70 Arrested in Child Pornography Sting

+++++The U.S. Department of Immigration and Customs enforcement just made a mass arrest of defendants accused of collecting and trading child pornography on the Internet. A five-week federal investigation recently culminated in the arrests of 70 men and one woman.
+++++In connection with the arrests, more than 600 computers, tablets and phones were seized. These are undergoing forensic investigation by the Department of Homeland Security to catalog evidence, and by the Center for Missing and Exploited Children to see if any of the photographs that were recovered are of children who are missing.
+++++Investigators say that more arrests may come after examination of the devices has been completed.
+++++Federal investigators began their investigation after the arrest in January of a police chief who was subsequently charged with knowing possession of child pornography and distribution of child pornography. Agents posed as people who wanted to anonymously collect and trade child pornography images, and then obtained Internet Protocol (IP) addresses of those who offered any. The agents then subpoenaed Internet service providers to determine the names and addresses associated with those addresses.
+++++Even though the Internet may seem like an impersonal place where one can avoid scrutiny that is not a safe assumption to make when doing illegal things online. As this case illustrates, law enforcement officials have significant resources to undertake digital forensic investigations, often gathering evidence of criminal conduct before the accused has any idea that he or she is even under suspicion.
+++++Massachusetts residents who have been arrested and accused of Internet crimes need knowledgeable criminal defense representation to make sure that their privacy and other legal rights have not been violated. Such cases involve complicated technological and evidentiary issues, which can a criminal defense attorney can help guide the accused through.
+++++Source: Boston Herald, “Dozens charged in child porn case in NYC area,” Associated Press, May 24, 2014.
+++++Originally posted in Federal Crimes on Thursday, May 29, 2014. Edited by Jack Cunha on August 2016

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Best Interest of the Child – Providing For Your Child’s Financial Future

Protect The Best Interest of the Child When You Divorce

+++++For couples going through divorce, their most important concern is not their home, business or savings, but the best interest of the child, every child. In circumstances in which couples must divvy up the marital assets, even if it amounts to millions of dollars worth of property in a high net worth divorce, the physical and emotional welfare of their children usually takes precedence over their own needs.
+++++However, the process of ensuring the best interest of the child during divorce often involves several components. For instance, not only is it important to foster continuing and long-lasting relationships between children and both parents following divorce, but it is equally essential that children – and their potential needs – are financially provided for as well.
+++++Massachusetts divorce law provides for children in its divorce property division statute – the judge must “consider the present and future needs of the dependent children of the marriage” when apportioning property during divorce. This is just one of many laws in Massachusetts that have the ability to impact the financial future of children following their parents’ split.

Child Custody Laws in Massachusetts

+++++Often, a child’s emotional and financial well-being – and his or her parent’s corresponding obligations – will be tied to the custody arrangement ordered by the court. Therefore, it is crucial to understand how child custody laws work.
+++++Massachusetts divorce law recognizes two distinct types of custody: legal and physical. For example, while legal custody typically has to do with a parent’s right to make decisions regarding a child welfare – such as issues involving education, medical care and religion – physical custody pertains to which parent the child actually lives with. Importantly, in determining the best interest of the child, courts can award sole or shared custody, as to both legal and physical custody.
+++++Massachusetts divorce law encourages parents to work together to develop their own custody and parenting arrangements, which can include a co-parenting plan in which both parents remain in the child’s life and responsibilities are shared. However, in circumstances in which parents cannot come to an agreement, or if the court determines the agreed-upon arrangement is not in the best interest of the child, the court will craft its own workable child custody agreement.
+++++While exercising the broad discretion Massachusetts divorce law gives to any court, judges are governed by the long-standing legal principle of doing what is in the “best interests of the child.” Moreover, when deciding the best interests of the child, judges are guided by the circumstances. For instance, some of the more common factors reviewed by courts when determining the best interest of the child include:

  • The child’s relationship with each parent
  • The child’s healthcare and educational needs
  • Any history of drug or alcohol abuse by either of the parents
  • Any history of physical or emotional abuse of the child, or any continued risk of such abuse
  • Whether the parents have a history of being able to work together and willing to cooperate in matters involving the child
  • Whether past living conditions adversely have impacted a child’s physical, mental, moral or emotional health
  • The child’s preference, if of suitable age and/or maturity
+++++Ultimately, in the absence of misconduct, both parents will be presumed to have equal rights when it comes to child custody determinations in Massachusetts.

Child Support Obligations in Massachusetts

+++++Probably one the principal child-related financial matters to be resolved during a Massachusetts divorce is the establishment of child support. Regardless of whether a parent is seeking child support payments or, conversely, a parent simply wishes to know the amount of his or her payment obligations, child support in Massachusetts is largely determined by established guidelines promulgated by the chief justice of the trial court. Essentially, these guidelines plug various numbers – such as parental income – into a mathematical formula in order to calculate what a parent’s child support responsibilities will be.
+++++Child support obligations generally continue until the child reaches the age of 18, although this may increase to age 21 in certain circumstances, such as when a child remains principally dependent upon the parent with whom he or she still lives. Additionally, if a child continues to be dependent upon a parent due to enrollment in an education program, it is possible under Massachusetts law for support payments to remain in effect until the child reaches 23-years-old. Lastly, if an adult child is mentally or physically incapacitated, a financially able parent may be ordered to pay support so long as the child remains incapacitated.
+++++It is worth noting that just because a particular child support award is established, it is not necessarily fixed forever. Massachusetts divorce law expressly permits the modification of child support if there is an “inconsistency between the amount of the existing [support obligation]” and the amount that would otherwise be required under the guidelines. Alternatively, a modification can also be ordered if there is a need to provide for a child’s health care coverage.

Other Financial Matters That Divorced Parents May Want to Consider

+++++When it comes to the financial well-being of children following divorce, parents do not have to be limited to the tools available in family court. For instance, parents – particularly parents involved in high asset divorces – may also utilize traditional estate planning tools to ensure their children are financially taken care of in the future.
+++++In some circumstances, it may be appropriate where the resources exist to create a lifetime trust for a young child. If properly executed, this type of trust will not only help provide for the child (beneficiary), but the assets held in the trust may even be protected if the beneficiary is ever sued or goes through his or her own divorce down the road.

Helen Holcomb A Certified Financial Litigator for the Best Interest of the Child
Helen Holcomb
A Certified Financial Litigator for the
Best Interest of the Child
+++++Ultimately, every parent going through a divorce needs to review his or her financial situation in order to determine how to provide for the children following divorce. Given that this can get quite complex very quickly, it is important for parents to remember that it is often advisable to speak with a Certified Financial Litigator while making such decisions. A knowledgeable attorney can provide guidance in all applicable areas of the law, including divorce, child custody and child support.

Contact Us

+++++Please contact our firm at 617-523-4300 to schedule an initial consultation. One of our attorneys is a native bilingual speaker in both Spanish and English, and another is fluent in French.

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Considering a High Asset Divorce in Massachusetts?

The Challenges of High Asset Divorce

+++++Even though many divorces can be challenging to resolve, they are often particularly contentious when the parties are attempting to get their “fair share” of substantial assets. A high asset divorce in Massachusetts can quickly grow quite complex as various pieces of property need to not only be assessed in value but divided equitably between the splitting spouses.
+++++And, while such disputes can give birth to a wide variety of financial issues – such as questions of alimony or division high-value assets such as homes, retirement accounts and businesses – they need to be settled before the parties can move on with their lives.

Click here to Learn More About High Net Worth Divorce

Property Division Laws

+++++When divorcing couples are unable to reach a property division agreement, the court must determine how assets are apportioned. In Massachusetts, property and assets are typically divided equitably during divorce, which is not necessarily equally – meaning Massachusetts courts will apportion marital assets based upon what will yield a fair and reasonable result, as opposed to an automatic 50/50 split.
+++++The Massachusetts property division statute also dictates that a court may “assign to either [party] all or any part of the estate of the other.” Essentially, this means that courts are free to divide any property owned by the couple, regardless of whether it was acquired before the marriage (separate property) or during the marriage (marital property). This is particularly important given the fact that most states limit post-divorce property division to marital assets alone. In Massachusetts, courts will often assign separate property to the spouse that owned it originally, though they are not required to do so.
+++++While Massachusetts divorce courts generally have great discretion when dividing assets, there are statutorily created factors that must be considered when making these determinations, including:

  • The length of the marriage
  • The conduct of each party during the marriage
  • The age, occupation, income, health, estate, vocational skills and employability of each party
  • The needs and liabilities of each party
  • The opportunity of each party for future acquisition of capital assets and income

What Happens to the House?

+++++Often, one of the biggest assets to be divided during divorce is the marital home, especially if the spouses have been married for years and accumulated significant equity in the house.
+++++There are many options available to parties, not necessarily limited to selling the home and splitting the profits. Other considerations – such as declining home prices or the existence of school-aged children – may actually give rise to more advantageous, alternatives. For instance, rather than simply selling a home and splitting the proceeds, Massachusetts courts have ordered:

  • One spouse to convey his or her interest in the home to the other spouse, on the condition that the second spouse make a payment to the conveying spouse representing his or her equitable share
  • One spouse to convey his or her interests in the home to the other spouse, with the conveying spouse being compensated with an award or other assets or property
  • That the home be awarded to the spouse with custody of the minor children on the condition that the house be sold and the profits divided once the children all graduate high school
  • That the right to occupy the home be awarded to one spouse until a predetermined future date, or until the happening of a specific event, at which time the home will be sold and the proceeds divided
+++++Ultimately, the most important thing when dividing a home is getting the value correct, which often requires the assistance of qualified appraisers and attorneys.

Retirement Accounts & Businesses are Subject to Division

+++++A high asset divorce may include substantial assets the spouses have spent years building, including retirement accounts and/or businesses. Under Massachusetts law, retirement funds – such as pensions – as well as ownership interests in businesses are assets that can be divided during divorce. But, before they can be divided equitably, they must first be valued.
+++++While the valuation process can be simple when dealing with retirement funds – with several exceptions – or even stock in a publicly traded company, it is typically more complicated when valuing on a closely-held company owned by one of the spouses. Indeed, given the complex nature of valuing a closely held company, experts are often employed to determine market value.

Click here to Learn More About Divorce for Business Owners

Alimony Law

+++++Division of accumulated assets is not the only concern for couples going through a high asset divorce in Massachusetts. For many, the main financial issue to be resolved is the matter of alimony, which is sometimes referred to as spousal maintenance.
+++++The law in Massachusetts regarding alimony changed significantly in 2012. There are now four different types of alimony payments that can be ordered by Massachusetts courts: general, rehabilitative, reimbursement and transitional. Given that each type serves a distinct purpose, courts will typically examine several factors when determining which type to order – if any – in addition to the amount and duration. These factors include, but are not limited to:

  • Length of the marriage
  • Age of the parties
  • Health of the parties
  • Income
  • Employment, or employability, of the parties
+++++Except in circumstances in which reimbursement alimony is ordered, Massachusetts law dictates that courts should generally not award alimony in excess of the “recipient’s need” or 30 to 35 percent of the difference between the spouses’ gross incomes.

Helen Holcomb | Certified Financial Litigator
Helen Holcomb
Certified Financial Litigator

Essential Legal Guidance

A high asset divorce can be particularly problematic for splitting spouses. Not only can they involve complex asset division, but in some instances, one of the parties may attempt to hide assets. This is why it is imperative to consult with an experienced divorce lawyer if you are contemplating divorce and believe it may become contentious. A skilled family law attorney will help find all marital assets and assist in ensuring that your rights are protected during the process.

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Please contact our firm at 617-523-4300 to schedule an initial consultation. One of our attorneys is a bilingual native speaker in both Spanish and English, and another is fluent in French.

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Tax-Dollar Priorities: Mass Incarceration or Education?

Spending on Mass Incarceration Far Exceeds Education Outlays

+++++There is an oft-repeated adage that budgets are moral documents, reflecting the values of the people who created them. What does it say, then, that the United States continues to spend more and more money on mass incarceration, locking up its citizens while at the same time cutting funding for higher education? Are Americans more criminal than people elsewhere, or are our priorities and policies badly skewed?
+++++In 1980, approximately 220 of every 100,000 people in the United States were incarcerated. Now, the U.S. incarceration rate is a staggering 716 per 100,000 residents, many times higher than any other country in the world. While we represents about 4.4 percent of the world’s population, the United States incarcerates around 22 percent of the world’s prisoners. In July 2016, the U.S. Department of Education (DOE) reported that mass incarceration rates have increased despite large decreases in crime rates of more than 50 percent between 1980 and 2014.
+++++According to the Bureau of Justice Statistics, the number of people incarcerated in state and local facilities more than quadrupled, rising from about 490,000 in 1980 to over 2 million in 2014, due in part to the enactment of additional, often lengthy mandatory minimum sentence laws. Approximately one-quarter of these inmates are imprisoned on non-violent drug charges.
+++++During the same period, state spending for public higher education was cut by nearly one-third nationwide. Massachusetts has not been exempt from this trend. Although Massachusetts (-2%) and New Hampshire (-1%) were the only two states in which the rate of increase in per capita corrections spending did not outpace the rate of increase in per-pupil education spending, from 1979-80 to 2012–13 in Massachusetts state and local corrections expenditures rose 63% compared to public PK–12 expenditures. Massachusetts is one of 11 states that spends more on its prison systems than public universities.

Incarceration Brings Life-Long Consequences

+++++Of course, all this prison spending does more than just impact the cost of a public college. It puts a whole population of people at risk of being dependent on the system – or even worse, shuttling in and out of prison – for their entire life. The DOE report notes that “Investments in early childhood education can lead to reduced incarceration later in life, in part through improving educational attainment.”
+++++Going to prison makes it extremely difficult to later gain an economic foothold. According to research by the education group Public Administration, approximately 60 percent of ex-convicts remain unemployed a year after release. By contrast, the unemployment rate among recent college graduates is around 12 percent. The disparity does not stop there: ex-convicts can expect a median income of about $22,000 per year, while the median annual income for college graduates is approximately $55,000.
+++++Many employers simply refuse to hire people who have a criminal conviction, let alone someone who spent time in prison. While employers in Massachusetts generally may not include a question about convictions on an application, beyond that stage they may access criminal record information, including cases continued without a finding but not yet dismissed. Anyone with a criminal record should consider petitioning the courts to seal the record from access by an employer (and the public).
+++++Click here to Learn More about Sealing a Criminal Record
+++++The negative effects of mass incarceration extend well beyond employment and income. In nearly all states, prisoners lose their right to vote. In Massachusetts, that right is restored after release, but many states impose much lengthier bans on felon voting. Some ban felons from voting for life. In addition, many former inmates find it difficult to qualify for food assistance, student loans, visitation time with their children and a whole host of other rights and privileges that most people take for granted.

Are We Creating a Permanent Underclass?

+++++Many worry that the trend toward mass incarceration is creating a second class of citizens destined to lag behind their peers. While some young people head off to college, others from less-fortunate backgrounds get caught up in the cycle of poverty and addiction that so often leads to incarceration. This disparity tends to affect minority communities the most – as of 2007, there were three times as many African-American people living in prisons than in college dorms. The rate for Hispanic Americans was only slightly lower, with 2.7 prisoners for every dormitory resident.
+++++None of this is to say that people who commit serious crimes shouldn’t be held accountable for their actions. But, these statistics show that our current trend toward widespread mass incarceration and lengthy prison sentences is not the way to build a better society. A more compassionate model that focuses on providing opportunities to people who might otherwise become entangled in the criminal justice system would prove more effective.
+++++In the meantime, the negative impacts of incarceration make it all the more important for people charged with crimes to vigorously defend their rights. Even if the charge cannot be completely beaten, an experienced criminal defense attorney may be able to minimize the consequences of a conviction.

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Attorney Jack Cunha | Best Boston Criminal Defense LawyerCunha & Holcomb | Boston Divorce Lawyers | Boston Criminal Defense LawyersOur Boston criminal defense attorneys can help protect your record, or help to seal it.
Please contact our firm at 617-523-4300 to schedule an initial consultation.
+++++One of our attorneys is a native bilingual speaker in Spanish and English, and another is fluent in French.

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Children and the Police

Parents, Children and the Police

+++++If you mention to people that teenagers are more deferential to authority than adults, you get some quizzical looks (especially from parents of teenagers). While teens are by nature headstrong and rebellious, study after study show that when a child under 18 and the police interact, the teen is too easily influenced, particularly if they are being questioned about possible criminal conduct.
+++++Kids want to please, and tend to do or say anything to get out of a stressful situation — like a police interrogation. When it comes to learning values and how to behave, children need parents. When it comes to children and the police, children need a lawyer.
+++++There are numerous cases of teenagers confessing to very serious crimes they did not commit. Clearly, this can be disastrous to their defense. Many teens are locked up for a long time based on false confessions.
+++++Politely — but firmly — decline police requests to question your child, and tell them your lawyer will be in touch.

Learn More – The Right to Remain Silent

Children Receive Additional Protection

+++++The prosecution must meet a heavy burden to demonstrate that any accused knowingly and intelligently waived his privilege against self-incrimination. This burden is even heavier when the accused is under 18, because courts recognize that most juveniles do not understand the significance and protective function of their rights, even when they are read the standard Miranda warnings.
+++++Therefore, “special caution” must be exercised when police present juveniles with the option of waiving their Miranda rights in order to ensure that the juvenile defendant has understood his rights and the consequences of waiving them.
+++++That’s the theory. What’s the practice between children and the police?

Legal Protections When Police Question A Child

+++++To ensure juveniles are protected, the Massachusetts Supreme Judicial Court has established a procedure the police should follow when they want to interrogate a child:

  • in the case of juveniles who are under 14, no waiver of the right to remain silent can be effective unless a parent or an interested adult was present, understood the Miranda warnings, and had the opportunity to explain the rights to the child
  • juveniles between 14 and 18 must be afforded the opportunity to consult with an interested adult
  • however, even if this opportunity is not given, a waiver of rights made by a child under 18 may be valid if the circumstances demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile
+++++The cops aren’t there to help you parent. Or to scare your kid straight. Their job is to bring prosecutions. All too often parents encourage their child to speak to the police, unaware of the consequences. Parents think the police will help them teach or discipline the child. There is no appreciation that the right to remain silent also protects the innocent. Parents are then shocked when the child is arrested, faces severe student discipline, or even charged criminally in adult court. The topper – the child’s statements are used against him or her in court.
+++++Children and the police is a toxic mix.

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Attorney Jack Cunha | Best Boston Criminal Defense LawyerCunha & Holcomb | Boston Divorce Lawyers | Boston Criminal Defense LawyersAttorney Jack Cunha can help protect your child.
Call 617-523-4300 to schedule a consultation. One of our Boston criminal defense lawyers is a native bilingual speaker in Spanish and English. Another is fluent in French.

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Protect Your Innocence — “Take the 5th”

Fifth Amendment Right to Remain Silent

+++++The police want to speak with you — or your child — about some incident or issue. They may advise you of the right to remain silent and cannot tell you not to take the 5th. They are also taught to tell you that being open with them can help resolve the problem, or make it better if you are actually charged. Not true.

Learn More – Children & the Police

+++++There is nothing you can tell a cop that could ever help you. Ever. Statements that hurt you will be admitted at trial against you as exceptions to the hearsay rule. But statements that could help you are hearsay and will not be heard by a jury at trial. Remember, exercising your right to remain silent can never be used against you.

Call A Lawyer As Soon as Possible

+++++Politely decline to speak with the officer, and ask if you are free to leave. If so, leave, and call a lawyer. If you are not free to leave, tell the police you have nothing to say and want a lawyer. Why?

“Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

Watts v. Indiana, 338 U.S. 49, 59 (1949) (Justice Robert H. Jackson, who also served as the U.S. Attorney General, and chief prosecutor at the Nuremberg trials).

Consequences of Speaking With the Police

+++++An example. Investigators want to discuss a financial matter with you. Seeing no harm, you tell them truthfully that you considered the transaction, but dropped out after preliminary discussions. You identify some documents which do not have your name on them. What you do not know is that federal crimes are now suspected. Or, after your involvement, the nature of that transaction changed so as to constitute white collar offenses. More importantly, a wrongdoer now seeking to get a lesser sentence by identifying you as being involved in the scheme, had produced those documents trying to tie you to the transaction. Your truthful assertion of innocence will be used against you to show you corroborated what the liar claimed, at least in part.
+++++Another example. There was a shooting, and the police later ask you questions. Again seeing no harm, you tell them truthfully you were driving nearby, heard shots, and fled from fear of being hit by a stray bullet. What you do not know is that a store video several blocks away caught a license plate of a car racing from the scene. The police then got your photo from the RMV, and a witness mistakenly picked you out as the shooter. Your statement of innocence – admitting being “on” the scene, hearing shots and fleeing – will be used at trial as evidence of your guilt.
+++++As the Supreme Court put it,

“one of the Fifth Amendment’s basic functions is to protect innocent persons who might otherwise be ensnared by ambiguous circumstances.”

Grunewald v. United States, 353 U. S. 391, 421 (1957).
+++++Over 25% of the falsely convicted people who were later exonerated by DNA had made a statement that was used against him at trial.

Do Not Be Coerced

+++++Police prey on people who think if they do not “cooperate,” they will be perceived by others as having something to hide, and therefore they must be guilty. Wrong. What you say and what the authorities hear and report are almost always different in important respects, and invariably damaging.
+++++Do not make the fatal mistake of speaking with law enforcement agents – in a large percentage of cases, people are convicted solely based on what they said to the police. No matter how pressured you feel, judges very very rarely determine later that a statement was not voluntarily given.
+++++This injustice is easily avoided — exercise your right to remain silent.

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Attorney Jack Cunha | Best Boston Criminal Defense LawyerCunha & Holcomb | Boston Divorce Lawyers | Boston Criminal Defense LawyersAttorney Jack Cunha can help protect your child.
Call 617-523-4300 to schedule a consultation. One of our Boston criminal defense lawyers is a native bilingual speaker in Spanish and English. Another is fluent in French.

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Defending A Federal Criminal Prosecution

Boston Federal Criminal Defense Lawyer

+++++There is a well-known term describing a situation in which you feel trapped, helpless, and confused, with an impending sense of dread, if not doom: “that sinking feeling.” If you are being investigated for federal crimes or accused of any white collar crimes, you have experienced it. You need a federal criminal defense lawyer.
+++++It is understandable being overwhelmed and intimidated up against any criminal charge. But with a federal criminal charge, it is more ominous. You may have already been contacted by federal law enforcement agencies like the FBI, the Drug Enforcement Administration, or the Bureau of Alcohol, Tobacco, Firearms and Explosives. If you have already come face to face with federal agents, or their intimidating pressure, and intrusive technology, like wiretaps or video surveillance, you understand the power and resources the feds bring to any investigation. You need help. You need a Boston federal criminal defense lawyer now.
+++++If you have not spoken with federal law enforcement, do not do it. It is a serious, and sometimes fatal mistake. No matter what you say, it will be twisted to hurt you.

Learn More – The Right to Remain Silent

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Attorney Jack Cunha | Best Boston Criminal Defense LawyerCunha & Holcomb | Boston Divorce Lawyers | Boston Criminal Defense LawyersNot just any criminal defense lawyer is up to the challenge of facing down the power of a federal prosecution. You need a law firm expert in federal criminal statutes, federal court procedure, and perhaps the intricacy of federal sentencing law.
+++++When your rights, your freedom and your reputation are on the line, retain an experienced, hard-nosed Boston federal criminal defense lawyer.
+++++Call 617-523-4300 to schedule a consultation. One of our Boston criminal defense lawyers is a native bilingual speaker in Spanish and English, another fluent in French.

Posted August 27, 2014; revised by Attorney Jack Cunha, August 20, 2016.

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