United States v. Raibley, Paul T.

Court Case Details
  • Case Name: United States v. Raibley, Paul T.
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: March 21, 2001
  • Precedential Status: Published
  • Docket #: 99-3752
  • Judges: Per Curiam
  • Nature: criminal
Court Case Opinion

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3752

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL T. RAIBLEY,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 98 CR 40058--Joe B. McDade, Chief Judge.

Argued March 31, 2000--Decided March 21, 2001

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge. Police stopped Paul

Raibley for questioning after he was seen

surreptitiously videotaping a seventeen year-old

Wal-Mart employee. A consensual search of his

pickup truck produced a small quantity of

marijuana and two videotapes. The police later

took a look at the tapes, purportedly with

Raibley’s consent, and discovered pornographic

scenes on one of the tapes involving two young

girls. After unsuccessfully moving to suppress

the videotapes and other evidence obtained as a

result of the investigatory stop, Raibley pleaded

guilty to the production of child pornography, in

violation of 18 U.S.C. sec. 2251(a), (d). He

appeals, contending that the police lacked

grounds on which to stop and question him under

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968),

and that they also lacked his consent to view the

videotapes. We affirm.

I.

Aledo, Illinois is a town of about 4,000

people, situated approximately ten miles east of

the Mississippi River and some twenty miles south

of the Quad-Cities area. On October 10, 1998, the

manager of the Aledo Wal-Mart store saw a man,

later identified as Raibley, sitting in a small,

white pick-up truck in the store’s parking lot,

covertly videotaping a seventeen year-old store

worker as she walked across the lot. When Raibley

realized he had been noticed, he drove away in a

hurry. The police were summoned.

Local police officer Eric Lindburg arrived and

spoke with the store manager. In addition to the

facts just described, Lindburg ascertained that,

so far as the store manager knew, Raibley was a

stranger to the young woman he had been

videotaping. In fact, the subject of the taping

had not even realized what was happening. The

manager supplied Lindburg with a description of

Raibley as well as a license plate number, "FIN

98." A check on the plate number yielded no

information. Lindburg left the store and began to

drive around town hoping to locate the pickup

truck.

About 30 minutes later, Lindburg returned to

the Wal-Mart and spotted an unoccupied white

pickup truck in the parking lot bearing the

license plate number "FINS 98". Lindburg ran a

check on that plate number and learned that the

truck was registered to a man in Collinsville,

Illinois (near St. Louis). Leaving his marked

patrol vehicle parked in full view near the front

of the store, Lindburg walked inside to ask the

manager whether anyone had seen Raibley. While he

was speaking with the manager, Lindburg looked

outside and saw the white pickup leaving the lot

at some thirty to forty miles per hour. Lindburg

ran back to his car and radioed for help in

stopping the truck, exclaiming, "He’s taking off

from me. He’s westbound on Route 17."

Mercer County Sheriff’s Deputy Sean Hast heard

Lindburg’s broadcast and intercepted the truck at

a four-way stop in downtown Aledo, a mile or so

away from the Wal-Mart. Believing that Raibley

was wanted for fleeing and eluding a police

officer, Hast had Raibley out of the truck and

spread-eagled against the vehicle, and was about

to place him in handcuffs, when Lindburg arrived

a few moments later. Lindburg informed Hast that

he only wanted to question Raibley. An

embarrassed Hast apologized to Raibley and left

the scene. Lindburg advised Raibley that he was

not under arrest. When Lindburg asked him whether

he would mind pulling his truck into a parking

space around the corner so that the officer could

speak with him further, Raibley responded, "No

problem." Lindburg would later testify that he

wanted to question Raibley because he believed

that Raibley had committed the state offense of

stalking when he surreptitiously videotaped the

young Wal-Mart employee. See 720 ILCS 5/12-7.3.

Raibley moved his truck as requested, and

Lindburg parked next to him. Both men then got

out of their vehicles. Lindburg asked him why he

had been videotaping young women at the Wal-Mart.

Raibley answered that he had gone to the store to

purchase some goods for a birthday party he was

attending, had noticed a pretty young girl, and

decided to tape her. He did that sometimes,

Raibley told the officer, although he knew it was

wrong.

Lindburg’s attention turned to the truck. He

asked Raibley whether there was anything illegal

in the truck. Raibley said there was not, that

"all he had was some videotapes." Suppr. Tr. 22.

Lindburg then solicited Raibley’s consent to

search the truck, and Raibley gave it. Hast

returned to the scene at Lindburg’s request and

stood by, watching Raibley, while Lindburg

searched the truck. Inside of an open black bag

on the passenger seat, Lindburg discovered a film

canister containing what appeared to be

marijuana. Lindburg proceeded to place Raibley

under arrest.

Once Raibley was in handcuffs and apprised of

his rights, Lindburg completed the search of his

truck. He found a "hitter pipe" (a device used to

smoke cannabis), some women’s underwear, a

pornographic magazine, a video camera, and two

mini-VHS videotapes, one of the cases for which

had been marked "Aledo girls."

Lindburg inquired as to the subject of the

tapes, and Raibley told him that they contained,

inter alia, scenes from a fishing trip. When

Lindburg asked whether the tapes contained any

pornography, including child pornography, a

nervous Raibley said that they might contain

footage of him having sex with adult females.

Suspecting that the tapes might contain child

pornography, Lindburg used his cellular telephone

to contact Mercer County State’s Attorney Baron

Heintz and ask whether he could view the tapes.

Heintz advised Lindburg that he could look at the

tapes so long as Raibley did not object. Lindburg

again asked Raibley whether the tapes contained

any adult or child pornography, and Raibley told

him that there was "nothing on there" except for

footage of himself with his girlfriend. Suppr.

Tr. 34. Lindburg said that he would like to take

a look at the tapes anyway. In response, Raibley

"just kind of looked away and shrugged his

shoulders." Id. Lindburg interpreted this as an

expression of consent. Id.

At the Mercer County Sheriff’s office, where

Raibley was booked on charges of possessing

marijuana and drug paraphernalia, Lindburg began

to view the videotapes. He looked at the tape

labeled "Aledo girls" first. It contained footage

of the seventeen year-old Wal-Mart employee as

well as other young women Raibley had filmed at

the Wal-Mart. It did not contain any pornographic

material, however.

Before Lindburg looked at the second tape, a

jail employee informed him that Raibley wished to

speak with him. Lindburg recounted his ensuing

conversation with Raibley as follows:

Mr. Raibley told me that if I was wanting to view

those tapes he really didn’t want, you know, he

just wanted me to see them. He didn’t want a

whole audience to see them, because he said it

had pornography of him and his girlfriend on

there. So he was going to--he wanted me to bring

the camera back to him so he could show me how to

view the tape just inside the camera.

Suppr. Tr. 37. Lindburg declined Raibley’s offer,

assuring him that only he and another officer

would look at the tapes. According to Lindburg,

Raibley acknowledged that he had "a problem,"

id., but said that he only intended to view the

tapes while masturbating. During this discussion,

Raibley also indicated that he had sped away from

the Wal-Mart on the second occasion, when

Lindburg was present, because he had overheard

the officer make inquiries about "the guy that

was videotaping." Suppr. Tr. 38.

When Lindburg left Raibley and reviewed the

second videotape, he discovered that it contained

scenes of two girls, later determined to be ages

five and seven. These scenes included close-ups

of their buttocks and breasts; and an adult hand

could be seen in one of the scenes drawing back

the underwear of one of the girls to expose her

genitals. Lindburg observed that the wristwatch

on the adult hand looked like the watch that

Raibley was wearing. In subsequent interviews,

Raibley disclosed the identities of the two

girls, admitted that he had made the tape, and

admitted that he had transported the tape across

state lines.

After he was indicted for the production of

child pornography, Raibley moved to suppress the

videotapes and other physical evidence that

Lindburg had seized, as well as his post-arrest

statements. Raibley argued, inter alia, that the

initial stop effectuated by Hast and Lindburg was

not supported by a reasonable suspicion that he

had committed a crime. See Terry v. Ohio, supra,

392 U.S. at 21-22, 88 S. Ct. at 1880. He further

argued that, because Lindburg had not obtained a

warrant authorizing him to view the tapes taken

from Raibley’s truck, see Walter v. United

States, 447 U.S. 649, 100 S. Ct. 2395 (1980)

(plurality), the review of those tapes was

unlawful--unless Raibley had given Lindburg

permission to look at the tapes. Raibley

contended that there was insufficient proof that

he did give his consent.

The district court conducted an evidentiary

hearing, and at the conclusion of that hearing,

Judge McDade concluded that the stop of Raibley’s

vehicle and the review of the videotapes found

within were both lawful. He concluded, in the

first instance, that the initial detention of

Raibley "was a legitimate Terry stop." Suppr. Tr.

213. As for the videotapes, Judge McDade found

that Raibley had given his consent to view the

tape that contained the pornography. He made that

finding based on the shrug that Raibley had given

when Lindburg indicated his desire to view the

two tapes found in the truck, coupled with

Raibley’s subsequent request, made before

Lindburg looked at the second, pornographic tape,

that Lindburg view the tapes privately on the

camera monitor. Suppr. Tr. 213-14.

II.

A.

Our review of the district court’s decision to

deny Raibley’s motion to suppress is plenary.

Ornelas v. United States, 517 U.S. 690, 699, 116

S. Ct. 1657, 1663 (1996). Of course, in the

absence of clear error, we defer to the district

court’s findings of historical fact as well as

its credibility assessments. Ibid. But the

ultimate determination of whether the authorities

violated the defendant’s Fourth Amendment rights

is one that we review de novo. Ibid.

The parties agree that the initial stop of

Raibley’s vehicle amounted to an investigatory

stop of the kind described in Terry v. Ohio,

supra. Terry held that a police officer may stop

and briefly detain a person for questioning if he

reasonably suspects "that criminal activity may

be afoot." 392 U.S. at 30, 88 S. Ct. at 1884-85;

see id. at 21-22, 88 S. Ct. at 1880; see also

Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.

Ct. 673, 675 (2000); United States v. Sokolow,

490 U.S. 1, 7, 109 S. Ct. 1581, 1585 (1989). A

Terry stop does not demand the probable cause

that an arrest would require--that is, the

circumstances need not establish a "fair

probability" that the person detained for

questioning has committed a crime. See Sokolow,

490 U.S. at 7, 109 S. Ct. at 1585, quoting

Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.

2317, 2332 (1983). On the other hand, the police

may not stop an individual for questioning based

on nothing more than an "inchoate and

unparticularized suspicion or ’hunch.’" Terry,

392 U.S. at 27, 88 S. Ct. at 1883. "[T]he Fourth

Amendment requires at least a minimal level of

objective justification for making the stop."

Wardlow, 528 U.S. at 123, 120 S. Ct. at 676,

citing Sokolow, 490 U.S. at 7, 109 S. Ct. at

1585. Simply put, the officer must have

reasonable suspicion, supported by "specific and

articulable facts," that an individual has

committed, is committing, or is about to commit,

a crime. Terry, 392 U.S. at 21, 88 S. Ct. at

1880; see also, e.g., United States v. Brown, 188

F.3d 860, 864 (7th Cir. 1999).

As we have noted, Officer Lindburg testified

that he had Raibley stopped for questioning

because he suspected that Raibley had committed

the offense of stalking, in violation of Illinois

law. The Illinois legislature has defined the

offense of stalking as follows:

(a) A person commits stalking when he or she,

knowingly and without lawful justification, on at

least 2 separate occasions follows another person

or places the person under surveillance or any

combination thereof and:

(1) at any time transmits a threat to that person

of immediate or future bodily harm, sexual

assault, confinement or restraint; or

(2) places that person in reasonable apprehension

of immediate or future bodily harm, sexual

assault, confinement or restraint.

. . .

(d) For the purpose of this Section, a defendant

"places a person under surveillance" by remaining

present outside the person’s school, place of

employment, vehicle, other place occupied by the

person, or residence other than the residence of

the defendant.

(e) For the purpose of this Section, "follows

another person" means (i) to move in relative

proximity to a person as that person moves from

place to place or (ii) to remain in relative

proximity to a person who is stationary or whose

movements are confined to a small area. "Follows

another person" does not include a following

within the residence of the defendant.

. . . .

720 ILCS 5/12-7.3. Raibley contends that at the

time he was detained, the facts known to Lindburg

did not establish any of the elements of stalking

as Illinois has defined that offense: there was,

for example, no indication that Raibley had

followed or surveilled the seventeen year-old

Wal-Mart employee he was seen video-taping on

more than one occasion.

We readily agree with Raibley that the facts

known to Lindburg did not, standing alone,

establish a violation of the stalking statute.

But Terry does not require proof that a crime has

occurred; it demands only such facts as are

necessary to support a reasonable suspicion that

a crime may have occurred. See Wardlow, 528 U.S.

at 123, 120 S. Ct. at 675-76; Sokolow, 490 U.S.

at 7, 109 S. Ct. at 1585. After all, the purpose

of a Terry stop is not to accuse, but to

investigate. Even facts susceptible of an

innocent construction will support the decision

to detain an individual momentarily for

questioning, so long as one may rationally infer

from "the totality of the circumstances--the

whole picture," United States v. Cortez, 449 U.S.

411, 417, 101 S. Ct. 690, 695 (1981), that the

person may be involved in criminal activity, see

Sokolow, 490 U.S. at 9-10, 109 S. Ct. at 1586-87.

Based on what Lindburg learned when he first

interviewed the Wal-Mart manager and other store

employees, and when he returned to the store

after searching the town of Aledo for Raibley’s

vehicle, we believe that Lindburg had a

reasonable basis to suspect that Raibley may have

been engaged in stalking. Lindburg knew that

Raibley had covertly videotaped a young Wal-Mart

employee. He also knew that the employee was not

acquainted with Raibley and had not realized that

Raibley was taping her. Having been oblivious to

the videotaping, the employee experienced no

apprehension of harm. Yet, she obviously had not

consented to the videotaping. It was entirely

possible, of course, that Raibley meant the

subject of his videotaping no harm, nor even to

put her in fear of such harm. On the other hand,

Raibley’s behavior was of a kind that could put

a person in fear of harm, and the fact that he

fled the Wal-Mart lot upon being noticed tended

to belie an innocent motive. Moreover, a short

while later, Raibley returned to the Wal-Mart

store, a fact that was consistent with the

possibility he might be following the subject of

his videotaping. Finally, moments after Lindburg

parked his cruiser in plain view near the store

entrance, Raibley sped out of the lot for a

second time. Unprovoked flight from a police

officer is suggestive of wrongdoing, Wardlow, 528

U.S. at 124; 120 S. Ct. at 676, and coupled with

the other facts we have noted supplied grounds on

which to stop Raibley for questioning.

As Raibley points out, Lindburg did not

actually know that Raibley was speeding away from

the lot in response to the officer’s presence.

Lindburg had neither seen nor spoken to Raibley,

and at that point in time the officer had no

information confirming that Raibley was even

aware of his presence at the store. It was

possible, therefore, that Raibley was simply in

a hurry. And because the Wal-Mart lot was private

property, Raibley’s high rate of speed while

leaving the lot broke no traffic laws.

Even so, one could reasonably have inferred

that Raibley was fleeing in response to

Lindburg’s presence--as Raibley would later admit

that he was. Lindburg had parked his cruiser near

the store entrance, where it would have been

visible to anyone entering or leaving the store.

He had proceeded into the store to ask the

manager whether she had seen "the guy who was

videotaping" earlier. It was therefore quite

likely that Raibley was aware of a police

officer’s presence. Raibley had already beat a

speedy retreat from the parking lot once before,

of course, when spotted by the store manager, and

the fact that Raibley did so again at a fairly

high rate of speed (30 to 40 miles per hour) upon

Lindburg’s return to the store was reasonably

suggestive of flight rather than simple haste.

For these reasons, we conclude that the initial

stop of Raibley’s vehicle was justified under

Terry. The district court’s decision not to

suppress the evidence gathered during Lindburg’s

subsequent questioning of Raibley and from the

consensual search of his truck was therefore

correct.

B.

The remaining question is whether Raibley gave

Lindburg his consent to view the videotape that

contained the evidence underlying the pornography

charge. The parties agree that Raibley’s consent

was required under the circumstances of this

case, and so we need not explore whether, in the

absence of his consent, the police would have

been entitled to view the tapes. See Walter v.

United States, supra, 447 U.S. 649, 100 S. Ct.

2395 (plurality); United States v. Eschweiler,

745 F.2d 435, 440-41 (7th Cir. 1984), cert.

denied, 469 U.S. 1214, 105 S. Ct. 1188 (1985).

Whether an individual voluntarily consented to a

search is a factual assessment that turns on the

totality of the circumstances. Schneckloth v.

Bustamonte, 412 U.S. 218, 227, 93 S. Ct. 2041,

2047-48 (1973). Relevant factors include (1) the

person’s age, intelligence, and education, (2)

whether he was advised of his constitutional

rights, (3) how long he was detained before he

gave his consent, (4) whether his consent was

immediate, or was prompted by repeated requests

by the authorities, (5) whether any physical

coercion was used, and (6) whether the individual

was in police custody when he gave his consent.

United States v. Strache, 202 F.3d 980, 985 (7th

Cir. 2000); Valance v. Wisel, 110 F.3d 1269, 1278

(7th Cir. 1997). The government bears the burden

of proving, by a preponderance of the evidence,

that consent was freely and voluntarily given.

Id. In this case, there is no claim that Raibley

was somehow coerced into giving his consent to

view the videotape. The question, rather, is

whether he actually consented to the viewing or,

at most, simply acquiesced to a show of

authority. The latter is insufficient to

demonstrate consent. Florida v. Royer, 460 U.S.

491, 497, 103 S. Ct. 1319, 1324 (1983).

In view of the factual nature of the consent

determination, we review the district court’s

resolution of that question for clear error.

E.g., United States v. Shelby, 121 F.3d 1118,

1120 (7th Cir. 1997), cert. denied, 524 U.S. 928,

118 S. Ct. 2325 (1998).

"A finding is ’clearly erroneous’ when although

there is evidence to support it, the reviewing

court on the entire evidence is left with a

definite and firm conviction that a mistake has

been committed." United States v. United States

Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92

L.Ed. 746 (1948). "Where there are two

permissible views of the evidence, the

factfinder’s choice between them cannot be

clearly erroneous." Anderson v. Bessemer City,

470 U.S. 564, 574, 105 S. Ct. 1504, 84 L.Ed.2d

518 (1985). If the district court’s account of

the facts is plausible in light of the record

viewed in its entirety, we may not reverse that

decision even if we may have decided the case

differently. See id. at 573-74, 105 S. Ct. 1504

(noting that if there are two possible

understandings of the evidence, the factfinder’s

conclusion cannot be clearly erroneous);

[citation omitted]. Furthermore, any reasonable

doubts we may harbor should be resolved in favor

of the district court’s ruling "in light of its

greater immersion in the case." Cook v. City of

Chicago, 192 F.3d 693, 697 (7th Cir. 1999).

Central States, S.E. & S.W. Areas Pension Fund v.

Kroger Co., 226 F.3d 903, 910 (7th Cir. 2000),

amended in other respects, 2001 WL 204762 (7th

Cir. Feb. 2, 2001), petition for cert. filed, No.

00-1304 (U.S. Feb. 14, 2001); see also, e.g.,

United States v. Denberg, 212 F.3d 987, 991 (7th

Cir. 2000); United States v. Scheets, 188 F.3d

829, 836 (7th Cir. 1999), cert. denied, 528 U.S.

1096, 120 S. Ct. 837 (2000).

Although he believed that the question was

close, see Suppr. Tr. at 211, Judge McDade

concluded that Raibley did consent to Lindburg’s

review of the videotape. He based that finding on

Raibley’s shrug of the shoulders when Lindburg

solicited his consent, coupled with Raibley’s

subsequent request, at the jailhouse, that

Lindburg view the tape on the camera monitor. Id.

at 213-14. The judge did not believe that the

shrug, without additional evidence, was

sufficient to demonstrate Raibley’s consent. Id.

The judge found it significant, however, that

Raibley later asked Lindburg to use the video

camera to view the tape privately. Id. at 214.

Judge McDade saw that request as evidence of

Raibley’s awareness that Lindburg was going to

view the tape. Id. at 214. That awareness, in

turn, suggested that Raibley had indeed meant to

signal his consent to Lindburg by shrugging his

shoulders. Id.

We find no clear error in the district judge’s

finding that Raibley consented to Lindburg’s

review of the tape. Like Judge McDade, we think

that the question is a close one. Gestures are

often ambiguous, and at least one court has

concluded that a shrug without more is

insufficient to show one’s consent to search.

State v. Harris, 642 A.2d 1242, 1246-47 (Del.

Super. Ct. 1993). Other courts, however, have

accepted shrugs and similar gestures as

sufficient evidence of consent. E.g., United

States v. Wilson, 895 F.2d 168, 172 (4th Cir.

1990) (defendant shrugged his shoulders and

raised his arms when asked for consent to pat-

down search); see United States v. Griffin, 530

F.2d 739, 742 (7th Cir. 1976) ("[t]he consent [to

search] may be in the form of words, gesture, or

conduct"), citing Robbins v. MacKenzie, 364 F.2d

45, 48-49 (1st Cir.), cert. denied, 385 U.S. 913,

87 S. Ct. 215 (1966). We need not decide whether

a shrug alone would suffice as proof of consent,

because, as Judge McDade pointed out, Raibley

later called Lindburg to his cell and asked him

to view the videotape privately. We believe that

the shrug, coupled with the later request,

permitted the inference that Raibley consented to

the viewing.

As Raibley points out, he was incarcerated when

he asked Lindburg to watch the tape on the video

camera; moreover, Lindburg had told him that "we

were going to be viewing the tape." Suppr. Tr.

89./1 But these circumstances did not compel a

finding that Raibley acquiesced to a show of

authority. Although Raibley was under arrest when

Lindburg solicited his consent and incarcerated

when he later spoke with Lindburg about viewing

the videotape privately, these facts by no means

preclude the notion that he consented

voluntarily. See, e.g., Strache, 202 F.3d at 986.

On neither occasion had Raibley been in custody

for a lengthy period of time, and there is no

evidence that Raibley was ever pressured or

badgered for his consent. So far as the record

reveals, after its dramatic beginning, Lindburg’s

encounter with Raibley took place in a calm,

professional manner. Lindburg had apprised

Raibley of his constitutional rights when he took

him into custody. Moreover, it was Raibley who

summoned Lindburg to his cell to suggest that the

officer look at the tape on the camera monitor.

Although arguably susceptible to multiple

interpretations, it is not unreasonable to

construe that suggestion as confirmation that

Raibley affirmatively consented to Lindburg’s

review of the tapes, and was concerned only that

Lindburg not play the tapes before "a whole

audience." Suppr. Tr. 37; see United States v.

Price, 54 F.3d 342, 346 (7th Cir. 1995); United

States v. Benitez, 899 F.2d 995, 998-99 (10th Cir.

1990). There is no evidence suggesting that

Raibley knew that Lindburg had already watched

the first of the two tapes by this time and was

about to view the second--that the viewing was

about to become a fait accompli, in other words.

Raibley, whom the record reveals to have been an

aquatic biologist who had published a number of

scientific papers, obviously was a bright, mature

individual. And there is no evidence that Raibley

at any time voiced any objection to Lindburg’s

review of the tapes. See Forman v. Richmond

Police Dep’t, 104 F.3d 950, 960 (7th Cir.), cert.

denied, 522 U.S. 997, 118 S. Ct. 563 (1997);

Price, 54 F.3d at 346 (7th Cir. 1995).

Under these circumstances, we believe that Judge

McDade was free to infer from Raibley’s actions

and words that he gave Lindburg his consent to

watch the videotapes. The judge’s decision to

draw that inference is therefore not clearly

erroneous.

III.

Having concluded that Officer Lindburg had an

objectively reasonable basis on which to stop and

question Raibley, and finding no clear error in

the district court’s finding that Raibley

consented to the officer’s review of the

videotapes found in his truck, we AFFIRM Raibley’s

conviction.

/1 It is not clear from the record, however, whether

Lindburg so informed Raibley before or after

Raibley summoned Lindburg to ask the officer to

view the tapes in private. See Suppr. Tr. 89.

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