                         UNITED STATES, Appellant

                                          v.

                          Leslie D. RILEY, Airman
                         U.S. Air Force, Appellee


                           Nos. 00-5003 & 98-0146


                            Crim. App. No. 32183



       United States Court of Appeals for the Armed Forces

                         Argued November 14, 2000

                           Decided June 29, 2001

     GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and SULLIVAN, J.,
 each filed an opinion concurring in part and dissenting in part.

                                      Counsel
For Appellant: Captain James C. Fraser (argued); Colonel Anthony
   P. Dattilo, Lieutenant Colonel Ronald A. Rodgers, Lieutenant
   Colonel William B. Smith, and Major Lance B. Sigmon (on
   brief).

For Appellee: Captain Karen L. Hecker (argued); Colonel Jeanne
   M. Rueth, Lieutenant Colonel James R. Wise, Lieutenant
   Colonel Timothy W. Murphy, and Major Stephen P. Kelly (on
   brief).

Military Judge:     Terence A. Curtin
          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted Airman Riley (appellee) of unpremeditated

murder of her newborn baby, in violation of Article 118, Uniform

Code of Military Justice, 10 USC § 918.          The adjudged and

approved sentence imposed a dishonorable discharge, confinement

for 25 years, total forfeitures, and reduction to the lowest

enlisted grade.     The evidence on which the conviction was based

is set out in our previous opinion.          50 MJ 410, 411-13 (1999).

      The Court of Criminal Appeals set aside appellee’s

conviction of unpremeditated murder on the ground that the

evidence was factually insufficient.          It affirmed a lesser-

included offense of involuntary manslaughter by “refusing and

impeding assistance in the delivery and care of her child,” in

violation of Article 119, UCMJ, 10 USC § 919.            The court

reassessed the sentence and affirmed the maximum imposable

sentence for involuntary manslaughter: dishonorable discharge,

confinement for 10 years, total forfeitures, and reduction to the

lowest enlisted grade.      47 MJ 603, 608, 610 (1997).

      This Court reversed the decision below, holding that the

Court of Criminal Appeals erred by affirming a lesser-included

offense on a theory not presented to the trier of fact.              However,

because it was not clear “whether that court also found the

evidence factually insufficient to support a conviction of a

lesser-included offense premised on negligent infliction of the

fatal injuries on the baby,” the case was remanded to the court

below “for clarification of its decision and reconsideration

under correct legal principles.”          50 MJ at 416.


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      The case was remanded to the same panel that decided the

case on initial review, but only one of the three appellate

military judges who participated in the original decision

remained on the panel.      Upon further review after the remand, the

court below rejected an argument by the Government that it was

free to reinstate the conviction of unpremeditated murder.              The

court stated that it “would welcome an opportunity to revisit

this Court’s previous conclusion that the appellant’s conviction

for unpremeditated murder was factually insufficient,” but it

concluded that it was precluded from doing so by the terms of the

remand.   52 MJ 825, 827 (2000).

      However, the court below felt free to reconsider its

findings of fact pertaining to involuntary manslaughter.             It held

that its earlier conclusion that “the evidence was insufficient

to establish the manner of death” was “clearly erroneous.”              Id.
at 828.   It found beyond a reasonable doubt that appellee stuffed

a paper towel into her baby’s mouth and applied force to the

baby’s skull in a gross and reckless manner.             Based on its

reconsideration of the facts, the court below affirmed a
conviction of involuntary manslaughter by culpable negligence.

Id. at 829.    The court then reassessed and affirmed the same

sentence.    Id. at 830.

      The Judge Advocate General of the Air Force then certified

the following issue:

      WHETHER THE AIR FORCE COURT ERRED WHEN IT CONCLUDED THAT IT
      LACKED THE POWER TO REVISIT ITS EARLIER FINDING THAT THE
      EVIDENCE OF RECORD WAS FACTUALLY INSUFFICIENT TO SUPPORT
      APPELLEE’S CONVICTION OF UNPREMEDITATED MURDER.




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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


      Although this Court did not formally grant a cross-petition,

it permitted Airman Riley to file additional pleadings in

response to the decision of the court below on remand.           Those

additional pleadings raised three issues of law:

                                      I

      WHETHER, UPON A REMAND FROM THIS COURT, A COURT OF CRIMINAL
      APPEALS MAY RECONSIDER AND CHANGE FINDINGS OF FACT FAVORABLE
      TO THE DEFENSE, IF IT CONCLUDES ON RECONSIDERATION THAT ITS
      EARLIER FINDINGS OF FACT WERE CLEARLY ERRONEOUS.

                                     II

      WHETHER THE COURT OF CRIMINAL APPEALS ERRED BY REASSESSING
      AND AFFIRMING THE MAXIMUM IMPOSABLE PUNISHMENT FOR A LESSER-
      INCLUDED OFFENSE, INSTEAD OF ORDERING A SENTENCE REHEARING.
                                     III

      WHETHER APPELLATE DEFENSE      COUNSEL WERE INEFFECTIVE WHEN THEY
      ADVISED APPELLEE THAT SHE      COULD NOT LOSE THE BENEFIT OF THE
      FAVORABLE DECISION OF THE      COURT OF CRIMINAL APPEALS IF SHE
      PETITIONED THIS COURT FOR      REVIEW.

For the reasons set out below, we again remand this case to the

court below for clarification of its findings.

                                 DISCUSSION
                              Certified Issue

      Appellee contends, citing United States v. Crider, 22 USCMA
108, 46 CMR 108 (1973), that the Court of Criminal Appeals was

not free to reinstate her conviction of unpremeditated murder and

the original adjudged sentence.           The Government asserts that

Crider has been effectively overruled by the Supreme Court in

Tibbs v. Florida, 457 U.S. 31 (1982).           We hold that Crider was

not overruled by Tibbs, and that Crider is the controlling

precedent in this case.       Accordingly, we answer the certified

question in the negative.




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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


       In Crider, a panel of the Court of Military Review reduced a

conviction of premeditated murder to unpremeditated murder.           This

Court reversed the decision below on the ground that the judges

who decided the case should have recused themselves, and it

remanded the case for further review by another panel of the

court below.      On further review by another panel, the Court of

Military Review affirmed the original conviction of premeditated

murder and the sentence affirmed by the original panel.

       This Court began its analysis by stating a fundamental

principle: “assuming jurisdiction below, an accused cannot come

to harm by appealing here and securing a reversal of his

conviction.”      22 USCMA at 110, 46 CMR at 110.        This Court stated

further that “an accused who obtains review here does not forgo

the right to beneficial action taken on his behalf by the Court

of Military Review when he secures reversal of that court’s

action.”    Id.    This Court then held that the first panel decision
by the Court of Military Review acquitted the accused of

premeditated murder by affirming only the lesser-included offense

of unpremeditated murder.       This Court explained that Article
66(c), UCMJ, 10 USC § 866(c), “provides a de novo trial on the

record at [the] appellate level.”         Finally, this Court held that

the accused was entitled to plead double jeopardy against any

attempt of the Court of Military Review to reinstate and affirm

the conviction of the greater offense.          Id. at 111, 46 CMR at

111.

       In Tibbs v. Florida, supra, the Supreme Court held that a

defendant was not subjected to double jeopardy when the Florida

Supreme Court reversed his convictions of murder and rape, set


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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


aside his death sentence, and ordered a rehearing on the ground

that his convictions were legally sufficient but against “the

weight of the evidence.”       Florida v. Tibbs, 337 So. 2d 788

(1976).   The Florida Supreme Court acted pursuant to a state

procedure that required it to review a conviction where a death

sentence had been imposed to determine if “the interests of

justice require a new trial.”        Id. at 790.    The Florida court

relied on § 921.141(4) of the Florida Statutes and Florida

Appellate Rule 6.16(b).       The statute provided simply that the

judgment of conviction and sentence of death shall be subject to

automatic review by the Supreme Court of Florida, and disposition

rendered within two years.       The statute required that a capital

case “shall have priority over all other cases and shall be heard

in accordance with rules promulgated by the Supreme Court.”

Fla.App.Rule 6.16(b) provided that in a capital case, “the

appellate court shall review the evidence to determine if the

interests of justice require a new trial, whether the

insufficiency of the evidence is a ground of appeal or not.”            The

Florida procedure did not empower the Supreme Court to set aside

the conviction and dismiss the charges, but only to order a new

trial.

      We are not persuaded by the Government’s argument that

Crider was effectively overruled by Tibbs v. Florida.          The

Florida procedure at issue in Tibbs is fundamentally different

from the appellate review provided by Article 66(c).          Article

66(c) gives the Courts of Criminal Appeals factfinding power.

The legislative history of Article 66(c) makes it clear that

Congress intended to give an accused a de novo proceeding on the


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merits and to empower the Courts of Criminal Appeals to acquit an

accused.    This power of appellate acquittal is fundamentally

different from the Florida power to order a new trial.

      We also disagree with the Government’s argument that Tibbs

is authority for permitting reinstatement of an offense of which

an accused was acquitted.       The Florida procedure at issue in

Tibbs did not permit reinstatement of an offense of which the

defendant was acquitted.       It merely offered a defendant a second

chance for acquittal.      In our view, granting a new trial under

the Florida procedure at issue in Tibbs is more akin to a new
trial granted under Article 73, UCMJ, 10 USC § 873, and RCM 1210,

Manual for Courts-Martial, United States (2000 ed.), than it is

to the appellate acquittal authorized under Article 66(c).       See

generally United States v. Brooks, 49 MJ 64 (1998).

      For the above reasons, we hold that Crider was not overruled

by Tibbs.    We further hold that reinstatement of appellee’s

conviction of unpremeditated murder and original sentence was

prohibited by this Court’s holding in Crider.

      Finally, even if Crider were not the controlling law, our
decision in this case would not be affected, because we hold that

under the terms of this Court’s remand, the court below was not

permitted to reconsider its finding that the evidence of

unpremeditated murder was not factually sufficient.       On a remand

from this Court, a Court of Criminal Appeals “can only take

action that conforms to the limitations and conditions prescribed

by the remand.”     United States v. Montesinos, 28 MJ 38, 44 (CMA

1989).   This Court remanded the case to clarify “whether that

court also found the evidence factually insufficient to support a


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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


conviction of a lesser-included offense premised on negligent

infliction of the fatal injuries on the baby.”           50 MJ 416.    A

mandate to clarify whether the evidence was insufficient to

support a lesser-included offense cannot reasonably be construed

to permit reinstatement of the greater offense.

      Appellee’s Issue I: Reconsideration of Facts on Remand

      Article 66(f) directs the Judge Advocates General to

prescribe uniform rules of procedure.         Pursuant to this mandate,

they have promulgated Rule 19(a), which authorizes

reconsideration of decisions.        It provides as follows:

                 The Court may, in its discretion and on its own
            motion, enter an order announcing its intent to
            reconsider its decision or order in any case not later
            than 30 days after service of such decision or order on
            appellate defense counsel or on the appellant, if the
            appellant is not represented by counsel, provided a
            petition for grant of review or certificate for review
            has not been filed with the United States Court of
            Appeals for the Armed Forces, or a record of trial for
            review under Article 67(b) has not been received by
            that Court.

44 MJ LXXI (emphasis added).

      Article 67(e), UCMJ, 10 USC § 867(e), empowers this Court to

“direct the Judge Advocate General to return the record to the
Court of Criminal Appeals for further review in accordance with

the decision of the court.”       In United States v. Lincoln, 42 MJ

315, 320 (1995), this Court stated: “If the findings [of a lower

court] are incomplete or ambiguous, the ‘appropriate remedy . . .

is a remand for clarification’ or additional findings.           See

United States v. Kosek, 41 MJ 60, 64 (CMA 1994).”

      Once appellee filed a petition for review by this Court, the

court below no longer had authority under its Rule 19 to

reconsider its findings of fact.          We need not decide whether the


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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


court had inherent authority, apart from Rule 19, to reconsider

its decision, because the lower court’s decision on further

review exceeded the scope of the remand.          For the same reason, we

need not decide whether reconsideration of findings of fact that

a reconstituted panel composed of only one of the three judges

who made the initial findings of fact violated United States v.

Chilcote, 20 USCMA 283, 43 CMR 123 (1971).∗

      The mandate of this Court was to clarify ambiguous findings.

A mandate to clarify a finding that the evidence was insufficient

to establish the manner of death does not encompass overturning

that finding and substituting specific findings that appellee

stuffed a paper towel into the baby’s mouth and applied force to

the baby’s skull.

      On the appellate record before us, we cannot reliably

determine whether the court below would have found the evidence

factually insufficient to support involuntary manslaughter by

culpable negligence if it had limited itself to clarification

instead of overturning its earlier findings of fact.         Thus, we

must again remand the case for clarification.




∗
  In Chilcote, this Court traced the legislative history of
Article 66, including the concern of the drafters about
preventing the Judge Advocate General from referring an
unfavorable panel decision to another panel for reconsideration.
This Court held that en banc reconsideration of a panel decision
was not authorized. In response to the Chilcote decision,
Article 66 was amended to specifically authorize en banc
reconsideration of a panel decision, but it does not authorize
reconsideration by one panel of another panel’s decision.



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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


             Appellee’s Issue II: Sentence Reassessment

       In its initial review, the court below was “convinced that,

based on the circumstances of this case, the members would have

adjudged the maximum available punishment” for involuntary

manslaughter.     47 MJ at 609.     On further review, the court

concluded, without citation of authority, that its original

reassessment criteria were incorrect.         The court explained:

       When we substitute our judgment on findings for those of the
       court members, it makes no sense to try to determine what
       the court members would have done had they come to the same
       conclusion as we did. We believe under these circumstances,
       it is appropriate to reassess the sentence on our own.

The court then affirmed the same sentence.          52 MJ at 830.

       When prejudicial error occurs at trial, the Court of

Criminal Appeals may reassess the sentence instead of ordering a

rehearing if the court is convinced that the sentence “would have

been at least of a certain magnitude.”          United States v. Sales,
22 MJ 305, 307 (CMA 1986).       A sentence rehearing must be ordered

if the court “cannot reliably determine what sentence would have

been imposed at the trial level if the error had not occurred.”

Id.
       In its opinion on further review, the court below

distinguished between legal and factual sufficiency of the

evidence in determining how to reassess the sentence.          52 MJ at

830.    In our view, the distinction between legal and factual

sufficiency does not change the rules for reassessment.          We hold

that if a Court of Criminal Appeals determines that a finding of

guilty should not be affirmed, that determination means that the

appellant has been wrongly convicted and is entitled to sentence

reassessment under the principles announced in Sales.


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United States v. Riley, Nos. 00-5003/AF and 98-0146/AF


      Because the court below declined to reassess the sentence in

accordance with the Sales guidance, we must set aside its

reassessment as an abuse of discretion.           United States v. Jones,

39 MJ 315, 317 (CMA 1994).        In light of the lower court’s

conclusion that it could not reliably determine what sentence

would have been imposed at the trial level absent the error, we

will require a sentence rehearing if the court below affirms any

finding of guilty.      See Sales, 22 MJ at 307.

         Appellee’s Issue III:       Ineffective Representation
      The premise for this issue was an assumption that counsel

had misadvised appellee about the consequences of petitioning

this Court for review.      In light of our decision regarding the

Certified Issue and Appellee’s Issue I, this issue is moot.

                                  DECISION

      The decision of the United States Air Force Court of

Criminal Appeals on further review is reversed.           The record of

trial is returned to the Judge Advocate General of the Air Force

for remand to the Court of Criminal Appeals for reconsideration

and clarification of its decision, based on the facts as found by
the court below on its initial review and the terms and

limitations of our prior remand.           If the court below affirms a

conviction of any offense, it will order a sentence rehearing.




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United States v. Riley, No. 98-0146/AF, No. 00-5003/AF



CRAWFORD, Chief Judge (concurring in part and dissenting in

part):

     I agree with the majority that Tibbs v. Florida, 457 U.S.

31 (1982), did not overrule United States v. Crider, 22 USCMA

108, 46 CMR 108 (1973), and that Crider is the controlling

precedent in this case.   Accordingly, we have properly answered

the certified question in the negative.

     Also, I join the majority in remanding this case to the

Court of Criminal Appeals.   The court below failed to act within

the scope of our previous mandate and to clarify its holding

based on the ambiguous facts of record.

     Our previous mandate permits a reevaluation of the evidence

supporting the Government’s theory of guilt.    See, e.g., Pros.

Ex. 37.   This mandate did not permit reinstatement of a

previously set aside conviction, or substitution of a finding of

guilty barred on due process grounds.    The Court of Criminal

Appeals was simply required to make clear its specific findings

of fact based on the evidence of record.    In this regard, I join

Judge Sullivan’s concurrence.    Clarification of a holding or

judgment permits a court to conform the judgment to the facts,

so that it speaks the truth.    Truth-finding within

constitutional, statutory, and ethical considerations remains

the essential purpose of any trial.    See Nix v. Whiteside, 475
United States v. Riley, No. 98-0146/AF, No. 00-5003/AF


U.S. 157, 174 (1986); United States v. Johnston, 41 MJ 13, 16

(CMA 1994).   Accordingly, another remand is necessary to clarify

and evaluate the facts based on the theory of guilt espoused by

the Government at appellant’s court-martial.

     Finally, while I agree that sentence reassessment is

necessary, I disagree with the majority’s declaration that a

second reassessment by the Court of Criminal Appeals in this

case is not practicable.   The appellate history of this court-

martial points to the fact that reconsideration on remand should

be undertaken by a panel of the court that has never been

involved in any previous fact-finding.   If this case is remanded

to judges who have had no previous involvement, and who never

espoused an inability to reassess the sentence under the

guidelines of United States v. Sales, 22 MJ 305 (CMA 1986), then

there is no necessity for that panel to abstain from performing

a sentence reassessment.




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United States v. Riley, 00-5003/AF & 98-0146/AF



    SULLIVAN, Judge (concurring in part and dissenting in part):


     Appellant was charged with the premeditated murder of her

baby (Article 118(1), UCMJ, 10 USC § 918(1)), but the members

found her guilty of the unpremeditated murder of this newborn.

Article 118 (2), UCMJ.   The Court of Criminal Appeals, in its

first decision in this case, set aside appellant’s conviction for

unpremeditated murder based on the factual insufficiency of the

evidence of her intent to kill.   47 MJ 603 (1997).   It affirmed a

conviction of a lesser offense of involuntary manslaughter, in

violation of Article 119, UCMJ, 10 USC § 919, based on her

culpably negligent conduct in obstructing medical care for her

child.   We set aside that finding of guilty on legal grounds

because the particular prosecution theory on which the appellate

court found involuntary manslaughter was not submitted to the

military jury.   See United States v. Standifer, 40 MJ 440, 445

(CMA 1994).


    Our prior opinion remanding this case (50 MJ 410 (1999)) did

not suggest that the lower appellate court could reconsider

appellant’s guilt of premeditated murder under Article 118(1),

UCMJ, or unpremeditated murder under Article 118(2), UCMJ.

However, we did permit reconsideration of appellant’s guilt of

involuntary manslaughter or negligent homicide.   We stated:


             It is not clear, however, whether that
           court [the Court of Criminal Appeals] also
United States v. Riley, 98-0146, 00-5003/AF

          found the evidence factually insufficient
          to support a conviction of a lesser-
          included offense premised on negligent
          infliction of the fatal injuries on the
          baby. Accordingly, we will remand the
          case to the court below for clarification
          of its decision and reconsideration under
          correct legal principles.

50 MJ at 416.


Since the appellate court below had previously approved a finding

of guilty to involuntary manslaughter under Article 119(b)(1),

UCMJ, and we set it aside on the basis of legal error, a retrial

on this offense and lesser-included offenses was permitted.   See

Article 67(d), UCMJ, 10 USC § 867(d).   The lower court’s present

findings of guilty to involuntary manslaughter based on a

different theory of culpable negligence did not per se violate

our remand order.   52 MJ 825 (2000).


    The prior opinion of this Court also did not prohibit the

appellate court below from reconsidering the evidence in this

case and making specific findings of fact supporting a finding of

killing by culpable negligence or simple negligence. The premise

of our earlier remand was that no clear findings as a matter of

fact and law could be discerned on these issues.   (What factually

happened, and did it constitute culpable or simple negligence?)

In particular, there were no findings of fact in this case by the

appellate court below that appellant did not stuff a paper towel

into her baby’s mouth and apply force to the baby’s skull in a

certain manner.



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United States v. Riley, 98-0146, 00-5003/AF



   The majority opines that the appellate court below erred in

making new findings of fact in this case to support a finding of

guilty to a lesser-included offense of involuntary manslaughter.

It states:


            The mandate of this Court was to clarify
          ambiguous findings. A mandate to clarify
          a finding that the evidence was
          insufficient to establish the manner of
          death does not encompass overturning that
          finding and substituting specific findings
          that appellee stuffed a paper towel into
          the baby’s mouth and applied force to the
          baby’s skull.

___ MJ at (9) (emphasis added).


    As noted above, we previously concluded that the appellate

court below in its initial opinion did not make such a finding,

and it only held that “the evidence [was] factually insufficient

to support a conviction of unpremeditated murder.”   50 MJ at 416.

Moreover, if the majority’s new expansive view of the lower

court’s first holding is correct, this case should not have been

remanded to the Court of Criminal Appeals in the first place.

This is because both lesser-included offenses require proof that

appellant’s negligence caused the victim’s death, which could not

exist if the manner of death cannot be determined.   See paras.

44b(2)(b) and 85b(2), Part IV, Manual for Courts-Martial, United

States (2000 ed.).




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United States v. Riley, 98-0146, 00-5003/AF

   Nevertheless, the Court of Criminal Appeals did not properly

affirm a finding of guilty for involuntary manslaughter under

Article 119(b)(1), UCMJ.   Our remand order also stated:


           Reconsideration must be consistent with
           our holding that culpability based on the
           withholding of medical care, either
           intentionally or negligently, was never
           submitted to the trier of fact and thus is
           precluded as a basis for affirmance, as a
           matter of due process.


50 MJ at 416.   The appellate court below affirmed this case on

the basis of another theory of guilt not actively pursued at

trial by the prosecution, i.e., “appellant stuffed a paper towel

in her baby’s mouth to muffle any cries and then applied force to

the skull of her infant in a gross and reckless manner which,

when viewed in the light of human experience, might forseeably

result in the infant’s death.”   52 MJ at 829.   Accordingly, for

the same reason the lower court’s earlier affirmance of

involuntary manslaughter was previously reversed, we must reverse

again.   See 50 MJ at 415-16.


    Accordingly, once again, I agree that a remand in this case

is warranted to make clear the findings of the appellate court

below.   It should consider whether particular lesser-included

offenses occurred, either involuntary manslaughter under Article

119(b)(1), UCMJ, or negligent homicide under Article 134, UCMJ,

10 USC § 934, based on the negligent birthing theory of guilt

espoused by prosecution at trial. (R. 539, 551, 555)



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