An Final Day For The Lawyers

P1010097It wasn’t as bad as I thought it would be.  Maybe because I had the computer and a desk in front of me and a cup of coffee I had something to do while the final arguments were being made. Maybe because both sides presented their arguments well, given what they had to work with. Wyshak had the tedious job, it took him almost three and a half hours, of spelling out the crimes and showing how there was evidence introduced to support each charge. He had the unenviable job of justifying his use of the slugs he had for witnesses. His best point came when he stood up on rebuttal and said “let’s get real” and made the “birds of a feather” argument suggesting that however bad the jurors believed the three major prosecution witnesses were after listening to defense counsel argument keep in mind Whitey was their buddy.

We had a little contest going on.  It had 3 questions. How often would Wyshak choke up or cry; how many times would he mention Billy Bulger; and how many times would he interrupt the defense closing.  My answer to #1 is 0, but some pointed to 3 instances where he came close to choking  up (voice breaking); to #2 the answer is 5; and lastly he interrupted 2 times.  Check your scores!

I found both Brennan and Carney presented compelling arguments that held one glued to their every words. This was trial advocacy at its finest. But what can you do when your client is the leader of a band of thieves.  Maybe, just maybe, they tugged at the heart strings of one or two witnesses who might be repulsed at the government’s tactics in this case who’ll refuse to cast their ballot to convict figuring that will make them an accessory to the wrong doing, but my sense is the jury is all singing “show me the way to go home” so the desire to buck the majority sentiment will fall victim to the urge to be free.

After all, who really wants to extend themselves for a guy who surrounded himself with gangsters, guns, graves and gruesome garrottings? We’re not dealing with some innocent lamb being unfairly brought to slaughter by government butchers. For all their faults in their tactics, their continuing inane attempts to connect Billy Bulger with his brother’s sins, their obsession on blaming all the evils of the world on John Connolly in the pretense that gangsters know nothing except what the FBI tells them, the slanderous attacks on Paul Rio, their seemingly inherent disdain for the FBI, you must give due credit to the prosecutors for making Whitey answer for his crimes. It’s been a long road and they have finally brought home the bacon.

My intelligent friend, who has a great sense of these matters because of her experience as a prosecutor, defense attorney, and in a rich life as an attorney beyond those fields of having to go into the courtroom, believes as I do that the jury will be back on Wednesday. There’s not much for them to decide, but they’ll have to put in some time as she suggests looking through the 700 pages in the informant file, no so much that any of it applies to the case, but just because some will be nosey.

Whitey may get a break on one or two of the charges, especially that of Debbie Davis. He’ll then be remanded back to Plymouth House of Corrections for a couple of months while the usual time between verdict and sentence takes place. Then we’ll be treated to the day of sentencing of the 84 year old man who made millions as a top level gangsters and lived by the sword and so shall he die.

34 thoughts on “An Final Day For The Lawyers

  1. Was the charging conference done in public or chambers? I always thought it had to be done in public but no one has talked about it. The rule of thumb, very generally, is Judge’s won’t instruct on nullification but say over and over it is the jury’s duty to find fact and apply the law as the Judge gives it in arriving at a just and true verdict. Sparf, 156 US 51, opines that jurys can rule on fact and law, but Judge’s don’t need to specifically instruct. In fact Cochran was shot down trying to get a nullification like at the OJ trial. Sparf is usually cited for not allowing Defense lawyers to directly argue on nullification.

    Personally, I think it’s a crock. If it is permissible for jurors to do it, why can’t a lawyer argue it? What’s the point in giving jurors this tremendous power to rebuke opprobrious conduct if no one tells them about it?

    1. Jim P

      The charging conference as far as I can tell was done by the judge taking proposals from counsel and then returning a copy of her charge to them after she considered their proposals. When that was done she asked counsel in open court to comment on it.

      Nullification is out and the judge instructed as you suggest. I was surprised for authority the case you cited went back to the 19th Century. That’s pretty impressive research. I read through it quickly but want to return to it again. The reasons the jury would never be told they could ignore the judge’s instructions on the law is that the judge spends a lot of time spelling out the law and doesn’t want all that time to have been for naught. Also, it the jury could do it then the judge’s role become somewhat lesser in the case. But it still remains for a jury to do since it can believe whatever part of the evidence it wants. One thing I found interesting in my quick look at Sparf was a case where a jury acquited someone and the judge wanted some type of action to be taken against the jurors for having done so. Thanks for the information.

  2. I note that even Kevin Cullen was forced to concede that Carney and Brennan did a fine job (with a poor hand, of course) on closing.

    I happened to be at a dinner party Saturday hosted by an atty. with the US Atty.’s office here in town, and got into big trouble with her when I said that, based on everything I’d heard and read, if I had to pick a lawyer, straight up, to represent me, I’d take Brennan or Carney over Wyshak.

    Thanks for all your work on this blog– it’s been a godsend in light of the goofy local media coverage.

    1. Steely:

      Thanks for participating. Wyshak’s a good lawyer who’d do a good job representing you but he didn’t have much of a chance to show what he could do because he had so much evidence that he was just shovelling it in here which did not give him the opportunity to do more. This has been a case on which he has worked for 20 years so he had so much at stake that he sometimes got too close to it but you can’t blame him. My problems with Wyshak is not his ability as a lawyer but his view of matters involving Billy Bulger and what seems to be his closeness to the Boston media.

      Carney and Brennan here did an excellent job. You’d be well represented if you were represented by either one. But you should have known better than to suggest to a U.S. Atty that anyone in their office is other than the best, especially an old war horse like Wyshak.

  3. Matt, I agree with Firefly. You’ve done a great job and a great service for all of us. Thanks for your views and for allowing us to air our views. There are far more good people in Boston than the venal, corrupt, hubristic, criminal and evil types on stage and paraded before us in the Joe Moakley Federal Courthouse these last months and years. If we can’t get Martorano, Nee, Weeks et al back in prison where they belong, I hope at least we can revoke their memberships in the L-Street gym. Thanks again, Matt. Semper Fi from your younger brother who also served in the Department of the Navy, but not as a Marine, although I could do more Marine-corps type push-ups than anyone else around and about our neighborhood.

    1. William:

      Thanks for your comments. It would be nice to get those men back in prison. Maybe after Whitey’s case is over the federal government will remove its cloak of protection from them. So put your name in line for those lockers at L Street that may soon be open.

      1. Matt, I had a locker at L-Street for some 25 years and frequented it before that time, since our youth, as you know. I still maintain my annual membership and have been over there a few times in June and July (down the Cape for three weeks, in New Hampshire two weekends ago.) So many great people went to the L (many lifelong friends) and still go there. Just a few bad apples!!! But because some of the bad apples shot and killed my neighborhood friends and some family members of my friends, I find it very hard to rub elbows with them, to stomach them. Southie and Savie (Dorchester) guys grew up with some killers (gunmen) in our midst, in our neighborhoods, and we all have friends who’ve been shot, but most of the killers/gunmen/shooters are dead or served lengthy prison terms and those released seemed to repent: not Wyshak’s witnesses. So, maybe someday I’ll get back to L-Street five days a week. I used to like swimming there, jogging, walking, working out, year-round!!!

  4. From the point of view of a parent:

    I have beloved young adults who worked a block away from and at the site of the Marathon bombings.

    Allston/Brighton//Cambridge – These kids also sheltered in place minutes away from the fiasco.

    Waltham/ loved one and many college friends lived off campus at time of triple murder.

    Our Whitey Bulger et al. is their Tsarnaevs et al.

    Looking toward the future, it is my hope that we have dug deeply enough that The Trial of Whitey Bulger will be taught as lessons in civics, sociology, criminal justice and law.

    I hope our vision has been both clarified and wide enough that people may look back to this blog as an example of citizens joining together, led by someone who wrote morning, noon and night with drama and humor.

    This is Boston.

    1. Firefly:

      Thanks for coming here and adding to our discussion. We should continue to stay on top of these issues. The forum will be kept open for us all to participate as time goes on although I expect it will not be as intense as it has been.

  5. I agree that it has been a long road and that Whitey should answer for his crimes. I also believe that the government should have to answer for their role in all this, and should be shown that we will not tolerate them partnering up with guys like Whitey and his friends either. What verdict, if any, would get that message across?

    1. John:

      I suppose if the jurors gave Whitey a break on some of the murders that would give the government the message of its disatisfaction with the way it presented the case. So depending on how many murders Whitey beats will be the measure of the jury’s disgust, if any.

  6. Wednesday verdict.Guilty on all counts. Look at the Zimmerman jury and the media scrutiny there. If you were on the jury would you want Howie and Fox News parked outside the house? The government is corrupt and jurors should take the hit?

    1. Chaco:

      Whitey can’t win everything since he is not contesting some of the charges. His big problem is he is not a sympathetic figure so you may be right that no one will lift a finger to give him a break on anything. But this is American and 12 ordinary people whose inner thoughts are unknown are discussing the case. Is there a rebel among them?

  7. If I was on the jury, I would have to wonder why the prosecution can not come up with better witnesses than the 3 which were all shown to be liars and horrid humans. That would then lead me down a road of considering whether the whole prosecution side is corrupt and not to be believed at all. However, I would still have to conclude that Bulger is still part of all the crime. I might classify him as the leader who did not do the dirty work. He would be liable, still, and I would vote to convict him of most charges …

    Now, if I had been allowed to consider Bulger under immunity, THAT is when I might go to the other side of the decision and call the whole thing corrupt and go with the arguments Brennan and Carney were emphasizing in their closing = stand up to the government. This small jury is the one group who can do so ….

    So, I conclude that the fix was in when Judge Casper did not allow the immunity defense and I concur with Bulger that his trial was a sham.

    1. Margaret, well said and I agree. I’ll add: (1) If I were on the jury I’d send a note to the Judge asking for further clarification: “Dear Judge: Since the FEDs’ major witnesses are proven liars and vicious serial killers (the actual killers or those who abetted them like Morris and Weeks) is it possible for we the jury to “convict” the federal prosecutors of anything for putting these lying-killers before us? Or do the FEDs have “immunity” to do such things? (2) If I were the judge, the palpably perjurious testimony of the serial killers and their enablers and abettors would have been thrown out and the jury told to disregard all of it. (3) If I were King Con and ruled this country, many FEDs would be put before a firing squad. (4) A different, but related, story: The FEDs finally released Chuck Turner from prison; the 70 year old City Councilor with the lifelong clean record was “stung” by the FEDs in a million dollar sting operation where they “photoed” him taking an envelope with a few hundred dollars in it from a FED Informant planted to entice him to take a little cash; it took the FEDs a year to get some dirt on this innocent man; My lifelong friend, close to the case, says the whole thing was another Federal scam. Turner, driven into bankruptcy by the prosecution (par for the course of federal persecution) and losing his pension as a result of the FED’s scam-sting, served 18 months of a 3-years sentence. The FEDs spent a million dollars in time and labor, at least, targeting Turner while the FEDs let terrorists and drug pushers/dealers/junkies run free in Boston. I have nothing but contempt for some FEDs and you know I don’t mean all of them, but there are hubristic FEDs who abuse their power and office to hurt people: innocent people, defenseless people, marginal criminals. (5) Based on decades of experience, I conclude that those FEDs and likewise those State Bureaucrats (judges, prosecutors, lawyers, court clerks, administrators, legislators etc.) who abuse power or wield political axes (for example, those who joined the decades-long virtual political jihad and incessant attacks on William Bulger) as far more dangerous to the American people’s health and safety than the criminals/offenders they prosecute. Socio-political correctness run amuck, gumming up the wheels of justice!!! (6) En garde, America! The Monster Big Brother is watching you!!!! Shiver in your boots; You may be next! You too, as Matt coined the phrase, may become a POOF (a person out of favor.) Your family may be next on the list to be dragged through the mud!! Off to the gulag with you and your whole family if you cross the FEDs and their compliant lackeys in Press/Media.

      1. William:

        It’s impossible to answer what you say so I’ll just suggest I enjoyed reading it.

    2. Margaret.

      Thanks for the comment. As I noted in my post today you gave me the idea for what I was going to say.

      1. Matt, you are a humble and good man, as we’ve learned through this blog. I may have made the comment but it was formed in large part from learning so much from you and the commenters in this blog.

        I am glad the blog will continue. I will follow it. It feels like an honest and safe look at some big problems in our justice system. The fact that you allowed us to comment freely and feel listened to (you take the time to comment back is so much appreciated). It allows for a free flow of ideas which can spark new ideas – unusual and I so welcome it.

        William, I like your (2) – maybe a courageous juror will suggest they just chuck all that crap from those guys and look at the evidence that way. I would.

        1. Margaret:

          Thanks for writing back and your nice words. I am happy you feel you have learned from all of us. I really mean it when I say I could not have done this without the people coming here, mostly by accident since I never did anything to promote it, who were willing to take the time to offer their opinions. All are welcome and all civil opinions, even some rants when people get really frustrated at what they see happening, are welcome. Maybe in part because I see so much of our country not talking to each other but at each other and people only listening to others who agree with their them that this has developed into a decent forum. I know there are people who comment her who think 180 degrees differently than I do on some matters but they don’t attack but explain their positions. It is also a place where minds are changed and opened, myself included. It’s almost as if some of what I see Judge Casper doing when she engages counsel in discourse giving each side a chance to convince her of something and showin a willingness to change her mind.

          The goal is to make America into a better country which can only happen when we talk civilly to each other. It’s just a tiny seed we have here but who knows how far it will spread.

  8. I never knew the Stations of the Cross were part of the Rules of Civil Procedure. Matt Let me introduce to a buddy Jack Cashill . My hope is you will take the time to get a copy of his film SILENCED through your local library.His story appeared today about the FBI and the Mob.

    see link for full story

    August 05, 2013

    The Best Mob Story Ever
    By Jack Cashill

    The best mob story ever told does not involve Al Capone or Bugsy Segal or John Gotti. It involves a mobster few American have ever heard of, Greg Scarpa by name, and his not quite as lethal son, Greg Scarpa Jr., “Junior” going forward.

    One reason few people ever heard of Scarpa is that until his arrest in September 1992, he worked as a “Top Echelon Confidential Informant” under the protection of the FBI for the most of the thirty years prior. During that time, Scarpa murdered at least fifty people. Understandably, this is not a story not that the FBI wants told, but author Peter Lance has told it anyhow in his stunningly comprehensive new book, Deal With The Devil.

    I have taken a particular interest in this story over the years because of the light it shines, improbably enough, on the destruction of TWA Flight 800 off the coast of Long Island in 1996, a subject about which I co-authored the 2003 book First Strike. More on this angle later.

    The FBI protected Scarpa, a capo in the Colombo family, because he provided intelligence on New York’s five notorious La Cosa Nostra (LCN) families. Some of the intelligence was accurate. All of it was self-serving.
    In return for his services, the FBI kept Scarpa out of prison. At the heart of Lance’s book is the contention that the FBI, in the person of agent Lin DeVecchio, did much more, none of it justifiable. Lance argues that DeVecchio lost his moral balance and, at the very least, provided Scarpa with the kind of FBI intelligence that allowed Scarpa to target his enemies.

    What has intrigued me most is the activity of New York City’s FBI office in the summer of 1996, the year TWA 800 was destroyed. In April of that year, the office’s assistant director, Jim Kallstrom, sent a memo to the head of the FBI, Louis Freeh, warning that the continued internal FBI investigation of DeVecchio would “have a serious negative impact on the government’s prosecution of various LCN figures.”

    In July 1996, the case was still dragging on when Freeh assigned Kallstrom to head up the TWA Flight 800 investigation. For the first five weeks Kallstrom did a credible job before buckling under White House pressure on or about August 22. I have always wondered what combination of carrots and sticks the White House used to misdirect the investigation away from the obvious missile strike to a fully contrived mechanical failure.

    Without making the connection directly, Lance suggests a possible carrot. In early September 1996, the Justice Department abruptly closed its thirty-one month long investigation and informed DeVecchio that a prosecution was “not warranted.” By mid-September 1996, Kallstrom had ended all talk of a bomb or missile and pushed through the administration’s “mechanical failure” narrative. Kallstrom would remain DeVecchio’s most prominent champion even during his criminal trial on the same charges.

    As an FBI informant, Junior picked up where Scarpa senior left off. Awaiting trial in 1996 in New York’s Metropolitan Correctional Center (MCC) on racketeering charges, Junior turned down a 17-year plea offer in the hope that he could finesse information out of a few of his fellow prisoners and trade it for a reduced sentence.

    Incredibly, those prisoners included Ramzi Yousef, Abdul Hakim Murad, and Wali Khan Amin Shah Shah, all awaiting trial on what is known as the Bojinka plot, and Eyad Ismail, who was awaiting trial for the 1993 bombing of the World Trade Center along with Yousef. In January 1995, Yousef’s Manila apartment had caught fire just weeks before he and his co-conspirators were to unleash Bojinka, the plot to blow up a dozen American airliners over the Pacific. He was apprehended a month later.

    On March 7, 1996, Junior initiated a meeting with assistant U.S. Attorneys Valerie Caproni and Patrick Fitzgerald and his own attorney, Larry Silverman, to formalize the arrangement. For more than a year, Junior worked these guys for intelligence and passed it along to the FBI. The investigators who first unearthed the FBI documentation, the late Stephen Dresch and Angela Clemente, have rightly called Scarpa’s information “the single most significant Al-Qaeda intelligence in U.S. History, prior to 9-11.”

    “Yousef wants to blow things up but he does not say why,” Junior would tell his handlers. Yousef was fully capable of such mischief. In 1994, he had planted a bomb on a Philippine Airlines 747 as something of a test and killed the Japanese national who was sitting above it.

    In May 1996, Junior reported that “during the trial [Yousef et al.] had a plan to blow a plane up to show they are serious.” As July 17 approached, according to Junior, Yousef was warning friends not to fly on TWA or American Airlines on the morning of July 18. On the night of July 17, after the explosion, Yousef kept pressing to use Junior’s cell phone, which he allegedly did not know was part of an FBI sting. Yousef called 9-11 mastermind Khalid Shaikh Mohammed that night, saying, “What had to be done has been done, TWA 800” (last two words unintelligible).

    A week after the blast, Junior reported, “Murad feels that they may get a mistrial from the publicity surrounding the TWA explosion.” By this time, Yousef had already appealed for one and been turned down. It is altogether possible, indeed likely, that Yousef had nothing to do with the destruction of TWA Flight 800. An opportunist to the core, he was willing to take credit nonetheless. Given his track record, however, the authorities had to have taken him seriously.

    On July 24, the FBI reported, “Scarpa advised that Yousef has been avoiding any conversation pertaining to the explosion.” Within days of the TWA 800 crash, the same U.S. attorney who was managing the Scarpa sting, Valerie Caproni, illegally took the crash investigation away from the National Transportation Safety Board and gave it to the FBI.

    For the next five weeks, the FBI led the media to believe a bomb had destroyed TWA Flight 800. This culminated in the August 23 New York Times headline, “Prime Evidence Found That Device Exploded in Cabin of Flight 800.” Given the intelligence Caproni had gotten from Scarpa, she would have had to suspect that Yousef’s people were responsible for the presumed bombing.

    And yet there is no evidence in the available FBI documents to suggest that any pressure was brought to bear on either Yousef or Junior to cough up information. There are several possible reasons why. The most obvious is that from day one the White House knew that a missile, not a bomb, had taken down the airplane. The leaking of “bomb” evidence was a conscious misdirection.

    The less obvious reason is that Caproni and the FBI had come to see Junior as a liability. If they publicly gave him credit for his intelligence work, it would be hard to deny his corroboration of the charge that his father had a lethally corrupt relationship with DeVecchio.

    Some seventy-five trials of New York-area mob figures hinged on DeVecchio’s integrity. If that were impeached, there would be chaos in the courts. This is the story that Lance tells. Junior received no credit for his intelligence work. At the end of the day, the authorities called it a “hoax and scam,” despite the fact that in February 1997 Junior passed along Yousef’s comment that Islamic terrorists “will like hijacking airplanes so much that they will become addicted to them.”

    1. MS:

      Thanks – I’ll definitely see the movie if it is around and also read the book. That is a fascinating article.

    2. Ms. Freeh- I am very familiar with Scarpa sr. he is one of the most evil mobsters of all time. I believe Scarpa sr. tracked down a group of kkk clan members and killed them or turned them in to the feds who sent him on a mission to find the clan members who killed some civil right activists. I also know he contracted aids through a transfusion that was tainted from one of his own cronies because he refused to have any blood from African Americans. The crony was using steroids with a dirty needle. He was in a shootout with drug dealers that robbed his son JR, During that shootout he was shot in the face, this shootout went down while he was gravely ill with AIDS. I never knew JR. continued the tradition of his dad. great post Ms. Freeh very informative!!

    1. Henry:

      You are safe in Ireland – I don’t suppose the guarda has any such program in the land of the green fields Thanks for the information. It’ll be a good additon to the article I noted today.

  9. MTC

    Did any of the five mentions of Bill Bulger have any significance to the crimes of was it just obsessive meanspirited and an inability to old back taking the final shot at the galloping horse?

    1. Hopalong:

      The only evidence against Billy that came in during the trial was he was Whitey’s brother, he lived next door to Flemmi’s parents, he once walked in to Flemmi’s house to watch TV and saw Flemmi, Whitey, Connolly, Morris ? or some others eating, and he spoke at John Connolly’s retirement party.

      None of that was mentioned when his name came in on closing. Without any evidence to support it Wyshak argued that he was one of the most powerful politicians and that John Connolly cared more about his relationship with him and Whitey than about his job. So, to answer your question it was just a final shot at the man who got away.

    1. PAT2E:
      There are some who will always be legends in their own minds, abetted by the media.

  10. The main focus of the jury will be to go home. You are 100% correct. That may mean a quick verdict or a compromise verdict. All the jurors will know that convicting him of a few counts of RICO will lock him up forever. It’s possible he could slide on all the killings if a fast exit is paramount. Both sides can claim victory. There was a British woman who wrote a critique of education ” Everyone gets a Prize” ( grade inflation). Will the jury do that?

    1. N:

      You have tried many cases. Your opinion of what the jury will do may be right. I had a case once that was sent to the jury a little after noon on a hot Friday in the summer. Because we had no air conditioning in the jury room, the judge let the jury deliberate in the court room that had air conditioning. About 2:30 the judge reported the jury had a question and she allowed the jurors to stay in the courtroom while counsel came to hear the question. When I got there I saw the table at which the jurors sat was placed in the bar area; at one end of the table sat six women with hot and angry faces; between them and the six men was about a four foot gap. The men looked tired and weary. I immediately sized up the situation. The defendant was a pathetic looking person who you’d want to help out if you could. The jurors had no idea he had been convicted for murder and got it tossed out on a techicality. The women wanted to give him a break and were angry at the guys who could see through him. After the question was answered we walked back outside so the jury could continue to deliberate. I put my hand out to defense counsel and congratulated him on his win. He was surprised saying the jury hadn’t returned a verdict yet. I said they will, there’s no way those guys will resist much longer under that pressure especially early on a summer’s afternoon. The defendat was a free man before 3:00 pm.

      So much depends on who is on the jury. Anyone with the ideas that William posts here at times who believes the whole thing is evil will hold out forever. But there aren’t many William’s around. Odds are they’ll want to recapture what’s left of the summer and come back quick. Any bone they throw Whitey he will consider it a victory.

  11. I’d say they will come back Friday. From all accounts they are an attentive juror, and they have a complex case. It will take them through Wednesday to sort through the charges. A few questions:

    1. Were alternate jurors already designated? Do they get dismissed tomorrow or do they deliberate too?
    2. Are there any instructions w/r/t “nuliification” or is that something the jury needs to come up with on its own?
    3. Given that there are so many counts, there might be some difficulty reaching agreement on some charges. I see Hussey as one, because both accounts are given by liars, but some jurors might choose to believe them. Does a partial verdict mean a mistrial?

    Thanks, I am learning a lot here. It will enhance my Law & Order viewing.

    1. Pam:

      I think they won’t want to wait that long. If they were as attentive as you suggest they’ll understand that most of the case was not contested. But you may be right since we don’t know what is inside the minds of the 12 jurors or even if there’s anything at all in there.

      1. The judge said early on the alternatives would be the ones who were picked after the first 12 were picked. They did not know it. They will be held around here in a seperate room from those who are deliberating.

      2. No nullification instructions, in fact it is the opposite with the judge telling the they must follow the law as given to them. It will have to come up with it on their own but here with an evil person like Whitey it’ll hard pressed for the jury to do that.

      3. If the jurors do not agree on all the counts but only on some of them, the judge could take the verdicts on some and declare a mistrial on the others. It is unlikely that will happen. The murders are all subsidiary counts to the RICO indictment which has 33 subsidiary counts, called predicate acts, and if the jurors only agree on two of them then the indictment is proven and Whitey is not contesting most of them.

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