Sunday, July 21, 2013

fraud in the courts



IN THE COURT OF APPEALS
OF THE STATE OF NEW MEXICO

New Mexico Court of Appeals No. 32,326
Second Judicial District Court No. DV-12-234
Rel. DM-12-0610

BARRIE LEE DERRINGER,                                                              
            Appellee/Petitioner,
v.

DAVID BRIAN DERRINGER,
            Appellant/Respondent,

APPELLANT'S TIMELY MOTION FOR REHEARING UNDER NMRA 12-404 OF THE DENIAL OF JULY 15, 2013 OF THE JULY 8, 2013 EMERGENCY APPELLANT’S MOTION FOR ORDER TO STOP ILLEGAL JURISDICITON AND OBSTRUCTION OF JUSTICE OF THE TRIAL COURT OF
JUDGE ALISA HADFIELD, AND PROPER NOTICES OF “FRAUD”
THAT MANDATE REVERSAL OF NO. 32,326 AND NO. 32,587 UNDER NMRA RULE 1-060

COMES NOW the Appellant/Respondent Pro-Se with his Motion as stated above.
            This matter denied has every bearing on No. 32,326 and now the new forced appeal of No. 32,982; all over issues in jurisdictionally defective DV-12-234.[1] Federalist No. 78 by Alexander Hamilton ; Nixon v. Fitzgerald, 457 US 731, 763 (1981) by Chief Justice Burger, “when litigation processes are not tightly controlled-and often they are not-they can be and are used as mechanics of extortion. Ultimate vindication on the merits does not repair the damage.” In the United States of America there can be no greater atrocity performed by a judge, outside of jurisdiction and judicial capacity, but executing egregious acts on the bench against the Respondent, of the destruction and concealment of court public records, and blocking appeals. Anderson v. Martin, (1964) 375 US 399, 11 L.Ed.2d 430, 84 S Ct 454 “In determining whether state action violates equal protection clause of 14th Amendment where private action is also involved, crucial factor is interplay of governmental and private action.” In this matter trial Judge Alisa Hadfield has prevented filing of legal court papers of both DV-12-234 and DM-12-610,  confiscated court pleadings meant for legal filing of public court record, and concealed and destroyed such papers, including denial of filing of the “docketing statement” of other outrageous acts of DV-12-234 before filing with the court to prevent filing, and to deliberately block appeals to the NM Court of Appeals, and to mis-direct and corrupt the court record so that any appeal taken would be skewed.[2] Wilson & Co. v. Banque Francaise du Mexique, 124 Misc. 690, 208 N.Y.S. 213, N.Y.Sup., June 11, 192 Filing or court record. Filing of papers with court clerk is condition precedent to jurisdiction of court, and court cannot make order nunc pro tunc to cure such jurisdictional defect. The blocking of the court filings of DV-12-234 are to keep from public court record the egregious acts in April 2013 of violating and denying the 1st Amendment against David Derringer due to David Derringer posting the public court records showing blatant public corruption of Commissioner Cosgrove/Aguilar and Judge Hadfield on the Internet (an entirely legal act under the 1st Amendment) ; the threats and intimidation to prevent such exercise of 1st Amendment rights by illegally sentencing David Derringer to 30 days in jail if he does not stop exposing the public corruption to the world, and blatant violations in such rulings of the New Mexico Court of Appeals in cases (NO. 24,101), (NO. 27,959), (NO. 30,380), (NO. 30,591), (NO. 31,303), and (NO. 32,271).
            The apparent motives of Judge Hadfield are numerous, and this has been going on since the onset of both DV-12-234 and DM-12-610 making both cases defective in “fraud” and each mandated to be dismissed. United States v. Guest, 383 US 745 (1966); Griffin v. Breckenridge, 403 US 88 (1971) Footnote[ 101] 383 US 787 (1966) due process clause, Footnote [102] equal protection clause, Footnote [103] Sec. 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment Rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy.” This constitutes a "tort" and a criminal act by Alisa Hadfield not acting in judicial capacity as “Judge Hadfield” but mis-using government position to affect the outcome of a case by subversive acts under the New Mexico's Abuse of Privacy Act. Section 30–12–1(C). Federalist No. 47 by James Madison; The Abuse of Privacy Act, among other things, prohibits interference with certain types of electronic communications, including “reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof.” The actions involved here are disturbance and tampering with the court records of BOTH DV-12-234 and DM-12-610 of which these two cases are also inexplicably intertwined and inseparable, regardless of whether or not they were not consolidated, as they could not have been being initially in different court systems. Since both open court orders and written court orders of DM-12-610 verify and use as foundation all orders of DM-12-234, the two cases are Siamesed and connected at the hip and cannot be separated at any time, regardless of only some other different issues of DM-12-610. The underlying DV-12-234, that has been defective without service of summons since the beginning, has been continuing with the trial court outside of jurisdiction after the Notice of Appeal [3], and when the Respondent David Derringer went to file his docketing statement for other illegal Orders (clearly these could not have been issued with the jurisdiction in NM Ct. App. No. 32,326), Judge Hadfield kept David Derringer from filing his docketing statement for further appeal that was docketed as NM Ct. App. No. 32,982. It is totally irrational that the NM Court of Appeals will entertain appeal after appeal of outrageous acts of the underlying trial courts, taking use of public funds and time, rather than force the trial justices to comply with existing laws, or mandate deviant justices be removed from the bench under NM Ct. App. justices’ mandates under Canon 3(D)(1).  This Judge Hadfield fraud is directed not only at David Derringer, but against the State of New Mexico with mis-use of power of a judge to conduct activities for others outside of the law. "Fraud upon the court embraces only that species of fraud which does or attempts to defile the court itself or which is perpetrated by officers of the court so that the judicial system cannot perform in a usual manner. Jemez Properties, Inc. v. Lucero, 94 N.M. at 184 n. 1, 608 P.2d at 160 n. 1. "Fraud upon the court occurs where there is a deliberately planned and carefully executed scheme to defraud the court". See Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. at 246, 64 S.Ct. at 1001. It is easily seen here that despite legal actions taken against Judge Hadfield to stop the corruption, she ignores both statute and Canon and the Rules of Civil Procedure to continue. SCRA 1986, 1-088.1(D) “No district judge shall sit in any action in which his impartiality may reasonably be questioned under the provisions of the Constitution of New Mexico or the Code of Judicial Conduct, and shall recuse himself in any such action.” David Derringer has properly motioned Judge Hadfield 6 times to recuse for cause and she entertains the motions herself, refuses to obey NMRA Rule 1-088.1 and Title 28 Section 455, and also refuses to allow such motions to be heard by another disinterested judge.[4] Flagg Bros., Inc V Brooks, (1978) 436 US 149, 56 L.Ed.2d 185, 98 S. Ct 1729, 23 UCCRS 1105 “Involvement of state official may provide state actions essential to show direct violation of petitioner’s 14th Amendment rights, whether or not official’s actions were officially authorized or lawful.” David Derringer has filed a Motion for Change of Venue under NMSA 38-3-3 mandating the venue be changed or hearing held, and requested this motion be heard by a different judge than Judge Hadfield. Instead of obeying the New Mexico State statutes enacted by Legislature, Judge Hadfield refuses to grant a change of venue, disregards and denies the mandates of a hearing, and hears the motion herself; clearly, adamantly and tenaciously holding on to both DV-12-234 and DM-12-610 by the already consummated bribery contracts with whomever who expect their delivery of service. Judge Hadfield simply will not allow herself to be disqualified. A. Borrego v. El Guique Community Ditch Assoc., 107 N.M. 594, 762 P.2d 256 (1988) “A judge has no jurisdiction after having been disqualified.” David Derringer has rendered 7 Judicial Standards Complaints against Judge Hadfield showing the violations of Constitution, law and Oath. The acts here by Judge Hadfield and accomplices under her direction reveals a deliberate scheme to defraud the court; they committed fraud upon the court. Judge Hadfield’s actions against all laws seem to stem from a personal corruption, and circumstantial evidence that is numerous and extreme point directly to the bribery of this judge by the muti-million dollar international Corporation NAI Maestas and Ward Commercial Real Estate Corporation, that owns, leases, and controls most of the real estate in the large city of Albuquerque and surrounding areas. Note that Petitioner Barrie Derringer is the “accountant” of this corporation and the CEO’s of this corporation have done criminal assault and battery, conversion, alienation of affection, loss of consortium, and interference with a legal marriage contract against David Derringer, with respective suits David Derringer v. NAI Maestas and Ward et al in consolidated CV-12-1307 and CV-12-10816, of which in those suits the private tort actions against Barrie Crowe aka Barrie Derringer, Barrie is represented by the Maestas corporate attorney law firm. Many “contributions” are rendered by this corporation of a judicial and political nature as well as great pressure and influence with many persons in governmental service. When this court realizes that all matters of DV-12-234 and DM-12-610 have been decisions made against the Respondent and each of those decisions has been based on actions against all laws of Constitution, US and New Mexico statutory laws, defiance of all former case laws, this court under mandates of Canon 3(D)(1) must take action to stop this mayhem of the judicial system by a judge violating Oath, Canon, Code of Judicial Conduct and indeed sedition and treason against the United States of America. This instant court in the past and present berates the Appellant for telling the truth under NMRA Rule 1-090 and accuses the Appellant of being “vexatious” when writing of distasteful but true allegations of public corruption in the judicial system of New Mexico under mandates and rights under NMRA Rule 11-504. Distasteful as the truth of what is happening here, this court must deal with the truth and stop actions that are against justice and against the very integrity of the judicial system. Canon: “Our legal system is based on the principle that an independent, fair, and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.” In this matter of the trial court, Judge Hadfield without jurisdiction attempts to limit and control the court record by stopping legal filings. The doctrine of Astare decisis@ as well as Oath and Canon mandate Judge Hadfield to rule according to law. In re Antar, 71 F.3d 97. ; Ennis v. Kmart Corp., 131 N.M. 32, 33 P.3d 32, 2001 -NMCA- 068, N.M.App., June 21, 2001 (NO. 20,977).
            In the underlying actions, Judge Hadfield obstructs justice to conceal public corruption by destruction of court records and blocking appeals and looking illegally at the pleadings to see what is written before she has any jurisdiction to do so. In the NM Court of Appeals in this case the justices conceal the underlying public corruption by blocking appeals in the same manner of denying filings, and attempting to be able to look illegally at the pleadings to see what is written before they have any jurisdiction to do so to force the litigant to have filings “pre-approved”, and manipulation of the “forma pauperis” status in acts of extortion and ransom for taking appeal; all in obstruction of justice and denial of due process and equal protection. US v. Anderson, 798 F.2d 919 CA7 (Ind.) 1986 “Word should in Canon..of Judicial Conduct which states that judge “should” accord to every interested person a full right to be heard, imposes mandatory standard of conduct upon judges and requires presence of both prosecuting attorneys and defendant at any proceeding which bears on outcome of pending..case.” Code of Judicial Conduct Canon 3, Subd. A(4) and C(1)(a). In this case No. 32,326, the unethical justices of the NM Court of Appeals attempt the same procedure in illegal and unconstitutional Order in April 2013 to force David Derringer to present pleadings before filing and before they have jurisdiction so as to do the same outrageous acts of deprivation of due process against David Derringer, “without jurisdiction”, and thus also want to “deny” this motion on the underlying court, while they conduct the same, exact acts of illegal distortion of court records, with a new twist of also attempting to stop David Derringer’s legal appeals by denying “forma pauperis” or selectively limiting the forma pauperis so as to stop most legal appeals; an act of criminal nature of “obstruction of justice” since David Derringer has been shown to totally qualify for forma pauperis under public assistance, which means that “all” appeals can be continued without payment of process fees, not only those appeals that the NM Court of Appeals will allow to continue, while stopping all other appeals that expose underlying public corruption. Adamson v. C.I.R. CA9 1984, 745 F.2d 541 “Federal Courts cannot countenance deliberate violations of basic Constitutional rights; to do so would violate judicial oath to uphold Constitution of United States.”; Martinez v. Carmona, 624 P.2d 54, 95 N.M. 545 writ quashed 624 P.2d 535, 95 N.M. 593 “N.M. Court of Appeals 1980 Judge may be disqualified for statutory, constitutional, or ethical cause-Code of Judicial Conduct, Canon 3 Subd. A, Constitution Article 6, Section 18.”
1.                The appeal No. 32,326 arises out of the jurisdictionally defective and in fundamental error case of DV-12-234, of which there was no summons served and waiver of service, in which the trial court will not stop actions, Orders, Judgments and hearings, despite the jurisdiction lacking because of No. 32,326. This has now forced a new appeal of the new issues of DV-12-234 done after jurisdiction ongoing of No. 32,326, necessitating new appeal of No. 32,982; all due to the discharge of duties of this court not stopping the illegal and non-jurisdictional acts of DV-12-234 without any remand yet from this court. These egregious acts of Judge Hadfield encompass denied filing of the docketing statement of new violations of DV-12-234 and blocking further appeals in “obstruction of justice” and fraud to the court. in a complete lack of jurisdiction to misuse power to effect control of a particular litigant. Mireless v. Waco, 502 U.S. 9, 116 S. Ct. 286, 112 L. Ed.2d 9 (1991). The entire “key” here to the outrageous acts of Judge Hadfield and this court’s former ruling in this case to attempt to “preview” David Derringer’s legal pleadings is a matter of “jurisdiction” and justices cannot work outside of jurisdiction; encompassing no legal ability to “preview pleadings or force a litigant to have his pleadings “approved” before filing. “A judge only has jurisdiction  over any pleading after a proper filing with the court clerk.” Wilson & Co. v. Banque Francaise du Mexique, 124 Misc. 690, 208 N.Y.S. 213, N.Y.Sup., June 11, 192 Filing or court record. Filing of papers with court clerk is condition precedent to jurisdiction of court, and court cannot make order nunc pro tunc to cure such jurisdictional defect. ; Robinson v. Sawyer, 23 N.M. 688, 170 P. 881, N.M., January 07, 1918 (NO. 2007). In effect, by Judge Hadfield keeping the clerk from filing the pleadings of David Derringer, she willfully corrupts and disturbs the court record in acts of obstruction of justice, effectively “destroying” a document that should be filed in an instant manner. US v. Kanchanalak, 37 F. Supp.2d 1.  David Derringer properly sought to be able to file his court pleading without interference or obstruction so as to perfect appeals and have in the court record trial court the necessary information on issues to preserve them for review of the future  appeal pursuant to the "scope of review" NMRA 12-216(A). Judge Hadfield bullied the court clerks by mis-use of power to intercede and steal the David Derringer documents prior to filing so as to invade David Derringer's privacy to see what David Derringer had written so as to block such information of "truth" under NMRA Rule 1-090 and "written information" under NMRA Rule 11-504 from the court record, due to such information disclosing and exposing the Constitutional violations and public corruption of the judge herself. Smith v. City of Artesia, 108 N.M. 339, 772 P.2d 373, N.M.App., March 02, 1989 (NO. 10,094) ...invasion of privacy can be maintained only by a living individual whose privacy is invaded. The right protected by the action for invasion of privacy is a personal right, peculiar to the individual whose privacy is invaded. In this matter, the information was  for the court record only, not the personal view of Alisa Hadfield, but only for view of Judge Hadfield working in Judicial capacity once the information became of court public record. This is highly offensive to the Respondent for the Judge to attack David Derringer's court pleadings with criminal acts, for a proven corrupt judge that Respondent David Derringer has sought to recuse for cause 6 times and filed 7 Judicial Standards  complaints about, and who instead has violated NMRA Rule 1-088.1.  refused to step down.  and refused to obey NMSA 38-3-3 to refuse to change the venue and keeps David Derringer "imprisoned" in her court. Jones v. Mayer Co., U.S. Supreme Court 392 U.S. 409 (1968) No. 645.;  Lee v. Calhoun, 948 F.2d 1162, C.A.10 (Okla.), November 06, 1991 (NO. 90-6013) ...invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Section 652B liability does not require publication of private matters. The invasion may consist of forced entry into a person's home, eavesdropping or spying upon a person's private affairs, or tampering with a person's private papers or mail. Jones ET UX v. Alfred H. Mayer Co. ET AL, certiorari to the United States Court of Appeals for the Eighth Circuit, No. 645.
2.                The actions challenged in the motion, as well stated above entail actions of stopping docketing statements as an ongoing appeal process, and actions taken in obstruction of justice of both DV-12-234 and totally intertwined DM-12-610; all actions of denying filings with a court clerk under mis-use of power by Judge Hadfield were meant to stop any further appeals [5] of both DV-12-234 and DM-12-610 with actions that had been taken without jurisdiction in both cases.
3.                The Respondent David Derringer filed an appeal of DV-12-610 known as NM Ct. App. No. 32,587 with fifty three (53) distinct violations of law done in the trial court, in which the NM Court of Appeals denied entirely as such underlying actions were Constitutional deprivations, bias, prejudice, bribery and other atrocious acts, making both DV-12-234 and DM-12-610 defective jurisdictionally, and instead covered up the public corruption by supporting such “known” illegal acts of the lower court particularly after the denial of the Motion for Reconsideration, and acted in discharge of law in affirmance, and issued mandate; all the while Judge Hadfield was still working in DM-12-610 without concern. There are not only federal violations to Constitutional rights and US code, but violations to the "extra protections" afforded the Respondent/Appellant under the New Mexico Constitution Article II Bill of Rights 1,4,10,17,18,and 24; in particular the Article II #6 that has entirely defeated the violation of the 2nd Amendment contained in the Order of Protection pre-formed County Order of Protection form of DV-12-234 mandating the dismissal of the case DV-12-234 under Constitutional deprivations, and since in both open court and under written order the case DM-12-610 affirms DV-12-234, DM-12-610 is in gross violation of both US and NM Constitutions and must be dismissed as “jurisdictionally defective”. Sec. 6. [Right to bear arms.] No law shall abridge the right of the citizen to keep and bear arms for security and defense, for lawful hunting and recreational use and for other lawful purposes, but nothing herein shall be held to permit the carrying of concealed weapons. No municipality or county shall regulate, in any way, an incident of the right to keep and bear arms. (As amended November 2, 1971 and November 2, 1986) This copy is taken from the latest reprint of the New Mexico Constitution as of 2007, in current use and acceptance as a matter of law.
4.                Appellant can challenge of “jurisdiction” actions taken by a specific Judge that happens to be the same judge in both the DV-12-234 and DM-12-610 totally intertwined cases, because this particular judge works outside of jurisdiction and judicial capacity in both cases, but more importantly, illegally prevents court filings of pleadings and other court papers with the district court clerks from David Derringer in both cases of DV-12-234 and DM-12-610 preventing appeals of both cases and disrupting and tainting the court records in both cases with criminal acts of tort and obstruction of justice. Furthermore, as discussed previously in this pleading the “divorce action” is jurisdictionally defective due to Constitutional deprivations and based in “fraud” and not only must be dismissed on jurisdictional defect, but in fact without a ruling on pending motions with the New Mexico Supreme Court of the matters of the Petition for Writ of Certiorari of NM Ct. App. No. 32,587, the matter has not been resolved.
THEREFORE due to the above, case DV-12-234 is jurisdictionally defective and in fundamental error by way of lack of service of summons without waiver from Respondent David Derringer; is defective entirely with multiple Constitutional deprivations of both the US and NM Constitution; is defective without jurisdiction over David Derringer as a party or the subject matter due to lack of process, and deprivation of due process and equal protection; and has a proven basis by both Commissioner Cosgrove/Aguilar and Judge Hadfield of basic fraud of rendering decisions in legal error due to bribery and violations of Oath, Canon and the Code of Judicial Conduct; making both DV-12-234 and DM-12-610 mandated to be dismissed with prejudice without granting any divorce for Barrie Derringer. Clearly, with Constitutional deprivations and blatant “fraud” these cases must be dismissed. “The inherent power of a court to grant equitable relief from a judgment procured by fraud upon the court is beyond question.” Universal Oil Prods. Co. v. Root Ref. Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 1179, 90 L.Ed. 1447 (1946); Hazel–Atlas Glass Co. v. Hartford–Empire Co., 322 U.S. 238, 244, 64 S.Ct. 997, 1000, 88 L.Ed. 1250 (1944), overruled on other grounds, Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976); Jemez Properties, Inc. v. Lucero, 94 N.M. 181, 184 n. 1, 608 P.2d 157, 160 n. 1 (Ct.App.1979), cert. denied, 94 N.M. 628, 614 P.2d 545 (1980). Supreme Court Justice Tom C. Clark in Mapp V. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (June 19, 1961), as follows: “Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."” (Emphasis added).
Respectfully submitted by: _______________________________
David Derringer, Box 7431, Albuquerque, New Mexico 87194
CERTIFICATE OF SERVICE            July 22, 2013
I hereby certify that I sent a  copy of this pleading to:
New Mexico Court of Appeals clerk
P.O. Box 2008
Santa Fe, New Mexico 87504

I sent a copy of this pleading to:
Attorney Alain Jackson “not of record with this court”
423, 6th, NW, Albuquerque, New Mexico 87102


[1] David Derringer was denied service of summons in DV-12-234 making it jurisdictionally defective and in fundamental error, mandating entire dismissal. David Derringer came to the hearing of February 21, 2012 due to his own filing of Petition for Psychiatric Evaluation of Barrie Derringer, not due to Petition for Order of Protection, and instantly notified the court of no jurisdiction of Petition for Order of Protection in fundamental error and that hearing could not be held. Commissioner Cosgrove/Aguilar, in abuse of law continued with the Petition for Order of Protection and disregarded and dismissed David Derringer’s Petition for Psychiatric Evaluation of Barrie Derringer; such does not grant waiver by David Derringer for lack of service of summons. Abarca v. Hanson, 106 NM 25, 738  P.2d 519 (Ct. App. 1987). In judicial abuse of discretion, Judge Hadfield has upheld this illegal DV-12-234 as the underlying foundation of DM-12-610; all with blatant Constitutional deprivations of the 1st, 2nd, 4th, 5th, 6th, 13th and 14th Amendments.
[2] State v. Reynolds, 111 NM 263, 267, 804 P.2d 1082, 1086 (Ct. App. 1990) “Matters outside the record present no issue for review”.
[3] Meeker v. Walker 80 N.M. 280, 454 P.2d 762 (1969) “From and after the filing of the notice of appeal from a judgment, the trial court was without jurisdiction to take any further step in regard to the motion to alter or amend judgment.”
[4] Title 28 Section 455(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (1 Where he has a personal bias or prejudice concerning a party
[5] In both cases of DV-12-234 and DM-12-610, Petitioner’s attorney Alain Jackson violated all provisions of the Code of Professional Conduct NMRA Rule 16-804 by requesting in pleadings and open court for deprivation of due process and equal protection against David Derringer and after several open court dialogs of asking Judge Hadfield to violate her Oath and “stop any further appeals of David Derringer”, Judge Hadfield has complied with that request by not filing orders of oral hearings, and denying David Derringer legal filings in the court including actions of “docketing statements” so as to block appeals in obstruction of justice. State ex rel. Reynolds v. McLean, 74 NM 178, 392 P.2d 12 (1964) Decision without entry of order. No appeal can be taken from announcement of district court where no order carrying  court's decision into effect was entered. Actions herein mandate Canon 3(D)(1)(2).

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