                        UNITED STATES, Appellee

                                      v.

                  Stephen J. LAZAUSKAS, Airman Basic
                       U.S. Air Force, Appellant

                                No. 04-0700

                          Crim. App. No. 34934

       United States Court of Appeals for the Armed Forces

                     Argued April 11, 2005

                     Decided September 27, 2005

CRAWFORD, J., delivered the opinion of the Court, in which
EFFRON and ERDMANN, JJ., joined. GIERKE, C.J., filed a separate
opinion concurring in the result. BAKER, J., filed a separate
concurring opinion.

                                  Counsel

For Appellant: Major James M. Winner (argued); Colonel Carlos
L. McDade (on brief); Major Terry L. McElyea.

For Appellee: Major Kevin P. Stiens (argued); Lieutenant
Colonel Gary F. Spencer, Lieutenant Colonel Robert V. Combs, and
Captain Jin-Hwa L. Frazier (on brief).

Military Judge:    Gregory E. Pavlik




         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Lazauskas, No. 04-0700/AF


     Judge CRAWFORD delivered the opinion of the Court.

     Contrary to his pleas, Appellant was convicted at a general

court-martial by a military judge of wrongful use of ecstasy,

distribution of ecstasy, introducing ecstasy onto a military

installation, obstruction of justice, and an attempted

disobedience of a no-contact order, in violation of Articles

112a, 134, and 80, Uniform Code of Military Justice (UCMJ), 10

U.S.C. §§ 912a, 934, 880 (2000).       The convening authority

approved the sentence of a bad-conduct discharge and fifteen

months of confinement.   The United States Air Force Court of

Criminal Appeals (CCA) affirmed the findings and sentence.

United States v. Lazauskas, No. ACM 34934, 2004 CCA LEXIS 199

(A.F. Ct. Crim. App. Aug. 19, 2004).

     We granted review of the following issue:

     WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
     BY RULING THAT THE GOVERNMENT DID NOT VIOLATE
     APPELLANT’S RIGHT TO SPEEDY TRIAL UNDER R.C.M. 707.
     MORE SPECIFICALLY, (1) CAN AN INVESTIGATING OFFICER
     APPROVE PRETRIAL DELAY TO BE EXCLUDED UNDER R.C.M.
     707? (2) CAN A COURT OF CRIMINAL APPEALS DETERMINE AN
     EXCLUSION OF DELAY FOR PURPOSES OF R.C.M. 707 AFTER
     THE FACT IF THERE HAD BEEN NO PRETRIAL APPROVAL UNDER
     R.C.M. 707? AND (3) WAS THE HOLDING OF THE COURT OF
     CRIMINAL APPEALS THAT TWO DELAYS WERE EXCLUDABLE UNDER
     R.C.M. 707 LEGAL ERROR?

     For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.




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United States v. Lazauskas, No. 04-0700/AF


                           FACTS

     In March 2001, a confidential informant reported to the law

enforcement officials at Lackland Air Force Base that Appellant

was selling and using ecstasy.   After the controlled purchase of

ecstasy by the confidential informer, follow-up inquiries led to

the discovery of a number of witnesses who stated that Appellant

used drugs in February, March, April, and May 2001, at various

times both on and off the installation.

     At his arraignment, Appellant made a motion to dismiss the

charges against him based on a violation of his right to speedy

trial under Rule for Courts-Martial (R.C.M.) 707,1 Article 10,

UCMJ, 10 U.S.C. § 810 (2000), and the Sixth Amendment.   The

military judge denied his motion on all grounds.    In making his

ruling under R.C.M. 707, the military judge found a total of

fifty-eight days retroactively excludable with no objection from

the defense, leaving 131 days accountable to the Government.

The military judge also found, over defense objection, that

three additional periods of time were excludable.   Thus, the

military judge determined that the Government was excluded from

accountability for a total of seventy-two days out of the 189-

day delay and was therefore left accountable for a total delay



1
  The current versions of all provisions cited are identical to
the ones in effect at the time of Appellant’s court-martial,
unless otherwise indicated.


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United States v. Lazauskas, No. 04-0700/AF


of 117 days, which was within the R.C.M. 707 allowable limit of

120 days.   Two of those periods (totaling eleven days) are at

issue here:

     1.     August 8-13 - delay of first Article 32, UCMJ, hearing

to secure two missing witnesses.

     2.     October 6-10 - statutory waiting period under Article

35, UCMJ.

     August 8-13, 2001.    The first period of time in dispute is

a six-day continuance allowed during an Article 32 hearing.       The

convening authority appointed an investigating officer for the

Article 32 hearing, and in the Appointment Memorandum stated the

officer was “delegated the authority to grant any reasonably

requested delays of the Article 32 investigation.”     Two days

prior to the date originally scheduled for the Article 32

hearing, the Government representative provided the military

defense counsel with a list of eight witnesses the Government

expected to testify at the Article 32 hearing.     There is no

evidence of a defense request for witnesses.     One day prior to

the original date for the hearing, Appellant’s newly hired

civilian attorney requested, and received, a delay in the

proceedings until August 7, 2001.      At the Article 32 hearing,

six of these witnesses testified; however, two witnesses were on

leave.    The defense then requested the witnesses and objected to

taking their testimony over the telephone.     Based on the defense


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United States v. Lazauskas, No. 04-0700/AF


objection, the Article 32 investigating officer delayed the

hearing until August 13, 2001, to procure their live testimony.

Even after the second hearing, the Government did not disclose

the identity of the confidential informant and the defense

objected to the Article 32 investigation because of the

nondisclosure.    The Article 32 investigating officer did not

attempt to exclude August 8-13 from Government accountability

but left it to the convening authority.

     October 6-10, 2001.     The second period of time in question

is the five-day period from the service of referred charges

until the expiration of the Article 35, UCMJ, waiting period.

Charges were served on Appellant on October 5, and on that date,

both the trial counsel and defense counsel agreed on a trial

date of November 15, 2001.    Appellant contests the exclusion of

the five-day period between October 6-10 from R.C.M. 707

accountability because the Article 35 five-day waiting period

would have prohibited the Government from bringing him to trial

during that time.

                              DISCUSSION

     There are many sources of the servicemember’s right to a

speedy trial, namely, the Sixth Amendment, the Due Process

Clause of the Fifth Amendment, Article 10 and Article 33, UCMJ,

and R.C.M. 707.   See, e.g., United States v. Reed, 41 M.J. 449,

450 (C.A.A.F. 1995).   The issue in this case centers on the 120-


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United States v. Lazauskas, No. 04-0700/AF


day procedurally-based rule set forth in R.C.M. 707.    This rule

provides that the “accused shall be brought to trial within 120

days after the earlier of: (1) preferral of charges, (2) the

imposition of restraint . . . , or (3) entry on active duty. . .

.”   In this case, the triggering date for the 120-day rule was

the imposition of pretrial confinement on May 10, 2001.    The

charges were preferred on July 17, 2001.    If the times in

dispute are excludable, then Appellant was brought to trial

within 120 days.

      “Prior to referral [of charges], all requests for pretrial

delay . . . will be submitted to the convening authority or, . .

. to a military judge. . . .” R.C.M. 707(c)(1).   “After

referral, such requests for pretrial delay will be submitted to

the military judge for resolution.”   Id.

      As noted in United States v. Dies, 45 M.J. 376, 377-78

(C.A.A.F. 1996), the current version of R.C.M. 707 focuses on

whether a period of time is excludable because a delay has been

granted, which is in contrast to the prior version that focused

on a determination as to which party was responsible for the

delay.   Under R.C.M. 707(c), all pretrial delays approved by the

convening authority are excludable so long as approving them was

not an abuse of the convening authority’s discretion.   It does

not matter which party is responsible.




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United States v. Lazauskas, No. 04-0700/AF


     The discussion pertaining to this rule provides:     “Prior to

referral, the convening authority may delegate the authority to

grant continuances to an Article 32 investigating officer.”

R.C.M. 707(a)(1) discussion.

     Additionally, where, as here, the convening authority has

delegated to an investigating officer the “authority to grant

any reasonably requested delays of the Article 32

investigation,” then any delays approved by the Article 32

investigating officer also are excludable.

     Thus, when an investigating officer has been delegated

authority to grant delays, the period covered by the delay is

excludable from the 120-day period under R.C.M. 707.    If the

issue of speedy trial under R.C.M. 707 is raised before the

military judge at trial, the issue is not which party is

responsible for the delay but whether the decision of the

officer granting the delay was an abuse of discretion.    The

resolution under R.C.M. 707 does not preclude a party from

asserting responsibility for delay under Article 10, UCMJ, or

the Constitution.   It simply means that in the absence of an

abuse of discretion by the officer granting the delay, there is

no violation of R.C.M. 707.

     The military judge did not abuse his discretion in

excluding the two periods in this case.   The first period of

time involved the delay to obtain the personal testimony of two


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United States v. Lazauskas, No. 04-0700/AF


witnesses who were on leave because the defense objected to

taking their testimony over the telephone.   R.C.M. 405(g)(1)(A)

provides that the parties are entitled to the presence of

witnesses who have relevant testimony and the evidence is “not

cumulative.”   However, R.C.M. 405(g)(4)(B) provides that the

investigating officer may take sworn statements of unavailable

witnesses over the telephone.   The first period of time involved

the delay to obtain the personal testimony of two witnesses who

were on leave.   The investigating officer, under the authority

delegated to him by the convening authority, granted the delay.

As to this period, the military judge found that:

     [A]t some point during the Article 32 hearing, the
     defense learned that several witnesses it believed the
     government would be calling live were actually going
     to be called telephonically. The defense objected to
     their being called telephonically and the Article 32
     hearing was delayed so that the defense could question
     them when they were personally available which was on
     13 August 2001.

     We hold that the military judge did not abuse his

discretion in excluding this delay.

     As to the second period of time, following the referral of

charges but before service of that referral, the Government told

the military judge that both parties agreed to a trial date of

November 15.   On October 5, the same day that charges were

served, the military judge set the trial date as requested by

the parties.   The delay was thereby approved by the military



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United States v. Lazauskas, No. 04-0700/AF


judge, following referral of the charges.    Under R.C.M.

707(c)(1), the military judge is the proper authority to approve

a delay under those circumstances.   Included in that delay was

the five-day period from the service of the referred charges

until the expiration of the Article 35 waiting period.

     Article 35 provides that the accused may not be brought to

trial within five days of service of charges against his

objection.   The accused did not raise any Article 35 objection

at the trial level.   This Court has stated:

     The purpose of Article 35 is to protect an accused
     from receiving such a speedy trial that the defense
     has inadequate opportunity to prepare. . . . Thus,
     Article 35 provides a shield with which an accused may
     prevent too speedy a trial, not a sword with which an
     accused may attack the Government for failing to bring
     him to trial sooner.

United States v. Cherok, 22 M.J. 438, 440 (C.M.A. 1986).

     Because the five-day Article 35 period was neither

requested nor necessary in this case to protect the accused, we

find that the military judge did not abuse his discretion in

approving this delay.

     As there was no abuse of discretion in the approval of

these two delays, we agree with the lower court that these two

time periods were excludable, and therefore we affirm the

decision of the United States Air Force Court of Criminal

Appeals.




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United States v. Lazauskas, 04-0700/AF


       GIERKE, Chief Judge (concurring in the result):

       I agree with the end result of the majority opinion:        the

Appellant’s rights under R.C.M. 707 were not violated.          But I

disagree with portions of the majority opinion’s analysis.          Most

significantly, in its discussion of the first period of delay,

the majority opinion rewrites R.C.M. 707.          The majority opinion

also misinterprets our case law controlling the speedy trial

implications of the Article 35 waiting period following the

service of referred charges.       While I cannot agree with portions

of the majority’s reasoning, I respectfully concur in the

result.

       The majority opinion states, “Under R.C.M. 707(c), all

pretrial delays approved by the convening authority are

excludable so long as approving them was not an abuse of the

convening authority’s discretion.”1          The opinion adds, “[W]here,

as here, the convening authority has delegated to an

investigating officer the ‘authority to grant any reasonably

requested delays of the Article 32 investigation,’ then any

delays approved by the Article 32 investigating officer also are

excludable.”2    Accordingly, the majority misrepresents what

R.C.M. 707(c) actually says.       R.C.M. 707(c) specifically

discusses delays caused by stays ordered by appellate courts,


1
    United States v. Lazauskas, 61 M.J. __, __ (6) (C.A.A.F. 2005).
2
    Id. at __ (7).

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United States v. Lazauskas, 04-0700/AF


hospitalization of the accused due to incompetence, and the

accused’s unavailability while in the custody of the Attorney

General.   It concludes by observing, “[a]ll other pretrial

delays approved by a military judge or the convening authority

shall be similarly excluded.”        The rule simply does not state,

as the majority opinion represents, that pretrial delays

approved by a convening authority’s delegate are excluded from

Government accountability.       Accordingly, the mere fact that the

Article 32 investigating officer granted the delay -– while

expressly refusing to rule that the delay was excluded from

Government accountability -– does not resolve this case.

     The discussion to R.C.M. 707(c)(1) states that “[p]rior to

referral, the convening authority may delegate the authority to

grant continuances to an Article 32 investigating officer.”

That discussion does not definitively resolve this issue for two

reasons.   First, the authority to grant a continuance is not

necessarily the same as the authority to exclude the resulting

delay from Government accountability.        A rational military

justice system could give the investigating officer the power to

grant delays but reserve for other officials the power to

exclude such delay from Government accountability.       Nothing in

R.C.M. 707(c), or even its discussion, would be inconsistent

with such a system.      Automatically excluding such delays from




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United States v. Lazauskas, 04-0700/AF


Government accountability is a matter of judicial

interpretation, not obedience.

     Second, the discussion accompanying the Rules for Courts-

Martial, while in the Manual for Courts-Martial, United States

(2002 ed.)(MCM), is not part of the presidentially-prescribed

portion of the MCM.      The MCM expressly states that it consists

of its “Preamble, the Rules for Courts-Martial, the Military

Rules of Evidence, the Punitive Articles, and Nonjudicial

Punishment Procedures.”3      Absent from this list are the

discussion accompanying the Preamble, the Rules for Courts-

Martial, and the Punitive Articles, as well as the MCM’s

appendices, including the MCM’s drafters’ analysis.4       As

Professor Gregory E. Maggs helpfully explains, “The President

played no role in preparing these supplementary materials, and

he did not promulgate them by executive order; on the contrary,

these materials represent only the beliefs of staff personnel

who worked on the Manual.”5       So, as Professor Maggs concludes,

the courts “do not violate the principle of deference to the

President when they disagree with them.”6

     Nevertheless, I agree with the majority opinion that the

time was properly excluded.       I reach this conclusion for two

3
  MCM, pmbl.   ¶ 4.
4
  See id. at   pmbl. ¶ 4 (discussion).
5
  Gregory E.   Maggs, Judicial Review of the Manual for Courts-
Martial, 160   Mil. L. Rev. 96, 115 (1999).
6
  Id.

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United States v. Lazauskas, 04-0700/AF


separate reasons.     First, I would hold that a convening

authority who expressly delegates to the investigating officer

the power to grant continuances without reserving authority to

exclude the delay from Government accountability also implicitly

approves any resulting delay.        Thus, the time is excluded not

because R.C.M. 707(c) expressly removes from Government

accountability delays granted by the convening authority’s

delegate –- it does not –- but rather because the convening

authority has implicitly approved the delay.       Of course, the

convening authority could expressly reserve the power to exclude

delay from Government accountability.        But in this case, the

convening authority expressly granted the investigating officer

the power to grant continuances while remaining silent about the

investigating officer’s authority to exclude that delay from

Government accountability.       In that scenario, I would apply

R.C.M. 707(c)’s automatic exclusion rule due to the convening

authority’s implicit approval of the delay granted by his

delegate.

        The second reason for concluding the time was excluded from

Government accountability was that the exclusion fell within the

plain meaning of R.C.M. 707(c), though for a different reason

than that offered by the majority opinion.       In this case, the

military judge approved the pretrial delay, albeit after-the-

fact.    I would not hold that if the Government fails to seek


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United States v. Lazauskas, 04-0700/AF


approval for pre-referral delay from the proper authority that

it is forever barred from seeking the delay’s exclusion from

R.C.M. 707’s 120-day speedy trial clock.       Rather, I would

recognize that after charges have been referred, the Government

may seek a ruling from the military judge retroactively

excluding pre-referral delay from Government accountability.       To

rule otherwise would elevate form over substance.       If the time

should be excluded from Government accountability, a different

result should not arise merely because a specific official did

not bless the delay when it occurred.        And allowing a military

judge to retroactively exclude pre-referral delay from

Government accountability is consistent with R.C.M. 707(c)

because the pretrial delay would be “approved by a military

judge.”

     In this case, the military judge’s ruling approved the

pretrial delay.     That ruling was neither unreasonable nor an

abuse of discretion.7      Therefore, the time was properly excluded

from Government accountability.

     I also disagree with a portion of the majority opinion’s

analysis concerning the excludability of the five-day statutory

waiting period following the service of referred charges.        The

majority opinion reasons, “Because the five-day Article 35


7
  See MCM (2002 ed.), Analysis of the Rules of Courts-Martial
A21-42.

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United States v. Lazauskas, 04-0700/AF


period was neither requested nor necessary in this case to

protect the accused, we find that the military judge did not

abuse his discretion in approving this delay.”8        But that

analysis seems to have it backwards.         Is not the case for

excluding the Article 35 waiting period more compelling if the

accused invoked his right to that article’s protections than if

he did not?    As we have held, “Although the 5 days for service

can, under some circumstances, be excluded, United States v.

Cherok, 22 M.J. 438 (C.M.A. 1986), it is not a ‘per se’

exclusion.”9     Cherok was a two-judge opinion in which Chief

Judge Everett concurred in the result.        Cherok’s holding,

therefore, can be no broader than Chief Judge Everett’s

concurrence.10    In Cherok, Chief Judge Everett explained that he

reluctantly agreed that the five-day statutory waiting period

should be excluded from Government accountability in that case

because it “can be equated to defense-requested delay for

purposes of Burton.”11     The majority opinion stands this


8
   Lazauskas, 61 M.J. at __ (9).
9
   United States v. Longhofer, 29 M.J. 22, 30 n.11 (C.M.A. 1989).
10
    See Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds . . . .’” (citing Gregg v. Georgia, 428 U.S. 153, 169
n.15 (1976)).
11
    Cherok, 22 M.J. at 440 (Everett, C.J., concurring in the
result) (citing United States v. Burton, 21 C.M.A. 112, 44
C.M.R. 166 (1971)).

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United States v. Lazauskas, 04-0700/AF


analysis on its head by holding that the five-day statutory

waiting period is excluded because it was not requested by the

defense and did not benefit the defense.          Note also that Judge

Cox’s opinion in Cherok was his alone, not that of this Court.

        I nevertheless concur in the result because a portion of

the five-day statutory waiting period occurred within a larger

window of defense-requested delay.           In this case, the five-day

statutory waiting period included October 6 through October 10,

2001.    The Government was prepared to proceed on October 8,

2001, but the defense requested a delay until November 15, 2001.

The military judge excluded from Government accountability both

the five-day waiting period and the remaining period of the

defense-requested continuance from October 11 through November

15, 2001.    It is apparent that even without the five-day waiting

period, the military judge would have excluded from Government

accountability the period from October 8 through October 10,

days on which the Government was prepared to proceed but for the

defense-requested continuance.           The exclusion of those three

days combined with the six days at issue from the continuance of

the Article 32 investigation and the other approved periods of

delay results in exactly 120 days of Government-accountable

delay.    So even without regard to the other two days that fell

within the Article 35 window, there was no R.C.M. 707 speedy




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United States v. Lazauskas, 04-0700/AF


trial violation.     Accordingly, I agree with the majority

opinion’s result, though not its reasoning.




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United States v. Lazauskas, No. 04-0700/AF


     BAKER, Judge (concurring):

     I concur in the Court’s decision affirming the

military judge’s exclusion of the contested time periods

from the Rules for Courts-Martial (R.C.M.) 707

accountability clock.   I write separately, however, to

emphasize two points regarding decisions to grant delay.

First, although the lead opinion makes reference to

reasonable pretrial delays, other text suggests that the

mere act by a proper authority of granting a delay alone

determines excludability under R.C.M. 707(c).    In my view,

the decision to grant must be reasonable based on the

reasons, facts or circumstances presented.   Otherwise, such

a grant would constitute an abuse of discretion.   This view

finds support in the analysis in the Manual for Courts-

Martial, United States (2002 ed.) (MCM) contained in the

non-binding discussion accompanying R.C.M. 707(c) stating

that “Military judges and convening authorities are

required, under this subsection, to make an independent

determination as to whether there is in fact good cause for

a pretrial delay, and to grant such delays for only so long

as is necessary under the circumstances.”    MCM, Analysis of

the Rules for Courts-Martial A21-42 (emphasis added).     This

view may be implicit in the lead opinion’s conclusion that

the granting authority’s decision is subject to review for
United States v. Lazauskas, No. 04-0700/AF


an abuse of discretion.   In the past we have stated, at

least with respect to a military judge, that an abuse of

discretion occurs when the “application of the correct

legal principles to the facts of a particular case is

clearly unreasonable.”    United States v. Meghdadi, 60 M.J.

438, 441 (C.A.A.F. 2005)(emphasis added).    However, if

indeed the granting authority’s decision must be

“reasonable,” we should clearly and expressly state so.

     Second, the language in the lead opinion quoting the

discussion to R.C.M. 707(c)(1) could lead one to assume

that the reasonableness requirement pertains only to the

length of the delay granted.   See MCM, Analysis of the

Rules for Courts-Martial A21-42 (“Decisions granting or

denying pretrial delays will be subject to review for both

abuse of discretion and the reasonableness of the period of

delay granted.”).   Under the rule, a convening authority or

a military judge could grant a delay but at the same time

indicate that it not be excluded from the R.C.M. 707

calculus.   I recognize that the instances in which this

might occur are rare; however, consider the following

hypothetical:   the defense expressly and timely requests

witnesses for an investigation pursuant to Article 32,

Uniform Code of Military Justice, 10 U.S.C. § 832 (2000),

and the Government through either misconduct or even gross


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United States v. Lazauskas, No. 04-0700/AF


negligence permits those witnesses to go on leave.   The

granting authority might determine that the witnesses are

necessary and therefore authorize a delay in the

proceedings.   It does not follow, and the rule does not

require, that this delay be automatically excluded from the

R.C.M. 707 clock.   To the contrary, the granting authority

may intend that the delay be included within the

Government’s R.C.M. 707 accountability.

     With these understandings, I concur.    In this case,

the investigating officer granted the delay, and the

military judge did not abuse his discretion in subsequently

determining that the granted delays were reasonable and

therefore excludable.




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