                United States Court of Appeals
                                  For the First Circuit
                                     _____________________
No. 15-1716
                                UNITED STATES OF AMERICA,

                                              Appellee,

                                                  v.

                                  ROBEL KIDANE PHILLIPOS,

                                       Defendant, Appellant.
                                       __________________

                                            Before
                                     Howard, Chief Judge,
                Torruella, Lynch, Thompson, Kayatta, and Barron. Circuit Judges.

                                      ORDER OF COURT
                                     Entered: August 3, 2017

       Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en
banc has also been treated as a petition for rehearing before the original panel. The petition for
rehearing having been denied by the panel of judges who decided the case, and the petition for
rehearing en banc having been submitted to the active judges of this court and a majority of the
judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing
en banc be denied.

         THOMPSON, Circuit Judge, dissenting from the denial of rehearing en banc. In my
view, the district court abused its discretion in refusing to hold an evidentiary hearing on Phillipos's
motion to suppress his confession. As a condition of holding an evidentiary hearing in the first
place, the district court sought to extract a pre-hearing commitment from Phillipos that he'd testify
at the hearing, and the court further ordered that Phillipos would be the first witness to testify at
the hearing if one were held. When Phillipos refused to accept these conditions, the district court
declined to hold an evidentiary hearing. As I see it, this decision is inconsistent with the ironclad
rule that the government bears the burden of proof on the voluntariness issue. In affirming the
district court on this point, the majority stretches a prior decision of this court much too far, and I
cannot find — and the panel opinion has not identified — any other conceivable support for what
the district court did. Because I fear that the panel's approval of the district court's improper denial
of an evidentiary hearing will have a far-reaching impact on the manner in which motions to
suppress are considered and decided within this circuit, I respectfully dissent from the denial of
rehearing en banc.
                                        I.      Background

       Before trial, Phillipos moved to suppress his confession. In support of his motion, he
submitted his affidavit, which was signed under the pains and penalties of perjury. He also
requested that the district court hold an evidentiary hearing on the suppression motion. And he
requested that the court "place the burden of production and persuasion as to the voluntariness of
the defendant's statements on the [g]overnment before requiring the defendant to testify at the
hearing." Requiring Phillipos to testify first at the evidentiary hearing, he argued, would place
"the burden of production on the defendant rather than the government, and requir[e] him to be
offensive with evidence rather than defensive. This is unfair because it is the defendant who should
be confronting the [g]overnment[']s evidence, not the other way around."

        The district court declined to hold an evidentiary hearing on Phillipos's motion. Because
of the court's "lingering concern" that, "over the years," the defense bar has employed motions to
suppress to "obtain[] discovery that the parties are not properly entitled to," it indicated that it
would hold an evidentiary hearing only if Phillipos agreed to the court's unique order of proof.
Although the court concluded that the allegations in Phillipos's affidavit were sufficient to create
the necessary genuine factual dispute to trigger the need for an evidentiary hearing, it nevertheless
concluded that the affidavit alone was not enough. Based on "what appear[ed] to be ambivalence,
perhaps, on the part of [Phillipos], the suggestion that, while [his] affidavit[] [is] sufficient, [he
has] not decided whether to testify," the court reasoned that, if Phillipos did not testify at the
evidentiary hearing, then his affidavit is "absolutely illusory" and "a bait and switch."

         To combat this perceived danger, the district court ordered that the evidentiary hearing
would proceed as follows: (1) Phillipos would first testify on direct examination; (2) then, if his
testimony "raise[d] the question [of voluntariness] sufficiently," the government would produce
its evidence of voluntariness; and (3) finally, if the government's evidence was sufficient to ground
a finding of voluntariness, the government would be permitted to cross-examine Phillipos. After
proposing this unique procedure, the court then sought to extract a commitment from Phillipos to
testify at the hearing.

       Phillipos objected to the procedure proposed by the district court, arguing that, because the
government bears the burden of proof on the issue of whether Phillipos's confession was voluntary,
the government should be forced to first go forward with its evidence at the evidentiary hearing
and only then, after the government rested, should Phillipos need to decide whether to take the
stand. The district court remained steadfast in its position, and, when Phillipos was unwilling to
make a pre-hearing commitment to testify, the district court refused to hold an evidentiary hearing.

               II.     No Support for Refusal to Hold an Evidentiary Hearing

        Everyone agrees that Phillipos was entitled to a hearing on his motion to suppress only if
he made "a sufficient threshold showing that material facts are in doubt or dispute, . . . that such
facts cannot reliably be resolved on a paper record," and "that there are factual disputes, which, if
resolved in his favor, would entitle him to the requested relief." United States v. Cintron, 724 F.3d
32, 36 (1st Cir. 2013) (quoting United States v. Francois, 715 F.3d 21, 32 (1st Cir. 2013)); see also
United States v. Jiménez, 419 F.3d 34, 42 (1st Cir. 2005); United States v. Staula, 80 F.3d 596,

                                                -2-
603 (1st Cir. 1996). The district court in this case concluded that, if the allegations in Phillipos's
affidavit were credited, this standard would have been met, see United States v. Phillipos, 849 F.3d
464, 468 (1st Cir. 2017), and the panel opinion does not purport to disagree with the district court's
assessment on this score, so neither will I. Therefore, all agree that Phillipos was entitled to an
evidentiary hearing if the district court improperly disregarded his affidavit.

        The panel opinion relies on our decision in United States v. Baskin, 424 F.3d 1 (1st Cir.
2005), to support its conclusion that the district court did not abuse its discretion in removing
Phillipos's affidavit from the equation. See Phillipos, 849 F.3d at 469. In my view, Baskin is cut
from entirely different cloth than our case.

        For starters, in Baskin, unlike in this case, the district court held an evidentiary hearing.
424 F.3d at 3. To be sure, the panel opinion acknowledges this difference between Baskin and
this case, but it nonetheless concludes that Baskin supports the district court's refusal to consider
Phillipos's affidavit. See Phillipos, 849 F.3d at 469. I cannot subscribe to this conclusion.

        In Baskin, the defendant testified at the evidentiary hearing on direct examination. It was
only when the defendant invoked his Fifth Amendment right against self-incrimination and refused
to answer the government's cross-examination questions that the district court struck his affidavit.
424 F.3d at 3. The decision to strike the affidavit was viewed by this court as a matter of
"discretionary selection of remedy" for a witness's gamesmanship. Id. As we explained, "[a] trial
judge may strike a witness's direct testimony if he flatly refuses to answer cross-examination
questions related to the details of his direct testimony, thereby undermining the prosecution's
ability to test the truth of his direct testimony." Id. (internal quotation marks omitted) (quoting
United States v. Bartelho, 129 F.3d 663, 673 (1st Cir. 1997)).

         Phillipos's case, by contrast, is very different. He was not attempting to testify only on
direct examination without subjecting himself to cross-examination; he was not even attempting
to testify at all. Instead, he was simply trying to meet his initial burden under our case law to
demonstrate the existence of a factual dispute necessitating an evidentiary hearing, leaving the
decision of whether to testify at the hearing until after the government attempted to meet its burden
of proof on the issue of voluntariness.

        It is one thing to say that, when a hearing is held and a defendant takes the stand but refuses
to be subject to cross-examination after completion of his testimony on direct examination, the
court can strike from the record the evidence that has been improperly shielded from cross-
examination. It seems to me something completely different to say that, when assessing whether
a defendant has met his initial burden to show a factual dispute entitling him to an evidentiary
hearing, the district court can refuse to consider an affidavit — signed under the penalties of
perjury — and decline to hold any evidentiary hearing in the first place simply because the
defendant is not prepared, then and there, to commit to taking the stand. At the very least, nothing
in Baskin — which has nothing to do with the standard for obtaining an evidentiary hearing — or
any of the other cases cited by the government or in the panel opinion suggests that a defendant's
affidavit suffices to meet our evidentiary-hearing standard only when the defendant makes a pre-
hearing commitment to testify at the hearing. Cf. United States v. Schaefer, 87 F.3d 562, 570 (1st
Cir. 1996) (explaining that "a judge presiding at a suppression hearing may receive and consider

                                                 -3-
any relevant evidence, including affidavits and unsworn documents that bear indicia of reliability"
and concluding that "the government effected a prima facie showing of consent by placing a copy
of the police report before the court").

        Moreover, the existence of a hearing is not the only critical difference between Baskin and
this case. The only issue with which this court was concerned in Baskin was whether the defendant
had standing to challenge the officers' warrantless entry into a motel room.1 See 424 F.3d at 3. A
defendant bears the burden of establishing his or her standing to challenge an unlawful search.
United States v. Stokes, 829 F.3d 47, 51 (1st Cir. 2016) ("Under what is known as the 'standing'
doctrine, the defendant carries the burden of making a threshold showing that he has 'a reasonable
expectation of privacy in the area searched and in relation to the items seized.' . . . 'This burden
must be carried at the time of the pretrial hearing and on the record compiled at that hearing.'"
(quoting United States v. Aguirre, 839 F.2d 854, 856 (1st Cir. 1988))). And, in Baskin, the only
evidence the defendant offered to support his standing to mount the Fourth Amendment challenge
was contained in his affidavit. 424 F.3d at 3. When the defendant, after testifying on direct,
refused to answer the government's questions on cross-examination, the district court struck his
affidavit. Id. And, because the defendant had "offered no other evidence" to shoulder his burden
to establish standing, he "failed to establish any ground for asserting a Fourth Amendment right."
Id.

        In this case, by contrast, Phillipos moved to suppress his confession on the ground that it
was not voluntary. Unlike on the question of Fourth Amendment standing, "[t]he burden of proof
is on the prosecution to show by a preponderance of the evidence to the judge that the confession
was voluntary."2 United States v. Feliz, 794 F.3d 123, 130 (1st Cir. 2015). Therefore, although
Baskin might support a requirement that the defendant agree to testify consistently with his
affidavit when the affidavit concerns a matter on which the defendant bears the burden of proof,3
it offers no support for the district court's requirement in this case that a defendant who did not
bear the burden of proof make a pre-hearing commitment to testify (and testify first).

        Taken together, the two critical differences between this case and Baskin convince me that
that case provides no support for what the district court did here: conditioning the decision whether
to hold an evidentiary hearing concerning an issue for which the government bears the burden of
proof on a defendant's pre-hearing commitment to testify. The panel opinion does not identify any
other authority to support the district court's decision to disregard Phillipos's affidavit, and I too


       1
          I use the term "standing" here in the interest of brevity. See United States v. Sowers, 136
F.3d 24, 26 n.2 (1st Cir. 1998) ("Although use of the term standing in this context may offend a
legal purist, we have employed that word as a shorthand method of referring to the issue of whether
the defendant's own Fourth Amendment interests were implicated by the challenged governmental
action." (internal quotation marks omitted)).
        2
          Although the panel opinion acknowledged that the constitutional basis for suppression in
Baskin (the Fourth Amendment) differed from that invoked by Phillipos (the Fifth Amendment),
see Phillipos, 849 F.3d at 469, it failed to acknowledge the difference in the party bearing the
burden of proof on the issue to which the affidavit was directed.
        3
          I emphasize "might" here because — it bears repeating — Baskin did not address our
standard for the showing necessary to obtain an evidentiary hearing in the first place.
                                                -4-
have found none. None of our cases on the need to show an entitlement to an evidentiary hearing
suggests the defendant also needs to commit to testifying — let alone to agreeing to be the first
witness to testify at the hearing. See, e.g., Jiménez, 419 F.3d at 43 (holding that district court did
not abuse its discretion in refusing to hold second evidentiary hearing where "[t]he district court
had already heard evidence at the previous evidentiary hearing about the [relevant] circumstances"
and could "therefore reach a determination about voluntariness without the need for additional
evidence"); Staula, 80 F.3d at 603-04 (affirming refusal to hold evidentiary hearing because, even
if defendant's affidavit was accepted as true, it did not create factual dispute concerning key issue
of when officer first smelled marijuana).

         Indeed, we've even found a district court's refusal to hold an evidentiary hearing to be an
abuse of discretion where, as here, a defendant's affidavit created the requisite dispute of material
fact. See United States v. D'Andrea, 648 F.3d 1, 3, 8 (1st Cir. 2011). In that case, the government
sought to justify a warrantless viewing of photographs in a password-protected website on the
basis of the private-search doctrine, among other grounds. Id. at 6. The critical issue posed by the
application of that doctrine to the facts of D'Andrea was how the anonymous tipster obtained the
account access information that she later disclosed to law enforcement. See id. at 8. We held that
an evidentiary hearing was required because, among other reasons, there was a dispute as to
whether the defendants shared the access information with the tipster. Id. We noted that "both
defendants affirmed in sworn affidavits that they did not share the password with anyone." Id.
The need for an evidentiary hearing was based on the affidavits themselves; nothing in that
decision suggested that the need for the hearing depended on defendants' pre-hearing commitment
to testify consistently with their affidavits.

        To be sure, if, as was the case here, a defendant's affidavit establishes the need to hold an
evidentiary hearing and if, after the government presents sufficient evidence of voluntariness, the
defendant refuses to testify or present any evidence besides his or her affidavit, the district court
is not required to accept the affidavit into evidence.4 To the contrary, at this point, the district



       4
          A criminal defendant's decision to take the stand at a suppression hearing is not one that
should be undertaken lightly. Although the government cannot use a defendant's suppression-
hearing testimony as evidence of the defendant's guilt at trial, see United States v. Simmons, 390
U.S. 377, 390, 394 (1968); United States v. Symonevich, 688 F.3d 12, 21 n.6 (1st Cir. 2012), such
pretrial testimony can be used to impeach a defendant's testimony at trial, United States v. Smith,
940 F.2d 710, 713 (1st Cir. 1991). See United States v. Jaswal, 47 F.3d 539, 543-44 (2d Cir. 1995)
(holding that defendant's suppression-hearing testimony can be used to impeach defendant's
testimony at trial); United States v. Beltran-Gutierrez, 19 F.3d 1287, 1289-91 (9th Cir. 1994)
(same); United States v. Quesada-Rosadal, 685 F.2d 1281, 1283 (11th Cir. 1982) (same); see also
United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001) (suggesting same); cf. United
States v. Salvucci, 448 U.S. 83, 93-94 & nn.8-9 (1980) (explaining that Court "has not decided
whether Simmons precludes the use of a defendant's testimony [at a suppression hearing] to
impeach his testimony at trial," while simultaneously noting that "[a] number of courts considering
the question have held that such testimony is admissible as evidence of impeachment" and that
"[t]h[e] Court has held that 'the protective shield of Simmons is not to be converted into a license
for false representations'" (quoting United States v. Kahan, 415 U.S. 239, 243 (1974))).
                                                -5-
court has discretion to strike or refuse to consider the affidavit. See, e.g., United States v. Riney,
742 F.3d 785, 787 (7th Cir. 2014) (defendant supported his motion to suppress with his affidavit,
which contradicted officers' version of events; evidentiary hearing was held; when defendant
refused to testify, court refused to admit affidavit into evidence, such that "[n]one of the evidence
offered at the hearing supported the version of events presented in [defendant's] affidavit"); United
States v. Maldonado-Rivera, 922 F.2d 934, 972 (2d Cir. 1990) ("in support of his contention that
he had been coerced into making the statements," defendant relied upon affidavit of his attorney
and "unsworn and unsigned 'declaration[s]' by his wife and himself"; evidentiary hearing was held;
when defendant refused to testify, district court "properly declined to credit the attorney's affidavit
because it was not based on the attorney's personal knowledge and declined to credit the
'declaration[s]' because they were not sworn to or even signed").5

        In my view, the district court's discretion to strike or refuse to consider the defendant's
affidavit if he ultimately elects not to take the stand during the evidentiary hearing is more than
enough to combat the problem of "illusory" defense affidavits perceived by the district court. The
more drastic step of securing a pre-hearing commitment from the defendant that he will testify and
ordering him to do so at the outset of the hearing is overkill that, as far as I can tell, has no basis
in our law.

       So there we have it: Neither the only case cited by the panel opinion nor any other case
unearthed by the government or the panel supports what the district court did. As I see it, that
alone warrants reconsideration of this aspect of the panel opinion. But there's more cause for
concern.

         The district court recognized this concern, but it thought that deferring cross-examination
until after the government presented sufficient evidence of voluntariness was an adequate
safeguard. I disagree. Because the decision whether to testify at a suppression hearing is a weighty
one, it is imperative that a defendant not be forced to make that decision — in this context where
the government bears the burden of proof — before hearing the government's evidence on the issue
of voluntariness. The district court's approach, by contrast, would force defendants to commit to
testifying before hearing the government's evidence and even though that evidence might turn out
to be insufficient to carry the government's burden, in which case the defendant's testimony would
be unnecessary.
       5
          Indeed, until the panel opinion in this case, that's precisely how district courts within this
circuit have interpreted Baskin. See, e.g., United States v. Cabral, 965 F. Supp. 2d 161, 167-68
(D. Mass. 2013) (recognizing court's discretion under Baskin to strike affidavit if, during the
suppression hearing, defendant elects not to testify, but declining to exercise that discretion in the
circumstances); United States v. Ramos, 591 F. Supp. 2d 93, 113-14 (D. Mass. 2008) (same);
United States v. Sanchez, 535 F. Supp. 2d 216, 218, 224 n.8 (D. Mass. 2008) (same); cf. United
States v. Deleston, No. 15-cr-113(PKC), 2015 WL 4745252, at *5 (S.D.N.Y. July 24, 2015)
(noting that, in that jurisdiction, "a defendant is required to submit a sworn affidavit in order to
obtain a suppression hearing. Having served this purpose, the affidavit effectively drops from
sight, since it is rarely, if ever, considered by a judge in assessing the evidence at the suppression
hearing" and citing Baskin to support court's authority to strike affidavit if, during the evidentiary
hearing, the defendant refuses to testify (quoting United States v. Polanco, 37 F. Supp. 2d 262, 264
& n.4 (S.D.N.Y. 1999))).
                                                 -6-
                               III.    Conflating Distinct Burdens

         I'm persuaded by Phillipos's argument that the district court's take-it-or-leave-it proposition
— that, if Phillipos wanted an evidentiary hearing, he'd need to be the first witness to take the
stand — improperly shifted the burden of proof on the voluntariness inquiry. In my view, the
district court impermissibly conflated two distinct burdens: the initial burden to show the existence
of a factual dispute warranting an evidentiary hearing, which rests with a defendant, and the burden
of production at the evidentiary hearing, which rests with the government in the voluntariness
context. See 3 Wayne R. LaFave et al., Criminal Procedure § 10.1(b) (4th ed. 2016) [hereinafter
LaFave] (distinguishing the requirement that a defendant making a suppression motion "set out
facts in support of the motion" from the separate "question whether it is wise to impose upon the
defendant the initial burden of going forward with the evidence at the suppression hearing"). The
government's burden of proof on the voluntariness of the confession

       actually encompasses two separate burdens. One burden is that of producing
       evidence, sometimes called the "burden of evidence" or the "burden of going
       forward." . . . The other burden is the burden of persuasion, which becomes crucial
       only if the parties have sustained their respective burdens of producing evidence
       and only when all evidence has been introduced.

Id. § 10.3(a); see also id. § 10.3(c) ("When the issue at a suppression hearing is whether a
confession obtained from the defendant was voluntary, most jurisdictions place the burdens of
production and persuasion upon the prosecution." (footnote omitted) (emphasis added)).

         In this case, the district court ordered that Phillipos would testify first at the suppression
hearing. In doing so, it undeniably placed the burden of production — the burden of going forward
— on Phillipos. It explained that it would "put the [g]overnment to its proof" if and only if
Phillipos's testimony was "sufficient." Such an allocation of the burden of production may be
appropriate where the defendant bears the burden of proof on an issue. See id. § 10.3(a)
("[A]llocation of the burden of going forward may be of greater significance. . . . [I]f the defendant
has the burden of going forward he must often take the stand first and tell 'his side of the story.'").
But it is, in my view, inappropriate where, as here, the government bears the burden of proof.

       I am of the opinion that the district court's assignment of the burden of going forward to
the wrong party is an error of law and, therefore, constituted an abuse of discretion. See Phillipos,
849 F.3d at 468 ("[A]n error of law is always tantamount to an abuse of discretion." (quoting
Torres-Rivera v. O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008))).

        Perhaps as a fallback, the government notes — without extended discussion — that
"[f]ederal district judges enjoy broad discretion in respect to the ordering and presentation of proof
and the handling of evidentiary questions." (Quoting United States v. Holmquist, 36 F.3d 154,
163 (1st Cir. 1994).) That's true as far as it goes, but it doesn't take the government very far in this
case. While district courts undeniably possess discretion on order-of-proof determinations, that
discretion has limits: "a trial court's authority to regulate the order of proof does not include the
power to shift the burden of proof." Morales Feliciano v. Rullán, 378 F.3d 42, 57 (1st Cir. 2004).
The district court's impermissible shift of the burden of production from the government onto the

                                                 -7-
defendant therefore cannot be upheld as a permissible exercise of the discretion to regulate the
order of proof.6
                                      CONCLUSION

        The district court's refusal to hold an evidentiary hearing is supportable only if the court
properly declined to consider Phillipos's affidavit. But the decision to cast aside the affidavit was
improper, resting, as it did, on the court's mistaken view that the need to show a factual dispute to
obtain a hearing also required Phillipos's pre-hearing commitment to testify. This conclusion was
not just entirely unsupported by our case law, but it also improperly conflated two distinct burdens.
This error of law amounts to an abuse of discretion.7

         But the damage done by the panel opinion is not limited to Phillipos's case. Instead, any
time a defendant moves to suppress his or her confession, a district court within this circuit can
insist that, if the only basis for a factual dispute is the defendant's affidavit disputing the officer's
version of events (as it most always will be in the confession context), the defendant make a pre-
hearing commitment to testify as a condition for holding the hearing. The result, I fear, will be
that defendants will often be deprived of evidentiary hearings on the voluntariness of their
confessions, even though the admission of an involuntary confession is a clear-cut violation of due
process, see Jackson v. Denno, 378 U.S. 368, 376 (1964), and even though there's no basis in our
law (other than the panel opinion in this case, that is) for insisting that the defendant commit to
testifying at an evidentiary hearing on a motion to suppress a confession. Therefore, in my view,
this case presents "a question of exceptional importance" that calls for rehearing en banc. Fed. R.
App. P. 35(a)(2). I respectfully dissent from my colleagues' decision to the contrary.



        6
          Our decision in Morales Feliciano is not to the contrary. In that case, which arose in the
very different context of an evidentiary hearing on a motion to terminate prospective relief under
the Prison Litigation Reform Act, we discerned no abuse of discretion in the district court's
decision to order one party to present his proof first because the court already "had before it a full
evidentiary record, developed over many years, together with a cache of periodic reports as to
progress under the consent decree," and "[t]his plethoric evidence was sufficient, if unrebutted, to
support a finding that constitutional violations endured." 378 F.3d at 57. "With this in mind," we
reasoned, "it was sensible for the court to invite the Secretary to offer evidence to the contrary."
Id. To cinch matters, "[i]n its subsequent review of the evidence, the court said nothing that
indicated any misunderstanding as to where the burden of proof rested." Id.
        In this case, by contrast, the government had not yet presented the district court with any
evidence to satisfy its burden of proving that Phillipos's confession was voluntary, and what the
district court did — conditioning the decision to hold an evidentiary hearing on Phillipos's
acceptance of the government's burden of production and his pre-hearing commitment to testify
— improperly shifted the burden from the government to Phillipos.
        7
          An erroneous refusal to hold an evidentiary hearing on a suppression motion can warrant
reversal of a defendant's conviction. See, e.g., D'Andrea, 648 F.3d at 3, 14-15 & n.18 (vacating
defendants' convictions for failure to hold an evidentiary hearing on the suppression motions); cf.
United States v. Burger, 739 F.2d 805, 808-09 (2d Cir. 1984) (vacating defendant's conviction
where, although evidentiary hearing was held, district court "improperly placed the burden of
proving involuntariness and the lack of a valid [Miranda] waiver on the defendant").
                                                  -8-
                                                     By the Court:
                                                     /s/ Margaret Carter, Clerk

cc:
Hon. Douglas P. Woodlock
Robert Farrell, Clerk, United States District Court for the District of Massachusetts
Derege B. Demissie
Susan Brooks Church
Robel Kidane Phillipos
John A. Capin
Dina Michael Chaitowitz
B. Stephanie Siegmann
Randall Ernest Kromm
Jonathan M. Albano
John H. Cunha Jr.
Daniel Volchok
John Reinstein
Nancy Gertner




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