BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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8
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SB 989 (Vargas)
As Introduced February 1, 2012
Hearing date: April 24, 2012
Penal Code
JM:mc
EXONERATION OF BAIL:
FUGITIVES FOUND IN FOREIGN COUNTRIES
HISTORY
Source: Aladdin Bail Bonds
Prior Legislation: AB 2854 (Dymally) - 2006, Vetoed
SB 1245 (Polanco) - Ch. 434, Stats. 1995
AB 734 (Johnson) - Ch. 524, Stats. 1993
Support: California Bail Agents Association; Golden State Bail
Agents Association
Opposition:Los Angeles County District Attorney; California
District Attorneys Association
KEY ISSUES
SHOULD BAIL BE EXONERATED WHERE A FUGITIVE IS TEMPORARILY
DETAINED BY A BAIL AGENT IN THE PRESENCE OF A LAW ENFORCEMENT
OFFICIAL IN A FOREIGN JURISDICTION AND THE PROSECUTOR OR UNITED
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STATES ATTORNEY FAILS TO MAKE A DECISION CONCERNING EXTRADITION
WITHIN A REASONABLE TIME?
(CONTINUED)
SHOULD THE 180-DAY PERIOD FOR RETURNING A DEFENDANT TO CUSTODY
BEFORE BAIL IS FORFEITED BE TOLLED WHILE THE PROSECUTOR DETERMINES
WHETHER OR NOT TO EXTRADITE A FUGITIVE WHO HAS BEEN DETAINED BY THE
BAIL AGENT IN THE PRESENCE OF LAW ENFORCEMENT IN A FOREIGN
JURISDICTION?
SHOULD BAIL BE EXONERATED IN ANY CASE IN WHICH THE UNITED STATES
DEPORTS A BAILED DEFENDANT?
PURPOSE
The purposes of this bill are to 1) provide that where a
fugitive is detained by the bail agent in the presence of a law
enforcement official in a foreign jurisdiction, as confirmed by
an affidavit from the law enforcement officer, and the county
district attorney or United States Attorney does not make a
decision concerning extradition within a reasonable period of
time, bail forfeiture shall be vacated and the bond exonerated;
2) provide that the 180-day period for returning a fugitive to
custody to avoid bail forfeiture be tolled while the prosecutor
or United States Attorney determines whether or not to seek
extradition of a fugitive detained by the bail agent in a
foreign country, as specified; and 3) provide that a bail bond
forfeiture shall be vacated and the bond exonerated in any case
in which the United States deports the bailed defendant.
Existing law provides for the licensing of bail agents by the
Insurance Commissioner. (Ins. Code � 1800 et seq.)
Existing law provides that if an on-bail defendant fails to
appear for any scheduled court appearance, bail is forfeited, as
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specified, unless the defendant is returned to court within 180
days. (Pen. Code � 1305, subds. (a) and (b).)
Existing law requires the court to exonerate bail where a
defendant surrenders or is recaptured within 180 days of
forfeiture. (Pen. Code � 1305, subd. (c).)
Existing law provides that a motion to extend the 180-day period
for returning a defendant to court before execution of bail
forfeiture may be heard within 30 days of the expiration of the
180-day period. (Pen. Code � 1305, subd. (i).)
Existing law provides that a surety insurer, bail agent, surety
or depositor may file a motion for an order extending the
180-day forfeiture period. (Pen. Code � 1305.4.)
Existing law provides that in the case of a temporary disability
of the defendant to appear within the 180-day forfeiture
exoneration period, the court shall order the tolling
(suspension of the running) of the 180-day period for a
reasonable time under the following circumstances: 1) The
defendant is either temporarily disabled by illness or insanity,
or the defendant has been detained by military or civil
authorities. 2) The defendant is unable to appear in court. 3)
The defendant's absence is without the "connivance" of the bail
agent or insurer.
Existing law provides that where a fugitive is in custody beyond
the jurisdiction of the court that ordered forfeiture of the
bond, the forfeiture shall be vacated and the bond exonerated
where the prosecuting agency, after being informed of the
location of the fugitive, elects not to seek extradition. (Pen.
Code � 1305, subd. (f).)
Existing law provides that where a bail agent temporarily
detains a fugitive in the presence of a law enforcement officer
in a foreign jurisdiction, and the law enforcement officer
confirms the identity of the fugitive in an affidavit, bond
shall be exonerated if the prosecuting agency elects not to
pursue extradition. (Pen. Code � 1305, subd. (g).)
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Existing provisions of the United States Constitution require
the executive authority of one state to surrender to the
executive authority a person charged with a crime in the state
demanding surrender. (United States Const., Art. IV � Cl. 2.)
Existing treaties establish the bases and processes for
extradition of fugitives to and from the United States. An
extradited defendant can only be tried for the offense
underlying extradition. (4 Witkin, Crim. Law, Juris. and Venue,
�27.)
Existing law provides that the district attorney shall apply to
the Governor for extradition of a fugitive from a jurisdiction
outside California. The application shall include the crime
charged and the specific location of the fugitive. (Pen. Code �
1554.2, subd. (a).)
This bill provides that where a fugitive has been temporarily
detained by the bail agent in the presence of a law enforcement
officer in a jurisdiction outside California,<1> bond shall be
exonerated if the prosecuting agency or the United States
Attorney does not make a decision concerning extradition "within
a reasonable period of time."
This bill provides that where a fugitive has been detained by
the bail agent in the presence of a law enforcement officer in a
foreign jurisdiction, the court shall toll the running of the
180-day period for vacating bail forfeiture. The 180-period
shall be tolled pending the decision of the prosecutor or United
States Attorney concerning an extradition decision.
This bill provides that if the prosecutor "proceeds with
extradition" the court shall toll running of the 180-day period
for vacating forfeiture "until? the bond is exonerated or the
---------------------------
<1> While the bill specifically refers to fugitives detained in
another "jurisdiction," the bill will typically only apply where
a fugitive is located in another country, as states in the
United States are constitutionally required to cooperate
concerning extradition. (U.S. Const., Article IV, �2, Cl. 2.)
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extradition process is completed."
This bill provides that the court shall vacate forfeiture of a
bail bond in any case in which the United States has deported
the bailed defendant to a foreign country.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
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District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
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COMMENTS
1. Need for This Bill
According to the author:
Current law provides a 180-day period after the
defendant fails to appear within which the surety can
recover the fugitive and exonerates the bail bond. If
the agent locates a fugitive and presents adequate
proof that the defendant has been detained, bail may
be exonerated if the prosecutor elects not to
extradite the defendant. If the prosecutor chooses to
extradite the fugitive, bail is exonerated upon the
fugitive's return to California custody.
A problem arises where the prosecutor declines to make
a decision about extradition in a timely fashion.
Often, a good portion of the 180-day period is spent
locating the fugitive. Once the fugitive is located
and the prosecutor is notified, the prosecutor
sometimes fails to decide about extradition with the
180-period. Because bail agents runt the risk of
forfeiture, current law creates a disincentive to
track down a fugitive near the end of the 180-day
period, as there is no practical way for the agent to
exonerate the bond prior to the deadline. As a
result, agents are reluctant to expend the resources
necessary to locate fugitives.
2. The Abbreviated Sum and Substance of Bail
Bail is a contract for release of a person from jail upon a
promise to appear at future court hearings. The promise is
backed by a bond issued through a bail agent. A bailed
defendant is said to be in the constructive custody of the bail
agent. (Taylor v. Taintor (1862) (16 Wall.) 83 U.S. 366, 372.)
"In pre-Norman England, a bondsman ? could suffer the same
penalty as the fugitive. This ? led to the allowance of rather
extreme measures for capture �of the fugitive]." (Ouzts v.
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Maryland National Ins. Co. (1974) 505 F.2d 547, 550.) These
measures include allowing a bail agent to arrest a fugitive in a
state other than where bail was issued. (Ibid.)
3. California Fugitives in Foreign Countries and the Seneca
Decision
A fugitive defendant who is in a foreign country or sister state
must be returned to court in California through extradition.
Under existing law (Pen. Code � 1305, subds. (f) and (g)), where
a bail fugitive is found in a foreign country or sister state, a
bail agent or insurer is entitled to have the forfeiture vacated
in two circumstances: 1) The prosecutor elects not to pursue
extradition after being informed of the location of the
defendant. 2) The bail agent temporarily detains the defendant
in the presence of a law enforcement official in the foreign
jurisdiction, the official confirms the identity of the
defendant, and the prosecutor elects not to seek extradition.
People v. Seneca (2010) 189 Cal.App.4th 1075, concerned a
fugitive named Dong Suk Kim for whom Seneca Insurance had issued
a bail bond in Orange County. Kim fled to Korea before
arraignment on September 9, 2009. The bail agent went to Korea
and brought Kim to the police where Kim's identity was
documented on January 3, 2009. On April 2, 2009 the trial court
extended the 180-day period for avoiding forfeiture until
October 10, 2009. On October 1, 2009, Seneca moved to vacate
the forfeiture because the prosecution did not follow-through on
a pledge to extradite Kim. However, as the period for vacating
bail expired before the extradition process had begun, the court
ordered the bond to be forfeited. (Id, at pp. 1078-1079.)
The appellate court upheld the trial court, noting that the
governing statute does not authorize tolling of the 180-day
period where the defendant has fled to another country. Bail is
exonerated in extradition matters only where the prosecutor
elects not to extradite the defendant after the defendant is
held in custody or temporarily detained in a foreign country.
In Seneca, the district attorney had not affirmatively decided
against extraditing Kim. Rather, the district attorney intended
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to extradite Kim, but had not done so before the time for
vacating the forfeiture had expired. Essentially, where the
prosecution has not made a decision whether or not to seek
extradition and the 180-day period before forfeiture runs, the
bond must be forfeited. (Ibid.)
The appellate court stated that the law generally disfavors
forfeiture, including bail forfeiture. The court noted that
requiring forfeiture of bail in cases where a defendant could
only be returned to court through extradition created a
financial disincentive for bail agents to pursue fugitives in
foreign countries. The court also noted that a prosecutor could
effectively bring about a bail forfeiture by, in bad faith,
promising to "elect" to extradite a defendant and then delaying
efforts beyond the exoneration period. The court found that the
Orange County District Attorney had not acted in bad faith and
that the law requiring forfeiture was clear in any event. (Id,
at 1082-1083.)
This bill would toll the running of the 180-day period before
forfeiture during the time that the prosecutor determines
whether or not to extradite the defendant. The bill then
provides that if the prosecuting agency "proceeds with
extradition" the court shall toll the 180-day (non-forfeiture)
period "until such time as the bond is exonerated or the
extradition process is completed." The bill also directs the
court to vacate forfeiture and exonerate the bond if the
prosecutor fails to make such a determination within a
reasonable period of time.
4. Issues of What it Means to "Proceed with Extradition" and What
Constitutes Completion of the Extradition Process
In cases arising under this bill, the fugitive will not actually
be in the custody of the foreign law enforcement agency, but
only temporarily detained by the bail agent. However, in order
for the prosecuting agency to extradite the fugitive, the
fugitive must be held in custody by the foreign jurisdiction;
the jurisdiction must have an extradition treaty with the U. S.
and the foreign country must agree to actually extradite the
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fugitive back to the United States.
The procedures and decisions concerning extradition of a
fugitive from another country are largely beyond the control of
the county district attorney. Treaties between the United
States and individual foreign countries control foreign
extraditions. The Governor and the U.S. Secretary of State must
process an extradition request, and foreign law enforcement and
judicial officials must cooperate in the extradition.
The bill does not define what it means for a prosecutor to
"proceed with extradition." The bill does not define when
extradition is "completed." Without certainty as to these
terms, courts will have difficulty applying the law. Would the
process begin if and when the prosecutor requests foreign law
enforcement officers to arrest the fugitive? Would it begin
after the fugitive is taken into custody and the formal
extradition processes are begun? Is extradition completed when
the fugitive is returned to the United States? Or is the
extradition process completed when the prosecuting agency
determines that the fugitive cannot be extradited?
As the bill is now drafted, these issues would be determined
through extensive litigation. Nevertheless, the following
scenarios illustrate that under this bill bail will not likely
be subject to forfeiture in any case in which the bail agent
detains a fugitive in the presence of a foreign law enforcement
official.
-----------------------------------------------------------------
|Prosecutor elects not to |Bail is exonerated |
|extradite | |
|--------------------------------+--------------------------------|
|Prosecutor is deciding whether |Forfeiture is stayed (tolling |
|or not to extradite |of 180-day period) and bail |
| |exonerated if the prosecutor |
| |does not act within reasonable |
| |time. |
|--------------------------------+--------------------------------|
|Prosecutor proceeds with |Forfeiture is stayed (180-day |
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|extradition and defendant is |period tolled) until the |
|returned to court. |extradition process is |
| |completed. Bail exonerated |
| |when the defendant is returned |
| |to court. |
|--------------------------------+--------------------------------|
|Prosecutor attempts to |Forfeiture is stayed |
|extradite - proceeds with |indefinitely (180-day period |
|extradition - but defendant is |tolled). Issues of forfeiture |
|not returned to court. |and exoneration not resolved. |
-----------------------------------------------------------------
DOES THIS BILL ADEQUATELY DEFINE WHEN A PROSECUTOR HAS
"PROCEED�ED] WITH EXTRADITION" AND WHEN THE PROCESS OF
EXTRADITION HAS BEEN COMPLETED?
UNDER THE TERMS OF THIS BILL, WHERE A BAIL AGENT DETAINS A
FUGITIVE IN THE PRESENCE OF A FOREIGN LAW ENFORCEMENT OFFICIAL,
WOULD BAIL EVER BE FORFEITED?
5. Agreement on Amendments among the Author and Interested
Parties: Cases where Extradition is Reasonably Probable; Good
Cause to not Extradite; Notice to Prosecutor; Additional
180-Day Stays of Forfeiture upon Agreement and Others noted
Below
In 2006, AB 2854 (Dymally) presented issues similar to those in
this bill. (AB 2854 was vetoed.) In discussions on AB 2854,
the Los Angeles County District Attorney suggested that tolling
of bail forfeiture pending extradition should be allowed only
where extradition is a reasonable probability. The District
Attorney also argued in connection with AB 2854 that bail should
not be exonerated where extradition is feasible, but where the
prosecutor has good cause not to extradite, such as where the
defendant is wanted for a relatively minor crime and extradition
would be costly and time-consuming. Those issues remain with
this bill.
The Los Angeles District Attorney has also noted about AB 2854
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and this bill that a prosecutor would not receive notice of a
motion for exoneration of bail in a case involving extradition
of a bail fugitive. As such, the prosecutor might not have an
opportunity to explain to the court why extradition was not
pursued or to argue about whether the prosecutor's actions
concerning extradition were reasonable. Such issues could be
decided solely on the arguments of the bail agent. The District
Attorney believes that notice to the prosecutor should be
required in any motion concerning tolling of forfeiture or
exoneration of bail in a case in which the defendant must be
extradited back to California.
The District Attorney has also argued that in many cases the
bail agent provided bail to a defendant who may have been likely
to flee the country. Because extradition is costly, and because
the bail agent assumed the risk that a bailed defendant could
leave the country, the District Attorney believes that the bail
agent should bear the cost of extradition in order to avoid
forfeiture of bail, particularly where the bail should have
appreciated the risk of the defendant's flight.
In recent discussions among the author's staff, the sponsor and
the Los Angeles District Attorney it appears that many of the
issues discussed in this comment have been resolved. It is the
understanding of Committee staff that the following amendments
will be offered by the author at the hearing on this bill:
Proposed Amendment No. 1
Notice must be given to the prosecutor on every motion
concerning the bail of a fugitive who has fled to another
jurisdiction.
Proposed Amendment No. 2
In cases where a fugitive defendant has fled to another
jurisdiction and forfeiture or exoneration of bail depends on
whether the prosecutor extradites, additional 180-day stay of
forfeiture could be granted by the court upon a proper showing,
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including reasonable probability of extradition.
Proposed Amendment No. 3
Exoneration of bail would be allowed where the prosecutor elects
not to extradite a fugitive only in a case where extradition is
reasonably probable. Extradition would be excused, and bail not
exonerated, where there is good cause not to extradite.
Proposed Amendment No. 4
Where the bail agent obtains an additional 180-day stay of
forfeiture in an extradition matter, the agent would bear the
reasonable costs of extradition.
Proposed Amendment No. 5
The provision in the bill allowing exoneration of bail based on
a decision of the United States Attorney not to extradite will
be stricken from the bill.
Proposed Amendment No. 6
The provision requiring exoneration of bail where the bailed
defendant is deported will be stricken from the bill.
SHOULD THESE PROPOSED AMENDMENTS BE ADOPTED?
6. Limiting or Prohibiting Forfeiture of Bail Issued in a
California Prosecution Because of Decisions of the U.S.
Attorney
The bill provides that bail issued in a California prosecution
shall not be forfeited if either the county prosecutor or the U.
S. Attorney elects not to extradite a defendant or fails to act
within a reasonable amount of time. Presumably, this provision
would apply where a fugitive faces both state and federal
charges, although that is not clear in the bill. Assuming that
the provision would apply in cases where a defendant faces both
state and federal charges, it appears that forfeiture of bail
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would be barred if the U.S. elects not to extradite, even where
the district attorney acted within a reasonable amount of time
to extradite a defendant.
The Los Angeles County District Attorney argues that a bail
agent should not receive a benefit in a state prosecution "if
the �federal] government for whatever reason decides not to seek
extradition." Discussions between the sponsor and Committee
staff indicate that it appears that because decisions concerning
extradition of a defendant by the U.S. Attorney are out of the
control of the bail agent, bail should not be forfeited where
the U.S. Attorney does not extradite a defendant back to
California.
Note: it appears that the author has agreed to strike this
provision from the bill. See Comment #5 for a discussion of
the proposed amendments.
7. Issue of what Constitutes a "Reasonable" Time for Prosecutors
to make Extradition Decisions before Bail is Exonerated
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This bill directs a court to vacate bail forfeiture if the
prosecutor does not make a decision whether or not to extradite
a defendant within a reasonable period of time. The bill does
not define what constitutes a reasonable time. The bill does
not set out specific factors for the court to consider in
determining whether or not to exonerate bail under these
circumstances.
In general, discretion shall be exercised to advance the purpose
of the statute being applied and achieve justice. ( TA \c 1 \s
"Bailey" \l "Bailey v. Taffe
(1896) 29 Cal. 422"Bailey v. Taffe (1896) 29 Cal. 422, 424.)
The purpose of bail is to ensure that a defendant returns to
court. However, a bail agent's failure to return a defendant to
court can be excused where the task is impossible or difficult
and the agent was not at fault. As such, the determination of
whether or a prosecutor acted within a reasonable time in making
extradition decisions will likely turn on the complexity of the
case, the history of the defendant and the efforts and decisions
of the bail agent. As bail cases are often appealed, this issue
will likely be determined by the appellate courts in a
relatively slow and costly manner.
SHOULD THE BILL INCLUDE GUIDELINES TO DETERMINE IF A PROSECUTOR
HAS ACTED ON EXTRADITION WITHIN A REASONABLE AMOUNT OF TIME?
8. Bar on Forfeiture of Bail in a Case where the Defendant has
been Deported
This bill directs a court to vacate forfeiture of bail and
exonerate the bond if the bailed defendant is permanently or
temporarily deported to another country. Neither the author's
background material nor the letter of sponsor Aladdin Bail Bonds
addresses this issue. However, the California Bail Agents
Association, one of the supporters of the bill argues: "This
bill would exonerate a bail bond when the defendant has been
deported by the United States to a foreign government. This
process �of deportation] is beyond the control of the bail agent
and exoneration is the proper action that should be taken by the
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court."
The Los Angeles County District Attorney, who opposes all of the
provisions in the bill, explained its objection to this
particular provision: "�The bill states] that if a bail agent
writes a bond on a defendant who is illegally in the United
States, the bond should be exonerated if �the defendant] is
deported. ? By taking risk out of writing bonds on undocumented
aliens, this bill creates a virtual 'get out of jail free' card
to these accused criminals."
It appears that the author has agreed to strike this provision
from the bill. Please see Comment #5 for a discussion of the
proposed amendments.
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