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EXCLUSIVE: Documents Reveal Bronx DA’s Office Is Still Withholding Key Evidence In Prosecution of Bronx Teen

Pedro Hernandez’s case has inspired calls for reform, but he’s still being targeted for an alleged cell phone theft.

Pedro Hernandez speaks onstage at Robert F. Kennedy Human Rights' Annual Ripple Of Hope Awards Dinner
Jason Kempin/Getty Images for Ripple Of Hope Awards

EXCLUSIVE: Documents Reveal Bronx DA’s Office Is Still Withholding Key Evidence In Prosecution of Bronx Teen

Pedro Hernandez’s case has inspired calls for reform, but he’s still being targeted for an alleged cell phone theft.


The Appeal has learned that the Bronx district attorney’s office is allegedly withholding key evidence in a last-ditch effort to prosecute Pedro Hernandez, a Bronx teenager who spent 12 months at Rikers unable to make bail and became a national figure in the bail reform movement. Last year, Bronx prosecutors dropped their shooting charges against the teenager and announced an investigation into numerous allegations of misconduct in the case. But prosecutors have continued to prosecute Hernandez for a nearly three-year-old cell phone robbery allegation, which has received far less press attention.

A Bronx district attorney’s office document, reviewed by The Appeal, reveals that the supposed victim of that robbery, Stephone Garcia, was arrested roughly an hour after the encounter for unlawful assembly, a misdemeanor charge one can face for preparing to engage in or engaging in violent group conduct. Bronx prosecutors later declined to prosecute Garcia. But according to court documents and Pedro Hernandez’s private investigator Manuel Gomez, they never turned over their records, revealing this decision, to Hernandez’s defense. Hernandez’s defense independently obtained a redacted version of the document in which The Appeal found Garcia’s name, according to court records. This potentially exculpatory revelation could complicate the prosecution’s narrative of the robbery. Prosecutors are required to turn over any evidence that might help the defense.

Garcia’s arrest right after the alleged robbery and the Bronx DA’s subsequent decision not to prosecute is “clearly favorable evidence” that “should have been disclosed right off the bat,” according to Bennett L. Gershman, a professor at the Elisabeth Haub School of Law at Pace University and a former Manhattan prosecutor. “If someone is arrested by the police and now turns out to be a victim and the charge is dismissed,” Gershman said in a phone interview, “one has to ask, ‘Does that make this person more likely to want to cooperate, to help himself out of the arrest?’”

Bronx prosecutors declined to explain to The Appeal why they did not turn over this information. They also declined to respond to questions about the possibility that Garcia told authorities false information about Hernandez to avoid prosecution. Witnesses involved in Hernandez’s previous cases have alleged that a Bronx prosecutor and New York Police Department officers coerced them into falsely incriminating Hernandez.

In this ongoing case, Hernandez, then 15, and his sister Ivanyele, then 17, are accused of stealing Garcia’s cell phone and remote car alarm, and threatening him with a knife and assaulting him, on Nov. 6, 2015. The charges, totalling five felonies and three misdemeanors associated with the alleged robbery and fight, were originally brought in family court. But the case was transferred to Bronx Supreme Court in July 2017, at the height of the media coverage surrounding Hernandez’s 2015 shooting charges that were dropped.

Camera footage, provided to The Appeal by Gomez, also raises questions about the prosecution’s narrative that paints Hernandez as a powerful gang member who forcibly stole Garcia’s cell phone and car alarm and threatened him with a knife. The video appears to show a brief street fight, not a robbery, involving the Hernandez siblings and Garcia. In the parts of the video in which the Hernandez siblings appear to be visible, at least, no cell phone and remote car alarm robbery can be seen, and Pedro Hernandez is not wielding a knife.

At a court hearing last week, Bronx Supreme Court judge Steven Barrett complained about the “unnecessary motions” filed by Hernandez’s defense to obtain exculpatory evidence, known as Brady material, from prosecutors. But Barrett also warned Bronx prosecutors that they must follow the law and turn over any other evidence they have. “I would not want to learn later on there was something that should have been turned over,” Barrett said at the hearing. “I would hate to find that out. If that’s the case, there’ll be hell to pay.”

Barrett did not respond to The Appeal’s email inquiring what this “hell” would entail.

According to Gershman, Barrett could choose to hold the Bronx assistant district attorneys involved in this case in contempt, a penalty that could have serious professional or even criminal consequences. Though Gershman has not seen New York prosecutors held in contempt for Brady material violations in recent years, he argues more judges are becoming concerned about this issue. He notes that last year, for example, New York State’s chief judge, Janet DiFiore, issued a memo directing all judges overseeing criminal matters to order prosecutors to turn over exculpatory evidence before trial.

This withheld evidence comes on the heels of Bronx prosecutors also failing to provide the defense with the “cut slips” of two witnesses who were arrested but let go after their “recollection of the alleged robbery did not match the District Attorney’s distorted narrative,” according to court motions filed by Hernandez’s defense attorney Alex Spiro. The defense attorney obtained this witness information independently in December 2017, according to court records. Spiro declined to comment on the case ahead of trial.

On top of this evidence that the Bronx district attorney’s office failed to turn over, prosecutors also took considerable time to divulge important facts that would seemingly help Hernandez’s defense.

According to the prosecution, in September or October 2017, for example, shortly after Hernandez’s other charges were dropped, Bronx prosecutors offered to provide alternative housing to Garcia, which he refused. Hernandez’s defense didn’t learn about this until December 2017.

The Bronx district attorney’s office has also refused to hand over any information about the findings of an ongoing investigation of alleged misconduct among its employees and officers in the NYPD precinct that investigated Hernandez. The office announced its inquiry after the dismissal of Hernandez’s previous 2015 shooting cases. As The Appeal has previously reported, Hernandez’s defense argues that the findings of the investigation need to be turned over because they would cast doubts on the motivations of NYPD officers and prosecutors, who have led numerous investigations into Hernandez over the last three years.

At least one of those Bronx prosecutors, now under investigation for the dismissed Hernandez shooting cases, is involved in this robbery case. Bronx Assistant District Attorney David Slott, who has been accused of helping coerce witnesses in numerous cases, including Hernandez’s 2015 shooting charges, was involved in the robbery case through the summer of 2017, according to court documents.

The 2015 robbery case “is clear retaliation by the police department and prosecutor David Slott,” said Gomez, Hernandez’s private investigator. “He’s absolutely innocent.”

Hernandez’s defense has repeatedly petitioned Justice Barrett to intervene and to compel the prosecution to turn over information about the findings of the Bronx district attorney’s office’s internal probe. But Barrett has said that judges only compel prosecutors to fulfill their obligation to hand over potentially exculpatory Brady evidence in the “rarest of instances,” according to court minutes.

Barrett did not respond to The Appeal’s emailed request to elaborate on what would constitute such a rare instance.

As The Appeal has revealed in numerous stories over the last few months, Bronx prosecutors have withheld exculpatory evidence from other defendants for years and been accused of intimidating witnesses, causing people to spend years in Rikers and undergo lengthy ordeals in court.

“It’s bizarre and a troubling case,” said Gershman, the law professor and former prosecutor. “You have to think something is going on here beneath the surface.”

 


If you are a current or former Bronx district attorney’s office employee, please contact us to share leads or your perspective on these issues. Reporter George Joseph can be reached on the secure messaging app Signal at 929-282-2471 or by email at gmjoseph@protonmail.com. Reporter Simon Davis-Cohen can be reached by email at s.davis.cohen@protonmail.com.

California Bill Would Deem Children Under 12 Too Young for Court

Legislation passed in Massachusetts and pending in California would set a minimum age for children to enter the juvenile justice system.

oneword/Shutterstock

California Bill Would Deem Children Under 12 Too Young for Court

Legislation passed in Massachusetts and pending in California would set a minimum age for children to enter the juvenile justice system.


This story is co-published with The Chronicle of Social Change, a nonprofit news publication that covers issues affecting vulnerable children, youth and their families.

A bill winding its way through the California legislature would bar the juvenile justice system from hearing most cases of children younger than 12, an idea that has sparked a fierce backlash from district attorneys.

California, like most states, has no minimum age that would prevent courts from hearing cases of children who are charged with criminal offenses.

Instead of linking children to services or out-of-home placements through juvenile court adjudication, Senate Bill (SB) 439 would instead direct counties in the state to develop the “least restrictive” alternatives to the juvenile justice system. That could mean a greater reliance on the dependency court system, where child protective services agencies are tasked with providing services to vulnerable children and families. The bill follows on the calls of some advocates in California and nationally who say that children younger than 12 are just too young to enter the justice system.

“The vast majority of young children in California who’ve been accused of an offense are exhibiting behaviors or minor behaviors that did not require any justice involvement,” state Senator Holly Mitchell, a Democrat and the bill’s co-sponsor, said at a hearing last month. “Involvement with the juvenile justice system can be harmful to a child’s health and development.”

All states have an established “age of jurisdiction,” a bright line for the maximum age of juvenile court jurisdiction, most often at 18. That’s the age at which a young person stops being eligible for the rehabilitative services and resources embedded in the juvenile justice system.

With the increasing influence of developmental brain science that points to a longer time for teenage brains to mature into adulthood, some states are even pushing to extend access to the juvenile system for youth 18 and older through “raise the age” efforts. But there is also an emerging effort on the other end, where advocates hope to limit access to the system for the youngest children.

Currently, 20 states have a minimum age for entry into the juvenile justice system, ranging from age 6 in North Carolina to a threshold of 10 in 11 other states.

This year, Massachusetts became the first state to set minimum age at 12, a precedent that California advocates hope to replicate. Some advocates say that setting the threshold at that age would bring it in line with many other Western European countries, which helped enshrine that age in the United Nations Convention on the Rights of the Child. Among United Nations member states, the United States remains the lone country not to ratify the agreement.

In California, the number of children younger than 12 who end up in the justice system actually is very small. According to a recent analysis of California Department of Justice data by UCLA researchers, there were 687 referrals of children age 11 and younger to probation from law enforcement or schools in 2015, or about 0.8 percent of the total number of referrals in California in 2015.

That included one referral of a 5-year-old child for a “curfew violation” and 452 referrals of 11-year-olds, most often for status offenses and misdemeanor offenses, such as petty theft and minor assault and battery charges. Eighty-five percent of these cases were closed or diverted from the system at the outset of the case.

Most of the cases that did go to juvenile delinquency court were dismissed or resolved informally. Only 30 children younger than 12 ended up being formally supervised by California’s juvenile justice system in 2015. In 2016, that number was 26 children out of 652 referrals, mostly for misdemeanor offenses.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

“I think people have an assumption that juvenile court is potentially a helpful intervention for young children,” said Laura Abrams, one of the UCLA researchers who looked at state juvenile justice data. “But in most cases, the charges aren’t sustained or they’re dismissed, so the family doesn’t get any help at all.”

For the children who do end up in the justice system at an early age—and especially those who end up incarcerated at juvenile halls and camps in the state—the impact can be harmful to their healthy development, leading to lower educational outcomes, among other issues.

In looking at children under 12 from 2010 to 2015, no youth had a sustained petition for homicide, manslaughter, or rape.

Some research indicates that the earlier a young person enters the justice system, the more likely they are to become chronic offenders later in life.

That’s the experience of David Rey, who was recently paroled from prison after spending nearly two decades in California prisons. He now assists others re-entering society after incarceration through work with the Anti-Recidivism Coalition.

Rey, now 38, was convicted of murder at age 18. But he first touched the justice system at age 12, when he stole a neighbor’s television for his clubhouse.

Rey said he was “pretty much sheltered” as a kid growing up in San Luis Obispo, a city along the Central California coast. That ended when he was arrested, stripped naked in a room of adults and sent to juvenile hall.

“I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact, until I went to juvenile hall and I met other kids that were dysfunctional,” Rey said.

That experience helped define the course of his life, even after a brief stay in juvenile hall.

“That really shaped me in the direction I was going,” Rey said. “Six years later, I was in the same police station for murder.”

That perspective has drawn strong opposition from several law enforcement entities in the state, including the California District Attorneys Association, the California Police Chiefs Association and the Chief Probation Officers of California.

The Los Angeles County district attorney’s office has been a particularly vocal critic of the bill since it was introduced last year. A letter sent last month to a committee considering the bill highlighted several lurid cases that the office believes show the juvenile justice system is the only way to rehabilitate children and protect public safety.

In one example, a 9-year-old was arrested after allegedly committing a robbery. The case was dismissed due to the boy’s “developmental age and maturity,” but over the next four years, the youth was brought to court nine times. He was described as the “ring leader of a residential burglary crew” by age 11 and became an active gang member during the time.

The boy was placed in group home placements out of county several times, but he kept running away and returning home. “For this rare type of youth, the intervention of the court is necessary. DCFS can offer services and place a minor, but they cannot make him stay,” said the letter, referring to the Department of Children and Family Services.

I didn’t really know what gangs were, I didn’t really know what drugs were, until after I had police contact.David Rey, Anti-Recidivism Coalition

At the hearing for SB 439 last month, Tamar Tokat from the LA County district attorney’s office said there was “no alternative” to serious criminal cases involving children.

“We’re not here because we want to file charges against some kid who stole peanut butter,” Tokat said. “We’re here because we want to rehabilitate the 11-year-old who is continuously sexually abusing the little kids in the house. We want to rehabilitate that child so he does not become the 25-year-old rapist, so he does not become the 25-year-old murderer.”

Proponents of SB 439, like Patricia Soung of Children’s Defense Fund-California, say that the juvenile justice system hasn’t had a strong track record of providing effective supportive services to young people, especially those that address the trauma that many are facing.

Most children younger than 12 who are referred to probation don’t end up requiring any court intervention, which represents a missed opportunity to work with some at-risk children, according to Soung.

With SB 439, dependency courts could be called in to fill the gap for children ages 11 and younger.

“The California courts have said that dependency courts have always been imagined as the better alternative to address young people’s circumstances in a more holistic way,” Soung said. “Counties have overrelied on law enforcement agencies, including probation, to be gatekeepers to services, and we would like this to be a paradigm shift toward something else.”

Under the most recent version of the bill, children under the age of 12 who commit murder, “rape with force,” or other violent offenses would still be sent through the juvenile delinquency courts. But counties would be given a year to draw up plans for how they would work with young people who don’t get sent to juvenile delinquency court.

Santa Clara County is one place where those rules are already in effect. In 2010, the county’s Board of Supervisors passed a motion to limit juvenile detention for children 12 years old and younger. Instead, the county put into place a protocol that sends children into a mental health court instead of the juvenile court, surrounding them with services from several county departments.

Soung would like to see California counties take up some version of this approach in an effort to intervene before children become more involved in the juvenile justice system.

“Early exposure to the justice system is harmful and it can increase the likelihood of recidivating and young people aren’t getting the help they need,” she said. “That doesn’t mean we shouldn’t respond, but let’s respond in a more appropriate way that actually addresses the underlying causes of their behavior.”

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Immigrants Share Horror Stories From Inside Massachusetts's 'Worst' Jail

“Jail is not a country club,” the Bristol County sheriff said. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”

Bristol County Sheriff Tom Hodgson
Screenshot/Tom Hodgson Committee campaign ad

Immigrants Share Horror Stories From Inside Massachusetts's 'Worst' Jail

“Jail is not a country club,” the Bristol County sheriff said. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”


Conditions in one Massachusetts jail being used to hold ICE detainees are abusive and dangerous, according to former detainees.

Three people told The Appeal that their time at the Bristol County Jail was marked by poor conditions and abusive behavior from guards.

Siham Byah, a Boston-based community activist who was recently deported to her native Morocco, said that she was placed in the corrections facility instead of the closer Boston South Bay detention center because of her political activism—the same reason she claims she was deported.

“I was put there, it is my guess, to hurt my support system,” Byah said by phone from Morocco, “and because Bristol County is known as the worst prison in Massachusetts.”

After she was placed in the women’s section of the Bristol County Jail while she awaited detention proceedings, Byah said she began a hunger strike to protest her arrest and detention. As a result, the guards put her in segregation.

After about three and a half days, Byah broke the strike. She claims that the guards told her they would force her to eat if necessary because ICE would not tolerate someone dying in the facility.

“They said they would strip me, tie me down, and then shove food down my throat,” said Byah.

The Bristol County Sheriff’s Department denied the majority of Byah’s allegations. Jonathan Darling, the county sheriff’s office public information officer, told The Appeal that Byah only spent one day in solitary so guards could “monitor her meal refusals and health better.”

“In the rare case that a hunger strike becomes a serious threat to an inmate or detainee’s health after weeks of refused meals, a judge is the one who decides if we force feed the individual,” Darling said, adding that Byah’s accusation against jail guards was “completely and 100 percent false.”

Sheriff Thomas Hodgson has proudly instituted a culture of harsh punishment at the facility.

“Jail is not a country club,” Hodgson said in a 2010 campaign ad. “That’s why once you’ve done time in the Bristol County House of Corrections, you won’t want to come back.”

Hodgson’s reputation as a tough jailer—he offered to provide prison labor to help build President-elect Donald Trump’s wall on the Mexican border in early 2017—has earned him some unwanted attention recently: Massachusetts Attorney General Maura Healey called for an investigation in June into conditions at the jail after reporting by the New England Center for Investigative Journalism found that roughly a quarter of all in-jail suicides in Massachusetts occurred at Bristol County Jail, which holds only 12 percent of the state’s county jail inmates. Hodgson dismissed the reports of dangerous conditions at Bristol, and implied that the attorney general had targeted him because he was a conservative. He demanded an apology from her.

Bristol holds ICE detainees through a 287(g) agreement, a federal program that allows ICE to subcontract detention of undocumented people to local municipalities. The program is used across the country. ICE officials told The Appeal that the agency takes a proactive role in ensuring that detainees are treated appropriately.

“The agency’s aggressive inspections program ensures its facilities comply with applicable detention standards, and detainees in ICE custody reside in safe and secure environments and under appropriate conditions of confinement,” ICE spokesperson Khaalid Walls said via email. “Based on multi-layered, rigorous inspections and oversight programs, ICE is confident in conditions and high standards of care at its detention facilities.”

In the most recent inspection on file, from 2016, ICE’s Office of Detention Oversight found that detainees had a number of complaints about medical care, including finding that “in six of the ten mental health records reviewed the facility failed to obtain informed consent from detainees receiving psychotropic medications.” And the report lists other detainee complaints that reflect what the people who spoke to The Appeal said about the facility, including aggressive treatment by guards and nearly inedible food.

“These allegations are completely absurd,” Darling responded in an email. “Our facility is nationally accredited by the National Corrections Association and regularly audited/inspected by ICE and the state Department of Corrections.”

ICE detainees are held in three areas in the jail. Men are held in two large, open rooms in the C. Carlos Carreiro Immigration Detention Center, a large building not connected to the jail, and held in the jail proper. Women are mixed with the general population. Although ICE holds detainees in the facility, it has little control over the day-to-day operations and does not have staff on site all the time—detainees are watched by jail guards in the detention center and the jail.

Detainees are supposed to be held in different areas according to their criminal record, said Matt Cameron, a Boston attorney specializing in immigration litigation. There are three levels of criminality:  The two higher levels, where detainees have a record of misdemeanors to felonies, generally land offenders in the jail, while low-level offenders or nonoffenders are in the detention center.

“Bristol County House of Corrections houses detainees for ICE in two ICE-only units and commingled with pretrial county detainees,” said Walls.

Cameron said most people entering ICE detention at the jail are booked on minor offenses, most likely because of the Trump administration’s focus on criminalizing all immigration violations. That results in people who aren’t a threat to the community rubbing shoulders with citizens awaiting trial for criminal offenses and detainees with violent records as space in the detention center runs out and the jail puts people where it can.

One former detainee who asked to be identified only as “D” to avoid retaliation as he navigates the immigration system was held in the jail with detainees and prisoners, and faced the full force of the conditions that Hodgson has made his name on. Detainees and prisoners are separated during regular hours — D described it as one group in each half of the room — but mingle during eating time and recreation.

“They treated us just like the prisoners,” said D.

Immigrant detainees in the jail face the same disciplinary consequences as the prisoners. One of the punishment tactics is disciplinary segregation, or solitary confinement. Administrative segregation, which also results in solitary confinement, is generally used for the protection of people in custody—though it can be abused (what Byah claims happened to her because of her hunger strike). According to the regulations ICE uses at Bristol, the Performance-Based National Detention Standards, use of disciplinary segregation is only for the most severe infractions of jail policy, and should be avoided whenever possible.

But that’s not the way segregation is used at Bristol, according to Byah. The second time Byah said she was sent to solitary it was for one day as punishment for arguing with a guard over using a telephone at break time. Byah said she knows of women in ICE detention at the jail who have spent upwards of a week in segregation.

“ICE detainees who do not follow the rules of the institution, including assaulting other inmates, detainees or officers, or other offenses,” Bristol’s Darling said, “are subject to the same disciplinary action as the rest of the jail population, which can include spending time in a segregation unit.”

D, who was at Bristol for six months, told The Appeal that guards at the jail regularly used solitary confinement as a punishment. “They’d lock them up for a month, sometimes a week,” he said. “It depended on what a person did.”

Solitary was used in the detention center as well, said J, a former detainee speaking on condition of anonymity who was held at the facility for a month in the fall of 2017 and is fighting his deportation. He described seeing detainees being put into segregation for not coming immediately when called or, in one case, for (nonviolently) expressing frustration with a guard’s behavior.  

“When a guard felt like it, they found something very minor,” said J.

The conditions in the detention center are hardly better than in the jail itself, said lawyer James Vita, a public defender for the Committee Public Counsel Services. Medical care access—when prisoners have it—is access to what Vita termed “medieval style” health care. J said people held In the detention center waited days for medical attention. Fevers and toothaches were ignored and medical conditions are often neglected, said J. In one case, he said, an epileptic detainee wasn’t given his medication, resulting in a seizure that ended with him falling off his bunk and injuring himself.  

“There is a medical professional in every housing unit and facility every day,” said Darling.

There were no diagnostic tools beyond a stethoscope in the medical bay, said Byah, and the nurse on staff was at best disinterested. When detainees would go to medical, they would have to stay in the bay overnight—a new and unfamiliar cell. Cameron, the immigration lawyer, called this overnight holding a form of punishment, a perception shared by Byah.

“You were torn between having a medical problem and not wanting to go to the med bay,” said Byah.

Hygiene, too, was a concern, D said. He told The Appeal that the area he was held in had only one toenail clipper for the people in that part of the jail. The bathrooms were filthy, D said, and the showers were dirty and moldy.

It was the same situation on the women’s side, Byah said.

“You can clearly see calcification of old filth accumulating on showers and bathrooms and even floors,” she said.

One ICE agent made occasional visits, according to the three former detainees that talked to The Appeal. He spoke only English, said Byah, and threatened to use segregation against detainees.

“Bad News Larry,” as D referred to the agent, never had anything helpful to say. Rather, he only told detainees that they would most likely be deported sooner than later.

When asked whether ICE’s agents were aware of the conditions in the facility, Walls told The Appeal that detention centers are well monitored.

The former detainees said there was nobody to bring their concerns to. With seemingly nobody to turn to for help and a seemingly uninterested regulatory body in charge of the detention center, detainees at Bristol are isolated. Although ICE regulations mandate that the agency’s detainees have access to programs and facilities that are available to other prisoners, Cameron says his clients have been unable to use the library at Bristol County Jail. That treatment makes Cameron uncomfortable, especially in light of the sheriff’s comments about Mexican immigrants.

“Bristol really seems to be reflecting Hodgson’s view on his approach to immigration,” said Cameron. “I’m not seeing a lot of humanity there.”

The human rights group Freedom for Immigrants released a report documenting racial abuse in ICE detention centers in late June. The report named Bristol County House of Corrections one of the sites where detainees were subjected to racial abuse and discrimination. Detainees were called “baboons,” the report claimed, and told by guards that nobody would believe their complaints.

Darling denied the allegations in the report, citing a conspiracy against the jail.

“This is a case of either a detainee lying to drum up sympathy for his/her cause,” Darling said, “or an organization like the report’s author lying to advance its own pro-illegal-alien political agenda.”

With conditions in the jail that are approaching torture, said Byah, the time to end ICE’s contract with Bristol is long overdue. But, she added, that can’t be the end of the story.

“That place needs to shut down, as does the whole program all together,” said Byah.

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