US v. Kelly
Filing
OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Michael Boudin, Appellate Judge and Jeffrey R. Howard, Appellate Judge. Published. [09-2607]
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Document: 00116293292
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Date Filed: 11/18/2011
Entry ID: 5596939
United States Court of Appeals
For the First Circuit
No. 09-2607
UNITED STATES OF AMERICA,
Appellee,
v.
HOWARD KELLY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Robert M. Greenspan for appellant.
Renée M. Bunker, Assistant U.S. Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief, for
appellee.
November 18, 2011
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HOWARD, Circuit Judge.
Date Filed: 11/18/2011
Entry ID: 5596939
This case involves assessment of
whether an appearance compelled by a writ of habeas corpus ad
prosequendum by one federal district court to the custodian of an
individual detained in another federal district on the basis of
unrelated pending charges triggers the Speedy Trial Act's (STA)
30-day arrest to indictment clock with respect to the charges in
the jurisdiction that issued the writ.
question of first impression.
This appears to be a
We hold that the STA was not
triggered and affirm the decision of the district court denying the
motion to dismiss the indictment for violation of the STA.
I.
On May 17, 2006, a two-count criminal complaint was filed
in the U.S. District Court for the District of Maine against Howard
Kelly.
The complaint alleged that Kelly had committed identity
theft and aggravated identity theft in violation of 18 U.S.C. §§
1028(a)(7) and 1028A(a)(1).
An arrest warrant was issued the same
day, but was not executed, as Kelly was not in Maine at the time.
Kelly was in federal custody in New York on different
charges.
On October 21, 2005, a complaint had been filed in the
Western District of New York, alleging that Kelly had knowingly and
unlawfully escaped from a halfway house in that district earlier
that month.
Kelly was arrested in New Hampshire on that New York
charge on May 9, 2006.
The New Hampshire district court held a
detention hearing on May 11, and afterwards ordered that Kelly be
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detained pending trial, and be committed to the custody of the
Attorney General "for transport to the Western District of New
York" to answer the indictment that issued in the Western District
on the same day.
Kelly was moved to New York and the New York case
moved forward during the summer of 2006.
Back in Maine, on September 28, 2006, the United States
moved for a writ of habeas corpus ad prosequendum, requesting
Kelly's presence for an initial appearance on October 23, 2006, to
respond to the Maine federal criminal complaint.
The writ was
granted by the Maine district court the next day.
Kelly was
transported to Maine on October 18, 2006, under the writ, and
appeared before the Maine court.
He waived his right to a hearing
and consented to being detained in the District of Maine.
He
remained in custody in Maine until Feb 13, 2007, when he was
transported to New York.
He was in New York when he was indicted
in Maine on the charges in this case on December 19, 2007.
The prosecution and defense filed, in the Maine action,
two joint motions to exclude time under the STA, on November 27 and
December 26, 2006.
These motions represented that "the defendant
wishes to seek additional time to reach an alternate resolution to
this case that would negate the need for an indictment," and that
"the defendant is facing charges in another jurisdiction [New York]
and wishes to seek additional time to reach an alternate resolution
to those cases."
The court allowed the motions and its orders
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excluded the time between November 22, 2006, and January 24, 2007,
from the STA calculation.1
Kelly was convicted in New York and sentenced to 54
months imprisonment on May 6, 2008.
He was returned to Maine on
July 17, 2008, and was arraigned there on July 25, 2008.
Upon his return to Maine, various proceedings took place
before the district court.
Of particular relevance to this appeal
is Kelly's motion, filed on September 8, 2008, for dismissal of the
Maine federal indictment based on an alleged STA violation.
Kelly
argued that his initial Maine appearance took place on October 23,
2006, while the indictment was not issued until December 19, 2007,
and that this violated the STA's requirement that the indictment
issue within 30 days "from the date on which such individual was
arrested or served with a summons in connection with such charges."
18 U.S.C. § 3161(b) (emphasis added).
The government opposed the
motion and Kelly requested a hearing, which was held on December 4,
2008.
The magistrate judge issued a report and recommendation
on December 30, 2008, recommending that Kelly's motion to dismiss
the indictment be denied.
The magistrate judge first noted that
"[f]rom all that appears in the record, this defendant was never
arrested or served with a summons in connection with the Maine
1
Other orders were issued in the Western District of New
York, excluding various segments of time from the STA period for
that case.
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charge.
Thus, at least technically, the Act appears not to apply
at all."
The magistrate judge further noted that even if the STA
did apply, it had not been violated, because the time spent in
Maine was "devoted to an attempt to resolve the New York charge
along with the Maine charge," and as a result was excludable delay.
See 18 U.S.C. § 3161(h)(1) (excluding "[a]ny period of delay
resulting
from
other
proceedings
concerning
the
defendant,
including but not limited to" eight particular examples).
Despite
Kelly's objection, the district court adopted the report and
recommendation on March 26, 2009, explaining that "the delay in
this Maine case resulted from the defendant's attempt to resolve,
while here, the New York escape charge."
On May 28, 2009, Kelly entered a conditional guilty plea
on the Maine charges, but reserved his right to challenge the March
26 order denying his motion to dismiss the indictment based on the
purported STA violation. The district court accepted the plea, and
Kelly was sentenced to a term of 70 months on November 24, 2009.
Kelly now appeals, raising a single challenge: that the
delay between his appearance in Maine on October 23, 2006, pursuant
to the writ of habeas corpus ad prosequendum, and the issuance of
the Maine indictment on December 19, 2007, violated the STA and
required
dismissal
of
the
indictment,
§§ 3161(b), 3162(a)(1).
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pursuant
to
18
U.S.C.
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II.
Because this case involves interaction between the STA
and writs of habeas corpus ad prosequendum, some context for each
may be of use.
A.
The Speedy Trial Act
Enacted in 1974 and amended in 1979, the STA imposes a
variety of time limitations designed to ensure a speedy trial.
First, the STA has a 30-day arrest to indictment requirement, which
requires "[a]ny information or indictment charging an individual
with the commission of an offense" to "be filed within thirty days
from the date on which such individual was arrested or served with
a summons in connection with such charges."
18 U.S.C. § 3161(b).
The purpose of this requirement "is to ensure that the defendant is
not held under an arrest warrant for an excessive period without
receiving formal notice of the charge against which he must prepare
to defend himself."
United States v. Spagnuolo, 469 F.3d 39, 43
(1st Cir. 2006) (quoting United States v. Meade, 110 F.3d 190, 200
(1st Cir. 1997)) (internal quotation marks omitted).
Second, the Act imposes a separate 70-day indictment to
trial requirement, requiring that a trial "commence within seventy
days from the filing date (and making public) of the information or
indictment, or from the date the defendant has appeared before a
judicial officer of the court in which such charge is pending,
whichever date last occurs."
18 U.S.C. § 3161(c)(1).
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Not every calendar day constitutes a "day" for purposes
of the STA, however; certain "periods of delay shall be excluded in
computing
the time"
under
both
indictment to trial sections.
the
arrest
to
Id. § 3161(h).
indictment
and
For example, delay
"resulting from other proceedings concerning the defendant," such
as that resulting from the filing of pretrial motions or the
court's
consideration
§ 3161(h)(1).
of
plea
agreements,
is
excluded.
Id.
The parties may request continuances, which the
court may grant if consideration of several factors supports
granting such a continuance.
Id. § 3161(h)(7).
If an indictment or information is not filed within the
30-day limit, the court must dismiss the charges, either with or
without prejudice, based upon consideration of several factors.
Id. § 3162(a)(1).
A similar provision requires dismissal if the
70-day indictment to trial limit is violated.
Id. § 3162(a)(2).
The Act also addresses individuals charged with federal
crimes who are already serving a term of imprisonment.
Section
3161(j) provides that "[i]f the attorney for the Government knows
that a person charged with an
offense is serving a term of
imprisonment in any penal institution, he shall promptly (A)
undertake to obtain the presence of the prisoner for trial; or (B)
cause
a
detainer
§ 3161(j)(1).
to
be
filed"
regarding
the
prisoner.
Id.
"When the person having custody of the prisoner
receives . . . a properly supported request for temporary custody
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of such prisoner for trial, the prisoner shall be made available to
that attorney for the Government . . . ."
B.
Id. § 3161(j)(4).
Habeas Corpus Ad Prosequendum
Habeas
corpus
ad
prosequendum,
a
writ
derived
from
English common law, has historically been "issue[d] when it [wa]s
necessary to remove a prisoner, in order to prosecute . . . in any
court, or to be tried in the proper jurisdiction wherein the fact
was committed."2
3 William Blackstone, Commentaries *130.
In the
United States, this writ has "a long history, dating back to the
First Judiciary Act."
(1978).
Its
United States v. Mauro, 436 U.S. 340, 360
issuance
is
currently
authorized
by
28
U.S.C.
§ 2241(c)(5), which allows for a writ of habeas corpus to extend to
a prisoner when "[i]t is necessary to bring him into court . . .
for trial."
The
writ
is
"issued
directly
by
a
court
of
the
jurisdiction where an indictment, information, or complaint has
been lodged against the prisoner."
389 (4th Cir. 1993).
prisoner's
Stewart v. Bailey, 7 F.3d 384,
It operates as "a court order requesting the
appearance
to
answer
2
charges
in
the
summoning
"Habeas corpus" is a "generic term" which includes a
variety of "species of that writ." Ex parte Bollman, 8 U.S. 75, 95
(1807). The most commonly seen form is the "Great Writ" of habeas
corpus ad subjiciendum, which allows for an inquiry into the cause
of restraint. Carbo v. United States, 364 U.S. 611, 615 (1961);
Bollman, 8 U.S. at 95. The writ of habeas corpus ad testificandum
is used to bring prisoners "into court to testify."
28 U.S.C.
§ 2241(c)(5); Bollman, 8 U.S. at 98. Other forms exist as well.
See Bollman, 8 U.S. at 97-98.
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jurisdiction."
Id.
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The writ of habeas corpus ad prosequendum,
like other writs of habeas corpus, is issued to the custodian of
the detained individual.3
The writ allows the issuing court4 to "obtain temporary
custody of the prisoner."
Mauro, 436 U.S. at 362.
The nature of
the writ is such that "the sending state retains full jurisdiction
over the prisoner since the prisoner is only 'on loan' to the
prosecuting jurisdiction."5
Flick v. Blevins, 887 F.2d 778, 781
(7th Cir. 1989); Stewart, 7 F.3d at 389 ("A prisoner is not even
'in custody' [of the summoning jurisdiction] when he appears in
[that] jurisdiction's court pursuant to an ad prosequendum writ; he
is merely 'on loan' to that jurisdiction's authorities."); Crawford
v. Jackson, 589 F.2d 693, 695-96 (D.C. Cir. 1978) ("When an accused
is transferred pursuant to a writ of habeas corpus ad prosequendum
3
Here, the writ ordered Kelly's custodian, the Buffalo
Federal Detention Facility, as well as the United States Marshal
for the district, to produce Kelly at the date and time specified
in the writ.
4
A court issuing a writ ad prosequendum "suffers no
geographical limitations" in use of the writ, Carbo, 364 U.S. at
620, and thus may issue such writs to other districts, in contrast
to the Great Writ, which was "issuable only in the district of
confinement," id. at 618.
5
Based on this reasoning, courts have concluded that where
a state prisoner is in federal custody pursuant to such a writ,
that time is credited to the state, rather than federal, sentence.
See, e.g., Easley v. Stepp, 5 Fed. App'x 541, 543 (7th Cir. 2001);
Crawford v. Jackson, 589 F.2d 693, 695-96 (D.C. Cir. 1978). One
court has similarly concluded that the issuance of such a writ does
not "effect a transfer of custody" for purposes of 18 U.S.C.
§ 751(a), which makes escape from federal custody a crime. United
States v. Evans, 159 F.3d 908, 911-12 (4th Cir. 1998).
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he is considered to be 'on loan' to the federal authorities so that
the
sending
state's
jurisdiction
over
the
accused
continues
uninterruptedly," even when the writ is "arguably expired").
III.
We review issues of law under the STA de novo and review
factual determinations for clear error.
See United States v.
Pakala, 568 F.3d 47, 57 (1st Cir. 2009).
The government raises three arguments as to why the STA
was
not
violated.
First,
it
contends
that
because
Kelly's
appearance in Maine was procured via a writ of habeas corpus ad
prosequendum, there was no "arrest" or "summons" within the meaning
of the STA, and thus its requirement that the indictment be issued
within 30 days of such an arrest or summons was never triggered.
Second, the government asserts that if the Act was triggered, there
was no violation because sufficient time was excludable under
various § 3161(h) exceptions such that the 30-day limit was not
exceeded.
Finally, the government argues that even if the 30-day
limit was triggered and exceeded, only a portion of the indictment
should be dismissed.
Because we agree with the government's first
argument, we need not consider the latter two.
The STA provides, in relevant part:
Any information or indictment charging an
individual with the commission of an offense
shall be filed within thirty days from the
date on which such individual was arrested or
served with a summons in connection with such
charges.
If an individual has been charged
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with a felony in a district in which no grand
jury has been in session during such thirtyday period, the period of time for filing of
the indictment shall be extended an additional
thirty days.
18 U.S.C. § 3161(b).
The question presented here is whether an
appearance
writ
under
a
of
habeas
corpus
ad
constitutes an "arrest" or "summons" under the STA.
that it does not.
prosequendum
We conclude
We also find that Kelly's New Hampshire arrest
on the New York charge was not "in connection with" the Maine
charges.
Accordingly, the Act's 30-day arrest to indictment
provision was not triggered with respect to the Maine charges.
We begin our analysis by reviewing the plain language of
the STA.
The Act, by its terms, applies only where there is an
"arrest" or service of a "summons" in connection with the relevant
federal charges.
18 U.S.C. § 3161(b).
Issuance of a writ of
habeas corpus ad prosequendum is neither an arrest nor a summons.
Unlike an arrest, where an individual is taken into custody, the
writ requires only a temporary physical transfer of an already
detained individual. See Black's Law Dictionary 124 (9th ed. 2009)
(defining arrest as "[t]he taking . . . of a person in custody by
legal authority . . . the apprehension of someone").
Full custody
remains in the jurisdiction of detention; at best, custody under
the writ is temporary and limited. Moreover, unlike a summons, the
writ is issued not to the individual, but instead to the custodian,
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directing transfer of the defendant.
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Thus, the issuance of the
writ, by the literal terms of the statute, did not trigger the STA.
Two other interpretive rules reinforce this conclusion.
The language of the STA operates against the backdrop of Rule 4 of
the
Federal
Rules
of
Criminal
Procedure,
which
provides
the
mechanism for issuing an arrest warrant or a summons: after a
complaint establishes probable cause, "the judge must issue an
arrest warrant to an officer authorized to execute it," although at
the request of the government "the judge must issue a summons
. . . to a person authorized to serve it."
Fed. R. Crim. P. 4(a).
Arrest warrants are executed by "arresting the defendant," while
summons are issued by "ser[vice] on an individual defendant." Fed.
R. Crim. P. 4(c)(3)(A), (B).
The rule makes clear that writs ad
prosequendum are not arrests or summonses, as such writs involve
neither issuance nor execution of an arrest warrant nor service of
a summons on an individual defendant.
Moreover, an arrest under the STA is typically the
"beginning of continuing restraints on [a] defendant's liberty
imposed in connection with the formal charge on which [a] defendant
is eventually tried."
Acha v. United States, 910 F.2d 28, 30 (1st
Cir. 1990) (per curiam) (quoting United States v. Stead, 745 F.2d
1170, 1172 (8th Cir. 1984)) (emphasis added) (internal quotation
mark omitted).
Issuance of the writ ad prosequendum is not the
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beginning point of such restraints; by definition such writs only
issue to those already in custody on other charges.
Second,
enacting the STA.
Congress
expressly
considered
the
writ
in
"[T]he issuance of ad prosequendum writs by
federal courts has a long history, dating back to the First
Judiciary Act.
We can therefore assume that Congress was well
aware of the use of such writs by the Federal Government" when it
enacted the STA.
See Mauro, 436 U.S. at 360.
That background
assumption is supported by another provision of the Act which
expressly addresses such writs.
Section 3161(j)(1) provides that
"[i]f the attorney for the Government knows that a person charged
with an offense is serving a term of imprisonment in any penal
institution, he shall promptly . . . undertake to obtain the
presence of the prisoner for trial," or file a detainer. 18 U.S.C.
§ 3161(j)(1).
When the person "having custody of the prisoner"
receives such a "request for temporary custody of such prisoner,"
"the
prisoner
§ 3161(j)(4).
shall
be
made
available"
for
trial.
Id.
This language has been interpreted to authorize
issuance of writs of habeas corpus ad prosequendum to procure
defendants' attendance at trial.
Mauro, 436 U.S. at 362 n.27.
Section 3161(j) demonstrates that Congress was acutely
aware of the use of such writs, and could easily have drafted
§ 3161(b) to include their issuance as a trigger of the 30-day
indictment clock, but chose not to do so.
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could also have written § 3161(j) to apply to individuals detained
awaiting trial, rather than limiting its application to individuals
"serving a term of imprisonment," but again chose not to do so.
See 18 U.S.C. §
3161(j)(1).
The language of § 3161(j) also makes
clear that writs of habeas corpus ad prosequendum are merely
"requests for temporary custody," rather than an "arrest" or a
"summons."
Id.
Case law addressing similar situations under the STA
supports the conclusion that the Act was not triggered in this
case.
In a variety of circumstances, courts have held that where
an arrest is justified independently, and is based on charges
separate from those ultimately brought against the defendant, the
Act is not triggered with respect to such ultimate charges.
See
Acha, 910 F.2d at 30 ("The right to a speedy trial on a charge is
triggered by arrest only where the arrest is the beginning of
continuing
restraints
connection
with
the
on
[a]
formal
defendant's
charge
on
liberty
which
[a]
imposed
in
defendant
is
eventually tried.") (quoting United States v. Stead, 742 F.2d 1170,
1172 (8th Cir. 1984)) (emphasis added) (internal quotation marks
omitted).
As a result, in Acha, we held that the defendant's
arrest was based on and justified by a violation of his original
conviction's bail conditions, and at that time he had not yet been
charged with the separate offense of failing to appear before a
court.
Id. at 30.
With respect to that separate offense, "[i]t
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was only upon his [later] indictment that the time periods of the
Speedy Trial Act were triggered."
Id. at 30-31.
We also held that
when an escaped prisoner is arrested and later indicted for escape,
the "delay between a prisoner's recapture and his subsequent
indictment for escape does not violate his right to a speedy
trial," because such defendants are subject to recapture based on
the original conviction.
Id. at 31.
Similarly, we have held that where there is a civil
federal arrest, for instance on deportation charges, such an arrest
does not trigger the 30-day clock for any criminal charges the
government might bring, because such arrests are typically not "in
connection with" the later federal charge.
United States v.
Garcia-Martinez, 254 F.3d 16, 19 (1st Cir. 2001).
Where a state arrest takes place and the United States
later files a complaint and a detainer seeking to prosecute that
individual, there is no federal "arrest" under the Act, as the
individual is in custody based on state law violations. See, e.g.,
United States v. Taylor, 814 F.2d 172, 175 (5th Cir. 1987); United
States v. Copley, 774 F.2d 728, 730 (6th Cir. 1985).
Finally, in the Sixth Amendment speedy trial context, we
have addressed the question of when the right to a speedy trial
attaches when a defendant has a complaint filed against him, is
thereafter taken into custody for an unrelated crime, and is
subsequently indicted.
Rashad v. Walsh, 300 F.3d 27, 35 (1st Cir.
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2002). We held that the Sixth Amendment right did not attach until
indictment, because the state arrest was "of no consequence unless
that detention was related to the charges on which his speedy trial
claim is based."
Id. at 36.
While none of these decisions are directly on-point, they
provide analogues to the situation presented here.
Kelly was
initially arrested for an entirely separate crime6 on the basis of
a warrant issued by the Western District of New York.
That marked
the beginning of restraints on Kelly's liberty based on the New
York charge.
That arrest was not "in connection with" the Maine
charges, as they related to entirely separate facts, and the Maine
complaint had not even been filed at the time Kelly was arrested.
The writ ad prosequendum did not change any of this: Kelly was at
all relevant times in custody pursuant to the Western District's
authority, as the writ merely loaned him to the District of Maine
for appearance.
He was subject to detention based on the Western
District warrant, not the Maine warrant, and the Western District
charges remained the basis of his detention throughout the Maine
proceedings.
As a result, the STA's 30-day arrest to indictment
6
We need not address here what rule might apply where "a
defendant has not yet been convicted but is arrested on one charge
and later indicted for a similar charge" in another jurisdiction,
as such facts are not present. Acha v. United States, 910 F.2d 28,
31 (1st Cir. 1990) (per curiam).
Kelly's New York offense of
escape from custody was entirely unrelated to his Maine identity
theft charges.
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provision was not triggered in this case,7 as there was no arrest
or issuance of a summons in connection with the Maine charges.
We further note that this holding does not raise the
danger of indefinite detention under the writ pending trial, or of
prejudicial pre-indictment delay, because a variety of safeguards
beyond the STA exist to ensure that the criminal process moves
forward expeditiously.
The court issuing the writ ad prosequendum
has, inter alia, supervisory authority under Rule 48 of the Federal
Rules of Criminal Procedure to "dismiss an indictment, information,
or complaint if unnecessary delay occurs in: (1) presenting a
charge to a grand jury; (2) filing an information against a
defendant; or (3) bringing a defendant to trial."
48(b).
Fed. R. Crim. P.
This rule is a "restatement of the inherent power of the
court to dismiss a case for want of prosecution," United States v.
Correia, 531 F.2d 1095, 1099 (1st Cir. 1976) (internal quotation
mark omitted), and can sometimes be exercised in situations where
the Sixth Amendment or STA might not apply.
See Id.
Facts such as
these may also raise constitutional restraints.
There was no injustice here.
Kelly chose to prolong his
detention in Maine under the writ in order to attempt to negotiate
plea agreements favorable to him in both Maine and New York.
7
By contrast, the 70-day indictment to trial requirement of
§ 3161(c)(1) was triggered when the indictment was filed and made
public.
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IV.
Because the 30-day arrest to indictment clock was not
triggered, there was no Speedy Trial Act violation and the motion
to dismiss was properly denied.
district court.
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We affirm the judgment of the
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