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Hi sir.Thanks for your past...
Hi sir.Thanks for your past knowledge on legal advice for me.It greatly helps to have a true expert answer a question.Im 32 years old and live in Ohio.I have been accused by a local police department of committing telephone harassment.The nature of all the phone calls were for sexual gratification.For each of the phone calls I made to a child advocacy center or pediatric forensic medicine clinic,I would mention that I have a daughter that has a lego toy stuck in her vagina and that she is masturbating.Again,i did it purely for sexual gratification.Under Ohio law , could I be truly charged for telephone harassment?
Submitted: 3 months ago.Category: Criminal Law
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5/6/2018
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago
James Daloisio
Category: Criminal Law
Satisfied Customers: 881
Experience: 30 years experience in criminal law, continuing education.
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Hi, and thanks for requesting me.

Ohio Revised Code Section 2917.21 is the Telephone Harassment statute. It's pretty broad. As applied to your situation, here's what it says:

"(A) No person shall knowingly make or cause to be made a telecommunication, or knowingly permit a telecommunication to be made from a telecommunications device under the person's control, to another, if the caller does any of the following:

(1) Makes the telecommunication with purpose to harass, intimidate, or abuse any person at the premises to which the telecommunication is made, whether or not actual communication takes place between the caller and a recipient;

(B) No person shall make or cause to be made a telecommunication, or permit a telecommunication to be made from a telecommunications device under the person's control, with purpose to abuse, threaten, or harass another person."

Your motivation aside, the fact remains that it's a reasonable interpretation to conclude you made these calls "with a purpose to harass or abuse...."

So I'd say yes, you could truly be charged with telephone harassment; each call is a separate count.

A first offense is a first degree misdemeanor punishable by up to 180 days in jail and/or a fine of up to $1,000; each subsequent offense is a fifth degree felony punishable by probation/jail or 6-12 months in prison.

Hope that answered your question.

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Customer reply replied 3 months ago
Ok. I respect your opinion but another attorney,who I talked to over the phone,told me they would have a fairly difficult time charging me because the content of my conversation was quite unusual.Does he have a point?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Well, while I respect his opinion, I will tell you that if I were the judge, I wouldn't have a difficult time signing the warrant, and if I were the prosecutor, I would not hesitate to file the case.

What you have to look at is the exact wording of the statute: Make the telecommunication with purpose to harass, intimidate, or abuse any person at the premises...."

When you make a call like that, and it isn't true, how does the conversation go? What is the person at the other end thinking/feeling? Your intention was to make a call and state things that constituted a medical emergency that weren't true. I could convince a jury in heartbeat that that's harassment and abuse. Because look at the last part of that subdivision: "whether or not actual communication takes place...." So you don't measure the actual effect; only the potential effect. You don't think a jury would consider that "abuse?"

Here is what the jury instruction says about "purpose:"

"Purpose to abuse, threaten, or harass is an essential element of the crime of telecommunication harassment. A person acts purposely when it is his specific intention to cause a certain result. It must be established in this case that at the time in question there was present in the mind of the defendant a specific intention to abuse, threaten, or harass."

The point is this: You cannot possibly make this call and make these statements without a specific intent to abuse or harass. You know that someone at the other end is going to pick up the phone and listen to your statements; how will the conversation end? Do you just hang up on them? They are going to know that you're playing them, for whatever reasons you may have. That's abuse and harassment. Your primary purpose may have been sexual gratification; but it follows that a concurrent purpose is to use the recipient of the call to get that gratification.

So, does the attorney you spoke with have a point? Depends on who picks up the case. Some prosecutors might find it difficult. I don't. I believe your best chances would be if the person on the other end never discovered the fraudulent nature of the calls; that would be evidence that you lacked the specific intent to abuse/harass because you maintained the pretense from beginning to end.

Are you seeing this?

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Customer reply replied 3 months ago
Im sortive seeing it, yes.Is what you're saying is that the person might have felt harassed by my phone calls,even though a reasonable person might not have and that person who claims to feel harassment is all thats needed to file charges,because after all, you state that the Ohio law for telephone harassment is broad.Im I understanding it better now ?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

You're getting closer.

It's not whether anyone would have or wouldn't have felt like they were being harassed or abused. You don't even have to talk to anyone.

The crime is complete when you make the phone call with the requisite intent.

As I said, if you know in your mind that this is a phony call that you're making because you want to use the recipient to get your sexual gratification, then you certainly have a "specific intent" to abuse that recipient. But there is no requirement that the recipient actually be communicated with and actually have felt like they were abuse or harassed. It's your intent when you make the call.

Like this: Intent + call = violation. No conversation is required.

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Customer reply replied 3 months ago
Okay I see.Luckily im reassured by the detective investigating the case,that I wont be spending anytime behind bars.I dont have a criminal record at all.According to the conversation he had with my mother,he would like to talk to my psychologist,about why I made the phone calls.My intent was never to abuse a child in anyway nor was it to have child pornography.They even checked my computer,and found absolutely nothing on it that would be indicative of a crime.What should I do next?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

What to do next?

1. Cooperate. 100%.

2. Show that you understand that what you did was wrong, and that you are remorseful and will do WHATEVER IT TAKES to see to it that nothing like this happens again.

Those are the two big things, accepting responsibility, and showing remorse.

You have a few things in your favor. They will work with you as long as you convince them that you are worth the effort. So work at it.

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Customer reply replied 3 months ago
Okay I will.The police department hasnt even charged with the offense of telephone harassment yet.Its been a week since they have been officially investigating.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Just cooperate with them. Don't challenge them, or try to convince them that they don't have a case. That will just make them try harder. It may be that they haven't figured it out and are just looking for a way out that makes everyone happy. Good luck with it.

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Customer reply replied 3 months ago
ok. There might have been police reports in my case.Are all police reports public information in the United States ?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

No, police reports are not released if the case is still open and the investigation can be characterized as "ongoing."

The Ohio Public Records Act can authorize the release of incident and offense reports but the police have to withhold "Investigatory Records." There's two basic requirements for determining whether a report constitutes an exempt investigatory record.

First, the record must "pertain[] to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature."

Second, such records are exempt "only to the extent that the release of the record would create a high probability of disclosure of any of the following:

1. The identity of a suspect who has not been charged with the offense to which the record pertains.

2. The identity of an information source or witness to whom confidentiality has been reasonably promised.

3. Information provided by an information source or witness to whom confidentiality has been reasonably promised whereby the information, if disclosed would lead to the identity of the source or witness.

4. Specific investigatory techniques or procedures.

5. Specific investigatory work product.

6. Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness or a confidential information source.

So it's not likely anyone would get a copy of those reports.

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Customer reply replied 3 months ago
If the case is closed,then is the police report available to the general public?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Same rules apply, open or closed. They can't disclose a report that contains the identity of uncharged suspects. Generally the "offense" or "incident" reports are subject to disclosure, to the extent that they report a crime was committed that generated a police response.

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Customer reply replied 3 months ago
Im not sure what you mean.Please explain in more simpler language.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Works like this:

1. Someone calls the police and reports a crime, like a harassing phone call.

2. The police respond and take a report. That report is an "incident" or "offense" report. You can get it with a Public Records Act request most of the time, as long as there are no names of suspects who weren't charged, or names of confidential informants, etc.

3. The case goes to a detective who starts an investigation. He uses confidential sources. He identifies a suspect but the suspect is never charged. All the reports that the detective writes are confidential investigatory reports.

Got it?

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Customer reply replied 3 months ago
Ok.From what you have told me so far,you said to me it would be easy to charge me under Ohio law for telephone harassment.How easy or hard would it be to convict me?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

If I was the prosecutor, knowing nothing more about the case than I do now, I'd say there's a better than 50/50 chance of conviction.

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Customer reply replied 3 months ago
Okay.The probable cause threshold is a fairly low burden of proof for a police officer to prove and charge a suspect,correct?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Here's the American Bar Association legal ethics provision about filing cases:

A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.

Probable cause all by itself gets you past the 4th Amendment. That's it. After that, you have to consider the presumption of innocence and the burden of proof, i.e., "beyond a reasonable doubt."

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Customer reply replied 3 months ago
But dont you agree,probable cause is a fairly low threshold in which to charge somebody for an offense.In other words,it doesn't take allot evidence for finding probable cause.Am I correct?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

It depends upon your definition of "a lot of evidence." PC means a reasonable person would entertain a "strong suspicion" of guilt.

In the sliding scale of proof, PC is in the middle. The lowest standard is that which allows the police to detain you: an "articulable suspicion" that criminal activity is afoot. It's less than probable cause. Then, you have probable cause. Warrants can be issued, arrests can be made with PC. Then you have the guilt standard: beyond a reasonable doubt. So if you want to characterize PC as a fairly low standard, I'd say no, it's not that low because the great majority of cases where probable cause is found actually result in convictions. Whereas an "articulable suspicion" can go either way most of the time. And reasonable doubt? Most counties' conviction rates are around 85%.

In practice, the police will apply a probable cause standard to justify an arrest; so it's the minimum. A prosecutor will employ a probable cause standard when filing a case, but a prosecutor will probably want more than the police are giving him/her with the arrest. And I found that it was often very easy to have a detective make one or two phone calls from my office, and get the additional information I wanted. The police operate from a bare-bones perspective; as soon as they think they've got PC, they stop.

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Customer reply replied 3 months ago
Ok.Do you think from the information about the content of my so-called harassing conversations,was is it possible for the police to get a search warrant to confiscate my computer for child porn?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Yes. The content of your conversation and the nature of the entities your calls were made to were enough to establish probable cause to search your computer. All the police have to do is state those facts and then add to their affidavit that in their experience, it's common for people who engage in such conduct to have child porn on their devices, and perhaps even throw in the opinion of an expert. Just like they do in drug cases: "It's common for people who sell drugs to store the drugs remotely from their cash; to use minors to make hand to hand transactions because they can't be prosecuted in adult court; to have weapons nearby to protect their product; etc etc."

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Customer reply replied 3 months ago
What you continue to keep saying reaffirms my justified opinion,that probable cause is still a fairly low threshold.When a child has foreign body in their private parts doesn't necessarily mean sexual abuse.On the contrary,the kids actions could be quite normal and not indicative of anything illegal or sinister.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

It's not a question of being a low threshold.

It's the fact that when weighing the evidence to establish probable cause, a reviewing court will draw all inferences in favor of the prosecution. So if evidence is susceptible of two interpretations, one pointing to guilt and the other to innocence, for purposes of PC a court will accept the one pointing to guilt. Note that this is opposite what happens in a trial where, because of the presumption of innocence, a jury is instructed that under the same circumstances (two interpretations) it must adopt the interpretation pointing to innocence.

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Customer reply replied 3 months ago
It is a question of a low threshhold,because the police should always demonstrate they enough evidence .There not lawyers and you know damn well that it doesn't take much to establish probable cause.I just think that they if they would not have been justified in searching my computer,just because I made obscene phone calls about a child,besides there wasnt an ounce of child porn on my computer.They look stupid for assuming otherwise.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

The way this is supposed to work is you ask a question, then someone here gives an answer, and you rate the answer.

I've answered eleven questions in this thread and haven't been rated. Your last post didn't ask a question; it sounds like you're venting because you're angry that the police seized your computer. I understand that. But from the facts you provided, they operated within the scope of the law. If you think they look stupid for doing what they did, fine. It's an opinion you're entitled to.

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Customer reply replied 3 months ago
You didnt answer me because you know im correct.Its that simple.I have more questions,then ill be more than happy to give you a rating.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Hello again,

Please show me the question that I didn't answer. I thought I addressed each one. Sorry if I missed one.

As far as being "right" or "wrong," that's not why I'm here. I'm only here to tell you what the law is, and to render an opinion on how it fits with the facts of your case.

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Customer reply replied 3 months ago
I understand.You were wrong in saying that the police seized my computer.My mother choose to give it to the detective.If I would have deleted any material on it or even thew it away in the trash,would that have been considered tampering with evidence,if the police got a search warrant for the computer?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Here's the law on tampering in Ohio. It requires an element of knowledge: "knowing" that an investigation is in progress, about to be or likely to be instituted. This is where I believe they'd have a difficult time with a tampering charge. If you'd committed a clear cut criminal offense, one that you'd expect to be reported to the police and investigated, then you're on the hook for the tampering if you do any of the proscribed acts. But in your case, making those phone calls was not so clear cut. I believe you'd have a pretty good argument that you didn't "know" that an investigation would be instituted based on those calls. But here's the statute:

2921.12 Tampering with evidence.

(A) No person, knowing that an official proceeding or investigation is in progress, or is about to be or likely to be instituted, shall do any of the following:

(1) Alter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such proceeding or investigation;

(2) Make, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official who is or may be engaged in such proceeding or investigation, or with purpose to corrupt the outcome of any such proceeding or investigation.

(B) Whoever violates this section is guilty of tampering with evidence, a felony of the third degree.

Effective Date: 01-01-1974.

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Customer reply replied 3 months ago
ok.The detective is still in the process of trying to see if there were any police reports filed from the the places I called.How would that impact the possibility of filing charges against me?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Whoa, wait a minute....

Your initial post stated that you'd been accused by a local police department of committing telephone harassment. Based on that statement, I concluded that a police report had been filed. You've got a detective involved. If he doesn't know whether those places filed reports, where did he come from?

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Customer reply replied 3 months ago
Hes from the Maumee Police Department.Maumee,is the city in which I live.Thats where the number was traced back to.Does that help explain it better?
Customer reply replied 3 months ago
My last explanation probably didnt help you that much,if at all.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Well, no it didn't.

Who traced the number? There must have been a police report initiated at the place where they started looking for the subscriber of the number. The way it usually works is that the reporting party tells the police, hey, we got this phone call and here's the number of the caller. The police trace it back to you. You live in another city so they call your local PD and inquire. At that point, all they know is that a call that was received in city B was originated by a number assigned to someone in city A.

It just makes no sense to me that a detective doesn't know if a police report was filed.

To answer the question of whether it would impact the possibility of filing charges...sure. But it sounds like you're past that stage. If no one made a complaint, there'd have been no action taken. But the police are involved. My question is how did they become involved?

I'm sorry but this is not sounding right to me.

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Customer reply replied 3 months ago
I think at least one police report was filed,but the detective was looking to see if any more were filed.Does that make more sense. LOl
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Thanks.

Why is there a detective looking into the case? What have you been told? They aren't social service workers. Their job is to solve crimes and arrest people.

My point is this: if you are a suspect in an investigation, the police aren't your friends. They have a job to do. I don't know how much contact you and your family have had with this local detective but if I were you I'd at least consult with a local criminal defense attorney, give him/her all the facts, and consider retaining their services.

1. It was not a good idea to just give the police your computer. If you refused, they'd had to have gotten a search warrant; that warrant would be accompanied by an affidavit of probable cause. You would then know what the evidence was that they were relying on.

2. You shouldn't have made any statements to any law enforcement officers before speaking with an attorney. It's NEVER a good idea.

A. You admitted making the calls. When they came to you all they knew was that a call originated from your number. That does not prove that you are the one who made the call.

B. You told them about other calls that they apparently knew nothing about. Each call can constitute one separate count.

I am not faulting or criticizing the police here; they have a job to do, and they will do it. But don't be lulled into a false sense of security by a friendly detective. Remember that he is acting on behalf of another agency that has a crime report to handle. What they want to do is solve the crime, arrest the perpetrator, and move on to the next case.

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Customer reply replied 3 months ago
Ok.boy,you sure do damn a good job on here.Let me ask you this question,the detective told my mother when she picked up the computer,that he would like to talk to my long-time psychologist so he could get a better understanding of why I made the phone calls.Is this a good idea at all?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

I doubt that your psychologist would grant such an interview, even if you consented. This type of interview goes beyond mere access to medical records or what they call "PHI" (Protected History Information). It invariably requires the psychologist to render opinions about why you behave a certain way, why you think a certain way, and what the chances are of recidivism or escalation. No medical professional would grant such an interview without a court order, and in your case, there is no reason for one.

Now, let's assume that your psychologist was willing to speak with the police, with your consent. Should you consent?

First, ask yourself, why does this detective want this information? Why does a detective want to understand why you made these calls? There's only one answer. He's trying to build a case and is looking for evidence of the required mental state (intent to harass, abuse, etc.) for telephone harassment. Geez, he's already gotten you to confess to the calls and tell him about calls they knew nothing about. But....

Let's give him the benefit of the doubt. Let's say at heart, this detective is truly concerned with your health and well being and wants to help you. OK, ask yourself, "How can he help me?" Do you have an answer? Probably not. What can a detective do that your family, psychologist, etc., aren't already doing? He can put you in jail. Or not. That's it. He can't treat you. He can't cure you if you're ill. He can't grant you immunity from prosecution. And always remember, he's not the one in the driver's seat. There's a police department in another city that's calling the shots. His job is to assist them, not you.

So is it a good idea? Ask him how it's going to help you. See what he says. Maybe I'm cynical but it seems he's paying too much attention to you. You've got to think in terms of what's best for YOU.

You're walking a fine line. You want the detective on your side, but you don't want to help him make a case against you. The Constitution says you don't have to do that.

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Customer reply replied 3 months ago
Hi sir.My psychologist took your advice to heart.Like you,he was wary of speaking to the detective about my Aspergers syndrome.The third paragraph in your last message help convince him of that opinion,but on the other hand he assuredly told me ,that if I was to give him my consent,then he would be very careful in saying anything that would incriminate me.I think you would agree that the detective really doesnt need anymore information about me.After all,me and my mother have fully cooperated with him.My mother easily surrendered the computer to him ,without a search warrant and I was quite honest with him when we met and that it was me who made the five phone calls to the pediatric forensic and child advocacy centers and that I did it purely for sexual gratification.He had documentation about the five places I called.
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

The only thing I'd add to this conversation is this: Your psychologist is not a lawyer nor a policeman. He would have no idea what information could possibly incriminate you. For this reason, if it ever came down to you really having to allow the detective to ask questions of the the psychologist, you could always retain an attorney and have the detective submit his questions to the psychologist through your attorney. I doubt that it would ever get that far.

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Customer reply replied 3 months ago
ok.The detective told my mother that the interview between him and the psychologist would be beneficial for me.In terms of specifics,how could it be beneficial?
Customer reply replied 3 months ago
Ok.The detective told my mother that it would be beneficial for me to allow the psychologist to talk to the detective.From your experience as a lawyer,is the word "beneficial",have anything to do with building a case against a client?
Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

Well, I'm a lawyer, not a mind reader. You have to ask the detective that question. He's the one who made the statement and he's the only one who can say for certain what it meant as the statement itself is somewhat equivocal. How would it be "beneficial" to you? Did he mean "beneficial" in the sense that it would affect whether they try to prosecute you, or "beneficial" in the sense that it would help your overall psychological condition? Or something else?

The word "beneficial" certainly has a "plain meaning," but the context in which it is used is what's important.

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Criminal Lawyer: James Daloisio, Lawyer replied 3 months ago

I hope this all works out for you.

I've answered 16 questions but you don't seem to want to provide a rating here, so I'm going to opt out and perhaps someone else can step in.

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Customer reply replied 3 months ago
I apologize but ill give you a rating now.
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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