                                In the
    United States Court of Appeals
                 For the Seventh Circuit
                            ____________

No. 05-4718
UNITED STATES OF AMERICA,
                                                      Plaintiff-Appellee,
                                    v.

TONY LAPI,
                                                  Defendant-Appellant.
                            ____________
               Appeal from the United States District Court
          for the Northern District of Illinois, Eastern Division.
                 No. 02 CR 607—John W. Darrah, Judge.
                            ____________
         ARGUED JUNE 9, 2006—DECIDED JUNE 12, 20061
            OPINION PUBLISHED AUGUST 15, 2006
                            ____________


    Before RIPPLE, MANION and SYKES, Circuit Judges.
 RIPPLE, Circuit Judge. In July 2002, Tony Lapi was charged
with one count of bank robbery. See 18 U.S.C. § 2113(a). He


1
  In an order issued June 12, 2006, we held that the United States
District Court for the Northern District of Illinois exceeded its
statutory authority in scheduling a dangerousness hearing under
18 U.S.C. § 4246(a). We ordered the district court to take all steps
necessary to effect the immediate release of Mr. Lapi from federal
custody. See United States v. Lapi, No. 05-4718 (7th Cir. June 12,
2006).
2                                                   No. 05-4718

was found not competent to stand trial by the United States
District Court for the Northern District of Illinois and was
committed to the custody of the Attorney General; the
location of his civil commitment was the Federal Medical
Center (“FMC”) in Rochester, Minnesota. After approxi-
mately eight months at the FMC, the district court deter-
mined that Mr. Lapi would not “attain the capacity to
permit the trial to proceed,” 18 U.S.C. § 4241(d)(2), and he
was transferred to the custody of a state mental health
facility in Elgin, Illinois. This facility released Mr. Lapi after
thirty days.
   In May 2005, although no valid Certificate of Mental
Disease or Defect and Dangerousness had been filed with
the court by the director of the facility at which Mr. Lapi
was hospitalized, as required by 18 U.S.C. § 4246(a), the
district court ordered that a dangerousness hearing be
conducted to assess whether Mr. Lapi posed a “substan-
tial risk of bodily injury to another person or serious
damage to property of another.” 18 U.S.C. § 4246(a). The
district court then determined, without holding this hearing,
that Mr. Lapi posed a risk of danger to persons or property
and ordered him “committed to the custody of the United
States Attorney General.” R.81 at 4. Mr. Lapi appealed; we
reversed and remanded with the instruction that the district
court abide by the procedures set forth in 18 U.S.C. §§ 4246
and 4247, while reserving judgment on whether a § 4246
dangerousness hearing was authorized in this case. See
United States v. Lapi, No. 05-4328 (7th Cir. Dec. 8, 2005).
  On remand, the district court interpreted our order as
mandating a dangerousness hearing under § 4246 and
ordered that such a hearing be held. Mr. Lapi timely filed
his second appeal. For the reasons set forth in the follow-
ing opinion, we reverse the judgment of the district court.
No. 05-4718                                                  3

                              I
                     BACKGROUND
A. Section 4241 Proceedings
  In July 2002, a grand jury sitting in the Northern District
of Illinois returned a one-count indictment charging Tony
Lapi with bank robbery. See 18 U.S.C. § 2113(a). On August
1, 2002, defense counsel filed a motion requesting an ex-
pert evaluation for the purpose of determining whether Mr.
Lapi was competent to stand trial. The district court granted
this motion and, pursuant to 18 U.S.C. § 4241(a), remanded
Mr. Lapi to the custody of the Attorney General of the
United States for a competency evaluation. Mr. Lapi
subsequently was transferred to the FMC in Rochester,
Minnesota.
  After a thirty-day commitment, Mr. Lapi’s treating
psychiatrist at the FMC, Dr. Kelly Ball, expressed the
opinion that Mr. Lapi was suffering from “schizoaffective
disorder, a severe and chronic psychotic illness that requires
psychiatric intervention,” and that, as a result, he was “unfit
to proceed with the adjudication process.” R.18 at 2 (sum-
marizing Dr. Ball’s findings). On the basis of Dr. Ball’s
evaluation, the district court found Mr. Lapi mentally
incompetent to stand trial under 18 U.S.C. § 4241(d). He was
civilly committed to the FMC for a period not to exceed four
months. See id.; see also 18 U.S.C. § 4241(d)(1) (mandating
that, upon finding a defendant incompetent, he should be
hospitalized by the Attorney General “for such a reasonable
period of time, not to exceed four months, as is necessary to
determine whether there is a substantial probability that in
the foreseeable future he will attain the capacity to permit
the trial to proceed”). At the end of this four-month period,
Dr. Ball recommended a 120-day extension of Mr. Lapi’s
4                                                    No. 05-4718

commitment, opining that, “with further treatment, there is
a substantial probability in the foreseeable future that
[Mr. Lapi] could attain the capacity to proceed with this
case.” R.22 at 2 (summarizing Dr. Ball’s recommendation).
The Illinois district court granted this request on March 13,
2003. See id.; see also 18 U.S.C. § 4241(d)(2) (permitting
hospitalization “for an additional reasonable period of
time . . . if the court finds that there is a substantial probabil-
ity that within such additional period of time he will attain
the capacity to permit the trial to proceed”).
  At the end of the additional 120-day period, Dr. Ball
confirmed her earlier diagnosis that Mr. Lapi suffered
from schizoaffective disorder and expressed the opinion
that there was not a substantial probability that Mr. Lapi
would be restored to competency in the foreseeable future.
The district court therefore ordered that Mr. Lapi should
remain in the custody of the Attorney General of the United
States pending resolution of proceedings under 18 U.S.C.
§ 4246 in the District Court of Minnesota. See R.27 at 2; see
also id. § 4241(d) (providing that, upon a finding of non-
restorability, a defendant becomes “subject to the provisions
of section 4246”).


B. Section 4246 and Related Proceedings
  Section 4246 requires that, upon the expiration of a
defendant’s commitment under 18 U.S.C. § 4241, the
director of the facility in which the defendant is hospitalized
shall file a Certificate of Mental Disease or Defect and
Dangerousness with the district court in “the district in
which the person is confined” if the following two require-
ments are met:
No. 05-4718                                                   5

      [(a)] [the defendant] is presently suffering from a mental
      disease or defect as a result of which his release would
      create a substantial risk of bodily injury to another
      person or serious damage to property of another, and
      [(b)] . . . suitable arrangements for State custody and
      care of the person are not available.
Id. § 4246(a). Upon the filing of this certificate, the statute
provides that the court “shall order a hearing” to assess the
defendant’s dangerousness. Id.
   On July 17, 2003, believing Mr. Lapi to be suffering from a
mental disease that created a “substantial risk of bodily
injury” or property damage and not yet having found
“suitable arrangements for State custody,” the FMC warden
filed a Certificate of Mental Disease or Defect and Danger-
ousness in the District Court for the District of Minnesota,
“the district in which [Mr. Lapi was] confined” at that time.
Id. This petition, however, was withdrawn by the Govern-
ment when Mr. Lapi was accepted for placement at the
Elgin Mental Health Center in his home state of Illinois. He
was transferred to this facility in October 2003. The Elgin
Mental Health Center, however, released Mr. Lapi after
approximately thirty days, having determined that he no
longer required hospitalization. He was transferred to a
group living facility and then to a nursing home.
  In May 2004, the Government filed a motion in the
Northern District of Illinois requesting a second competency
evaluation. The district court denied this motion on Septem-
ber 15, 2004, holding that it did not have the statutory
authority to reassess Mr. Lapi’s competency to stand trial.2


2
    The Government subsequently filed a motion for reconsidera-
                                                 (continued...)
6                                                     No. 05-4718

However, the district court ordered Mr. Lapi, who it
classified as a “fugitive” because “he was released without
any bond ever being set,” to appear in court. R.92-16 at 2.
Upon appearing, the district court committed Mr. Lapi to
the custody of the United States Marshal Service; he was
released on a $4,500 recognizance bond.
  On February 1, 2005, the Government filed a motion to
dismiss Mr. Lapi’s indictment. On March 11, 2005, the
defense also filed a motion to dismiss. The district court
denied the defendant’s motion, but has yet to address
the motion to dismiss filed by the Government.3
  On May 9, 2005, in the absence of a motion by the Govern-
ment or the defendant, the Illinois district court ordered that
a § 4246 hearing be held to determine whether Mr. Lapi
posed a “substantial risk of bodily injury to another person
or serious damage to property of another.” 18 U.S.C.
§ 4246(a). It held that the District Court for the District of
Minnesota erred in failing to hold a § 4246 hearing once the
FMC Warden filed a Certificate of Dangerousness with that
court:
    In the instant case, a Certificate of Mental Disease or
    Defect and Dangerousness was filed in the United States



2
   (...continued)
tion of the court’s denial of the motion for a second competency
evaluation. The district court denied this motion as well. The
Government has not challenged this ruling on appeal.
3
  At oral argument, counsel for the Government indicated that
the Government has not pursued its motion to dismiss because
the district court indicated a willingness to reconsider its earlier
ruling on the Government’s motion for a second competency
hearing.
No. 05-4718                                                 7

    District Court for the District of Minnesota . . . . [A]
    hearing was required to determine whether Lapi was
    then suffering from a mental disease or defect . . . .
    [C]ontrary to the requirements of Section 4246(a),
    a hearing was not held to determine whether Lapi
    was then suffering from a mental disease . . . . Instead,
    he was transferred to a facility in Elgin, Illinois; and
    Lapi was released to that facility. However, Section 4246
    does not provide for the release of the defendant after
    the certificate has been filed until a hearing is held and
    it is determined if the defendant’s release would create
    a substantial risk of bodily injury to another or serious
    damage to the property of another.
R.71 at 5-6.
  In October 2005, although the § 4246 hearing had neither
been scheduled nor conducted, the Illinois district court
entered a finding of dangerousness and ordered that
Mr. Lapi be taken into the custody of the Attorney General.
Mr. Lapi subsequently was arrested and detained.4
  Mr. Lapi appealed his detention to this court and filed
an Emergency Motion for Release in a Criminal Case. We
denied the emergency motion, but “vacate[d] the district
court’s order, entered October 28, 2005, and remand[ed]
for further proceedings consistent with 18 U.S.C. § 4246 and
4247.” We “reserve[d] the question of whether a second
hearing [was] appropriate.” United States v. Lapi, No. 05-
4328 (7th Cir. Dec. 8, 2005).
  On remand, the district court held a status hearing,
dated December 15, 2005, at which it indicated its intent


4
 Since this date, Mr. Lapi has been incarcerated at the Jerome
Combs Detention Center in Kankakee, Illinois.
8                                                   No. 05-4718

to schedule a § 4246 hearing. Defense counsel objected;
she submitted that a § 4246 hearing was not authorized
by statute or by our prior order in this case. See Appel-
lant’s App. at 41 (noting that this court did not “order[]
a second dangerousness hearing” but rather reserved
the question of whether such a hearing was appropriate).
The district court disagreed:
    [T]he error was committed by the Federal Court in
    Minnesota in failing to conduct a [§] 4246 hearing and
    instead simply transferred custody of Mr. Lapi to the
    mental health facility in Elgin, Illinois. And I still believe
    a [§] 4246 hearing is appropriate. And the Seventh
    Circuit concurs. . . . [The Elgin facility was] required to
    consult the Federal District Court before they released
    him.
Id. at 35. The district court scheduled the § 4246 hearing
for March 9, 2006.5
  Mr. Lapi timely filed a notice of appeal. We issued an
order dated June 12, 2006, reversing the judgment of the
district court and ordering that court to take all steps
necessary to effect the immediate release of Mr. Lapi from
federal custody.


                               II
               APPELLATE JURISDICTION
  The Government contends that we do not have jurisdic-
tion over Mr. Lapi’s appeal because the “order schedul-
ing the hearing is interlocutory—there has been no finding


5
  The hearing subsequently was rescheduled pending the
outcome of the present appeal.
No. 05-4718                                                   9

of dangerousness or non-dangerousness, and thus no
final judgment.” Appellee’s Br. at 8; see also 28 U.S.C. § 1291.
The Government further contends that the collateral order
doctrine is inapplicable, given that “there is nothing ‘collat-
eral’ about the order in this case.” Appellee’s Br.
at 9. Because the defendant’s dangerousness and location of
commitment is the “sole question remaining in the litiga-
tion,” the Government urges, the district court’s order that
a § 4246 hearing be held is not separable from the merits of
the action. Id. (emphasis in original).
  As a general matter, the final judgment rule is strictly
applied. See 28 U.S.C. § 1291. However, “the collateral order
doctrine does permit an interlocutory appeal for some non-
final orders that are too important to be denied review and
which are so disconnected from the merits that appellate
consideration is required before final adjudication.” United
States v. Rinaldi, 351 F.3d 285, 288 (7th Cir. 2003). As the
Supreme Court has noted,
    [t]o come within this narrow exception, a trial court
    order must, at a minimum, meet three conditions. First,
    it must conclusively determine the disputed question;
    second, it must resolve an important issue completely
    separate from the merits of the action; third, it must
    be effectively unreviewable on appeal from a final
    judgment.
Flanagan v. United States, 465 U.S. 259, 265 (1984) (internal
quotation marks and citations omitted). The Government
does not dispute that the district court’s December 2005
order “conclusively determine[d] the disputed question” of
whether a § 4246 hearing was authorized; nor does the
Government contest that, because of the deprivation of
liberty associated with Mr. Lapi’s continued detention
pending a hearing, the validity of his detention and of the
10                                                No. 05-4718

hearing would be “effectively unreviewable on appeal from
a final judgment.” Id. Instead, the Government submits that
whether a hearing is authorized by § 4246 in this case is not
a matter “completely separate from the merits of the action.”
Id.
   Although Mr. Lapi may never be tried for bank robbery,
his federal indictment remains pending in the district court.
It therefore certainly is feasible that, if Mr. Lapi were to
regain competency, the Government would pursue charges
against him. Accordingly, whether the district court is
authorized to order a hearing to determine if Mr. Lapi poses
a “substantial risk of bodily injury to another person or
serious damage to property of another,” 18 U.S.C. § 4246(a),
is a matter “completely separate from the merits of the
action”—whether Mr. Lapi committed the bank robbery for
which he is being prosecuted, Flanagan, 465 U.S. at 265. Cf.
Rinaldi, 351 F.3d at 288 (holding that this court had jurisdic-
tion under the collateral order doctrine to review the district
court’s order committing the defendant for custodial
examination under 18 U.S.C. § 4241 because “determina-
tions about [the defendant’s] mental capacity are separate
from the issue of his guilt or innocence”).
   Even in the absence of the collateral order doctrine, we
would have the authority to issue a writ of mandamus
in this case. Mandamus is a drastic remedy traditionally
used to confine a lower court to the lawful exercise of its
jurisdiction or to compel it to exercise its authority when
it has a duty to do so. See Allied Chem. Corp. v. Daiflon, Inc.,
449 U.S. 33, 34-35 (1980). A writ of mandamus may issue
if three requirements are met. The challenged order must:
(1) be “effectively unreviewable at the end of the case”; (2)
“inflict[] irreparable harm”; and (3) “so far exceed[] the
proper bounds of judicial discretion as to be legitimately
No. 05-4718                                                  11

considered usurpative in character, or in violation of a
clear and indisputable legal right, or, at the very least,
patently erroneous.” In re Ford Motor Co., Bridgestone/
Firestone N. Am. Tire, LLC, 344 F.3d 648, 651 (7th Cir. 2003)
(internal quotation marks omitted). In this case, all three
requirements are met. Due to the deprivation of liberty
occasioned by Mr. Lapi’s detention pending judicial assess-
ment of his dangerousness, the district court’s order inflicts
irreparable harm and would be effectively unreviewable at
the end of the hearing. Moreover, the district court’s order
constitutes “patent[] error[]”—an “error [that] is so serious
that it amounts to an abuse of the trial judge’s authority.” Id.
(internal quotation marks omitted). Not only did the district
court misread § 4246 as authorizing a dangerousness
hearing in this case, see infra, but, compounding its mistake,
it ordered Mr. Lapi’s incarceration while he awaited such a
hearing. Given the effect of the district court’s actions on
Mr. Lapi’s liberty interests, and the lack of any legal justifi-
cation for its position, we believe that the district court far
exceeded “the proper bounds of judicial discretion.” In re
Ford, 344 F.3d at 651 (internal quotation marks omitted).
Therefore, even in the absence of jurisdiction under the
collateral order doctrine, a writ of mandamus would be
appropriate to correct the district court’s error.


                              III
                         ANALYSIS
  Mr. Lapi submits that the district court erred in determin-
ing that it had the statutory authority to conduct a hearing
under § 4246 to assess his dangerousness and the appropri-
ateness of civil commitment. After being found incompetent
by federal authorities and transferred to state custody, Mr.
12                                                   No. 05-4718

Lapi contends that the State of Illinois assumed all responsi-
bility for his care and custody; the district court, Mr. Lapi
continues, therefore no longer has the authority to regulate
the terms of his state care, including his release by state
authorities, or to detain him upon a finding of dangerous-
ness. The Government responds that, because the district
court can reevaluate a defendant’s competency to stand trial
under 18 U.S.C. § 4241 at any time so long as a federal
indictment remains pending, it also necessarily has the
authority to conduct a dangerousness hearing under § 4246
when a defendant is released improperly by a state facility
after being transferred to state care by the Attorney General.
The Government further contends that, because § 4246
requires “suitable” state care, a federal court should be able
to conduct a dangerousness hearing in cases, like the
present one, where the state care provided does not meet
minimum standards. Appellee’s Br. at 19-20.
  Section 4246 sets forth the limited conditions under which
a dangerousness hearing should be held to determine
whether the defendant, upon the expiration of the term of
hospitalization provided in § 4241, must be civilly commit-
ted or, alternatively, may be released. Under § 4246, a
dangerousness hearing is appropriate if two requirements
are fulfilled. First, the director of the federal facility at which
the defendant was hospitalized for a competency evaluation
must certify that, due to mental disease, the defendant’s
“release would create a substantial risk of bodily injury to
another person or serious damage to property of another.”
18 U.S.C. § 4246(a). Second, “suitable arrangements for State
custody and care” must be unavailable. Id.
  The district court interpreted § 4246 to authorize a
dangerousness hearing when, after a defendant is trans-
ferred to state custody, he later is released, perhaps improp-
No. 05-4718                                                 13

erly. “Because we are presented with [an] issue of statutory
interpretation, a question of law, we review [the district
court’s order] de novo.” United States v. Vallery, 437 F.3d
626, 630 (7th Cir. 2006).
   We believe that the district court erred in determining that
it was authorized to conduct a dangerousness hearing in
this case. First, § 4246 applies only to persons “in the
custody of the Bureau of Prisons whose sentence is about to
expire” or persons “committed to the custody of the Attor-
ney General” for a competency evaluation pursuant to
§ 4241. 18 U.S.C. § 4246(a). Neither is true here. Mr. Lapi
never was convicted or sentenced, and therefore at no
time relevant to this appeal was he “in the custody of the
Bureau of Prisons.” Id. Mr. Lapi also was not in the “custody
of the Attorney General” at the time the district court
ordered a dangerousness hearing; he already had been
transferred by the Attorney General of the United States to
state custody for civil commitment. Id.
  Moreover, § 4246 is triggered only by the filing of a
Certificate of Mental Disease or Defect and Dangerousness
by the “director of [the] facility in which [the defendant] is
hospitalized”; this Certificate, in turn, must confirm that the
defendant poses a substantial risk to persons or property
and that no suitable state placement is available. Id. In this
case, the district court issued its December 2005 order that
a dangerousness hearing be conducted sua sponte; not only
was the hearing not requested by the parties, but the
statutory requirement of certification had not been met. At
the time of the district court’s order, there was not a valid
Certificate of Mental Disease or Defect and Dangerousness,
authored by the director of the FMC, on record in that court.
Certainly, a Certificate had been filed previously, but it was
withdrawn by the Government upon Mr. Lapi’s placement
14                                                No. 05-4718

at the Elgin Mental Health Center. We see no reason why
the withdrawal of this Certificate would be ineffective:
Section 4246 authorizes a dangerousness hearing only if no
“suitable arrangements for State custody and care” are
available; once suitable state facilities are secured, the
defendant no longer is subject to § 4246’s hearing provi-
sions. Id. To the extent that the Government withdraws a
Certificate because this statutory mandate is not fulfilled, as
it did here, the district court has no statutory authority to
conduct a dangerousness hearing.
  Even if a valid Certificate had been on record at the time
of the district court’s order, the District Court for the
Northern District of Illinois is not the proper federal district
court to assess Mr. Lapi’s dangerousness. Section 4246
provides that the Certificate of Mental Disease or Defect and
Dangerousness shall be filed in the court in the “district in
which the person is confined” while in the “custody of the
Attorney General” or “the Bureau of Prisons.” Id. In the
present case, Mr. Lapi was confined in Rochester, Minne-
sota, while in the custody of the Attorney General; the
appropriate court to conduct the dangerousness hearing,
therefore, would be the District Court for the District of
Minnesota.
  These conclusions are consistent with those reached by
our sister circuits that have addressed § 4246. For example,
in United States v. Baker, 807 F.2d 1315 (6th Cir. 1986), the
Government had filed a motion with the court questioning
the defendant’s competency to stand trial. At the conclusion
of a hearing on the Government’s motion to dismiss charges
against the defendant, and prior to a hearing on the defen-
dant’s competency, the court “ruled from the bench that [the
defendant] was to remain in the custody of the Attorney
General pursuant to section 4246 because he was suffering
No. 05-4718                                                  15

from a mental disease or defect and that his release would
create a substantial risk of bodily injury to another person.”
Id. at 1319. The Sixth Circuit reversed, holding that this
order was invalid because the district court failed to follow
the procedures set forth in 18 U.S.C. § 4246:
    In the instant case, the district court, in essence, sua
    sponte called a section 4246 hearing before the requisite
    findings were made by the director at [the federal
    psychiatric hospital]. . . . [A] section 4246 hearing cannot
    be conducted and a section 4246 commitment order
    cannot be issued until it has been certified to the court
    that the state will not accept the individual. Further, a
    certificate must be filed in, and a section 4246 hearing
    must be held in, the district in which the individual is
    confined, not the district in which he had initially been
    charged with an offense. . . . We hold, therefore, that by
    failing to adhere to the procedures outlined in section
    4246, the district court lacked statutory authority to
    commit Baker and deprived Baker of his liberty without
    due process.
Id. at 1324 (emphasis in original).
  The Government responds that, because § 4246 conditions
a defendant’s transfer to state custody on the requirement
that the state provide “suitable” treatment and “security
appropriate to the threat posed by the defendant,” if state
care turns out to be unsuitable—for example, because the
state hospital releases the defendant prematurely—then the
federal court has the authority to intervene to conduct a
dangerousness hearing under § 4246 for the purpose of
determining whether the defendant must be civilly commit-
ted to a federal facility. Appellee’s Br. at 20. We cannot
accept this argument. Under the Government’s view, a
federal district court presumably would be able, after the
16                                                No. 05-4718

defendant is transferred to state custody in the manner
envisioned by § 4246(a), to monitor continuously not only
his potential release from a state mental health facility but
also the “suitability” of the treatment he receives at that
facility. Id. The legislative history of the Insanity Defense
Reform Act makes clear that the drafters of § 4246 did not
intend for federal courts to play such an expansive role. This
history instead reflects the general principle that “care of
insane persons is essentially the function of the several
states.” United States v. Shawar, 865 F.2d 856, 859 (7th Cir.
1989); see also S. Rep. No. 98-225, at 250, as reprinted in 1984
U.S.C.C.A.N. 3182, 3432. To carry out this intent, the statute
was drafted narrowly, to make available a federal danger-
ousness hearing only in the “rare circumstance[]” that “State
authorities will not institute civil commitment proceed-
ings against a hospitalized defendant whose Federal
sentence is about to expire.” S. Rep. No. 98-225, at 250; see
also United States v. S.A., 129 F.3d 995, 1000 (8th Cir. 1997).
   In this case, by contrast, state civil commitment proceed-
ings were instituted and the defendant was transferred to
state custody. After this has taken place, the federal dis-
trict court simply no longer has the authority to order a
§ 4246 hearing. A contrary rule would impermissibly
involve the federal judiciary in the surveillance of a state’s
treatment of its patients and its decisions regarding the
proper handling of its mental health services, contrary to the
limited purposes served by a § 4246 dangerousness hearing
and the drafters’ deliberate structuring of the statute to
accomplish a delicate balance between federal and state
governments in the provision of mental health care to
federal defendants.
No. 05-4718                                              17

                      Conclusion
  For the reasons set forth in the foregoing opinion, the
judgment of the district court is reversed.
                                                 REVERSED

A true Copy:
       Teste:

                        _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




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