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In Retrial of We Build The Wall Case Shea Counsel Cites Aaron Judge, US Didn't hit Home Run

By Matthew Russell Lee, Patreon
BBC - Guardian UK - Honduras - The Source

SDNY COURTHOUSE, Oct 27 – The Southern District of New York courthouse, which Inner City Press has covered nearly alone this summer amid the COVID-19 pandemic, was jumping on August 20, 2022 Video here.  In the afternoon, Steve Bannon would appear in person before a judge. After pleading not guilty, he told the press as he left the courthouse, "This entire fiasco is to stop people who want to build the wall."

This came after more than two hours of chanting by three then six people with flags, pro-Bannon: "CCP violence, stop the killing." Inner City Press spoke with them, video here.

And see coverage of Guo case here, podcast here

 On August 31, 2020 U.S. District Court for the Southern District of New York Judge Analisa Torres held a proceeding, and Inner City Press live tweeted it, below.

On June 7, 2021 Judge Torres declared a mistrial on all three counts. Inner City Press live tweeted it here and below.

In the re-trial, Shea has said he will call Kolfage, who pleaded guilty, as a witness. The US replied it would allocute Kolfage as to his Fifth Amendment privilege. The US letter says, "At the end of the trial day yesterday, defendant Timothy Shea confirmed on the record he intends to call co-defendant Brian Kolfage as a defense witness." US letter on Patreon here.

At the end of the trial day on October 26, Shea's counsel Meringolo said on October 27 Kris Kobach will be ready at 9 am, then Kolfage for 10 or 15 minutes. He added, theatrically, that the US could cross him for 10 hours if they want. Of course, they accepted his guilty plea.

On October 27, before 1 pm, Meringolo gave his summation. It was folksy, with yellow Post-it notes and a number of "you guys" references to the jurors. He said Shea deserved to be paid for his work, and a "splash page" didn't mean a ruse. He finished with a reference to the NY Yankees' Aaron Judge, so recently eliminated from the MLB playoffs. He said, a home run has to go over the wall, "over the right field line." And, he said, the prosecutors did not hit a home run. What will the jurors, as umpires, think?

The prosecutors, for their part, said "This was not about real work, it was about conning real people out of real money.... this was not cause — it was a con." And then the jury got the case. Again. Watch this site.

On October 25, 2022 after a defense opening argument that again questioned venue or what we're calling "District-shopping," the US again put on the stand a witness from Synovus Bank. Inner City Press live tweeted  here:

OK - now in We Build the Wall re-trial of US v. Shea, US again puts on executive of Synovus Bank, which banked for WBTW and dealt with Kolfage. 

Assistant US Attorney asks: After you got the subpoena from the Southern District of NY, what did you do?

Billue: I told We Build the Wall. Then I read the warning about not disclosing the info.

Synovus' Billue:  Then I reached out to Synovus' legal department, 20 minutes after I spoke to Rich Kaye. "I full disclosed my error to the bank."

 A response back from the bank saying "No worries." [What did the Federal Reserve ever do about Synovus?]

AUSA: Did you end up speaking with the government?

Billue: Yes. With my attorney present. 

AUSA: Are you testifying under an immunity order? Synovus' Billue: Yes. It protects me from incriminating myself.

 AUSA: Nothing further.

 Cross examination.

Shea's lawyer John Meringolo: Mr. Kaye is a lawyer in Georgia, right? Synovus' Billue: Yes. 

Meringolo: Let's pull up Gov't Exhibit 551, the subpoena.  AUSA: It would be helpful to have a sidebar. [Whispered sidebar ensues]

 Meringolo: Do you still work for Synovus Bank? Billue: Yes. Meringolo: Do you know if Synovus Bank was ever fined for this?

Billue: I do not know.

Update: In the US v. Shea gallery, there's a guy who was present for the first trial, too. At defense table, Shea flips through print-outs of US exhibits, which are *still* being run by jurors: City National, Capital One, Wells Fargo, US Bank...

Update II: With jury done for the day, Judge Torres asks Assistant US Attorney when the US will rest its case. Thursday morning, the AUSA says.

NOTE: Shea has sadi he intends to call Brian Kolfage as a defense witness. The US wants to allocate him on waiving his 5th Amendment privilege against self-incrimination, despite his guilty plea....

Back on October 12, Judge Torres held a final pre-trial conference for the re-trial. Inner City Press covered it. Judge Torres ruled that Shea cannot bring up to the jury the pardon of Steve Bannon, and that the first trial can only be referred to as "a previous proceeding," and only in connection with cross-examination.

 The AUSA said on the 24th they'll want to allocute Shea on his awareness of a plea offer that was apparently made between the first and second trials.

Late on October 18 there was a hastily scheduled conference in the case. Inner City Press covered it: Shea's lawyer says the US has exculpatory evidence.

Judge Torres: Are you saying Bannon's lawyer told you that?

Shea's lawyer says it was a lawyer for We Build the Wall that said there's exculpatory evidence, but can't give it due to protective order. Judge

Torres: You're going to have to tell me more. And the stipulations in the first trial stand, and are binding. Good evening.
Watch this site.

On June 9, Judge Torres set the re-trial: "ORDER as to Timothy Shea: Trial in this matter shall begin on October 24, 2022, in Courtroom 15D of the United States Courthouse, 500 Pearl Street, New York, New York 10007. Accordingly, 1. The parties shall submit any additional motions in limine by August 22, 2022. Opposition papers are due by August 29, 2022. 2. The parties shall submit any proposed revisions to the voir dire questions, requests to charge, or verdict forms by August 22, 2022. For any proposed voir dire question, request to charge, or section of the verdict form on which the parties cannot agree, each party shall clearly set forth its proposal and briefly state why the Court should use that question, charge, or verdict form section, with citations to supporting authority."

On August 22, Shea asked to change venue, specifically citing the views of Juror Number 4. A footnote added, "After a mistrial was declared, it then became known that the other jurors wrote this note outside the presence of the singled out juror, and possible outside the courtroom as well."

On September 13, after Steve Bannon was indicted and arraigned in New York State court (Inner City Press covered it), Shea's counsel renewed his request for moving the Federal retrial to Colorado. He noted that Bannon cited NYC Mayor Adams and was met by "protesters" -- Inner City Press live streamed there from Baxter Street, and might use The War Room. He did not mention that Judge Rakoff in another case said he may ask Judge Torres to change in the timing of the Shea retrial, to free up the AUSA and comply with a Speed Trial Act request in US v. Smith.

On September 19, 2022, Judge Torres denied all of Shea's motions: "Defendant, Timothy Shea, moves1 for an order (1) transferring the venue of this action to the District of Colorado, ECF No. 267; (2) suppressing certain evidence produced by the Government on August 19, 2022, or, in the alternative, granting a trial continuance, ECF No. 269; (3) disqualifying Assistant United States Attorney (“AUSA”) Robert Sobelman from participating in Shea’s retrial, which is scheduled to commence on October 24, 2022, ECF No. 271; and (4) adjourning trial because of a scheduling conflict created by defense counsel, ECF No. 281... Shea’s motions are DENIED." We'll have more on this.

From June 7: In We Build the Wall trial of US v. Shea, jury sent sent a note that despite trying, and going "granular," they are farther apart then ever.  Judge Torres: I'm prepared to declare a mistrial.

 AUSA: Give us a moment to confer.

AUSA: Your Honor, they jury said they have narrowed. We want to make sure if they have reached a verdict on, say, Count 3. We ask that you clarify. Judge Torres: I'll make the inquiry. Have the jurors brought in.

Jury entering! Judge Torres: Jurors, you have written to me that "We have gone into granular detail.. It is clear we are even further entrenched in our different views." I need another note, if you can reach a verdict on some of the counts. Send me another note.

 Judge Torres: I have another note: "We cannot reach a verdict on any of the three counts." I'm going to declare a mistrial.

And she did. Afterward in the hallway outside the courtroom Shea's lawyer Meringolo told the Press, "We respect all jury verdicts - win, lose or hung." Then outside, a big a video here & stills.

On June 2 during jury deliberations some jurors sent out a note that they want Juror [X] removed for political bias. They quoted him saying, among other things, that the case is a government witch hunt.

With the issue coming to the fore before a verdict (than than after, as with Juror 50 Scotty David in the Ghislaine Maxwell case), the possibility of a mistrial seemed in the air.

Inner City Press live tweeted the afternoon's courtroom interchanges, here and below.

On June 3, after the Allen charge... nothing. Or, a few notes. Juror X, it appeared, was back to asking questions. And they would returned on Monday, June 6.

  On  June 6, after a full day, nothing. At 5 pm Judge Torres summoned the jurors back in and said, come on tomorrow. Outside of their presence she told the lawyer that on June 7 she will use her courtroom for three sentencings and a conference. Things are moving on, but still no verdict...

The June 3 thread:

Judge Torres: We have another note from the jury. I received it at 10:42 am. We request print out of all bank statements- it will be easier than on the TV screen. [So Juror X *is* deliberating. What was said in the robing room? Inner City Press' application is in]

Note: After yesterday's fireworks, 11 jurors wanting Juror X to be dismissed, then the Allen charge, many of those following this trial expected a more dispositive note this morning. But it's back to requests for copies of evidence. This could take a while.

 Now 12:25, Judge Torres: I have received note 5 from the jury, it came in at 12:10. We need clarification about falsification of documents. Is there a document between Shea and Kolfage about purchase of email list? [11 jurors trying to convince Juror X?]

 AUSA returns to say Shea jury's question may be hypothetical rather than factual. Judge Torres: Are you suggesting that I re-read them the instructions? AUSA: No objection to that... Meringolo: I object to any testimony going back that they didn't request.

Jury entering! Judge Torres: We are printing out documents for you. On your 2d question, there was only one witness who testified as to the existence of documents and that was Andrew Crane - I can offer you his testimony.

 Now AUSA is opposing Shea's motion for a mistrial, based on the questions Judge asked Juror X yesterday - in the robing room. Why was that done behind closed doors? Where is the transcript? Inner City Press cited Supreme Court caselaw on right to access voir dire

Meringolo's motion for mistrial includes that "Juror _'s identity as the lone holdout juror has been made public in Internet postings" [!] - note that the number and first name were read out in open court -  Now Judge Torres denies the motion for mistrial.

5PM in the courtroom in We Build the Wall trial - no verdict

From June 2: Judge Torres: The defense does not want me to ask the juror any questions. 

Defense lawyer Meringolo: We are requesting a mistrial. The secrecy of deliberations has been violated. This individual is being singled out and targeted [The prosecutors want the juror to be asked if he is biased. Wag: Why didn't they ask him more during voir dire?]

Merigolo: They are trying to bypass the deadlock. This individual is questioning venue and the US' evidence.

 Meringolo: It should be a mistrial because they disclosed way more than they should have. Or we should bring them all out and give them an instruction before we question this particular juror. AUSA: This juror may be violating his oath.

AUSA: We are not asking you to dismiss the juror, now. We are asking you to ask him questions. No mistrial is necessary. Merigolo: Juror 4 has accused all 11 jurors of having a verdict before the evidence was presented.

Judge Torres: It doesn't say what verdict. Juror Torres: I'll call the jury in and read them their note. I'll take the juror, and the lawyers, into the robing room. [That is, non public...] I'll ask him, Do you have any biases? What are they? What is the origin of these views?

Judge Torres: I'll tell him, You are required to consult with the other jurors. Without saying anything about the deliberations, can you follow those instructions? Bring the jury in. Meringolo: We object. Jury entering!

Judge Torres: Here is your note: We the jury have requested that X be replaced for the following violations of oath -- AUSA: Objection! Judge Torres: Sidebar. [White noise is turned on.]

 After long sidebar with white noise: Judge Torres: I'm going to ask the alternate jurors to leave, but stay in courthouse. Continuing: Anti-government bias. Should have been tried in a Southern state. Also said, "Tim Shea is a good man. He doesn't beat his wife."

 Judge Torres: Your note says he is unable to comprehend the charges. Juror claims other jurors are readily convicting him and shows the hangman noose (?) Juror bring topics outside of evidence. Political parties conversations. These items we have all confirmed

Judge Torres: I'm going to excuse the other jurors back to the jury room. Do not deliberate until I tell you to.

[After Judge Torres, the juror & lawyers disappear into the robing room - & Inner City Press submits a request for access - they're back] Judge Torres: I am sending them back in deliberate. I'll let you know if we get another note. [And on the request for access?]

 Inner City Press' request says "“[T]he right to attend criminal trials is implicit in.. the 1st Amendment,” Richmond Newspapers v. Virginia, 448 U.S. 555. It extends to the examination of jurors. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501.

 Now Judge Torres is calling the jury back in, to give them the Allen charge. Meringolo: We ask for a mistrial now. The juror at issue may be reached out to overnight. Judge Torres: I'm going to read the charge. Jurors, I understand you cannot reach a verdict

 Judge Torres: I'm going to ask you to continue your deliberations. You were selected to serve. Both sides were convinced each of your would be fair. I continue to have confidence in you. You took an oath. You are not to be guided by political issues.

 Judge Torres: I'm asking you to continue to deliberations with an open mind. Start with a fresh slate. But you may stand your ground. Be honest. I know it can be difficult. Please continue. I will excuse you for the day. 

[Where's transcript of Q&A with Juror X?]

Watch this site.

On April 21, 2022 Brian Kolfage and Andrew Badolato appeared before Judge Torres in order to plead guilty. Inner City Press live tweeted it here and below

On May 6, Judge Torres held a pre-trial conference for co-defendant Shea; Inner City Press live tweeted it, here and below.

 On May 24 the trial began with opening arguments, which Inner City Press live tweeted here and below.

On May 24, after defense lawyer Meringolo argued again to keep out evidence of the SBA loan to Rand Property Marketing and Management, the jury came in at 9:43 am and Inner City Press live tweeted the US witness Ward, here.

On May 31, there were the closing arguments, which Inner City Press live tweeted here:

Assistant US Attorney: The defendant Tim Shea lied that no money went to Kolfage... There was money laundering by layering, and use of round-number transactions.

 AUSA: Half the money that was supposed to go to drone services went to Kolfage, the other half to the defendant. It was just a way of laundering money.

 AUSA: They learned about the Grand Jury subpoena and quickly created two back-dated contracts, with Synovus Bank...

 AUSA: Synovus' banker immediately passes the information to Kolfage and Bannon about the subpoena, exactly what is being requested.

[Press question: did the Federal Reserve and other bank regulators ever do anything about this, as to Synovus Bank?]

 AUSA: As to venue, they raised money from people in the SDNY. And Bannon came and stayed here, in the Loew's Hotel.

After a break, Shea's lawyer Meringolo  is set to make his closing argument. But first, before the jury comes back in, he complain that a government exhibit he was going to use has in fact not been put into evidence. Judge Torres: That's not bait and switch

Jury entering!

Meringolo starts with a joke about Diet Coke. Then: "There are two sides to every story." On cross examination, the evidence wasn't so clear. That's what reasonable doubt is.... Common sense equals reasonable doubt, which equals not guilty.

Meringolo: I'm not necessarily blaming the H&R Block guy. Maybe he was working fast and that's why no deduction was requested. Use your common sense when you look at the bank records.

Meringolo: Tim Shea can't make money? It's money laundering? If you were building a border wall, you too would want to limit your liability.

Meringolo: We're New Yorkers, we use our common sense - when you're getting kick backs, it only goes one way. That's just real life experience.

 Meringolo: Steve Bannon wouldn't have anything to do with building the border wall. He was there was his executive protection.

Now US rebuttal summation. AUSA: From defense counsel, you didn't hear much about the evidence. He's fighting for his client, passionately. But this case is about the evidence. Let's look at the defendant's interview with the bank

AUSA: It's not a defense to money laundering to say, I lied to the bank too.... He's using money to buy energy drinks, he's taking two and a half times more than the military people they had guarding the wall. He's dishonest. He paid kick backs.

AUSA: Just because they did some work doesn't mean it wasn't a shell company. You'll hear about the law from Judge Torres.

AUSA: Don't be persuaded by running around, yelling... People trusted in people like Tim Shea, that they couldn't steal money. But they did. Judge Torres: Jurors, it's lunch time. Then you'll hear my instructions on the  law. [We'll cover trial to verdict, here]

From May 24: OK - We Build the Wall trial opening argument begin.

Assistant US Attorney Moe: There was a GoFundMe fundraiser called We Build the Wall. They said the money would go to the government, to build a wall. Kolfage was the face of the operation; the defendant and his wife did the work behind the scenes.

AUSA Moe: But the government could not take the GoFundMe money. So they set up a non-profit. This case is not about whether there should be wall on the southern border of the US. They did built segments of the wall. But they also stole money from the organization

AUSA Moe: Invoice, payment, kickback. Again and again. We Build the Wall was a victim too. Defendant learned we prosecutors here in Manhattan had asked for their bank records. A bank employee told them by mistake. So the defendant signed a fake contract.

AUSA Moe: So please pay close attention to the evidence. Listen to Judge Torres. Use your common sense. If you do, at the end you will reach the only verdict you can: the defendant is guilty.

Judge Torres: Now, the defense.

Shea's lawyer John Meringolo: We're New Yorkers. Maybe we don't want a wall on the southern border. But that's not what this case is about. "Shell company" is a loaded word. Where is the specific intent? They met Steve Bannon, said, we should do a charity.

 Maringolo: Write down this name: attorney Richard Kay. He's the lawyer for the non-profit, at a major firm. Not like me who works out of my basement [Docket: Meringolo & Associates, 375 Greenwich Street, Floor 7]

 Meringolo: They built TWO walls. One in New Mexico, the Army Corps said it would cost $41 million and take two years. They did it in 17 days for much less. Maybe we should hire them to build our roads in New York.

Shea's lawyer Meringolo: They did security events in Detroit. In Cincinnati. The southern border is dangerous.  The government is going to present a chart of who called show on October 10 - Bannon called Kay, Tim called his wife. So what?

Shea's lawyer Meringolo: So Tim got paid. So what? You're never going to here Tim Shea he doesn't want to get paid for work he does, especially on the southern border. It's dangerous.

 Shea's lawyer Meringolo: I only learned who Erik Prince is a few days ago. He is a billionaire. Meanwhile my client is swearing in text messages. When he said, we go to jail, he meant for a lack of construction permits.

Shea's lawyer Meringolo: If I do my job, you will vote not guilty. And on the way home on the train you'll say, That wasn't nice what they did to Tim Shea. Thank you.

Back on May 6: Judge Analisa Torres says his communication with his wife can be admitted at trial.

Judge Torres: Defense requests that the US not be able to put in evidence of not paying taxes, calling it irrelevant. The US argues not reporting income from We Build the Wall is relevant. I rule that the evidence may be introduced.

 Assistant US Attorney: We don't want the jury to hear about his children, or his faith.

Shea's lawyer: We want the jury to know that he lives in Colorado and that's why his family is not in the gallery. AUSA: We want no reference to Mr. Bannon's pardon.

Shea's lawyer: We will not reference Mr. Bannon's pardon unless Mr. Bannon testifies.

AUSA: He was offered a plea deal in March 2022. We'd like him allocuted to that.

Judge Torres: I like to do that in person.  Adjourned

From April 21: Judge Analisa Torres: You wish to plead guilty? Kolfage: Yes. Badolato: Yes. Judge Analisa Torres: I must then ask you some questions. How far did you go in school?

Kolfage: Bachelors in architecture in Arizona. 

Badolato: I had a drink last night with dinner, about 7 pm. I have a couple of heart stints, I had a heart attack six or seven years ago. Judge Torres: Sorry to hear that. Is you mind clear? Badolato: Yes, ma'am.

AUSA: They are charged with wire fraud... Judge Torres: Did you willingly sign the plea agreement?

Kolfage: Yes.  Judge Torres: How do you plead? Guilty. Kolfage: In 2018 I created We the People Build the Wall. I meant to give the funds to the government.

Kolfage: It became clear we could not earmark the money only for the wall. So we created a non-profit. I continued to raise funds. I said I would not be compensated. We did construct in New Mexico. But I received money, including from within the SDNY

 Analisa Torres: You told the public you would build the wall, and not take money, right? Kolfage: Right. Analisa Torres: But you kept the money, right? Kolfage: Yes.

AUSA Roos: We have bank records, social media posts, iCloud account returns...

AUSA Roos: Mr Kolfage was quoted, "They Michael Flynn-ed me." Can you ask him if he is pleading voluntarily? Judge Torres: Is this voluntary? Kolfage: Yes.

Badolato: I know that we were paying Mr. Kolfage. I am very sorry and ask the court for mercy.  Judge Torres: You got money too, right? Badolato: I was paid by We Build the Wall.

Judge Torres: I accept the guilty pleas and set sentencing for September 6, 1 pm in NYC.

Back on December 27-28 in the case, We Built The Wall and Kris Kobach appealed: "Notice is hereby given that We Build the Wall, Inc., and Kris Kobach, nonparty movants in the above-captioned case, hereby appeal to the United States Court of Appeals for the Second Circuit from an Order denying their Motion to Modify a Post-Indictment Restraining Order, entered in this action on December 14, 2020."

On May 5, 2021 Judge Torres denied the request without prejudice: "ORDER - Defendant Brian Kolfage moves for an order modifying the post-indictment restraining order issued on August 24, 2020, which prohibits the transfer of certain funds involved in his charged offenses (the "Restraining Order"), ECF No. 64. Alternatively, he requests a hearing to challenge the Courts finding that there was probable cause for the issuance of the Restraining Order, ECF No. 77. For the reasons stated below, Kolfage's motions are DENIED without prejudice. By May 19, 2021, Kolfage may submit evidence demonstrating that he meets the threshold for a Monsanto hearing, along with a motion to seal the affidavit from the public if desired.... By May 19, 2021, Kolfage may submit evidence demonstrating that he meets the threshold for a Monsanto hearing, along with a motion to seal the affidavit from the public if desired."

On May 6, "LETTER by USA as to Brian Kolfage addressed to Judge Analisa Torres from Assistant United States Attorney Robert B. Sobelman dated May 6, 2021 re: United States v. Brian G. Kolfage, 21 Cr. 29 (MCR) (N.D. Fla.) Document filed by USA. (Sobelman, Robert)." The charges are "tax related."

On July 21, 2021, Judge Torres held a proceeding leading up to a trial scheduled for November 15. Inner City Press live tweeted it here:

Assistant US Attorney reports on discovery and says, "Let's set a motion schedule." Judge Torres: Mr Steinberg (represents Kolfage), do you plan motions?

Steinberg: We ask for 60 days after the last drop of discovery. Judge Torres: That's an awfully long period of time.

 AUSA Roos: The government's view is that the remaining materials should not delay a motion schedule. The defendants already have the search warrants, and can make suppression motions; they have the indictment and can make motions to dismiss.

 AUSA Roos: The proposal by counsel for Mr. Kolfaaage would delay the trial. Steinberg: How about 45 days from today for motions?

 Judge Torres. No. That's also just too long -- Steinberg: We are doing back to back trials because so many cases have been continued

 Steinberg: We're having trials every day, I'm on trial 4 weeks in a row, 2 trials a week.  Judge Torres: When do you start?

Steinberg: I have two next week. Judge Torres: When do you expect to be finished?

Steinberg: The state hasn't had trials in a year.

 Steinberg: Next week I have an NFL player who hasn't been able to play for a year, because of no trial.

 Judge Torres: Aug 30 for motions... Motions in limine and voir dire by Oct 18... We have a Nov 15 trial date but I am not in control, it's now 100% certain.  Judge Torres: We are adjourned

   On February 9, 2022, with still no trial, this: "ORDER as to Brian Kolfage, Andrew Badolato, Timothy Shea. The current COVID-19 trial protocols in place in the Southern District of New York do not permit the Court to hold a three-defendant criminal trial. The Court, therefore, intends to hold two separate trials in this matter, and shall utilize the centralized calendaring system for jury trials to request two trial dates for the second quarter of 2022. Accordingly, by February 14, 2022, at 12:00 p.m., the parties shall submit a joint letter proposing whom should be tried together and whom should be tried alone."

But the COVID situation is lift in SDNY. On March 8, 2022: "ORDER as to Brian Kolfage, Andrew Badolato, Timothy Shea: On December 7, 2021, the parties provided their availability for trial in the second calendar quarter of 2022. The Court requested a jury trial based on the parties' availability. The Clerk's Office has notified the Court that this case has been scheduled as the primary back up case for May 16, 2022. The case will proceed if the primary case does not go forward. Moreover, because there is a strong possibility that multiple juries will be selected on any given date, this trial will likely go forward even if the primary case goes forward. The case must therefore be trial ready on May 16, 2022. As soon as the Court confirms whether the matter will proceed on May 16, 2022, it will inform the parties." Watch this site.

The overall case is US v. Kolfage et al., 20-cr-412 (Torres).


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