Zedner v. United States


First, could Zedner waive his right to a prompt trial under the Speedy Trial Act, and, second, assuming a violation of the Act actually occurred, was the Second Circuit justified in excusing the violation as harmless error because it did not prejudice Zedner?

Oral argument: 
April 18, 2006

The Speedy Trial Act requires that criminal defendants be brought to trial within 70 days of being charged, otherwise the accused is entitled to a mandatory dismissal of the charges. The Act also enumerates certain circumstances that allow the courts to delay the time of trial without need for dismissal. In this case, the Court of Appeals held that Jacob Zedner waived his right to speedy trial and caused much of the delay. Thus, even though the trial court’s reasons for delay did not exactly fall within the Speedy Trial Act’s list of exceptions, those reasons for delay were too negligible to justify dismissal. The Supreme Court must decide if the Second Circuit properly refused to dismiss on the basis of Zedner’s alleged waiver, or if that waiver and the Second Circuit’s holding are inconsistent with the language and purpose of the Speedy Trial Act. Hopefully, this case will provide a much-needed, uniform interpretation of the Speedy Trial Act, giving the federal courts a more predictable and consistent basis to judge this persistently troublesome right.

Questions as Framed for the Court by the Parties 

1. Whether, in light of the statute's text and Congress's goal of protecting the public interest in prompt criminal trials, the requirements of the Speedy Trial Act may be waived only in the limited circumstances mentioned in the statute, the issue left open in New York v. Hill, 528 U.S. 110, 117 n.2 (2000).

2. Whether a violation of the Speedy Trial Act's 70-day time limit for bringing a defendant to trial is subject to harmless error analysis, despite the statute's mandatory language stating that, in the event of a violation, the “indictment shall be dismissed.”


During March 1996, Jacob Zedner tried to open an account with several financial institutions using a fake $10 Million bond issued by the fictitious “Ministry of Finance of U.S.A.” U.S. v. Zedner, 401 F.3d 36, 39 (2nd Cir. 2005) [hereinafter “Zedner III”]. Due to several suspicious mistakes in the counterfeit bond, each financial institution Zedner contacted refused to open an account for him and one of the institutions alerted the United States Secret Service. Id. Consequently, Zedner was arrested on March 12, 1996 and a voluntarily search of his briefcase revealed counterfeit bonds similar to the ones Zedner presented to various financial institutions. Id. After consideration of all the evidence presented against Zedner, on April 4, 1996 a grand jury indicted Zedner on several counts of attempting to defraud a financial institution under 18 U.S.C. § 1344, in addition to one count of knowingly possessing counterfeit bonds under 18 U.S.C. § 472. Id.

Zedner’s attorney did not appear at the first status conference scheduled for June 7, 1996, causing the district court to enter an order excluding the delay until a second conference scheduled for June 21, 1996 in accordance with the Speedy Trial Act, 18 U.S.C. §§ 3161-3174. Id. Zedner’s attorney also failed to appear at the second conference on June 21, 1996, leading the district judge to enter another order excluding the delay until June 26, then on June 26, 1996 the court entered an order excluding delay from June 26, 1996 to September 6, 1996, attempting to allow Zedner adequate counsel for a rather complicated judicial proceeding. Id at 39-40. The district court reconvened on September 6, but the case was adjourned and the court issued yet another order excluding the delay until November 8, 1996. On November 8, Zedner then requested a delay until the end of January, causing the court concern about Zedner’s right to a speedy trial. Id at 40. The district court, recognizing that it had several cases already pending, asked Zedner to waive his right to a speedy trial in exchange for discontinuing the proceeding until the end of January. Zedner agreed to the waiver and subsequently signed an executed written waiver, but only after the district court explained the rights he forfeited as a result of the waiver. Id.

After the district court secured Zedner’s waiver “for all time” of his rights under the Speedy Trial Act, more orders of exclusion were granted and when the Government signaled that it was ready to try the case on January 31, 1997, Zedner’s attorney successfully requested further delay until May 5, the date of jury selection. Id. On May 2, 1997 Zedner’s attorney, James Hagney, asked to be replaced as counsel because Zedner wished to assert that he believed that the counterfeit bonds were real and the court initially denied this request, choosing to appoint an attorney from the Federal Defender Division of the Legal Aid Society as advisory counsel, though ultimately Hagney was fully relieved of his duties as Zedner’s attorney. Id. On May 2, the district court asked Zedner to submit to a government arranged psychiatric examination, which he agreed to, and the proceeding was postponed until August 5, 1997, when a psychiatrist concluded that Zedner was mentally fit to stand trial. Id.

Zedner requested permission to represent himself on September 8, 1997, citing dissatisfaction with his new attorney, but the court decided that Zedner would have to proceed pro se, with his current attorney staying onboard in an advisory capacity. Id. Zedner then unsuccessfully attempted to subpoena several high-ranking government officials including then-President Clinton, the Federal Reserve Chairman, Attorney General and Secretary of State, while moving to dismiss his indictment on the grounds that the government’s treasonous agents had violated his civil rights. Id. On December 17, 1997, the court rescheduled jury selection for February 17, 1998, but on January 30, 1998, Zedner sought a delay to serve subpoenas on government entities that did not exist. Id. Zedner continued this pattern of behavior for the next eight months until on October 8, 1998, when the court set jury selection for October 14, however, the morning of jury selection the court expressed doubts about Zedner’s mental health and chose to dismiss the jury panel so that Zedner could have a psychiatric evaluation, resulting in a finding that he was incompetent to stand trial. Id at 40-41. Zedner was ordered hospitalized and committed under 18 U.S.C. § 4241(d), but he filed an interlocutory appeal and the Court of Appeals vacated the commitment order, requesting on remand another competency hearing since Zedner was acting as his own counsel though his mental health was at issue. Id at 41.

The district court held a status conference on April 4, 2000, but no one appeared on Zedner’s behalf so the conference was rescheduled for April 27, 2000, at which time Tracey Gaffey of the Federal Defender Division of the Legal Aid Society appeared acting on Zedner’s behalf and successfully requested a new competency hearing for July 10, 2000. Id. In early August 2000, Gaffney submitted a brief asserting that Zedner was competent to stand trial as soon as possible, while the Government argued that Zedner was incompetent. Id. In November, as the district considered arguments as to Zedner’s competency, Gaffey’s pregnancy forced her to withdraw from trying the case, then Gaffey and the Government later concluded that Zedner’s case did not require immediate resolution. Id.

On March 7, 2001, Zedner filed a motion to dismiss the indictment with prejudice on the grounds that his rights under the Speedy Trial Act and the Sixth Amendment had been violated. Id. The court denied this motion on March 21, 2001 in light of Zedner’s earlier waiver “for all time.” Id. Then the district court found Zedner incompetent and ordered him recommitted to the Attorney General’s care, though Zedner unsuccessfully appealed to the Court of Appeals, resulting in Zedner entering a federal medical facility for psychological assessment in May 2002, where he remained until August 27, 2002 due to a 90 day extension for a more comprehensive psychological assessment. Id. The district court accepted the institution’s assessment that Zedner, though delusional, was competent to stand trial, and scheduled jury selection for April 7, 2003 and trial followed soon after. Id at 41-42.

At trial, Zedner’s state of mind when he tried to use the counterfeit bonds was the central issue, as the Government produced several witnesses tending to show that Zedner had a history of acting with fraudulent intent, while Zedner countered with a psychiatrist’s testimony that he was delusional and believed that the bonds were legitimate. Id at 42. Zedner was convicted of six counts of fraud for six separate attempts to use the $10 million bond and the district court sentenced him to 63 months in prison but gave Zedner some credit for time served. Id. Zedner appealed to the Second Circuit, which then affirmed his conviction but did not pass on whether or not Zedner waived his right to a speedy trial, instead finding that any violation of Zedner’s right to a speedy trial was harmless error. Id at 45, 48.



Central to the Court’s determination of whether or not a defendant should be able to waive his statutory right to timely trial is United States v. Mezzanatto. 513 U.S. 196 (1995). In Mezzanatto, the Court held that an individual may waive a statutory right unless there is an “affirmative indication of Congress’ intent to preclude waiver.” Id. at 201. With the Mezzanatto rule in mind, the Supreme Court will need to determine whether § 3161 reflects congressional intent to preclude waiver.

Zedner makes a primarily formal argument, concentrating on the text and structure of the Speedy Trial Act to demonstrate that Congress clearly intended to preclude defendants from waiving their right to a speedy trial, except under limited circumstances. He begins by focusing on the procedural requirement in
§ 3161(h)(8)(A); where a judge grants a continuance found to serve the “ends of justice,” that delay will not be excludable from the seventy day limit unless the judge “sets forth [reasons], in the record, either orally or in writing.” 18 U.S.C. § 3161(h)(8)(A). Pointing to the fact the district court did not issue any orders of exclusion after Zedner’s “waiver for all time,” Zedner argues that the trial judge failed to satisfy the procedural requirement of § 3161(h)(8)(A). Petition for a Writ of Certiorari at 23; see also Zedner III, 401 F.3d at 40. He goes on to argue that nothing in the text of the statute supports the Circuit Court’s holding that an “ends of justice” finding under § 3161(h)(8)(A) is unnecessary where granting the defendant’s request for adjournment would serve the ends of justice. Petition for a Writ of Certiorari at 23; see also Zedner III, 401 F.3d at 45. Zedner supports the latter contention by pointing to other sections of the STA that allow for express and implied waiver under limited circumstances. Section 3162(a)(2), for example, allows for implied waiver if, after the seventy days have lapsed, a defendant fails to move for dismissal before trial. 18 U.S.C. § 3162(a)(2). Along similar lines, § 3161(c)(2) allows for express waiver of the thirty day minimum period between a defendant’s first appearance before the court with counsel and the beginning of trial. 18 U.S.C. § 3161(c)(2). With those two subsections in mind, Zedner points to the general presumption the Court articulated in Barnhart v. Sigmon Coal Co. that when Congress employs particular language in one section of a statute and omits that language from another section, “it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” 534 U.S. 438, 452 (2002) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)); see also Petition for a Writ of Certiorari at 25. Thus, where sections 3161(c)(2) and 3162(a)(2) include express language addressing the availability of waiver, the Circuit Court erred where it inferred the availability of waiver from § 3161(h)(8)(A). Petition for a Writ of Certiorari at 25.

Zedner also briefly points to the purpose and legislative history of the STA. Specifically, he relies on the Third Circuit’s interpretation of the Senate Report, which suggests that Congress’ 1979 amendments to § 3161 deliberately limited the availability of waiver to § 3161(c)(2). United States v. Carrasquillo, 667 F.2d 382, 389 (3d. Cir. 1981) (citing S. Rep. No. 212, 96th Cong., 1st Sess. 28–29 (1979)). Moreover, the Third Circuit went on to hold that attempts by the courts to infer additional waiver rules into § 3161 would run contrary to the statute’s purpose. Id. at 389; see also Zedner III, at 26.

Beginning with the Mezzanatto rule requiring an affirmative indication of Congress’ intent to preclude the availability of waiver, the Government urges the Court to follow the reasoning it adopted in New York v. Hill. Brief for the United States, at 9. In Hill, the Court considered the effect of a defendant’s waiver the time limit established by the Interstate Agreement on Detainers Act (IAD). 528 U.S. 110, 111 (2000); see also Pub. L. 91-538, § 1, Dec. 9, 1970, 84 Stat. 1397. The IAD allows one state seeking to bring charges against a prisoner in another state to file a detainer against the prisoner. Id. at 112. Once the detainer has been filed, the prisoner may file a request that the charges be brought to final disposition, which requires the charges to come to trial within 180 days. Id. Alternatively, the charging state may also seek custody of the prisoner, in which case the charges must come to trial within 120 days. Id. In Hill, the Court held that, where the prisoner agreed to a trial date that fell outside the 120 day limit, he effectively waived the rights secured by the IAD. Id. at 118. Specifically, the Court in Hill held that a provision in the IAD allowing for “good cause continuances” did not suggest that Congress intended to eliminate the availability of any other types of waiver. Id. at 116. Similarly, the Government argues, the provisions in the STA that expressly provide for waiver should not be interpreted to preclude other forms of waiver. Brief for the United States, at 9.

In addition, the Government argues that, although the District Court’s failure to make its “ends of justice” finding on the record violated the STA, the unusual circumstances of this case prevent that violation from upsetting congressional policy. Brief for the United States, at 10. To the extent that the STA allows trial judges to make “ends of justice” findings, the District Court’s findings were well within the discretion granted by the STA. Id. at 10–11. Furthermore, holding defendants to their waivers simply prevents defendants from inducing the courts to rely and then moving to dismiss on the basis of technical errors resulting from that reliance. Id. at 11.

It seems unlikely, however, that the Court will follow Government’s argument in favor of the “middle position” espoused by the Second Circuit. Requiring the circuit courts to retroactively determine whether or not a district court’s decision to grant a continuance served the ends of justice is an alarmingly nebulous standard. In addition, the retroactive test begs the question why § 3161(h)(8) articulates specific (and easily met) procedural requirements for a continuance based on the service of justice if the circuit courts can retroactively make that determination regardless of procedure. For that matter, where the district court has failed to articulate the basis of a continuance in writing or orally, the trial record may not provide an adequate basis for the circuit court’s retroactive determination. Finally, considering the increasingly formalist face of the Supreme Court, it seems highly unlikely that the Court will adopt a test that undermines procedural requirements expressly articulated in the text of § 3161(h)(8). Instead, the Court will likely adopt the stricter standard articulated by the Fifth Circuit in United States v. Willis, where any request for continuance, even when sought by the defendant, must fall within the STA exceptions. 958 F.2d 60, 64 (5th Cir. 1992).


It seems worthy of note that the defendant in United States v. Gambino—upon which the Second Circuit frequently relied when supporting its harmless error analysis in Zedner III—petitioned the Supreme Court for certiorari on the applicability of harmless error to Speedy Trial Act cases. The Court denied certiorari in that case, which suggests that they did not consider application of the harmless error standard to Speedy Trial Act cases objectionable. 517 U.S. 1187 (1996) (denying certiorari).

Addressing the Second Circuit’s harmless-error analysis, Zedner again relies on a formal reading of the statute’s text in addition to two of the Court’s earlier decisions: United States v. Taylor, 487 U.S. 326 (1998), and Alabama v. Bozeman, 533 U.S. 146 (2001). See Petition for a Writ of Certiorari at 27. Zedner argues that where § 3162(a)(2) expressly states that violations of the seventy day limit require dismissal, the Circuit Court contradicted the statute where it held that the violation in this case was merely harmless error.

In Taylor, the Court considered the scope of a district court’s discretion to dismiss a case, under § 3162(a)(2), with or without prejudice. 487 U.S. at 328. Zedner’s reliance on Taylor seems tenuous. To begin, he relies on dicta, asserting the Taylor Court’s description of the statute as support for his reading of the statute. Compare Petition for a Writ of Certiorari at 34, with Taylor, 487 U.S. at 332. He goes on to contend that the Court’s description of the limits that § 3162(a)(2) places on judicial discretion to dismiss with or without prejudice should all but eliminate the choice not to dismiss. Petition for a Writ of Certiorari at 34; see also Taylor, 487 U.S. at 333. Finally, short of the threat of an “absurd” result, the courts may not interpret a statute in a way that runs contrary to its plain language. Id. at 35 (citing Lamie v. United States Trustee, 540 U.S. 526,534 (2004)). Relying on a passage or passages from Taylor that he does not cite, Zedner then argues that the Court’s history of interpreting the STA shows that dismissal for failure to make “ends of justice” findings on the record would not be an absurd result, thereby eliminating recourse to harmless-error analysis. Id.

In Bozeman, the Court again considered the 120 day limit of the IAD. Petition for a Writ of Certiorari at 37. If the state fails to bring the prisoner to trial within that limit, it must return the prisoner and dismiss the indictment with prejudice. Id. Like the Second Circuit here, the state of Alabama in Bozeman argued that the violation should be overlooked as harmless. 533 U.S. at 153. The Court disagreed, holding that the speedy trial provision of the IAD had “absolute language” mandating dismissal after violation, thereby precluding harmless error analysis. Id. at 153–54. Section 3162(a)(2), Zedner argues, contains equally “absolute language.” Petition for a Writ of Certiorari at 37–38.

Finally, Zedner argues that legislative history reflects that the addition, during the drafting phase, of the option to dismiss without prejudice in § 3162(a)(2) was intended to address situations where minor violations do not meaningfully harm the defendant. Id. at 39. Although it must secure a new indictment in order to do so, the Government is able to reprosecute a defendant after a dismissal without prejudice. Id. at 35. That, according to Zedner, is as far as Congress was willing to go after violations of the seventy day limit set by the STA. Id. at 39.

The Government argues that the Court of Appeals’ allegedly novel application of the harmless error analysis was, in fact, dictum. Brief for the United States, at 14. Under the Government’s reading, the Circuit Court’s discussion of harmless error was limited to its review of the District Court’s holding on Zedner’s competence, and even then the discussion was merely hypothetical. Id. at 15. In support of this position the Government contends that the Circuit Court did not expressly find that the District Court had erred in its finding as to Zedner’s competence, rather the Circuit Court merely held that “any” error would be harmless. Id.; see also Zedner III, at 48 (“We conclude without hesitation that the error, if any, was harmless . . .”). In this case, there was no error because Zedner could not be tried while he was incompetent. Id. Moreover, although the § 3161(h)(8)(A) requires findings in the record for “ends of justice” exclusions, an exclusion for incompetence, under § 3161(h)(4) requires no such finding. Id.; see also 18 U.S.C. § 3161(h). Thus, because there was no violation of the STA during the period of Zedner’s incompetence, the Circuit Court’s consideration of harmless error was superfluous. Id. at 16.

The Government next argues that Circuit Court correctly conducted its harmless-error analysis to the “alleged error.” Id. On the one hand, both 28 U.S.C. § 2111 and Rule 52 of the Federal Rules of Criminal Procedure, require courts to disregard errors that do not effect a defendant’s “substantial rights.” Id. Moreover, because any error that might have been committed was strictly “technical,” the Court need not consider the applicability of harmless-error analysis of substantive violations of the STA. Id.

The Government concludes by distinguishing Taylor and Bozeman. Id. at 17. The issue in Taylor was the scope of a district court’s discretion when determining whether to dismiss with or without prejudice under § 3162(a)(2); thus the Court’s decision in that case should have no bearing the applicability of harmless-error analysis. Id. at 17. The distinction the Government draws between Bozeman and the present case is less compelling. In Bozeman, the state’s violation of the IAD—to which the Court said harmless-error did not apply—was more severe than the alleged violation of the STA in Zedner’s case. Id. at 17–18. Whether the Court will agree that the language of the STA allows for nuanced distinctions between violations of its clear procedural requirements remains to be seen.


The Sixth Amendment of the Constitution ensures that defendants in criminal prosecutions “shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. Although the Supreme Court acknowledged that the right to a speedy trial is as “fundamental” as any of the Sixth Amendment rights extended to criminal defendants, Klopfer v. North Carolina, 386 U.S. 213, 223 (1967), the Court has also found the right to be “generically different.” Barker v. Wingo, 407 U.S. 514, 519 (1972). Most notably, the courts have struggled to enforce a defendant’s right to speedy trial simply because it is “impossible to determine with precision when the right has been denied.” Id. at 521. Enacted in 1974, two years after Barker v. Wingo, the Speedy Trial Act was Congress’ response. While the Act protects the constitutional right as defined by the Court, it also provides the courts with a clear standard by codifying time limits that can only be extended in accordance with the Act. Marc I. Steinberg, Right to Speedy Trial: The Constitutional Rights and its Applicability to the Speedy Trial Act of 1974, 66 J. Crim. L. & Criminology 229, 230 (1975); see generally Speedy Trial Act, 18 U.S.C. §§ 3161–3174 (2005) [hereinafter “STA”].

The right to a speedy trial implicates interests on all sides of a criminal trial. Most obviously, both criminal defendants and prosecutors have an interest in fresh evidence and in the memories of their witnesses. Barker, 407 U.S. at 521. Interestingly, the strength of the witnesses’ recollection might weigh most heavily on the prosecutor, who bears the burden of proof at trial. Id. For defendants who cannot secure bail, the period between indictment and trial is spent in detention. In addition to the evident impact on a defendant’s liberty, that time in detention inhibits the defendant’s ability to prepare a defense, eliminates his ability to maintain employment, and, can place a considerable burden on family. Id. at 532–33. All of this occurs before the defendant has been convicted of a crime.

Society also has considerable interest in limiting the amount of time between a criminal defendant’s indictment or arrest and trial. Lengthy delays between indictment and trial can lead to a backlog of criminal cases that overburden the system, which, in turn, improves defendants’ ability to negotiate for lesser charges in exchange for guilty pleas. Id. at 519. Where defendants post bail, the period between indictment and charge presents an opportunity to commit additional crimes or to interfere with the prosecutor’s case. Id. In the case of defendants who remain in custody, the cost of pretrial detention falls to the taxpayers, a burden that falls with particular weight on urban areas. Id. at 520–21; see e.g. Paul von Zielbauer, N.Y. Times, City Inmate Population Up; Brooklyn Jail May Reopen, March 3, 2006. Finally, there is a risk that lengthy periods of pretrial detention can have significant negative impact on the rehabilitative benefits of sentencing a criminal defendant. Id at 520.

Beyond the general policy concerns behind the right to a speedy trial, the question of a defendant’s ability to waive that right raises an additional array of concerns. Zedner argues that there is currently a broad split among the Circuit Courts of Appeals in their treatment of a defendant’s ability to waive the rights secured by the STA. Petition for a Writ of Certiorari at 13. According to Zedner, the Third, Fifth, Sixth, Eighth, Ninth and Tenth Circuits adhere to a “no waiver” position that bars implicit waiver of the right to a speedy trial and only allows the explicit waivers recognized under the STA. Id. at 14; see e.g. 18 U.S.C. § 3161(c)(2) (allowing defendants to “consent in writing” to commencement of trial less than thirty days after charges). In contrast, the Eleventh and District of Columbia Circuits employ a “broad waiver” approach that allows express waivers for all time (as in the case at bar) provided the waiver is knowing and voluntary. Id. at 18. Under the “broad waiver” approach, in contravention of the procedural requirement of § 3161(h)(8)(A), the Eleventh and District of Columbia Circuits do not require “interests of justice” findings on the record where the accused has expressly waived the speedy trial right. Id. Lastly, the First, Fourth, and Seventh Circuits take the “intermediate waiver” position that the Second Circuit adopted in Zedner III. They generally adhere to the notion that a defendant cannot waive the right to a speedy trial; however, these circuits will not grant dismissals pursuant to the STA where the defendant is responsible for the delay, regardless of the mandatory requirements of the Act. Id. In the “intermediate waiver” circuits, a defendant is accountable for delay where he engages in dilatory behavior or specifically petitions a court for delay, as Zedner did in the case at bar. Id. Pointing to the fact that Congress enacted the STA to create a uniform and predictable rule to ensure that criminal trials proceed expeditiously, Zedner argues that a defendant’s geographic location currently plays a greater role than Congressional intent in dictating the scope of the STA. Id. at 12-13.

The Government contends that the disagreement among the Courts of Appeals is not as widespread as Zedner suggests. Brief for the United States in Opposition to a Writ of Certiorari at 11 [hereinafter “Brief for the United States”]. Specifically, the Government argues that the Second Circuit’s holding is not at odds with the leading decisions of the Third, Sixth, Eight, Ninth and Tenth Circuits; given the unique circumstances of the case at bar, those cases are distinguishable and the Second Circuit is not an outlier here. Id. The Government also reiterates the Second Circuit’s argument that the district court failed to satisfy the procedural requirements of an “ends of justice” finding because of Zedner’s “all time” waiver. Id at 10. To dismiss the Government’s case against Zedner simply because the district court was lulled into a false sense of security by Zedner’s waiver could open the door to significant manipulation by future defendants and would pervert the policy goals behind the STA. Id at 10-11.


At the heart of this case lies a right that the Court has frequently found difficult to define and enforce. On the one hand, it appears that the district court reasonably relied on Zedner’s waiver of his right to speedy trial when it ceased to record its findings for exclusion from the seventy day time limit. On the other, the Speedy Trial Act provides clear and easy-to-follow procedural requirements that do not appear to admit exceptions. Thus, the Court must decide whether to strictly enforce the statute’s ostensibly clear language, which would likely result in a dismissal without prejudice and would require the Government to decide if it wants to re-prosecute. Alternatively, the Court might find that the statute affords a permanent waiver of the right the Speedy Trial Act was enacted to protect, thereby sending Zedner back to trial some ten years after his indictment.

Written by: Miles Norton & Nick Wimbush

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