Oldies but Goodies?

Dr. Vincent Di Maio

New Defense Witnesses  Raise Some Eyebrows

The defendants offered their witness list, and not surprising, several of the expert witnesses who made star turns during the criminal trial last year are returning.  Moreover, the expert witness list notes how the defendants hope to shore up their weaknesses that the criminal trial highlighted.  Even so, what the list does show — even if it is just brinkmanship at this point — is that the defense intends to fight the case with every weapon available to them.

While Henry Lee does not make a return to Moultrie Courthouse, his opinions will be back from the professionals at Englert Forensic Consultants — Rod Englert and Cherly Kanzer.  Englert is expected to testify that the evidence is consistent with Robert being stabbed in the bed, and with the blood flowing out of his body.  He will also take up the issue that the knife found at the crime scene was not a plant since the blood pattern evidence is not consistent with it being wiped.

For astute commenter Hoya Loya, Englert and Kanzer made him pause.  Why?  Because they are based in Portland, where so-called lead counsel for Dylan Ward, Ralph Spooner is located.  “Either they are from Dylan’s lawyer’s stable of reliable experts or on Dylan’s father’s payroll or both” and could cause credibility issues with a jury.  In case the jury is suspect of these expert witnesses, the defense is bringing heavy-weight Vincent DiMaio to back up their opinions. 

Next up is another new witness, Donald Ostermeyer, who will opine about the validity of the Ashley’s Reagant and its ability to detect if blood stains where wiped from the wall.  This is an interesting choice for the defense since it is well known by both sides in the criminal trial that the application of the Ashley’s Reagant was not properly applied, thus nullifying any of its results.  The fact Ostermeyer is on the list may indicate they feel this is an issue they will need to beat back with a trial before a jury as well as a lower threshold for a decision. More witnesses after the jump.

Alan Lipman from Georgetown University is another new addition to the witness list and looks to be so as a direct result of the findings of Judge Leibovitz in the criminal trial.  While the prosecution in the criminal case only argued that the content of the interrogation videos — such as the consistency of their stories, and the changing memories after the “Mercedes” meeting — it is the Judge who went directly at their behavior in her decision. Judge Leibovitz noted, “Some of the most persuasive evidence in the record supporting the government’s position is the demeanor and conduct of the defendants.”  Lipman will be on hand for the civil trial to beat back the idea that there in “no correct” or “acceptable” way to judge someone’s behavior who has witnessed a traumatic event. 

To round things out, the defense brings back  discredited fiber-expert Nicolas Petraco, as well George Washington University Emergency Room Director Jeffery and Andrew Wechsler, a cardiac surgeon, the same profession as Needham Ward, Dylan Ward’s father.

Overall though, Hoya Loya notes that this is a civil case, with preponderance of evidence being the threshold — the plaintiff must only show that it has the greater weight of the evidence and that its version of events is more likely than that of the defense.  This is unlike the criminal case where the standard was BARD and evidence of the possibilty of an intruder could have been enough to derail the prosecution, though not even Judge Liebowitz was not convinced by the defense on that point. 

Covington and Regan will likely rely heavily on medical evidence and documented evidence relating to the defendants to make their case, not on evidence stemming from the botched MPD investigation. If they make their case, the defense needs to present evidence that an intruder was more likely, not that evidence of an intruder was missed or overlooked, so experts who challenge the competency of the police investigation may be less relevant to the civil case.

48 comments for “Oldies but Goodies?

  1. Willie
    04/05/2011 at 2:53 PM

    The witnesses will be slaughtered by the plaintiffs.

  2. Bill Orange
    04/05/2011 at 5:15 PM

    “This is an interesting choice for the defense since it is well known by both sides in the criminal trial that the application of the Ashley’s Reagant was not properly applied, thus nullifying any of its results.”

    I don’t agree with you on this. The results are obviously “tainted” (which is probably why they were excluded from the criminal trial), but I don’t think you can say they were “nullified”. As far as I know, we haven’t really seen any hard evidence here. We know that Ashley’s reagent was used inappropriately at the crime scene, but that doesn’t mean that no usable evidence was produced. And if the defense is listing an expert on this, it has to mean that they’re worried that the plaintiffs are going to be able to introduce a significant piece of evidence here.

    • david
      04/05/2011 at 7:53 PM

      Bill O,

      A post could be written about each of these witnesses, and it clearly shows their strategy for trial. On the Ashley’s Reagant issue, I get your point how the misapplication of the AR doesn’t mean that every expert opinion on the subject doesn’t hold some scientific validity. But, I do think that in the setting of a trial, the defense has powerful evidence that can cast doubt on it even when it is applied correctly. Doesn’t make it any more true, but when the defense has a fighting chance to win this agruement if it is applied correctly, they have an even better chance to win it when it is misapplied. So, in a trial sense, and with the powerful and strong defense (like Spagnoletti, Schertler, Connoly, Grimm), the criminal prosecution folded their cards on this issue well before trial. Wasn’t even in play during the status hearings period. And I don’t believe the Plaintiff has listed a witness who will opine on the incriminatory value of the AR results in the civil. So up until now, as an argument, its been nullified.

      But, now the defense, not the prosecution, is bringing this up in the civil trial now. As you suggest, they may be worried that the prosecution can get this into play at trial. And they might have reason to be…the defense in this case doesn’t look NEARLY as strong as the defense in the criminal (even with Spgnolletti in the so-called back seat). They might think that Covington has the legal smarts and savy to get this back in play. They are sizing up Razi and Reagan and saying they look tough.

      So, it feels like a defense-on-the-defense move rather than a defense-on-the-offense move.


      • Bill Orange
        04/05/2011 at 9:25 PM

        If the plaintiffs aren’t calling a witness to testify about it, then I agree that it’s probably moot, but I still think the plaintiffs could get this in if they thought it might help them. I think it had to stay out at the criminal trial because the prosecution’s “team” was the one that botched the evidence. That’s not the case here. And aside from what we heard about in the trial, I don’t really trust what’s been published in the media about the evidence at the crime scene.

        On reflection, though, I wonder if they’re bringing this up to try to say, “Look, the police botched this up so badly that we can’t even mount a reasonable defense.” I suppose that’s worth a try, but I can’t see it getting them very far if they’re not willing to answer questions about whether or not they chloroxed the crime scene.

  3. Bill Orange
    04/05/2011 at 5:22 PM

    I really can’t see how the defendants are going to get around the evidentiary standard here. If someone is stabbed to death in your house, and you invoke your fifth amendment rights when asked if you did it, then you’ve pretty much given me all of the evidence I need. If the standard is merely “more likely than not”, and I’m allowed to use your fifth amendment invocation against you, then I’m going to find against you. I really don’t see any reasonable defense here.

    • christy love
      04/07/2011 at 10:01 AM

      As an American I don’t like to hear this. I wouldn’t hold it against the person, I would still make the government prove it to me. I can see where a person could be totally innocent (not this case) and afraid that the government would use what they said against them.

      How come in the civil case this can be held against you? Don’t just say because the burden of proof is less. There’s gotta be a better reason than that.

      • mw
        04/07/2011 at 1:23 PM

        You would make the government prove someone committed a crime before you allowed a private citizen to obtain damages from another private citizen? That certainly wouldn’t be fair to Kathy Wone, to be held hostage by the incompetence of police and prosecutors. It’s not just a lower burden of proof – you simply have more rights when the government takes you on (because they can legally lock you up forever, or in some cases even kill you), than you do when private citizen you wronged takes you on.

        • CDinDC
          04/07/2011 at 2:29 PM

          I would imagine Kathy Wone would rather see a successful criminal trial than a sucessful civil trial.

          But I get your point, mw. In this case, perhaps a civil victory will be the only victory. Unfortunately.

  4. Bill Orange
    04/05/2011 at 5:39 PM

    The cardiac surgeon strikes me as a sop to Needham Ward. I thought the guy they had at the criminal trial did a fairly good job, but I just don’t see how a cardiac surgeon (as opposed to an ER doc) is going to help you much here. The big issues are how long it would have taken for Robert Wone to become incapacitated, and would he have bled internally or externally as a result of his wounds. Those are questions for an ER doc, not a heart surgeon. My guess is that this guy was included either at Needham Ward’s specific request, or the attorneys are doing it to stroke his ego (since he’s footing part of the bill).

    Alan Lipman is an interesting witness. I understand why they’ve got him on the list, but I think it would be a huge tactical error to call him at trial. If he testifies that the defendants’ bizarre behavior was normal for the circumstances, the plaintiffs can ask him a lot of specific questions on cross-examination about the bizarre things the defendants did. He can say that everything that they did was “normal”, but it’s really going to hammer home to the jury how much weirdness was going on in that household. And then he could also be asked questions along the lines of, “Would this reaction be more or less likely in someone with a known history of violent sexual behavior?” This kind of witness could seriously backfire on the defense.

  5. susan
    04/05/2011 at 10:00 PM

    Apologies for posting here but wasn’t sure where to post.

    Was looking at Maryland Court records online and noticed that at the time of Louis Hinton’s arrest his address was listed as 1509 Swann. I remember he had lived there briefly after the arrest but I wonder when he moved in, when he moved out, and if that was, in fact, his legal address. The record also shows V. Zaborsky listed for “Surety” and not only JP from Arent Fox as the defense atty but also another Arent Fox attorney.

    Again, such interesting dynamics. I wonder if LH ever returned his key. Not suggesting he was connected with RW’s murder but I still wonder if he ever returned the key he must have been given.

    • DonnaH
      04/06/2011 at 3:20 AM

      Hmm, I was just looking at some of those records too, through the link at the post “All in the Family.” On the arrest record of 4/20/06 that I saw there, Louis’ address was listed as 8335 Grubb Road in Silver Springs, MD; But on the document of his bail bond, it’s noted that conditions of his release are “not to have any contact with Michael Price” and “proof of new address.” That was on 4/25/06, five days after his arrest, and the Swann St. address is listed as his new and now “legal” address –where I imagine he was supposed to live until the trial was over, whenever that was.

      What I wonder is if he moved back to the same Silver Springs condo that he and Michael shared, and lived there at the time of Robert’s murder four months later. (Most likely I’d think, since it was owned by Joe Price until he sold it in March of 2007.) That’s of particular interest because Louis told the police that on the night of Robert’s murder Michael was at home in bed with him, and even recorded it in his diary; yet according to Louis’ arrest report, he and Michael had separate bedrooms. Doesn’t mean they never slept together, but that fact raises even more questions about Louis’ alibi for Michael on the night of Robert’s murder.

      • Clio
        04/06/2011 at 10:20 PM

        The Samuel Pepys of Silver Spring certainly was/is a wordsmith, full of what late eighteenth-century salonierres called “sensibility,” but, why would he of all the secondary players in this saga leave a syrupy memorial behind in the funeral book?

        Also, did Louis’ diary regularly comment on whether Michael slept at home or not? Such a mundane detail would seem inappropriate in a place where one should have been analyzing the ethics of stem-cell research, or the existence of God, or the deteriorating American position in Iraq that summer. American diarists have, I guess, declined, since the days of Cotton Mather!

        • susan
          04/07/2011 at 12:08 AM


          That’s a good point re diary entries. Wonder if MPD and/or prosecutors checked to see the typical entries. And wonder who could account for LH being home that night. I don’t think he is complicit in the murder, but he lived with the guy, had a romantic relationship with him, the guy himself had a past record and LH was defended by the brother in a criminal case. How is his testimony that reliable?

          • susan
            04/07/2011 at 1:17 AM

            Rest in peace, Chilaw. And thanks for this earlier post:

            chilaw79 on 09/01/2010 at 10:11 PM

            I went back to the trial testimony. If I read it correctly, Hinton did not testify as to either his or Michael’s whereabouts on the night on which Robert Wone was killed. Most of his testimony concerned the burglary. It looked as though Hinton was concerned about his own potential criminal liability because his attorney (Barry Pollack) raised the Fifth Amendment issue and the questions asked were limited as a result.

            According to the write-up, Hinton was not asked where either he or Michael was on the night of August 2, 2006, on direct, cross, or re-direct.

            • Clio
              04/08/2011 at 9:33 PM

              I trust then that Team Covington will address that gaping lacunae in the historical record. One must confirm the diary entry with something else.

  6. cdindc
    04/05/2011 at 10:36 PM

    Susan, who was the other attorney?

    • susan
      04/05/2011 at 11:24 PM

      Emily Thorne.

      • Gloria
        04/05/2011 at 11:53 PM

        Because she is/was admitted to the Maryland bar, whereas Joe was/is not.

        • susan
          04/05/2011 at 11:57 PM

          Looks like she’s a U-VA alum as well, though younger than JP. Seems like there was a little club of U-VA law grads at A-Fox. Still wonder about LH listing Swann as his residence and about VZ also involved. All in the fam.

          • Clio
            04/06/2011 at 10:25 PM

            Who knew that Charlottesville could have provided such a bonding — Thomas Jefferson, himself no stranger to moral inconsistency, must be rolling around in his grave, and this time, not with Sally Hemings!

  7. 04/06/2011 at 7:38 AM

    Thanks to DonnaH (see her post under “Prior Restraint(s)” and above), we can now add LouisH as well as MP to the list of “Ninjas with Keys” to the patio door and rear gate if we’re looking for persons who might have been present before midnight on that fateful night but were long gone when the 911 call was placed. Is it likely either or both of these prospective witnesses will plead the 5th if called for depos? Even the defendants’ list of opinion witnesses indicates a continued reliance on the intruder theory (read “who went in and out of the rear door”).

  8. 04/06/2011 at 8:06 AM

    The cost of employing the above-mentioned expert witnesses is obviously enormous; and add that to counsel fees! If Daddy-Warbucks Ward is footing this bill, is it just to save his son’s boyfriend’s ass? If DW was in his room in a deep sleep…

  9. Michael
    04/06/2011 at 10:33 AM

    …”there [is] ‘no correct’ or ‘acceptable’ way to judge someone’s behavior who has witnessed a traumatic event.”

    Yeah! Especially if someone is on drugs! You can’t judge someone’s behavior when they’re on drugs! Sleeping aids make you act weird and disconnected from reality! There’s no rhyme or reason to the way people act, even when they’re not on drugs! People are just wonky like that! I remember I laughed my ass off at my grandmother’s funeral because I was on a sleeping aid! Everyone was all like, “Wow what’s your problem dude?” and I was like, “Chill out man, I’m on a sleeping aid! HAHAHHAHA!”

    You might be asking yourselves, “Hey! Why didn’t these guys cry at all during the interrogations?” I’ll tell you why! Because crying is an admission of guilt, and these guys knew this! So because they are INNOCENT, they knew they shouldn’t cry! Otherwise they’d look guilty! WHEN THEY’RE ACTUALLY INNOCENT, YO! DUH!

    Whenever a guest gets murdered in MY house, I like to just chill on the couch. But hey, THAT’S JUST ME! People do things for all sorts of reasons! Especially when they’re on a sleeping aid!

    Also! Did I mention how scared I get when a guest gets murdered in MY house?? That’s why whenever a guest gets murdered in MY house, I make sure to call 911 from the top floor, regardless of where the body is! I don’t care if I have two roommates to protect me in case the intruder is still in the house!! I’m sooo scared! I need to run all the way upstairs to use the telephone!! And I always want to know what time it is when I call 911!! Paramedics are sooo slow sometimes!! It helps when you know the time so that you can complain later about how long it took them to get there!! Did I mention there are no clocks in my house, let alone cell phones or cable boxes/vcr’s??? LOL I know you probably think I’m crazy, but it’s true! 911 operators have easy access to the current time, so it just makes sense to ask them.

    Thanks for the update, WMRW crew!

    • susan
      04/06/2011 at 9:02 PM

      Hey Michael,

      Someone correct me if I’m wrong but it’s my understanding that the trouple were interrogated first at their home. I thought I read they were all seated together on a couch and interrogated at the same time. When VZ or DW attempted to answer, purportedly JP gave them “stifle it” looks and so JP did most of the talking. This might explain the somewhat uniform accounts each gave, and the use of certain terms by all (like “intruder”).

      That said, maybe there were tears beforehand, maybe not. But tears or lack thereof really don’t mean a thing. Sometimes people are in shock or have delayed reactions. Sitting on a couch when you think a bloody murderer is in your house lurking about and feeling “worried”–etc., etc.–I’m with you on that.

  10. Onyx
    04/06/2011 at 2:03 PM

    Hi, just wanted to point out that I’m pretty sure Needham is a cardiologist, not a cardiac surgeon. There is a subtle but important difference. 🙂

    (P.S. Eds, if you’re wondering about the different IP, it’s because this is my work computer.)

    • JuChen
      04/06/2011 at 7:04 PM

      Sometimes I even use a bar while waiting to meet up with someone or public IP while I am in transit to post. Thanks for pointing it out (both cardiologist and cardiac surgeon difference, and the IP’s thing).

  11. Bea
    04/06/2011 at 2:46 PM

    It’s interesting that in Michael’s ironic post above that he mentions that the defendants asked the 911 dispatcher what time it was. We all know that in the enhanced tape, Joe can be heard prompting Victor to ask. Too, we know that the defendants memorized the wrong time (were told by dispatcher that it was 11:54 but the defendants remembered this as 11:43).

    I’ve often wondered about this but figured being on message about 11:43 was just to assist in working backwards in timeline as they recounted the story – I never understood why they asked the dispatcher for the time.

    Now for the experiment – on MY smartphone, when I’m beginning a text (or a fake text!) the time is no longer visible. It’s visible BEFORE I start the message and after I send it, but not during the writing of the message. Since Joe was the one wanting to know the time, was that when he was messing with Robert’s Blackberry? We know he wasn’t staunching blood. Full disclosure – I do not have a Blackberry so perhaps someone with Blackberry one can try the text-loses-clock experiment (recognizing that none of us likely has a 2006 Blackberry)?

    Damned cops for wiping the Blackberry clean – hard to believe they screwed up that PLUS all the blood evidence with the Ashley’s Reagent. . .

    But if Joe was messing with the fake texts, he’s trying to find fake times to recreate so the messages would look legit and help his case, which may have been why he confused 11:54 and 11:43. Victor was asked to get the info then spat it out, just the conduit, so Joe was the one who likely messed it up (big reach/speculation, I know).

    If you’re still with me on this fishing expedition, one step further: why didn’t Joe press “send”?

    My instinct is that the time chosen for the texts was in fact the time of death – wanted to show he was alive at that time, en route to falling asleep where the Ninja would soon stab him.

    But why not press send? Maybe someone can do Blackberry experiment and see if this helps answer the question of both the time disappearing from view and why one could lose sight of the ‘send.’

    Like a class project?

    • Cat from Cleveland
      04/06/2011 at 8:27 PM

      I thought it was an unsent email at issue? Emails are usually delivered within seconds of the time they are sent, and the person who receives it will have a time stamp.

      • susan
        04/06/2011 at 8:55 PM


        There were apparently two unsent emails, one to RW’s wife and one to a colleague. Neither were sent, the MPD returned the phone to RFA without copying it (really, really–how stupid!) and RFA recycled it.

      • Bea
        04/06/2011 at 11:17 PM

        Sorry, meant email from the Blackberry. Susan is right that neither was “sent” so no time stamp on what was received, only that the cop “saw” there were two unsent emails but then the MPD lost the evidence, did not save the contents, and returned it to RFA. I’m guessing they didn’t check it for prints. . .

        • AnnaZed
          04/07/2011 at 2:57 AM

          All true, except I believe that the culprit in the complete and utter failure to even image the contents of Robert’s Blackberry (let alone analyze it) is the work of the Secret Service http://www.secretservice.gov/, this type of thing having been outsourced by the District MPD to them.

          • Bea
            04/07/2011 at 4:58 AM

            Will someone else check their smartphone to see if the time disappears from the screen when composing an email? It does on mine but it’s not a Blackberry.

            Just an image hit me of someone sitting and fooling with composing an email (not to mention backdating the TIME STAMP ITSELF) and asking someone else what time it is. It’s purely speculation but I’m trying to come up with why anyone in that situation would need to know the time and why they wouldn’t just check their phone for the time. I know I rarely wear a watch anymore for that reason. A side note – does anyone recall from the Anacostia video if Joe is wearing a watch?

            • Hoya Loya
              04/07/2011 at 8:37 AM


              It disappears on mine when I am composing an email or text.

              To be honest, I haven’t mastered the technique of altering the time stamp in a draft. Can anyone confirm how this can be done?

              If it cannot be done, doesn’t that mean that the emails were composed when time stamped and not sent then, as many here have suggested, because someone might have responded, especially Kathy, and expected a reply? And sending later would have shown the actual time on the message and thrown off the timeline? And, most importantly, that Robert was already incapacitated or dead when they were composed (which would be a huge miss on the part of Judge L.)

              The other thing that has always stumped me is how they got into Robert’s BB in the first place. I’ve had three in the last eight years and all of them were password protected and would/will “time out” very quickly.

              Has anyone confirmed with IT at RFA if their BBs were password protected and if so when they were set to time out? If protected that could mean: the unsent messages were composed by Robert, the only one with the password; Robert’s password was revealed to or known by someone in the house; or the messages were composed shortly after Robert had unlocked and used the BB himself.

              • Bea
                04/07/2011 at 12:59 PM

                Hoya, I wish we knew if RFA had password protection too. Mine is a “work” one but is NOT password protected. I don’t know how one might change a time stamp but I think it can be done – awaiting a more tech savvy person’s response. . .

                • Hoya Loya
                  04/07/2011 at 3:23 PM

                  Agree — we need a resident IT expert.

                  I should also add that in the paragraph above, starting with “If it cannot be done . . .” that I am assuming, for that para only, that Robert did not compose the emails himself.

                • CDinDC
                  04/08/2011 at 10:33 AM

                  Bea, my GF has a work blackberry and it is not password protected.

                  It must not be a preset function on blackberrys.

                  • susan
                    04/08/2011 at 10:30 PM

                    One other point about the Blackberry: According to the court record it was turned over to K. Wone before being turned back into RFA. She wanted to retrieve the names of RW’s friends, etc. to contact them, stated the record. I’m sure at the time she was in a daze but she might have info. about the phone and the texts, etc.

                    • Hoya Loya
                      04/09/2011 at 10:15 AM

                      Kathy is sharp and her priority is finding out the truth about her husband’s death. I’m sure, even in a state of shock and grief, that had she noted anything unusual, she would have reported it to the authorities and/or her lawyers. I don’t see her holding anything back, positive or negative, if it would help her in her main goal.

                      I sometimes wonder how crucial the failure to image the BB was. How much could have been detected about the two unsent emails?

                      And records of phone call or text messages should have been preserved by the carrier and eamils should have also been available through the RFA server.

                      I tend to think any evidence would have been supporting in nature rather then revelatory.

              • Noaharc
                04/07/2011 at 8:38 PM

                Patriot Act-

              • Noaharc
                04/07/2011 at 8:38 PM

                Patriot Act-

              • Noaharc
                04/07/2011 at 8:38 PM

                Patriot Act-

    • DonnaH
      04/06/2011 at 11:42 PM

      I liked a hypothesis posted long ago that the messages weren’t sent because after they were written, whoever wrote them considered the possibility that one of the recipients might reply, perhaps expecting a response, which could lead to unwanted complications…so he thought better of it and didn’t send them.

      Made sense in a situation where the actors were likely drug-addled and hastily making it up as they went along.

      • Clio
        04/09/2011 at 7:55 PM

        Yes, DonnaH, even the back-door intruder theory, the Sarah toothbrush-sleepover narrative, the Victor/Victoria 911 performance, and Uncle Michael’s missing class for the first time (because, being the delicate flower that he was, he worried about the effects of his tardiness on others in the class!!) would make sense to such actors!

  12. Clio
    04/06/2011 at 10:29 PM

    Ashley’s Reagant: why does that sound like a high-end bubble bath?

    • Bea
      04/06/2011 at 11:18 PM

      I’d use the LIKE button if there was one.

  13. Willie
    04/07/2011 at 11:12 AM

    Out of nowhere here, with all this never ending talk about the civil trial and invoking the 5th amendment, Robert Blake was ultimately charged with his wife’s murder and although acquitted in the criminal trial, he was found liable for her death in the civil case. Period.
    Christian Brando (eldest son of Marlon) was called as a witness in actor Robert Blake’s civil trial but refused to testify, invoking his Fifth Amendment constitutional rights.[14] Brando’s behavior in court got him a contempt of court charge and conviction.We’re wasting a lot of discussion here.

    • Bea
      04/07/2011 at 8:44 PM

      But how would it have played if Christian Brando had taken the 5th in his own trial?

  14. Willie
    04/08/2011 at 2:58 PM

    Bea, Well Christian Brando pled guilty to manslaughter and spent some time in prison. He was smart not to plead the 5th, because it may have gotten him even more time from a suspicious jury. And, in this case, the jury will be quite suspicious which will only hurt these boyz more.

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