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govinfo:USCOURTS-wvnd-1_23-cr-00069-0
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
UNITED STATES OF AMERICA,
Plaintiff,
v. CRIMINAL NO. 1:23-CR-69
(KLEEH)
CHRISTOPHER HARP,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING THE UNITED STATES’ MOTION
IN LIMINE REGARDING 414 AND 404(B) EVIDENCE [ECF NO. 46]
Pending before the Court is the United States’ Motion in
Limine Regarding 414 and 404(b) Evidence [ECF No. 46]. Defendant
Christopher Harp (“Harp”) filed a response in opposition [ECF No.
50], and the Court held an evidentiary hearing with respect to the
motion on April 10, 2024. For the reasons discussed herein, the
motion is GRANTED.
I. THE INDICTMENT
On or about September 25, 2020, FBI agents executed a federal
search warrant at Harp’s home in Morgantown, West Virginia. The
FBI found evidence of child pornography offenses on a laptop that
was seized during the search.
On November 7, 2023, the grand jury returned a four-count
indictment charging Harp in Counts One through Three with Receipt
of Child Pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A)
and 2252A(b)(1), and in Count Four with Possession of Child
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Pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and
2252A(b)(2). Counts One through Three allege that Harp received
child pornography on or about April 4, 2019, September 18, 2020,
and September 21, 2020, respectively. Count Four alleges that
Harp possessed child pornography on or about September 25, 2020.
II. ELEMENTS OF THE RELEVANT CHILD PORNOGRAPHY OFFENSES
Receipt of Child Pornography, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2252A(b)(1), includes the following
elements:
(1) that the defendant received or distributed
(2) any child pornography, or any other material
that contained child pornography
(3) that had been mailed, or using any means or
facility of interstate or foreign commerce or
in or affecting interstate or foreign commerce
by any means, including by computer; and
(4) that the defendant acted knowingly.
United States v. Miltier, 882 F.3d 81, 93–94 (4th Cir. 2018).
Possession of Child Pornography, in violation of 18 U.S.C.
§§ 2252A(a)(5)(B) and 2252A(b)(2), includes the following
elements:
(1) that the defendant possessed or accessed with
intent to view a computer disk or any other
material that contained an image of child
pornography
(2) that had been mailed, or shipped or
transported using any means or facility of
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interstate or foreign commerce or in or
affecting interstate or foreign commerce by
any means, including by computer, or was
produced using materials that had been mailed,
or shipped or transported in or affecting
interstate or foreign commerce by any means,
including by computer; and
(3) that the defendant acted knowingly.1
Id.
III. EVIDENCE TO SUPPORT COUNTS ONE THROUGH FOUR
As the Government sets forth in its motion, the following
evidence forms the basis of the charges in the Indictment:
April 4, 2019
o On this date, numerous files were partially downloaded,
and 15 files were fully downloaded. The files were also
marked for deletion that day. The files included the
following:
“(PHANT) – Pedomom – brother sister – sensual mujer
con nino de 7 (compilacion).mp4”;
“(PHANT) – pedomom madre le da placer a la vagina
de su hija.mp4”; and
“pedomom 14Yo Sis Give A Blowjob For 5Yo Brother
New, Mother Suck 6Yo Son Toddler 2m27.avi.”
September 18, 2020
o On this date, multiple files were downloaded, including
the following:
1 Count Four of the Indictment specifically alleges that the child
pornography involved a pre-pubescent minor and a minor who had not
attained 12 years of age.
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“Pedomom PLEASE share more PTHC 2018”;2
“(PHANT) – pedomom- brother sister – sensual mujer
con nino de 7 (compilacion)”; and
“PHANT – pedomom PAE nina de 3 anos parte 3 posando
para la camera.”
September 21, 2020
o On this date, 30 files were downloaded, including the
following:
“opva American Family Pthc- USA Dad Fuck Toddler
4Yo or 5Yo girl.mp4”;
“[ShowPorn TV]2013 Pthc – Polaroid Family
Slidemovie.mp4”; and
“PEDOMOM-09.mp4.”
In addition, the search history included the following terms, many
of which are included in the file names of the downloaded files:
“pedomom,” “Vicky American pie,” “kylie,” “Vicky,” “pthc family,”
“pthc mom,” “pedomom boy,” “pthc car,” “pthc teen,” “pthc,” “kylie
talk,” “qqaazz,” and “a family affair.”
IV. PROPOSED 414 AND 404(B) EVIDENCE
The Government asserts that the laptop computer also
contained evidence of receipt and download of child pornography on
occasions prior to the charged offenses. It seeks to introduce
this evidence under Rules 414 and 404(b).
2 Special Agent Cory Thigpen testified that “PTHC” stands for “pre-
teen hard core.”
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Much of the proposed evidence was located during a review of
the laptop’s “restore points,” which are earlier versions of a
computer’s operating system. During the hearing, Peter Hammer, a
previous forensic examiner with the FBI, testified that restore
points are sometimes created when a computer runs a software
update. Essentially, a restore point operates as a backup of the
files that have been saved, deleted, moved, etc. since the
computer’s last backup. It saves the system as it was at the time
of the update, in case something goes wrong with an update and a
return to the previous version is needed.
The July 8, 2016 restore point shows that
o Google Chrome login data for accounts named “charp51”
and “chrisharp51” existed;
o 14 files containing the phra se “PTHC” were accessed
between June 2012 and September 2012; and
o On July 12, 2023, the file “Kylie Freeman-(Pthc Pedo)
9Yo Vicky – Full.mpg” appeared in the registry.
The July 28, 2016 restore point shows that
o Someone had used “Shareaza,” a peer-to-peer file sharing
system, to partially download 8 files of potential child
pornography and fully download 5 video files indicating
potential child pornography; and
o The history of search terms in Shareaza contained the
terms “pedomom” and “pthc.”
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The July 29, 2016 restore point shows that
o The 8 partially downloaded files from July 28 were marked
for deletion;
o 5 fully downloaded files from July 28 were marked for
deletion; and
o The search history included “pedomom,” “pthc mom,” and
“pthc.”
The August 3, 2016 restore point shows that
o 2 files indicating potential child pornography were
partially downloaded: “Pedomom – Mother son compilation
02.mpg” and “Pedomom – Moher $ Son.avi”; and
o 1 video suggesting potential child pornography was fully
downloaded: “PedoMom Yogurt.avi.”
The August 5, 2016 restore point shows that
o The 2 partially downloaded files and the fully
downloaded files from August 3 were marked for deletion;
and
o The search terms contained “pae,” “Vicky,” “private pae
2,” “pedomom,” “pthc mom,” and “pthc.”
The First August 16, 2016 restore point shows that
o 4 files indicating potential child pornography were
partially downloaded;
o 1 file indicating potential child pornography was fully
downloaded: “(PHANT) – Pedomom Intenta Seducir a Hijo de
1 Ano Parte 2 Hard.avi”; and
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o The search terms contained “pthc mom,” “pedomom,” “a
family affair,” “cbaby,” “private pae 2,” “pae,”
“Vicky,” and “pthc.”
The Second August 16, 2016 restore point shows that
o The fully downloaded video from the First August 16,
2016 restore point was marked for deletion.
The April 24, 2018 restore point shows that
o Google Chrome login data existed for accounts named
“charp” and “charp51”;
o 3 files indicating potential child pornography were
partially downloaded on August 16, 2016;
o An additional 4 files indicating potential child
pornography were partially downloaded in January 2014;
and
o The Shareaza program was downloaded.
The April 30, 2018 restore point shows that
o 3 files indicating potential child pornography were
partially downloaded on August 16, 2016;
o The recycle bin contained 24 potential child pornography
files downloaded on April 24, 2018; and
o The search terms included “pedomom boy,” “pedomom,” and
“a family affair.”
In addition, a forensic examination of a PNY Attache green USB
media drive contained “Created”/”Modified” dates of November 2009
through September 2010 of the following files:
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“! Pthc 7 Yo My Little Girls – Part 1.mpg”;
“Preview – T-100399616-(Pthc) Webcam – 3yo family_of4 (mom
blows 7 yo boy 3 yo girl mast)(1).avi”;
“T-100399616-(Pthc) Webcam – 3yo family_of4 (mom blows 7 yo
boy 3 yo girl (mast)(1).avi”;
“Chris Harp IHS 528 Mid Term Essays.doxc”;
“Chris Harp Mid-term Takehome assignment Nov ’09 b.xlsx”; and
“Chris Harp Vent Lab 12-18-09.docx.”
V. DISCUSSION
For the reasons discussed below, the proposed evidence is
admissible under both Rule 414 and Rule 404(b).
A. The Government’s proposed evidence is admissible under
Rule 414 to show Harp’s propensity to commit child
pornography offenses and for its bearing on any matter
to which it is relevant.
Rule 414(a) of the Federal Rules of Evidence provides, “In a
criminal case in which defendant is accused of child molestation,
the court may admit evidence that the defendant committed any other
child molestation. The evidence may be considered on any matter
to which it is relevant.” As the legislative sponsors of Rule 414
explained, the Rule creates an exception to the general prohibition
of evidence of a defendant’s “propensity”:
The new rules will supersede in sex offense
cases the restrictive aspects of Federal rule
of evidence 404(b). In contrast to rule
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404(b)'s general prohibition of evidence of
character or propensity, the new rules for sex
offense cases authorize admission and
consideration of evidence of an uncharged
offense for its bearing “on any matter to
which it is relevant.” This includes the
defendant’s propensity to commit sexual
assault or child molestation offenses, and
assessment of the probability or improbability
that the defendant has been falsely or
mistakenly accused of such an offense.
140 Cong. Rec. H8968-01, H991. The United States Court of Appeals
for the Fourth Circuit has explained the same:
This rule is an exception to the general rule
that evidence of past crimes may not be used
“to prove the character of a person in order
to show action in conformity
therewith.” . . . Unlike Rule 404(b), Rule
414 allows the admission of evidence for the
purpose of establishing propensity to commit
other sexual offenses.
United States v. Kelly, 510 F.3d 433, 436-37 (4th Cir. 2007)
(internal citations omitted). “[C]hild molestation,” as used in
Rule 414, includes the various child pornography offenses of
Chapter 110 of the Federal Criminal Code, including the offenses
charged in this case. See Fed. R. Evid. 414(d)(2)(B).
The standard of proof necessary to establish that other
crimes, wrongs, or acts occurred is whether the jury could
reasonably conclude that the act occurred and that the defendant
was the actor. United States v. Huddleston, 485 U.S. 681, 689
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(1988); see also United States v. Keen, No. 4:21-CR-52, 2023 WL
2226796, at *3 (M.D. Pa. Feb. 24, 2023) (applying Huddleston
standard to Rule 414, noting that the standard is “somewhere below
a traditional preponderance-of-the-evidence standard, but its
exact definition is left to the discretion of trial courts”).
Here, the evidence proffered by the Government under Rule 414
is evidence of Harp’s commission of other, uncharged child
pornography offenses (specifically, Receipt of Child Pornography
and Possession of Child Pornography) and is admissible to show a
propensity on his part to commit child pornography offenses. As
to the first elements of the relevant offenses, whether there was
receipt and possession, it is undisputed that the files were found
on a laptop and a USB drive taken from Harp’s home. Further, login
information for “charp” was associated with the laptop in the
restore points on the laptop, and documents with Harp’s name were
saved on the USB drive. As to whether the content was child
pornography, Special Agent Cory Thigpen testified that the video
files found on the restore points were viewable
3 and were, in fact,
child pornography depicting prepubescent children. He testified
that the file names accurately reflected the content of the videos
3 Only the video files found in t he laptop’s restore points were
viewable. Hammer testified that the files on the USB drive could
not be viewed.
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themselves. Counsel for Harp stated during the hearing that there
is no dispute that the files constitute child pornography. The
file names on the USB drive are also consistent with child
pornography, and the metadata was consistent with that of a video
file. The only issue here is whether there is sufficient evidence
that Harp acted knowingly.
Whether an offense was commi tted “knowingly” involves an
assessment of the actor’s state of mind, which is, of course,
difficult to prove. It typically requires one to draw inferences
from the actor’s conduct. See Huddleston, 485 U.S. at 685. Here,
the Government has proffered evidence that child pornography was
downloaded onto Harp’s laptop, that it was saved to his laptop at
the same time his login data existed on the laptop, and that the
files were deleted shortly thereafter. It has also proffered
evidence that files consistent with child pornography were saved
on Harp’s USB drive at the same time files with his name were
saved, and at some point the child pornography files were deleted.
These actions are sufficient for the jury to reasonably conclude
that Harp acted knowingly. Overall, the jury could reasonably
conclude that the alleged unlawful acts occurred and that Harp was
the actor. Therefore, the proposed evidence is admissible under
Rule 414.
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The Court also finds that the proposed evidence should not be
excluded under Rule 403. Rule 414 evidence is subject to the Rule
403 balancing test. See Kelly, 510 F.3d at 437. Rule 403 provides,
“Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” A district court has “wide
discretion” in admitting or excluding evidence under Rule 403.
See Kelly, 510 F.3d at 437 n.3 (citation omitted).
In considering whether Rule 414 evidence should be excluded
under Rule 403, the Court should consider several factors,
including “(i) the similarity between the previous offense and the
charged crime, (ii) the temporal proximity between the two crimes,
(iii) the frequency of the prior acts, (iv) the presence or absence
of any intervening acts, and (v) the reliability of the evidence
of the past offense.” Id. at 437 (citations omitted). Further,
“[n]o time limit is imposed on the uncharged offenses for which
evidence may be admitted; as a practical matter, evidence of other
sex offenses by the defendant is often probative and properly
admitted, notwithstanding very substantial lapses of time in
relation to the charged offense or offenses.” 140 Cong. Rec.
H8968-01, H8992. The Fourth Circuit has admitted evidence of
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uncharged sexual offenses occurring over 22 years prior. See
Kelly, 510 F.3d 443 at 438.
The Court finds that the proposed evidence’s probative value
is not substantially outweighed by the dangers outlined in Rule
403. The proposed evidence, which includes search terms for and
downloads of child pornography, is almost identical in form to the
charged conduct. The actions indicate a consistent pattern of
behavior. The probative value of the proposed evidence is high,
especially because Rule 414 allows it to be considered to show
propensity. Evidence that Harp committed other child pornography
offenses makes it more likely that he possessed and received child
pornography in this instance. Child pornography itself is
prejudicial, but it is not unfairly prejudicial here. Accordingly,
the evidence will not be excluded under Rule 403.
B. The proposed evidence is admissible under Rule 404(b) to
show motive, identity, knowledge, intent, and absence of
mistake.
Rule 404(b) provides,
(1) Prohibited Uses. Evidence of any other
crime, wrong, or act is not admissible to
prove a person’s character in order to show
that on a particular occasion the person acted
in accordance with the character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.
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The Fourth Circuit views Rule 404(b) as “an inclusive rule,
admitting all evidence of other crimes or acts except that which
tends to prove only criminal disposition.” United States v.
Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (citations omitted)
(emphasis in original).
Evidence of prior acts is admissible if it meets the following
criteria:
(1) “The evidence must be relevant to an
issue, such as an element of an offense, and
must not be offered to establish the general
character of the defendant. In this regard,
the more similar the prior act is (in terms of
physical similarity or mental state) to the
act being proved, the more relevant it
becomes.”;
(2) “The act must be necessary in the sense
that it is probative of an essential claim or
an element of the offense.”;
(3) “The evidence must be reliable.”; and
(4) “[T]he evidence’s probative value must not
be substantially outweighed by confusion or
unfair prejudice in the sense that it tends to
subordinate reason to emotion in the
factfinding process.”
United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997). The
same evidence may be offered and admitted under both Rule 414 and
Rule 404(b). See United States v. LeCompte, 131 F.3d 767, 768–79
(8th Cir. 1997) (holding that it was an abuse of discretion to
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exclude Rule 414 evidence where the court had previously held that
it should not be admitted under Rule 404(b), citing the “strong
legislative judgment that evidence of prior sexual offenses should
ordinarily be admissible”).
1. The proposed evidence is relevant.
An element of both Receipt of Child Pornography (Counts One
through Three) and Possession of Child Pornography (Count Four) is
that the defendant “knowingly” received or possessed the child
pornographic material in question. Harp has filed a notice of
alibi defense. The Government believes Harp will try to claim
that someone else downloaded the child pornography onto his
computer and USB drive or that the actions were mistakes.
The Fourth Circuit has “regularly permitted” the admission of
prior acts to prove intent when intent to commit a crime is at
issue. See Queen, 132 F.3d at 995. For example, in United States
v. Whorley, 550 F.3d 326, 337–38 (4th Cir. 2008), the court found
that evidence of a prior child pornography conviction was properly
admitted to prove that the defendant knowingly received depictions
of minors engaged in sexually explicit conduct. Additionally, in
United States v. Nanda, No. 97-5001, 1999 WL 294548, at *6 (4th
Cir. May 11, 1999) (unpublished), the court found that a chat
dialogue with minors and uncharged images were relevant and
necessary to show intent, knowledge, and absence of mistake where
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the defendant denied knowing receipt of a zip file containing child
pornography. Finally, in United States v. Dornhofer, 859 F.2d
1195, 1199 (4th Cir. 1988), the court found that “predisposition
evidence” in the form of child erotica was relevant to prove
absence of mistake in connection with ordering of child
pornography. Importantly, “[t]he more similar the extrinsic act
or state of mind is to the act involved in committing the charged
offense, the more relevance it acquires toward proving the element
of intent.” Queen, 132 F.3d at 996.
Here, the proposed evidence is relevant to prove motive,
identity, knowledge, intent, and absence of mistake. The proposed
evidence — to put it succinctly — shows a long history of seeking,
downloading, and deleting child pornography on Harp’s computer and
on his USB drive. With respect to motive, the proposed evidence
reveals Harp’s sexual interest in children, which would be his
motive for possessing and receiving the child pornographic videos.
With respect to identity, it tends to show that Harp — not someone
else — is the one who sought out, downloaded, and viewed the child
pornography before it was deleted. It undermines any claim that he
was not responsible for the presence of the child pornographic
videos (or file names) on his computer and USB drive, especially
because the proposed evidence spans several years.
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With respect to knowledge and absence of mistake, the proposed
evidence tends to show that Harp knew that what he was searching
for and downloading was, in fact, child pornography. It tends to
show that he knew the illicit nature of the videos. The long
history of seeking, downloading, and deleting child pornography
demonstrates that Harp knowingly possessed the child pornography
found on his computer and his USB drive and did so intentionally.
Finally, the proposed evidence is almost identical in form to the
charged conduct, which makes it even more relevant to the issue of
intent. For these reasons, the proposed evidence is relevant.
2. The proposed evidence is necessary.
As discussed, the Government expects Harp to argue that
someone else downloaded the child pornography to his computer and
USB drive. Unsurprisingly, the Government has no witnesses who
saw Harp receive or possess child pornography, and there are no
admissions by Harp. Proving that Harp acted “knowingly” with
respect to these offenses, and proving this element in child
pornography cases in general, can prove difficult. As the Supreme
Court has recognized, “[e]xtrinsic acts evidence may be critical
to the establishment of the truth as to a disputed issue,
especially when that issue involves the actor’s state of mind and
the only means of ascertaining that mental state is by drawing
inferences from conduct.” Huddleston, 485 U.S. at 685. In Queen,
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the Fourth Circuit explained that “[e]vidence is ‘necessary’
where, considered in the light of other evidence available to the
government, . . . it is an essential part of the crimes on trial,
or where it furnishes part of the context of the crime.” 132 F.3d
at 998 (quotation marks added and omitted). Accordingly, the Court
agrees with the Government that because there is limited direct
evidence of Harp’s state of mind, the proposed evidence is an
essential part of the crimes on trial. The proposed evidence is
necessary to prove that Harp acted knowingly.
3. The proposed evidence is reliable.
Rule 404(b) evidence will be considered reliable and “should
be submitted to the fact-finder unless it is so preposterous that
it could not be believed by a rational and properly instructed
juror.” United States v. Aramony, 88 F.3d 1369, 1378 (4th Cir.
1996) (quotation marks and citations omitted). Corroboration is
not a pre-requisite for admission. United States v. Hornsby, 666
F.3d 296, 308 (4th Cir. 2012) (citation omitted).
During the evidentiary hearing, Hammer testified as to how
the files were extracted from the laptop’s restore points and how
data was recovered from the USB drive. Thigpen testified about
his review of the restore point files, confirming that they
contained child pornography consistent with the files’ titles.
Based on the two witnesses’ testimony, the contents of Hammer’s
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report (which was admitted into evidence), and the parties’ briefs,
the Court finds that the proposed evidence is reliable.
4. The proposed evidence’s probative value is not
substantially outweighed by confusion or unfair
prejudice.
Finally, again, the Court will not exclude the proposed
evidence under Rule 403. The uncharged conduct is almost identical
to the charged conduct. The Court has already discussed the
probative value of the evidence, see subsection B.1, and the Court
finds that the probative value is not substantially outweighed by
the dangers listed in Rule 403. Child pornography itself is
prejudicial, but it is not unfairly prejudicial in this instance.
VI. CONCLUSION
For the reasons discussed above, the proposed evidence is
admissible under Rule 414. It is also admissible under Rule 404(b)
to show motive, identity, knowledge, intent, and absence of
mistake. It will not be excluded under Rule 403 with respect to
either Rule 414 or Rule 404(b). The Government’s motion is GRANTED
[ECF No. 46].
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
Case 1:23-cr-00069-TSK-MJA Document 60 Filed 04/15/24 Page 19 of 20 PageID
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USA V. HARP 1:23-CR-69
MEMORANDUM OPINION AND ORDER GRANTING THE UNITED STATES’ MOTION
IN LIMINE REGARDING 414 AND 404(B) EVIDENCE [ECF NO. 46]
20
DATED: April 15, 2024
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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