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Michael Tillman v. Jon Burge

July 20, 2011

MICHAEL TILLMAN, PLAINTIFF,
v.
JON BURGE, FORMER CHICAGO POLICE DEPARTMENT COMMANDER; RICHARD M. DALEY, FORMER MAYOR AND FORMER STATE'S ATTORNEY; JOHN BYRNE, FORMER CPD SERGEANT; PETER DIGNAN, FORMER CPD DETECTIVE; RONALD BOFFO, FORMER CPD DETECTIVE; JACK HINES, FORMER CPD DETECTIVE; GEORGE PATTON, FORMER CPD DETECTIVE; ESTATE OF JOHN YUCAITIS, FORMER CPD DETECTIVE; TIMOTHY FRENZER, FORMER COOK COUNTY ASA; LEROY MARTIN, FORMER CPD SUPERINTENDENT; TERRY HILLARD, FORMER CPD SUPERINTENDENT; GAYLE SHINES, FORMER OPS DIRECTOR; THOMAS NEEDHAM, FORMER AIDE TO THE CPD SUPERINTENDENT; CITY OF CHICAGO; COOK COUNTY, ILLINOIS; AND COOK COUNTY STATE'S ATTORNEY'S OFFICE, DEFENDANTS.



The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Tillman served nearly 24 years in prison for a July 1986 rape and murder before his conviction was vacated and the charges dismissed by a Cook County Special Prosecutor in January 2010. He received a certificate of innocence from the Circuit Court of Cook County in February 2010. Tillman brings a host of claims against the police officers, police supervisors, and prosecutors involved in his arrest, conviction, and prolonged confinement.

Plaintiff alleges that shortly after his arrest, he was coerced to make inculpatory statements by former Chicago Police Detectives Peter Dignan, Ronald Boffo, Jack Hines, George Patton, and John Yucaitis, and by former Cook County State's Attorney Timothy Frenzer. He alleges that former Chicago Police Commander Jon Burge and former Sergeant John Byrne encouraged and countenanced this conduct, and that Frenzer, Burge, and Burge's subordinates suppressed evidence of Plaintiff's treatment. Plaintiff further alleges that former Mayor and State's Attorney Richard M. Daley and former Chicago Police Superintendent LeRoy Martin refused and failed to investigate a pattern of torture carried out at Area 2 prior to Plaintiff's arrest, proximately causing Plaintiff's torture and wrongful conviction. Plaintiff claims that Daley, Martin, former Chicago Police Superintendent Terry Hillard, former aide to the Chicago Police Superintendent, Thomas Needham, and former Office of Professional Standards Director Gayle Shines all conspired to suppress evidence of police torture that Plaintiff claims would have been exculpatory.

Plaintiff asserts the following claims under 42 U.S.C. § 1983: deprivation of fair trial and wrongful conviction, against all individual Defendants (Count I); coercive interrogation against Daley, Burge, Byrne, Dignan, Yucaitis, Boffo, Hines, Frenzer, Patton, and Martin (Count IV); and a Monell claim against the City of Chicago (Count VI). Plaintiff asserts a claim for conspiracy under 42 U.S.C. §§ 1985 and 1986 against all individual Defendants (Count V). In addition, Plaintiff asserts six state law claims: false arrest and false imprisonment against the individual Defendants (Count VII), malicious prosecution against the individual Defendants (Count VIII), intentional infliction of emotional distress against the individual Defendants (Count IX), conspiracy against the individual Defendants (Count X), respondeat superior against the City of Chicago (Count XI), and an indemnification claim pursuant to 745 ILCS 10/9-102 against the City of Chicago, Cook County, and the Cook County State's Attorney's Office (Count XII). Plaintiff has voluntarily withdrawn Count II, alleging false arrest and imprisonment against all individual Defendants, and Count III, alleging torture and physical abuse against Boffo, Burge, Byrne, Daley, Dignan, Frenzer, Hines, Martin, Patton, and Yucaitis.

Defendants have filed five separate motions to dismiss. For the reasons set forth below, the motions are granted in part and denied in part.

BACKGROUND

I. The Parties

Plaintiff Michael Tillman brings his claims against thirteen individual Defendants, all in their individual capacities, as well as the City of Chicago, Cook County, and the Cook County State's Attorney's Office. Before examining the background and substance of Plaintiff's claims, the court briefly identifies the Defendants and describes their Motions to Dismiss.

A. Municipal Defendants

Defendants Terry Hillard, Thomas Needham, Gayle Shines, and LeRoy Martin, all former City of Chicago officials (the "Municipal Defendants"), have filed a joint motion to dismiss. (Dkt. 64.) Defendant Martin served as Chicago Police Superintendent from 1987 to 1992, and before that, held positions including Commander of the Area 2 Detective Division, where he was the command supervisor for the remaining Defendant Officers, and direct supervisor to Defendant Burge. (Compl. ¶ 11.) Defendant Hillard served as Chicago Police Superintendent from 1998 to 2004. (Id. ¶ 12.) Defendant Needham was counsel to, and administrative assistant for, Superintendent Hillard from 1998 to 2002. (Id. ¶ 13.) Defendant Shines was the Director of the Chicago Police Department's Office of Professional Standards from 1990 to 1998. (Id. ¶ 15.)

B. The Defendant Officers and Burge

Defendants John Byrne, Peter Dignan, Jack Hines, Ronald Boffo, George Patton, and the Estate of John Yucaitis (the "Defendant Officers")*fn1 , have filed a motion to dismiss jointly with the City of Chicago. (Dkt. 67.) Defendant Jon Burge has filed an individual motion to dismiss, which also adopts some arguments made by the Defendant Officers and the City of Chicago. (Dkt. 78.)

Defendant Jon Burge was the commanding officer of Area 2 Detective Violent Crimes Unit from 1982 until August of 1986. (Compl. ¶ 7.) In this capacity, Burge was the supervising Lieutenant of Defendants Byrne, Dignan, Boffo, Yucaitis, Hines, and Patton. (Id.) Defendant John Byrne served as a Sergeant in the Area 2 Detective Violent Crimes Unit from 1982 to August of 1986. (Id. ¶ 8.) Defendants Dignan, Boffo, Yucaitis, Hines, and Patton were Chicago Police Detectives in the Area 2 Violent Crimes Unit. (Id. ¶ 10.) Byrne directly supervised Defendants Dignan, Boffo, and Yucaitis. (Id ¶ 8.)

In 1988, Burge was appointed Commander of Area 3 Detective Division by Defendant Martin. (Id. ¶ 7.) Burge held this assignment until 1991, when the Chicago Police Department fired him for the torture and abuse of Andrew Wilson. (Id.) On June 28, 2010, Burge was convicted of perjury and obstruction of justice for lying about police torture. (Id.; United States v. Burge, No. 08 CR 846, 2011 WL 167230 (N.D. Ill. Jan. 19, 2011); United States v. Burge, No. 08 CR 846, 2011 WL 13471 (N.D. Ill. Jan. 3, 2011).) On January 21, 2011, Judge Lefkow sentenced Burge to 54 months in prison. (United States v. Burge, No. 08 CR 846 [362].) He is currently in federal custody at the Butner Federal Correctional Complex in Butner, North Carolina. (Bureau of Prisons Inmate Locator.)

C. Cook County and Frenzer

Defendants Timothy Frenzer, Cook County, and the Cook County State's Attorney's Office have filed a joint motion to dismiss. (Dkt. 61.) Defendant Frenzer is a former Assistant Cook County State's Attorney who was assigned to the Felony Review Unit. (Compl. ¶ 17.)

D. Defendant Daley

Defendant Richard Daley filed an individual motion to dismiss. (Dkt. 65.) From 1981 to 1989, Daley served as the State's Attorney of Cook County. (Compl. ¶ 14.) From 1989 through the filing of this suit, Daley was the Mayor of the City of Chicago. (Id.) Cook County does not join Daley's motion to dismiss, and Plaintiff explains in his response brief that the majority of his claims against Daley do not relate to Daley's actions while State's Attorney. (Pl.'s Resp. to Daley Br. at 19 n.10.)

II. Factual Background

Plaintiff's 46-page complaint sets forth an account of the murder of Betty Howard and Plaintiff's arrest and prosecution for that murder, including the torture he alleges he endured at the hands of Area 2 police officers. The complaint also details the history of torture at Area 2 and the alleged involvement of the various Defendants in that torture and in subsequent efforts to cover it up. The allegations are summarized below, and are presumed true for purposes of this motion.

A. Plaintiff's Arrest, Interrogation, and Prosecution

Police found Betty Howard's body in the early morning hours of July 21, 1986, in a vacant apartment in the building in which Howard and Plaintiff both resided. (Compl. ¶ 20.) Howard had been beaten, stabbed and shot, and was found gagged, naked from the waist down, and tied by her wrists to a radiator. People v. Tillman, 226 Ill. App. 3d 1, 4, 589 N.E.2d 587, 589 (1st Dist. 1991).*fn2 Later that morning, at approximately 6:30 a.m., Plaintiff voluntarily went to the Area 2 police headquarters, where he was taken into an interview room for questioning by Defendants Boffo and Dignan. (Id. ¶ 22.) Later that day, Defendants Hines and Patton joined the investigation. (Id. ¶ 23.) Plaintiff alleges that over the course of the next four days, Defendants Boffo, Dignan, Hines, Patton, and Yucaitis held Plaintiff incommunicado and tortured him, and that Plaintiff eventually made false inculpatory statements to Yucaitis. (Id. ¶¶ 24, 29, 31.) Plaintiff's co-defendant, Steven Bell, was similarly tortured and, Plaintiff alleges, forced to make false statements implicating himself and Plaintiff in the murder.*fn3 (Id. ¶ 29.) Plaintiff alleges that Burge supervised the interrogation and that Burge was at Area 2 during most of these four days and received reports concerning the interrogation. (Id. ¶ 31.)

Plaintiff does not offer a specific timeline of the following events, but describes numerous instances of abuse: Defendants Boffo and Dignan questioned Plaintiff while he was handcuffed to a wall, and Boffo struck Plaintiff on the head. (Id. ¶ 24.) At another point, Defendant Hines struck Plaintiff in the head and the stomach, causing him to vomit, and drove Plaintiff to a secluded location, forced Plaintiff to his knees, held a gun to his head, and threatened to kill him "like you killed that woman." (Id.) Hines struck Plaintiff on his back and head with a telephone book, causing his nose to bleed on his clothing and in the interrogation room, then forced Plaintiff to clean up the blood with paper towels. (Id. ¶¶ 24, 25.) Defendant Boffo kicked Plaintiff in the leg, and Defendants Boffo, Dignan, Hines, and Yucaitis used their thumbs to push against Plaintiff's ears, pushed his head back, and poured 7-Up into his nose. (Id. ¶ 24.) Plaintiff also alleges that Defendants Yucaitis and Dignan repeatedly subjected him to near-suffocation by placing a plastic bag over his head, and that Defendant Dignan hit Plaintiff on the leg with his flashlight and waved the flame from a cigarette lighter under his arm. (Id.) During the course of this interrogation, Plaintiff was not allowed to speak with a family member or an attorney. (Id. ¶ 30.) Plaintiff ultimately agreed to cooperate, and Defendant Yucaitis later testified that Plaintiff made oral admissions concerning his involvement in the crime.*fn4 (Id. ¶ 29.)

Meanwhile, at 4:00 p.m. on July 21, 1986, Steven Bell also voluntarily went to Area 2 to answer questions about the murder. (Id. ¶ 26.) Bell had helped Plaintiff paint an apartment in the building where the murder occurred during the days prior to the murder. (Id.) Plaintiff alleges that Defendants Dignan, Yucaitis, and Byrne assaulted Bell, as well, hitting him with a telephone book, kicking him in the ribs, and striking him in his face, in Defendant Boffo's presence. (Id. ¶ 27.) Bell eventually agreed to make a statement implicating himself and Plaintiff in the murder. (Id. ¶ 28.) Plaintiff alleges that Defendant ASA Frenzer was "present" at Area 2 during most of these interrogations, was aware that Plaintiff and Bell were being tortured, and, rather than intervening to stop the abuse, took a false written statement from Bell and attempted to take a false written statement from Plaintiff. (Id. ¶ 32.)

Formal charges for the murder of Betty Howard were filed against Plaintiff on July 25, 1986. (Id. ¶ 33.) In November of 1986, Defendants Boffo, Yucaitis, Dignan, Hines, Patton, Byrne, and Frenzer all testified at a hearing on a motion to suppress statements filed by Plaintiff. (Id. ¶¶ 41, 42.) Plaintiff alleges that each of the Defendants falsely denied having abused Plaintiff. (Id.) Plaintiff's motion to suppress was denied, and in December 1986, Plaintiff was convicted after a bench trial, at which several of the Defendants testified, of murder, rape, and kidnaping, primarily upon the basis of Plaintiff's alleged "false, manufactured, and coerced oral admissions." (Id. ¶ 45.) He was sentenced to natural life imprisonment plus 45 years. (Id.) Bell was acquitted of all charges. (Id.) Plaintiff also alleges that his false admissions were recorded in reports relied upon by the prosecuting attorneys, and that Defendants collectively suppressed the nature of these admissions, as well as evidence of the interrogation methods used against Plaintiff and others at Area 2. (Id. ¶¶ 46, 47.)*fn5

Plaintiff's complaint does not discuss his second trial, which took place in 1996, after the Illinois Appellate Court reversed his original conviction based in part on a claim of ineffective assistance of trial counsel. People v. Tillman, 92 CR 27711, No. 1-96-1892, at *1-2 (1st Dist. June 23, 1999) (Ex. A to Municipal Br.). The court takes notice that on February 14, 1996, Plaintiff was again convicted, this time by a jury, and on May 14, 1996, was sentenced to natural life without parole for felony murder predicated on aggravated criminal sexual assault and 15 years concurrently for aggravated kidnaping. Id. At the second trial, Plaintiff told the jury that he was beaten and threatened by detectives, and threatened by Frenzer. Id. at *18. Plaintiff called Darrell Cannon, a convicted murderer, to testify regarding similar abuse at the hands of Area 2 detectives in 1983. Id. at *19. Flint Taylor, Plaintiff's attorney in this case, also testified, describing several conversations he had with other individuals regarding Yucaitis and Dignan's reputations for untruthfulness in dealing with suspects. Id.

B. Pattern and Practice of Torture at Area 2

Plaintiff's Complaint includes allegations regarding the torture of other individuals in Area 2, including the high-profile case of Andrew Wilson. (Compl. ¶¶ 48-52.) Plaintiff alleges that the named Defendants in this case, along with others, engaged in this practice, failed to intervene to end it, and suppressed information regarding this extensive pattern of abuse.*fn6 (Id. ¶¶ 48-54.)

Plaintiff alleges that as Mayor and State's Attorney, Defendant Richard Daley had personal knowledge of the alleged abuses perpetrated by Burge and other Defendants at Area 2, but declined to investigate the abuses and failed to disclose these exculpatory allegations. (Id. ¶ 66.) Plaintiff asserts that, had Daley and Martin investigated the allegations of abuse at Area 2 prior to his arrest, he would not have been tortured and would not have been wrongfully convicted. (Id. ¶¶ 67, 70.) Plaintiff further alleges that as a result of a conspiracy between Daley, Martin, Hillard, Needham, Shines and others to suppress information about torture at Area 2, "Plaintiff's wrongful prosecution was continued, his exoneration was delayed and his imprisonment lasted far longer than it otherwise would have." (Id. ¶¶ 72, 97.) According to Plaintiff, between 1989 and 1992, Daley and Martin were given "additional actual notice that Burge was the leader of a group of Chicago detectives that systematically tortured and abused African American suspects" through an Amnesty International report and public hearings. (Id. ¶ 85.) Plaintiff alleges that in 1996, despite his knowledge that findings of torture and abuse had been made against Defendant Dignan, Daley promoted Dignan to lieutenant. (Id. ¶ 91.) Plaintiff also alleges that Daley, against the advice of his senior advisers, "personally insisted" throughout his tenure that the City of Chicago "continue to finance the defense of Burge, Byrne, Dignan, and other Area 2 detectives, despite his personal knowledge that Burge committed acts of torture." (Id. ¶ 93.)

C. Plaintiff's Release and Exoneration

On January 14, 2010, Plaintiff's conviction was vacated based on a post-conviction petition, and he was granted a new trial. (Id. ¶ 95.) In the post-conviction petition, Tillman argued that his conviction was the "direct and proximate result of the beating, bagging, mock execution and improvised waterboarding that Burge-commanded officers inflicted on [Plaintiff] in 1986." People v. Tillman, No. 92 CR 27711, Post-Conviction Petition, at *1. The petition noted that Burge had recently been indicted in connection with allegations of torture. Id. The petition went on to describe Plaintiff's allegations and the evidence of torture committed by Burge, Byrne, and others at Area 2. Id. The Cook County Special Prosecutor assigned to Plaintiff's case dropped all charges, and he was released from custody.*fn7 On February 19, 2010, the Circuit Court of Cook County found that Plaintiff had established that he was innocent of the charges for which he was convicted, and granted him a certificate of innocence pursuant to 735 ILCS 5/2-702. (Compl. ¶ 96.) Soon thereafter, Plaintiff brought this suit. The court now considers Defendants' motions to dismiss.

DISCUSSION

I. Legal Standard

Defendants ask the court to dismiss Plaintiff's claims for failure to "state[] a claim upon which relief can be granted." FED. R.CIV. P. 12(b)(6). In deciding a motion to dismiss, the court views "the complaint in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor." Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003). While the court must accept factual allegations in the complaint as true, it is "not bound to accept as true a legal conclusion couched as a factual allegation," Papasan v. Allain, 478 U.S. 265, 286 (1986), nor is it obligated "to accept as true . . . unsupported conclusions of fact." Hickey v. O'Bannon, 287 F.3d 656, 658 (7th Cir. 2002).

II. Count I: § 1983 Claim for Deprivation of Fair Trial and Wrongful

Conviction Plaintiff alleges that all of the individual Defendants deprived him of a fair trial, conspired to wrongfully convict him, and suppressed the truth about his wrongful conviction in order to keep him incarcerated. Plaintiff's Complaint is vague as to the specific actions alleged to have been carried out by each Defendant and the corresponding claims against each one, but Plaintiff does offer some clarification in his Responses to the Motions to Dismiss.*fn8

Plaintiff contends that Officers Dignan, Yucaitis, Boffo, Hines, and Patton ("Defendant Officers"), who directly participated in his interrogation, tortured him and fabricated false statements, lied about these activities, and suppressed the truth concerning their conduct and a pattern of torture at Area 2. (Compl. ¶ 101.) Plaintiff alleges that Lieutenant Burge and Sergeant Byrne personally supervised this torture and interrogation, and also suppressed the truth about these events. (Id. ¶¶ 21-22, 101.) Plaintiff alleges that Daley, while he served as Mayor, knew about the pattern and practice of torture at Area 2 and worked actively to suppress the truth. (Id. ¶¶ 73-75.) Plaintiff alleges that Assistant State's Attorney Frenzer personally participated in his interrogation and attempted to take a coerced written statement from him. (Id. ¶ 32.) Martin supervised Burge at the time of Plaintiff's arrest, and served as police superintendent from 1987 to 1992; Plaintiff alleges that in those capacities, Martin supervised and was aware of the torture at Area 2 but suppressed the truth about it. (Id. ¶¶11, 101.) Hillard served as police superintendent from 1998 to 2004 and allegedly learned about and suppressed the truth concerning torture at Area 2, as well, as did his administrative assistant from 1998 to 2002, Thomas Needham. (Id. ¶¶12-13, 101.) Gayle Shines served as director of the Office of Professional Standards from 1990 to 1998, in which capacity she also allegedly learned about the torture at Area 2 and suppressed that information. (Id. ¶¶15, 101.)

Plaintiff proceeds on this count based on two legal theories. First, Plaintiff argues that Defendants have suppressed exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963). Brady held that the failure to disclose favorable, material evidence violates a defendant's procedural due process rights. Id. at 87. There are three components to a Brady violation: "(1) the evidence at issue is favorable to the accused, either because it was exculpatory or impeaching; (2) the evidence must have been suppressed by the government, either willfully or inadvertently; and (3) there is a reasonable probability that prejudice ensued." Parish v. City of Chicago, 594 F.3d 551, 554 (7th Cir. 2009) (citation and quotation omitted).

Plaintiff also alleges that Defendants have violated his "right not to be convicted on the basis of false, fabricated, or unconstitutionally coerced evidence." (Pl.'s Resp. to Officers' Br. at 10.) Plaintiff invites this court to look beyond the ambit of Brady and allow him to pursue a claim that he was deprived of a substantive due process right to not be tried and convicted on the basis of fabricated evidence. The court is unwilling to accept this invitation. The Seventh Circuit has repeatedly rejected attempts to combine "what are essentially claims for false arrest under the Fourth Amendment and state law malicious prosecution into a sort of hybrid substantive due process claim under the Fourteenth Amendment." Brooks v. City of Chicago, 564 F.3d 830, 833 (7th Cir. 2009) (citation and quotation omitted). The claim that "criminal proceedings were instituted against [Plaintiff] based on false evidence or testimony . . . is, in essence, one for malicious prosecution, rather than a due process violation." Id. (citation and quotation omitted). The Seventh Circuit has concluded that Albright v. Oliver, 510 U.S. 266 (1994) "scotches any constitutional tort of malicious prosecution when state courts are open." Newsome v. McCabe, 256 F.3d 747, 751 (7th Cir. 2001). Though Plaintiff cites numerous cases in support of his due process theory, the vast majority of them either predate Brady, are contemporaneous with Brady, or conclude that allegations similar to those here actually support a Brady claim rather than any substantive due process claim. (Pl.'s Resp. to Officers' Br. at 9-10.) Absent clear authority supporting the cause of action Plaintiff proposes, this court declines to entertain such a legal theory. The court also notes that Plaintiff has ample theories available through which to pursue his claims, including a state law malicious prosecution claim. As such, if Plaintiff has any claim on this count, it must proceed under Brady.

A. Defendant Officers

Plaintiff's first claim against Defendant Officers is that they suppressed evidence of the "systematic practice of torture under Burge" and "never informed the prosecuting attorneys that they had committed [ ] torture during Plaintiff's interrogation in order to obtain false inculpatory statements" in violation of Brady. (Pl.'s Resp. to Officers' Br. at 5-6.)

Defendants contend that Tillman's Brady claim must be dismissed because Tillman was in fact aware of everything that he now claims was "withheld." According to Defendants, a due process claim cannot extend to situations where the plaintiff was aware of the alleged misconduct at the time of trial, regardless of whether the misconduct was "withheld" from prosecutors. Gauger v. Hendle, 349 F.3d 354, 360 (7th Cir. 2003). The plaintiff in Gauger brought a Brady claim following his arrest and subsequent conviction for allegedly killing his parents, a conviction based primarily upon statements Gauger had made during an extended period of interrogation. Id. at 356-57, 360. When members of a motorcycle gang later admitted to the murder, Gauger's conviction was overturned, and the charges against him were dropped. Id. at 357-58. Gauger claimed that the statements during his interrogation were hypothetical and taken out of context, and that Brady required the detectives to give truthful accounts of the interrogation to the prosecutors and to his defense attorney. Id. at 360. The court rejected this argument. Gauger knew what was said at the interrogation, the court observed, and the state therefore had no duty to disclose that information. Id. "The problem was not that evidence useful to him was being concealed; the problem was that the detectives were giving false evidence." Id. To have allowed a Brady claim to proceed under those circumstances would effectively create a duty "not merely to disclose but also to create truthful exculpatory evidence." Id. In short, the court rejected Gauger's attempt to "make every false statement by a prosecution witness the basis for a civil rights suit."Id.

Withholding evidence does, in some circumstances, constitute a Brady violation. Plaintiff argues that the evidence withheld in this case falls into that category. In particular, Plaintiff cites Manning v. Miller, 355 F.3d 1028 (7th Cir. 2004), where a Chicago police officer who had been working as an FBI informant was allegedly framed for murder and kidnaping in retaliation for his refusal to continue working as an informant. Id. at 1030. Manning alleged that the FBI agents induced a witness to identify him in a photo lineup, and that the agents arranged his placement in a cell with a jailhouse informant, who allegedly fabricated a confession from Manning to the crimes at their direction. Id. Defendant FBI agents argued that the claim that Plaintiff had been "framed" was really a claim ...


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