Massachusetts criminal defense Attorney Blog
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Today the Massachusetts Supreme Judicial Court issued its opinion in Commonwealth v. Parent, SJC-11181. After a jury trial Parent was convicted of Indecent Assault and Battery, Furnishing Alcohol to a Minor and Contributing to the Delinquency of a Minor. In reversing convictions for a the Massachusetts Sex Crime and other the other charges the Court in Parent found the following facts:

The defendant’s fifteen year old daughter invited a fourteen year old girlfriend to spend the night at her home. The daughter asked the defendant if she and her friend could have an alcoholic drink. The defendant gave them each a bottle of alcoholic lemonade. Once they finished their drink Parent went to a local store to buy two six packs of the same drink. The girls were with him. They went home. The girls each had a few more drinks. The girls fell asleep on a sofa bed while watching television. The victim claims to have woken up with the defendant lying down between her and the daughter on the bed. The victim testified that the defendant had his hand in her pants, rubbing her genitalia over her underwear. She stopped him, the defendant left and the fourteen year old friend fell back to sleep. The next day Parent’s fiancé took the girls to the movies. The victim ran into a friend and disclosed what had happened the night before. The defendant’s daughter agreed that he had provided them with alcohol and that he was becoming intoxicated as the night progressed. She never saw or heard him get into the bed with them.

The defense contended that the victim was lying. In support of this defense counsel argued that the friend changed her story over time. This was corroborated by a detective’s report generated four days after the incident. In total defense recognized four significant inconsistencies between the trial testimony and what was related to the detective. On cross-examination the victim denied making the inconsistent statements to the detective. Accordingly, defense counsel tried elicit the inconsistencies from the detective. The judge would not permit it. The Supreme Judicial Court found this to be an improper limitation of Parent’s right to impeach the victim. The Court further found this to be prejudicial and reversed the conviction for Indecent Assault and Battery.

The Supreme Judicial Court addressed other issues as well. The trial judge improperly permitted the district attorney to elicit from the detective evidence that the complaining witness told him that Parent committed a sexual assault on her. The Court found this to be violative of the first complaint doctrine. In fact its only purpose was to pile on evidence that suggested that the victim was telling the truth and that the act did in fact occur. The Court restated its position that “[t]he testimony of multiple complaint witnesses likely serves no additional corroborative purpose, and may unfairly enhance a complainant’s credibility as well as prejudice the defendant by repeating for the jury the often horrific details of an alleged crime.” Nor was the friend’s statement to the detective admissible for the purpose of rehabilitating her credibility.

The count charging the defendant with delivering alcohol to his own daughter was also reversed. The applicable law, Massachusetts General Laws Chapter 138 Section 34 prohibits providing alcohol to anyone under the age of twenty one. Specifically, you cannot sell or deliver alcohol to a person under age, you cannot buy a drink for someone under age in a bar or restaurant and you cannot give an underage person alcohol. There is an exception provided by the statute. You can give it to your child or grandchild. In reversing this portion of the conviction the Supreme Judicial Court discussed confusing aspects of the statute pertaining to the words “furnish”, “procure”, “sell” and “deliver”. The Court concluded that what Parent was convicted for did not violate the statute.

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Earlier today Methuen, Massachusetts police responded to a report of a fight occurring just outside of a Methuen fast food restaurant on Route 110. In total, five people were arrested. The incident occurred just after midnight when one of the accused allegedly insulted a female. Words were exchanged between the two groups, one consisting of five individuals the other having three. One of the individuals in the larger group used a metal pipe beat and stab the three victims. One of the injured parties sustained injuries to his head and was taken to the hospital where he remains in serious condition. Four or the individuals arrested face charges of Assault and Battery by Means of a Dangerous Weapon. The other has been charged with Assault With Intent to Murder as well as Assault and Battery by Means of a Dangerous Weapon. The charges are now pending in the Lawrence District Court. Depending on their criminal records and the severity of the injuries this case may be prosecuted in the Essex County Superior Court in Salem.

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Methuen, Massachusetts Criminal Defense Lawyer Defending Violent Crimes, Assault Cases, Stabbing Cases

This article mentions the suspects being detained not far from the crime scene for the purpose of witness identification. This issue comes up regularly in Massachusetts Criminal Cases. Prosecutors need victims to make identifications of their assailants. Yet there are constitutional restrictions on the manner in which these identification procedures can be implemented. If the procedure is not followed correctly the accused’s Massachusetts Criminal Lawyer can bring a Motion to Suppress the Identification Procedure. If successful, the fact that an identification of the defendant was made might not be admissible at trial. Absent an independent source for the identification of the defendant the case might be dismissed.

There are many types of identification procedures used by law enforcement in Massachusetts and throughout the country. There are photo arrays, line-ups, show-ups and more. The procedure used here is commonly known as a “show up” identification procedure. This usually takes place at or near the crime scene. Potential suspects will be detained for a period of time, usually enough time to get the victim or witness over to view the individual. The victim or witness is typically concealed in a police cruiser and taken to the scene to see if he or she can identify the person being detained as having been involved in the crime. The Massachusetts Supreme Judicial Court views this procedure as “inherently suggestive”. These procedures present the greatest risk of mistaken identification. However, trial judges often deny motions to suppress these procedures and rarely is that decision overturned. Judges are to look to the totality of the circumstances in determining whether or not the identification procedure was unnecessarily suggestive so as to warrant suppression. It is the job of the defense attorney to present evidence showing the suggestive nature of the process. This can be done directly, through cross-examination or both. The district attorney is accountable to show that good reason for the procedure existed. The judge will look at factors such as the need for an efficient police investigation immediately following the crime and the usefulness of a quick confirmation of the police investigatory information.

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Just two nights ago Michael Gitschier of Amesbury, Massachusetts was arrested and charged with numerous Massachusetts Drug Crimes. A Newburyport, Massachusetts newspaper reports that an Amesbury Police Officer noticed a very bright light shining in a downtown apartment. The officer radioed for assistance. A second officer arrived and the two approached the home to inquire. When they did they were met with a strong odor of Marijuana. One of the cops then looked into a window where he claims to have seen between twenty and twenty five pot plants. The officer reported that seeing grow lights and an irrigation system set up as well. With this information the police applied for and were granted a Search Warrant. The warrant was served, the search was executed and Gitschier was arrested. The forty two year old Gitschier was charged with Possession With Intent to Distribute Marijuana, a Class D Substance, Possession of Marijuana as a Second and Subsequent Offense and Malicious Destruction to Property. The latter charges stems from allegations that the defendant tapped into a neighbor’s utilities to facilitate the growth of the plants and arguable to avoid detection for excessive utility bills. Gitschier was charged in the Newburyport District Court where during his arraignment it was alleged that he admitted to committing the crimes charged. The owner of the apartment posted Gitschier’s bail which was set at two thousand five hundred dollars. The article states that the officer making the discovery viewed the bright light in the apartment as out of place and warranting further investigation.

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Lawyers Who Defend Marijuana Felony and Misdemeanor Cases in Newburyport, Massachusetts

As a Massachusetts Criminal Defense Lawyer I am interested in seeing the affidavit used to obtain the Search Warrant. As most readers know, if that document fails to articulate sufficient probable cause for the issuance of the Search Warrant the search will fail, the drugs will be suppressed and Gitschier’s case will likely be dismissed. One of the questions I have is exactly what did the officer’s do when they approached the home? Where were they when they saw the excessively bright lighting? From where did they approach the defendant’s home? What was the defendant’s expectation of privacy relative to the place from where the officer peered into the window to make his observation? Here is something else. Do you really think that someone who put together an elaborate Marijuana Cultivation operation would leave a portion of his window uncovered? Are there any surveillance cameras in the area that can show exactly what the police officers did in this case? Some pretrial investigation work is likely to reveal the answers to these questions. The results of this work will have an important impact on the ultimate outcome of this case.

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Today, in a 5-4 decision the United States Supreme Court issued its opinion in Maryland v. King. The ruling allows police to take a DNA sample from a suspect who has been arrested. Summarized, the decision written by Justice Kennedy holds that when the police make an arrest supported by probable cause and take the person to the station for detention the taking of a DNA sample with a buccal swab is a legitimate booking procedure and is not violative of the Fourth Amendment rights of the accused.

In King the Supreme Court articulated as facts the following: In 2003 there was a home invasion in Maryland during which a woman was Raped by the assailant. The victim was unable to identify the attacker and the police investigation was unsuccessful. Through the victim the perpetrator’s DNA was obtained. In 2009 the defendant was arrested for a Violent Crime. As part of the booking procedure, and pursuant to a Maryland DNA collection law, a DNA sample was taken. A national database, CODIS, matched the defendant’s DNA to the sample saved from the 2003 rape. The Maryland law successfully challenged by the defendant and the case found its way up the United States Supreme Court.

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Maryland v. King

Upholding the Maryland DNA collection law and overturning the Maryland Appeals Court decision the majority in King came to the following troubling conclusions: 1) accurate identification of the suspect is well served through this process, 2) this process reduces inordinate detention risks helping to ensure the safety of the facility staff, the detainee and other detainees at the facility, 3) DNA collection reduces the risk of flight and the subversion of the administration of justice, 4) DNA collection helps with a judge’s determination of bail and 5) the law serves to prevent the detention of innocent people being held for crimes that they did not commit.

The dissent in King was nothing less than scathing. It reasoned that identifying King was not an issue in this case. The Maryland statute permitting the DNA collection forbids testing the DNA sample until after the arraignment. The DNA sample was not matched until four months after the arrest. The Maryland statute provided two situations where the DNA could be tested. One to identify human remains and the other to identifying missing persons. Nothing in the statute permitted testing the DNA for any other purpose. Doing so according to the Maryland law constitutes a crime. The dissent went further stating that “law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA”.

There are additional flaws to this decision not discussed in the dissent. Here is just one of them to think about. Through DNA testing it has been discovered that fifty percent of a person’s personality traits are imbedded in his or her genes. Taking DNA samples in accordance with the Maryland law will enable law enforcement to profile people and their families through these DNA test disclosures. It will not be long before prosecutors try to use this information in court in support of their prosecution.

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This past Saturday night in Hingham, Massachusetts the police broke up a house party. While doing so they arrested sixteen minors and one adult. The minors face charges of Minor in Possession of Alcohol and Disturbing the Peace. The homeowner is also being charged with a crime; Violating the Massachusetts Social Host Law. When the police responded to calls complaining about the party bear bottles were hurled at them. Backup officers were called and arrests were made. Several other youths fled into the woods and were not apprehended. The case is being prosecuted in the Hingham District Court.

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Hingham, Massachusetts Criminal Defense Law Firm

Lawyers Who Defend Social Host Violations in Massachusetts

While I am not sure exactly under which statute the homeowner is being prosecuted Massachusetts General Laws has criminal provision for people who provide alcohol to people under the age of twenty one. The law, Massachusetts General Laws Chapter 138 Section 34 states that anyone who gives any alcoholic beverage to someone under the age of twenty one is guilty of a misdemeanor and can be sentenced by a fine of two thousand dollars and a one year jail sentence.

As a Massachusetts Criminal Lawyer I see these charges typically being filed this time of year. They stem from high school graduation parties. Most parents are not aware of the law and cannot foresee problems with permitting minors to drink alcohol at their homes on these occasions. Many adults reflect back to when they graduated from high school remembering how they celebrated that day. They figure there is no harm in passing along the tradition. They assume the graduates will act appropriately and the event will be a happy one that runs smoothly. In doing so they are unaware of several factors that can result in them being charged with a crime. The laws have changed. Since the drinking age was raised fewer high school students have access to alcohol. Beer has been passed over for vodka or other types of hard alcohol. It is easier to conceal. It also however leads to acute intoxication that can be hazardous to anyone, especially the inexperienced high school aged drinker. When the police get called to a house party where minors are consuming alcohol they cannot ignore what they see. Arrests are made, parents are called and criminal charges are filed. And now, the parents hosting the party get charged as well. This case is a perfect example of what happens in these circumstances. The minor drinkers could not control their behavior to the point where the police were called. To compound matters they threw bottles at the officers. Obviously this cannot be overlooked and the person who permitted them to do so is facing criminal charges in court.

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The Lawrence Eagle Tribune reports that the death of a Salem, Massachusetts man might be the product of a Domestic Violence incident occurring in Gloucester yesterday. A man in an apartment complex heard a noise loud enough to cause him to look outside. He then saw the victim on the ground in the parking lot. The victim was bleeding from his left side. The police responded and located a forty-three year old Haverhill man whose truck had either run over or somehow hit the victim. After questioning the man, James Hayes was released. Hayes is the father of the victim’s girlfriend’s daughter. A witness reports that Hayes had been arguing with the victim just before the incident. No arrests have been made nor have any charges been filed.

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Massachusetts Domestic Violence Defense Lawyer

Lawyers Who Defend People Accused of Domestic Disputes in Essex County

This article highlights why prosecutors in Massachusetts take Domestic Violence cases so seriously. They are often afraid that death or serious bodily injury can result if the situation is not diffused. Oftentimes the district attorney will ask for a high bail or for detention pursuant to Massachusetts General Laws Chapter 276 Section 58A to make sure that the accused cannot get out of jail and further assault the victim.

Interestingly enough, in some counties in Massachusetts detention is requested on every case involving an incident of Domestic Violence. Placing form over substance in these matters is not, in my opinion a prudent way for prosecutors to proceed with Domestic Violence cases. Judges can become numb to routine detention requests. Prosecutors applying this strategy risk blending the more serious cases with the less serious cases. While some judges might routinely rubber stamp a request for detention others are liable to question the integrity of the prosecutors and release people who might actually deserve detention. The Massachusetts Criminal Lawyer you hire should be someone who is familiar with the practices of the district attorneys in the county where you are being prosecuted as well as with the judges who regularly sit there. Selecting the right lawyer to defend you can make the difference between freedom and being held in jail while waiting to have your case heard on its merits.

Here is something else that interests me about this case. Why did Hayes talk to the police? Most people believe that no harm can come from talking to the police if you have nothing to hide. Most Massachusetts Criminal Defense Attorneys disagree with that statement however. Police usually ask questions designed to elicit a particular answer. The questions are not usually open ended. They are pointed and innocent answers can be interpreted as representative of criminal responsibility. Again, my advice is to never talk to the police without first discussing matters with an Experienced Criminal Lawyer.

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Just a few days ago police found Learde Rodriguez at an apartment on Lowell Street in Lawrence, Massachusetts. The twenty-three year old was arrested in connection with a shooting alleged to have occurred in Haverhill, Massachusetts just over one month ago. Rodriguez also faces charges in Lawrence for the same crime. The Haverhill incident occurred in the early evening hours. Police responded to a call for a shooting and arrived to find the victim riddled with gunshot wounds. A short while later a car with the windows shot out arrived at the police station to report the incident. There is no information as to how or why the police believe Rodriguez to be involved in the case. It is probable that Rodriguez will be held without bail due to the dangerousness of the crimes he is facing. Additionally, these cases will likely be prosecuted in the Essex County Superior Court in Salem, Massachusetts.

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Lawrence, Massachusetts Assault and Battery Defense Lawyer

Haverhill, Massachusetts Lawyer Who Defends Violent Crimes

One thing I noticed while reading this article is the reference to Rodriguez being a member of the Trinitario Gang. This gang originated as a New York City prison gang. It was created for Dominican prisoners who were drug dealers and who had been encountering problems with the Latin Kings during their incarceration. The gang was formed for their protection in the jails. The gang spread to the streets and although primarily in the New Jersey and New York areas they are spreading to Eastern Massachusetts. Their weapon of choice is the machete. This past December forty such gang members were arrested and charged with an assortment of Violent Crimes in New York including Gun Charges, Drug Charges and Conspiracy.

Cases like this one can be difficult for the district attorney to prove. If Rodriguez was involved in these crimes I imagine that there was either a gang related motive or a drug relative motive or both. Gang members and drug dealers are reluctant to come into court to testify. They fear their own exposure for the crimes that they committed. They also fear retaliation from the people and gangs against whom they testify. In major cities prosecuting these cases is often a nightmare. Corralling the witnesses and getting them to cooperate honestly often borders on impossible. And what about their credibility? Most of them come with heavy baggage and getting jurors to believe what they have to say is not easy. Defending these cases is always a challenge but often defense attorneys feel that they have the upper hand. Rarely do witnesses come into court with clean hands. There are seldom independent eyewitnesses to these types of crimes. The witnesses are typically drug dealers and rival gang members who are easy to impeach. The outcome to this case should be interesting.

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Ronald Keplin of Woburn, Massachusetts and Xiu Chen of Medford, Massachusetts are being arraigned today in the Somerville District Court. Both are being charged with Deriving Support from Prostitution, Human Trafficking and Keeping a House of Ill Fame. Wickedlocal.com reports that Chen and Keplin ran a large enterprise spanning several Massachusetts cities and town including Billerica, Wilmington, Woburn, Bedford, Medford and Reading. Women were brought in from several neighboring states on buses and housed in places considered substandard. They were made to work daily primarily in massage parlors and wellness centers. During a press release it was alleged that the victims in these operations were promised legitimate jobs thereby making their move to Massachusetts attractive. In reality, they were forced into a life of prostitution. It is further alleged that these victims were threatened and implicitly forced to remain in the employ of the defendants. Their services were advertised on the Internet. Transportation to and from the business establishments was provided by Chen and Keplin as were housing accommodations. The defendants will probably be prosecuted in the Middlesex Superior Court.

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Massachusetts Sex Trafficking Defense Lawyer

Lawyers Who Defend Sex Crime Allegations in Middlesex County Massachusetts

Any Massachusetts Criminal Lawyer will tell you that Human Trafficking Cases in Massachusetts are being indicted at a rapid pace. What used to be known as pimping cases has evolved into this new crime called Human Trafficking. That is due in part to federal funding of local law enforcement agencies to fight this activity and a public outcry against the criminal exploitation of women. The crimes themselves have become much more of a global problem due to the facility with which these enterprises can be operated through the use of the Internet. The Human Trafficking Statute permits and in some instances mandates sentences much greater than the pimping statute. This makes your choice of a criminal lawyer more important now than ever before. An experience lawyer might try and win your case. But there are instances where it might be more beneficial to have the charges reduced to something more consistent with the act actually committed rather than the sometimes sensationalized accusation of Human Trafficking.

So how can someone like Keplin or Chen defend this case? Much of that depends on who will be testifying against them and how that person connected with law enforcement. Usually, one of the women working at the establishment gets arrested for an act of Prostitution. Then, for self-preservation purposes that person tells a story much more exaggerated than the real event. Their cooperation can result in charges not getting filed or pending charges being dismissed. Absent some significant corroboration from of this person’s story what looked like a horrible Human Trafficking story becomes a simple prostitution case and the defendants no longer face lengthy prison sentences.

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According to a report on Boston.com, Dane Mullin, a Salem, Massachusetts man is accused of committing an Indecent Assault and Battery on a woman in Boston this past Tuesday. The incident occurred on a Green Line train during the morning commute. Mullin, a level three Sex Offender has open cases in the Salem District Court as well. One of these is for Failure to Register as a Sex Offender. Mullin is also on probation after being convicted of similar incidents just a few months ago. Mullin’s convictions for Massachusetts Sex Crimes date back to 2007. In addition to the new charges Mullin faces a Probation Violation proceeding.

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Massachusetts Sex Crimes Defense Law Firm

Indecent Assault and Battery Lawyers in Massachusetts

So just how big are Mullins’ problems? Well, lets first look at the underlying crime. Indecent Assault and Battery in Massachusetts is a felony. It is punishable by up to five years on state prison. While I doubt that this case will be indicted Mullin is still facing a two and a half year jail sentence. He is also subject to incarceration for the Probation Violation. Moreover, he is probably looking at Community Parole Supervision for Life. This subjects Mullin to the jurisdiction of the parole board for life. This statute, M.G.L. c. 127 Section 133D treats the defendant as if he or she is on parole. The parole board establishes terms and conditions that the violator must adhere to. The parolee cannot file a petition to terminate for at least fifteen years. Then, termination can occur only with a vote of the majority of the parole board members. Termination proceedings require sex offender evaluations as well. Here is another aspect of the Massachusetts Lifetime Community Parole statute that can impact the offender. A violation of the conditions of parole require a thirty day jail sentence. a second violation results in a six month sentence and a third results in the parolee serving a year. If the violation is the result of another criminal offense then these sentence run from and after the sentence on the new criminal case.

Mullin has some significant criminal defense issues in front of him. Possible lifetime parole, an imminent jail sentence for his Probation Violation, the new case and answering to the warrants will keep his Massachusetts Criminal Lawyer busy for some time.

Sometimes in cases like this one enlisting an expert in the field of Sex Offenses can be helpful. Sex offender evaluations and sentencing recommendations often guide judges in ordering a sentence that addresses the offender’s issues, protects society and mitigates the length and conditions of the sentence. I have found this quite helpful on many occasions. Judges and prosecutors can be influenced by thorough professional evaluations and recommendations.

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Last week members of the Quincy, Massachusetts Police Department received a utility shutoff notice for 228 Norfolk Street. Shortly after noon the officers arrived at the residence to serve the notice. A man, Hao Vu, answered the door and quickly left the home. Officers immediately noticed a strong odor of Marijuana. They also felt heat coming from the cellar. The article further states that the officers saw Marijuana Plants and heat lamps used to grow the drug. Based on these observations the police left the home to get a Search Warrant. During the execution of the Search Warrant eighty one Marijuana plants were found. Shortly thereafter Hao Vu was found along with his wife Annie Vu. Both Annie and Hao Vu have been charged with Trafficking Marijuana. The case is now pending in the Quincy District Court but will likely be prosecuted in the Norfolk County Superior Court in Dedham, Massachusetts.

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Quincy, Massachusetts Marijuana Trafficking Defense Law Firm

Lawyers Who Defend Drug Crimes in Norfolk County Massachusetts, Quincy, Dedham

The first thing that catches my eye about this case is the actions of the police when they served the utility notice. While they may have smelled an overwhelming odor of Marijuana that in and of itself would not provide sufficient information for a magistrate or judge to issue a Search Warrant. I am sure what in fact prompted the issuance of the warrant was the observation of plants and grow lights. Yet how were the cops able to see these? Where is the basement door in relation to the front door? How big are the plants? The article also mentions that the officers felt heat when the door was opened. What was the heat bill this month compared to prior months?

Massachusetts case law makes clear that without a search warrant or exigent circumstances a search of someone’s property is illegal. Similarly, an illegal entry that results in observations that serve as a basis for probable cause in a search warrant affidavit requires suppression. As to challenges to search warrants, Massachusetts Appellate Courts have stated that the information obtained as a result of an unlawful entry must be excised from the search warrant affidavit. If, absent that information there still exists probable cause for the issuance of the warrant the search will stand. If not, suppression is ordered. In this case, depending on the content of the search warrant affidavit I can see several potential challenges to this search. The officers’ unlawful entry into the home, possibly dubious observations and uncorroborated suspicions might be applicable here.

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