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TCL > January 2004 Issue > Disciplinary Opinions

January 2004       Vol. 33, No. 1       Page  125
From the Courts
Colorado Disciplinary Cases

Disciplinary Opinions

The Colorado Supreme Court has adopted a series of changes to the attorney regulation system, including the establishment of the Office of the Presiding Disciplinary Judge, pursuant to C.R.C.P. 251.16. The Court also made extensive revisions to the rules governing the disciplinary process, repealing C.R.C.P. 241 et seq., and replacing those rules with C.R.C.P. 251 et seq. The Presiding Disciplinary Judge presides over attorney regulation proceedings and issues orders together with a two-member hearing board at trials and hearings. The Rules of Civil Procedure and the Rules of Evidence apply to all attorney regulation proceedings before the Presiding Disciplinary Judge. See C.R.C.P. 251.18(d).
The Colorado Lawyer publishes the summaries and full-text Opinions of the Presiding Disciplinary Judge, Roger L. Keithley, and a two-member hearing board, whose members are drawn from a pool appointed by the Supreme Court. For space purposes, accompanying Exhibits may not be printed.
These Opinions may be appealed in accordance with C.R.C.P. 251.27.
The full-text Opinions, along with their summaries, are available on the CBA home page at See page 140 for details.Opinions, including Exhibits, and summaries are also available on LexisNexisTM at by clicking on States LegalU.S./Colorado/Cases and Court Rules/By Court/Colorado Supreme Court Disciplinary Opinions.


Case Number: 03PDJ024







October 24, 2003


Opinion by Presiding Disciplinary Judge, Roger L. Keithley, and Hearing Board Members Gail C. Harriss and David A. Helmer, both members of the bar.


A Sanctions Hearing pursuant to C.R.C.P. 251.15(b) was held on October 23, 2003, before the Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two Hearing Board Members, Gail C. Harriss and David A. Helmer, both members of the bar. James C. Coyle, Deputy Regulation Counsel, represented the People of the State of Colorado ("People"). John S. Dunsmoor, the respondent, ("Dunsmoor") appeared by telephone.

The Colorado Supreme Court immediately suspended Dunsmoor from the practice of law in Colorado in Case No. 03SA102 on April 21, 2003. The suspension was based upon a March 17, 2003, Petition for Immediate Suspension filed by the People based on the same factual basis giving rise to these proceedings. The People filed a Complaint in this disciplinary matter on April 16, 2003. The Citation and Complaint were sent via regular and certified mail to the respondent on the same date. The People filed a Proof of Service on May 21, 2003. The Proof of Service shows that the Citation and the Complaint were sent to both Dunsmoor’s registered business address and his registered home address. In addition, the Citation and Complaint were also sent to a recently discovered home address, as well as to Dunsmoor at the Florence, Colorado, federal prison camp. Dunsmoor failed to file an Answer to the complaint. Dunsmoor did submit a letter dated May 29, 2003, which did not admit or deny any allegation contained in the Complaint, but could be considered as a written statement of mitigation. The Hearing Board accepts such document (Exhibit D to the People’s Motion for Default) as a written statement for mitigation purposes only.

On June 5, 2003, the People moved for default on the claims set forth in the Complaint. Copies of the Motion for Default were sent to Dunsmoor at his home and prison camp addresses. Dunsmoor did not oppose the People’s Motion for Default.

On July 14, 2003, the PDJ granted the Motion for Default as to the facts set forth in the Complaint, which were deemed admitted, and as to the claims set forth in the Complaint, which were deemed established. The PDJ directed that the matter be set for a trial/sanctions hearing. Copies of the PDJ’s Order Re: Default were sent to Dunsmoor at his home and prison camp addresses.

The matter was originally scheduled for September 23, 2003, but continued to October 14, 2003. At Dunsmoor’s request, the October 14, 2003, hearing date was vacated and the matter was then rescheduled for October 23, 2003, at 9:00 a.m.

At the Sanctions Hearing Dunsmore openly acknowledged that his conduct required disbarment and apologized to the court for his misconduct. The Hearing Board considered the facts established by the entry of default, the People’s argument and Dunsmoor’s statement, and made the following findings of fact which were established by clear and convincing evidence.


John S. Dunsmoor has taken and subscribed the oath of admission, was admitted to the bar of the Colorado Supreme Court on October 16, 1981, and is registered upon the official records of the Supreme Court, registration number 11247. He is subject to the jurisdiction of this Court pursuant to C.R.C.P. 251.1(b).

All factual allegations set forth in the Complaint were deemed admitted by the entry of default, and therefore are established by clear and convincing evidence. The entry of default also deemed established the violations of the Rules of Professional Conduct set forth therein.

On May 2, 2002, Dunsmoor was charged in a one-count criminal information in the United States District Court for the Northern District of Indiana. The information from the Northern District of Indiana charged the respondent with a violation of 18 U.S.C. § 664 (1994), embezzling funds of employee pension and welfare benefit plans.

On May 22, 2002, Dunsmoor was charged in a one-count information filed in the United States District Court for the District of Colorado. The information from the District of Colorado charged the respondent with a violation of 18 U.S.C. § 1957 (1994), money laundering.

On June 21, 2002, Dunsmoor pled guilty to both of the above charges. Dunsmoor filed a written factual basis for the plea of guilty to both charges in the federal criminal matters on May 2, 2002.

Dunsmoor provided the following factual basis for the 18 U.S.C. § 664 violation, embezzling funds of employee pension and welfare benefit plans:

a. The International Longshoreman’s Association Local # 1969 ("ILA") was a union representing dock workers at the Port of Indiana in Portage, Indiana.

b. The ILA had a number of employee benefit plans for the benefit of its members, which plans were employee pension and welfare benefit plans subject to Title I of the Employee Retirement Income Security Act of 1974 (hereinafter collectively the "ILA Employee Funds").

c. The respondent held himself out as an investment advisor, available to provide advice intended to grow and preserve assets of individuals and entities, and as a licensed attorney, available to provide legal advice to individuals and entitles.

d. Michael A. Daher, Sr. owned a company called Leader in Marketing Fulfillment, Inc. ("LMF"), an entity set up to provide investment advice. It was intended that the respondent would share in profits of LMF. Some time in 1993, the Trustees of the ILA Employee Funds hired Daher, LMF and the respondent to act as investment advisors to the ILA Employee Funds. It was agreed that the ILA Employee Funds would pay a fee representing from 1.2% to 2.4% of the total assets under management. Daher and the respondent represented, and the Trustees believed, that this 1.2% to 2.4% fee was to be the total fee that Daher, LMF or the respondent would receive as a result of work done in connection with the ILA Employee Funds.

e. In or about June 1994, Daher and the respondent advised the Trustees to invest assets of the Pension Fund in a residential development known as Grapevine Villas Project, located in Mesquite, Nevada (the "Grapevine Project").

f. In or about July 1994, relying on the advice of Daher and the respondent, the Trustees agreed to loan to RODEVCO, Inc. money belonging to ILA Employee Funds for the Grapevine Project. Unknown to the Trustees, Daher and the respondent had made arrangements with RODEVCO to obtain more than the 1.2% to 2.4% annual fee. Unknown to the Trustees, RODEVCO had agreed to pay a fee for bringing the loan to the project (the "Point Payments").

g. While RODEVCO had initially agreed to pay only 10% as Point Payments, Daher and the respondent demanded and ultimately received, well in excess of 10%. From on or about July 19, 1994, through on or about February 2, 1996, Point Payments in the total amounts of approximately $1,049,000 were received. These funds represented money of the ILA Employee Funds that was intended to be loaned to advance the Grapevine Project, be secured in the Grapevine Project, and earn interest, not to be paid as undisclosed fees. In addition, Daher and the respondent convinced the Trustees to have the ILA Employee Funds make additional investments by purchasing land near the Grapevine Project, known as the Chardonnay Property. The ILA Employee Funds purchased this land for approximately $950,000 in August 1995. Daher and the respondent had arranged the purchase of this land in May 1995, for approximately $475,625, under the name of a nominee, and Daher and the respondent were the true sellers who profited personally from the sale to the ILA Employee Funds.

h. At some point the respondent decided to disclose at least some of what had been going on to representatives of the ILA Employee Funds. The respondent represented that although the respondent had received funds to which the respondent was not entitled, his role in obtaining those funds had been minimal. The respondent offered to assist the ILA Employee Funds in recovering improperly obtained funds, and the ILA Employee Funds agreed to pay him.

i. In exchange for assisting the ILA Employee Funds in resolving problems which were at least in part the respondent’s own making, the respondent was paid $10,000 per month, beginning on or about November 1, 1995, through on or about April, 1998.

Dunsmoor provided the following factual basis for the 18 U.S.C § 1957 violation:

a. As a result of the funds received through the scheme perpetrated on the ILA by Daher and the respondent, on or about July 21, 1994, $260,000.00 in criminally derived finds was wired from the First Interstate Influx Corporation bank to an off shore bank account in the name of Webster and Dyrud at the National Bank of Anguilla. John Dyrud was an attorney in Anguilla that received money into his accounts for the personal benefit of Daher and the respondent.

b. In August 1994, the respondent entered into a contract to purchase an Irwin yacht for the price of $70,000.00 from the Institute of Marine Science, Inc. located in Lauderdale By The Sea, Florida.

c. To facilitate the purchase of the yacht with unlawfully derived funds, the respondent caused several facsimiles to be sent from Anguilla to Colorado and from Anguilla to Florida. On or about September 7, 1994, the respondent received a facsimile from Webster & Dyrud regarding the wire transfer of $69,100.00 from the account of Webster and Dyrud at the National Bank of Anguilla. On or about September 7, 1994, a second facsimile was sent from Webster & Dyrud to the Institute of Marine Science, Inc., regarding the wire transfer for the respondent. The facsimile stated that the money would be wired from the National Bank of Anguilla to the Institute of Marine Science, Inc., the following morning.

d. On or about September 8, 1994, Sun Bank South Florida received a wire transfer for the benefit of Institute of Marine Science, Inc., in the amount of $67,085.00 from the account of Webster and Dyrud at the National Bank of Anguilla.

e. Approximately a week later, on or about September 15, 1994, the Institute of Marine Science, Inc. president, Edward H. Conway signed a notarized Marine Bill of Sale for the sale of an Irwin Yacht to the respondent for the purchase price of $70,000.00. Thus, on or about September 8, 1994, in the Judicial District of Colorado, the respondent knowingly caused a monetary transaction in an amount greater than $10,000 from funds derived from specified unlawful activity for the purpose of purchasing an Irwin yacht.

On December 20, 2002, U.S. District Court Judge Allen Sharp of the Northern District of Indiana sentenced Dunsmoor. The District Court specifically found inter alia that Dunsmoor "used his position of trust as an attorney in the commission of such crimes." Dunsmoor was sentenced to a term of 18 months on both counts, to be followed by a single term of 3 years of supervised release. Dunsmoor was also ordered to pay mandatory restitution in the amount of $2,050,732 for forwarding to various pension plans, welfare plans, supplemental benefit plans, unions, and individuals.



Dunsmoor’s convictions on 18 U.S.C. § 664 and § 1957 conclusively established each element of those federal statutes for the purposes of these disciplinary proceedings. See C.R.C.P. 251.20(a).

Colo. RPC 8.4(b) provides that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. C.R.C.P. 251.5(b) provides that grounds for discipline of attorneys includes any act or omission which violates the criminal laws of the United States. Dunsmoor engaged in criminal conduct by embezzling funds of employee pension and welfare benefit plans in violation of 18 U.S.C. § 664, and by money laundering in violation of 18 U.S.C. § 1957. The above criminal acts reflect adversely on Dunsmoor’s honesty, trustworthiness or fitness as a lawyer in other respects. By such conduct, Dunsmoor violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b) authorizes the imposition of discipline.

ABA Standard For Imposing Lawyer Sanctions (1992 & Supp. 1992) § 5.11 provides: Disbarment is generally appropriate when: "[a] a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft . . . (b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice."

Dunsmoor’s misconduct was knowing and willful, involved misrepresentation and deceit, was dishonest, and seriously adversely reflected on his fitness to practice law. The misconduct violated two federal criminal statutes. ABA Standard § 5.11 is directly applicable to Dunsmoor’s misconduct and suggests that disbarment is the appropriate sanction.

Colorado law also suggests that disbarment is the required sanction under these circumstances. See People v. Kiely, 968 P.2d 110, 112 (Colo. 1998)(lawyer disbarred in reciprocal discipline proceeding based upon a conviction on one felony count of making a false statement on a credit application); People v. Chappell, 927 P.2d 829, 831 (Colo. 1996) (attorney disbarred for aiding her client in a class five felony when the attorney assisted the client to violate a child custody order by leaving the state with her child); People v. Terborg, 848 P.2d 346, 347 (Colo. 1993) (attorney disbarred for one count of bank fraud arising from his making lease agreements with government entities and pledging or selling the lease agreements to different financial institutions in order to secure loans for a closely held corporation in which he had an interest); People v. Schwartz, 814 P.2d 793, 794 (Colo. 1991) (attorney disbarred for conviction of bankruptcy fraud and conspiracy to commit bankruptcy fraud); People v. Brown, 726 P.2d 638, 639 (Colo. 1986) (district attorney disbarred for conviction of second degree forgery, a class four felony; abuse of public records, a class one misdemeanor; and computer crime, a class four felony).

Pursuant to ABA Standards §§ 9.22 and 9.32 respectively, the Hearing Board considered aggravating and mitigating factors in arriving at the appropriate sanction. The facts deemed admitted in the Complaint established four aggravating factors pursuant to ABA Standard § 9.22. Dunsmoor had a dishonest or selfish motive, ABA Standard § 9.22(b); he engaged in a pattern of misconduct, ABA Standard § 9.22(c); he engaged in multiple offenses, ABA Standard § 9.22(d); and Dunsmoor also had substantial experience in the practice of law, having been admitted to the bar in 1981. ABA Standard § 9.22(i). In mitigation, Dunsmoor recognizes the wrongful and serious nature of his misconduct and is remorseful. ABA Standard § 9.32(l). In addition, other penalties and sanctions have been imposed against Dunsmoor for his actions. ABA Standard § 9.32(k). No evidence or argument was advanced that Dunsmore had prior discipline. ABA Standards § 9.32(a). The mitigating factors are insufficient to modify the required discipline of disbarment.


It is therefore ORDERED:

1. JOHN S. DUNSMOOR, attorney registration 11247, is DISBARRED from the practice of law effective immediately.

2. John S. Dunsmoor, is Ordered to pay the costs of these proceedings; the People shall submit a Statement of Costs within ten (10) days of the date of this Order. Respondent shall have five (5) days thereafter to submit a response thereto.



Case Number: 03PDJ048







November 14, 2003



Opinion Issued by a Hearing Board consisting of the Presiding Disciplinary Judge Roger L. Keithley, Hearing Board Members Annita M. Menogan and Boston H. Stanton, Jr., both members of the Bar.


On October 15, 2003, a reinstatement hearing was held in the within matter pursuant to C.R.C.P. 251.29 before a Hearing Board consisting of the Presiding Disciplinary Judge ("PDJ") and two hearing board members, Annita M. Menogan and Boston H. Stanton, Jr., both members of the bar. W. Daniel Mahoney appeared on behalf of Petitioner Kallman S. Elinoff ("Elinoff"), who was also present. Debora D. Jones, Assistant Regulation Counsel, represented the People of the State of Colorado (the "People").

Elinoff was the sole witness, and he testified on his own behalf. Elinoff’s exhibits A through J were admitted into evidence. A Stipulation of the Parties Concerning Petitioner’s Compliance With All Disciplinary Orders and Actions Required of Suspended Attorneys and Petitioner’s Fitness to Practice Law had previously been submitted and was accepted by the Hearing Board. The Hearing Board considered the argument and exhibits admitted, the Stipulation submitted by the parties, assessed the credibility of the witness, and made the following findings of fact which were established by clear and convincing evidence.


Kallman S. Elinoff took the oath of admission and was admitted to the Bar of the Supreme Court in 1989, and is registered under attorney registration number 18677. He was suspended from the practice of law on June 1, 2001, by Order of the Colorado Supreme Court dated April 30, 2001. People v. Elinoff, 22 P.3d 60 (Colo. 2001). In its decision, the Supreme Court affirmed the Hearing Board’s factual findings concluding that on March 17, 1998, Elinoff represented Douglas Rathbun in a County Court hearing on felony charges. At the conclusion of the hearing, Denver detectives arrested Elinoff’s client on unrelated domestic violence charges. Rathbun became upset and pleaded with the officers not to take him to jail right then, as he wanted to see his girlfriend before she was sentenced to prison. The detectives refused to let him go, but allowed him to smoke outside the courthouse. While the four of them where outside, Rathbun continued to plead with the officers for a delay in his incarceration. Elinoff struck up an informal conversation with the detectives and at one point told the detectives that they needed to talk about his client at a level that they all could understand. He reached into his shirt pocket and removed several bills of currency (including a $100 bill), extended the bills toward a detective, and stated that if the detectives would forget the matter for the day, Rathbun would turn himself in the next day. One detective told Elinoff that his conduct was unacceptable, and the detectives took Rathbun to jail. Elinoff himself was not arrested, nor was he charged with violation of any criminal law.

In the Complaint filed against Elinoff, the People charged Elinoff with conduct constituting the criminal offense of bribery, a class three felony. The Hearing Board originally found that Elinoff’s conduct warranted disbarment, but at rehearing determined that a three-year suspension, with one year stayed, was appropriate. The Supreme Court affirmed that decision. In its opinion, the Supreme Court noted that the crime of bribery strikes at the heart of a lawyer’s duty to uphold the administration of justice.

After his suspension was made a final order, Elinoff moved with his wife and child to Israel where he had the opportunity to help build and work at an outdoor adventure program for children with disabilities, at-risk youth, and school age children of all backgrounds from around the country. His role as an outdoor counselor included team building activities, assisting young people to elevate their self-esteem, and challenging their physical limitations. Throughout his twenty-month stay in Israel, he continually confronted the bribery incident and its impact on his life through discussion with his peers as well as many of the young people with whom he counseled.

Due to the terror crisis in Israel and the demands on the regional police units, Elinoff was asked to join the regional police force as a volunteer police officer. He was selected because of his prior combat experience and exemplary military record. He received training in the classroom and in the field and was deputized to perform the same duties and was held to the same responsibilities as a regular police officer. He was legally authorized to make probable cause determinations, effectuate arrest procedures, investigate crimes and testify at trials. He was held accountable as a professional in all regards. He accompanied regular police officers on calls, set-up and manned security checkpoints and roadblocks, and patrolled the area for both criminal and terrorist threats. His opportunity to stand in a police officer’s shoes afforded him a tremendous insight on how difficult an officer’s job can be and how the public perceives their roles. Elinoff now understands the two officers he offended during the bribery incident and the disrespectful behavior that led to his suspension.

Elinoff was also a volunteer assisting the sex assault unit of the prosecution office in Haifa, Israel. Although his role was very limited in nature, his primary objective was to stay active in the profession and by doing so, learned about the Israeli legal system from investigation through trial, lectured to the sex assault investigators of the Department of Social Services, and provided to the unit sorely needed literature available only in the United States.

Upon his return to the United States, Elinoff found full-time employment as a juvenile offender counselor for Arapahoe County’s Residential Work Program, an alternative sentencing program for youth. The program provides an outdoor work and camping experience to juvenile offenders as an alternative to detention. His role as counselor includes providing supervision, acting as a positive role model, and mentoring the at-risk youth through process groups. Elinoff applies his life experiences and the lessons he has learned through his suspension to counsel these young people on the importance of making responsible decisions in order to stay out of trouble and out of the system. He now understands the consequences of making poor decisions, including the loss of his profession, the loss of many professional friendships, and the loss of his reputation. Through these hard lessons, Elinoff is resolved to helping young people at an age when they can still change the course of their future avoid making poor decisions as adults.

Elinoff is also a full-time professor of Homeland Security at Parks College. He teaches a broad range of subjects including Criminal Law and Procedure, counter terrorism procedures and protocols, security management, and current topics involving Homeland Security on a local, national and international level. Elinoff organizes guest lecturers through the police, fire, HAZMAT, FBI, and other agencies. He has created a community outreach program that provides terror awareness training to businesses and community groups at no cost.

In April of 2003, Elinoff initiated and helped organize a fundraiser for Jacob’s Journey, a non-profit organization that sends ill children on wilderness trips.

Since October of 1999, Elinoff has sought and received mental health counseling from Dr. Ralph Grasso. During his therapy, he has explored the causes as to why he placed his profession and family at risk and has worked through the behavioral changes needed to prevent a recurrence in the future. Elinoff’s therapist provided credible and substantial information that Elinoff has made long strides in recognizing and changing the basis for his poor decision-making in the past and learning how to prevent a recurrence in the future. Elinoff expressed that no day passes that he does not feel remorse for what he did and for the distress he caused the officers. He has previously apologized in person to one of the officers, has expressed publicly his culpability, and acknowledged the damage that he has caused the profession. Following the introduction of all evidence in this proceeding, the People stipulated that Elinoff was rehabilitated and should be reinstated to the practice of law in Colorado.


C.R.C.P. 251.29(b) provides in relevant part:

-An attorney who has been suspended for a period longer than one year must file a petition with the Presiding Disciplinary Judge for reinstatement and must prove by clear and convincing evidence that the attorney has been rehabilitated, has complied with all applicable disciplinary orders and with all provisions of this chapter, and is fit to practice law.

C.R.C.P. 251.29(c) further provides in part:

The petition for reinstatement must set forth:

(3) the facts other than passage of time and absence of additional misconduct upon which the petitioning attorney relies to establish that the attorney possesses all of the qualifications required of applicants for admission to the Bar of Colorado, fully considering the previous disciplinary action taken against the attorney;

(4) evidence of compliance with all applicable disciplinary orders and with all provisions of this Chapter regarding actions required of suspended lawyers;

(5) evidence of efforts to maintain professional competence through continuing legal education or otherwise during the period of suspension.

Additionally, certain criteria must be considered in reinstatement proceedings in order to evaluate an attorney’s rehabilitation. People v. Klein, 756 P. 2d 1013, 1016(Colo. 1988) interprets the language of the prior reinstatement rule, C.R.C.P. 241.22. Klein requires:

[A]ny determination of that issue [rehabilitation] must include consideration of numerous factors bearing on the [petitioner’s] state of mind and ability, such as character, conduct since the imposition of the original discipline, professional competence, candor and sincerity, recommendations of other witnesses, present business pursuits of the [petitioner], the personal and community service aspects of the [petitioner’s] life, and the [petitioner’s] recognition of the seriousness of his previous misconduct.

Thus, an attorney who desires reinstatement after suspension must bear the burden of proving that he or she (1) is rehabilitated; (2) has complied with all applicable disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline regarding actions required of suspended attorneys, and (3) is fit to practice law. All three of the elements of proof must be established before reinstatement may be authorized.

The parties stipulated that Elinoff has complied with all prior disciplinary orders and all provisions of the Colorado Rules of Civil Procedure relating to attorney discipline. The parties also stipulated that Elinoff is fit to practice law based upon his continuing legal education and past and current work in the legal field. The facts acknowledged by these Stipulations are accepted. The sole issue at hearing was whether Elinoff has been rehabilitated.

Elinoff had made a fundamental change in his character and his perception of the role of attorneys in our society. His objective undertakings, both the activities engaged in and the results obtained, reveal genuine efforts to restructure those professional shortcomings which culminated in the prior discipline. His efforts have been exemplary. Elinoff has established by clear and convincing evidence that he is, in fact, rehabilitated. Elinoff has testified and the evidence has shown that he has not merely taken responsibility and shown remorse for his conduct, but that he has used the suspension in a positive way to learn to be a different individual and a better professional.


It is therefore ORDERED:

KALLIMAN S. ELINOFF, attorney registration number 18677, is reinstated to the practice of law effective immediately. Elinoff shall pay all costs of this reinstatement proceeding. Respondent shall file a Statement of Costs or Notice that costs have been paid within fifteen (15) days of the date of this Order. Petitioner shall have five (5) days to file a Response.

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