeded and the accused was convicted and sentenced to confinement for nine years, reduction to E-1, total forfeitures, and a dishonorable discharge. The military judge’s ruling resulted in approximately 11 months of confinement credit to the accused. The Government then sought extraordinary relief from the CCA, prior to the convening authority taking action in the case.

The CCA’s lead opinion, authored by Judge Marks, finds that the military judge erred only in setting the start date for the credit as the date when the findings were first set aside, and that the credit shouldn’t begin until the date accused was released from confinement. However, Judge Marks concludes that the military judge “did not usurp his judicial power by ruling on SSgt Howell’s complaint of illegal pretrial pay deprivation.” Slip op. at 14.

The dissenting opinion, authored by Senior Judge Brubaker, would reverse the military judge entirely:

I would have found it improper to grant any credit here. Unlike cases relied on by the majority, this case does not implicate punitive actions by command or detention officials – or any other government officials. It presents, instead, a pure pay entitlement question. In my view, the military judge misused Article 13 to litigate and remedy the correctness of an agency’s good faith pay entitlement determination.

Slip op. at 16. Senior Judge Brubaker concludes that “such disputes belong in Congressionally-designated Article III courts.” Slip op. at 17.

The accused filed a writ-appeal petition at CAAF on January 19, 2016.

Happy 2015 to all our CAAFlog readers out there! Like our number five story, the number four story on our list is also related to stories that made the top ten in previous years. In 2012, the “Heritage Brief” was part of the number one story and a PME for summer intern law students by a military judge at MCRD Parris Island was part of the number eight story. This year we saw the epilogues to those stories.

The content and events related to the Commandant of the Marine Corps’s Heritage Brief are well known to readers of this blog, so I won’t re-hash all of it. However, this year we saw decisions from the appellate courts in cases that played an important early role in the litigation of the issue. In late January of this year, the NMCCA held in United States v. Easterly (discussed here and here) that a military judge erred when he failed to find that the defense had met the low threshold for a showing of UCI. However, the NMCCA went on to hold that, assuming without deciding the facts presented by the defense constituted actual or apparent UCI, there was no evidence that UCI actually affected the court-martial. Therefore, the court affirmed the findings and sentence. CAAF subsequently declined further review in May.

Next up was the case of United States v. JilesJiles was notable early on in the Heritage Brief UCI litigation, because it was the case in which the then-Chief Judge of the Navy-Marine Corps Trial Judiciary, Col Daniel J. Dougherty, USMC, ordered the Commandant of the Marine Corps to respond to interrogatories about the Heritage brief. Jiles ultimately ended up pleading guilty pursuant to a pre-trial agreement, and the NMCCA found no evidence that UCI, if it existed, played a part in his court-martial.

This brings us to the case of United States v. Howell (discussed here), which forms a bit of intersection between the Heritage Brief cases and the PME by the military judge at MCRD Parris Island. In Howell, the NMCCA found that the military judge, who gave the PME to the “summer-funners” in which a number of questionable remarks were made, erred when he denied a defense UCI motion as well as when he denied defense challenges to certain panel members at trial, again based on UCI.

The NMCCA noted that the PME, which was given while this case was under a court-ordered stay due to a pending motion on UCI, specifically “highlighted Congress’s mistrust of the Marine Corps legal system and desire for more convictions.” Following the notorious PME and this judge’s departure from the bench, Col Dougherty took over mid-trial and allowed reconsideration of all the previous rulings in the case related to UCI. He found that the defense had shifted the burden to the government, but ultimately found that UCI had not affected the proceedings thus far and the previous military judge’s use of the liberal grant mandate had cured any taint of UCI. The NMCCA disagreed and found that because there no action taken to address the erroneous denial of defense challenges to panel members, the taint of apparent UCI had not been removed. The NMCCA vacated the findings and sentence and ordered a new trial. However, the NMCCA still did not go so far as to hold that the Heritage Brief constituted actual UCI.

This brings us full circle to the case of United States v. Kish, where the ill-fated PME itself was the basis for an appellate challenge. In Kish (discussed here), the NMCCA found that the military judge’s conduct during trial, including interjecting himself into the examination of witnesses, combined with his post-trial PME to law student interns created an appearance of bias. However, the NMCCA stopped short of saying that the military judge was actually biased against the accused. Rather, the court found that his comments reflected his view of the attitude needed to succeed as a trial counsel and not his own personal views of the accused or the process. I voiced my own disappointment in this post that the NMCCA did not take the opportunity to condemn this viewpoint of what makes a “successful” trial counsel.

It seems unlikely at this point that an appellate court will find that the Heritage Brief constituted unlawful command influence, and with a new Commandant in charge, that issue becomes more attenuated every day for cases that are still pending trial. For cases that are still in the pipeline for review, the NMCCA will almost certainly continue to use the approach of evaluating whether there was any impact on the proceedings from apparent UCI. While this approach is consistent with the case law, it unfortunately does little to deter future incidents like the Heritage Brief.

The NMCCA is also sifting through the remaining cases affected by the Parris Island PME. Again, the court is taking a case by case approach and in some cases denies relief where the facts do not indicate there was an appearance of bias. In other cases though, the court has granted relief where there is a reasonable argument the PME created an appearance of bias (see here and very recently here). Here’s to hoping that by this time next year both of these stories are no longer in our top ten and have become part of the annals of military justice cautionary tales.

The NMCCA has issued a published opinion in United States v. Howell today.

A Marine case has been returned for a new trial based on apparent UCI from the Heritage Brief and other events.  As the concurring judge points out, the opinion does not hold the Heritage Brief to be UCI per se.

At trial Appellant litigated a UCI motion initially in front of then Judge Palmer.  Zach reported LtCol Palmer was recently assigned as an RDC which has drawn some comment.  The NMCCA decision lays out a very detailed chronology of the events leading up to the motion, starting with the Heritage Brief, moving to the various White Letters, the media coverage, and then the “torturous” procedural timeline.   The opinion points out that the Heritage Brief at Parris Island, the location of trial, happened after an Article 39(a) session and shortly before trial.  (Note as you read various facts that can distinguish this case from the several cases on the Amos motion already decided.  Zach discussed his view of how NMCCA “dodge[d]” the issue in Easterly and Hutchins)

At trial appellant engaged in very detailed voir dire of the members.  And, like the court, “We turn to particular responses that convey the flavor of the voir dire responses from the panel. Two members were particularly frank in their responses.”  Further, the court focuses on several enlisted members.

Master Gunnery Sergeant (MGySgt) P, when asked about the CMC’s statement that 80 percent of sexual assault allegations are legitimate, responded, “I believe that . . . that’s his opinion that 80 percent are true. I don’t take it to mean though that the other twenty percent are made up.”  She also acknowledged that the CMC’s remarks may have “some bearing” in her decision-making as a panel member.

Master Sergeant (MSgt) H, when asked about the same remark from the CMC, responded, “Like I said, ma’am, I would think highly that he has (done) his homework and that he’s been advised correctly.”36 Later, in response to a similar question, MSgt H replied, “[L]ike I said, he has knowledge of those things. So if he said it happens, it happens.”

When asked what message the CMC conveyed in the Heritage Brief, First Sergeant (1stSgt) W summed it up as follows:

“Basically . . . that senior enlisted and senior officers, we’re not doing our jobs as far as keeping the Marines in line. He’s tired of the sexual assaults/sexual misconduct amongst officers and Staff NCOs, and he’s holding us accountable.”  This same member later engaged in the following exchange with the trial counsel:

Q. Do you feel . . . based on what the Commandant
said that you would be expected to find the accused
guilty?
A: If the evidence was there, yes, sir.

Q: Okay, and what if the evidence wasn’t there?
A: Then I’d have to dig deeper.

The remarks are similar to a Marine Staff Sergeant response we had in Walton some years ago.  When asked if he could set aside the inaccurate information from his commander he replied “no, it’s a question of integrity.”  The point being his commander had more intergrity than the court.  Ultimately a panel was seated for Howell, and then NMCCA granted a stay of proceedings through an extraordinary writ petition.

One week later, LtCol Palmer gave his PME lecture that led to his leaving the bench.

Back to trial, Col Daugherty became the trial judge and allowed for reconsideration of all motions including the UCI.  He reversed LtCol Palmer’s ruling and found that the defense had raised sufficient evidence to shift the burden.  But he ultimately denied the motion.  Trial and conviction then proceeded with Col Riggs as judge.

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