Richard M. Berman

Richard Miles Berman (born 1943) is a Senior United States District Judge of the United States District Court for the Southern District of New York.

For other uses, see Richard Berman (disambiguation).
Richard M. Berman
Senior Judge of the United States District Court for the Southern District of New York
Assumed office
September 11, 2011
Judge of the United States District Court for the Southern District of New York
In office
October 22, 1998 – September 11, 2011
Appointed byBill Clinton
Preceded byKevin Thomas Duffy
Succeeded byNelson S. Román
Personal details
Born
Richard Miles Berman

1943 (age 76–77)
New York City, New York, U.S.
EducationCornell University (B.S.)
New York University School of Law (J.D.)
Fordham University (M.S.W.)

Education and early career

Berman received his Bachelor of Science degree from Cornell University in 1964. He earned his Juris Doctor from New York University School of Law in 1967. He received a Diploma of Comparative Law in 1968 and a Diploma of International Law in 1970 from the University of Stockholm Faculty of Law, where he also served as Assistant to the Dean of Foreign Students. He received a Master of Social Work from Fordham University in 1996. He went into private practice at Davis Polk & Wardwell in 1970. In 1974, he became Executive Assistant to United States Senator Jacob K. Javits in 1974. (In 1977, he was named Executive Director of the New York State Alliance to Save Energy, co-chaired by Senators Javits and Daniel Patrick Moynihan. A year later, he was appointed General Counsel and Executive Vice President of the Warner Cable Corporation, a position he held until 1986, when he returned to private practice as a partner of LeBoeuf, Lamb, Greene & MacRae. Berman currently serves on the Board of Directors of the Cornell University School of Industrial and Labor Relations Alumni Association.

Judicial career

Berman was appointed by Mayor Giuliani as judge of the New York State Family Court for Queens County (1995 to 1998).[1] On May 21, 1998, he was named by President Bill Clinton to a seat on the District Court for the Southern District of New York. He was confirmed by the United States Senate on October 21, 1998. Berman assumed senior status on September 11, 2011. He is a member of the New York State-Federal Judicial Council, which is concerned with issues of interest to the state and federal judiciary. Berman served as Chairman of the Council from 2011 to 2012.[2]

Legislative service

Berman served as Executive Assistant to United States Senator Jacob K. Javits from 1974 to 1978.[1]

Notable cases

U.S. District Court

United States v. Owens et al

In September 2018, four individuals were charged in the “Panama Papers” conspiracy with unlawfully evading U.S. tax laws. Two of four defendants pleaded guilty to the charges. The remaining two defendants have not appeared in the S.D.N.Y. proceedings.

United States v. Epstein

In July 2019, Judge Berman was assigned the case of financier Jeffrey Epstein who was charged with Sex Trafficking and Conspiracy to Commit Sex Trafficking. On July 18, 2019, Berman denied Epstein’s bail application, finding that he posed a danger to the community and that he was also a flight risk. On July 23, 2019, Epstein attempted suicide at the Metropolitan Correctional Center (“MCC”) and on August 10, 2019 he committed suicide at the MCC. On August 27, 2019, Berman conducted a public hearing on the government's motion to dismiss the case. Twenty-seven alleged victims, along with the government and defense counsel, participated at the hearing. On August 29, 2019, Berman granted the motion to dismiss.

Ortiz v. United States

In March 2019, in a case of first impression, Judge Berman denied an inmate's habeas corpus petition to vacate his six-year sentence. The Court held that the New York Penal Law § 120.05(7), or Second Degree Assault by a Convicted Prisoner, was a "crime of violence" under the United States Sentencing Guidelines and that Petitioner had waived his right to appeal. [3]

United States v. Usher

In October 2018, Judge Berman presided over the criminal jury trial of defendants Richard Usher, Rohan Ramchandani and Christopher Ashton. Defendants, all foreign nationals, were charged in a one count indictment with conspiracy to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, for conducting Euro/Dollar currency trades in the United Kingdom as employees of (affiliates of) The Royal Bank of Scotland, JPMorgan Chase & Co., Citicorp, and Barclays. On October 26, 2018, the Defendants were acquitted. [4]

Duka v. U.S. Securities & Exchange Commission

In August 2015, Berman enjoined the U.S. Securities and Exchange Commission from continuing its securities law administrative proceedings against Barbara Duka, finding that the SEC's administrative law judges had been appointed in violation of the Appointments Clause in the U.S. Constitution.[5][6][7] Upon appeal, the injunction was dissolved based upon the Second Circuit's holding in SEC v. Tilton that parties "must await a final SEC order before raising their Appointments Clause claim in federal court." On June 21, 2018, the Supreme Court of the United States in Lucia v. SEC resolved a "circuit split" and ruled that the SEC's ALJs are officers of the United States and, as Berman had also concluded, subject to the Appointments Clause. [8]

United States v. Rahimi

In October 2017, Judge Berman presided over the criminal jury trial of Ahmad Khan Rahimi, also known as the "Chelsea bomber." Rahimi was convicted of all counts related to the September 2016 bombing in the Chelsea neighborhood of New York City, in which 31 people were injured.[9] Rahimi was sentenced on February 13, 2018 to life in prison.

United States v. Atilla

In November and December 2017, Judge Berman presided over the criminal jury trial of Turkish citizen Mehmet Hakan Atilla. Atilla was convicted of 5 out of 6 counts in the Indictment, including conspiracies to evade U.S. sanctions against Iran and to defraud the United States, and bank fraud. Atilla was sentenced on May 16, 2018 to 32 months in prison. [10]

NFL Management Council v. NFL Players Association

Berman presided over New England Patriots quarterback Tom Brady's case involving a four-game suspension levied against him by the National Football League for Brady's alleged role in the 2015 "Deflategate" matter. After unsuccessful efforts to bring about a settlement, Berman overturned Brady's suspension in an opinion dated September 3, 2015, finding significant legal deficiencies attending Brady's suspension. These included the NFL's disregard of the rules and penalties regarding handling of footballs once they have left the locker room; denial of the opportunity for Brady to examine one of the two lead NFL investigators; and denial of access to investigative files.[11]. On April 25, 2016, a panel of the Court of Appeals for the Second Circuit reversed. In dissent, Chief Judge Robert Katzmann determined that it was improper for the NFL Commissioner to review in arbitration his own decision to suspend Brady.[12]

United States v. Kurniawan

Berman presided over two landmark wine cases. One involved Rudy Kurniawan, who was convicted of counterfeiting fine wines in December 2013 following a jury trial, and sentenced to a term of incarceration.[13][14][15]

Swedenburg v. Kelly

The second wine case involved challenges to state liquor laws which prohibited out of state wineries from selling directly to consumers within New York. In November 2002, Berman held that New York's direct ban on such out of state wine sales was unconstitutional, as "[t]he New York regime constitutes a cut and dry example of direct discrimination against interstate commerce."[16] The ruling was upheld by the Supreme Court of the United States in Granholm v. Heald.[17]

United States v. Siddiqui

Berman presided over the case against Aafia Siddiqui, a Pakistani citizen and graduate of MIT and Brandeis University, who was convicted by a jury in 2010 of attempted murder of U.S. officials in Afghanistan, and sentenced to lengthy incarceration.[18][19]

New York Taxi Workers Alliance v. New York City Taxi & Limousine Commission

In September 2007, Berman denied the NYC cab driver association's application to prevent the New York City Taxi and Limousine Commission from requiring that all taxicabs be installed with credit- and debit-card readers.[20]

MacWade v. Kelly

In December 2005, following a bench trial, Berman ruled that random police searches of riders' backpacks and bags on the New York City subway system do not violate the U.S. Constitution.[21]

Gershkovich v. Iocco

Alex Gershkovich, a photographer involved in the Occupy Wall Street movement, sued two NYPD officers and the City of New York because he was allegedly arrested without probable cause while photographing police activity in a public place. Judge Berman, in a summary judgment decision dated July 17, 2017, determined that the right to record police activity in public areas was "clearly established" at the time of Gerskovich's arrest. The parties reached a settlement in November 2017.[22]

Gordon v. Softech International, Inc.

After having determined that the Driver's Privacy Protection Act of 1994 ("DPPA") is not a "strict liability" statute, Berman presided over the civil jury trial against defendants Arcanum Investigations, Inc. and its executive director. On April 24, 2015, the jury determined that defendants, who are resellers of DMV information, used reasonable care in providing plaintiff's information to a third party where defendants had required the purchaser of the information to provide ID, along with a DPPA-approved reason for making the information request. By summary order, dated April 15, 2016, the Court of Appeals for the Second Circuit affirmed the judgment entered in connection with the jury's verdict.[23]

United States v. Buryakov

After having been charged in a two count Indictment on February 9, 2015, defendant Evgeny Buryakov, a Russian citizen, pleaded guilty on March 11, 2016 to conspiring to act in the United States as an agent of a foreign government without prior notification to the Attorney General. Buryakov was sentenced to 30 months imprisonment on May 25, 2016.[24][25][26]

Royalty Network, Inc. v. Columbia Recording Corporation

In April 2007, Berman presided over a copyright lawsuit against singer Beyoncé Knowles over the song, Still in Love (Kissing You).[27] The parties reached a settlement in October 2007.[28]

United States v. D'Souza

Berman presided in the Dinesh D'Souza campaign finance case in May 2014. On the eve of trial, D'Souza pleaded guilty to campaign finance violations, (arranging straw donors), and was sentenced in September 2014 to five years of probation, $30,000 fine, and community service.[29]

Ideal Steel Supply Corporation v. Anza

In June 2002, Berman dismissed a civil RICO suit against National Steel Supply, Inc., finding that plaintiff Ideal Steel failed to show that it had relied upon National Steel Supply's alleged misrepresentations to the New York State Department of Taxation and Finance. The decision was affirmed by the U.S. Supreme Court on June 5, 2006.[30]

United States v. Leekin

In July 2008, Berman presided over the criminal case against Judith Leekin, who pleaded guilty to defrauding New York City and New York State adoption agencies out of $1.68 million in foster care funds. Leekin also had mistreated and willfully endangered her (11) adopted special needs children.[31] Berman sentenced Leekin to 130 months in prison for the fraud. Immediately thereafter, she was prosecuted for child abuse in Florida.[32]

Dimmie v. Carey

In April 2000, Berman dismissed an infringement suit brought against pop singer Mariah Carey, finding that the plaintiff, Rhonda Dimmie, the holder of a copyright for the song Be Your Hero, had failed to show that Carey, the copyright-holder for the song Hero, had knowledge of or infringed upon plaintiff's recording.[33][34]

Johnson v. Johnson

In January 2011, Berman presided over a trial in which a father sought the return of his child from New York to Vicenza, Italy pursuant to the Hague Convention of the Civil Aspects of International Child Abduction. Following a bench trial, Berman found that Italy was not the habitual residence of the child, who also strenuously objected to being returned to Italy.[35]

Family court

In the Matter of Shawna E.

In January 1998, as a New York State family court judge, Berman removed two children from the custody of then professional baseball player Carl Everett and his wife. The Everetts had consented to findings of child neglect following the discovery of bruises on their daughter at the Shea Stadium child care center.[36][37][38]

Three-judge U.S. District Court panels

Rodriguez v. Pataki

Berman was part of a three-judge panel that heard challenges to the legislative district redistricting plan enacted by the New York State Legislature following the 2000 census. Following a bench trial in November 2003, the three-judge panel found that New York's redistricting plan did not violate the Voting Rights Act or the Equal Protection Clause of the Fourteenth Amendment.[39] In November 2004, the U.S. Supreme Court affirmed by summary order.[40]

Nitke v. Gonzales

Berman was part of a three-judge panel that heard challenges to obscenity provisions of the Communications Decency Act of 1996. In July 2005, the Court found that the Act was not overbroad and did not violate the First Amendment.[41] In March 2006, the U.S. Supreme Court affirmed by summary order.[42]

U.S. Circuit Court opinions

United States v. Stewart

Berman—sitting by designation on the U.S. Court of Appeals for the Second Circuit—dissented on November 5, 2018 from the majority insider trading decision which overturned the defendant's conviction on an evidentiary issue. The majority held that the trial judge should have allowed the jury to hear the co-defendant father's post-arrest statement to the FBI. Berman found that the weight of evidence of defendant's guilt was overwhelming and that the Court should defer to the trial judge and to the jury. [43]

Carpenters Pension Trust Fund of St. Louis v. Barclays PLC

In April 2014, Berman—sitting by designation on the U.S. Court of Appeals for the Second Circuit—authored the panel's opinion reinstating a securities fraud class action brought by pension funds against Barclays PLC and former Barclays' CEO Robert Diamond. Plaintiffs alleged that defendants had knowingly submitted false and inaccurate information to establish LIBOR rates during the class period of August 2007 through January 2009. The Court adopted a principle (also embraced by the Eleventh Circuit) that "so long as the falsehood remains uncorrected, it will continue to taint the total mix of available public information, and the market will continue to attribute the artificial inflation to the stock, day after day."[44][45]

Evans v. Books-A-Million

In August 2014, Berman—sitting by designation on a panel of the U.S. Court of Appeals for the Eleventh Circuit—heard the appeal of an employee who had been terminated from her job. The Court of Appeals held that the district court correctly awarded summary judgment to plaintiff on her COBRA claims and to Books-A-Million with respect to plaintiff's Title VII and Equal Pay Act claims, but erred in dismissing plaintiff's FMLA claims. The Court of Appeals found that "[i]if a trial court refuses to grant further legal or equitable relief to a plaintiff who insists that such relief is necessary to make the plaintiff whole, it must articulate its rationale."[46]

Rodriguez v. Schriver

In November 2004, Berman—sitting by designation on a panel of the Second Circuit Court of Appeals—heard New York State's appeal of a magistrate judge's decision, which found that prosecutors had improperly excluded a juror for non-race neutral reasons in a criminal trial. In vacating the judgment of the magistrate, the Second Circuit held that the basis for the juror's exclusion was not inherently discriminatory, and that the prosecutor had offered race neutral reasons.[47]

New England Insurance Co. v. Healthcare Underwriters Mutual Insurance Co.

In July 2002, Berman—sitting by designation on a panel of the Second Circuit Court of Appeals—heard the appeal of New England Insurance Company, following the district court's reversal of a jury verdict finding in New England Insurance's favor. The Second Circuit reinstated the jury verdict. "We necessarily disagree with the 'clear liability' language []introduced by the district court in deciding Healthcare's post-trial application for judgment as a matter of law. As noted, 'clear liability' was specifically rejected and abandoned [and] there is no case since Pavia in which a court held that a finding of clear liability was given conclusive or totally dispositive weight."[48]

Publications and teaching

Berman has authored a number of articles about children, including A Team Model To Identify Child Abuse,[49] Seven Steps To Protect Children,[50] Community Service for Juvenile Offenders,[51] and Special Immigrant Juvenile Status.[52][53] Published in the New York Law Journal, these articles offer guidance in developing improved models for identifying child abuse, bolstering the child welfare system, implementing community service-based sentencing options for juvenile offenders, and improving the process for obtaining special immigrant juvenile status.

Berman's efforts in improving media access to the Family Court system and promoting community service have been cited in the New York Daily News and Newsday. See, e.g., Sun Also Rises in Family Court,[54] Helping Other Helps Teens,[55] Embracing Community Service for Juveniles,[56] and A New Way Out of Trouble.[57]

Berman lectured about the "Rule of Law" before judges in Albania in 2013.[58] He has also moderated a panel discussion of the "Rule of Law" at an international legal symposium in Istanbul, Turkey in 2014.[59]

Awards

Judge Berman received the National Association of Social Workers (NYC) Emerald award for 20 years of leadership as a licensed social worker and judge on March 28, 2019. [60]

gollark: How *are* massive genocide/civil war rates nowadays?
gollark: I'm not sure if you understand how quartiles work. Unless you're saying that ~25% are modern, specifically.
gollark: Based on my vague guessing, the UK is definitely top quartile for country goodness!
gollark: Idea: paranoia sort; it constantly checks itself and redoes comparisons.
gollark: I guess I'll have autobotrobot spy for me instead.

References
  1. "Faculty Profile - Hon. Richard M. Berman". pli.edu. Retrieved 2016-02-10.
  2. "Faculty Profile - Hon. Richard M. Berman". pli.edu. Retrieved 2016-05-06.
  3. Ortiz v. United States, No. 13 CR. 687 (RMB), 2019 WL 1122869, at *1–6 (S.D.N.Y. Mar. 12, 2019)
  4. https://www.bloomberg.com/news/articles/2018-10-26/jury-rejects-charge-that-chatroom-was-used-to-fix-fx-prices
  5. Hurtado, Bob Van Voris Patricia. "SEC Loses Second Round in Battle Over In-House Judges". Bloomberg.com. Retrieved 2016-02-07.
  6. Duka v. U.S. Securities and Exchange Commission, No. 15 Civ. 357 (RMB) (SN) (S.D.N.Y. Aug. 12, 2015)
  7. Eaglesham, Jean; Martin, Timothy W. "Federal Judge Rules SEC In-House Judges 'Likely Unconstitutional'". Wall Street Journal. ISSN 0099-9660. Retrieved 2016-02-11.
  8. https://www.supremecourt.gov/opinions/17pdf/17-130_4f14.pdf
  9. Wilson, Michael (16 October 2017). "Chelsea Bomb Suspect Guilty in Attack That Sowed Terror Across Region". The New York Times. Retrieved 8 December 2017.
  10. "Turkish Banker Mehmet Hakan Atilla Sentenced To 32 Months For Conspiring To Violate U.S. Sanctions Against Iran And Other Offenses". www.justice.gov. May 16, 2018.
  11. https://cbsboston.files.wordpress.com/2015/09/bermandecision.pdf
  12. National Football League Management Council v. National Football League Players Ass'n nos. 15‐2801, 15‐2805 (2d Cir. April 25, 2016)
  13. Peter Hellman; Mitch Frank. "Accused Wine Counterfeiter Rudy Kurniawan Guilty in Landmark Case". Wine Spectator. Retrieved 20 December 2013.
  14. "FBI — Rare Wine Dealer Sentenced in Counterfeiting Scheme". FBI.
  15. Gardiner, Sean; Sharp, Sonja (August 7, 2014). "Counterfeit Fine-Wine Dealer Sentenced to 10 Years". The Wall Street Journal.
  16. Swedenburg v. Kelly, 232 F. Supp. 2d 135, 145 (S.D.N.Y. 2002), aff'd in part, rev'd in part and remanded, 358 F.3d 223 (2d Cir. 2004), rev'd sub nom. Granholm v. Heald, 544 U.S. 460 (2005)
  17. "544 U.S. 460 (2005)".
  18. "Aafia Siddiqui Found Guilty in Manhattan Federal Court of Attempting to Murder U.S. Nationals in Afghanistan and Six Additional Charges" (PDF) (Press release). Public Information Office, United States Attorney Southern District of New York. 3 February 2010. Archived from the original (PDF) on 16 February 2010. Retrieved 13 May 2015. This article incorporates text from this source, which is in the public domain.
  19. Hughes, C. J. (2010-02-03). "Aafia Siddiqui Guilty of Shooting at Americans in Afghanistan". The New York Times. ISSN 0362-4331. Retrieved 2016-02-07.
  20. Chan, Sewell. "Federal Judge Refuses to Block Credit Cards, Video Screens and G.P.S. in Taxis".
  21. MacWade v. Kelly, No. 05 Civ. 6921 (RMB), 2005 WL 3338573, at *1 (S.D.N.Y. Dec. 7, 2005), aff'd, 460 F.3d 260 (2d Cir. 2006).
  22. Gerskovich v. Iocco, No. 15 CIV. 7280 (RMB), 2017 WL 3236445 (S.D.N.Y. July 17, 2017)
  23. "Summary Order" (PDF). U.S. Court of Appeals for the Second Circuit. April 15, 2016.
  24. "Russian Spy Pleads Guilty, Walked Into FBI 'Trap'". ABC News. 2016-03-13. Retrieved 2016-04-09.
  25. Weiser, Benjamin (2016-03-11). "Bank Employee Pleads Guilty to Conspiring to Work as Secret Russian Agent". The New York Times. ISSN 0362-4331. Retrieved 2016-04-09.
  26. "Russian spy who posed as New York banker sentenced to 2 1/2 years in prison". UPI. Retrieved 2016-11-03.
  27. "Beyonce's 'B-Day' Hits Copyright Snag | Billboard". Billboard. Retrieved 2016-02-10.
  28. Royalty Network, Inc. v. Columbia Recording Corp., No. 07 Civ. 3067 (RMB) (S.D.N.Y. Oct. 12, 2007).
  29. Mahler, Jonathan (2014-09-23). "D'Souza Avoids Prison in Campaign Finance Case". The New York Times. ISSN 0362-4331. Retrieved 2016-02-10.
  30. "Anza v. Ideal Steel Supply Corp., 547 U.S. 451 (2006)".
  31. Kaufman, Leslie (2007-08-02). "One Woman, 11 Adoptions and a Time of Urgency". The New York Times. ISSN 0362-4331. Retrieved 2016-02-07.
  32. "Fla. woman in adoption scam gets 20 years". msnbc.com. Retrieved 2016-02-07.
  33. Dimmie v. Carey, 88 F. Supp. 2d 142 (S.D.N.Y. 2000)
  34. Kalet, Beth. "Pop singer cleared of copyright infringement". recordonline.com. The Times Herald-Record. Retrieved 2016-02-07.
  35. Johnson v. Johnson, No. 11 Civ. 37 (RMB), 2011 WL 569876 (S.D.N.Y. Feb. 10, 2011)
  36. "Matter of Everett". New York Law Journal. 30, col. 5 [Fam. Ct. Queens Cnty. 1998]. April 23, 1998.
  37. "Everett Fails to Get Custody". The New York Times. 1997-08-09. ISSN 0362-4331. Retrieved 2016-02-11.
  38. Ojito, Mirta (1997-08-10). "D.A. Still Looking Into Everett Abuse Case". The New York Times. ISSN 0362-4331. Retrieved 2016-02-11.
  39. "Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y. 2004)".
  40. "543 U.S. 997". law.resource.org.
  41. "Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y. 2005)".
  42. "Nitke v. Gonzales". Berkeley Technology Law Journal. 21 (1). January 2006.
  43. United States v. Stewart, 907 F.3d 677, 692–701 (2d Cir. 2018)
  44. Carpenters Pension Trust Fund of St. Louis v. Barclays PLC, 750 F.3d 227 (2d Cir. 2014)
  45. See also In re Harman International Industries, Inc. Securities Litigation, 791 F.3d 90 (D.C. Cir. 2015)
  46. "Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th Cir. 2014)".
  47. "Rodriguez v. Schriver, 392 F.3d 505 (2d Cir. 2004)".
  48. New England Insurance Co. v. Healthcare Underwriters Mutual Insurance Co., 295 F.3d 232, 242-43 (2d Cir. 2002)
  49. Berman, Richard M. (January 26, 2006). "A Team Model To Identify Child Abuse". New York Law Journal.
  50. Berman, Richard M. (February 28, 2006). "Seven Steps To Protect Children". New York Law Journal.
  51. Berman, Richard M. (March 15, 2010). "Community Service for Juvenile Offenders". New York Law Journal.
  52. Berman, Richard M. (March 3, 2015). "Special Immigrant Juvenile Status". New York Law Journal.
  53. Russo, Melissa (June 1, 2015). "I-Team: Federal Probe Finds "Reasonable Suspicion" of Criminal Activity in Alleged Scheme to Defraud Queens Family Court". Retrieved February 7, 2016.
  54. "SUN ALSO RISES IN FAMILY COURT". NY Daily News. Retrieved 2016-02-11.
  55. Serant, Claire (October 20, 1996). "Helping Others Helps Teens Troubled Kids Learn Kindness". Daily News. Retrieved February 7, 2016.
  56. English, Merle (August 31, 1997). "Embracing Community Service for Juveniles". Newsday.
  57. Bertrand, Donald (December 24, 1997). "A New Way Out of Trouble: Young Offenders Get Alternatives to Jail". Daily News.
  58. "Faculty Profile - Hon. Richard M. Berman". www.pli.edu. Retrieved 2016-03-24.
  59. "Rule of law and freedom of press under attack in Turkey". Cihan Haber Ajansı: Doğru ve hızlı haberin adresi. Retrieved 2016-03-24.
  60. "Leadership Awards Dinner - National Association of Social Workers New York City". www.naswnyc.org.
Legal offices
Preceded by
Kevin Thomas Duffy		 Judge of the United States District Court for the Southern District of New York
1998–2011		 Succeeded by
Nelson S. Román
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