Federal Judge Catches DOJ Lying, Sanctions Lawyers With Mandatory Ethics Classes
from the a-small-fix-that-indicates-a-larger-problem dept
The DOJ likes to sling lawsuits and injunctions towards law enforcement agencies with histories of misconduct and deception, but it's apparently less interested in ensuring its own behavior is above reproach.
A lawsuit filed by a handful of states in opposition to the administration's new (and controversial) immigration policies have made their way through a number of courts, with one headed to the top court in the land. Meanwhile, down in Texas, a federal judge has uncovered DOJ lawyers have been engaged in a pattern of deception since the inception of the litigation. While the Supreme Court will be tackling the question of whether the administration has to play by its own rules, Judge Andrew Hanen is spending his time reprimanding the government's lawyers for their misdeeds. (via Jonathan Turley)
What remains before this Court is the question of whether the Government’s lawyers must play by the rules. In other words, the propriety of the Defendants’ actions now lies with the Supreme Court, but the question of how to deal with the conduct, or misconduct, of their counsel rests with this Court. To that end, this Court neither takes joy nor finds satisfaction in the issuance of this Order. To the contrary, this Court is disappointed that it has to address the subject of lawyer behavior when it has many more pressing matters on its docket. It is, at best, a distraction, and there is nothing “best” about the conduct in this case. The United States Department of Justice (“DOJ” or “Justice Department”) has now admitted making statements that clearly did not match the facts. It has admitted that the lawyers who made these statements had knowledge of the truth when they made these misstatements. The DOJ’s only explanation has been that its lawyers either “lost focus” or that the “fact[s] receded in memory or awareness.”
These misrepresentations were made on multiple occasions starting with the very first hearing this Court held. This Court would be remiss if it left such unseemly and unprofessional conduct unaddressed.
The lies the DOJ told involve a 2014 DHS directive that changed its handling of Deferred Action for Childhood Arrivals (DACA). The DOJ told the court and opposing counsel that no action under the new guidelines would commence until February 2015. These statements were made both orally (January 15, 2015) and in a filing (December 19, 2014). But in reality, the guidelines were already being used to process immigrants, resulting in over 100,000 modified DACA applications being granted or renewed by the DHS prior to either of these statements.
This was caught by the court in April 2015, but the DOJ insisted its statements weren't lies, but rather the "innocent mistakes" of poorly-informed counsel, shifting the blame towards the DHS. Months later, the real truth has come out.
Now, however, having studied the Government’s filings in this case, its admissions make one conclusion indisputably clear: the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.
[...]
In fact, the Justice Department knew that DHS was implementing the three-year renewal portion of the 2014 DHS Directive weeks before its attorneys told this Court for the very first time that no such action was being taken. Apparently, lawyers, somewhere in the halls of the Justice Department whose identities are unknown to this Court, decided unilaterally that the conduct of the DHS in granting three-year DACA renewals using the 2014 DHS Directive was immaterial and irrelevant to this lawsuit and that the DOJ could therefore just ignore it. [Doc. No. 242 at 17]. Then, for whatever reason, the Justice Department trial lawyers appearing in this Court chose not to tell the truth about this DHS activity. The first decision was certainly unsupportable, but the subsequent decision to hide it from the Court was unethical.
This isn't the DOJ lying about a minor procedural detail. This is the DOJ lying about the DACA modification central to the states' lawsuit against the US government. To purposely mislead the court and the defendants about the status of DACA applicants cannot be waved away with claims of foggy memories. It also cannot be waved away with claims that the DOJ had no idea so many applicants were already being processed using guidelines still being contested in federal court.
In its own defense, the Government has claimed it did not know before February 27, 2015, that the number of individuals that had been granted three-year deferrals between November 24, 2014, and the date of the injunction exceeded 100,000. It claims that it notified the Court very quickly after it realized that the number exceeded 100,000. This may be true, but knowing the exact number is beside the point. [...] Whether it was one person or one hundred thousand persons, the magnitude does not change a lawyer’s ethical obligations. The duties of a Government lawyer, and in fact of any lawyer, are threefold: (1) tell the truth; (2) do not mislead the Court; and (3) do not allow the Court to be misled. See MODEL RULES OF PROF’L CONDUCT r. 3.3 cmts. 2 & 3 (AM. BAR ASS’N 2013). The Government’s lawyers failed on all three fronts. [...] The failure of counsel to do that constituted more than mere inadvertent omissions—it was intentionally deceptive. There is no de minimis rule that applies to a lawyer’s ethical obligation to tell the truth.
The DOJ's lies made the court's temporary restraining order a joke.
The Court issued the temporary injunction on February 16, 2015. The timing of this ruling was clearly made based upon the representations that no action would be taken by Defendants until February 18, 2015. If Plaintiffs’ counsel had known that the Government was surreptitiously acting, the Plaintiff States could have, and would have according to their representations, sought a temporary restraining order pursuant to Federal Rule of Civil Procedure 65(b) much earlier in the process. [...] Due to the Government’s wrongful misstatements, the Plaintiff States never got that opportunity. The misrepresentations of the Government’s attorneys were material and directly caused the Plaintiff States to forgo a valuable legal right to seek more immediate relief.
Unfortunately, the court is limited to what it can do in response to the DOJ's misconduct. Holding the DOJ responsible for the involved states' legal fees would result in the participating states effectively paying their own legal fees. It would be nothing more than moving around money collected from taxpayers and, thanks to federal taxes, robbing plaintiffs to pay plaintiffs. Instead, Judge Hanen has ordered that any DOJ lawyer who has -- or will -- appear in the courts of the 26 states involved in the lawsuit attend legal ethics courses. The courses will be provided by a legal agency unaffiliated with the DOJ, and the DOJ itself will be required to provide annual reports to the court confirming these courses are being attended.
This may seem like a laughable conclusion to such widespread, persistent dishonesty, but with the case currently in front of the Supreme Court, Judge Hanen only has a few options at his disposal. Awarding fees would be even more of a joke and he's in no position to find in favor of the State of Texas, much less the other 25 plaintiffs. So, this will have to do. More importantly, this opinion is on the record, in writing, and will serve as documentation of the DOJ's willingness to bend/break rules to serve its own purposes.
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Filed Under: doj, law enforcement, lying, sanctions
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1844-494-0181 AT&T Customer Support
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Consequences
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Re: Consequences
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Re: Consequences
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Re: Re: Consequences
That's probably where the "ethics", a.k.a. "how not to get caught", classes are to be taught.
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Re: Consequences
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Ethics can't be "taught"
If it were me, I'd disbar them immediately and throw them in jail for life, gitmo of course.
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Re: Ethics can't be "taught"
Everyone's born as a selfish little brat who literally doesn't understand anything beyond "I WANT WHAT I WANT, RIGHT NOW!!!" And then, over the course of the first several years of our lives, we (most of us at least) learn to become civilized, rational beings. So clearly it is something that can be taught in one form or another; otherwise, where does ethical behavior come from?
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Re: Re: Ethics can't be "taught"
From the consideration that someone has the ability to compel you behaviour, but if you work for those who do the compelling.....
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Re: Re: Ethics can't be "taught"
Anyone can be told what the differences between right behavior and wrong behavior.
Ethical behavior is only practiced by people who act on the knowledge between right and wrong.
People who's very nature prohibits ethical behavior cannot have that behavior modified with further education.
Therefor, as I stated, Ethics cannot be taught.
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Re: Re: Re: Ethics can't be "taught"
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Some ethics are instinctual.
If that weren't the case we'd require policing by a much larger portion of the population.
Indeed, in tribes of under a hundred people, crime is rare. The problem is large populations in which some people don't consider each other people. e.g. Love your neighbor as you do yourself not applying to those bastards from the church across the street.
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Re: Some ethics are instinctual.
This makes us more susceptible to tribal behaviour in an effort to feel like we belong to SOMETHING.
When ethics is defined differently from group to group (e.g. Capitalists believe that altruism is evil) you may find conflicts in the way that ethics are practiced and this leads to conflict between people.
So yes, ethics can be taught, but it's the kind of ethic that's being taught that you need to think about.
Citation: http://capitalismmagazine.com/2014/12/altruism-means-self-sacrifice-not-benevolence/
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it's the kind of ethic that's being taught
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"The kind of ethic that's being taught"
And how is this expected to improve their performance?
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Re: Re: Some ethics are instinctual.
Read The Wealth of Nations sometime and ask yourself, each time it teaches some principle, "would the people who loudly defend 'capitalism' and condemn 'socialism' today support or condemn this principle?" You'd be surprised how often the answer is "condemn."
Objectivism is a hijacking of capitalism, twisting it to serve evil purposes, and it should not be considered actual capitalism any more than, (just to give one obvious example off the top of my head,) the KKK should be considered actual Christianity.
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Re: Re: Re: Some ethics are instinctual.
You see, the laissez-faire doctrine underpinning capitalism was a major contributor to the decimation of our population during the Potato Famines. And if that wasn't bad enough, they did the same in India, citing the same "the market will sort it out" rationale.
Citations: http://www.bbc.co.uk/history/british/victorians/famine_01.shtml
https://mises.org/library/what-caused -irish-potato-famine.
http://www.historyplace.com/worldhistory/famine/begins.htm
http://www.academia.e du/8003313/The_Economics_of_Starvation_Laissez-Faire_ideology_and_famine_in_Colonial_India
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Re: Re: Re: Re: Some ethics are instinctual.
And it did. Go capitalism.
/s
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So far we've seen intentional lying, dropping cases so as not to reveal the source of info (Stingrays), intentional punishment to any that reveal wrong doing in direct violation of whistleblower protections, misrepresentations such as pushing hard for backdoors into programs, and the fact that while LEO is very good at reconstruction after the fact, that all this data collection has not forwarded the catching of terrorists before the fact. It all appears to be a house of cards, built solely to monitor the citizen, not to catch terrorist nor apprehend criminals.
That the criminal element now seems to present more of a danger coming from law enforcement than from the criminals is not improving the government's creditability. If anything it is leading citizens to now believe the government is the problem, not the solution and that is one of the many reasons it is showing up voting results as they have been. Under most circumstances, voters would vote for the sponsored horse. The citizens' attitudes have changed as much from the sort of actions stated in this article as from other actions they have seen themselves. In the long run, the government is doing itself more harm than good.
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Re:
Nice ...
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Here is a novel idea, have the DOJ lawyers pay the legal fees out of their own pockets. That might deter this sort of behavior in the future.
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Re:
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Re: Re: Fee shifting
In this context, getting the Federal government to pay the states' fees makes sense if you believe that the Federal government will not immediately take an equal (or greater -- because overhead!) amount from someone else who, in the absence of the fee shifting, would have kept their money. Sanctioning the lawyers personally is emotionally appealing because, unless they get their employer (the Federal government) to cover their costs in the end, they feel a direct penalty for their misconduct. It does not matter whether their normal salary is funded by taxpayer dollars. What matters is whether they can shift the burden of fee shifting onto an innocent party who had no control over their conduct. Even if the Federal government does reimburse them, if the burden is not then shifted onto an innocent party (e.g. by reducing funding to a division that serves the public), then the shift is a net win.
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I think we'd need to not only fire the transgressors...
These are positions with a lot of power and they need to be held to a higher standard than the rest of us ordinary shlubs.
When oversight fails you have to cull the overseers as well.
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Re: I think we'd need to not only fire the transgressors...
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Re: Re: I think we'd need to not only fire the transgressors...
> he revoked their pro hac vice status, meaning that they can't practice in Texas
> at least.
Pro hac vice status is granted on a case-by-case basis. So revoking it for this case doesn't mean they can never again practice in Texas. It just means they can't practice in Texas on *this* case.
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Re: I think we'd need to not only fire the transgressors...
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Get Back To Me When the Victim is a Real Person
While I'm sure that these details are of utmost importance to that insular little club, on the scale of ethical violations this barely registers. When in recent history has a judge made similar sanctions when the wronged party was just a regular peon? Probably never, because no regular peon could even afford firepower to dig up the evidence of such misdeeds.
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Re: Get Back To Me When the Victim is a Real Person
What this is basically saying is that there are no checks on executive power, since the executive will just lie to the court and do what he wants. We have checks and balances, but when the courts are given bad information they will make bad decisions. If the executive can commit perjury and take unilateral action while lying to the court about it, we have a king not a president.
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Re: Get Back To Me When the Victim is a Real Person
Put another way, every citizen who lives in a state affected by the immigration program (which may include states that are not party to the suit) is a potential victim if DHS's actions (1) lead to negative results that would have been avoided if DHS had done as the states wanted and (2) candor to the court in the beginning would have resulted in an order that successfully restrained DHS from implementing the program in the way that it ultimately did.
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Re: Re: Get Back To Me When the Victim is a Real Person
Its sad that neither of you two had anything to say about the lack of punishment when the government lies and manipulates in cases involving citizen defendants. Nope, y'all just ignored that despite straight up ruining real people rather than costing them a fraction of a cent.
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Re: Re: Re: Get Back To Me When the Victim is a Real Person
The specific dispute here is that the DOJ lawyers asserted repeatedly that nothing irreversible had happened yet or would happen until a particular date. If taken as truth, then the states need only obtain an injunction prior to that date in order to prevent the irreversible actions. In fact, conduct to which the states objected was already underway. Had the states' attorneys known this, they would have behaved differently, likely petitioning the judge to immediately issue a preliminary injunction. The judge has now determined that the DOJ attorneys knew, or reasonably should have known, that the assurances they made to the court and to the states' attorneys were wrong.
I said nothing about government abuse of innocent citizens because that is not a key point in this story. There are many bad things that the government does, and it would take quite a bit of space to denounce every single bad thing they do every time I discuss any particular bad thing they do. That I failed to denounce one bad thing, which is not even under discussion, is hardly an endorsement of their misbehaviour.
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Re: Re: Re: Re: Get Back To Me When the Victim is a Real Person
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Re:
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Re:
It's easy to shrug off a 'fine' that you don't have to pay(see: Every single fine against police officers), but when it's coming out of your own pockets then it's a lot more difficult to do so, because the guilty party is directly being punished, someone else isn't being punished in their stead.
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That still leaves the fee-shifting problem.
Corruption needs to have life-ruining consequences, especially since corruption makes for countless innocent lives being ruined daily.
Since, for instance, police officers can lie on the stand without consequences, they do routinely to secure convictions, regardless of guilt. We cannot possibly determine how often innocent people serve time, but it's probably no longer rare.
And prison ruins lives. Not just the life of the convicts, but it destroys their families as well. And the people of the US don't give a fuck, because they're convicts.
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That only leaves citizens to punish those that break laws, I doubt people will be willing to do that peacefully after seeing their government fail at applying consequences for breaking the law equally.
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- No sir! Wrists must be thoroughly slapped!
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So the DOJ has lied to (the representatives of) more than half of the nation.
Give them time, they'll catch up to the NSA eventually.
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Re: DOJ Lying
The key issue in the case of Texas v. US is whether Texas has standing to sue. Under US Law you must be harmed by a law or other action to pursue a case in court. Texas claims it is harmed because it will need to pay for drivers' licenses when the executive order goes into effect. This is an extremely marginal case, because the state of Texas might
(a) refuse to issue drivers' licenses to aliens unless the full price of the drivers' license is paid. The opens up questions of why Texas does not demand the full worth of a drivers' license as a fee, but that is another issue.
(b) request the federal government to reimburse it for any added expense incurred by issuing these drivers' licenses. In fact, there may be no added expense because people who have legal drivers' licenses may also buy insurance and register their vehicles, both of which actions would save the state money in the long run.
But it is clear that the State of Texas does not care about losing money, they only care about embarrassing the Democratic president and harming American children whose parents are migrant workers for political advantage. If the court rules that this is the case, they will dismiss the case for lack of legal standing to sue.
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Re: Re: DOJ Lying
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Re: Re: DOJ Lying
If you think that leaving the law unchanged is license for the executive to reinterpret it, then what protects you from the executive deciding that, since Congress has not recently reaffirmed your right not to be summarily executed for any or no reason, then the administration can now engage in summary executions, because that aligns with the administration's goals?
You may not like what the law says now, but there is a duly enacted law stating how the situation should be handled. The executive is sworn to uphold the law. Until that law is repealed, amended, or ruled unconstitional, that oath obligates them to follow the law to the best of their ability.
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Re: Re: DOJ Lying
They are all worried about what it would mean for their maids, cooks, butlers and grounds keepers. To have to put them on the books would mean they all need green cards and then they need them renewed every six months. Workman's comp is very expensive and they damn well know the expensive burdon they put on everyone else.
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Forget ethics classes
Bar them from appearing as a prosecutor in Federal Court.
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Contempt?
So why can't a judge put a lying lawyer in jail for 30 days & refer them to the bar association? There really is true justice. Justice for the "elite" and then real justice for the normal person.
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Equality
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The big problem
Professor: Ethics... we will discuss what they are, and how we work around them to get what we want. When we are done, you will understand how to avoid them completely.
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Footnote 10 hyperlinks
Additionally, following the reference in footnote 17 on p.148 of Tennis:
Just in case anyone here is looking to discuss a little bit of light reading ;-).
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on appeal soon enough. Silly ninny. These gov't folks aren't newbs. They're skilled
lawyers who are sharp cookies, more experienced than any lawyer you or I will
probably ever meet.
Keep in mind that on the date that the "big lie" is purported to have been fibbed,
these gov't folks observed the brief with THE DATES IN QUESTION right there IN THE
JUDGE'S HAND. They weren't lying to his face. They were merely misunderstanding
the intended context of a carelessly-stated inquiry from a man who is revealed to be
in hind-sight relatively dim-witted.
The angry, shouty ruling relies upon one man's squinty-eyed and selective memory of
the courtroom discussion in question. The gov't's reply is, not-for-nothing, sufficiently
reasoned to cast much doubt as to what was understood by the parties inside that room
on that date.
Techdirt's analysis here is pretty lame. Read Judge Hanen's hyperactive ruling for yourself
at the link below. That feisty rambling reveals a man who sits way up on a high horse.
With this ruling, and considering Judge Hanen's record of bombastic overreach and histeria
on the matter of federal immigration policy, the man sure does live up to his reputation
of the root'nist-toot'nist, back-water American jurist that he most certainly is.
The judges's incoherent issue begins fully scattershot by using the following over-the-top,
Hollywood dramatization to serve as document abstract to the ruling that follows.
Apparently, Judge Hanen wants his audience to get tingles of Oscar Night excitement
when we witness his holy writ. He's a rather self-important and very silly ninny.
http://cdn.thinkprogress.org/wp-content/uploads/2016/05/19212309/Hanen-opinion.pdf
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On the off chance that it were me, I'd disbar them promptly and toss them behind bars forever, gitmo obviously.
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District of Columbia
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Re: District of Columbia
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Re: Re: District of Columbia
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Re: Re: Re: District of Columbia
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Re: District of Columbia
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Limited
> the DOJ's misconduct.
Not as limited as you imply. The court could hold the lawyers in contempt, make them serve some time in jail and fine them personally for their dishonesty, and it could refer them all to their various bar associations for disciplinary action, to include disbarment.
The fact that court chose to do none of this in favor of some in-service ethics classes, which the attendees will spending either sleeping through or playing on their smart-phones, indicates the court didn't actually find outright lying by the government to be very troubling at all.
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oath
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