USA v. Bisong, John
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OPINION filed [1308949] (Pages: 29) for the Court by Judge Rogers [08-3014]
USCA Case #08-3014
Document #1308949
Filed: 05/20/2011
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 11, 2011
Decided May 20, 2011
No. 08-3014
UNITED STATES OF AMERICA,
APPELLEE
v.
JOHN BISONG, ALSO KNOWN AS JOHN BISONG ATEM,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 02cr00242-01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth
Trosman, and Steven J. Durham, Assistant U.S. Attorneys.
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Before: ROGERS and KAVANAUGH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: John Bisong, aka John Bisong
Atem, appeals his conviction by a jury of seven counts of bank
fraud and four counts of immigration fraud, 18 U.S.C. §§ 1344
& 1546(a), whereby he filed hundreds of applications for labor
certification containing false representations that various shell
companies he controlled would employ his alien clients and he
reproduced counterfeit checks to draw on his clients’ banks
accounts involving hundreds of thousands of dollars. He
challenges the district court’s decision to allow him to represent
himself at trial, an alleged denial of his right to prepare his
defense, and various rulings made by the district court in
sentencing. Only the first requires extended discussion.
Bisong contends that the district court erred in determining
that his waiver of his right to counsel under the Sixth
Amendment to the U.S. Constitution was unequivocal and
voluntary, knowing, and intelligent. Specifically, he contends
that the district court, after initially denying his motion to
represent himself and appointing an assistant Federal Public
Defender (“AFPD”) to represent him for four months, was
required to inquire again whether his request to represent
himself was unequivocal despite the passage of time and to
repeat its prior admonishments on the dangers of self
representation in order to ensure that his decision to represent
himself, with standby counsel, was voluntary, knowing, and
intelligent under Faretta v. California, 422 U.S. 806 (1975).
Although the district court might have been well advised to
inquire about Bisong’s waiver of counsel on the same day it
accepted the waiver, viewing the proceedings as a whole, we
conclude that the district court’s colloquy was constitutionally
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adequate to confirm that he voluntarily chose to represent
himself and did so knowingly and intelligently.
Further, assuming there is a Sixth Amendment right to
prepare a pro se defense upon self-representation, Bisong fails
to show he was denied adequate access to business records
seized by law enforcement or that he was prejudiced in his
defense by limitations on access to those materials and other
government discovery. Documents were turned over by the
prosecutor to both his retained counsel and the AFPD who
remained as Bisong’s standby counsel at trial, Bisong advised
both counsel of the business records he sought, and the district
court afforded him time to review them.
Finally, all but one of Bisong’s challenges to the
enhancements imposed by the district court in sentencing lack
merit, and as to that enhancement there was insufficient
evidence to show that Bisong was a leader under U.S.
Sentencing Guidelines § 3B1.1. Accordingly, we affirm his
conviction and remand for resentencing.
I.
In a superseding indictment of September 25, 2002, Bisong
was charged with operating, from March 1999 to January 2002,
immigration fraud and check fraud schemes principally through
the American Immigration Agency (“AIA”), which offered
foreign nationals assistance in obtaining U.S. immigration
documents, such as I-551 forms (i.e., “green cards”). The
immigration fraud scheme involved filing 183 Applications for
Alien Employment Certification (i.e., ETA-750 forms) that
certified that the employer had sufficient funds to pay the alien
and would be able to place the alien on payroll on or before the
date of the alien’s proposed entrance into the United States. See
8 U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A). Bisong allegedly
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promised clients that for a fee he would obtain green cards for
them, within twelve months or their money would be refunded,
by finding employment for them. Instead of finding legitimate
employment, Bisong represented on the ETA-750 forms that his
clients would be employed at one of twelve companies
controlled by Bisong, knowing those companies lacked the
resources to hire all of the aliens and would not in fact hire
them. The bank fraud scheme involved Bisong stealing at least
$260,850 from AIA clients by creating on his computer
counterfeit checks made payable to AIA or one of his affiliated
companies, using information provided on the legitimate checks,
such as the routing number, and depositing the counterfeit
checks drawn on several banks and federal credit unions into the
AIA and affiliated accounts.
At his arraignment on June 17, 2002, Bisong was
represented by Assistant Federal Public Defender (“AFPD”)
David Bos. Bisong pleaded not guilty to the charges in the May
31, 2002 indictment and he remained in custody unable to make
bond. Retained counsel John Iweanoge entered his appearance
on July 9, 2002 and shortly thereafter moved for expedited
reconsideration of Bisong’s bond. Iweanoge filed a renewed
motion on September 19 when no action had been taken on his
prior motion and requested an immediate hearing.
On October 30, 2002 Bisong wrote the first of three letters
to the district court judge. In that letter Bisong expressed
frustration over his representation and the pace of the
proceedings. He claimed that continuances had been sought by
both Bos and Iweanoge without his consent when he sought a
speedy trial. He also stated that he had been unable to pay
retained counsel and “cannot expect [Iweanoge] to spend money
out of his own resources to do investigations on my case, gather
evidence and arrange for witnesses to come to this court to
testify.” He claimed to be placed at a “grave disadvantage”
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because of the volume of documents seized by the government,
noting that it would take a lawyer “a minimum of 30 full days of
hard work just to go through every paper [] seized, searching for
what I need, and a minimum of 100 days just to go through
every document stored in all the computers seized — assuming
he is an expert in computers.” He reported that Bos did not
devote time to his case and “always told [Bisong] that he had so
many other cases worse than [Bisong’s] and he had to give them
higher priority.” Bisong further claimed that “to be able to
defend [him] properly” an attorney would need to be familiar
with “not only criminal law, but also business and corporate
laws, immigration laws, labor laws, tax laws, international
affairs and cultures and citizenship issues” as well as “how to
reason and see things as leaders, businesspersons and people
with vision do,” and “must also have time to study and
understand all these issues pertaining to my situation.”
Iweanoge, Bisong continued, “seem[ed] to be frustrated with
[the] case,” and Bisong stated that he was “losing [his] trust in
[Iweanoge’s] willingness to represent [his] best interest.” “I do
not know,” Bisong wrote, “why he has not yet withdrawn from
the case.”
In a second letter of November 5, 2002, Bisong renewed his
request for reconsideration of his bond and asked that a trial date
be set for that month and that the District of Columbia detention
facility where he was housed be ordered to give him “full-time
access” to telephone, fax machine, email and library resources
as well as access to all evidence the government seized. Bisong
warned: “I may have to represent myself in the trial because I
cannot pay my lawyer.” In his view, “lawyers and public
defenders” would not “be able to invest such amount of time” as
necessary to defend his case. On November 12, 2002, Bisong
wrote the district court judge that he needed his “help and
immediate action.” Meanwhile, on November 7, 2002,
Iweanoge filed a motion to withdraw as counsel or alternatively
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to certify payment of counsel fees by the district court, citing the
lack of payment and counsel’s unavailability for trial after
December 20, 2002.
The district court held a hearing on the pending motions on
November 25, 2002. During this hearing, the district court
asked how Bisong wanted to proceed. First, regarding the status
of counsel, Iweanoge stated that “Bisong would like me to
continue to represent him if I’m going to be available to try to
the case,” but “wishes to be tried as soon as possible,” noting
that Bisong was presently “unable to pay [him] . . . to represent
him” and “has been unable to play [sic]” because he is
incarcerated and unable to make bond. Tr. 4–5 (Nov. 25, 2002).
Iweanoge advised he would be available to try the case the
following week but had prior commitments in other district
courts starting December 18 and would be unavailable thereafter
until June 2003. Id. at 5–6. Regarding Bisong’s views,
Iweanoge stated that “if he’s going to continue to be
incarcerated, then [Bisong] would rather go to trial with another
lawyer even though I know that his correspondence with the
[district] court . . . is that he would rather proceed by himself,
but I’ve advised him and I believe he would be willing to have
another lawyer represent him.” Id. at 6–7. Upon consulting
with Bisong, Iweanoge advised that “he doesn’t want to be
represented by the public defender, that he would rather
represent himself if he’s not going to be released pending the
trial . . . when I’m going to be available.” Id. at 7. The district
court asked: “He wants to represent himself?” Iweanoge
answered “Yes, Your Honor.” The court: “He wants to be his
own lawyer?” Iweanoge answered “Yes, Your Honor.”
The district court then addressed Bisong directly: “That’s a
course of action that is ill-advised in the extreme,” and noted
that “a person who represents [himself] has a fool for a client.”
Id. at 7. Continuing, the district court stated “I’m going to
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discourage you in the strongest possible terms from representing
yourself.” Id. at 8. The district court explained to Bisong:
The most sophisticated lawyers that practice in this
courthouse would have a hard time trying this case
because of the subtleties and because of the
complexities of the way the evidence, the documentary
evidence, the evidence that has susceptibility to
objections and so forth are shaped. . . . If you go to
trial [without counsel] . . . I [will] hold you to the same
rules as I hold any lawyer. I cannot favor you and not
favor the other side . . . . So you would have to do what
any person who represents a party before the court has
to do and that is come up to speed on everything that
you need to know in order to try a case. . . . So I want
to impress [upon] you [ ] the perils of trying to do
something which most good lawyers cannot do
themselves because [the court is] not going to change
the rules for you.
Id.
Second, after conferring with counsel for the parties to
identify a way in which Bisong could inform his counsel of the
documents he needed to see, the district court reaffirmed with
Iweanoge that “Bisong is not interested in having another
attorney anymore” and asked Bisong what he wanted to do
inasmuch as Iweanoge would be unable to try the case. Id. at
34. Bisong asked what would be the earliest trial date if he
represented himself, and the district court reviewed avenues it
would explore to find a way to proceed promptly. The district
court then repeated its advice to Bisong: “I cannot be more
emphatic when I say how incredibly unwise it would be for you
to try this case yourself,” id. at 36, and explained that selfrepresentation “is going to raise the likelihood of your
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conviction.” Id. Bisong responded that he had “spent so much
time in jail already” that he “really want[ed] to get this over
with.” Id. The district court inquired of the prosecutor what the
potential sentence could be. The prosecutor did not have the
“final calculation,” id., but stated, based on the plea offer, that
“it is a significant period of incarceration,” id. The district court
addressed Bisong:
I’ve been doing this for 22 years and I’m telling you it
is very unwise of you. Even if this were a simple civil
case, I would be very animated in discouraging you,
whichever side you’re on, not to do this. On the other
hand this is a serious criminal case and you’re facing
the potential of 70 to 87 months should you be
convicted and I told you — I’m assuming that you are
a very bright man. My comments have nothing to do
with your capabilities, your intellectual aptitude or
acumen. It has to do with the complexity of this case.
Id. at 37.
Third, when Bisong responded that he was “relying on the
truth of the case,” id., the district court warned him that “to . . .
present the truth of the case, it takes skill. . . . [The government
has] a legion of evidence that [it] intends to present and that will
be what you are contending with.” Id. at 37–38. The district
court emphasized that Bisong’s “liberty interest [is] at risk,” and
that by “represent[ing] yourself . . . you have an array of rights
which you will be putting on the line,” for example, “decid[ing]
whether you’re going to testify or not” and noting that “once
you get on the stand, you give up your Fifth Amendment
privilege.” Id. at 38. The district court continued:
So therefore it would be [a] very unfortunate outcome
for you, and I understand why you are in a hurry, to say
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you want to get it over with . . . because of your desire
to expedite things, to put yourself in grave risk when
waiting and having the benefit of counsel who can
screen and, as your attorney has done, . . . do[] a very
impressive job of covering all the bases and attacking
all the vulnerabilities in the government’s case and
demanding all the things that he, as your attorney,
believes you’re entitled to . . . . These are the kinds of
protection that you would be giving up if you decided
to represent yourself since you’re not an attorney.
Id. at 39. Bisong responded, “Your Honor, I probably have to
take the risk for the people who are suffering” because he was
detained. Id. The district court asked Bisong whether he
thought the “situation is going to improve if you are convicted
. . . and . . . sentenced,” warning that conviction was a “real
possibility based on what the government’s evidence shows so
far if what you’re going to use to meet that evidence is just your
own skills, rather than those of any attorney.” Id. at 39–40.
Bisong responded, “if I have my things,” then he could prove
that the government’s allegations were untrue. Id. at 41. The
district court advised Iweanoge to talk with Bisong some more,
to help Bisong “understand what he’s asking the court to do,”
id., and Iweanoge said he would. Confirming with the
prosecutor that the trial would take approximately two weeks,
the district court inquired again if Bisong “wish[ed] to try this
case without the assistance of counsel.” Id. at 42. Bisong
responded, it was acceptable to give him “somebody to advise
[him]” or to allow him to “select another attorney” at court
expense. Id. Another option, Bisong suggested, was to release
him so he could work to pay for an attorney. Id. at 43.
The matter of self-representation was not resolved at this
time, however. After explaining to Bisong how the attorneyappointment process worked, the district court stated that it was
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going to keep Iweanoge in the case “for the present,” id. at 44,
to explore the release-to-work option, ask the Federal Public
Defender to confer with Iweanoge, and hold an ascertainmentof-counsel conference the following week. Toward the end of
the November 25 hearing, AFPD Shawn Moore appeared in
response to a telephone call and advised the district court that
either he or Bos could take over representation, depending on
the trial date. Id. at 47–48. At the ascertainment-of-counsel
conference on December 11, 2002, Bisong, who had since
conferred with Moore, stated he “really appreciate[d] [the
district court’s] [m]aking the effort to try to represent my best
interest in this court but . . . I still feel that I have to represent
myself . . . [and] I would like Mr. Moore to assist me in the
process . . . .” Tr. 3 (Dec. 11, 2002). The district court
responded, “Very well. That is fine,” id. The district court
inquired whether Moore would be agreeable to act as standby
counsel for Bisong; Moore said he would.
The self-representation issue was effectively resolved at the
January 21, 2003 status conference. The district court granted
Iweanoge’s motion to withdraw and appointed AFPD Moore as
Bisong’s attorney, assuring Bisong that Moore was “an
extraordinary attorney.” Tr. 5 (Jan. 21, 2003). Addressing
Bisong’s concern that Moore might not have the time or the
background to handle his “complicated” case, id. at 9, the
district court told Bisong that “[i]f Mr. Moore doesn’t have the
time or the expertise in some given area, I am sure he will let me
know.” Id. at 10. Shortly thereafter Moore entered his
appearance and secured Bisong’s release into third-party
custody so Bisong could earn money to hire counsel, with the
district court commenting this was only possible due to the
“efforts of” Moore, who had “done everything that he [could]
possibly do and done it appropriately in getting the matter to this
stage.” Tr. 21 (Feb. 21, 2003). Due to an outstanding
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immigration detainer, however, Bisong was immediately taken
into custody and transferred to a facility in southern Virginia.
On April 29, 2003, the parties filed a joint pretrial
statement, styled as a statement by the United States and Bisong
“through his amicus counsel” Moore. Parties’ Joint Pretrial
Statement 1, 02-CR-242 (RMU), ECF No. 62. The statement
alerted the district court that “Bisong has stated his intention to
represent himself during th[e] trial” with Moore serving as
standby counsel. Appended to the joint statement was the
government’s motion in limine for an order governing pro se
conduct at trial, noting that the district court had “counseled
[Bisong] concerning the potential disadvantages and risks
associated with self-representation” but suggesting the district
court “should again question [Bisong] before the
commencement of []his trial to insure that [his] waiver of
counsel is knowing, intelligent, and voluntary.” Government’s
Motion in Limine for Order Governing Conduct of Pro Se
Litigant at Trial 2 & n.2, 02-CR-242 (RMU), ECF No. 62.
At the pretrial conference on May 12, 2003, the district
court did not ask Bisong whether he still wished to represent
himself. Instead, in reviewing how the trial would proceed, the
district court asked Moore and Bisong what they proposed.
Moore advised that he “believe[d] that Mr. Bisong still wishes
to represent himself” and that Bisong would present the opening
and closing statements and examine the witnesses. Tr. 4–5
(May 12, 2003). The district court asked Bisong whether he had
any problem reading or writing English, which Bisong
confirmed he did not. When the district court inquired whether
Bisong had read the standing order that would govern the
conduct of the trial, Moore stated he would get a copy of the
order to Bisong that day. In the meantime, the district court
reviewed the standing order with Bisong, stating: “First of all,
let me emphasize that you do have the right to represent yourself
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and you have Mr. Moore . . . to assist you in whatever way is
appropriate and necessary,” id. at 6, but “it is not an absolute
right . . . if I come to conclude that in the course of representing
yourself . . . you are deliberately engaging in any kind of
obstructionist conduct, or if you are misbehaving, or . . . doing
things that are contrary to . . . the standing order,” id. at 6. The
district court gave examples and continued reviewing the
standing order with Bisong, during which Bisong repeatedly
nodded or affirmatively indicated that he understood. The
district court then formally granted Bisong’s motion to represent
himself, finding “at th[is] juncture . . it [is] Mr. Bisong’s firm
decision . . . to represent himself with the assistance of counsel,
Mr. Shawn Moore.” Id. at 15–16.
The issue of Bisong’s access to seized documents remained
unresolved. When the district court asked Bisong “is there
anything else that you want to alert the court to or request,” id.
at 20, Bisong stated that “[u]p to this date [he had] not yet had
access to most [of the] evidence.” Id. Moore advised the
district court that he would be returning to the U.S. attorney’s
office to retrieve documents at Bisong’s request but that the
boxes of evidence could not be made available to Bisong at the
southern Virginia facility. The district court, satisfied with
Moore’s assurance that he would retrieve documents and that
Bisong’s transfer, at Moore’s request, to a facility closer to the
district court, would make him “more at hand,” id. at 21,
confirmed with Moore that Bisong had explained what it is he
wished to see and Moore was prepared to look for what Bisong
had requested. The district court concluded “[t]hen we will
proceed with the commencement of trial on June 2nd.” Id.
On May 16, 2003, Bisong (through Moore) filed a motion
to continue the trial, explaining that he was also representing
himself in a pending immigration matter and wanted to take that
matter to an initial decision before turning to the criminal case.
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The district court denied the motion. On May 27, 2003, Moore
moved to have Bisong immediately transferred to D.C. Jail in
view of his recent discovery that the Arlington County Jail
would not permit contact visits with out-of-state attorneys,
hindering his ability to share discovery with Bisong. The
district court granted the motion. The following day Bisong was
transferred to the Arlington County Jail but not to D.C. Jail until
June, 2, 2003, the first day of trial. On the morning trial was to
commence, Moore requested on Bisong’s behalf that the
presentation of evidence be continued for two days. The district
court decided to proceed with jury selection and start the
presentation of evidence the following day at 1:45 PM. Bisong
stated that he had “not yet gone through any of the discovery,”
Tr. 8 (June 2, 2003), although Moore had received three boxes
from the government, and that it was “very, very difficult” to tell
what he would need without checking the seized computers
where most of the files were stored. Id. at 8–9. In response,
Moore assured the district court that he had reviewed all the
available evidence and the prosecutor stated that he would assist
review and retrieval of the evidence. The district court advised
Bisong that he could have use of the courtroom to review
evidence. When at the end of trial the following day Bisong
expressed concern about his unfamiliarity with the evidence, the
district court pointed out that he would have Friday, when the
court was not in session, and the weekend for “additional
preparation,” Tr. 118 (June 3, 2003); see Tr. 170 (June 5, 2003).
On June 4, 2003, Moore ensured that Bisong could bring a
binder of evidence to the D.C. Jail. On June 5, 2003, the district
court informed the Deputy U.S. Marshals that it was “absolutely
imperative” that Bisong take boxes of documents to the D.C. Jail
for review, Tr. 170 (June 5, 2003).
Eight AIA clients testified at trial, none of whom had
received either green cards or their money back, and whose bank
accounts and routing numbers Bisong had used to generate
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counterfeit checks and withdraw money from their personal
accounts. Bisong testified in his defense that he had no criminal
knowledge or intent. See Tr. 53–148 (June 12, 2003); Tr. 2–70
(June 16, 2003). The jury found Bisong guilty as charged, of
seven counts of bank fraud in violation of 18 U.S.C. § 1344; id.
§ 2, and four counts of immigration fraud in violation of 18
U.S.C. § 1546(a); id. § 2. The district court sentenced Bisong to
188 months’ imprisonment, followed by five years’ supervised
release. Bisong appealed, and at the parties’ request this court
remanded for resentencing in view of United States v. Booker,
543 U.S. 220 (2005), without prejudice to his right to raise on
appeal from the resentencing any issues related to the original
judgment. United States v. Bisong, No. 04-3028 (Feb. 24,
2006). On remand the district court resentenced Bisong to 159
months’ incarceration followed by five years’ supervised
release.
II.
In Faretta, the Supreme Court held that in a criminal
prosecution the defendant has a constitutional right to proceed
without the counsel guaranteed by the Sixth Amendment when
the defendant unequivocally elects to do so and where that
election is voluntary, knowing, and intelligent. 422 U.S. at
835–36. As in prior cases, see Carnley v. Cochran, 369 U.S.
506, 513–16 (1961); Adams v. United States ex rel. McCann,
317 U.S. 269, 279 (1942); Johnson v. Zerbst, 304 U.S. 458,
464–65 (1938), the Court placed responsibility on the trial court
to ensure this right by conducting a colloquy: “Although a
defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose
self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will
establish that ‘he knows what he is doing and his choice is made
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with his eyes open.’” Faretta, 422 U.S. at 835 (quoting Adams,
317 U.S. at 279).
This court first applied Faretta in United States v. Bailey,
675 F.2d 1292 (D.C. Cir. 1982), a case Bisong urges provides
the rule of decision. We agree that Bailey provides significant
guidance on the disposition of Bisong’s appeal but conclude that
it supports affirmance of his conviction. In that case the
defendant requested the district court to vacate the appointment
of counsel and, in response to questioning by the district court,
stated that he was “intellectually capable” of representing
himself, had studied some law while imprisoned, and generally
thought that self-representation would “enhance” his
“possibilities” of acquittal. Id. at 1298. Exercising its
supervisory authority, this court “enjoined upon the [d]istrict
[c]ourt the practice of making clear on the record the awareness
by defendants of the dangers and disadvantages of selfrepresentation as to which the Supreme Court in Faretta had
voiced concern.” Id. at 1300. The court reiterated this standard
in United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1998),
explaining, however, that the court in Bailey “did not find that
a failure to make such a finding clear on the record required
reversal where the record as a whole indicated that the
defendant’s waiver of his right to counsel was knowing and
voluntary.” Id. at 1265.
As in Bailey, it is clear from the record that Bisong
“consciously and emphatically wanted to represent himself.”
675 F.2d at 1301. Bisong first advised the district court that he
might represent himself by letter of November 5, 2002. When
the subject of self-representation arose at the November 25,
2002 hearing, the district court urged Bisong to consider his
decision further, following a strong admonishment against such
a decision. At the December 11, 2002 ascertainment-of-counsel
conference, Bisong remained firm about representing himself
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while stating that he “appreciate[d]” the district court’s “effort
to try to represent [his] best interest.” Tr. 3 (Dec. 11, 2002). At
the January 21, 2003 status conference, even after the district
court described Moore as “an extraordinary attorney,” Tr. 5 (Jan.
21, 2003), and appointed Moore as Bisong’s counsel because it
had concluded Bisong was not “operating in his best behalf,” id.
at 6, Bisong confirmed that he still wanted to represent himself.
Notwithstanding the fact that the district court did not ask
Bisong to restate his self-representation request at the May 12,
2003 pretrial conference, Bisong participated in that hearing,
responding affirmatively when asked if he understood what
would be expected of him acting pro se at trial. Bisong was
present when Moore represented that Bisong wished to represent
himself. When the district court invited Bisong to raise any
other issues, the only issue he raised concerned access to
discovery, indicating, as do his letters to the district court, that
he was comfortable expressing his concerns. It passes belief on
such a record that Bisong’s decision to represent himself was
anything but conscious and emphatic. Indeed, the parallels
between this record and that in Bailey supports a finding of an
unequivocal waiver. In Bailey this court concluded that
representation by counsel for several weeks prior to selfrepresentation supported a finding of intentional waiver. 675
F.2d at 1301. Moore represented Bisong for four months prior
to the pretrial conference and as standby counsel thereafter.
Given Moore’s pretrial representation of Bisong and his active
participation during trial at Bisong’s request, it is not plausible
that Bisong viewed his decision to represent himself as
involuntary.
To the extent Bisong maintains his decision to waive
counsel was not voluntary because he faced a “Hobson’s choice”
between accepting ineffective appointed counsel and
representing himself, the record belies his claim. In United
States v. Cunningham, 145 F.3d 1385 (D.C. Cir. 1998), and in
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United States v. Hall, 610 F.3d 727 (D.C. Cir. 2010), the court
acknowledged that if a Faretta election appears grounded in
dissatisfaction with counsel, the district court must evaluate the
defendant’s objections to ensure that a waiver of counsel is
voluntary. 145 F.3d at 1392; see also Hall, 610 F.3d at 739.
The only objection Bisong raised to Moore’s representation was
when he “wonder[ed]” aloud whether Moore would have the
time and legal background to represent him. Tr. 9–10 (Jan. 21,
2003). The district court addressed Bisong’s concern in several
ways: issuing orders for Bisong to be housed closer to the
district court so he could have access to discovery; assuring
Bisong that Moore was an “extraordinary attorney,” Tr. 5 (Jan.
21, 2003), based on the district court’s “fifteen or more years of
experience” with Moore, Tr. 17 (Feb. 21, 2003), thanking
Moore, in Bisong’s presence, for “providing what I believe is a
pristine and extraordinarily well styled and presented pretrial
statement,” Tr. 2 (May 12, 2003). That Bisong neither
contradicted these comments nor raised any objections to
Moore’s representation at the May 12, 2003 pretrial conference
undermines a conclusion that Bisong viewed his choice as
involuntary because he considered Moore was not competent.
Bisong’s complaints about Bos and Iweanoge, which form a
part of his argument on appeal, are not relevant; at the time the
district court granted Bisong’s Faretta motion on May 12, 2003,
Bisong’s choice was between Moore’s representation and selfrepresentation.
Also as in Bailey, this court may “surmise, as presumably
did the [district] judge, that there was some method” in Bisong’s
insistence on representing himself. 675 F.2d at 1301. There, the
defense against an escape charge was based on the dangerous
and intolerable conditions at the jail in which the defendant was
held. This court concluded that the defendant was “surely
entitled to think that he could himself most effectively and
appealingly make those conditions known to the jury.” Id. So
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too here. Bisong was alleged to have used his own companies
in a complex scheme to defraud his clients. He held himself out
as director, corporate officer, or registered agent of various
business entities, and he had gone to some lengths to make them
appear legitimate, including registering them with the D.C.
Department of Consumer and Regulatory Affairs, obtaining
employer identification numbers, and, for some, contracting for
virtual office space. However ill-advised his self-representation
decision may have been, for the reasons identified by the district
court, Bisong had reason to think he could most effectively
explain to the jury the operations of his companies and why he
thought his actions were lawful.
A further review of the record confirms that Bisong’s
decision to waive counsel was knowing and intelligent. In
United States v. Brown, 823 F.2d 591 (D.C. Cir. 1987), the
district court had informed the defendants “in general terms of
the dangers of proceeding pro se,” including the “seriousness of
the charges,” a warning that the district court could not assist in
their defense, that defendants would have to conduct trial in
accord with the Federal Rules of Evidence and Criminal
Procedure, and that “it is a distinct handicap to be engaged in a
serious criminal matter without any legal training or background
and without the active assistance of a trained lawyer.” Id. at
599. Although the defendants challenged the district court’s
failure to discuss the especially complex nature of cases under
the Racketeer Influenced and Corrupt Organizations Act and the
difficulties of preparing an unaided defense while incarcerated,
this court concluded the colloquy was a “model.” Id. Although
the nature of a constitutionally adequate colloquy will depend
upon the particular circumstances in an individual case, the
contours of the Brown colloquy are present here. The district
court warned Bisong in strong terms on several occasions about
the risks and difficulty of defending pro se against a criminal
prosecution, especially given the complexities of the evidence
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in his case. The district court also warned that it could not favor
either side at trial and that Bisong would have to abide by the
same rules as an attorney. The district court further emphasized
the seriousness of the charges by advising Bisong of the pitfalls
of his desire to get his trial “over with,” Tr. 36, 39 (Nov. 25,
2002), because others were suffering when conviction would
mean imprisonment, advising based on the government’s plea
offer that Bisong could be sentenced to more than 70 months’
imprisonment.
Bisong nonetheless contends that the district court’s
colloquy was deficient to show his waiver of counsel was
knowing and intelligent for two reasons: First, several months
passed after the colloquy before his pro se request was granted
during which time circumstances had changed significantly and
warranted a new colloquy. Although Bisong had been
represented by Moore for four months, trial was to commence
a mere three weeks after his pro se request was granted. During
this time he had been confined outside of the District of
Columbia without personal access to his business records.
Hence, he claims, any previously made waiver was no longer
knowing and intelligent. But, as suggested by Bailey, the Sixth
Amendment does not require a new colloquy to inform the
defendant of the risks and difficulties of pro se representation
where it is discernible in the record that the defendant was made
well aware of those risks and difficulties. Bisong knew at least
by the time of the pretrial conference that the trial would
commence on June 2 and that because of his incarceration in
Farmville he had not had personal access to all of his seized
materials. He also was aware of the efforts by the district court
to enable him to gain further personal access to the seized
materials and discovery. Under the circumstances, “[n]either
case law nor common sense supports the position that a trial
court must advise a defendant of each and every difficulty he
might encounter in a particular case.” Brown, 823 F.2d at 599.
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During the November 25, 2002 hearing the district court
emphasized the seriousness of the charges, the difficulties of
self-representation, the complexity of the evidence, and the fact
that during trial the district court would not aid Bisong or relax
any rules. At the May 12, 2003 pretrial conference, the district
court addressed the access issue again, ensuring Bisong’s access
to discovery materials.
Second, Bisong points out, the original colloquy misstated
his potential sentence, which ultimately was 159 months’
imprisonment, not 70–87 months. In Hall, this court rejected
a Faretta challenge where the district court gave an estimate of
the sentence that turned out to be conservative, 610 F.3d at 741,
explaining that the purpose of informing the defendant of the
potential sentence is to impress upon him the fact that he is
facing serious charges, id. The district court’s advice to Bisong
reflected the prosecutor’s estimate based on a plea offer. Bisong
does not suggest his counsel never advised him of the maximum
sentence he could face if convicted of all charges and the record
makes clear that the district court’s colloquy made Bisong
sufficiently cognizant of the seriousness of the charges against
him to make a knowing and intelligent waiver of counsel.
Bisong’s reliance on United States v. Silkwood, 893 F.2d 245,
248–49 (10th Cir. 1989), is misplaced; there the defendant
requested to act pro se in sentencing and the district court not
only understated the potential effect of a sentencing
enhancement but neither inquired into the defendant’s
allegations of attorney ineffectiveness nor warned the defendant
of the pitfalls of self-representation. Id.
Upon review of the entire record, we conclude for these
reasons that the district court’s colloquy with Bisong was
constitutionally adequate. It bears noting, however, that the
Farretta issue might never have afforded a basis for appeal had
the district court more closely hewed to the instruction in Bailey
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that district courts to make clear on the record the findings that
the defendant has “articulately and unmistakably” asserted his
Faretta rights, that the waiver is voluntary, knowing, and
intelligent, and that the defendant is “aware[ ] . . . of the dangers
and disadvantages of self-representation.” 675 F.2d at 1300. A
more detailed record of Faretta findings, particularly when
ruling on the self-representation request, would ensure the
protection of a defendant’s Sixth Amendment rights and also
preserve a judgment where a defendant remains silent until
appeal.
III.
Bisong also contends that the district court denied him an
opportunity to review discovery and prepare his pro se defense,
citing United States v. Sarno, 73 F.3d 1470 (9th Cir. 1995),
where the Ninth Circuit stated “the Sixth Amendment demands
that a pro se defendant who is incarcerated be afforded
reasonable access to ‘law books, witnesses, or other tools to
prepare a defense,’” although noting that “[t]he right of access
is not unlimited, but must be balanced against the legitimate
security needs or resource restraints of the prison.” Id. at 1491
(citation omitted). Bisong’s objection on appeal is that the
district court “kept counsel in the case until the eleventh hour
such that [he] had only six hours to review selected documents
before trial, and was never given access to the bulk of the
discovery material.” Appellant’s Br. 44 (capitalization omitted).
As he sees it, his requests to the district court for personal access
to his business records and other discovery materials were for
naught. See id. at 45–46.
The Supreme Court has made clear that “[t]here is no
general constitutional right to discovery in a criminal case.”
United States v. Ruiz, 536 U.S. 622, 629 (2002). It also
observed in Faretta that a pro se defendant “cannot thereafter
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complain that the quality of his own defense amounted to a
denial of ‘effective assistance of counsel.’” 422 U.S. at 834 n.
46. Even assuming that pro se defendants have a Sixth
Amendment right to discovery in preparing their defense,
Bisong acknowledges that he must demonstrate prejudice in
order to prevail on this claim. Bisong has not shown prejudice.
Bisong points to his general statement in opening argument
that he had not had full access to seized records and to the
sentencing enhancement for perjury, and he suggests that until
he is afforded the “opportunity to look for exculpatory
evidence,” Reply Br. 18, he cannot provide specific examples of
prejudice and that to the extent a new trial turns on a showing of
prejudice a remand should be ordered. Id. at 19. His reliance on
his perjury enhancement, which he does not challenge on
appeal, is fanciful and reminds the court of a child who insists
to her parents that the fault for her lie is with the facts for failing
to comport with her statement. Even constitutional error would
not forgive perjury. See, e.g., United States v. Mandujano, 425
U.S. 564, 576–78 (1976) (plurality op.); id. at 584–85, 607–08
(Brennan, J., concurring); id. at 609 (Stewart, J., concurring);
United States v. Wong, 431 U.S. 174, 178–79 (1977); United
States v. Bova, 350 F.3d 224, 227–28 (1st Cir. 2003); United
States v. Olmeda, 839 F.2d 1433, 1434–37 (11th Cir.1988). As
to a remand to allow personal review of materials, Bisong is not
appearing pro se on appeal and yet presents no excuse for failing
to identify any records that would indicate he was prejudiced in
preparing his defense, other than vague speculation that an openended review might produce exculpatory evidence. See United
States v. Agurs, 427 U.S. 97 104, 112–13 (1976); United States
v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982). The record
reveals that his retained counsel and AFPD had access to the
seized records and discovery materials, and that although the
arrangements for Bisong to have personal access prior to trial
did not work out to the full extent ordered by the district court,
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the district court ensured that standby counsel had access and
was getting Bisong the records he requested prior to trial, and
later afforded Bisong more time for review. Not a perfect
scenario admittedly, but absent any showing of any prejudice,
Bisong’s contention fails.
IV.
The district court sentenced Bisong using a base offense
level of 6 and applied the following enhancements that he
challenges on appeal: (1) loss of over $200,000; (2) 50 or more
victims; (3) violation of an administrative order; (4) use of
sophisticated mean; and (5) occupying a leadership role in the
offense. Under the mandatory sentencing guidelines scheme,
Bisong was subject to a sentencing range of 188–235 months’
imprisonment; the district court imposed a sentence of 188
months. Upon resentencing in view of Booker, 543 U.S. 220,
the district court concluded it had inappropriately grouped the
bank fraud and immigration fraud and Bisong’s sentencing
range was therefore 135–168 months’ imprisonment; the district
court sentenced him to 159 months. This court “shall give due
deference to the district court’s application of the guidelines to
the facts.” 18 U.S.C. § 3742(e); see United States v. Tann, 532
F.3d 868, 873 (D.C. Cir. 2008). Due deference “presumably . . .
fall[s] somewhere between de novo and ‘clearly erroneous.’”
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). Our
review of the district court’s findings of fact is for clear error.
United States v. Brockenborrugh, 575 F.3d 726, 738 (D.C. Cir.
2009).
U.S.S.G. § 3B1.1. Bisong challenges the four-level
enhancement to his sentence on the ground that the district court
clearly erred in finding that he was an “organizer or leader of a
criminal activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1. The Guideline applies
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only where a “participant” is “criminally responsible for the
commission of the offense.” U.S. SENTENCING GUIDELINES
MANUAL § 3B1.1 cmt. 1. The “participant” must “commit[ ] all
of the elements of a statutory crime with the requisite mens rea.”
United States v. Brodie, 524 F.3d 259, 271 (D.C. Cir. 2008)
(emphasis original) (quotation marks and citation omitted).
Although the participant need not be criminally responsible for
the same crime of which the supervising defendant was
convicted, the enhancement applies only where a participant, at
a minimum, is criminally responsible as an accessory. See id.
“[S]upervision of an unwitting individual cannot justify an
enhancement,” United States v. McCoy, 242 F.3d 399, 410 (D.C.
Cir. 2001), but where the participant has knowledge but
commits no actus reus justifying criminal responsibility the
supervision of such person similarly may not justify an
enhancement.
The district court did not clearly err in applying this
enhancement to Bisong’s immigration fraud conviction. A
government investigator testified that AIA employees completed
applications knowing that the sponsoring companies were
fictitious and signed the names of AIA clients knowing that the
signatures were not authorized.
With regard to the bank fraud scheme, however, the
evidence shows only that his office manager received telephone
calls from Bisong’s clients complaining about withdrawals from
their bank accounts, that a second employee resigned upon
learning that what “Bisong was doing was wrong and criminal,”
Tr. 35–36 (Mar. 22, 2004), and that a paralegal concluded that
Bisong was violating the law. There was no evidence the
paralegal knew of Bisong’s criminal responsibility for bank
fraud. At most the evidence shows that the paralegal may have
given “wishy washy answers,” Tr. 107–10 (June 3, 2003), to a
client complaining about an unauthorized withdrawal from her
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bank account. None of the evidence indicated that any
employee actually assisted Bisong in the bank fraud as such.
Although some employees were not unwitting because they may
have had some awareness of Bisong’s check fraud activity, there
is no evidence that they assisted it.
United States v. Bapack, 129 F.3d 1320 (D.C. Cir. 1997), is
not to the contrary. Bapack was convicted of Medicare and
Medicaid fraud and there was evidence that nurses in her
employ falsified records, although only for purposes of District
of Columbia Department of Consumer and Regulatory Affairs
(“DCRA”) certification. The court concluded that a jury could
reasonably find, based on the nurses’ knowledge, that they were
“well aware that the falsified records would ultimately be
submitted to the Medicaid program.” Id. at 1326. The court
noted that the DCRA acts as an agent for the U.S. Department
of Health and Human Services regarding Medicare
certifications and that the forged DCRA form may have
constituted Medicare fraud. Id. at 1326 & n.12. By contrast,
here there is no similar relationship between the activities of
employee-participants in the immigration fraud scheme and
Bisong’s bank fraud scheme; no reason, for instance, for them
to believe that the immigration fraud would result in check fraud
and no relationship between the government authorities to which
Bisong and his employees submitted falsified immigration forms
and the banks from which Bisong cashed counterfeit checks.
The district court’s finding with respect to bank fraud that
Bisong was an “organizer or leader” under U.S.S.G. § 3B1.1
was therefore clearly erroneous and a remand for resentencing
is required. See United States v. Mathis, 216 F.3d 18, 27 (D. C.
Cir. 2000). Bisong’s other challenges to the enhancements of
his sentence, however, are without merit.
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U.S.S.G. § 2B1.1(b)(1): The district court found that the
bank fraud loss exceeded $200,000, which resulted in a twelvelevel enhancement under § 2B1.1(b)(1). For sentencing, the loss
amount need only be a reasonable estimate of the loss based on
the available information. United States v. Bras, 483 F.3d 103,
112 (D.C. Cir. 2007). The evidence at trial showed that for the
eight victims who testified at trial: The checks bore unique
information on the signature line; none of the victims authorized
Bisong to create and deposit checks on their behalf; Bisong
deposited 65 batches of similarly unique computer-generated
checks in amounts totaling $267,881; the checks had been
generated and saved on Bisong’s laptop computer; and a
government investigator uncovered many more victims who had
not authorized the withdrawals from their bank accounts.
Computer-generated checks were introduced into evidence at
trial for the accounts of 476 AIA clients. Bisong’s contention
that there was insufficient evidence to show the loss exceeded
$200,000 is meritless.
U.S.S.G. § 2B1.1(b)(2)(B) . The district court’s imposition
of a four-level enhancement based on Bisong’s defrauding 50 or
more victims is likewise not based on a clearly erroneous factual
finding. Section 2B1.1 defines a “victim” as “any person who
sustained any part of the actual loss,” U.S.S.G. § 2B1.1 cmt. n.
1, including “individuals, corporations, [and] companies,” id.
Bisong suggests there was no actual loss because any defrauded
AIA clients were reimbursed by their respective banks and those
banks were reimbursed by Bisong’s bank. An apt analogy is
identity theft where the victim is fully reimbursed by a third
party. Application Note 4(E) to a more recent edition of the
Guidines Manual states that a “victim” includes, in addition to
the definition in the Guidelines, “any individual whose means of
identification was used unlawfully or without authority.” U.S.
SENTENCING GUIDELINES MANUAL § 2B1.1 cmt. n.4(E) (Nov.
1, 2010). The Commission explained that “such an individual,
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even if fully reimbursed, must often spend significant time
resolving credit problems and related issues, and such lost time
may not be adequately accounted for in the loss calculations
under the guidelines.” U.S.S.G. § 2B1.1, historical note (2009).
Given that funds were drawn on the accounts of 476 clients at
more than 50 banks the district court did not clearly err in
inferring that over 50 people would have to devote substantial
time obtaining reimbursement, notwithstanding the fact that
eventually they would be made financially whole for the initial
loss. Cf. United States v. Gottfried, 58 F.3d 648, 652 (D.C. Cir.
1995).
U.S.S.G. § 2B1.1(b)(8)(C) The district court imposed a
two-level enhancement based on Bisong’s “violation of any
prior, specific judicial or administrative order, injunction,
decree, or process.” U.S.S.G. § 2B1.1(b)(8)(C) (codified at
§ 2B1.1(b)(7) when Bisong was sentenced). In 1994 an
Administrative Law Judge, finding that Bisong was making
misrepresentations in advertising about his alien assistance
activities, ordered him to cease and desist from “engaging in
any unlawful trade practices in the District of Columbia.” On
appeal Bisong maintains that he was never informed of the order
and that the general prohibition against unlawful trade practices
was not “specific” within the meaning of the Guidelines. For
sentencing, the preponderance of evidence standard applies.
United States v. Long, 328 F.3d 655, 670 (D.C. Cir. 2003).
The government, acknowledging a lack of evidence that
Bisong attended any but the first day of his 1994 administrative
hearing and that the order was mailed to him, maintains
Bisong’s “willful blindness” is to no avail because the evidence
showed that Bisong telephoned the judge to request a
rescheduled date and then failed to appear on that date. In
United States v. Alston-Graves, 435 F.3d 331, 341 (D.C. Cir.
2006), the court identified two predominant formulations of
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“willful blindness”: when a defendant “purposely contrived to
avoid learning all the facts,” or the defendant “was aware of a
high probability [of the fact in dispute] and consciously avoided
confirming that fact.” Id. (internal citations omitted). Given the
evidence that Bisong was aware of the proceedings, attended the
first day, sought and obtained a rescheduled date for continuance
of the hearing and then failed to show up, the district court could
reasonably infer, for it had observed that Bisong was an
intelligent man, that, based on a preponderance of the evidence,
Bisong realized the high probability that an order would issue;
he does not suggest he was unaware of the nature of the
complaint before the judge or of the evidence on which it was
based, only that he was unaware of the order. The order simply
told Bisong to “cease and desist from engaging in any unlawful
trade practices in the District of Columbia” (emphasis added),
something he was bound to know in any event. Bisong’s
suggestion now that the order was not “specific” also fails
because the addition of the word did not appear to affect the
substance of the Guideline: an order is a particular order. See
United States v. Howard, 350 F.3d 125, 126 (D.C. Cir. 2003).
U.S.S.G. § 2B1.1(9)(C) In finding that Bisong’s fraud
involved “sophisticated means,” and warranted a two-level
sentencing enhancement, the district court relied principally on
the existence of shell corporations, bank accounts, virtual offices
and false registration with D.C. government agencies. Bisong
renews the argument in his presentencing memorandum upon
remand that his bank fraud claims did not involve sophisticated
means and maintains on appeal that it was simply a “very basic”
type of theft. Appellant’s Br. 63. The Guidelines define
“sophisticated means” as “especially complex or especially
intricate offense conduct pertaining to the execution or
concealment of an offense” including “hiding assets or
transactions, or both, through the use of fictitious entities,
corporate shells, or offshore financial accounts.” U.S.
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SENTENCING GUIDELINES MANUAL § 2B1.1 cmt.8. Although
check fraud, Bisong maintains, “could be executed by virtually
anyone in possession of a check from a third party,” Appellant’s
Br. 63, the evidence showed that the same fraudulent
corporation used to entice victims into his immigration fraud
scheme became the depository for the bank fraud scheme and
that Bisong used computer software to create counterfeit checks
that appeared on their face to provide him with permission to
deposit funds without signature. The possession of “false
document-making implements” can constitute “sophisticated
means.” United States v. McCants, 554 F.3d 155, 163 (D.C. Cir.
2009).
Accordingly, we affirm Bisong’s conviction of immigration
fraud and bank fraud, and we remand the case for resentencing
in view of clear error in applying U.S.S.G. § 3B1.1 to the bank
fraud conviction.
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