On appeal from The United States District Court for the Eastern District of Michigan at Detroit ">

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Date: 12-07-2021

Case Style:

United States of America v. Prabhu Ramamoorthy

Case Number: 19-1033

Judge: Joan Larsen

Court:

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
On appeal from The United States District Court for the Eastern District of Michigan at Detroit

Plaintiff's Attorney: Amanda Jawad, UNITED STATES ATTORNEY’S OFFICE

Defendant's Attorney:


Cincinnati, Ohio - Best Criminal Defense Lawyer Directory


Description:

Cincinnati, Ohio - Criminal defense lawyer represented defendant with a sexual abuse charge.



Ramamoorthy, an Indian citizen and H-1B visa holder living in the United States, took a
redeye flight leaving Las Vegas on January 2, 2018 and landing in Detroit in the early hours of
January 3. He sat between his wife and another woman, Laura.1
According to Laura, she
initially slept on the flight, but suddenly awoke to find her pants unbuttoned and unzipped and
Ramamoorthy shoving his fingers in and out of her vagina. She texted her boyfriend that “the
guy next to me had his hands down my pants and in my vagina.” She then left her seat, went to
the back galley, and told the flight attendants what had happened.
Upon landing, the flight crew escorted Laura off the plane first and then Ramamoorthy.
Sergeant Alvarado and Corporal Hunter of the airport police met Ramamoorthy in the jetway as
he came off the plane. Sergeant Alvarado asked Ramamoorthy, “What’s going on today?” In
response, and without further questioning, Ramamoorthy immediately began talking about
Laura, claiming that she fell asleep on him and that he did not know where he had put his hands.
He also said he was very tired on the flight because he had taken some Tylenol. Sergeant
Alvarado then led him into the airport terminal, where they continued to talk in an area open to
the public.
Another officer, Officer Chalmers, whose body camera footage is also in the record, then
came to the scene and asked Ramamoorthy some questions about what had happened on the
flight, to which he gave similar answers. At the end of their conversation, Ramamoorthy made a
written statement of his recollection. In the statement, he repeated that Laura had slept on him,
that he had been in a “deep sleep,” and that he did not remember where he had put his hands.
The officers then arrested Ramamoorthy and took him to the airport police station, where
two FBI agents interviewed him for a little over an hour. Before asking Ramamoorthy any
questions about the flight, the agents provided him with a written Miranda waiver form.
1The parties agreed not to reveal the name of the victim. We will follow the district court in referring to
her as Laura.
No. 19-1033 United States v. Ramamoorthy Page 3
Ramamoorthy signed the form after reading his rights aloud and discussing them with the agents
for about ten minutes. Ramamoorthy then admitted that he had tried to put his fingers inside
Laura’s pants.
A grand jury charged Ramamoorthy with one count of sexual abuse in violation of
18 U.S.C. § 2242(2). The indictment accused Ramamoorthy of both attempted and completed
sexual abuse, which carry the same punishment. See id. § 2242.
Before trial, Ramamoorthy moved to suppress the statements he had made to the FBI,
claiming that he did not knowingly and intelligently waive his Miranda rights because he did not
speak English fluently and did not understand that his statements to the agents would be
admissible in court. He did not seek to suppress the statements he made to the airport police in
the jetway and terminal. The district court held a suppression hearing and denied
Ramamoorthy’s motion. The court found that Ramamoorthy was an “articulate, natural English
speaker” and that the agents had “no contemporaneous reason to believe” that Ramamoorthy did
not understand the consequences of waiving his rights.
At trial, the government relied on testimony from Laura, the flight attendants, the airport
police officers, and one of the FBI agents, as well as video footage of Ramamoorthy’s
conversations with the police officers and FBI agents. Prior to deliberations, the district court
read a series of instructions to the jury. One instruction explained that completed sexual abuse
and attempted sexual abuse were two ways of committing the crime of sexual abuse. It then
continued, “In order to return a guilty verdict, all twelve of you must agree that at least one of
these has been proved; however, all of you need not agree that the same one has been proved.”
The verdict form asked the jurors whether they found Ramamoorthy guilty “[w]ith respect to the
charge in Count One of the indictment, which charges the defendant with Sexual Abuse.”
After deliberations began, the jury submitted a written question to the court: “Are there
two charges under consideration, i.e., one, Sexual Abuse, two, attempted Sexual Abuse??? The
verdict form only includes Sexual Abuse. Please clarify. Thank you.” The court called the
jurors back into the courtroom and reread its instruction. The jury again retired and shortly
No. 19-1033 United States v. Ramamoorthy Page 4
thereafter returned with a guilty verdict. The district court sentenced Ramamoorthy to 108
months’ imprisonment and five years of supervised release. He timely appealed.
II.
Ramamoorthy argues that his indictment was duplicitous—that is, it “set[] forth separate
and distinct crimes in one count.” United States v. Kakos, 483 F.3d 441, 443 (6th Cir. 2007). He
contends that sexual abuse and attempted sexual abuse are two different crimes; therefore, both
should not have been charged in Count I. But Ramamoorthy does not directly challenge the
indictment’s alleged duplicity on appeal; nor did he raise any such objection before trial, as
required by Fed. R. Crim. P. 12(b)(3)(B)(i). Instead, he grounds his appeal in the Sixth
Amendment right to a unanimous jury verdict. He claims that the jury instructions and verdict
form perpetuated the indictment’s duplicity, thus permitting the jury to convict without agreeing
on whether his crime was attempted or completed sexual abuse. As Ramamoorthy concedes,
however, he did not object to the jury instructions or verdict form at trial either. So we review
only for plain error. Kakos, 483 F.3d at 445.
We may reverse for plain error “only in exceptional circumstances and only where the
error is so plain that the trial judge . . . [was] derelict in countenancing it.” United States v.
Fuller-Ragland, 931 F.3d 456, 459 (6th Cir. 2019) (alterations in original) (quoting United States
v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994)). To prevail, Ramamoorthy must identify “an
‘(1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that
affected the fairness, integrity, or public reputation of the judicial proceedings.’” United States
v. Crawford, 943 F.3d 297, 308 (6th Cir. 2019) (quoting United States v. Vonner, 516 F.3d 382,
386 (6th Cir. 2008) (en banc)). “Meeting all four prongs is difficult, as it should be.” United
States v. Jackson, 918 F.3d 467, 482 (6th Cir. 2019) (quoting Puckett v. United States, 566 U.S.
129, 135 (2009)).
The Sixth Amendment prevents a federal jury from convicting “in a criminal case unless
it unanimously concludes that the Government has proven each element of the charged offense.”
United States v. Hendrickson, 822 F.3d 812, 822 (6th Cir. 2016). Because a duplicitous
indictment charges multiple crimes in one count, it creates the risk “that a defendant may be
No. 19-1033 United States v. Ramamoorthy Page 5
deprived of his right to a unanimous jury verdict,” because “a jury might return a guilty verdict
on the single count submitted to them without all twelve jurors agreeing that the defendant
committed either of the offenses charged within that count.” Kakos, 483 F.3d at 443. “Where a
defendant fails to object to an indictment before trial,” however, “the case proceeds under the
presumption that the court’s instructions to the jury will clear up any ambiguity created by the
duplicitous indictment.” Id. at 444. Ramamoorthy contends that, in his case, that assumption
failed, violating his Sixth Amendment rights. But his claim fails at its premise. There was no
duplicity because, at least as charged here, sexual abuse and its attempt are not separate crimes.
Ramamoorthy contends that attempted and completed sexual abuse are distinct because,
in his view, sexual abuse is a general-intent offense while attempt is a specific-intent offense.
Accordingly, he argues, each crime contains an element that the other lacks—completed sexual
abuse would require proof of actual penetration, whereas attempt would require proof of specific
intent. See United States v. Davis, 306 F.3d 398, 416 (6th Cir. 2002) (noting that courts typically
conclude that “offenses are separate” for duplicity purposes “if each requires proof of an
additional fact that the other does not” (citation omitted)). Thus, he concludes, there is no
guarantee that the jury found that the government had proved every element of either offense
beyond a reasonable doubt.
To commit a general-intent crime, a defendant must only “intend to do the act that the
law proscribes.” United States v. Gonyea, 140 F.3d 649, 653 (6th Cir. 1998) (quoting United
States v. Phillips, 19 F.3d 1565, 1576–77 (11th Cir. 1994)). To commit a specific-intent crime, a
defendant must “do more than knowingly act in violation of the law.” Id. He “must also act
with the purpose of violating the law.” Id. “In other words, ‘a general intent crime requires the
knowing commission of an act that the law makes a crime. A specific intent crime requires
additional bad purpose.’” United States v. Kimes, 246 F.3d 800, 806–07 (6th Cir. 2001) (quoting
United States v. Kleinbart, 27 F.3d 586, 592 n.4 (D.C. Cir. 1994)).
Ramamoorthy’s argument hangs on a misreading of the statute. He contends that no
more is required to prove completed sexual abuse than that the defendant “knowingly”
“engage[d] in a sexual act with another person” who was unable to consent. 18 U.S.C.
§ 2242(2). This argument ignores the statutory definition of “sexual act.” Four categories of
No. 19-1033 United States v. Ramamoorthy Page 6
conduct constitute a “sexual act” for the purpose of defining sexual abuse. See id. § 2246(2).
Both the indictment and the district court’s instructions charged only one: “the penetration,
however slight, of the anal or genital opening of another by a hand or finger or by any object,
with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any
person.” Id. § 2246(2)(C) (emphasis added). This category requires specific intent because it
requires proof not only of the knowing act of penetration but also of an “additional ‘bad
purpose.’” Kimes, 246 F.3d at 807 (citation omitted); see United States v. Barcus, 892 F.3d 228,
232 (6th Cir. 2018) (holding that a “sexual act” under 18 U.S.C. § 2246(2)(D), which contains
identical language on intent, requires specific intent).2
Accordingly, Ramamoorthy could be
convicted of completed sexual abuse only upon proof that he “knowingly” penetrated the victim
“with an intent to abuse, humiliate, harass, degrade, or arouse or gratify.” Conviction of
attempted sexual abuse would require proof of the same, excepting penetration. The jury
instructions made that clear.
As charged here, then, attempted sexual abuse was a lesser-included offense of completed
sexual abuse, because its elements form a subset of the elements of completed sexual abuse. See
United States v. Bradley, 917 F.3d 493, 508 (6th Cir. 2019) (The “elements” of a lesser-included
offense “are identical to part of the elements of the greater offense.”). Thus any juror who voted
to find Ramamoorthy guilty of the completed offense necessarily found him guilty of the
attempt. Cf. United States v. Ehle, 640 F.3d 689, 695 (6th Cir. 2011) (“‘Receiving’ child
pornography necessarily requires one to” commit the “lesser-included offense” of “‘possess[ing]’
that child pornography.”). Ramamoorthy’s indictment was not duplicitous, and we find no error,
plain or otherwise, in the jury instructions or verdict form.
III.
Ramamoorthy next argues that his statements made in the jetway and airport terminal
should not have been admitted, because the officers questioned him without first apprising him
of his Miranda rights. Ramamoorthy did not, however, move before trial to suppress these
statements, as required by Fed. R. Crim. P. 12(b)(3)(C) (A motion to suppress evidence must be
2We express no opinion as to whether a “sexual act” under 18 U.S.C. § 2246(2)(A) or (B) requires specific
intent.
No. 19-1033 United States v. Ramamoorthy Page 7
made before trial “if the basis for the motion is then reasonably available and the motion can be
determined without a trial on the merits.”). We must decide how that failure affects our appellate
review.
Rule 12 used to provide that “[a] party waives any Rule 12(b)(3) defense, objection, or
request not raised by the deadline the [trial] court sets under Rule 12(c) or by any extension the
court provides.” Fed. R. Crim. P. 12(e) (2002) (repealed 2014). We interpreted this provision to
foreclose entirely any appellate review of Rule 12(b)(3) claims, including Miranda and other
suppression claims, raised for the first time on appeal. See, e.g., United States v. Reid, 764 F.3d
528, 533–34 (6th Cir. 2014). With the repeal of Rule 12(e), however, this court no longer
“treat[s] the failure to file a motion as a waiver unless the circumstances of the case indicate that
the defendant intentionally relinquished a known right.” United States v. Soto, 794 F.3d 635,
655 (6th Cir. 2015). Where, as here, no such circumstances exist, we may review the claim for
plain error. Id.3
Although we may review Ramamoorthy’s Miranda claim for plain error, plain-error
review of a forfeited claim is “permissive, not mandatory.” United States v. Olano, 507 U.S.
725, 735 (1993); see Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.” (emphasis added)). We have
previously declined to perform plain-error review of a forfeited suppression claim which turns on
unresolved questions of fact. See United States v. Turner, 602 F.3d 778, 787 (6th Cir. 2010)
(declining to review for plain error “without the benefit of a suppression hearing below” because
“we cannot meaningfully resolve these issues based on this trial testimony alone”); United States
v. Finch, 998 F.2d 349, 355 (6th Cir. 1993) (declining to review for plain error because
“[a]lthough the facts appear to have been well developed, it is possible that the failure of the
defense to raise the issue may have influenced the manner in which the evidence was
3Our sister circuits do not agree on whether the plain-error standard applies to forfeited Rule 12(b)(3)
claims after the 2014 amendment to the Rule. Compare United States v. Vasquez, 899 F.3d 363, 372–73 (5th Cir.
2018) (plain-error standard applies), cert. denied 139 S. Ct. 1543 (2019), and United States v. Sperrazza, 804 F.3d
1113, 1119 (11th Cir. 2015) (same), with United States v. Guerrero, 921 F.3d 895, 897 (9th Cir. 2019) (plain-error
standard does not apply), petition for cert. filed No. 19-6825 (U.S. Nov. 27, 2019), United States v. Vance, 893 F.3d
763, 769–70 & n.5 (10th Cir. 2018) (same), United States v. Walker-Couvertier, 860 F.3d 1, 9 & n.1 (1st Cir. 2017)
(same), United States v. Fattah, 858 F.3d 801, 807 (3d Cir. 2017) (same), United States v. McMillian, 786 F.3d 630,
636 & n.3 (7th Cir. 2015) (same), and United States v. Anderson, 783 F.3d 727, 741 (8th Cir. 2015) (same).
No. 19-1033 United States v. Ramamoorthy Page 8
developed”); see also Sykes v. United States, 373 F.2d 607, 612–13 (5th Cir. 1966) (refusing to
consider a forfeited suppression claim because it would involve undue “speculation” as to the
underlying facts), cited in United States v. Caldwell, 518 F.3d 426, 431 (6th Cir. 2008).
We have done so with good reason. Suppression claims typically present “fact-oriented
issue[s].” Finch, 998 F.2d at 355. In this case, for instance, Ramamoorthy asks us to determine
whether he was in Miranda custody when he exited the airplane. Such an inquiry would require
us to consider “the totality of the circumstances,” balancing a series of factors, no one of which
is determinative, and all of which are highly dependent upon what transpired in the airport that
day. See United States v. Swanson, 341 F.3d 524, 528–29 (6th Cir. 2003) (listing factors).
Courts of appeal are not equipped to decide factual questions in the first instance. See PullmanStandard v. Swint, 456 U.S. 273, 291 (1982) (“[F]actfinding is the basic responsibility of district
courts, rather than appellate courts . . . .” (first alteration in original) (quoting DeMarco v. United
States, 415 U.S. 449, 450 n.* (1974)). We do not regularly make findings of fact; outside of
exceptional circumstances, we do not consider new evidence; and we never have the benefit of
hearing live testimony.
Even setting aside appellate courts’ comparative inaptitude for fact finding, any record on
which we would base our findings would likely be incomplete or misleading. A trial develops
the facts probative of a defendant’s guilt or innocence. But those facts are not necessarily, or
even often, those essential to resolving a suppression motion. See Davis v. United States,
564 U.S. 229, 236–37 (2011) (The exclusionary “rule’s sole purpose . . . is to deter future
[constitutional] violations,” not to ensure an accurate verdict in the case at hand.); Stone v.
Powell, 428 U.S. 465, 489–90 (1976) (Application of the exclusionary rule “divert[s]” “the focus
of the trial, and the attention of the participants therein, . . . from the ultimate question of guilt or
innocence.”). Moreover, in the absence of a pre-trial suppression motion, the government has
neither opportunity “no[r] incentive to develop the factual record on the [suppression] issue.”
Caldwell, 518 F.3d at 431. It follows that the facts before us could easily paint a misleading
picture, even if, from behind the appellate bench, they “appear to have been well developed.”
Finch, 998 F.2d at 355; see also 6 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 11.7(e) (5th ed. 2012) (Review of forfeited suppression claims “often
No. 19-1033 United States v. Ramamoorthy Page 9
would ‘penalize the Government for failing to introduce evidence . . . when defendant’s failure to
raise an objection before or during trial seemed to make such a showing unnecessary.’” (citation
omitted)). In sum, we are unlikely to be able to reconstruct the totality of the circumstances
relevant to the suppression question working solely from the evidence introduced at trial, which
was aimed at answering a different question.
We do not expect district courts to rule on fact-intensive suppression issues based solely
on evidence introduced for other purposes. In fact, the district court is required to hold an
evidentiary hearing when a motion to suppress raises genuine issues of material fact. See United
States v. Ickes, 922 F.3d 708, 710 (6th Cir. 2019); United States v. Black, 181 F.3d 104, 1999
WL 357759, at *3–5 (6th Cir. 1999) (table) (District court abused its discretion by not holding
suppression hearing because “the defendant has set forth contested issues of fact that bear upon
the legality of the search.”); see also United States v. King, 127 F.3d 483, 486 (6th Cir. 1997)
(District court abused its discretion by not holding suppression hearing because “the record
contains only sparse references to facts essential to the resolution of this issue.”). What would be
an abuse of discretion for the district judge, who at least personally witnessed any relevant trial
testimony and has experience regularly making findings of fact, cannot be a proper exercise of
discretion for the court of appeals. We recognize that suppression claims raising only legal
questions may arise from time to time, and in such cases plain-error review might be appropriate.
Cf. United States v. Abboud, 438 F.3d 554, 577 (6th Cir. 2006) (holding that the district court did
not abuse its discretion by considering the defendant’s suppression motion without a hearing
because his claim was “entirely legal in nature”). But in the ordinary case, where the defendant’s
suppression claim hinges on unresolved issues of fact, the more prudent course is to decline to
exercise plain-error review.
This is the ordinary case. Ramamoorthy claims that his statements to airport police
officers should have been suppressed because he was in custody, but un-Mirandized, when they
questioned him. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). A suspect is in custody if
he is subjected to “the same inherently coercive pressures as the type of station house
questioning at issue in Miranda.” Howes v. Fields, 565 U.S. 499, 509 (2012). Ramamoorthy
alleges that the airport police made him go with them from the jetway to the airport terminal,
No. 19-1033 United States v. Ramamoorthy Page 10
intimidated him into responding to their questions, and at one point even commanded him to
write out a statement. The government responds that the officers were polite and nonconfrontational and that they never restricted Ramamoorthy’s freedom of movement. Far from
being intimidated into speaking, the government asserts, at several points Ramamoorthy
volunteered statements about his conduct without being asked.
As a court of appeals, we are not well suited to resolve these critical disputes of fact in
the first instance. And even if we had a mind to, we are not confident that the record accurately
reflects the totality of the relevant circumstances. Ramamoorthy relies principally on body
camera footage from Sergeant Alvarado and Officer Chalmers, but this footage captures only
twelve minutes of an interview that Ramamoorthy testified lasted about half an hour. The video
does not include the point when Ramamoorthy gave his written statement. Ramamoorthy also
relies on the trial testimony of Officer Chalmers, but Officer Chalmers did not attempt to narrate
in detail his entire interaction with Ramamoorthy—most likely because Chalmers had no reason
to believe that he was being asked whether Ramamoorthy was in custody. We therefore decline
to review Ramamoorthy’s forfeited Miranda claim for plain error.
IV.
Finally, Ramamoorthy claims that the district court should have suppressed the
statements he made to the FBI agents, because he did not knowingly and intelligently waive his
Miranda rights. Unlike his other Miranda claim, Ramamoorthy properly raised this issue below
by filing a motion to suppress before trial. We therefore review the district court’s conclusions
of law de novo and its findings of fact for clear error. United States v. Ray, 803 F.3d 244, 265
(6th Cir. 2015). We will find clear error only if, after reviewing the evidence, we are “left with
the definite and firm conviction that a mistake has been committed.” United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948).
“Statements made in response to custodial police interrogation must be suppressed unless
the suspect first waived his Miranda rights ‘voluntarily, knowingly and intelligently.’” United
States v. Al-Cholan, 610 F.3d 945, 954 (6th Cir. 2010) (quoting Colorado v. Spring, 479 U.S.
564, 572 (1987)). Waiver is voluntary when “it was the product of a free and deliberate choice
No. 19-1033 United States v. Ramamoorthy Page 11
rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
It is intelligent when it is “made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.” Id. “To determine whether a
waiver is valid, we examine the totality of the circumstances.” Ray, 803 F.3d at 266. We do so
“‘primarily from the perspective of the police,’ such that where ‘[the] police had no reason to
believe that [the defendant] misunderstood the warnings, . . . there is no basis for invalidating
[the] Miranda waiver.’” Al-Cholan, 610 F.3d at 954 (alterations in original) (quoting Garner v.
Mitchell, 557 F.3d 257, 263 (6th Cir. 2009) (en banc)).
Ramamoorthy signed a written waiver form that listed his Miranda rights. Prior to
signing, the agents asked him to read each line of the form out loud and write his initials next to
the line if he understood it, which he proceeded to do. At several points, the agents offered
explanations of the rights Ramamoorthy had just read out loud, and Ramamoorthy also asked
questions about their meaning, which the agents answered. All in all, the agents and
Ramamoorthy discussed his rights for nearly ten minutes before he signed the waiver form. The
district court found that throughout the interview “Mr. Ramamoorthy appears to understand
English and he is easily heard speaking in English clearly.” It further found that
“Mr. Ramamoorthy asked intelligent questions of the agents about his rights.” Having reviewed
the video of the interview, we cannot say these findings are clearly erroneous.
Ramamoorthy nevertheless argues that he did not truly understand his rights and the
consequences of waiving them because of his impressions of the Indian legal system and his
belief that the American system would be similar. At the suppression hearing, he testified that,
in his understanding, police in India beat and torture suspects who do not confess to crimes but
that only what a suspect later says to a judge, not what he says to the police, is admissible as
evidence. Even assuming that Ramamoorthy subjectively believed that he simply had to tell the
agents what they wanted to hear, the officers would have had no way of knowing that this was
his understanding. Our review of the interrogation video reveals that the officers conducted
themselves respectfully and professionally, making no threats and speaking with a calm
demeanor. By responding in coherent English, asking thoughtful questions, nodding his head,
No. 19-1033 United States v. Ramamoorthy Page 12
and signing his initials after reading each right aloud, Ramamoorthy gave every indication to the
agents that he understood his rights and the consequences of waiving them.
Ramamoorthy argues that the fact that he asked when he would go before a judge should
have alerted the agents to his subjective belief that his statements to them would be inadmissible
in court. We disagree. Ramamoorthy’s question makes clear that he did not know what the
exact procedure would be after the interview, but it does not follow from this that he did not
understand that his statements to the officers would be evidence in court. Moreover, just seconds
earlier, Ramamoorthy had read aloud that anything he said could be used against him in court,
had nodded his head in apparent understanding, and had written his initials to indicate his
understanding. Thus, none of the circumstances that the agents could have observed reasonably
suggested that Ramamoorthy had asked about the timing of a judicial proceeding because he
believed that only statements made to a judge were admissible evidence.
Because the agents had no reason to believe that Ramamoorthy misunderstood his
Miranda rights, his waiver of them was knowing, voluntary, and intelligent. Accordingly, the
district court did not err in denying Ramamoorthy’s motion to suppress.

Outcome: For the foregoing reasons, we AFFIRM Ramamoorthy’s conviction

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