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United States v. Totoro

United States District Court, E.D. Pennsylvania

July 27, 2017

JOSEPH P. TOTORO, II, Defendant.


          GERALD J. PAPPERT, J.

         On June 25, 2015, Joseph P. Totoro, II was indicted by a federal grand jury on eight counts: production of child pornography in violation of 18 U.S.C. § 2251(a), (e) (count one); enticement in violation of 18 U.S.C. § 2422(b) (count two); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (counts three & four);[1] transfer of obscene materials to a minor in violation of 18 U.S.C. § 1470 (counts five & six); possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) (count seven); and blackmail in violation of 18 U.S.C. § 873 (count eight). (ECF No. 15.) Trial begins July 31, 2017. Totoro and the Government have filed numerous pretrial motions and this Memorandum explains the Court's reasoning in support of its decisions, reflected in the accompanying Order, on each of them.


         Rule 12(b) of the Federal Rules of Criminal Procedure provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b). “However, the scope of a district court's review at the Rule 12 stage is limited.” United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012). “[A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence. The government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29. There is no criminal corollary to the civil summary judgment mechanism.” Id. (quoting United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir. 2000)). “In evaluating a Rule 12 motion to dismiss, a district court must accept as true the factual allegations set forth in the indictment.” Id. (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990)). “Evidentiary questions-such as credibility determinations and the weighing of proof-should not be determined at this stage.” Id. (quoting United States v. Bergrin, 650 F.3d 257, 265 (3d Cir. 2011)). “Thus, a district court's review of the facts set forth in the indictment is limited to determining whether, assuming all of those facts as true, a jury could find that the defendant committed the offense for which he was charged.” Id. at 595-96 (citations omitted).


         On July 7, 2017, Totoro filed five motions seeking dismissal of some or all of the counts against him on various grounds, among them alleged defects in the indictment, insufficient evidence, Brady violations and unconstitutionally vague statutory language. See (ECF Nos. 135, 136, 137, 138, 141). The Government filed its Responses on July 14, 2017. (ECF Nos. 147, 148, 154.)

         A. ECF No. 135

         In ECF No. 135, Totoro contends that the indictment must be dismissed in its entirety because it does not contain sufficient factual allegations to support the Government's contention that he committed the charged offenses and the grand jury was not properly instructed on the elements of the offenses. (Def.'s Mot., at 4-9, 11-13, ECF No. 135.) The Court addresses each argument in turn.


         Rule 12(b)(3)(B) permits a criminal defendant to move for the pre-trial dismissal of an indictment as defective if it, inter alia, lacks specificity or fails to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(iii), (v). Federal Rule of Criminal Procedure 7(c) outlines the statutory requirements for a grand jury indictment:

The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government. It need not contain a formal introduction or conclusion. A count may incorporate by reference an allegation made in another count. A count may allege that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. For each count, the indictment or information must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

Fed. R. Crim. P. 7(c).

         “An indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits.” Huet, 665 F.3d at 595 (quoting United States v. Vitillo, 490 F.3d 314, 320 (3d Cir. 2007)). “An indictment is facially sufficient if it ‘(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.'” Id. (quoting Vitillo, 490 F.3d at 320). “‘[N]o greater specificity than the statutory language is required so long as there is sufficient factual orientation' to permit a defendant to prepare his defense and invoke double jeopardy.” Id. (quoting United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)). “Generally, an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred.” Id. (citations omitted). “In contrast, if an indictment fails to charge an essential element of the crime, it fails to state an offense.” Id. (citing United States v. Wander, 601 F.2d 1251, 1259 (3d Cir. 1979)).

         “In determining whether an indictment validly states the elements of the offense, [courts] need not blindly accept a recitation in general terms of the elements of the offense.” Id. (citing United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002)). “Federal Rule of Criminal Procedure 12(b)(3)(B) allows a district court to review the sufficiency of the government's pleadings to . . . ensur[e] that legally deficient charges do not go to a jury.” Id. (citing Bergrin, 650 F.3d at 268). “Although the Government is not required to set forth its entire case in the indictment, ‘if the specific facts' that are alleged ‘fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation, ' the indictment fails to state an offense.” Id. (quoting Panarella, 277 F.3d at 685); see also United States v. Stock, 728 F.3d 287, 292-93.

         Here, the indictment provides the “plain, concise, and definite written statement of the essential facts constituting the offense charged” required by Rule 7(c) and Third Circuit precedent. For every count, the indictment identifies the statute alleged to have been violated, sets forth the essential elements of the offense tracking the relevant statutory language, specifies the location where the crime allegedly occurred and provides the dates or time period of the alleged offense. See (ECF No. 15). The indictment further alleges that Totoro used the internet to facilitate his crimes. (Id.) Finally, all counts relating to the sexual exploitation of a minor incorporate the first six paragraphs of the indictment, which in relevant part state:

During this inappropriate relationship [with M1], Joseph P. Totoro II sent M-1 sexually explicit photographs of himself and encouraged her to take sexually explicit photographs of herself and to send them to him. Joseph P. Totoro II sent M-1 numerous text messages describing the sexual acts he wanted to perform with M-1.

(Id. ¶ 5.)

         Accepting all of the factual allegations as true, the indictment sets forth the essential elements of the charged offenses and contains “sufficient factual orientation” to apprise Totoro of the offending conduct such that he can prepare his defense and invoke double jeopardy. Moreover, the facts alleged fall squarely within the scope of the relevant criminal statutes and, if proven, would permit convictions on the charged offenses. The indictment is therefore sufficient. See Stock, 728 F.3d at 292-93; Huet, 665 F.3d at 594-96.

         Totoro argues that the indictment is not sufficiently specific with respect to counts one through seven because it “fail[s] to describe the nature of sexually [sic] conduct” and “fail[s] to mention any facts to support the allegation that [he] engaged in the charged conduct.” (Def.'s Mot., at 6-7.) Totoro misunderstands Rule 7(c)'s requirements. The indictment need only set forth the “essential facts constituting the offense charged, ” Fed. R. Crim. P. 7(c), and contain allegations sufficient to “apprise the defendant with reasonable certainty of the nature of the accusation against him, ” Russell v. United States, 369 U.S. 749, 765 (1962). The indictment need not contain a description of the sexually explicit conduct or include detailed facts supporting its allegations. See, e.g., Stock, 728 F.3d at 299 (“Usually, a recitation of the statutory language satisfies the first requirement, so long as there is sufficient factual orientation to permit a defendant to prepare his defense and invoke double jeopardy. And typically, a factual orientation that includes a specification of the time period of the alleged offense is sufficient for the second and third requirements. In short, detailed allegations are unnecessary.” (emphasis added, internal citations and quotations omitted)); DeLaurentis, 230 F.3d 659, 660-61 (Rule 12(b)(2) permits dismissal of an indictment if the allegations are insufficient to charge an offense, “but such dismissals may not be predicated upon the insufficiency of the evidence to prove the indictment's charges.”); United States v. Bloom, 78 F.R.D. 591, 604 (E.D. Pa. 1977) (“The question that a district court must ask in reviewing the sufficiency of an indictment to charge an offense is not whether the indictment states an offense fully on its face, but whether the indictment contains such allegations that may be proven by evidence at trial that would support a conviction under the statute.” (citations omitted)).

         Totoro next claims that the “counts also fail to state whether [he] produced or intended to produce sexually explicit conduct.” (Def.'s Mot., at 6.) Count one, alleging production and attempted production of child pornography in violation of 18 U.S.C. § 2251(a), (e), states that Totoro “employed. . . and attempted to employ . . . a minor, to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct. . . .” (ECF No. 15, at 2.) This language tracks the statute and appropriately identifies the alleged criminal conduct. Totoro further complains that counts one and two each state that he employed, used, persuaded, induced, enticed, and coerced a minor, without specifying which of those actions he is alleged to have committed; he claims that he should not be accused of violating the statute through all of these different means because “juries may differ to which ones they decide [he] is guilty or not guilty of.” (Def.'s Mot., at 6.) This claim lacks merit. It is well-established that it is proper to charge in the conjunctive (“and”) while proving in the disjunctive (“or”). See Turner v. United States, 396 U.S. 398, 420 (1970) (“[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged”); Crain v. United States, 162 U.S. 625 (1896) (indictment count that alleges in the conjunctive a number of means of committing a crime can support a conviction if any of the alleged means are proved); United States v. Friedman, 649 F.2d 199, 204 (3d Cir. 1981) (same).


         Next, Totoro contends that the indictment must be dismissed because “the grand jurors were not properly instructed on the elements of the offenses” charged in counts one through seven and therefore “relied on insufficient and erroneous information.” (Def.'s Mot., at 7.) In support of this contention, Totoro asserts that the pictures he allegedly produced and/or received do not meet the statutory definition of sexually explicit conduct and the conduct in which he allegedly engaged-talking about past or future sexual activity-does not violate the statute. (Id. at 8-10.) He thus speculates that the grand jurors were not given proper instructions because “[i]f grand jurors were made aware of the statutory requirements of 18 U.S.C. §§ 2251, 2252, 2422(b), the grand jury surely would have declined to charge [him] with these crimes based on evidence.” (Id.)

         Though couched as a challenge to the adequacy of the instructions given to the grand jury, Totoro's argument in fact goes to the sufficiency of the Government's evidence at the grand jury proceeding. Again, a defendant is not entitled to challenge an indictment on this basis. Rather, a presumption of regularity attaches to grand jury proceedings, and an indictment that is valid on its face and returned by a legally constituted and unbiased grand jury is presumed to be founded upon sufficient evidence. Hamling v. United States, 418 U.S. 87 (1974); see also DeLaurentis, 230 F.3d at 661 (dismissal of indictment may not be predicated on insufficiency of evidence); see also Costello v. United States, 350 U.S. 359, 363 (1956) (indictments not open to challenge on ground that there was inadequate or incompetent evidence); United States v. Doe, 429 F.3d 450, 453 (3d Cir. 2005) (it is for the grand jury to decide “how much information is enough” to pursue a prosecution); United States v. Shearson Lehman Bros., Inc., 650 F.Supp. 490, 502 (E.D. Pa. 1986) (“Whether the government has sufficient evidence of these charges is a question for trial. Once a grand jury indicts, no inquiry may be made concerning the sufficiency of the evidence it considered.” (internal citations omitted)); United States v. Shober, 489 F.Supp. 393, 405-07 (E.D. Pa. 1979) (same).

         In United States v. Davies, Crim. No. 3:08-00253, 2010 WL 3024844 (M.D. Pa. July 29, 2010), a defendant charged with enticement of a minor in violation of 18 U.S.C § 2422(b) moved to dismiss the indictment on the ground that the chat logs amounted to nothing more than “sexual banter, ” which he argued was not prohibited by the statute. Id. at *6. The court denied the motion as an improper attempt to challenge the sufficiency of the Government's evidence, “which is clearly not a valid basis” for dismissing an indictment. Id.; see also United States v. Donsky, 825 F.2d 746, 752 (3d Cir. 1987) (district court erred by looking beyond the text of the charges and analyzing whether the evidence was consistent with the terms of the indictment). Totoro's challenge, premised on analogous arguments, dictates the same result.

         Moreover, to the extent Totoro challenges the adequacy of the grand jury instructions, “[t]he general rule that an indictment will not be the subject of independent scrutiny and is given a presumption of regularity is just as applicable to a challenge of inadequate instructions as inadequate evidence.” United States v. Hart, 513 F.Supp. 657, 658 (E.D. Pa 1981) (citing United States v. Budzanoski, 462 F.2d 443 (3d Cir. 1972)); see also United States v. Henry, Crim. No. 06-33-01, 2008 WL 2795140, at *15-18 (E.D. Pa. July 17, 2008) (same). A heavy burden is placed upon a defendant seeking to challenge this presumption with respect to grand jury instructions, see United States v. Wolff, 840 F.Supp. 322, 323 (M.D. Pa. 1993), and the secrecy of the proceedings should not be disturbed absent a showing of impropriety or “particularized need, ” see Budzanoski, 462 F.2d at 454. Totoro's speculation that the grand jury instructions must have been improper because he deems the evidence against him insufficient does not constitute such a showing. See Budzanoski, 462 F.2d at 454 (“[M]ere speculation that such improprieties may have occurred will not suffice to support that required showing.” (internal citations omitted)); Shober, 489 F.Supp. 393, 405-07 (“Defendant's broad allegations of inadequate instructions are insufficient to defeat this strong presumption under these circumstances. . . . A general desire, like defendant's, to ferret out projected improprieties and to demonstrate insufficiency of evidence will be present whenever a grand jury indicts. To consider defendant's proposed offer a sufficient showing of particularized need will make disclosure of grand jury notes of testimony a routine matter. Whether the government lacks evidence to support the charges contained in the indictment is a matter to be resolved at trial.” (internal citations omitted)); see also Henry, 2008 WL 2795140, at *15-18 (denying defendant's motion to dismiss the indictment on the basis of inadequate instructions because defendant's arguments related to the sufficiency of the evidence and did not rebut the presumption of regularity).

         ECF No. 135 is denied.

         B. ECF Nos. 136 & 137

         Totoro's Motion to Dismiss Counts 1, 2, 5, & 6, (ECF No. 136), and Motion to Dismiss Counts 3 & 4, (ECF No. 137), likewise seek dismissal of counts one through six on the basis of insufficient evidence. With respect to count one (production), Totoro argues that the “relevant visual depiction does not meet the definition of sexually explicit conduct for the purpose of producing a visual depiction of that conduct.” (Def.'s Mot., at 1, ECF No. 136.) With respect to count two (enticement), he contends the “relevant conduct does not meet the definition of knowingly persuades, induced, entices, or coerces . . . to engage in sexual activity for which a person could be charged with a criminal offense” because “talking about sex is not a crime.” (Id. at 6.) With respect to count three (receipt), he claims that he could not have “knowingly receive[d] the picture” because he “had no idea the picture was coming.” (Def.'s Mot., at 3, ECF No. 137.) Because count four was withdrawn by the Government, see supra n.1, the Court omits Totoro's argument with respect to that count. And with respect to counts five and six (passing obscene matter to a minor), he argues for dismissal on the ground that the pictures he allegedly sent do not rise to the level of obscenity required by the statute. (Def.'s Mot., at 10, ECF No. 136.)

         All of these arguments go to the sufficiency of the Government's evidence and fail for the same reasons discussed above. Once the grand jury returned a facially valid indictment against Totoro, it became the role of the jury to make fact-specific determinations regarding the scope of the relevant conduct, the intent behind it and whether the visual depictions meet the applicable statutory definitions. See, e.g., Costello, 350 U.S. at 363 (“If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury. This is not required by the Fifth Amendment. An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.”).

         ECF Nos. 136 and 137 are denied.

         C. ECF No. 138

         In ECF No. 138, Totoro moves to dismiss the indictment because of alleged Brady violations.[2] (ECF No. 138.) See Brady v. Maryland, 373 U.S. 83, 87 (1963). Totoro first rehashes criticisms originally raised in an earlier Motion to Stay. See (ECF No. 110). He then accuses the Government of manipulating evidence. He explains that the discovery he received on March 13, 2017 is materially different than the discovery he obtained on June 5, 2017. (Def.'s Mot., at 5, ECF No. 138.) “Text messages have materially changed, pictures sent have materially changed, dates, times have changed by seconds minutes even hours.” (Id.) He also faults the Government for failing to request “all” of the emails and text messages from AT&T, Verizon, Kik Messenger, Google and Skype, alleging that the discovery is incomplete and misleading as a result. Totoro contends that these actions not only constitute Brady violations but also prosecutorial misconduct in violation of his Fifth Amendment right to due process.

         In response, the Government denies that it manipulated evidence and explains that Totoro is simply misunderstanding the forensic technology used in the case. (Gov't Resp., at 2, ECF No. 164.) According to the Government, while there are “time stamp differences, lines of missing texts, and one-way chat conversations, ” this is not evidence of manipulation but a product of the FBI's Regional Computer Forensic Laboratory's use of different tools to extract information from the same device. (Id.) The FBI utilizes different tools in order to extract as much data from a device as possible, and “[s]ometimes the tools that the lab uses accesses the same data differently.” (Id. at 2- 3.) For example, discovery from March 2017 uses time stamps based on when the user sent the messages; time stamps from the later discovery are based on when the user received the messages. “At times the data is sent and received simultaneously, but, at other times, there is a delay between transmission and receipt of the communication.” (Id. at 3.) The Government also contends that the use of these different tools explains “any discrepancy in missing lines between” the different versions of the discovery. (Id.) Finally, the Government asserts that the one-way conversations produced in discovery are not evidence of manipulation of evidence-in instances where only one side of a conversation was produced, this was all the Government was able to extract from the device.

         Totoro's allegations of discovery violations are simply a renewed argument, originally raised in his earlier motion to stay pretrial motions and resolve alleged discovery violations. (ECF No. 110). The Court held a hearing on that Motion, (ECF Nos. 116 & 117), and concluded that the Government's explanation for why it produced some discovery beyond the Court's initial deadline was acceptable.[3] The Court has already decided this issue; the Government has not committed discovery violations.

         Totoro's allegation that the Government manipulated evidence is not a Brady issue but a challenge to the authenticity of the Government's evidence. In Brady, the Supreme Court held that the Government's suppression of material exculpatory evidence was a violation of the Due Process Clause of the Fourteenth Amendment. See Brady, 373 U.S. at 86. After Brady, “[p]rosecutors have an affirmative duty ‘to disclose [Brady] evidence . . . even though there has been no request [for the evidence] by the accused, ' which may include evidence known only to police.” Dennis v. Secretary, Pa. Dep't of Corrections, 834 F.3d 263, 284 (3d Cir. 2016) (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). “To comply with Brady, prosecutors must ‘learn of any favorable evidence known to the others acting on the government's behalf . . ., including the police.'” Id. (quoting Strickler, 527 U.S. at 281)).

         “To prove a Brady violation, a defendant must show the evidence at issue meets three critical elements.” Id. It must be: (1) “favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) “suppressed by the State, either willfully or inadvertently”; and (3) material such that prejudice resulted from its suppression.” Id. (internal quotations and citations omitted). Totoro does not allege that the Government has withheld exculpatory evidence. He instead accuses the Government of manipulating the evidence. Brady is therefore inapplicable. See United States v. McGill, No. 12-112-01, 2016 WL 48214, at *9 (E.D. Pa. Jan. 5, 2016) (“This Circuit's Brady jurisprudence ‘permit[s] the government to make information within its control available for inspection by the defense, and impose[s] no additional duty on the prosecution team members to ferret out any potentially defense-favorable information from materials that are so disclosed.'” (quoting United States v. Pelullo, 399 F.3d 197, 213 (3d Cir. 2015)).

         Totoro is really raising an objection to the evidence's authenticity. To be admissible at trial, evidence must be authentic. “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901(a). “Rule 901(b), in turn, sets forth a non-exhaustive list of appropriate methods of authentication, including not only ‘[t]estimony that an item is what it is claimed to be, ' Fed.R.Evid. 901(b)(1), but also ‘appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances, ' Fed.R.Evid. 901(b)(4), and ‘[e]vidence describing a process or system and showing that it produces an accurate result, ' Fed.R.Evid. 901(b)(9).” United States v. Browne, 834 F.3d 403, 408 (3d Cir. 2016).

         Questions of authentication and identification are matters of conditional relevance under Rule 104(b). See Fed R. Evid. 104(b); Browne, 834 F.3d at 409. “Rule 104(b), in turn, provides that ‘[w]hen the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.'” Id. “[T]o meet the Rule 104(b) standard of sufficiency, the proponent of the evidence must show that ‘the jury could reasonably find th[ose] facts . . . by a preponderance of the evidence.'” Id. (quoting Bergrin, 682 F.3d at 278). Thus, at Totoro's trial, the relevance of the text messages at issue “hinges on the fact of authorship.” Id. at 410. To authenticate the messages, the Government will have to introduce “enough evidence such that the jury could reasonably find, by a preponderance of the evidence” that Totoro and the alleged victim authored the messages at issue. Id.

         Totoro's authentication challenge is premature and ECF No. 138 is denied.

         D. ECF No. 141

         Finally, in ECF No. 141, Totoro argues that count one must be dismissed because § 2251(a) does not put a person of reasonable intelligence on notice of the behavior necessary to violate the statute and is thus unconstitutionally vague.[4] See (Def.'s Mot., at 4-5, ECF No. 141).

         Section 2251(a) states:

Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in or affecting interstate or foreign commerce, or in any Territory or Possession of the United States, with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct or for the purpose of transmitting a live visual depiction of such conduct, shall be punished as provided under subsection (e), if such person knows or has reason to know that such visual depiction will be transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed, if that visual depiction was produced or transmitted using materials that have been mailed, shipped, or transported in or affecting interstate or foreign commerce by any means, including by computer, or if such visual depiction has actually been transported or transmitted using any means or facility of interstate or foreign commerce or in or affecting interstate or foreign commerce or mailed.

         The Section can thus be broken into two parts: one which prohibits certain conduct and another-beginning after “as provided under subsection (e)”-which lays out § 2251(a)'s jurisdictional elements. Totoro contends that because the jurisdictional part of § 2251(a) contains three clauses separated only by commas-as opposed to the semicolons found in §§ 2251(c) and (d)-they are dependent clauses, rendering the jurisdictional part of the subsection unconstitutionally vague. (Def.'s Mot., at 3.)

         Essentially, Totoro contends that each clause of § 2251(a)'s jurisdictional elements must be present for prosecution. This argument has no support. The fact that the jurisdictional elements of § 2251(a) are separated by commas rather than semicolons does not mean they are not independent bases ...

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