02/21/2001 01:07 PM House JUD
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ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
February 21, 2001
1:07 p.m.
MEMBERS PRESENT
Representative Norman Rokeberg, Chair
Representative Scott Ogan, Vice Chair
Representative John Coghill
Representative Kevin Meyer
Representative Ethan Berkowitz
Representative Albert Kookesh
MEMBERS ABSENT
Representative Jeannette James
OTHER LEGISLATORS PRESENT
Representative Lesil McGuire
COMMITTEE CALENDAR
HOUSE BILL NO. 102
"An Act relating to the theft of propelled vehicles."
- MOVED CSHB 102(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 32
"An Act relating to the forfeiture of property used to possess
or distribute child pornography, to commit indecent viewing or
photography, to commit a sex offense, or to solicit the
commission of, attempt to commit, or conspire to commit
possession or distribution of child pornography, indecent
viewing or photography, or a sexual offense."
- HEARD AND HELD
HOUSE BILL NO. 119
"An Act exempting joint action agencies from regulation by the
state or municipalities; relating to the relationship between a
joint action agency and the public utilities that form the joint
action agency; relating to powers and immunities of a joint
action agency; requiring filing of the joint action agency
agreement; relating to the financial affairs of a joint action
agency; declaring certain joint action agencies to be political
subdivisions for certain purposes; relating to liability and
indemnification of officers, employees, and agents of joint
action agencies; and defining 'agency agreement' as used with
reference to joint action agencies."
- BILL HEARING CANCELED
PREVIOUS ACTION
BILL: HB 102
SHORT TITLE:THEFT OF PROPELLED VEHICLES
SPONSOR(S): REPRESENTATIVE(S)KOTT
Jrn-Date Jrn-Page Action
02/02/01 0225 (H) READ THE FIRST TIME -
REFERRALS
02/02/01 0225 (H) JUD
02/19/01 (H) JUD AT 1:00 PM CAPITOL 120
02/19/01 (H) Heard & Held
MINUTE(JUD)
02/21/01 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 32
SHORT TITLE:SEX CRIME AND PORNOGRAPHY FORFEITURES
SPONSOR(S): REPRESENTATIVE(S)HAYES
Jrn-Date Jrn-Page Action
01/08/01 0032 (H) PREFILE RELEASED 1/5/01
01/08/01 0032 (H) READ THE FIRST TIME -
REFERRALS
01/08/01 0032 (H) JUD, FIN
01/08/01 0032 (H) REFERRED TO JUDICIARY
02/09/01 0286 (H) COSPONSOR(S): MCGUIRE, GUESS
02/14/01 0327 (H) COSPONSOR(S): MURKOWSKI
02/21/01 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
HEATHER M. NOBREGA, Staff
to Representative Norman Rokeberg
House Judiciary Standing Committee
Alaska State Legislature
Capitol Building, Room 118
Juneau, Alaska 99801
POSITION STATEMENT: Provided information on HB 102.
ROGER WORTMAN, Staff
to Representative Pete Kott
Alaska State Legislature
Capitol Building, Room 204
Juneau, Alaska 99801
POSITION STATEMENT: On behalf of sponsor, provided information
on HB 102.
JERRY LUCKHAUPT, Attorney
Legislative Legal Counsel
Legislative Legal and Research Services
Legislative Affairs Agency
Alaska State Legislature
Terry Miller Building, Room 329
Juneau, Alaska 99801-1182
POSITION STATEMENT: Provided legal opinions and answered
questions on HB 102.
MARK T. MEW, Deputy Chief
Anchorage Police Department
4501 Bragaw
Anchorage, Alaska 99507
POSITION STATEMENT: Testified on HB 102 and HB 32.
DEAN GUANELI, Chief Assistant Attorney General
Legal Services Section-Juneau
Criminal Division
Department of Law
PO Box 110300
Juneau, Alaska 99811-0300
POSITION STATEMENT: Testified on HB 102 and HB 32.
REPRESENTATIVE JOE HAYES
Alaska State Legislature
Capitol Building, Room 422
Juneau, Alaska 99801
POSITION STATEMENT: Sponsor of HB 32.
ROSS PLUMMER, Police Officer
Anchorage Police Department
4501 Bragaw
Anchorage, Alaska 99507
POSITION STATEMENT: Testified on HB 32.
MARC POESCHEL, Police Officer
University of Alaska Police Department
PO Box 75560
Fairbanks, Alaska 99775
POSITION STATEMENT: Testified in support of HB 32.
JAMES WELCH, Chief of Police
Fairbanks Police Department
800 Cushman Street
Fairbanks, Alaska 99701
POSITION STATEMENT: Testified in support of HB 32.
JENNIFER RUDINGER, Executive Director
Alaska Civil Liberties Union
PO Box 201844
Anchorage, Alaska 99520
POSITION STATEMENT: Provided comments on HB 32 and suggested
amending.
ACTION NARRATIVE
TAPE 01-21, SIDE A
Number 0001
CHAIR NORMAN ROKEBERG called the House Judiciary Standing
Committee meeting to order at 1:07 p.m. Present at the call to
order were Representatives Meyer, Coghill, Rokeberg, and Ogan.
Representatives Berkowitz and Kookesh arrived while the meeting
was in progress.
HB 102 - THEFT OF PROPELLED VEHICLES
Number 0082
CHAIR ROKEBERG announced the first order of business would be
HOUSE BILL NO. 102, "An Act relating to the theft of propelled
vehicles."
Number 0099
HEATHER M. NOBREGA, Staff to Representative Norman Rokeberg,
House Judiciary Standing Committee, Alaska State Legislature,
came forward to explain the difference between the proposed
committee substitute (CS) [Version J] and the original HB 102.
On page 2, line 22, the proposed CS deletes the words "personal
water craft" and then goes on to say that "watercraft" does not
include "a shallow draft propelled vehicle not more than 12 feet
in length with an inboard motor powering a water jet pump as its
primary means of propulsion that is designed to carry not more
than two persons who sit, stand, or kneel on the vehicle."
Number 0181
CHAIR ROKEBERG noted for the record that by "a shallow draft
propelled vehicle not more than 12 feet in length with an
inboard motor powering a water jet pump as its primary means of
propulsion that is designed to carry not more than two persons
who sit, stand, or kneel on the vehicle" the committee meant a
jet ski or its derivations.
Number 0211
MS. NOBREGA explained:
We're ... trying to limit the definition of
"watercraft" for purposes of this statute only. We
don't care about the definition of "watercraft" in any
other parts of Title 11, only for this statute, and
it's only so that [stealing] a jet ski is not on the
same level [as] stealing a boat. If you steal
someone's boat, it's an automatic felony; if you steal
someone's jet ski, it's a misdemeanor unless you meet
the three provisions under section .360(a)(2).
MS. NOBREGA said the reason the definition is not included in
the back under the general provisions is that the term "personal
water craft" is used just once. The rules of construction are
that when a term is used just once, it is defined just once, and
the definition appears in the section in which the term is used.
Number 0350
CHAIR ROKEBERG added that if the term "personal water craft"
were to be defined at the back of the chapter, it would be
necessary to change the definition of "watercraft" throughout
all the chapters, and he thought doing so would make the law
more confusing to the general public. He further clarified that
the intent of HB 102 is to lower the penalty for the theft of a
snow machine, all-terrain vehicle (ATV), or jet ski.
Number 0475
ROGER WORTMAN, Staff to Representative Pete Kott, Alaska State
Legislature, came forward on behalf of Representative Kott,
sponsor of HB 102. He concurred with the proposed CS and with
Chair Rokeberg's analysis. Mr. Wortman said HB 102 "creates a
level playing field for those people who have to rely on a snow
machine or an ATV as a primary means of transportation. It
amends the definition of ATV and it puts the personal water
craft in a place away from other recognized watercraft."
Number 0540
REPRESENTATIVE OGAN expressed confusion about the motivation for
putting personal water craft in a different category from other
boats. He noted that personal watercraft are expensive machines
and may be worth more than an old skiff.
Number 0582
MR. WORTMAN said he could not provide an answer. He explained
that Jerry Luckhaupt, Legislative Counsel, had helped with the
drafting.
CHAIR ROKEBERG asked him, "What's the level playing field?'
MR. WORTMAN said "personal water craft" was a term Mr. Luckhaupt
suggested using in place of "jet ski."
REPRESENTATIVE OGAN wanted to know if it would be a felony to
steal a personal water craft.
CHAIR ROKEBERG explained that a jet ski/personal water craft is
put on the same level with a snow machine and an ATV. Under HB
102, it is not a felony to steal any of those, but a second-
degree theft, a class A misdemeanor. This removes a burden from
law enforcement by separating short-term "joyriding" of one of
these "toys" from the more serious vehicle theft, a class C
felony.
Number 0837
REPRESENTATIVE COGHILL asked for the rationale behind specifying
seven days.
MR. WORTMAN explained that the seven-day time limit quantifies a
difference between joyriding and theft. A person who has kept
stolen property seven days is presumed to intend never to return
it.
REPRESENTATIVE COGHILL wondered why it specifies seven days
instead of three.
MR. WORTMAN said it was based on the fee for rental so the court
system could have some way to place a value on taking a snow
machine.
Number 0900
CHAIR ROKEBERG clarified that only a propelled vehicle is
subject to the seven-day test.
REPRESENTATIVE COGHILL remembered when a bicycle he owned was
stolen and said, "They weren't even going to start looking for
it for a week." He was afraid that police would not even bother
looking for a missing snow machine, he said. He thought HB 102
was sending the wrong message about theft. "It concerns me that
we're saying we are elevating it, but we're going to give a
grace period of a week," he added.
Number 0990
CHAIR ROKEBERG acknowledged that the seven-day time limit was
somewhat arbitrary, but up to a week's use of property is
comparable to its leasehold value; after that, the unauthorized
use turns into a crime. "I think the key issue here is the
distinction between what's a felony and what's a misdemeanor,
and they're trying to make it level in terms of the category of
vehicle," he said.
REPRESENTATIVE COGHILL referred to page 1, line 12, where there
is reference to cases in which there is damage of $500 or more.
He surmised that meant police would act immediately rather than
waiting a week if a vehicle was destroyed on the day it was
stolen.
CHAIR ROKEBERG said that was correct.
Number 1063
REPRESENTATIVE OGAN observed that if somebody took a "junker"
snow machine worth less than $500 and kept it more than seven
days, that becomes a felony.
MR. WORTMAN said that would be true if that snow machine was the
sole transportation of the person from whom it was taken and the
thief did not intend to return it to the owner.
REPRESENTATIVE OGAN said he didn't see any reference to "sole
transportation."
MR. WORTMAN said there was no reference to it in HB 102.
REPRESENTATIVE OGAN expressed concern about a teenager taking an
old, broken-down snow machine, and that being a felony.
Number 1178
REPRESENTATIVE BERKOWITZ explained that "propelled vehicle"
means that the vehicle currently is self-propelled, not that it
used to be.
CHAIR ROKEBERG pointed out that without HB 102, that theft still
would be a felony. "We're trying to lighten up and not make it
tougher," he said.
REPRESENTATIVE BERKOWITZ clarified that taking a junker car is a
felony, but taking a junker snow machine is not.
Number 1240
REPRESENTATIVE MEYER asked what a new snow machine costs.
MR. WORTMAN said a new snow machine costs between $5,000 and
$7,500. The rental rate would be about $50 an hour, $150 for
six hours, or at least $750 for a week.
REPRESENTATIVE MEYER thought it seemed "a little strict" for a
16-year-old's theft of a snow machine to be considered a felony.
MR. WORTMAN observed, "I think the qualifiers are here." If a
16-year-old takes somebody's snow machine and is intent on
depriving the owner of the machine permanently, then that is a
felony. If he takes it and it is returned, that is probably not
a problem. If the snow machine is only worth $500 and he wrecks
it, it's $500 damage.
REPRESENTATIVE MEYER added that if the youth keeps it more than
seven days, then it's a felony.
REPRESENTATIVE BERKOWITZ focused attention on the phrase,
"deprived of the use". If the owner was out of town the whole
time an unauthorized person was using his snow machine, he said
it is arguable that the owner was not deprived of its use.
Number 1380
CHAIR ROKEBERG said he thought it came down to whether the owner
was "constructively" deprived of the use.
REPRESENTATIVE BERKOWITZ said, "You have to look at this in the
light that's harshest to the state and the light that's most
favorable to an accused. That certainly would be a defense that
I think any reasonable defense attorney would raise."
Number 1416
JERRY LUCKHAUPT, Attorney, Legislative Legal Counsel,
Legislative Legal and Research Services, Legislative Affairs
Agency, Alaska State Legislature, said he thought if the owner
were out of town and unaware that the vehicle was taken, it
would be a reasonable interpretation that the owner was not
deprived of the use. If the owner had someone staying at the
home who noticed that the vehicle was gone, the owner would be
deprived of the use, since he/she could otherwise have loaned it
to someone.
Number 1480
REPRESENTATIVE BERKOWITZ further argued that HB 102 only
specifies that the owner is being deprived of the use, not that
the houseguest is being deprived of the use.
MR. LUCKHAUPT said the owner has the right to the use of the
vehicle in any way he wants, including loaning it to someone.
It is a technical term as to when a person is deprived or not
deprived. If a person takes a snow machine while the owner is
away, brings it back and fills it up with gas, and the owner
wasn't aware that it was gone, then the owner hasn't been
deprived of its use; having taken it is a misdemeanor, vehicle
theft in the second degree. The felony offense would not apply
in that circumstance.
MR. LUCKHAUPT then responded to Chair Rokeberg's request to
speak to the question of the seven-day limit. He explained that
seven days seemed like a reasonable approximation based on
normal rental rates. To a certain extent, seven days is an
arbitrary figure.
Number 1645
REPRESENTATIVE COGHILL observed that in a rural area where a
snow machine or four-wheeler might be a person's main
transportation, taking it for less than seven days could
endanger life. He thought that endangerment had more to do with
"a real criminal issue" than did the cost of a rental.
CHAIR ROKEBERG pointed out that any activity such as that
described is criminal. The point is whether it is a felony or a
class A misdemeanor.
MR. LUCKHAUPT further explained that the time component is
designed to address Representative Kott's concern for those
owners who do not choose to go out and rent another vehicle
during the time theirs is gone or who get the vehicle back with
less than $500 damage. The goal was to provide another
component for those persons who lose their vehicle for a period
of time. It is an attempt to reclassify some of the cases that
now are misdemeanors by saying that taking a person's snow
machine for seven days is a substantial loss, great enough to be
classified as a felony. Commenting on HB 102, he said, "We
aren't taking cases away from current felonies ..., we are
taking cases from misdemeanors and making them felonies. If a
person is out working a trap line and someone takes his snow
machine, other criminal charges would apply. It might be
considered murder or attempted murder, assault, or reckless
endangerment.
Number 1843
REPRESENTATIVE OGAN said he thought he understood that the
sponsor's intent was to give people who depend on [an
alternative] vehicle for their primary transportation the same
status as those who depend on vehicles they drive on the road
system. If a person lives in rural Alaska and gets around by
four-wheeler or snow machine and that vehicle has been stolen,
that rises to the level of a car being stolen in urban Alaska.
"As a matter of fact, they used to hang horse thieves," he
noted. He suggested that language about "primary
transportation" might be included in HB 102. He asked if that
was what the bill sponsor intended and if so, should that
language be included?
MR. WORTMAN said the intent of HB 102 is, as the sponsor
statement says, to level the playing field for owners of ATVs
and snow machines. An individual had brought this up four years
ago, and this bill "doesn't fix all, but it is a good solution
to the current situation right now," he said.
Number 1843
REPRESENTATIVE OGAN said he was still trying to get to the
intent of the legislation. "Somebody's toy that sits in their
yard isn't as important as somebody's primary source of
transportation if they aren't on a road system," he said. Was
that the intent?"
CHAIR ROKEBERG said he didn't think the sponsor was "interested
in making a Bush exemption; there's no need ... to make that
distinction."
Number 1970
REPRESENTATIVE OGAN said he did not think taking a snow machine
rises to the level of felonious behavior if the machine is "just
somebody's toy that [the thief] keeps for a week." He said he
thought taking it might rise to that level if the vehicle is
something the owner truly needs and depends upon for a
livelihood.
Number 1990
MR. LUCKHAUPT said he understood that to be the sponsor's
intent, and had drafted HB 102 to put snow machines, ATVs, and
jet skis on the same level [with one another], and not
necessarily to put snow machines on the same level with cars and
trucks. The current laws still put snow machines and ATVs on a
lower level than jet skis, he explained. Jet skis now are
included in the broad definition of watercraft. Other
committees that have considered HB 102 have been concerned that
it not put snow machines and ATVs on the same level with cars
and trucks.
MR. LUCKHAUPT continued, saying, "We could try to craft
something that deals with vehicles that are used away from the
road system. But potentially, an ATV or a snow machine,
regardless of whether it is a the person's primary mode of
transportation, may be very valuable to the person." He cited
the example of someone 40 miles out in horrible weather working
a trap line. He said he thought it would be difficult to draw
the line, and that drawing it based on the vehicle being the
person's primary mode of transportation might not be the
appropriate way.
Number 2103
REPRESENTATIVE BERKOWITZ said he tended not to like "bright
lines" in the criminal code. He suggested it would be better
left to the jury to decide whether seven days is too long or too
short a time. He proposed that it might be better to refer to
being "deprived of the [vehicle's] use for a protracted period
of time." "Protracted" is a term on which there are some court
interpretations, and also is an issue on which both sides could
argue. It would depend on the circumstances of the case.
Number 2165
REPRESENTATIVE MEYER said he thought proponents had suggested
that HB 102 might reduce court costs, but prosecuting cases as
felonies rather than as misdemeanors would be more expensive.
TAPE 01-21, SIDE B
Number 0001
MR. LUCKHAUPT explained that HB 102 singles out the jet ski
cases and makes those misdemeanors instead of felonies. On the
other hand, HB 102 creates an additional way to commit the
felony offense, by depriving the person of the use of the
vehicle for seven days. So some cases are going to drop out of
the felony category into the misdemeanor process, and some are
going to be added. There could be differences in cost to the
state or to a municipality. He mentioned the Municipality of
Anchorage, which prosecutes the misdemeanors while the state
handles the felony offenses.
REPRESENTATIVE MEYER said he was thinking of Anchorage, where
the stealing of snow machines is a problem. In Anchorage, a
snow machine is not the owner's main means of transportation.
But as he understands HB 102, stealing one's neighbor's snow
machine and keeping it for seven days or returning it with more
than $500 damage would be a felony.
MR. LUCKHAUPT said that is correct. The $500 damage is a felony
under existing law. But under existing law, the person who
chooses not to go out and rent another snow machine while his is
missing simply does without. There is no compensation if the
owner does not incur those costs, perhaps by borrowing someone
else's snow machine to check his trap line. It costs the owner
a lot of extra effort. Is that a loss that is comparable to
incurring a $500 cost to rent one? That was the attempt here.
Number 2063
REPRESENTATIVE MEYER returned to the question of overall cost to
the legal system. "So in your mind, it will balance out by
lowering one and raising the other," he observed. "But in some
ways, it almost sounds like we'll be saving money for the
municipalities but maybe adding more cost ... to the state in
the sense of more felonies being prosecuted."
MR. LUCKHAUPT acknowledged that was a possibility. However, he
pointed to testimony on Monday, which was "that everybody
thought any additional cost would be negligible because they are
already prosecuting most of these cases somehow." For someone
who doesn't have a previous conviction, he said the difference
in corrections costs is probably not that much different. He
said it was hard to quantify.
Number 1960
MARK T. MEW, Deputy Chief, Anchorage Police Department,
testified by teleconference. In investigating auto thefts, he
had always wondered why stealing a $1,000 ring or a lawnmower or
a set of golf clubs is a misdemeanor but stealing a $7,000 snow
machine or a $5,000 four-wheeler also is a misdemeanor. Police
are going to investigate and prosecute these cases anyway. He
said he thinks many first-time offenders will plead down to a
misdemeanor. He thinks the cleanest way to look at this is to
make things over a certain dollar level a felony and under a
certain dollar level a misdemeanor, and let it go at that. He
said he does not know why something extremely valuable should
not be a felony just because it is not transportation. He also
noted that $500 meant something different 20 years ago than it
does today, and suggested that the dollar amount for a felony
needs to be raised so that the theft of "every mountain bike is
no longer a felony."
Number 1885
REPRESENTATIVE OGAN reported that he had looked up "felony" in
Black's Law Dictionary and found that felonious intent is
applied to the crime of larceny "where a person knowingly takes
and carries away the personal property of another without any
claim or pretense of right, with the intent wholly and
permanently to deprive the owner of his property." He suggested
a statute should be crafted that fits those parameters of case
law.
MR. LUCKHAUPT pointed out that Representative Ogan had defined
what larceny or theft is. He stated:
You've got to have this intent to deprive the owner of
the property permanently. That's how it existed in
common law, and that's sort of what we have retained
in our criminal code. Therefore, if someone does
steal a car and they take the car in order to chop it
up for parts, ... we'll go ahead and charge the person
under ... the theft statutes.... But in most cases,
we aren't able to prove that he had that intent to
deprive the owner permanently, and that's why the
states came up with things like "joyriding" or ...
"criminal mischief."
If you take the car of another without any right and
then you drive around in it a while, or you drop it
off somewhere, but you aren't intending to keep it
permanently, ... that wasn't theft, and that's why
prosecutors ran into problems in prosecuting those
cases where people were only taking the car for a
period of time. People won those cases; criminal
defendants won and weren't convicted of theft because
they had no intent to deprive the owner permanently.
So ... we've created a new crime to deal with the
situation where all we can prove is the person
intended to take the car, took the car away, and,
therefore, the owner suffers some loss, ... whether
it's damage to the vehicle or damage to other property
or merely by not having access to their vehicle for a
period of time. And so we've had to get away from
what normally was felt ... was theft or larceny
because these cases didn't fit in there. It was
difficult to prove and convict anyone of that.
Number 1740
REPRESENTATIVE BERKOWITZ agreed with Representative Ogan, "It
may be an esoteric argument, but ... when you carve out special
exceptions for vehicle theft, the next thing you know, you have
special exceptions for weapons theft or clothing theft -- one
could make a case for all of them." He said he understood that
the drafters of HB 102 "went the vehicle theft route" because it
hinges on the intent to deprive another of property, but
"deprive" is defined in the case of Glidden v. State as
appropriating property with intent to withhold it for so
extended a period as to result in a loss of the major portion of
its beneficial use. One could argue to a jury that when someone
takes a car, even for a day, the owner is going to be deprived
of his or her beneficial use. "I think the criminal statute
should be written as broadly as possible, and theft in this case
would cover the intent to deprive that currently is swept up in
vehicle theft," he concluded.
Number 1671
REPRESENTATIVE COGHILL said he was struggling with the seven
days, and wondered about saying something to the effect that the
owner is deprived of reasonable control or use; then a jury
could decide if the value of the danger or the value of the
deprived time was above the $500 limit. He asked if HB 102
could be amended so that the number of days is not specified.
It is possible that in one day, the value of the machine could
be significant, he added.
CHAIR ROKEBERG said he thought that already was addressed in
[subparagraph] (B).
MR. LUCKHAUPT explained that if a person actually incurs the
cost, it is covered in [subparagraph] (B). That is the approach
he was taking when he began drafting, letting the prosecution
prove what a reasonable replacement value would be. The owner
wouldn't have to actually incur the costs if the replacement
value was $500. For example, renting a D-9 Cat for a day is
going to cost substantially more than $500. If someone takes a
D-9 Cat for a few days now, that's only a misdemeanor unless
there is $500 worth of damage or the owner incurs $500 in
reasonable costs to replace it. What about the person who
doesn't expend the cost? That was the approach the drafters
were taking, Mr. Luckhaupt said, but Dean Guaneli, Chief
Assistant Attorney General, was not enthusiastic about that from
a prosecution standpoint because he didn't want to add to the
prosecution's burden at trial by having to prove what a
reasonable replacement cost would have been.
Number 1535
REPRESENTATIVE COGHILL said he appreciated that discussion. If
the damage happens after the fact, that is easily proven. But
sometimes if one is deprived of the use of something, that is
very costly, too, but there is no physical damage done.
Sometimes time lost can be very valuable. Sometimes access or
control over something creates a liability for the owner. That
is why he thought "reasonable use or control" amounting to $500
was appropriate, he explained. That way, the owner could say
the vehicle was only gone for a day, but it cost him a contract
or 14 fish in his fish wheel.
Number 1490
MR. LUCKHAUPT said that was the way he had started: the owner
incurred or would have incurred reasonable expenses of at least
$500 as a result of the loss of the vehicle. He restated that
Mr. Guaneli did not want to add to the burdens on the Department
of Law. "It would be easier on them if [in HB 102] we created
some defined set of criteria, for example, a period of time that
the vehicle was gone," Mr. Luckhaupt added.
Number 1438
REPRESENTATIVE COGHILL ventured, "If in (B) it's all addressed,
then maybe we don't need (C). But if in (C), we're trying to
say that that seven-day period is going to be equivalent to that
loss, then we may need to say, 'the control or use of it for
that period of time' is ... the same value as (B)."
CHAIR ROKEBERG suggested that it is implicit in (C) that the
value is based on the length of time, based on a leasehold
theory.
REPRESENTATIVE COGHILL said he understood that, but he was
concerned about the seven-day issue. His point was that having
a vehicle missing only one day could be a "big deal."
Number 1420
CHAIR ROKEBERG said he wasn't sure he understood Representative
Coghill's point because the monetary values would be reflected
in the value of whatever vehicle and/or use that was put to. So
one would have to go through the $500 ceiling, and with the D-9
Cat, that would be reached immediately. If it's an old junker
snowmobile ....
REPRESENTATIVE COGHILL asked: If a $5,000 machine is returned
undamaged within seven days, how does the owner demonstrate that
not having it cost him $500 or more in a lost contract or a loss
in picking up fish? Would he have to file a whole separate
suit?
MR. LUCKHAUPT said for the theft of a vehicle to be aggravated
up to a felony, one would actually have to incur the cost, spend
$500 to replace the missing vehicle while it was gone. The loss
of a contract would not be considered under HB 102. In
establishing the time period, the drafters were trying to make
it easy for everyone to understand. It isn't a "bright line" in
regard to the valuation of what a replacement cost per day might
be.
Number 1258
REPRESENTATIVE OGAN said he thought one could prove felonious
intent with the seven-day rule "because if a person hasn't
brought the property back in a week, he probably isn't going to
bring it back."
Number 1226
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, confirmed
that Mr. Luckhaupt had accurately characterized the tenor of
their discussions and their interests. From a prosecution
standpoint, he said it's certainly not attractive to have to
prove on a case-by-case basis what the rental value of a certain
property was in a certain locale, and it's certainly easier if
"we" just pick a number like seven days.
MR. GUANELI continued:
On the other hand, I certainly understand
Representative Coghill's interests and his concerns.
If the proposal is to add some language, ... for
example, where it says, "the owner incurs reasonable
expenses in the amount of $500 or more" or ... [what
in civil law is consequential damages] -- in other
words, you could have done something. You could have
run your trap lines; you could have gotten a contract;
you could have done something else. If that's the
concept, I don't have any problem with including that
as another way of committing this offense. In other
words, you have significantly inconvenienced somebody
monetarily. We may not be able to prove that in very
many cases, but I certainly don't have any objection
to including that ... here.
I think there is some danger to expanding these
provisions too much. It wasn't too many years ago
that all joyriding was a misdemeanor, and a lot of
people were legitimately upset when they lost the use
of their car for a period of time. But I think you
have to realize that many of these offenses, perhaps
most of them, are committed by kids. Creating a whole
long list of offenses where kids are committing felony
offenses that get them into juvenile delinquency,
juvenile court, that sort of thing, I'm not certain
that's necessarily appropriate. On the other hand,
things that they do certainly do inconvenience people
greatly, and they're legitimately upset, so I think
there certainly is a balance.... I understand
Representative Coghill's concerns, and I certainly
would have no objection to including the notion of
consequential damages ....
CHAIR ROKEBERG suggested incorporating a change in HB 102
[Version J]: On [page 1,] line 12, after [incurs], to say "or
could have incurred" reasonable expenses.
Number 1035
REPRESENTATIVE COGHILL said that did not take into account the
value of time lost.
Number 0990
REPRESENTATIVE BERKOWITZ said he thought in the most egregious
case, in which someone took a car and thereby prevented the
owner's going to work for a week, one could reasonably charge a
second count of theft. "The difficulty I see with what
Representative Coghill suggests is that if you take someone's
car without even thinking that the person is not going to be
able to get to work, getting to a second offense is a
considerable challenge," he said.
Number 0895
REPRESENTATIVE COGHILL agreed, adding that he could foresee
"running into some real troubles" with the seven-day issue
outside the urban environment.
Number 0886
REPRESENTATIVE OGAN asked Mr. Guaneli if he concurred that the
seven-day time line is a reasonable measure of felonious intent
to permanently deprive someone of property.
MR. GUANELI explained that the purpose in coming up with seven
days was not as a measure of intent to permanently deprive
someone. "It had more to do with what we thought would be a
reasonable rental rate," he said. In many instances, kids take
a snow machine, drive it around, and leave it in a place where
it isn't found for seven days. It's not that they intended to
permanently take it; it just isn't found for seven days.
Number 0737
CHARLES KOPP, Vice President, Alaska Peace Officers Association,
testified by teleconference. He echoed previous testimony that
there is a hazard in carving out a special exemption for
vehicles. Prosecutorial discretion is very important,
especially when dealing with youngsters who have no previous
record of criminal mischief and with property that is recovered
basically undamaged. Also, it would be difficult to explain to
a victim why it takes seven days for the theft of a snow machine
to be considered a felony when that is not the case when other
property [other than a vehicle] is stolen. He said he thinks
adding the reference to seven days complicates the law
needlessly.
Number 0571
REPRESENTATIVE BERKOWITZ said he thought that raised a problem.
It is one of the rules of construction that if someone can be
charged for the same conduct under two different classes of
crime, then that person has to be charged under the lesser
degree of crime, "So going to Theft 2 isn't necessarily an
option," he added.
Number 0530
MR. GUANELI said:
When there are two statutes that cover the precise
same conduct, that does present some problems for
prosecutors. However, the court will look for any
difference between the two statues to interpret them.
In the theft statutes, if we are able to prove to a
jury beyond a reasonable doubt that there was an
intent to permanently deprive someone of their
property, that's a difference from the vehicle theft
statute where that level of proof is not required, and
we can choose to go under one or the other, depending
on the level of proof we've got. So I don't really
think that ... [the issue that Representative
Berkowitz raised] is an issue here ....
CHAIR ROKEBERG observed that it shouldn't inhibit the law
enforcement officers from prosecuting and fining the criminal
because the charge could vary depending on the circumstances.
Number 0405
MR. GUANELI said he thought that was right. There are a variety
of potentially overlapping statutes throughout the theft
statutes now, but there usually is some element in a case that
strongly suggests which statue is most relevant.
Number 0351
REPRESENTATIVE COGHILL made a motion to adopt the proposed
committee substitute (CS) for HB 102, version 22-LS0347\J,
Luckhaupt, 2/20/01, as a work draft. There being no objection,
the proposed CS, Version J, was adopted.
Number 0262
REPRESENTATIVE COGHILL offered Conceptual Amendment 1: "On page
1, line 12, after the word "incurs", put "or could have
incurred".
Number 0234
REPRESENTATIVE BERKOWITZ objected. He said he appreciated the
idea but thought Conceptual Amendment 1 was vague.
Number 0205
REPRESENTATIVE COGHILL responded to the objection, saying, "The
rest of the sentence spells out that it would be about $500
value loss, and he thought by rules of interpretation, that
would stay within that context."
REPRESENTATIVE BERKOWITZ maintained his objection.
Number 0159
REPRESENTATIVE OGAN recalled testimony that what could have
happened, rather than what did happen, was getting into the
civil area of the law.
CHAIR ROKEBERG defended the amendment based on the idea that an
action could have occurred but did not necessarily have to occur
to prove value.
CHAIR ROKEBERG declared a brief at-ease in order for the tape to
be changed. [Tape 01-21 stopped with approximately one minute
left unused.]
TAPE 01-22, SIDE A
Number 0001
CHAIR ROKEBERG called the meeting of the House Judiciary
Standing Committee back to order.
A roll call vote was taken. Representatives Meyer, Coghill, and
Rokeberg voted for Conceptual Amendment 1. Representatives
Berkowitz, Kookesh, and Ogan voted against Conceptual Amendment
1. Therefore, Conceptual Amendment 1 failed by a vote of 3-3.
Number 0092
REPRESENTATIVE MEYER again mentioned that $500 did not seem like
much money, and offered Conceptual Amendment 2, "that everywhere
we see $500 that it be $1,000", specifically on [page 1,] lines
11 and 13.
Number 0145
REPRESENTATIVE BERKOWITZ spoke in favor of Conceptual Amendment
2. He pointed out that the Criminal Justice Assessment
Commission (CJAC) recommended that the legislature double the
dollar amounts that define the levels of property crimes.
Conceptual Amendment 2 is consistent with that recommendation,
which was based on a review in the recent past.
REPRESENTATIVE MEYER added that changing the dollar amount gets
to the point that Representative Ogan had raised about somebody
stealing a junker car. Under Conceptual Amendment 2, the junker
would have a value of at least $1,000.
CHAIR OGAN noted that the junker would not be a car, but a kind
of propelled vehicle not including a car, truck, motorcycle,
motor home, bus, aircraft, or watercraft.
MR. WORTMAN, representing the sponsor of HB 102, deferred
comment to Mr. Luckhaupt.
CHAIR ROKEBERG asked Mr. Guaneli if Mr. Berkowitz's recollection
about the (CJAC) recommendation was applicable in this instance.
Number 0271
MR. GUANELI said he thought it would be applicable. However, he
thought the CJAC recommendation "was to double the felony
threshold for theft for all theft offenses, and that would mean
regular theft, criminal mischief, vehicle theft, et cetera." He
said he thought there was some danger in just increasing the
amount for one particular type of theft and leaving the others
at $500. He said he feared that the issue that Mr. Berkowitz
had raised about "similar conduct with similar consequences"
being covered under two separate statutes might apply. "You
damage a vehicle in the amount of $750, it's only a misdemeanor,
but you damage any other type of property in the amount of $500,
and it's a felony criminal mischief," he said. He suggested
what was needed was to comprehensively, across the board,
increase all of the dollar amounts.
MR. LUCKHAUPT said he had nothing he wished to add to the
discussion.
CHAIR ROKEBERG declared that Conceptual Amendment 2 was before
the committee. He said that notwithstanding Mr. Guaneli's
comments, he did not object to the amendment.
Number 0493
REPRESENTATIVE COGHILL objected, saying he thought the committee
should not increase the amount in this one instance, but, as a
matter of equity, should make the increase across the board.
CHAIR ROKEBERG took exception to Representative Coghill's
objection, "because we'd never get any bills out of this
committee if we did that."
REPRESENTATIVE OGAN asked if the maker of the motion [Conceptual
Amendment 2] wished to continue with the motion.
REPRESENTATIVE MEYER said he did wish to continue.
Number 0602
REPRESENTATIVE COGHILL maintained his objection.
A roll call vote was taken. Representatives Berkowitz, Kookesh,
Ogan, Meyer, and Rokeberg voted for Conceptual Amendment 2.
Representative Coghill voted against Conceptual Amendment 2.
Therefore, Conceptual Amendment 2 passed by a vote of 5-1.
Number 0650
REPRESENTATIVE OGAN moved to report HB 102, version 22-LS0347\J,
Luckhaupt, 2/20/01, as amended, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 102(JUD) was reported from the House
Judiciary Standing Committee.
HB 32 - SEX CRIME AND PORNOGRAPHY FORFEITURES
Number 680
CHAIR ROKEBERG announced that the next item of business before
the committee would be HOUSE BILL NO. 32, "An Act relating to
the forfeiture of property used to possess or distribute child
pornography, to commit indecent viewing or photography, to
commit a sex offense, or to solicit the commission of, attempt
to commit, or conspire to commit possession or distribution of
child pornography, indecent viewing or photography, or a sexual
offense."
Number 692
REPRESENTATIVE JOE HAYES, Alaska State Legislature, came forward
to testify as sponsor of HB 32. He said:
As the use of computers and the Internet expands, so,
too, do crimes involving the use of these
technologies. One area of particular concern is sex
crimes against children. Adults prone to abusing
children will use the Internet to solicit a minor for
sex or to set up a meeting with a child in order to
rape or abuse the child. Further, many people who are
inclined to distribute or view child pornography are
now using their computers to do so. These are new
technologies, and the state still has relatively few
tools for dealing with criminals using these
technologies. House Bill 32 provides us with another
tool to use in combating sexual predators.
Across the country and at the federal level, there are
forfeiture laws in place. Several other states
already have laws on the books specifically relating
to the forfeiture of computers used in sex crimes.
The use of computers in sex crimes is a national
problem. As more and more states pass forfeiture
legislation, it is becoming increasingly obvious that
this is a useful and valuable tool in the fight
against computer crimes.
House Bill 32 would make it possible for the police to
stay on top of this rapidly changing industry without
spending more state dollars. Advances in computer
technologies seem to happen on a daily basis. New
technology can often "outwit" last year's model
computers, leaving the police at a large disadvantage
in their attempt to curb crimes committed with the aid
of the newest technology. In order for the police to
combat computer and Internet crimes effectively, it is
imperative that they be constantly provided with new
hardware.
Under AS 12.55.015(c), the court may award forfeited
property or a percentage of it to any municipal law
enforcement agency involved in the arrest or
conviction of the defendant. This would allow for the
courts to pass on seized property to the police so
that the police can stay up to date with available
technology in a cost-effective manner.
HB 32 is designed to help protect our children in a
twofold manner: 1) forfeiture is a proven tool in the
fight against crime, and 2) the forfeited property can
be given to our law enforcement agencies in order to
help make sure that they have the necessary tools to
protect our children. I ask for your support in
passing this legislation.
Number 0856
REPRESENTATIVE HAYES presented letters of support for HB 32 from
the Anchorage Police Department, the Alaska Peace Officers'
Association, the Public Safety Employees Association, and the
Interior Alaska Forces, a forensic recovery computer evidence
specialist group in Fairbanks. He also provided background
information concerning recent sex abuse crimes in the Fairbanks
community and statewide involving the Internet. Representative
Hayes noted that there was a zero fiscal note and one letter of
opposition from the Naturalists Action Committee.
Number 0900
CHAIR ROKEBERG called attention to the lateness of the hour and
noted that there were four people on the teleconference line as
well as others whose testimony he would like to take that day.
He asked that questions be held to a minimum.
Number 0956
MARK T. MEW, Deputy Chief, Anchorage Police Department,
testified by teleconference. He said the Anchorage Police
Department favors HB 32. The department does a fair amount of
undercover investigation using computer equipment, and would
welcome the opportunity to acquire through seizures the tools
that perpetrators are using in order to use it against them.
Number 0997
REPRESENTATIVE MEYER recalled that the Anchorage assembly had
run into "all sorts of problems" in relation to a forfeiture
ordinance. He asked how HB 32 differs from that.
MR. MEW said the forfeiture ordinance attempted in Anchorage
applied to certain felony activities and to some misdemeanors in
the area of vice crimes. Some of the objections revolved around
whether the police would seize property if someone were arrested
as opposed to if someone was convicted. He noted that under HB
32, conviction is required. Another objection revolved around
who was going to provide oversight, monitoring law enforcement
zeal for acquiring equipment. He did not think it was fully
understood at that time that the answer was the court system,
which is involved in either an arrest or a conviction. That is
probably less of an issue in HB 32 because conviction is
required.
Number 1100
REPRESENTATIVE COGHILL noticed that on page 1, line 9, it says,
"used to aid in a violation." He added: If somebody misused
his equipment, would he have to give it up.
MR. MEW said that was what the wording says, but he assumed it
would be up to the police department and the prosecutors to
determine at what point it was legitimate to invoke
[confiscation], and the court would have to agree.
Number 1206
ROSS PLUMMER, Police Officer, Anchorage Police Department,
testified by teleconference in support HB 32. He has dealt with
numerous forensic cases as well as child pornography cases on
the Internet. "These people are serious about the business
they're in and that is to harm children," he said. He noted
that [offenders] have their own equipment and usually do not
risk exposure by using somebody else's.
Number 1239
REPRESENTATIVE OGAN asked Mr. Plummer if he would object to
changing the language of HB 32 to make sure the equipment is
owned by the person who perpetrated the crime.
MR. PLUMMER that there are mechanisms used by the prosecutors
and the court system in determining whether equipment will be
seized.
Number 1274
CHAIR ROKEBERG noted that there had been a request to exclude
indecent exposure in the second degree (a class B misdemeanor)
from the provisions of HB 32. He asked Mr. Plummer if he
thought it would be appropriate to include or exclude indecent
exposure.
MR. PLUMMER said he considers indecent exposure to be a
different type of crime "than what we're talking about with the
use of the Internet and computers as a crime." Indecent
exposure doesn't seem to him to fall into what he sees as the
intent of HB 32.
CHAIR ROKEBERG asked if in connection with the Internet, he had
ever charged anybody with indecent exposure in the second
degree.
MR. PLUMMER said he had not.
Number 1340
MARC POESCHEL, Police Officer, University of Alaska Police
Department, testified by teleconference in support of HB 32. He
explained that the Interior Alaska Forces group was formed to
combine forces against Internet predators and computer
criminals, and to provide training and assistance to those sworn
to protect. He commented on the issue of confiscating property
that does not belong to the person convicted. When someone
frequently violates the law while using a computer that is not
his or her own, (in an Internet cafe or a business that provides
access to the Internet), he thinks it is important to maintain
the avenue of forfeiture for the business as well. House Bill
32 will make a big difference to the Interior Alaska Forces
group because it lacks funding in many areas. Computers and
training are so expensive that it is very difficult to stay
current, and being able to confiscate computers used by people
who perpetrate crimes against children would make it much easier
for police to try to keep up.
CHAIR ROKEBERG recalled that a few years back there was a case
at the University of Alaska - Fairbanks involving an employee
using a university computer while trafficking in child
pornography. He asked Mr. Poeschel if he thought the
university's computer should have been confiscated.
MR. POESCHEL said he thought the courts would have to determine
whether forfeiture would be appropriate. In a situation in
which equipment is used repeatedly for that type of crime, he
thought that confiscation should not be ruled out. However, he
thought HB 32 is aimed more toward those who use their own
computers.
Number 1519
JAMES WELCH, Chief of Police, Fairbanks Police Department,
testified by teleconference in support of HB 32. He told
members that pornographic use of the Internet is a big issue
throughout the nation and in Alaska. Fairbanks has followed
Anchorage in passing a forfeiture bill allowing the seizure of
vehicles being driven by those under the influence of alcohol or
drugs. There are state and federal protocols regarding
forfeiture in drug-related cases and other criminal offenses,
and he thinks HB 32 "somewhat mirrors those efforts." There is
always concern about law enforcement depriving someone of
property, he said, but with the ability of the court system and
the prosecutor's office to work out those issues and the system
of due process in place to protect an individual's rights, he is
comfortable with HB 32 as written. He said he thinks it sends a
message that these crimes will not be tolerated.
CHAIR ROKEBERG asked Mr. Welch what he thought about including
or excluding reference to indecent exposure in HB 32.
MR. WELCH agreed with previous testimony that as a rule, the
people involved in indecent exposure cases are not those
involved in child pornography.
Number 1547
REPRESENTATIVE BERKOWITZ observed, "It may well be that you wind
up with a reduced charge as part of a negotiated settlement to a
case, in which instance you might also want to retain the
ability to forfeit the instrumentality."
MR. WELCH added that the prosecutor's office needs broad
outlines to effectively manage any statutes.
Number 1690
JENNIFER RUDINGER, Executive Director, Alaska Civil Liberties
Union (AkCLU), came forward to testify. She commended the
sponsor of HB 32 for requiring conviction prior to forfeiture.
In a number of states, that has been a problem. The ACLU
recognizes a legitimate need of law enforcement to keep pace
with computer technology and to protect children, she said, and
applauds the sponsor for having that as the rationale for his
bill. The AkCLU is happy with the fact that this is a
discretionary forfeiture and that forfeiture is not mandatory
under the statute.
MS. RUDINGER continued:
However, we do see a number of points, three points
primarily, where the statute is subject to a challenge
on the grounds of "overbreadth," in other words, that
it reaches too far and it goes beyond what the sponsor
probably intends for it to do. First of all, the
statute appears to apply even to rudimentary equipment
like cameras, a darkroom, binoculars, anything that
could be used to commit these crimes. It does not
necessarily in the statute specify that it has to be
high-tech equipment. So the AkCLU would urge some
sort of an amendment clarifying that there should be
an adversarial preliminary hearing prior to forfeiture
to determine whether in fact law enforcement needs the
property in order to keep pace with technology, which
seems to be the sponsor's intent.
Second, there seems to be no requirement in here that
the equipment seized must be owned by the person
convicted, and we agree with Representative Ogan, who
raised this point. If a kid is staying at his
grandma's house, are we going to go and seize
Grandma's computer? If an employee is using his
employer's computer, are we going to storm into
businesses and take computers? There is nothing in
the bill that specifies ownership is required, and we
would strongly urge that ownership should be a
condition precedent to forfeiture.
Finally, the third point we have in terms of
overbreadth is that it doesn't seem for purposes of
helping law enforcement keep pace with technology that
a permanent forfeiture is warranted. There may be
other legitimate uses, for example, for a hard drive.
Maybe other people in the household use that for work
or for a livelihood, and it seems to me that perhaps
the forfeiture could be temporary so that law
enforcement could learn about the technology but that
there is not a legitimate government interest in
saving money by taking citizens' property in order to
not have to buy it themselves.
MS. RUDINGER mentioned that the United States Supreme Court has
accepted a case that asks the question, "Is it a crime at all to
view digital imagery of children where no real person was the
subject of the image?"
MS. RUDINGER volunteered that the AkCLU will be happy to work
with the committee on crafting some narrowing amendments to
protect HB 32 from an overbreadth challenge.
Number 1950
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, came
forward to testify. He noted that there are some general
principles of law that relate to forfeiting property that is not
owned by the offender. The primary concept is deprivation of
property without due process of law. The owner of the property
has a right to be heard in court, and if that person can show
that he or she did not know of the violation and had no reason
to know of the violation, it would be unconstitutional to take
that person's property. That even would apply to someone else
within the family.
MR. GUANELI said in addition, there also has to be some finding
by the court that this property was used to aid a violation of
the law. He concluded that even though it isn't specifically
stated, there are sufficient procedures established in case law
to protect innocent owners from having their property taken.
CHAIR ROKEBERG asked if it was unnecessary to speak to that in
HB 32.
MR. GUANELI said he thought it is always better to set things
out specifically in statute. There are forfeiture provisions
scattered throughout the statutes, and it might be good at some
point to have a definitive forfeiture procedure set out
somewhere in the law. Up to now, it has bean dealt with by case
law.
CHAIR ROKEBERG wondered if it would be appropriate to say that a
finding [regarding forfeiture] would be made at the sentencing
hearing.
MR. GUANELI said he didn't think that was necessary.
Number 3331
CHAIR ROKEBERG noted that there were several suggestions for
amendments and that the meeting time was running out. He wanted
to hold the hearing open in case someone else wants to speak to
HB 32. He proposed to work with the sponsor and the committee
aide to come up with a committee substitute and asked for
suggestions to guide the drafting.
Number 2255
REPRESENTATIVE BERKOWITZ suggested an amendment limiting
forfeiture to property that is an instrumentality of the crime.
That would mean property that's not just used in the commission
of the crime, but that is directly and materially contributing
to it. The language of "direct and material contribution" comes
from a Michigan statute, he noted, which is included in the
packet. There is always a concern that the state may take more
than is proportionate to the crime. "Direct and material"
linkage assures that the seizure of property is proportionate.
CHAIR ROKEBERG said he thought HB 32 should limit forfeiture to
electronic type property, which is the thrust of the bill.
REPRESENTATIVE BERKOWITZ cautioned, "Once you get into that area
of specificity, then you take away the discretion ...."
CHAIR ROKEBERG said he would like to see the bill as specific as
possible, keeping in mind Representative Berkowitz's concern.
Other issues that needed to be addressed in relation to
confiscation were the ownership of the property and whether the
property is going to help law enforcement. He also wanted to
make sure real property is excluded, so that houses are not
confiscated. He still did not know what to do in response to
the nudists' objection to including nude sunbathing, he said.
He asked the sponsor of HB 32 to bring back a revised version of
the bill to consider as a CS. [HB 32 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:09 p.m.
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