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5 U.S. 511 (1967). 194 McKune v. Lile, 122 S. Ct. 2017 (2002). The transfer was mandated for refusal to participate in a sexual abuse treatment program that required revelation of sexual history and admission of responsibility. The plurality declared that rehabilitation programs are permissible if the adverse consequences for non-participation are ‘‘related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.’’ 122 S. Ct. at 2027 (opinion of Justice Kennedy). Concurring Justice O’Connor stated her belief that the ‘‘minor’’ change in living conditions seemed ‘‘very unlikely to actually compel [the prisoner] to participate.’’ Id. at 2034. 195 See, in addition to McKune v. Lile, Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse inference from inmate’s silence at prison disciplinary hearing); and Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (adverse inference from inmate’s silence at clemency hearing). 196 Minnesota v. Murphy, 465 U.S. 420 (1984) (the possibility of revocation of probation was not so coercive as to compel a probationer to provide incriminating answers to probation officer’s questions ). 197 The Court in McKune v. Lile was split 5–4, with no opinion of the Court. 198 Brown v. Walker, 161 U.S. 591, 597–98 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314–16 (1900); Brown v. United States, 356 U.S. 148 (1958). See also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (testimony at a clemency interview is voluntary, and cannot be compelled). be termination of public employment 192 or disbarment of a lawyer 193 as a legal consequence of a refusal to make incriminating admissions. The degree of coercion may also prove decisive, the Court having ruled that moving a prisoner from a medium security unit to a maximum security unit was insufficient to compel him to incriminate himself in spite of the attendant loss of privileges and the harsher living conditions. 194 However, while it appears that prisoners 195 and probationers 196 have less protection than others, the Court has not yet developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion. 197 It has long been the rule that a defendant who takes the stand in his own behalf does so voluntarily, and cannot then claim the privilege to defeat cross-examination on matters reasonably related to the subject matter of his direct examination, 198 and that such VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00038 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1399 199 Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States, 335 U.S. 469 (1948). 200 380 U.S. 609, 614 (1965). The result had been achieved in federal court through statutory enactment. 18 U.S.C. § 3481. See Wilson v. United States, 149 U.S. 60 (1893). In Carter v. Kentucky, 450 U.S. 288 (1981), the Court held that the self-incrimination clause required a State, upon defendant’s request, to give a cautionary instruction to the jurors that they must disregard defendant’s failure to testify and not draw any adverse inferences from it. This result, too, had been accomplished in the federal courts through statutory construction. Bruno v. United States, 308 U.S. 287 (1939). In Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held that a court may give such an instruction, even over defendant’s objection. Carter v. Kentucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury ‘‘admonition’’ sufficient to invoke right to ‘‘instruction’’). 201 While the Griffin rule continues to apply when the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, it does not apply to a prosecutor’s ‘‘fair response’’ to a defense counsel’s allegation that the government had denied his client the opportunity to explain his actions. United States v. Robinson, 485 U.S. 25, 32 (1988). 202 Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 U.S. 499 (1983). 203 Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is inherently ambiguous, and to permit use of the silence would be unfair since the Miranda warning told the defendant he could be silent. The same result had earlier been achieved under the Court’s supervisory power over federal trials in United States v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor’s use of Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 474 U.S. 284 (1986). In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post- Miranda silence for impeachment purposes at trial, the proper standard for harmless- error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946)—whether the due process error had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter ‘‘harmless beyond a reasonable doubt’’ standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993). 204 Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate’s assertion of privilege so long as this was not the sole basis of decision against him). a defendant may be impeached by proof of prior convictions. 199 But in Griffin v. California, 200 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant’s refusal to take the stand in his own behalf, because such comment was a ‘‘penalty imposed by courts for exercising a constitutional privilege’’ and ‘‘[i]t cuts down on the privilege by making its assertion costly.’’ 201 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error. 202 Neither may a prosecutor impeach a defendant’s trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained silent and did not give the police the exculpatory story he told at trial. 203 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise. 204 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00039 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1400 AMENDMENT 5—RIGHTS OF PERSONS 205 Simmons v. United States, 390 U.S. 377 (1968). The rationale of the case was subsequently limited to Fourth Amendment grounds in McGautha v. California, 402 U.S. 183, 210–13 (1971). 206 Harrison v. United States, 392 U.S. 219 (1968). 207 Jackson v. United States, 390 U.S. 570, 583 (1968). 208 Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970). Parker and Brady entered guilty pleas to avoid the death penalty when it became clear that the prosecution had solid evidence of their guilt; Richardson pled guilty because of his fear that an allegedly coerced confession would be introduced into evidence. 209 McGautha v. California, 402 U.S. 183, 210–20 (1971). When the Court subsequently required bifurcated trials in capital cases, it was on the basis of the Eighth Amendment, and represented no withdrawal from the position described here. Further, the Court held inadmissible at the subsequent trial a defendant’s testimony at a hearing to suppress evidence wrongfully seized, since use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures. 205 The Court also proscribed the introduction at a second trial of the defendant’s testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect ‘‘fruit of the poisonous tree,’’ and had been ‘‘coerced’’ from the defendant through use of the confession. 206 Most potentially far-reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute ‘‘needlessly encourage[d]’’ waivers of defendant’s Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial. 207 While this ‘‘needless encouragement’’ test assessed the nature of the choice required to be made by defendants against the strength of the governmental interest in the system requiring the choice, the Court soon devolved another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective assistance of counsel. 208 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the self-incrimination clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably ‘‘hard’’ choice. 209 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00040 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1401 Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978). 210 Williams v. Florida, 399 U.S. 78, 80–86 (1970). The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the State’s case and not from the disclosure requirement. That is, the rule did not affect whether or not the defendant chose to make an alibi defense and to call witnesses, but merely required him to accelerate the timing. It appears, however, that in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court utilized the ‘‘needless encouragement’’ test in striking down a state rule requiring the defendant to testify before any other defense witness or to forfeit the right to testify at all. In the Court’s view, this impermissibly burdened the defendant’s choice whether to testify or not. Another prosecution discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975), in which a defense investigator’s notes of interviews with prosecution witnesses were ordered disclosed to the prosecutor for use in cross-examination of the investigator. The Court discerned no compulsion upon defendant to incriminate himself. 211 ‘‘The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.’’ Yee Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dissented on self-incrimination grounds. Id. at 425. And see United States v. Gainey, 380 U.S. 63, 71, 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, ‘‘Proof, Burden of Proof, and Presumptions,’’ infra. 212 Prosecution may be precluded by tender of immunity, (see next topic for discussion of immunity) infra, or by pardon, Brown v. Walker, 161 U.S. 591, 598–99 (1896). The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self-incrimination is possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment). 213 Brown v. Walker, 161 U.S. 591, 605–06 (1896); Ullmann v. United States, 350 U.S. 422, 430–31 (1956). Minorities in both cases had contended for a broader rule. Walker, 161 U.S. at 631 (Justice Field dissenting); Ullmann, 350 U.S. at 454 (Justice Douglas dissenting). Similarly, it has been held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause. 210 Neither does it violate a defendant’s self-incrimination privilege to create a presumption upon the establishment of certain basic facts which the jury may utilize to infer defendant’s guilt unless he rebuts the presumption. 211 The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded, 212 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace. 213 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly di- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00041 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1402 AMENDMENT 5—RIGHTS OF PERSONS 214 Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony compelled under such circumstances is, even in the absence of statutory immunity, barred from use in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967). However, unlike public employees, persons subject to professional licensing by government appear to be able to assert their privilege and retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392 U.S. at 277–78. Justices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520, 530. 215 See Slochower v. Board of Education, 350 U.S. 551 (1956), limited by Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of Los Angeles, 362 U.S. 1 (1960), which were in turn apparently limited by Garrity and Gardner. 216 Malloy v. Hogan, 378 U.S. 1 (1964), (overruling Twining v. New Jersey, 211 U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 (1947)). 217 Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), (overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to give testimony which might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (State may compel a witness to give testimony which might incriminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944) (testimony compelled by a State may be introduced into evidence in the federal courts)). Murphy held that a State could compel testimony under a grant of immunity but that since the State could not extend the immunity to federal courts the Supreme Court would not permit the introduction of evidence into federal courts which had been compelled by a State or which had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising from the Fifth Amendment itself, 378 U.S. at 75–80, rather than one taken pursuant to the Court’s supervisory power as Justice Harlan would have preferred. Id. at 80 (concurring). Congress has power to confer immunity in state courts as well as in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954), but whether Congress must do so or whether the immunity would be conferred simply through the act of compelling the testimony Murphy did not say. Whether testimony could be compelled by either the Federal Government or a State that could incriminate a witness in a foreign jurisdiction is unsettled, see Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but an affirmative answer seems unlikely. Cf. Murphy, 378 U.S. at 58–63, 77. 218 United States v. Balsys, 524 U.S. 666 (1998). rected at the performance of the employee’s official duties, refuses to cooperate and to provide the employer with the desired information on grounds of self-incrimination. 214 But it is unclear under what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating agency. 215 Finally, the rules established by the clause and the judicial interpretations are applicable against the States to the same degree that they apply to the Federal Government, 216 and neither sovereign can compel discriminatory admissions which would incriminate the person in the other jurisdiction. 217 There is no ‘‘cooperative internationalism’’ that parallels the cooperative federalism and cooperative prosecution on which application against states is premised, and consequently concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause. 218 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00042 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1403 219 Kastigar v. United States, 406 U.S. 441, 445–46 (1972). It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in others is unreconciled with the cases that find that one may ‘‘waive’’ though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951). 220 9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972). 221 Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress. 222 Ch. 11, 12 Stat. 333 (1862). 223 142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868). 224 Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). And see id. at 586. 225 142 U.S. at 585–86. 226 ‘‘Transactional’’ immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; ‘‘use’’ immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense. The Power To Compel Testimony and Disclosure Immunity.—‘‘Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the self-incrimination clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.’’ 219 Apparently the first immunity statute was enacted by Parliament in 1710 220 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter ‘‘touching which’’ he had testified. 221 Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness, 222 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock 223 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe ‘‘derivative’’ evidence 224 and it prohibited only future use of the compelled testimony. 225 The latter language accentuated a division between adherents of ‘‘transactional’’ immunity and of ‘‘use’’ immunity which has continued to the present. 226 In any event, following Counselman, Congress enacted a statute which conferred transactional immunity as VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00043 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1404 AMENDMENT 5—RIGHTS OF PERSONS 227 Ch. 83, 27 Stat. 443 (1893). 228 Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, since the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628. 229 Ullmann v. United States, 350 U.S. 422, 438 (1956), (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)). 230 ‘‘[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.’’ 350 U.S. at 438–39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886). 231 Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), ‘‘because the present statute fails to afford complete immunity from a prosecution.’’ The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920). 232 E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141 149 (1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436–37 (1956), Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence. 233 Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the States. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896). the price for being able to compel testimony, 227 and the Court sustained this law in a five-to-four decision. 228 ‘‘The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.’’’ 229 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute. 230 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes, 231 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant. 232 But beginning in 1964, when it applied the self-incrimination clause to the States, the Court was faced with the problem which arose because a State could grant immunity only in its own courts and not in the courts of another State or of the United States. 233 On the VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00044 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1405 234 Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964). Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with a use restriction attached. 235 Marchetti v. United States, 390 U.S. 39, 58 (1968). 236 Organized Crime Control Act of 1970, Pub. L. No. 91–452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 6002–03. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply ‘‘constructive’’ use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984). 237 406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972). 238 Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute prote

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