10-952-cv (L)
Hargroves v. City of New York

                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this
Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party
must cite either the Federal Appendix or an electronic database (with the notation “summary order”).
A party citing a summary order must serve a copy of it on any party not represented by counsel.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of February, two thousand eleven.

PRESENT:

         JOSÉ A. CABRANES,
         DENNY CHIN,
                Circuit Judges,
         JOHN F. KEENAN,
                Judge.*


-------------------------------------------x

TYREE HARGROVES, LAVAR HARGROVES, and DAVID ALLEN,

                           Plaintiffs-Appellees,

BRANDON HARGROVES and KENNETH WRIGHT,

                           Plaintiffs,

                                             v.                  Nos. 10-952-cv (L), 10-961 (Con),
                                                                      10-1003 (Con) 10-1009(Con)

CITY OF NEW YORK, BARRY CULPEPPER, Officer, and
JOSEPH LIOTTA, Officer,

                           Defendants-Appellants,


         *
           The Honorable John F. Keenan, of the United States Court for the Southern District of New York, sitting by
designation.

                                                          1
JOHN WARNER and VARIOUS “JOHN DOE” OFFICERS,

                               Defendants.


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FOR APPELLANTS:                                     MORDECAI NEWMAN, Assistant Corporation Counsel
                                                    (Michael A. Cardozo, Corporation Counsel, on the brief, and
                                                    Larry A. Sonnenshein, of counsel), City of New York, New
                                                    York, NY.

FOR APPELLEES:                                      MICHAEL B. LUMER (Steven M. Weiner, of counsel), Reibman
                                                    & Weiner, Brooklyn, NY, for appellees Tyree Hargroves and
                                                    Lavar Hargroves.

                                                    Michael R. Scolnick, Airmont, NY, for appellee David Allen.

       Appeal from a March 4, 2010 order entered in the United States District Court for the
Eastern District of New York (Roslynn R. Mauskopf, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be REVERSED.

        Defendants-Appellants, City of New York, Barry Culpepper, and John Liotta (jointly,
“defendants”), bring this interlocutory appeal following the entry of an order denying their motion
for summary judgment. The principal issue before us is whether defendants are entitled to qualified
immunity from plaintiffs-appellees’ (“plaintiffs”) claims of false arrest, false imprisonment, racial
profiling, and malicious prosecution.

I.        Background

        On March 20, 1998, at approximately 11:30 p.m., a Chinese food delivery man, Zhi Wu, was
attacked and robbed near 100-41 196th Street in Queens, New York. The assailants hit, punched,
and kicked Wu, stealing his cash and food before fleeing the scene. Approximately half an hour
later, Wu was interviewed by Officers Culpepper and Liotta at the crime site. Wu informed these
policemen that he was attacked by a large group of black males, one of whom was wearing an orange
jacket. According to Officer Culpepper, Wu expressed confidence that he could identify his
attackers if he saw any of them again.

         At this point, Culpepper and Liotta returned to their vehicle to begin searching the
neighborhood for possible suspects. According to Liotta, the officers were initially only looking for
a large group of black males, but later received a message that one of the suspects was wearing an

                                                                   2
“orange and black jacket.” For his part, Culpepper explained that he was looking for someone
wearing “something like an orange coat.” Culpepper testified, also, that during the search, he
received a report that one of the suspects was armed with a gun.

         Approximately ten minutes after first beginning the search, Culpepper noticed a large group
of young, black males walking in a long, staggered line down Jamaica Avenue, several blocks from
the site of the attack. Culpepper and Liotta pulled over in front of the group, stopped them, and
called for backup.

       As the District Court observed:
       It is here that the accounts of Defendants and Plaintiffs diverge significantly. Culpepper
       claimed that he stopped the group of black males because “they were close to the scene of
       the crime, the time of night, the fact that the males were the only persons that Culpepper
       observed during the canvass, the fact that one of the males wore a jacket matching the
       description provided to him by Wu and what he heard over the radio run, the age of the
       males and the fact that they were black.” Culpepper also claims that he saw that one of the
       persons in the group, whom he later identified as Lavar Hargroves, was wearing what he
       described as “like an orange jacket” or “a jacket with some orange on it” or a “red orange
       jacket.” Liotta claimed that he observed one of the individuals wearing a black and orange
       jacket. Plaintiffs, on the other hand, argue that the evidence establishes that no member of
       their group was wearing anything that could be termed an orange jacket, whether orange or
       black and orange. They claim that the only possible reason Culpepper and Liotta had for
       stopping them was because they were male and black.

Hargroves v. City of New York, 694 F. Supp. 2d 198, 204 (E.D.N.Y. 2010) (citations omitted).

         The parties also sharply disagree about critical details of the identification procedure
subsequently orchestrated by Culpepper and Liotta. Culpepper arranged to have Wu brought to the
street location where the suspects were being detained. Wu was seated in the back of a patrol car.
According to defendants, each member of the group—eleven people in all—was individually
presented to Wu for identification. Wu then positively identified seven of the eleven individuals as
having attacked him earlier in the evening. Plaintiffs, on the other hand, maintain that only the
seven individuals eventually identified as attackers were ever presented during this “show-up”
procedure. Hargroves, 694 F. Supp. 2d at 204. Furthermore, plaintiffs note that Culpepper and
Liotta failed to take any contemporaneous notes of the show-up procedure, so it is difficult to know
details such as the order, distance, and appearance of the detainees as presented to Wu. For
instance, in a 2007 deposition, Culpepper could not recall the average distance between Wu and the
detainees—whom Wu had to examine through the front windshield of the squad car—but this
distance had been approximated earlier as being roughly 20 feet.

       Finally, there is conflicting evidence regarding Wu’s physical condition during the show-up
procedure. Plaintiffs point to testimony in the record that Wu’s “face was all battered up like
somebody kicked him,” as well as Wu’s own testimony that his eyes were bloodied and swollen and
                                                   3
his eyeglasses were damaged during the attack earlier in the evening. In turn, defendants insist that
Wu had no difficulty in identifying his assailants.

         The seven individuals indentified by Wu—Tyree Hargroves, Lavar Hargroves, Brandon
Hargroves, Kenneth Wright, David Allen, Lawrence Strickland, and Delroy Ridley—were arrested
on site and taken to Central Booking on the basis of Wu’s identification. No gun was recovered
from any of the suspects, nor were any of the stolen items found. The seven men were all
subsequently indicted on two counts of robbery in the first degree, robbery in the second degree,
assault in the first degree, gang assault in the first degree, gang assault in the second degree, and
criminal possession of a weapon in the second degree. On May 23, 2000, a Queens County jury
convicted all seven of the criminal defendants on various counts of the indictment. On July 29,
2002, the Appellate Division, Second Department, reversed the conviction of Brandon Hargroves
on the grounds that Culpepper and Liotta lacked reasonable suspicion to detain him. In relevant
part, that court explained:
         Even if the jacket worn by one member of the group that included the defendant can be
         considered orange rather than red and blue, this general description was not sufficient to
         permit the police to detain and then exhibit the defendant, among others, to the
         complainant. We further note that the group was walking towards the crime scene and did
         not flee when stopped by the police. Thus, the police lacked reasonable suspicion to stop
         and detain the defendant and the hearing court should have granted that branch of the
         omnibus motion which was to suppress the identification testimony.

People v. Hargroves, 745 N.Y.S.2d 579, 579-80 (App. Div. 2d Dep’t 2002). The other six convictions
were later overturned by the Second Department on the basis of this decision.

        In 2003, after being released from prison, five of the seven former criminal
defendants—Tyree Hargroves, Lavar Hargroves, Brandon Hargroves, Kenneth Wright, and David
Allen1—commenced the instant actions (which were consolidated below) against defendants alleging
violations of 42 U.S.C. § 1983 for false arrest, false imprisonment, racial profiling, and malicious
prosecution.2 The District Court denied defendants’ motion for summary judgment—on the basis
of qualified immunity—on these claims, and this interlocutory appeal followed.

II.      Discussion

        “The denial of summary judgment is ordinarily an interlocutory decision, not a ‘final
decision’ appealable under 28 U.S.C. § 1291.” Marshall v. Sullivan, 105 F.3d 47, 53 (2d Cir. 1996).


         1
         Following the District Court’s denial of defendants’ motion for summary judgment, Brandon Hargroves and
Kenneth Wright accepted an Offer of Judgment pursuant to Fed. R. Civ. P. 68.

         2
           David Allen initially brought a handful of other claims, but these have since been dismissed. Hargroves v. City
of New York, 694 F. Supp. 2d at 219.
                                                             4
“When a court denies a motion for summary judgment based on a denial of qualified immunity,
however, that determination is appealable under the collateral order doctrine when it is a legal
conclusion made with reference only to undisputed facts.” Caldarola v. Calabrese, 298 F.3d 156, 161
(2d Cir. 2002) (citing Johnson v. Jones, 515 U.S. 304, 313 (1995)). But when a denial of qualified
immunity at the summary judgment stage is predicated on an underlying factual dispute, we lack
jurisdiction to consider the matter under the collateral order doctrine. Behrens v. Pelletier, 516 U.S.
299, 313 (1996); Caldarola, 298 F.3d at 161. We can, however, review the District Court’s legal
conclusions de novo so long as we construe all factual disputes identified by the court below in favor
of the plaintiffs. Caiozzo v. Koreman, 581 F.3d 63, 68 (2d Cir. 2009).

         (1) – False Arrest, False Imprisonment, and Racial Profiling

         Defendants Culpepper and Liotta (jointly, the “officers”) assert that they are entitled to
qualified immunity on plaintiffs’ § 1983 claims of false arrest, false imprisonment, and racial
profiling.3 Probable cause “is a complete defense to an action for false arrest.” Weyant v. Okst, 101
F.3d 845, 852 (2d Cir. 1996). “Under federal law, a police officer is entitled to qualified immunity
where ‘(1) his conduct does not violate clearly established statutory or constitutional rights of which
a reasonable person would have known, or (2) it was ‘objectively reasonable’ for him to believe that
his actions were lawful at the time of the challenged act.’” Jenkins v. City of New York, 478 F.3d 76, 87
(2d Cir. 2007) (quoting Cerrone v. Brown, 246 F.3d 194, 199 (2d Cir. 2001)). “Ordinarily, determining
whether official conduct was objectively reasonable require[s] examination of the information
possessed by the officials at that time (without consideration of subjective intent).” Conn. ex rel.
Blumenthal v. Crotty, 346 F.3d 84, 106 (2d Cir. 2003) (quotation marks omitted).

         There is no dispute that the right to be free from arrest without probable cause was clearly
established as of March 20, 1998. Plaintiffs’ false arrest claims thus turn on whether the officers
acted with probable cause, or, alternatively, whether their probable cause determination was at least
objectively reasonable—“[a]n officer’s determination is objectively reasonable if there was ‘arguable’
probable cause at the time of arrest—that is, if ‘officers of reasonable competence could disagree on
whether the probable cause test was met.’” Jenkins, 478 F.3d at 87 (quoting Lennon v. Miller, 66 F.3d
416, 423-24 (2d Cir. 1995)). “[T]he Supreme Court has observed that qualified immunity protects
‘all but the plainly incompetent or those who knowingly violate the law.’” Walczyk v. Rio, 496 F.3d
139, 154 (2d Cir. 2007) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

        The District Court began its analysis of this issue by correctly explaining probable cause as
follows:



         3
          False arrest “is a species of false imprisonment,” so both claims are subject to the same legal analysis for
purposes of this order. Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 118 (2d Cir. 1995).
                                                             5
         There is probable cause if “the arresting officer [has] knowledge or reasonably trustworthy
         information sufficient to warrant a person of reasonable caution in the belief that an offense
         has been committed by the person to be arrested.” Martinez v. Simonetti, 202 F.3d 625, 634
         (2d Cir. 2000) (internal quotations omitted). In addition, “it is well-established that a law
         enforcement official has probable cause to arrest if he received his information from some
         person, normally the putative victim or eyewitness.” Id. (internal quotations omitted).
         “When determining whether probable cause exists courts must consider those facts available
         to the officer at the time of the arrest and immediately before it, as probable cause does not
         require absolute certainty.” Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (internal
         quotations and citations omitted). Moreover, “[a]n arresting officer advised of a crime by a
         person who claims to be the victim, and who has signed a complaint or information charging
         someone with the crime, has probable cause to effect an arrest absent circumstances that
         raise doubts as to the victim’s veracity.” Singer [v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d
         Cir. 1995].

Hargroves v. City of New York, 694 F. Supp. 2d at 207-08.

         The Arrest

         Plaintiffs were arrested after Wu identified each of them during the show-up procedure.
Ordinarily, the identification, by an eyewitness, of a suspect will likely be sufficient to establish
probable cause for an arrest. See Russo v. City of Bridgeport, 479 F.3d 196, 199, 204 (2d Cir. 2007).
However, “the existence of probable cause is to be determined on the basis of the totality of the
circumstances,” Kent v. Katz, 312 F.3d 568, 576 (2d Cir. 2002), through an inquiry into whether the
facts known by the arresting officer at the time of the arrest objectively provided probable cause or
arguable probable cause to arrest. Devenpeck v. Alford, 543 U.S. 146, 153 (2004). Here, the District
Court found that a genuine dispute existed between the parties as to the condition of Wu’s
face—particularly his eyes and eyeglasses—during the show-up procedure, as well as the distance
between Wu and the plaintiffs during the identification process. See Hargroves v. City of New York, 694
F. Supp. 2d at 209. Additionally, the parties disagree “as to whether each member of the group was
presented to Wu or whether only the seven individuals eventually identified as attackers were
presented.”4 Id. at 204. Assuming that Wu’s face was obviously battered to a significant extent and
that Wu promptly identified all of the suspects that were presented to him at a distance of up to 40
feet, the District Court was unwilling to hold that it was objectively reasonable for the officers to
conclude that such an identification constituted probable cause to arrest the plaintiffs. We disagree.

       The record indicates that at their initial meeting shortly after the robbery took place, Wu
informed the officers that he could identify the assailants if given that opportunity. More
importantly, Wu has subsequently given uncontroverted testimony that, during the show-up



         4
           If all eleven detained persons were presented to Wu, it would bolster the officers’ position that Wu was
arguably able to provide credible identifications.
                                                            6
procedure itself, he assured the officers that he was capable of identifying the individuals involved in
the robbery. It may well be the case that, given the extent of his facial injuries and the trauma he
had recently experienced, Wu’s self-confidence was misplaced. Nevertheless, in light of the facts
contained in the record, we have no trouble concluding that it was objectively reasonable for
Culpepper and Liotta to credit Wu’s identifications. By his own testimony, buttressed by that of the
officers, Wu made his identifications without reservation: at no point did he indicate to the officers
that he was having trouble with his eyesight. We cannot say that the physical infirmities alleged by
plaintiffs—the swollen face, a burst blood vessel in one eye, and damaged glasses—necessarily
precluded a reasonable officer from accepting Wu’s assurances that he had reliably identified his
attackers. Importantly, there is no evidence in the record that Wu’s conduct prior to and during the
show-up suggested any traces of blurred vision, or that his facial injuries required urgent medical
care. In considering the totality of the circumstances confronting the officers at the time, we
conclude that Culpepper and Liotta did not behave unreasonably in accepting Wu’s identifications,
even if the show-up procedure (as described by plaintiffs) used to produce the identifications in
question could have been structured more formally in light of Wu’s injuries. While the officers may
not have made sufficient allowance for Wu’s potential physical impairments, we cannot say that
Culpepper and Liotta acted incompetently or in knowing violation of the law in believing that they
had probable cause to arrest the plaintiffs once they had been visually identified by the victim.

         The Initial Detention

          We also hold that the District Court erred in denying the officers qualified immunity for any
liability relating to the initial stop.5 Plaintiffs allege that they were detained solely because they were
a large group of black males walking in the general area of the crime scene. In support of this
contention, they draw our attention to a variety of evidence in the record. For instance, Culpepper
acknowledged that Wu provided him with only “a vague description” of his assailants, and did not
offer any physical descriptions beyond their race and sex.

        Then there is the matter of the “orange jacket.” As the District Court observed, the parties
agree that, based on Wu’s early account, the officers had reason to believe that at least one of the
assailants was wearing some sort of orange jacket. Hargroves v. City of New York, 694 F. Supp. 2d at
208-09. But the record is unclear as to exactly what kind of jacket the officers were looking for.
Culpepper stated that he was looking for someone in an “orange jacket,” but could not recall
whether he was then under the impression that that meant the jacket was entirely orange, mostly




         5
            The “fruit of the poisonous tree” doctrine does not apply to civil actions brought under § 1983, see Townes v.
City of New York, 176 F.3d 138, 145 (2d Cir. 1999); therefore, we may analyze the initial stop independently of Wu’s
subsequent identifications.

                                                             7
orange, or just partially orange. For his part, Liotta testified that he was on the alert for a black male
wearing an “orange and black jacket.”

         In explaining his initial decision to detain the group of black males in question, Culpepper
testified that “the group stood out because that particular night that they were the only individuals
out on the street corner that particular night, and that one person [subsequently identified as Lavar
Hargroves] did have like an orange jacket on.” But plaintiffs vigorously deny that Lavar
Hargroves—or any of his compatriots—was wearing an orange coat on the night of March 20, 1998.

         Due to the procedural posture of this interlocutory appeal, we need not—indeed, we
cannot—inquire as to whether this purported factual dispute over the true color of Lavar
Hargroves’s jacket is actually “genuine.” Holeman v. City of New London, 425 F.3d 184, 189 (2d Cir.
2005) (“For factual matters, we review ‘whether a given factual dispute is ‘material’ for summary
judgment purposes, . . . but we may not review whether a dispute of fact identified by the district
court is ‘genuine.’” (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004))). The District Court
specifically identified the color of Lavar Hargroves’s jacket to be one of genuine dispute between the
parties, Hargroves v. City of New York, 694 F. Supp. 2d at 209, and so we do not review, much less
dispute, that finding.

        We are mindful that “[o]fficers may, in certain circumstances, base probable cause on a
victim’s description of [his] assailant [, but] [i]t has long been established . . . that when that
description could have applied to any number of persons and does not single out the person
arrested, probable cause does not exist.” Jenkins, 478 F.3d at 90. Culpepper and Liotta
acknowledged that they conducted their search looking only for a large group of black males, at least
one of whom was wearing an orange coat of some kind. The officers insist that even if Lavar
Hargroves was not wearing an orange jacket, they should still be entitled to qualified immunity
because a reasonable officer could easily have mistaken Lavar Hargroves’s red and blue jacket as
being orange and black, particularly at night. We agree.

        Plaintiffs themselves concede that Lavar Hargroves was wearing a red and blue jacket at the
time of his arrest. Additionally, the jacket included “what appears to be a reflective, lighter red inner
lining.” Hargroves v. City of New York, 694 F. Supp. 2d at 205. For purposes of qualified immunity
analysis, we need only consider whether it was “objectively reasonable” for the officers to believe, in
the circumstances presented, that they had the legal authority to detain the plaintiffs. Thus, the
District Court’s focus on the actual color of Lavar Hargroves’s jacket was, in our view, misplaced.
Instead, we must decide whether an officer of reasonable competence could properly have believed
that Lavar Hargroves (and the rest of his group) matched the description provided by Wu, even if
the description of Hargroves’s jacket was not precisely accurate.



                                                    8
         In light of the record regarding the jacket at issue here, it was not unreasonable for the
officers to think that plaintiffs matched the description provided by Wu. Again, Wu told the officers
that he had been attacked by a large group of black men, at least one of whom was wearing an
orange jacket of some kind. Shortly after the attack, Culpepper and Liotta spotted a large group of
black men just a few blocks from where the robbery took place. One member of the group was
wearing a bright jacket of some kind that could reasonably—if, albeit mistakenly—be perceived as
being a shade of orange. Given the totality of the circumstances—including the age, race, and
gender of the members of the group, the size of the group, the temporal and geographic proximity
to the crime scene, and the absence of any other large groups in the area—we hold that, even as
viewed in the light most favorable to plaintiffs, the record in this case establishes that the officers
acted reasonably (that is, not incompetently or in knowing violation of the law) in their initial stop of
plaintiffs and the ensuing “show-up” with the victim.6

         (2) – Malicious Prosecution

        Defendants also challenge the District Court’s ruling that the officers were not entitled to
qualified immunity on plaintiffs’ malicious prosecution claims. “To establish a malicious
prosecution claim under New York law, a plaintiff must prove ‘(1) the initiation or continuation of a
criminal proceeding against plaintiff; (2) termination of the proceeding in plaintiff’s favor; (3) lack of
probable cause for commencing the proceeding; and (4) actual malice as a motivation for
defendant’s actions.’” Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010) (quoting
Murphy v. Lynn, 118 F.3d 938, 944 (2d Cir. 1997).

         “‘[T]he existence of probable cause is a complete defense to a claim of malicious prosecution
in New York,’ and ‘indictment by a grand jury creates a presumption of probable cause[.]’ That
presumption may be rebutted only ‘by evidence that the indictment was procured by fraud, perjury,
the suppression of evidence or other police conduct undertaken in bad faith.’” Id. 161-62 (quoting
Savino v. City of New York, 331 F.3d 63, 72 (2d Cir. 2003)) (citations omitted). In considering this
question, the District Court stated: “The key issue is whether Culpepper and Liotta lied to the
prosecutors or the judge about what colors were on the Plaintiffs’ jackets when they were arrested.
Looking at the record as a whole, it is quite clear that a genuine issue of material fact remains


         6
            We take this opportunity to point out one error made by the District Court, albeit in dicta, in its analysis of the
probable cause issue. After explaining why the dispute over the color of the jacket was genuine and material, the District
Court stated: “In addition, the decision of the Second Department establishes that even if Lavar Hargroves’ jacket was,
in fact, orange, and not blue and red, Defendants still lacked reasonable suspicion to detain Plaintiffs or to present them
to Wu for identification.” Hargroves v. City of New York, 694 F. Supp. 2d at 209. The District Court erred in its view that
the determinations made by the Second Department in plaintiffs’ criminal proceedings are entitled to preclusive effect in
the instant case. We have held that, under New York law, police officers are not in privity with the State, and thus
cannot be bound by the doctrine of collateral estoppel insofar as earlier criminal proceedings are at issue. See Jenkins, 478
F.3d at 85.


                                                              9
unresolved—namely what colors the jackets were.” Hargroves v. City of New York, 694 F. Supp. 2d at
215. But, as explained above, even if Lavar Hargroves’s jacket was red and blue—as plaintiffs
assert—it would be easy for a reasonable officer to have mistaken red for orange. Such a mistake
alone is not enough to suggest, much less show, that defendants “lied” to the prosecutors or the
judge about what they saw. We find no other evidence in the record supporting plaintiffs’ claim that
the officers knowingly misled the prosecutor and the trial judge. Indeed, it was Culpepper who took
the photographs of the plaintiffs on the night of the arrest that establish, according to the plaintiffs,
that Lavar Hargroves was not wearing an orange jacket on the night of his arrest. These
photographs were never hidden from the prosecutor’s office. While Culpepper and Liotta may have
provided incorrect information about what they observed on the night of March 20, 1998, the
record provides no basis for concluding that either officer knowingly gave false testimony or
otherwise acted in bad faith. Accordingly, plaintiffs’ claims of malicious prosecution must fail.

III.    Conclusion

        For the foregoing reasons, the judgment of the District Court is REVERSED. Judgment
for defendants shall enter on the basis of qualified immunity on all of plaintiffs’ claims.


                                                FOR THE COURT,
                                                Catherine O’Hagan Wolfe, Clerk of Court




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