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State v. Finley (11/14/2014) ap-2433

State v. Finley (11/14/2014) ap-2433


         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:   

                                 303 K Street, Anchorage, Alaska  99501

                                            Fax:  (907) 264-0878

                           E-mail:  corrections @



                                                                  Court of Appeals No. A-11552

                                   Petitioner,                  Trial Court No. 3AN-10-3656 CR


                                                                             O P I N I O N 



                          and                                    No. 2433 - November 14, 2014  


                          Real Party in Interest.  

                 Petition  for  Review  from  the  Superior  Court,  Third  Judicial  

                 District, Anchorage, Gregory Miller, Judge.  

                 Appearances:    Kenneth  M.  Rosenstein,  Assistant  Attorney  

                 General,      Office     of   Special     Prosecutions       and    Appeals,  

                 Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                 for  the  Petitioner.    Kevin  G.  Brady,  Law  Office  of  KeriAnn  


                 Brady, Anchorage, for the Respondent.  Evan Chyun, Assistant  


                 Public     Advocate,      and    Richard     Allen,     Public    Advocate,  

                 Anchorage, for the Real Party in Interest.  

                 Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  


                 District Court Judge. *  


                 Judge MANNHEIMER.  

    *    Sitting  by  assignment  made  pursuant  to  Article  IV,  Section  16  of  the  Alaska  

Constitution and Administrative Rule 24(d).  

----------------------- Page 2-----------------------

                    The State of Alaska is prosecuting Demetrius J. Finley for a drug offense,  


and the State wishes to call Thomas B. Dickson as a witness at Finley's trial.  The State  

concedes that Dickson's testimony would be self-incriminatory, so the State has granted  


"transactional" immunity to Dickson - promising him that he will not be prosecuted by  


the  State  of  Alaska  for  any  crime  he  is  compelled  to  testify  about.    The  Alaska  


Constitution requires this complete immunity when a witness is compelled to give self- 

incriminating testimony.  State v. Gonzalez, 853 P.2d 526 (Alaska 1993).  

                    But Dickson's testimony would also be self-incriminatory under the federal  

drug laws - and that is the source of the legal controversy in this case.  

                    Under the Fifth and Fourteenth Amendments to the federal constitution,  

whenever one state grants immunity to a witness and compels the witness to give self- 


incriminating testimony, all other American jurisdictions (state and federal) are forbidden  

from using the witness's testimony against them.  The witness is protected from either  


direct or "derivative" use of their testimony (such as using the testimony to develop new  

evidence or new investigative leads).  Murphy v. Waterfront Commission of New York  


Harbor , 378 U.S. 52, 79; 84 S.Ct. 1594, 1609; 12 L.Ed.2d 678 (1964).  

                    But   this   "use"   immunity   does   not   completely  prevent   these   other  


jurisdictions from prosecuting the witness for the crimes revealed by their testimony.  

Other states and the federal government remain empowered to prosecute the witness, so  


long  as  their  evidence  is  derived  wholly  independently  of  the  witness's  compelled  



                    The witness in this case, Dickson, argues that the transactional immunity  


required by the Alaska Constitution (as construed in State v. Gonzalez) covers not only  

criminal prosecutions initiated by the State of Alaska and its political subdivisions, but  


also criminal prosecutions initiated by any other American jurisdiction.  Thus, Dickson  


contends, he can refuse to testify at Finley's trial as long as he faces any possibility of  


                                                             - 2 -                                                       2433

----------------------- Page 3-----------------------

prosecution by the federal government (or by any other state) for the drug offense that  


he will be compelled to testify about.   

                   According to Dickson, the State can not compel him to testify unless the  

State guarantees that he will receive transactional immunity - not just the use immunity  


guaranteed  by  Murphy  v.  Waterfront  Commission  -  from  every  other  American  

jurisdiction where he might face criminal liability because of his testimony.  

                   The superior court agreed with Dickson and ruled that he could not be  


compelled to testify unless the State obtained a guarantee of transactional immunity for  


Dickson from the federal government.   

                   For the reasons explained in this opinion, we hold (as a matter of Alaska  


constitutional law) that the result reached by the United States Supreme Court in Murphy  


v. Waterfront Commission is the correct resolution of this problem of inter-jurisdictional  

immunity.  Dickson is entitled to transactional immunity from prosecution by the State  


of Alaska, but he is only entitled to use immunity from prosecution by other American  


                   We therefore reverse the ruling of the superior court:  Dickson  can be  


compelled to testify because of the State of Alaska's grant of immunity.  

          The procedural history of this litigation  

                   Demetrius Finley stands accused of second-degree controlled substance  

misconduct - more specifically, delivery of heroin.  Thomas Dickson was involved in  

the heroin transaction with Finley, and Dickson ultimately pleaded  guilty to fourth- 

degree controlled substance misconduct (possession of heroin).  As part of his plea  

bargain, Dickson agreed to testify against Finley.  

                                                         - 3 -                                                     2433

----------------------- Page 4-----------------------

                    Later, however, Dickson announced that he would not testify against Finley  

- that, instead, he intended to assert his privilege against self-incrimination.   

                    The State declared that it was willing to grant transactional immunity to  

Dickson - that is, complete immunity from prosecution by the State of Alaska for any  


crimes he was compelled to testify about. And, as we have already explained, if Dickson  


is compelled to testify under the State of Alaska's grant of immunity, he is automatically  


entitled to immunity from any use of his testimony (either direct use or derivative use)  

in any federal court or in the courts of any other state.   

                    But Dickson argued that this use immunity was not a sufficient protection  

against his potential federal prosecution for drug offenses.  He asserted that his rights  


under the Alaska Constitution would not be satisfied unless he received transactional  


immunity from the federal government.  

                    The superior court agreed with Dickson.  The court noted  that  the use  


immunity guaranteed by Murphy v. Waterfront Commission did not amount to a complete  

immunity from federal prosecution for his drug offense.  And the court ruled that, as long  


as Dickson faced potential prosecution by any other jurisdiction for the crimes revealed  


by his testimony, it would violate the Alaska Constitution to compel him to testify.  Thus,  

the  court  declared,  Dickson  could  continue  to  assert  his  privilege  against  self- 


incrimination (and could properly refuse to testify at Finley's trial) unless the federal  


government granted Dickson transactional immunity for the crimes he testified about.  


                    The State petitioned this Court to review the superior court's ruling.  This  


Court  granted  the  State's  petition,  ordered  formal  briefing,  and  stayed  the  criminal  

proceedings against Finley.  

                    (Because Finley and Dickson have joined in a single brief, we do not need  


to resolve the question of whether Finley has standing to participate in this litigation,  

                                                            - 4 -                                                       2433

----------------------- Page 5-----------------------

given that the litigation is concerned solely with the scope of Dickson's privilege against     

self-incrimination.) 1  

          The two types of witness immunity recognized under American law  


                    Both the Fifth Amendment to the United States Constitution and Article I,  

Section  9  of  the  Alaska  Constitution  guarantee  a  right  against  self-incrimination.  

Likewise, under both federal law and Alaska law, a witness whose testimony would be  


self-incriminating can nevertheless be forced to testify if the government grants the  

witness immunity. 2  



                    But federal and state law differ as to the type of immunity that is required  

before a witness can be forced to give self-incriminating testimony.  

                    Under federal law and the law of about half the states, 3 the government  


must grant "use" immunity to the witness - i.e., protection against (1) direct use of the  


witness's testimony and (2) any derivative use of the testimony (e.g., use of any evidence  

or investigative leads developed as a result of the testimony).  See Kastigar v. United  

States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).  


                    On the other hand, under Alaska law                                                  

                                                                             and the law of the other half of the  

states,  the  government  must  grant  "transactional"  immunity  to  the  witness  -  i.e.,  

     1    See  State v. Corbett, 286 P.3d 772, 775 (Alaska App. 2012).  

     2    See 18 U.S.C.  6002 and AS 12.50.101.  

     3    Wayne  R.  LaFave,  Jerold  H.  Israel,  Nancy  J.  King,  and  Orin  S.  Kerr,  Criminal  

Procedure (3rd ed. 2007),  8.11(b), Vol. 3, p. 274.  See also the synopsis of the case law  

contained in Commonwealth v. Swinehart, 664 A.2d 957, 965-67 (Pa. 1995).  

     4    State v. Gonzalez, 853 P.2d 526, 533 (Alaska 1993).  

                                                             - 5 -                                                       2433

----------------------- Page 6-----------------------

complete immunity from prosecution (no matter where the government's evidence comes  

from) for any criminal offense that the witness is compelled to testify about.  

                   As this Court explained in State v. Corbett, 286 P.3d 772, 779 (Alaska App.  


2012), the requirement of transactional immunity is essentially a supplement to the rule  

of use immunity - "an added protection to make sure that witnesses truly are protected  

from the derivative use of their immunized testimony."    

          The legal problem presented in this case:  cross-jurisdictional immunity  

                   If  a  person's  conduct  subjects  them  to  criminal  liability  in  only  one  


jurisdiction - i.e., liability only under federal law, or only under the law of a single state  


- then the law of that jurisdiction will prescribe the type of immunity that the person  


must  receive  before  they  can  be  forced  to  relinquish  their  privilege  against  self- 

incrimination.  But the situation is more complicated if a person's conduct potentially  


subjects them to criminal liability in more than one jurisdiction.   

                   The United States Supreme Court initially took the position that American  

jurisdictions  (both  state  and  federal)  were  not  bound  by  the  immunity  granted  to  a  

witness by the authorities of another jurisdiction.  Thus, any other jurisdiction was free  


to use the witness's compelled testimony as a basis for a criminal prosecution.   

                   This principle was first enunciated in 1931 in United States v. Murdock, 5  


where the Supreme Court held that a person who was called to testify in federal court  

could not claim the privilege against self-incrimination based solely on the danger that  


their testimony might subject them to criminal liability under state law.   

                   The Supreme Court noted that, in earlier decisions, it had ruled that (1) a  

person who was granted immunity by federal prosecutors could properly be compelled  


     5    284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931).  

                                                           - 6 -                                                     2433

----------------------- Page 7-----------------------

to testify even though this grant of immunity did not protect the person against state     

prosecution; and likewise (2) a person who was granted immunity by state prosecutors     

could properly be compelled to testify even though these state officials had no power to                              

give the witness protection against federal prosecution.                                                 Id. , 284 U.S. at 149, 52 S.Ct. at  


                         The rule established by these decisions, the Supreme Court declared, was  


that the privilege against self-incrimination was fully satisfied if the person was granted  


complete  immunity  from  prosecution  under  the  laws  of  "the  government  [that  was]  

compelling the witness to answer".  Ibid .  

                         Thirteen years later, in Feldman v. United States , 322 U.S. 487, 64 S.Ct.  


 1082, 88 L.Ed. 1408 (1944), the Supreme Court held that when a person was compelled  


to give testimony in state court under a state grant of immunity, that person's testimony  


could be used by federal authorities to prosecute the person for a violation of federal  


law. 6  



                         (See also Knapp v. Schweitzer , 357 U.S. 371, 374-75; 78 S.Ct. 1302, 1304- 

05; 2 L.Ed.2d 1393 (1958), which held that state authorities could compel a person to  


testify by granting the person immunity from state prosecution, even though the person's  

testimony would be incriminating under federal law.)  

                         The approach to witness immunity and self-incrimination expounded in  


Murdock and Feldman  - i.e., the principle that no jurisdiction is bound by the immunity  


granted to a witness by another jurisdiction - was the controlling law in Alaska when  


Alaska was a federal territory.  More significantly, it was the law in Alaska in 1955-56,  


when the Alaska Constitution was drafted.    

       6     322 U.S. at 493, 64 S.Ct. at 1084-85.  

       7 .  

                                                                             - 7 -                                                                         2433

----------------------- Page 8-----------------------

                   But in 1964, in Murphy v. Waterfront Commission of New York Harbor ,  

378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), the United States Supreme Court  

altered course and declared that the federal government and the several states were bound  


to recognize the immunity granted to a witness by authorities in another jurisdiction.  

                   The petitioners in Murphy  were called to give testimony about a work  


stoppage at New York Harbor. 8  

                                                They were given immunity for their testimony under  

the laws of New York and New Jersey, but they still refused to answer questions, on the  


ground that their answers would subject them to federal criminal liability. 9 

                                                                                                          Because the  

petitioners' legal argument had already been rejected in  Murdock and  Feldman , the  

petitioners  were  held  in  contempt  -  and  their  case  ultimately  made  its  way  to  the  

Supreme Court. 10  



                   The Supreme Court was re-thinking its decisions in Murdock and Feldman  



because  the  Court  was  getting  ready  to  rule  (in  Malloy  v.  Hogan                          )  that  the  Fifth  


Amendment privilege against self-incrimination was binding on the states (under the due  

process  clause  of  the  Fourteenth  Amendment).    Because  of  its  impending  decision  


broadening the reach of the Fifth Amendment, the Supreme Court granted review in  

Murphy v. Waterfront Commission  to re-examine the question of "whether, absent an  

immunity provision, one jurisdiction in our federal structure may compel a witness to  

give  testimony  which  might  incriminate  him  under  the  laws  of  another  [American]  

jurisdiction."  12  


     8    Murphy , 378 U.S. at 53, 84 S.Ct. at 1596.  

     9    Id. , 378 U.S. at 53-54, 84 S.Ct. at 1596.  

     10   Id. , 378 U.S. at 54, 84 S.Ct. at 1596.  

     11   378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).  

     12   Murphy , 378 U.S. at 54, 84 S.Ct. at 1596.  

                                                          - 8 -                                                     2433

----------------------- Page 9-----------------------

                       In Murphy , the Supreme Court concluded that the Fifth and Fourteenth   

Amendments required cross-jurisdictional recognition of any grant of immunity made  

by the federal government or by any state government. 13 14  



                       But this holding raised yet another question:  what kind of cross-jurisdic- 

tional recognition did the federal constitution require?  

                      Murphy was decided in 1964.  At that time (that is, eight years before the  


Supreme  Court  adopted  a  rule  of  use  immunity  in  Kastigar  v.  United  States 15),  

the accepted view was that a person could not be compelled to give up their privilege  


against self-incrimination unless they received transactional immunity - full immunity  

from prosecution for any crime that they were compelled to testify about.  (Indeed, the  


petitioners in Murphy had been granted transactional immunity by the States of New  

York and New Jersey before they were ordered to testify.) 16  

      13   Id. , 378 U.S. at 77-78, 84 S.Ct. at 1609.  

      14   The  Murphy  Court  also  declared  that  Murdock  and  Feldman  had  been  wrongly  

decided - that those decisions were "unsupported by history or policy".                                              Murphy , 378 U.S.  

at 77, 84 S.Ct. at 1609.  But more recently, in United States v. Balsys, 524 U.S. 666, 683-88;  


 118 S.Ct. 2218, 2228-2230; 141 L.Ed.2d 575 (1998), the Supreme Court repudiated this  


portion  of  the  Murphy  decision.    The  Court  re-affirmed  the  principle  that  the  Fifth  


Amendment  does  not  protect  witnesses  from  potential  criminal  liability  in  jurisdictions  

outside  the  United  States  (i.e.,  other  countries),  and  the  Court  declared  that  the  correct  


reading  of  Murphy  was  that,  for  purposes  of  the  Fifth  and  Fourteenth  Amendments,  all  


American jurisdictions were to be viewed as one regarding the issue of immunity.  

      15   406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).  

      16   Murphy ,  378  U.S.  at  53,  84  S.Ct.  at  1596.    (This  fact  is  recited  more  clearly  in  


Kastigar v. United States , 406 U.S. 441, 457; 92 S.Ct. 1653, 1663; 32 L.Ed.2d 212 (1972).)  


                                                                     - 9 -                                                                2433

----------------------- Page 10-----------------------

                      But the Murphy Court did not require the state and federal governments to   

extend transactional immunity to witnesses who were compelled to testify under a grant                                              

of immunity in another jurisdiction. Instead, the Supreme Court declared that the federal      

constitution required these other jurisdictions to extend use immunity  to these witnesses:   



                      [W]e [declare] the constitutional rule to be that a state witness  

                      may  not  be  compelled  to  give  testimony  which  may  be  


                      incriminating   under   federal   law   unless   the   compelled  


                      testimony  and  its  fruits  cannot  be  used  in  any  manner  by  

                      federal officials [to support] a criminal prosecution against  


                      him.  ...  [T]he Federal Government must be prohibited from  

                      making any such use of compelled testimony and its fruits.  

Murphy , 378 U.S. at 79, 84 S.Ct. at 1609.   

                      The Court declared that it was adopting this rule of use immunity as a  

means of achieving two ends:  "to implement [the] constitutional [privilege] and [to]  

accommodate the interests of the State and Federal governments in investigating and  

prosecuting crime". 17                                                                                        

                                      The Court explained that this "exclusionary rule" - i.e., the rule  


of use immunity - "leaves the [state] witness and the Federal Government in substan- 

tially the same position as if the witness had claimed his privilege in the absence of a  


state  grant  of  immunity",  while  at  the  same  time  "permitting  the  States  to  secure  


[testimony] necessary for effective law enforcement".                                          

      17    Ibid.   

      18   378 U.S. at 79, 84 S.Ct. at 1609-1610.  

                                                                  - 10 -                                                              2433

----------------------- Page 11-----------------------

            Why we reverse the superior court's ruling in this case  

                       The  issue  in  this  case  is  whether  Article  I,  Section  9  of  the  Alaska  

Constitution requires a different answer to the inter-jurisdictional immunity question that  

the Supreme Court addressed in Murphy .  

                       Our state constitution was drafted in the mid-1950s, when Alaska was still  


a  federal territory.   At that time, the rule under federal law  -  as illustrated  by  the  


 Supreme  Court's  decisions  in  Murdock  and  Feldman    -  was  that  (1)  the  federal  

government and the several states were not required to honor grants of immunity made  

by another American jurisdiction, and (2) a person who was granted immunity by one  

jurisdiction could not refuse to testify based on the possibility that their testimony might  


incriminate them in a different jurisdiction.  

                       We  have  found  nothing  in  the  record  of  the  Alaska  constitutional  

convention  to  suggest  that  the  delegates  wished  to  depart  from  this  rule  when  they  

drafted the self-incrimination provision of Article I, Section 9. 19  We therefore conclude  


that Article I, Section 9 - at least as it was originally understood - did not apply to  


potential criminal prosecutions under the laws of other jurisdictions.  

                       However, this conclusion does not necessarily resolve this case.   

                       In State v. Gonzalez, when our supreme court was asked to decide whether  


a grant of use immunity was sufficient to supplant the protection of Article I, Section 9,  


the court declared that the answer to this question "[was] not controlled by any one  


 source of authority, such as United States Supreme Court precedent[,] or an appeal to the  


intent of the framers of the Alaska Constitution."  853 P.2d at 529.  The supreme court  


      19    See the discussion of the self-incrimination clause that occurred on Day 44 of the                                       

convention,  as  well  as  the  commentary  to  the  self-incrimination  clause  contained  in  

Appendix V to the convention minutes.   

                                                                     - 11 -                                                                 2433

----------------------- Page 12-----------------------

acknowledged that an appellate court should consider those sources "when appropriate",  


but the court declared that its real task was to "[discern] the intention and spirit" of the  


constitutional provision to determine what sort of protection was "necessary for the kind  


of civilized life and ordered liberty which is at the core of our constitutional heritage."  



                    We  therefore  believe  that  we  must  look  beyond  the  drafters'  original  

understanding of Article I, Section 9 to see if evolving standards of "ordered liberty"  


require a different reading of the self-incrimination clause.  

                    We begin by looking at how other "transactional immunity" states have  

answered this question - i.e., other states whose law requires a grant of transactional  

immunity to supplant a witness's assertion of the privilege against self-incrimination.  


                    Massachusetts, Oregon, and Mississippi are transactional immunity states,  


and the supreme courts of those states have either held or indicated that when a witness  


faces potential criminal liability in another jurisdiction, the use immunity guaranteed by  


the Fourteenth Amendment (as construed in Murphy) is sufficient.  

                    The Massachusetts Supreme Court directly addressed this issue in Baglioni  

v.  Chief of Police of Salem, 656 N.E.2d 1223, 1226 (Mass. 1995), and again in In re  


 Vaccari, 955 N.E.2d 266, 269-270 (Mass. 2011).  The Massachusetts court held that a  


witness called to testify in Massachusetts has no right to insist on transactional immunity  


from federal prosecution, even though the witness can demand transactional immunity  


from prosecution by Massachusetts authorities.  

                    See also State v. Soriano, 684 P.2d 1220, 1234 (Or. App. 1984) (en banc),  


and  Wright v. McAdory, 536 So.2d 897, 904 (Miss. 1988).  

                    Dickson and Finley have not directed our attention to any cases reaching  

a contrary result.  The fact that, even among transactional immunity jurisdictions, no  


American court has adopted the rule proposed by Dickson and Finley suggests that their  


                                                             - 12 -                                                        2433

----------------------- Page 13-----------------------

expansive view of the privilege against self-incrimination is not an essential component  


of the "ordered liberty ... at the core of our constitutional heritage".  Gonzalez, 853 P.2d  


at 529.   

                    We  further  believe  that  the  rule  proposed  by  Dickson  and  Finley  is  


inconsistent with our state's sovereignty within a federal system.   

                    If we endorsed the interpretation of Article I, Section 9 that Dickson and  


Finley propose (and that the superior court adopted) - the rule that no witness can be  


compelled to testify absent a guarantee of transactional immunity from every sovereign  


whose laws the witness might have violated - then the Alaska government's power to  


grant immunity would often hinge on the discretionary decision of another sovereign -  

or, conceivably, the discretionary decisions of several other sovereigns.   

                    We live in an age where interstate travel (indeed, international travel) is a  


regular  occurrence  for  many,  and  where  the  Internet  affords  people  the  ability  to  

communicate instantly across state and national boundaries.  Because of this, personal  


and  business  activities  often  span  the  borders  of  several  states,  and  those  activities  


potentially involve both state law and federal law.   

                    Thus, there will be many occasions when a criminal activity or enterprise  


affects not just the interests of the people of Alaska, but also the interests of one or more  


other sovereigns within our federal system.  Under the rule that Finley and Dickson  


propose,  no  grant  of  immunity  made  by  Alaska  officials  would  be  constitutionally  

sufficient unless every other interested sovereign also voluntarily extended transactional  

immunity to the witness.  As a consequence, our own state's interest in compelling the  


testimony needed to investigate and prosecute these criminal activities would be held  


hostage to the competing interests of other sovereigns.  

                    For these reasons, even though we have the authority to construe Article  

I, Section 9 of our constitution more broadly than the other transactional immunity states  

                                                             - 13 -                                                        2433

----------------------- Page 14-----------------------

have construed their own law, we conclude that those states struck the proper balance  

when they endorsed the approach taken by the United States Supreme Court in                                        Murphy  

v.  Waterfront Commission.  

                    A witness who is granted immunity, and who is compelled to testify despite  


a  claim  of  self-incrimination,  is  entitled  to  protection  from  prosecution  in  other  

jurisdictions  -  but  not  an  absolute  protection  that  is  beyond  the  power  of  Alaska  

authorities  to  grant.    As  the  Supreme  Court  explained  in  Murphy ,  the  law  must  

implement the constitutional privilege against self-incrimination while at the same time  


"accommodat[ing] the interests of the State and Federal governments in investigating and  

prosecuting crime".  Murphy , 378 U.S. at 79, 84 S.Ct. at 1609.  We conclude that the  


correct way to balance these interests is the law as it currently stands:  under the Alaska  


Constitution,  the  witness  receives  transactional  immunity  from  prosecution  for  any  

violation of Alaska's criminal law, while under the Fifth and Fourteenth Amendments,  


the witness is guaranteed use immunity for their testimony in every other American  



                    We  hold  that  Dickson  can  be  compelled  to  testify  under  the  State  of  


Alaska's grant of transactional immunity, even though Dickson will receive only use  


immunity from the federal government and from other states whose laws Dickson has  

potentially violated.  

                    The decision of the superior court is REVERSED.  

                                                           - 14 -                                                       2433

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