POHNPEI STATE SUPREME COURT
TRIAL DIVISION
Cite as Pohnpei v. Hawk,
3 FSM Intrm. 17 (Pon. S. Ct. Tr. 1985)

[3 FSM Intrm. 17]

POHNPEI STATE,
Plaintiff,

v.

GEORGE HAWK,
Defendant.

PKD No. 173-86

ORDER DENYING MOTION
 FOR REDUCTION OF SENTENCE

OPINION
Before Judah C. Johnny
Associate Justice
Pohnpei State Supreme Court
October 17, 1986

APPEARANCES:
          For the Plaintiff:        Mark Mausert
                                             Public Defender
                                             Pohnpei State Government
                                             Kolonia, Pohnpei  96941

          For the Defendant:   Dickson Santos
                                             Prosecutor
                                             Pohnpei State Government
                                             Kolonia, Pohnpei 96941

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HEADNOTES
Constitutional Law - Interpretation
     In interpreting the Constitution, Pohnpeian and English versions must be construed together in harmony to determine the Intent of the Constitutional Convention on any subject.  Pohnpei v, Hawk, 3 FSM Intrm. 17, 22-23 (Pon. S. Ct. Tr. 1986).

Criminal Law and Procedure - Plea and Sentencing
     The English version of the Pohnpei Constitution gives the Governor the power to issue a reprieve; the English and Pohnpei versions give the Governor the power to commute a sentence and to grant a pardon (though the Pohnpei

[3 FSM Intrm. 18]

version restricts that power to felony cases); and both versions are silent on the power to grant parole.  Pohnpei v. Hawk, 3 FSM Intrm. 17, 23 (Pon. S. Ct. Tr. 1986).

Criminal Law and Procedure
     Rule 35 of the Pohnpei Supreme Court Rules of Criminal Procedure is void because the statute and Constitution of this State do not give the power to reduce sentences to the courts. Rather, the statute and Constitution of this state explicitly reserve that power for the executive branch, in the person of the Governor.  Pohnpei v. Hawk, 3 FSM Intrm. 17, 24 (Pon. S. Ct. Tr. 1986).

Criminal Law and Procedure
     In one line of cases, the United States Supreme Court held that the presidential power to pardon includes the power to commute a sentence even if not specifically provided for by statute, as long as the conditions do not offend the Constitution; in another line of cases, however, the Court holds that Congress may vest the power to commute by statute.  This latter line, requiring legislative enactment should be adopted by the Pohnpei State Court system. Pohnpei v. Hawk, 3 FSM Intrm. 17, 24 (Pon. S. Ct. Tr. 1986).

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COURT'S OPINION
JUDAH C. JOHNNY, Associate Justice:
     The defendant through counsel, Office of State Public Defender, following judgment and execution, filed motions for reduction of sentence, in which the court is asked alternatively to:

     1.   Extend the time within which to pay the fine, or
     2.   Reduce the fine imposed, or
     3.   Reduce the prison term, and/or
     4.   Grant the defendant work-release.

     Two motions were filed.  The original motion filed on August 27, 1986 was for an extension of time in which to pay the fine. This Court on the same date, after the filing of the motion, ordered the defendant committed to jail in accordance with the sentence, technically denying reduction of time.
 
     An amended motion for reduction was subsequently filed on August 27, 1986, which was heard on August 28, 1986.  This Court verbally denied 2 and 3, and deferred ruling on work-release, but required counsel to file authorities on work-release.  After filing of authorities, this Court heard arguments on work-release and took the motion under submission.

     By this ruling, all denials heretofore ruled upon are reaffirmed.  Additionally, the motion for work-release is denied.  These denials are based upon the reasons discussed below.

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     The defendant was convicted of the offense of statutory rape, and on August 7, 1986 was sentenced to 12 months' imprisonment.  Provision of this imprisonment is that for the first three months, the defendant will serve a prison term in the Pohnpei State Jail, and the remaining nine months will be served on probation under conditions.  This Court made it possible for the defendant to vouch himself from the three-month prison term, by allowing for an alternative fine of $300.00. That is, if the defendant alternatively pays the $300.00 fine within 15 days from imposition, the entire 12-month imprisonment will be served on probation.

     By motion which was filed on the 15th day, the defendant asked for an extension of time within which to pay the fine, up to one week.  On that same day, after the filing of the motion, this Court issued an order committing the defendant to jail, pursuant to the sentence of August 7, 1986.

     In the amended motion, the defendant moves for three alternative reliefs:

     1.  That the court accept $150.00.

     In oral argument, counsel for the accused qualified the request by asking that this Court accept $150.00, which the defendant has found, and grant an extension of another 15 days within which the defendant would find and pay the remaining $150.00.

     2.  That the court reduce the three-month jail term to one and one-half months.

     3.  That the court allow the defendant to enter a work-release program to enable him to depart from the jail between 6:00 a.m. and 6:00 p.m. from Monday to Friday of each week.

     It was explained at the hearing that the reason for this release is to continue gainful employment and business operation of the defendant for the benefit of his family.  The defendant brought evidence that he is married and has two kids, of the ages of one year six months, and five months.  Other persons also live on defendant's income, including his father-in-law and mother-in-law.  The wife is currently employed by the government of the Federated States of Micronesia.

     On behalf of the defendant, his wife testified that the life of thefamily is imperiled by the incarceration of the defendant.  The younger child drinks milk. The wife's paychecks at the FSM are being paid in full to the Bank of Hawaii in payment for a car loan.  The defendant's income had been the only source of subsistence for the family.  She cannot obtain support from family members.

     The Court takes note that the defendant owes $1,300 in Pohnpei Civil Action No. 233-86, to PMDC.  It was also represented by his counsel that he owes another $1,202.20 to Jerry Enterprises.

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     Nothing in the defendant's representations shows to the satisfaction of this Court that he diligently made efforts to find the $300.00 during the period allowed. All that was shown related to the condition of his family and his outstanding liabilities.

     The $300.00 fine was an alternative sentence which would be accepted on condition that it is paid within the time allowed.  The sentence was explicit that "if said fine is not paid at close of the fifteenth day, the defendant shall be committed." This was the condition imposed upon the alternative sentence.

     Here, the defendant did not pay the alternative fine, but moved the Court first to reduce the amount and later to accept a portion of it and then to grant an extension in order to allow him to find the balance, without even showing the Court that he had in fact made all reasonable efforts within his means to find the money.  The period ran and he did not pay.

     This Court issued a written order for the commitment of the defendant  on the same date that he filed a motion for an extension of time within which to pay the fine.  The order in effect rules upon the motion, since the motion was before the court at the issuance of the order.  I therefore need not rule upon the defendant's motion to extend, since it has been denied.

     As to the motion to reduce the jail term, this is a punishment imposed upon the defendant for commission of a felony, and violation of a moral law.  The sentence was considered and weighed carefully before pronouncement.  At the commission of the criminal act, the defendant should have known that he has all these obligations to his family and to his creditors.  He elected to run this risk, and that is what he gets from society.  That motion is also denied.

     Here, the defendant moved for reduction under Rule 35 of the Rules of Criminal Procedure.  Rule 35(b) allows the Court to reduce a sentence within 120 days after imposition, or within 120 days from denial of review.  The rule further allows the Court to reduce a sentence upon revocation of probation as is provided by law.  It considers a change in sentence from incarceration to probation as a permissible reduction of the sentence.  These provisions are part of the Rules of Procedure of the Pohnpei Supreme Court, which were prescribed and took effect on November 30, 1983.
 
     Rule 35, on the reduction of sentence, has been subsequently overruled first by statutory provisions and later constitutionally.

     The Pohnpei Crimes Act, SL-lL-3-85, which made the first change, provides in Chapter 9, Section 9-21:

       (1)  The Governor may, after conviction and upon such terms and conditions as he shall deem best,  grant reprieves, commutations, pardons and paroles  for offenses under Pohnpei law, other than

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impeachment, and for such offenses under National law over which he may be granted authority by the National Government.

This is a general grant of power, and it gives only to the Governor these powers to exercise in all criminal sentences of this State.  The law does not give that authority to the Court.  "Commutation" in the statute is the changing of punishment to which a person has been condemned to one less severe.  It is a change of one punishment known to the law for another and different punishment also known to the law.

     The Pohnpei State Constitution made the most recent change.  The Constitution is printed in Pohnpeian and in the English languages.  The Pohnpeian wording reads:

Kepina kak kamwotehla, welianda de wekidala oh kihda mahk ong aramas emen me dipekidahr dihp toutou, ni eh pahn idawehn kaweid me kosondi sang kosonned....

Here, it is clear that certain powers are given to the Governor to exercise.  The English version reads:

The Governor may grant reprieves, commutations and pardons after conviction of offenses other than impeachment, subject to regulation by statute....

     Careful reading of the two versions of the Pohnpei Constitution reveals some fundamental differences with respect to Article 9, Section 8.  For instance, a literal translation of the Pohnpeian version may be read as:

The Governor may commute, substitute or modify and grant pardon to a person convicted of a felony, subject to regulation by statute ....

Two terms are rather unclear in the Pohnpeian version.  These are the terms "welianda" and "wekidala."  Literally, welianda means "to exchange," "substitute with another," or "supersede." "Wekidala" is literally "alter," "change," "amend," "convert," "modify."  If these are what the Convention intended the Governor to have the power to exercise, then the power that it gives to the Governor to exercise includes the power to reduce sentences (kamwotehla), to exchange or substitute a sentence with another (welianda), to alter, change, amend, convert, or modify a sentence (wekidala), and to grant pardon (kihda mahk ong aramas). The supporting Convention report does not help us much under the circumstances. See Standing Committee Report No. 81, Pohnpei Constitutional Convention.  On page 5, the Convention said:

The Governor has the power to grant pardon in felony cases. The Governor from his own  determination and decision may grant pardon to a person convicted of a felonious offense, commute a criminal sentence, or discharge a person from the penalty of a felonious offense.

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     Clearly, there is no reference to the power of the Governor to grant a reprieve, for to grant a reprieve is to suspend or postpone the execution of a sentence to a certain day and a reprieve cannot defeat the ultimate execution of the judgment and sentence of the court, but can merely temporarily delay its execution.  There is no specific reference in the language of the Pohnpeian version that gives the Governor the power to grant a delay or postponement of a criminal sentence.

     The Pohnpeian version is also ambiguous in its reference to the power to grant parole, for parole is a conditional release from actual confinement under a sentence of imprisonment, contingent upon future conduct with respect to terms of parole, and the parolee is subject to confinement for the unserved portion in the event he violates the provisions of parole.  It may be construed here that the Convention intended that "wekidala" means the change of disposition of the convict's person from actual confinement to parole, although not specific.

     The crucial deviation that exists in the Pohnpeian version from the standard constitutional provision in the grant of such powers to the executive is the very broad choice of word used, particularly the use of the term "welianda."  The literal meaning of the term can be construed very broadly to include the connotation that the Governor may substitute a court-imposed criminal sentence with a different sentence.  For example, the Governor could replace a court-imposed sentence of imprisonment with that of a fine or vice versa, or incarceration with probation.

     With respect to the English version, it does clearly give the Governor the power to grant a reprieve, commutation, and pardon.  Thus, the Governor, under this version, can delay or postpone the execution of a sentence which had been previously imposed by the court (reprieve), reduce its term (commutation), completely free the convict from control of the state, exempt him from further punishment, or relieve him from all legal liabilities and blot out the very existence of his guilt (pardon).  Again, this version is silent on the power to grant parole, for to grant parole is to ameliorate a punishment by permitting the convict to serve his sentence outside than prison walls, but without interrupting the term or duration of the sentence.
 
     Given these different translations, we must interpret them in the light of the relevant provisions of the Constitution.  To do this, we must search for the Convention's instructions, if any, in the event that this instrument conflicts in its versions.  A thorough search of the provisions reveals no direct instruction other than Section 1 of Article 13.  That provision instructs as follows:

Section 1. Official language.  The official languages of the Pohnpei Government shall be the Pohnpei and English language.

Here, both languages are to be recognized as official languages of this government.  It follows therefore that both of the Constitutional versions must be given effect.  They are therefore to be construed together in harmony

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in determining the intent of the Convention on any subject.  In analyzing the two versions, I conclude that the following provisions exist in the Constitution:

     1.      With respect to the power to grant a reprieve, while the Pohnpei version fails to carry the language, it is obvious that the English version does give that power to the Governor.

     2.      With respect to the power to commute a sentence, both versions give the power to the Governor.

     3.      With respect to the power to grant pardon and parole, while both versions give the power of pardon to the Governor, they are surprisingly silent on the power to grant parole.

     4.      With respect to the power to grant pardon, both versions clearly give that power to the Governor, although the Pohnpei version restricts that power only to felony cases.  Therefore, the constitutional grant of pardoning power to the Governor only  applies to defendants convicted and sentenced in felony cases.  The power to grant pardon in misdemeanor cases and the power to grant parole is not reserved to the Governor by the Pohnpei Constitution.

     It is clear that the Rules presently used in the Pohnpei Supreme Court are a direct adoption of the Federal Rules used in the United State Supreme Court and the various federal district courts.  Criminal Rule 35 of the Pohnpei Supreme Court is an adoption of these Rules.  Rule 35 of the Pohnpei Supreme Court is void because the statute and Constitution of this State do not give the power to reduce sentences to the courts.  Rather, they explicitly reserve that power to the executive branch in the form of the Governor.  The Pohnpei Criminal Rule 35 cannot be compared to Rule 35 of the Federal Rules for two reasons: First, Rule 35 of the federal courts is empowered by  statute.  18 U.S.C. 3771.  Under that statute, the Supreme Court of the United States is empowered to prescribe, from time to time, rules of pleadings, practice and procedure.  All laws in conflict with such rules are of no further force or effect after such rules have taken effect. Therefore, provision of correction and reduction of sentence in the United States Code refers only to the Federal Rules of Criminal Procedure.  See 18 U.S.C.A. 3572 (West. 1985). Here is where Rule 35 comes into play in the federal courts of the United States, in contrast to the Pohnpei court system.  The Pohnpei State Judicial Act 2L-160-82 provides in Section 24 that the court shall promulgate rules of the court which will have uniform application in the courts and the Land Commission.  There is no provision in this statute that laws of this State in conflict with such rules will have no further force or effect.  It may be construed, therefore, that the legislature did not intend that such rules as promulgated by the court shall prevail over statutes.  It follows, then, that while Rule 35 of the State Court was in existence since November 30, 1983, the legislature enacted the Pohnpei State Crimes Act, SL-lL-3-85, and superseded Rule 35 with Section 9-21, giving the power of commutation to the Governor.

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     Second, the United States Constitution is silent as to the grant of power of commutation.  The United States Constitution provides in Article II, Section 2, that the President "shall have Power to grant Reprieves and Pardons for offenses against the United States, except in Cases of Impeachment." The power of commutation is not mentioned.  Hence, as interpreted by the United States federal courts, in United States v. Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 819 (1931); Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896); Nix v. James, 7 F.2d 590 (9th Cir. 1925); Rawls v. United States, 218 F. Supp. 849 (W.D. Mo. 1963), the power of commutation may be validly exercised by the federal judiciary and is not constrained.

     In contrast with that, the power with which we are here concerned is the power to reduce punishment from a greater to a lesser sentence.  As I have analyzed in the foregoing, Article 9, Section 8 of the Pohnpei Constitution tells us that while commutation may be validly exercised by the United States federal judiciary, we are constrained by our constitutional grant of that authority to the executive department.

     It is obvious from the foregoing discussion that the authority to vest the power of a reprieve, commutation, and pardon is fundamentally constitutional.  Where the constitution is silent and unreserved, it is statutory.  Therefore, the remaining power to grant a pardon in misdemeanor cases and to grant parole rests with the legislature.

     It is interesting to note, notwithstanding the freedom that the federal courts presently have to exercise Rule 35, that the history of that Rule indicates that in 1984 that rule was extensively amended by P.L. 98-473, the Comprehensive Crime Control Act of 1984.  Under the amended rule, which does not take effect until November 1, 1986, only the court of appeals is authorized to determine the unlawful character of federal sentences in relation to the new guidelines, whereas, under the current rule, the district court may decide the illegality of a federal sentence and correct it.  The new Rule 35(b), of which the Pohnpei Rule 35(b) is a copy, is also a substantial change from the current rule.  The defendant's opportunity to obtain a one-time reduction of his sentence subject to the restrictions of the 120-day rule is abolished.  Instead, under the new rule, only the government (executive department) may move to reduce a federal convict's sentence and only on the condition that the motion is made within one year after the imposition of a sentence.  Condition is also based upon the convict's assistance in the investigation and prosecution of a federal offense under guidelines to be established by the Sentencing Commission.

     Finally, I shall turn to the last part of the defendant's motion, which is for this Court to grant him work-release.  Here the defendant is seeking permission to depart from the Pohnpei State Jail on weekdays, at 6:00 o'clock in the morning and return to the said jail at 6:00 o'clock in the evening.  This Court required counsel to file authorities, local or otherwise, on the subject of the power of the court to grant work-release.  That was done, and a hearing was subsequently held wherein oral argument was made by counsel.

     Here again, the defendant brings the motion for work-release on the premise of Rule 35 of the Pohnpei Supreme Court Rules of Criminal Procedure.

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I need not repeat the obstacle that lies before this Court in exercising Rule 35, as I have made it clear that this Court lacks such power.  Be that as it may, perhaps it would be worth the time to reason the application of work-release as practiced in the United States, and as it has been practicedin the Federated States of Micronesia and particularly in the State of Pohnpei.

     The system, known as work-release, was first introduced in the United States in 1913, when Wisconsin adopted the Huber law.  As of 1965, when Congress acted upon H.R. 6964, and its companion Senate Bill 1808, to amend Section 4082 of Title 18 of the United States Code in order to facilitate the rehabilitation of persons convicted of offenses against the United States, at least 21 states had adaptations of the plan, the most successful of which were those of Maryland and North Carolina.  See S. Rep. No. 613, and Congress Record Vol.  III (1965). By 1978, over four-fifths of the states utilized a work-release program of one kind or another, allowing prisoners to leave their institution in the morning, work in the community, and return at night for social activities and sleep.  See A. Campbell, Law of Sentencing 12 (1978).

     Typically, the granting of work-release is a matter of judicial discretion and is not an offender's absolute right. Green v. United States, 481 F.2d 1140 (D.C. Cir. 1973).  But at least 20 states prohibit all participation by offenders convicted of crimes involving violence, sex or narcotics.  Adoption of the program has been by statute.

     The Model Penal Code (1984) in Article 303, Section 9 discusses that when a defendant is sentenced or committed for a term of one year or less, the court may in its order grant him the privilege of leaving the institution during necessary and reasonable hours for any of the following purposes:

     1.     to work at his employment;

     2.     to seek employment;

     3.     to conduct his own business or to engage in other self-employment, including, in the case of a woman, housekeeping and attending to the needs of her family;

     4.     to attend an educational institution;

     5.     to obtain medical treatment, or

     6.     to devote time to another purpose approved by the court.

If a prisoner is employed for wages or salary, the wages are normally received by a designated official such as the probation officer or a jail warden and are not kept by the prisoner.  From such earnings, the probation officer pays the prisoner's board and personal expenses both inside and outside of the institution, deducting so much of the costs of administration of the Section as is allocatable to such prisoner, deducting fines, if any, and to the extent directed by the Court, paying for the support of the prisoner's dependents.  Any remaining unpaid portion of the wage is paid to the prisoner upon his

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release from jail.

     Under the federal system, a person convicted of an offense against the United States shall be committed for such term of imprisonment as the court may direct, to the custody of the Attorney General of the United States, who shall designate the place of confinement where the sentence shall be served. 18 U.S.C. 4082. Under this section, a prisoner authorized to work at paid employment in the community may be required to pay, and the Attorney General is authorized to collect, such costs incident to the prisoner's confinement as the Attorney General deems appropriate and reasonable.  Green v. United States, 481 F.2d 1140 (D.C. Cir. 1973).  Any such program is authorized by law.  Therefore the power of the court to order work-release is based upon statute.  It is clear, therefore, that the authority rests with the legislature to create and assign the power of work-release.

     The defendant cites some cases, both in this Court as well as in the Supreme Court of the Federated States of Micronesia, in support of his motion, in which work-release has been authorized.  For cases in this Court, see State v. Andohn, PKD 75-85; State v. Panuelo, PKD 419-84.  I need not repeat the discussion of the power of this Court in work-release since it has been made clear in the foregoing discussion that such power has been given by the Constitution to the executive branch.

A characteristic feature, and one of the cardinal and fundamental principles of the Pohnpei State Constitutional system is that the government powers are divided among the three departments of this government, the legislative, executive, and judicial, ... each of these is separate from the others.  The principle of separation of the powers of this government operates in a broad manner to confine legislative powers to the legislature, executive powers to the executive department, and those which are judicial ... to the judiciary .... The true meaning of the doctrine of [this] separation of powers is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments .... People of Kapingamarangi v. Pohnpei State Legislature, 3 FSM Intrm. 5 (Pon. S. Ct. Tr. 1985).

     Cases from the Supreme Court of the Federated States of Micronesia include FSM v. Phillip, Criminal Action No. 1982-522 and FSM v. Helgenberger, Criminal Action No. 1986-510.  In both of these cases, the defendants were committed to serve time at the Pohnpei State Jail.  In these cases, except PCA 75-85, the defendants were allowed to depart the jail to continue their employment for wages. In none of these cases was a prisoner required or made to pay expenses of his custody at the jail.  In effect, each prisoner who wronged society, even though he was committed to jail to be punished, the courts, in my view, turned around and made society pay the cost incident to

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his punishment, or rehabilitation if one wishes to call it that, while he was allowed to go free to make money. one who is not an offender to society pays the cost of his home and meals, and labors for money.  Such a criminal defendant does not.

     It seems that the courts in the United States are split in their views of the power of commutation.  For example, in United States v.  Benz, 282 U.S. 304, 51 S. Ct. 113, 75 L. Ed. 354 (1931); People v. Herrera, 516 P.2d 626, 629 (Colo. 1973), the court reasoned that since Article II, Section 2 of the United States Constitution provides that the President has power to grant only reprieves and pardons, the Congress may vest that power by statute.  However, in Schick v. Reed, 419 U.S. 256, 95 S. Ct. 379, 42 L. Ed. 2d 430 (1974), the Court held that presidential pardoning power includes the power to commute sentences on conditions which do not offend the Constitution but which are not specifically provided for by statute (citing U.S. Const. art. II, 2, cl. 1).

     Without meaning to offend the view of our national judiciary, it seems to me, nevertheless, that if in that system Schick v. Reed were to apply, then the power to commute or grant work-release is reserved to the President.  Under that assumption, presidential pardoning power flows from the Constitution alone, not from any legislative enactment, and it cannot be modified, abridged or diminished by the Congress.  Schick, 419 U.S. at 266, 95 S. Ct. at 385, 42 L. Ed. 2d at 438. If, however, Herrera and Benz apply in our national system, then it would seem that the court cannot assume that power without legislative enactment.  To do so would be a usurpation of the power of the legislature. Under that assumption, if the Congress of the Federated States of Micronesia has not seen fit to grant that power, there is a question in my mind how the court can exercise it.  In my view, Herrera and Benz apply in the Pohnpei State court system.  For the reasons discussed above, while no reasonable man can look upon the plight of defendant Hawk without compassion, here is a circumstance where, notwithstanding prior case law, I am persuaded that this court cannot grant relief because of its lack of jurisdiction.

     Accordingly, the defendant's amended motion for reduction of sentence  is ORDERED denied in its entirety.

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