                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 07a0797n.06
                           Filed: November 14, 2007

                                           No. 05-6088

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

United States of America,                      )
                                               )               ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,                     )               STATES DISTRICT COURT FOR
                                               )               THE EASTERN DISTRICT OF
v.                                             )               TENNESSEE
                                               )
Trevis Love,                                   )               OPINION
                                               )
       Defendant-Appellant.                    )


BEFORE:        BOGGS, Chief Judge; McKEAGUE, Circuit Judge; COHN, District Judge*

       McKeague, Circuit Judge. Following a jury trial, Trevis Love was convicted of conspiracy

to distribute and possess with intent to distribute more than five kilograms of cocaine in violation

of 21 U.S.C. § 841(a)(1).       Over defense counsel’s objection, the district court admitted

evidence—pursuant to Federal Rule of Evidence 404(b)—of Love’s eight-year-old state court

conviction for selling at least .5 grams of cocaine. Love timely appealed. For the reasons stated

below, we AFFIRM the decision of the district court.

                                      I. BACKGROUND

       On October 28, 2003, Love and eight of his associates were indicted by a federal grand jury

on charges of conspiracy to distribute and possess with intent to distribute five kilograms or more

of cocaine. The charges resulted from a drug conspiracy spanning the years of 1998 through 2003


       *
       The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 05-6088
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that primarily involved the importation of cocaine from various points in the United States for

distribution in Tennessee. Love’s involvement in the conspiracy began in 2002. Unlike several of

his co-conspirators who pleaded guilty and later testified against him, Love proceeded to a jury trial.

       During pre-trial proceedings, the government timely indicated its desire to introduce Love’s

1994 conviction for trafficking at least .5 grams of cocaine as evidence of intent under Federal Rule

of Evidence 404(b). After considering the arguments of counsel, the district court concluded that

the prior conviction was admissible to prove Love’s specific intent to participate in the charged drug

conspiracy. At trial, the government introduced the prior conviction at the conclusion of its case-in-

chief by way of a stipulation indicating that Love had been previously convicted in 1994 of

trafficking at least .5 grams of cocaine. The stipulation was immediately followed by a limiting

instruction informing the jury that:

                 You may not consider this evidence to prove the proposition that
                 merely because [Love] may have engaged in criminal acts in the past,
                 [he], therefore, did the acts for which [he is] on trial in this case. You
                 may consider the other criminal conduct only for the purpose of
                 determining the issue of whether or not [Love] had the requisite intent
                 to commit the conspiracy alleged in the indictment.
                         Now, remember that [Love is] on trial here only for the acts
                 alleged in the indictment and not for any other act, and [he] should
                 not be convicted unless you find that the government has proven
                 beyond a reasonable doubt that [Love] knowingly committed the acts
                 charged in the indictment.

Joint App’x at 848-49.

       At the completion of closing arguments, the district court once again instructed the jury

regarding Love’s prior drug conviction. Ultimately, the jury found Love guilty of the conspiracy

charge. The district court proceeded to sentence him to the mandatory minimum of twenty years’

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imprisonment under 21 U.S.C. § 841(b)(1)(A)(ii)(II). This appeal followed, alleging that the district

court erred by admitting Love’s 1994 drug trafficking conviction into evidence under Rule 404(b).

                                           II. ANALYSIS

A. Standard of Review

       This court’s precedent is inconsistent regarding what standard of review applies to a district

court’s decision to admit evidence under Rule 404(b). One line of cases state that we review a

district court’s admission of Rule 404(b) evidence for an abuse of discretion. See, e.g., United States

v. Mack, 258 F.3d 548, 553 n.1 (6th Cir. 2001); United States v. Gonzalez, 501 F.3d 630, 637(6th

Cir. 2007). Yet another line of cases outlines a three-tiered standard of review to be applied in such

situations. See United States v. Matthews, 440 F.3d 818, 828 (6th Cir.), cert. denied, 126 S.Ct. 2370

(2006). According to Matthews:

                 First, we review for clear error the district court’s factual
                 determination that sufficient evidence exists that the other acts
                 occurred. Second, we review de novo whether the district court
                 correctly determined that the evidence was admissible for a legitimate
                 purpose. Third, we review for abuse of discretion the district court’s
                 determination that the “other acts” evidence is more probative than
                 prejudicial under Rule 403.

Id. (quoting United States v. Comer, 93 F.3d 1271, 1277 (6th Cir. 1996)). However, a close

examination of both this court’s precedent as well as Supreme Court case law indicates that the

three-tiered approach has been rejected, and the proper standard of review for Rule 404(b)

determinations is abuse of discretion.

       Prior to 1997, the three-tiered analysis applied by Matthews was the law governing this

circuit’s review of Rule 404(b) determinations. See United States v. Gessa, 971 F.2d 1257, 1261

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(6th Cir. 1992) (en banc). However, in 1997 the Supreme Court explained that “abuse of discretion

is the proper standard of review of a district court’s evidentiary rulings.” Gen. Elec. Co. v. Joiner,

522 U.S. 136, 141 (1997). In light of Joiner, this court expressly repudiated the three-tiered standard

of review for Rule 404(b) determinations. See United States v. Haywood, 280 F.3d 715, 720 (6th

Cir. 2002); see also Mack, 258 F.3d at 553 n.1 (explaining that post-Joiner a district court’s Rule

404(b) determinations are reviewed for an abuse of discretion).

       Thus, to the extent that cases after Haywood and Mack apply the three-tiered standard of

review, they are errant because “when a later decision of this court conflicts with one of our prior

published decisions, we are still bound by the holding of the earlier case.” Darrah v. City of Oak

Park, 255 F.3d 301, 310 (6th Cir. 2001). Aside from being bound by our own precedent, we are

bound by the Supreme Court’s holding in Joiner; therefore, we review the district court’s admission

of Love’s prior cocaine trafficking conviction for an abuse of discretion. “An abuse of discretion

occurs when a district court relies on clearly erroneous findings of fact, improperly applies the law

or uses an erroneous legal standard.” United States v. Dixon, 413 F.3d 540, 544 (6th Cir. 2005).

Under this standard, we will only reverse a district court’s evidentiary decisions if “we are left with

the definite and firm conviction” that the district court erred. Id.

B. Discussion

       Pursuant to Rule 404(b), evidence of a defendant’s prior bad acts is inadmissible for

propensity purposes. However, such evidence may be admissible “as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Fed. R. Evid.

404(b). We have previously explained that prior to admitting Rule 404(b) evidence, the district court

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must: (1) make a preliminary finding as to whether sufficient evidence exists that the prior act

occurred; (2) determine that the other act is admissible for one of the proper purposes outlined in

Rule 404(b); and (3) apply Rule 403 balancing to determine whether the evidence’s probative value

is substantially outweighed by the danger of unfair prejudice or the other concerns embodied in Rule

403. Mack, 258 F.3d at 553.

        Given that the prior bad act introduced in this case involved a stipulated-to conviction, there

is no dispute that the act occurred. Thus, Love’s argument centers on whether the evidence was

admitted for a proper purpose and whether the district court properly conducted the balancing

required by Rule 403.

        1. Proper Purpose Determination

        Where a defendant is charged with a specific intent offense, evidence of his prior bad acts

may be admissible under Rule 404(b) for the purpose of proving such intent. United States v. Myers,

102 F.3d 227, 234 (6th Cir. 1996). A drug conspiracy charge—such as that brought against Love—

is a specific intent offense. Id.

        With regards to the use of prior bad acts to prove specific intent under Rule 404(b), this court

has stated that:

                   [W]here there is thrust upon the government, either by virtue of the defense
                   raised by the defendant or by virtue of the elements of the crime charged, the
                   affirmative duty to prove that the underlying prohibited act was done with a
                   specific criminal intent, other acts evidence may be introduced under Rule
                   404(b).

United States v. Johnson, 27 F.3d 1186, 1192 (6th Cir. 1994). In Johnson, the defendant was

charged with possession with intent to distribute cocaine, and—pursuant to Rule 404(b)—the district

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court admitted the defendant’s prior narcotics conviction for the purpose of proving his specific

intent to distribute. Id. at 1186, 1192. Affirming the district court, Johnson explained that when the

crime charged requires proof of specific intent, the prosecutor may use the prior bad acts to prove

that intent “notwithstanding any defense the defendant might raise.” Id. at 1192. Expanding on

Johnson, another panel of this court opined that when a defendant pleads not guilty, it triggers the

government’s duty to prove his specific intent beyond a reasonable doubt, even if the defense raised

centers on another element of the offense. United States v. Lattner, 385 F.3d 947, 957 (6th Cir.

2004).

         In the present case, Love was charged with and pleaded not guilty to engaging in a conspiracy

to distribute cocaine; therefore, the government was required to prove his specific intent beyond a

reasonable doubt. See generally Myers, 102 F.3d at 234. However, Love argues that the 1994

conviction was not offered for a proper purpose under Rule 404(b) because he did not seriously

contest intent at trial. This court’s holdings in Johnson and Lattner squarely reject Love’s argument

because the government’s ability to introduce prior bad acts as evidence of the defendant’s specific

intent is not dependent on the particular defense raised. As in Lattner, Love pleaded not guilty to

the conspiracy charge; thus, as an element of the crime, the government was required to prove his

specific intent regardless of his particular defense strategy. See Johnson, 27 F.3d at 1192.

Moreover, “[w]e have repeatedly recognized that prior drug-distribution evidence is admissible

[under Rule 404(b)] to show intent to distribute.” United States v. Ayoub, 498 F.3d 532, 548 (6th

Cir. 2007).



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        2. Substantially Similar and Reasonably Near in Time Requirements

        In addition to being offered for a proper purpose, to be admissible under Rule 404(b) a prior

bad act must be “substantially similar and reasonably near in time to the offenses for which the

defendant is being tried.” United States v. Carney, 387 F.3d 436, 451 (6th Cir. 2004) (internal

quotation marks omitted). Relying on this requirement, Love argues that his 1994 conviction for

trafficking at least .5 grams of cocaine should have been excluded because it was not substantially

similar to the instant conspiracy charge, and the eight-year gap renders it not reasonably near in time

to the charged conspiracy. Both of these arguments fail in light of this court’s precedent and that of

our sister circuits.

        Regarding the “substantially similar” requirement, when the prior bad acts evidence is being

offered for the purpose of showing intent, it “need not duplicate exactly the instant charge, but need

only be sufficiently analogous to support an inference of criminal intent.” United States v. Benton,

852 F.2d 1456, 1468 (6th Cir. 1988) (finding evidence of prior acceptance of bribes involving

bootlegging to be substantially similar to the charge of acceptance of money to protect drug dealers);

see also United States v. Beamus, 110 F. App’x 513, 516 (6th Cir. 2004) (explaining that

“substantially similar” does not require identical factual circumstances).

        In the specific context of drug trafficking, to be substantially similar for purposes of Rule

404(b) a prior drug conviction need not involve the same quantity of narcotics that underlie the

current charges. See United States v. Hicks, 798 F.2d 446, 451 (11th Cir. 1986). In Hicks, the

Eleventh Circuit addressed a situation analogous to that currently before this court. The defendant

in Hicks appealed his conviction for cocaine distribution on the grounds, inter alia, that the district

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court erred by admitting under Rule 404(b) a drug dealer’s ledger indicating that Hicks had

previously engaged in the sale of small quantities of cocaine. Id. at 450-51. Rejecting the

defendant’s argument that the prior cocaine transactions were not substantially similar to the current

charges, the Hicks court stated that: “Although the amounts noted in the diary entries were

substantially smaller than the quantity of cocaine appellant was charged with importing, the extrinsic

and charged offenses show a similar willingness to traffic in cocaine.” Id. at 451. Likewise, in a

recent unpublished opinion, this court upheld the admission of a defendant’s prior methamphetamine

conviction in her later methamphetamine distribution trial because although involving “different

quantities of methamphetamine and different degrees of production, they both involved

methamphetamine possession and trafficking.” United States v. Miller, 227 F. App’x 446, 459 (6th

Cir.), cert. denied, 128 S.Ct. 219 (2007), and cert. denied, 128 S.Ct. 242 (2007).

        Applying this precedent to the instant case, Love’s argument that his prior cocaine trafficking

conviction is not substantially similar because it involves different quantities of the same narcotic

lacks merit. Like the prior drug trafficking involved in Hicks and Miller, Love’s 1994 conviction

for trafficking at least .5 grams of cocaine is substantially similar to the current charge of conspiracy

to distribute five kilograms or more of cocaine—regardless of the difference in the quantity of

cocaine underlying the two charges.

        Love further argues that the district court abused its discretion in admitting his 1994

conviction because the eight-year gap between it and the current charge renders it too temporally

remote. Although a prior conviction admitted pursuant to Rule 404(b) must be “near in time to[] the

offenses charged in the indictment,” United States v. Ismail, 756 F.2d 1253, 1259 (6th Cir. 1985),

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there is “no absolute maximum number of years that may separate a prior act and the offense

charged.” Id. at 1260. In fact, this court has twice previously held that evidence of an eight-year-old

prior drug transaction is not too remote to be admitted as evidence of intent in a later drug trafficking

prosecution. Matthews, 440 F.3d at 830; United States v. Persinger, 83 F. App’x 55, 59 (6th Cir.

2003).

         In Matthews, the defendant was convicted of possession with intent to distribute crack

cocaine, and on appeal he argued that the district court erred by admitting evidence of a drug sale

that occurred eight years previous. Id. at 830. According to Matthews, “the district court properly

decided that even eight-year-old drug sales were probative” and admissible under Rule 404(b). Id.;

see also Persinger, 83 F. App’x at 59 (finding no abuse of discretion in the district court’s admission

of an eight-year-old prior narcotics conviction under Rule 404(b)). Likewise, other courts have

found no error in the admission of prior bad acts ranging from eight years old to eighteen years old.

See United States v. Matthews, 431 F.3d 1296, 1312 (11th Cir. 2005), cert. denied, 127 S.Ct. 166

(2006) (finding no error in the admission of an eight-year-old prior drug conviction as evidence of

defendant’s intent to join a drug conspiracy); United States v. Macedo, 406 F.3d 778, 793 (7th Cir.

2005) (upholding the admission of a nine-year-old prior conviction); United States v. Hurn, 496 F.3d

784, 787-88 (7th Cir. 2007) (finding no error in the admission of a ten-year-old conviction); United

States v. Foley, 683 F.2d 273, 278 (8th Cir. 1982) (finding no error in the admission of an eleven-

year-old conviction); United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981) (affirming the

admission of a thirteen-year-old prior conviction); United States v. Hernandez-Guevara, 162 F.3d

863, 872 (5th Cir. 1998) (upholding the admission of an eighteen-year-old prior conviction).

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       In an effort to avoid the force of this precedent, Love relies on the Eighth Circuit’s decision

in United States v. Mejia-Uribe, 75 F.3d 395, 398-99 (8th Cir. 1996), wherein the court found error1

in the district court’s admission of a thirteen-year-old prior narcotics sale as evidence in his later

drug conspiracy trial under Rule 404(b). While Love is correct that Mejia-Uribe found the prior

conviction to be too remote, nothing in the court’s decision negates the force and effect of the

precedent cited above. In particular, Mejia-Uribe does not undercut this court’s decisions in

Matthews and Persinger where we upheld the admission of eight-year-old prior drug convictions

under Rule 404(b) in situations factually analogous to the case currently before this court.

       Based on the above-mentioned precedent and the factual circumstances of the instant case,

the existence of an eight-year gap between Love’s prior conviction and his current charge is

insufficient to render admission of the 1994 conviction an abuse of discretion.

       3. Federal Rule of Evidence 403 Analysis

       Next, it is necessary to consider whether Love’s prior conviction is rendered inadmissible

by the considerations set forth in Federal Rule of Evidence 403. See Mack, 258 F.3d at 553.

Pursuant to Rule 403, a prior bad act that complies with Rule 404(b) is admissible unless “its

probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” Fed. R. Evid. 403. In the instant case, Love argues that the probative



       1
         Despite finding error in the district court’s Rule 404(b) determination, the Mejia-Uribe court
refused to reverse the defendant’s conviction because the error was harmless. Mejia-Uribe, 75 F.3d
at 399.

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value of his prior conviction was substantially outweighed by the danger of unfair prejudice and the

needless presentation of cumulative evidence. Furthermore, he asserts that the district court erred

by not conducting an adequate Rule 403 balancing on the record. For the reasons stated below,

Love’s arguments are without merit and the district court’s Rule 403 determination was not an abuse

of discretion.

                 a. Probative Value and Danger of Unfair Prejudice Determination

       This court affords district courts “broad discretion in weighing prior-drug-sale evidence

under Rule 403.” Matthews, 440 F.3d at 830. When reviewing a Rule 403 determination “we look

at the evidence in a light most favorable to its proponent, maximizing its probative value and

minimizing its prejudicial effect.” United States v. Perry, 438 F.3d 642, 648 (6th Cir.), cert. denied,

126 S.Ct. 2045 (2006) (quoting United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984)).

       In terms of the probative value of Love’s prior cocaine trafficking conviction, we have

repeatedly recognized that evidence of prior drug distribution is probative of a defendant’s intent to

later engage in drug-related activity. See, e.g., Matthews, 440 F.3d at 830; United States v. Trujillo,

376 F.3d 593, 606 (6th Cir. 2004) (finding that the probative value of the defendant’s prior narcotics

conviction was not substantially outweighed by the danger of unfair prejudice). This court has also

held that the prejudicial effect resulting from the admission of such prior bad acts evidence may be

reduced by the use of a strong cautionary instruction pursuant to Federal Rule of Evidence 105. See

United States v. Foster, 376 F.3d 577, 592 (6th Cir. 2004); see also United States v. Davis, 707 F.2d

880, 884 (6th Cir. 1983) (explaining that although “the chance of prejudice is always present in a



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404(b) situation” the district court may reduce that prejudice “by giving the jury a limiting

instruction informing them” of the proper use of the prior bad acts evidence).

       In the instant case, evidence of Love’s 1994 cocaine trafficking conviction was highly

probative of his specific intent to engage in the cocaine trafficking conspiracy currently at issue.

Admittedly, evidence of his prior conviction may have been prejudicial, but “[e]vidence that is

prejudicial only in the sense that it paints the defendant in a bad light is not unfairly prejudicial

pursuant to Rule 403.” United States v. Chambers, 441 F.3d 438, 456 (6th Cir. 2006) (emphasis

added). Furthermore, as in Foster and Davis, the prejudicial impact of the evidence was reduced by

the district court’s issuance of a limiting instruction both immediately after the introduction of

Love’s 1994 conviction and at the conclusion of the trial. On appellate review, we must presume

that the jury followed the district court’s instructions and considered the evidence only for its proper

purpose. See Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (presuming that jurors “attend

closely the particular language of the trial court’s instructions in a criminal case”). Thus, we reject

Love’s argument that the probative value of his prior conviction was substantially outweighed by

the danger of unfair prejudice.

                 b. Needless Presentation of Cumulative Evidence Determination

       Love also asserts that the district court abused its discretion under Rule 403 because evidence

of his prior conviction was unnecessarily cumulative. As the Seventh Circuit has explained:

                 Evidence is “cumulative” when it adds very little to the probative
                 force of the other evidence in the case, so that if it were admitted its
                 contribution to the determination of truth would be outweighed by its
                 contribution to the length of the trial, with all the potential for


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                 confusion, as well as prejudice to other litigants, who must wait
                 longer for their trial, that a long trial creates.

United States v. Williams, 81 F.3d 1434, 1443 (7th Cir. 1996). The fact that another piece of

evidence speaking to an element of the offense has already been introduced does not render a later

piece of evidence needlessly cumulative. See Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir. 2007)

(explaining that “[t]he mere fact that one other witness has testified to a particular fact does not

render other testimony on that point ‘cumulative.’”).

       Here, Love argues that his prior conviction was needlessly cumulative because the

government already had evidence of his intent through the testimony of his co-conspirators.

Applying Williams’s definition of “cumulative,” Love’s 1994 conviction added to the probative force

of the other evidence in the case (i.e., the co-conspirators’ testimony that Love aggressively attacked

as self-serving) and did not lead to the lengthening of the trial. As with the additional witness in

Vasquez, merely because testimony was previously admitted regarding Love’s intent to join the

conspiracy does not render his prior conviction needlessly cumulative.

                 c. Sufficiency of the District Court’s Rule 403 Balancing

       Finally, Love argues that the district court erred by not conducting a sufficient Rule 403

balancing on the record.      We have carefully reviewed the transcript of the district court’s

consideration of this issue, and based on that review we hold that the district court did provide a

sufficient on the record explanation of its reasons for admitting the evidence See generally Joint

App’x at 172-90. As the record reflects, the district court held a hearing pertaining to the 1994

conviction in which it heard oral arguments regarding the propriety of admitting the conviction,


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asked numerous questions of the attorneys, and ultimately concluded that the probative value of the

evidence was not substantially outweighed by the danger of unfair prejudice under Rule 403. See

id. at 185-90. Additionally, the district court stated that the evidence at issue in this case did not

appear to be more unfairly prejudicial than that held admissible in prior Sixth Circuit decisions. The

context of the hearing, including the district court’s numerous questions and comments, and its

statement of the Rule 403 standard, illustrates that the district court gave due consideration to the

issue; this is not a case where the district court summarily admitted evidence without providing any

indication that it considered the import of Rule 403. Therefore, we are unable to conclude that the

district court failed to conduct a proper Rule 403 balancing before admitting the 1994 conviction.

       Moreover, even were Love correct that the district court did not conduct an adequate Rule

403 balancing on the record, such an error does not necessitate reversal where the defendant did not

specifically request such explicit findings. United States v. Abboud, 438 F.3d 554, 582 (6th Cir.),

cert. denied, 127 S.Ct. 446 (2006) (rejecting the defendant’s argument that the district court erred

by failing to properly weigh the evidence under Rule 403 on the record where no request for such

explicit findings was made). Thus, although the district court might have said more regarding its

balancing determination, “this Circuit does not require district courts to utter any ‘magic words’” in

order to comply with Rule 403. Persinger, 83 F. App’x at 59 (finding no error in the district court’s

failure to explicitly recite on the record how it conducted the Rule 403 balancing). Furthermore, as

in Abboud, there is no indication in the record that Love requested explicit findings with regard to

the district court’s Rule 403 analysis.



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       Love’s 1994 conviction was admitted for a proper purpose under Rule 404(b) and its

probative value was not substantially outweighed by the considerations set forth in Rule 403.

Accordingly, we find no abuse of discretion in the district court’s decision.

                                       III. CONCLUSION

       For the foregoing reasons, we AFFIRM the decision of the district court.




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