                        UNITED STATES, Appellee

                                    v.

                      Brandon M. RESCH, Private
                         U.S. Army, Appellant


                              No. 06-0863

                       Crim. App. No. 20030587

       United States Court of Appeals for the Armed Forces

                        Argued April 25, 2007

                        Decided June 22, 2007

BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a
separate opinion concurring in part and dissenting in part.

                                 Counsel

For Appellant: Captain Richard P. Pizur (argued); Colonel John
T. Phelps II, Lieutenant Colonel Steven C. Henricks, Major Fansu
Ku, and Captain Julie A. Caruso (on brief); Major Billy B.
Ruhling III.

For Appellee: Captain Clare L. O’Shaughnessy (argued);
Lieutenant Colonel Francis C. Kiley, Lieutenant Colonel Michele
B. Shields and Captain Magdalena A. Acevedo (on brief); Colonel
John Miller, II.



Military Judge:   Robert Smith



       THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Resch, No. 06-0863/AR


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried by a military judge sitting alone as a

special court-martial.   In accordance with his pleas, he was

convicted of larceny and breaking restriction, in violation of

Articles 121 and 134, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 921, 934 (2000).   Appellant pleaded guilty to an

unauthorized absence, but was convicted contrary to his plea of

the greater offense of desertion, in violation of Article 85,

UCMJ, 10 U.S.C. § 885 (2000).   The adjudged and approved

sentence included confinement for 150 days and a bad-conduct

discharge.   The United States Army Court of Criminal Appeals

affirmed.    United States v. Resch, No. ARMY 20030587 (A. Ct.

Crim. App. June 27, 2006)(unpublished).

     We granted review of the following issues:

     I. WHETHER THE MILITARY JUDGE IMPROPERLY CONSIDERED
     APPELLANT’S STATEMENTS DURING THE GUILTY PLEA INQUIRY TO
     THE LESSER-INCLUDED OFFENSE OF ABSENCE WITHOUT LEAVE IN
     DETERMINING APPELLANT’S GUILT TO THE GREATER OFFENSE OF
     DESERTION.

     II. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
     A FINDING OF GUILTY THAT APPELLANT DESERTED HIS UNIT WITH
     THE INTENT TO REMAIN AWAY PERMANENTLY.

     III. WHETHER THE ACCUSED’S PLEA BY EXCEPTIONS AND
     SUBSTITUTIONS TO AN UNAUTHORIZED ABSENCE FROM 11 APRIL 2002
     TO 22 JANUARY 2003 WAS PROVIDENT WHERE APPELLANT CLAIMED HE
     CONTACTED HIS RECRUITER PRIOR TO 29 OCTOBER 2002, AND THE
     MILITARY JUDGE DID NOT RESOLVE WHETHER THIS CONTACT
     CONSTITUTED A TERMINATION OF THE ABSENCE.




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United States v. Resch, No. 06-0863/AR


        IV. WHETHER THE EVIDENCE WAS LEGALLY SUFFICIENT TO SUPPORT
        A FINDING OF GUILTY TO EITHER DESERTION OR UNAUTHORIZED
        ABSENCE THAT TERMINATED ON 17 MARCH 2003.1

                              BACKGROUND

        Appellant was charged with the offense of desertion

terminating on March 17, 2003.    He pleaded guilty by exceptions

to the lesser included offense of unauthorized absence beginning

April 11, 2002 and terminating on January 22, 2003.    Appellant

indicated during the providence inquiry that he left because of

his mother’s financial problems and deaths in his girlfriend’s

family.    While he was away, Appellant returned to Michigan where

he took a civilian job and was arrested twice by local law

enforcement.    The second arrest, which took place on October 29,

2002, resulted in a conviction for uttering forged checks at a

convenience store located near Selfridge Air National Guard

Base.    Appellant was confined at the Macomb County Jail in

Michigan from the date of this arrest until he was released on

January 22, 2003, after being sentenced to probation and time

served.

        During his colloquy with the military judge, Appellant also

stated that he had “contacted” his recruiter, whom he described

as “more or less the middleman between myself and the company.”

Upon further questioning by the military judge, Appellant stated

that this contact had occurred prior to his arrest for uttering,

1
    Issues III and IV were specified by the Court.

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United States v. Resch, No. 06-0863/AR


and that the recruiter had told him that he had been “dropped

from the rolls” and that he “would not be able to return to any

military branch or any U.S. service.”

     Further, Appellant stated that while he was in confinement

at the Macomb County Jail, he met prisoners and guards who had

been in the Air Force, and they had informed him that “you have

to sign paperwork in order to get out of any military service.”

According to Appellant these individuals also told him that if

the military wanted him back “they would apprehend me more than

likely on my way out [of] jail.”       After his release from the

Macomb County Jail on January 22, 2003, when he was not picked

up by military authorities, Appellant said he believed that

“[i]n my mind, it had actually been cleared up.”

     Pursuant to a pretrial agreement, Appellant entered into a

stipulation of fact.   The stipulation included, among other

things, the circumstances surrounding his two arrests in

Michigan.   The stipulation of fact also explained how Appellant

was returned to military control:

          During March 2003, Detective Kapuscinski
     (“Kappy”), Macomb County Sheriff’s Office, Violent
     Crimes Task Force, received a faxed warrant for the
     accused. Aware of the accused’s January conviction
     and knowing his whereabouts, Detective Kappy called
     the accused’s girlfriend to attempt to locate the
     accused. The accused was living with his girlfriend
     at her home at the time and, unable to reach the
     accused by phone, Detective Kappy notified the
     accused’s girlfriend of his AWOL status. . . .



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United States v. Resch, No. 06-0863/AR


          The Accused contacted Detective Kapuscinski and
     arranged to turn himself in at the Macomb County
     Sheriff’s Office. The accused admitted to Detective
     Kapuscinski that he had fled the Army and that he had
     been working construction during the time of his
     absence.

The stipulation went on to state that after he contacted

Detective Kapuscinski, Appellant flew back to Washington, D.C.

from Michigan and returned to his unit on March 17, 2003.

     The first paragraph of the stipulation contains the

following statement:     “These facts may be considered by the

Military Judge in determining the providence of the accused’s

plea of guilty, and they may be considered by the sentencing

authority . . . even if the evidence of such facts is deemed

otherwise inadmissible.” (emphasis added).      Curiously, the

stipulation also included a fourth paragraph titled,

“Stipulation to Admissibility of Evidence.”      This paragraph

contains the following statement:       “the following evidence is

admissible at trial, may be considered by the military judge in

determining the providence of the accused’s plea of guilty, and

may be considered by the sentencing authority . . . .” (emphasis

added).   It then lists the following prosecution exhibits:

     PE   1   Stipulation of Fact2
     PE   2   ERB [Enlisted Record Book]
     PE   3   OMPF [Official Military Personnel File]
     PE   4   Accused’s sworn statement, dated 4 April 2003


2
  The very document at issue here and in which the above cited
paragraphs appear.

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United States v. Resch, No. 06-0863/AR


        PE 5 Civilian conviction (bates stamped pages 000027 –
        000028)
        PE 6 Videotape from PX shoplifting, 23 April 2003

While advising Appellant on how the stipulation would be used,

the military judge explained that the stipulation of fact “would

be used in two ways:    First . . . to determine if you are, in

fact, guilty of the offenses to which you have pled guilty.

Second, I will . . . [sic] use it in determining an appropriate

sentence for you.”    After ensuring that Appellant understood how

the stipulation would be used, the military judge was about to

proceed when trial counsel pointed out that Paragraph IV of the

stipulation incorporated several other prosecution exhibits.

However, and possibly as an oversight, the military judge failed

to advise Appellant as to the language in Paragraph IV and how

it differed in significant respect from the language in

Paragraph I.    Here, the military judge only secured Appellant’s

understanding that he was agreeing to “the introduction” of the

listed exhibits but did not specify or obtain Appellant’s

understanding how the exhibits could be used.

        The military judge ultimately accepted Appellant’s plea of

guilty to an unauthorized absence terminating on January 22,

2003.    The Government elected to go forward on the greater

offense of desertion, which required proof of the additional and

contested element that “at some time during the absence,

[Appellant] intended to remain away from his . . . unit,


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United States v. Resch, No. 06-0863/AR


organization, or place of duty permanently.”   Manual for Courts-

Martial, United States pt. IV, para. 9.b.(1)(c) (2002 ed.)

(MCM).   The Government further sought to prove a later

termination date of March 17, 2003 as charged.   The Government’s

case consisted of a single witness, Appellant’s company

commander, Captain (CPT) Trotter.    CPT Trotter testified that he

had become the commander of B Company, 3rd United States

Infantry, The Old Guard, in October 2002.   On March 17, 2003 he

was surprised to see Appellant in formation for the first time,

at which point he turned to the platoon sergeant and asked,

“[e]xcuse me, Sergeant.   Who is this guy standing in my

formation?”

     The Government rested without calling any other witnesses

and did not move to admit any other documentary evidence.

Appellant did not put on a defense case.    After the defense

rested, trial counsel asked to “clarify that the providence

inquiry will not be considered by the court as a defense to the

greater offenses?”   Defense counsel responded that “[w]e believe

the contents of the providence inquiry can be used for proving

the elements of the greater offense.   Therefore, we believe the

defense can also use anything exculpatory elicited in the

providence inquiry as well.”   The military judge concluded that

he could “consider the stipulation of fact and everything I have




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United States v. Resch, No. 06-0863/AR


heard up to now in determining the guilt or innocence of Private

Resch on the greater offense.”

     Despite his initial objection, trial counsel used the facts

contained in the stipulation of fact and the providence inquiry

in his closing to argue that Appellant had formed the intent to

stay away permanently.   Among other things, trial counsel argued

that it was circumstantial evidence of an intent to remain away

that Appellant had established a job and was living with his

girlfriend in Michigan; that Appellant had said in his sworn

statement during the plea inquiry that he stayed in Michigan

even after “the problems for which he left had been cleared up”;

and that Appellant’s belief formed upon his release from the

Macomb County Jail that “he had no more obligations to the Army”

implied that he had the intent to remain away permanently.

Defense counsel argued that, based on Appellant’s conversation

with the recruiter and what he had been told in jail, Appellant

was under “a reasonable mistake of fact as to his obligation to

return to military service.”   The military judge found Appellant

guilty of desertion terminating on March 17, 2003.

                            DISCUSSION

     Appellant argues that it was plain error for the military

judge to use Appellant’s providence inquiry statements, the

stipulation of fact, and the attachments to the stipulation of

fact to determine whether Appellant was guilty of desertion.


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United States v. Resch, No. 06-0863/AR


       Before a plea of guilty may be accepted, a trial judge is

required to advise the accused that his guilty plea waives his

constitutional rights to a jury trial, to confrontation of his

accusers, and his privilege against self-incrimination.     Boykin

v. Alabama, 395 U.S. 238, 243 (1969); United States v. Care, 18

C.M.A. 535, 541, 40 C.M.R. 247, 253 (1969).   In military

practice, Article 45, UCMJ,3 requires the military judge to

address the accused personally and explain the rights he is

giving up, and to obtain the accused’s express waiver of these

rights.    See Care, 18 C.M.A. at 541, 40 C.M.R. at 253.    In

addition, the military judge is obligated to ensure that an

accused understands the provisions of any pretrial agreement,

and to ensure that the parties agree to the terms set forth in

the agreement.    United States v. Bartley, 47 M.J. 182, 186

(C.A.A.F. 1997); United States v. Green, 1 M.J. 453, 456 (C.M.A.

1976); Rule for Courts-Martial (R.C.M.) 910(f)(4)(A).      Moreover,

the military judge must ensure that the accused freely consents

to enter into any stipulation of fact or stipulation of expected

testimony.    R.C.M. 811(c).

       In accordance with these principles, the military judge

advised Appellant that his guilty plea waived his right against

self-incrimination.    He further advised Appellant that “you are

giving up these rights as to the offenses you’ve pled guilty to.

3
    10 U.S.C. § 845 (2000).

                                  9
United States v. Resch, No. 06-0863/AR

To that greater offense of desertion, you retain those rights.”

When defense counsel asked the military judge to consider

Appellant’s providence inquiry statements after the close of the

Government’s evidence, the military judge concluded that he

could “consider . . . everything I have heard up to now” without

further questioning or advising Appellant.   This, of course, was

error since it was inconsistent with the advice the military

judge gave Appellant on the greater offense of desertion and

therefore, beyond Appellant’s express waiver of his privilege

against self-incrimination.   See United States v. Grijalva, 55

M.J. 223, 227-28 (C.A.A.F. 2001).

     Military law imposes an independent obligation on the

military judge to ensure that the accused understands what he

gives up because of his plea and the accused’s consent to do so

must be ascertained.   Here, the military judge’s colloquy with

Appellant was insufficient to ensure that Appellant understood

the effect of the stipulation of fact entered into with the

Government.

     The military judge expressly advised Appellant that the

stipulation would be used for the limited purposes of

determining the providence of Appellant’s guilty pleas and for

determining the sentence.   Although the last paragraph of the

stipulation suggested a broader use by the prosecution of the

stipulation and the included exhibits, the military judge


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United States v. Resch, No. 06-0863/AR

conducted no inquiry into this provision to clarify the apparent

inconsistency between Paragraph I and Paragraph IV of the

stipulation of fact.   Without further inquiry on the record,

there is an insufficient basis to determine that Appellant

knowingly consented to the use of the stipulation and the

adjoining exhibits in the Government’s case on the merits of the

desertion offense in light of the wording of Paragraph I and the

military judge’s prior advice to Appellant.

     Further, we conclude that these errors resulted in material

prejudice to Appellant’s substantial rights.   Without

Appellant’s statements and the facts admitted in the

stipulation, the Government’s case on desertion consisted of CPT

Trotter’s testimony that the first time he saw Appellant was on

March 17, 2003.   This testimony was insufficient to establish

Appellant’s intent to remain away permanently or to establish

the later termination date.   MCM pt. IV, para. 9.c.(1)(c)(v)

(“Proof of, or a plea of guilty to, an unauthorized absence,

even of extended duration, does not, without more, prove guilt

of desertion”).   To the contrary, Appellant’s presence at

formation would seem to bely an intent to remain away

permanently.   Here, the Government was allowed the benefit of

the additional facts contained in Appellant’s statements during

the providence inquiry, the stipulation of fact, and the sworn

statement to prove the element of intent to remain away


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United States v. Resch, No. 06-0863/AR


permanently.   These facts included Appellant’s statements

implying that he did not intend to go back after he got out of

jail, as well as circumstantial evidence that Appellant was

living in Michigan, had a job there, and was living near an Air

National Guard base.    See MCM pt. IV, para. 9.c.(1)(c)(iii)

(permitting inference of intent to remain away where there is

evidence “that the accused could have conveniently surrendered

to military control but did not”).

     In addition, the Government’s evidence was insufficient to

prove the later termination date of March 17, 2003.   Although

the stipulation of fact stated that Appellant returned to Fort

Meyer on March 17, 2003, after he was contacted by Detective

Kapuscinski, it was improperly considered on the contested

offense of desertion.   Appellant pled guilty by exception and

substitution to an unauthorized absence terminating on January

22, 2003.   The Government was therefore required to prove that

Appellant “remain[ed] so absent in desertion until on or about

17 March 2003” when it proceeded on the greater offense.

“[V]iewing the evidence in the light most favorable to the

prosecution,” CPT Trotter’s testimony of when he first noticed

Appellant in the formation does not provide legally sufficient

evidence that would permit a “rational trier of fact” to conclude

beyond a reasonable doubt that Appellant was “returned to

military control” on March 17, 2003.   Jackson v. Virginia, 443


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United States v. Resch, No. 06-0863/AR

U.S. 307, 319 (1979); United States v. Turner, 25 M.J. 324, 325

(C.M.A. 1987); MCM pt. IV, para. 10.c.(10).

     Although we conclude that the evidence was insufficient to

establish the contested elements of desertion terminating on

March 17, 2003, we conclude that Appellant’s plea to an

unauthorized absence terminating on January 22, 2003 was

provident.   Appellant argues that under United States v.

Phillippe, 63 M.J. 307 (C.A.A.F. 2006), he set up a matter

inconsistent with his plea when he claimed to have contacted his

recruiter prior to October 29, 2002.   He argues that this

contact constituted an attempt to voluntarily surrender to

military authority, and thereby terminated his absence.     MCM pt.

IV, para. 10.c.(10)(a).   However, unlike Phillippe’s unrebutted

assertion that he tried to turn himself in at an Air Force Base

in person, 63 M.J. at 308, Appellant only claimed that he had

“contacted” his recruiter, suggesting something other than

physical submission to military authorities.   See United States

v. Acemoglu, 21 C.M.A. 561, 563-64, 45 C.M.R. 335, 337-38 (1972)

(telephone contact insufficient to establish voluntary surrender

to military authority).   Accepting Appellant’s assertions as

true, the record does not reflect that he physically presented

himself to military authorities for the purpose of surrendering.

As such, Appellant set up a “mere possibility” of a conflict,

which does not provide a substantial basis for questioning the


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United States v. Resch, No. 06-0863/AR

plea of guilty to the January 22, 2003 termination date.   See

United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 2007)

(citations omitted).

                             DECISION

     The decision of the United States Army Court of Criminal

Appeals as to the finding of guilty of desertion terminating on

March 17, 2003 is reversed and that specification and charge are

dismissed.   A finding of guilty of unauthorized absence in

violation of Article 86, UCMJ, 10 U.S.C. § 886 (2000)

terminating on January 22, 2003, and the remaining findings and

the sentence are affirmed.




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United States v. Resch, No. 06-0863/AR


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

     At the invitation of Appellant’s counsel, the military

judge considered Appellant’s providence inquiry and stipulation

of fact relating to unauthorized absence in deciding whether to

convict him of the greater offense of desertion.   In reaching a

decision to convict him of desertion, the military judge also

considered certain exhibits, the admissibility of which

Appellant had stipulated.   The majority concludes the military

judge committed prejudicial error by considering these matters.

I dissent.

     The majority bases its finding of error as to the

stipulation on allegedly inconsistent language within that

document itself, together with the lack of any indication on the

record that the military judge explained the inconsistency to

Appellant.   In fact, there was no inconsistency and, therefore,

no possibility of confusion on Appellant’s part.   In Paragraph I

of the “Stipulation of Fact & Admissibility of Evidence,”

Appellant agreed that the facts therein

     may be considered by the Military Judge in determining
     the providence of the accused’s plea of guilty, and
     they may be considered by the sentencing authority and
     on appeal in determining an appropriate sentence, even
     if the evidence of such facts is deemed otherwise
     inadmissible. The accused expressly waives any
     objection he may have to the admission of the facts
     into evidence at trial under the Military Rules of
     Evidence, the United States Constitution, or
     applicable case law.
United States v. Resch, No. 06-0863/AR


(Emphasis added).   Paragraph IV of the document, tracks the

language and intention of the last sentence of Paragraph I,

stating as follows:

     Trial Counsel and Defense Counsel, with the express
     consent of the accused, stipulate that the following
     evidence is admissible at trial, may be considered by
     the military judge in determining the providence of
     the accused’s plea of guilty, and may be considered by
     the sentencing authority and on appeal in determining
     an appropriate sentence.

(Emphasis added).   The document then lists several prosecution

exhibits, including the stipulation.   Both parts of the document

signed by Appellant and his counsel envisioned the admissibility

of facts contained in the stipulation, not just during the

providence inquiry but generally at trial.   As such, I would

find no error with the military judge’s decision to use the

stipulation when he considered the desertion charge.

     The military judge’s consideration of the providence

inquiry is another matter.   After the military judge accepted

Appellant’s pleas, the trial counsel called one witness to

assist in establishing the greater offense of desertion, and

then rested.   The defense counsel then rested without calling

any witnesses.   The defense’s action apparently led the trial

counsel to believe that the defense would argue that Appellant

was not guilty based on matters presented during the providence

inquiry.   The trial counsel raised the issue to the military

judge:   “Your Honor, the government just wanted to clarify that


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United States v. Resch, No. 06-0863/AR


the providence inquiry will not be considered by the court as a

defense to the greater offenses?”      The defense counsel

responded:   “Your Honor, we believe that it can be.     We believe

the contents of the providence inquiry can be used for proving

the elements of the greater offense.      Therefore, we believe the

defense can also use anything exculpatory elicited in the

providence inquiry as well.”

     The trial counsel then argued that the matters raised in

the providence inquiry were to be used solely for determining

Appellant’s guilt of the offenses to which he was pleading

guilty, and were not a permissible means by which Appellant

could present a defense without subjecting himself to cross-

examination.   Defense counsel persisted:     “The defense does

intend and believes it can use the contents of the providence

inquiry, sir.”   After some further discussion, the military

judge determined he could use the stipulation of fact and

“everything [he had] heard up to now in determining the guilt or

innocence of Private Resch on the greater offense [of

desertion].”

     The principle that a party may not invite or provoke error

at trial and then complain of it on appeal is long established

in both civilian and military jurisprudence.      Johnson v. United

States, 318 U.S. 189, 200 (1943); United States v. Maxwell, 7

C.M.R. 632, 659 (A.F.B.R. 1952).       “‘[A] party may not complain


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United States v. Resch, No. 06-0863/AR


on appeal of errors that he himself invited or provoked the

[lower] court . . . to commit.’”       United States v. Wells, 519

U.S. 482, 488 (1997) (quoting United States v. Sharpe, 996 F.2d

125, 129 (6th Cir. 1993)).   We have employed the doctrine of

invited error on numerous occasions to deny relief.      See, e.g.,

United States v. Dinges, 55 M.J. 308, 311 (C.A.A.F. 2001)

(holding any error in the admission of victim testimony was

invited because the victim was called as a defense witness

during sentencing); United States v. Eggen, 51 M.J. 159, 161-62

(C.A.A.F. 1999) (finding any error in admitting an expert’s

testimony as to whether the victim faked his emotions was

invited by defense counsel’s suggestion to that effect); United

States v. Anderson, 51 M.J. 145, 153 (C.A.A.F. 1999) (where

defense attempt to impeach child witnesses highlighted adverse

testimony, defense cannot on appeal retreat from unsuccessful

trial strategy); United States v. Raya, 45 M.J. 251, 253-54

(C.A.A.F. 1996) (finding social worker’s improper comment on the

victim’s credibility was invited because the comment was

elicited on cross-examination by the appellant’s counsel).       Any

error by the military judge in using the providence inquiry in

this case was invited in the most categorical terms by

Appellant’s trial defense counsel.      No further analysis is

necessary.




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United States v. Resch, No. 06-0863/AR


     The lack of error in the military judge’s consideration of

the stipulation, together with the invited error as to the

providence inquiry, disposes of Appellant’s complaint with

regard to the finding of guilty of desertion.   I therefore

dissent from the majority’s decision to reverse the lower court

as to the desertion offense.   As to the remaining findings and

the sentence, I concur.




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