EFTA00191587

U.S. I. Donald Deverso 
CASE NO. 2:S05-cr-34-FtM-29SPC 
CERTIFICATE OF SERVICE 
I hereby certify that on November 18, 2005, I electronically filed the foregoing 
with the Clerk of the Court by using the CM/ECF system which will send a notice of 
electronic filing to the following: 
Peter Ringsmuth 
[email protected] 
S/Douglas Molloy 
DOUGLAS MOLLOY 
Assistant United States Attorney 
4 
EFTA00192227

UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FORT MYERS DIVISION 
UNITED STATES OF AMERICA 
vs. 
DONALD J. DEVERSO 
Court's Instructions 
to the Jury 
2:S05-cr-34-FtM-29SPC 
Members of the Jury: 
It is now my duty to instruct you on the rules of law that 
you must follow and apply in deciding this case. When I have 
finished you will go to the jury room and begin your 
discussions - what we call your deliberations. 
It will be your duty to decide whether the Government has 
proved beyond a reasonable doubt the specific facts necessary 
to find the Defendant guilty of the crimes charged in the 
Second Superceding Indictment. 
You must make your decision only on the basis of the 
testimony and other evidence presented here during the trial; 
and you must not be influenced in any way by either sympathy 
or prejudice for or against the Defendant or the Government. 
You must also follow the law as I explain it to you 
whether you agree with that law or not; and you must follow all 
EFTA00192228

of my instructions as a whole. 
You may not single out, or 
disregard, any of the Court's instructions on the law. 
The Second Superceding Indictment or formal charge against 
any Defendant is not evidence of guilt. 
Indeed, every 
Defendant is presumed by the law to be innocent. The law does 
not require a Defendant to prove innocence or to produce any 
evidence at all. The Government has the burden of proving a 
Defendant guilty beyond a reasonable doubt, and if it fails to 
do so you must find that Defendant not guilty. 
Thus, while the Government's burden of proof is a strict 
or heavy burden, it is not necessary that a Defendant's guilt 
be proved beyond all possible doubt. It is only required that 
the 
Government's 
proof exclude 
any "reasonable 
doubt" 
concerning the Defendant's guilt. 
A "reasonable doubt" is a real doubt, based upon reason 
and common sense after careful and impartial consideration of 
all the evidence in the case. 
Proof beyond a reasonable doubt, therefore, is proof of 
such a convincing character that you would be willing to rely 
and act upon it without hesitation in the most important of 
your own affairs. If you are convinced that the Defendant has 
EFTA00192229

been proved guilty beyond a reasonable doubt, say so. If you 
are not convinced, say so. 
As I said earlier, you must consider only the evidence 
that I have admitted in the case. The term "evidence" includes 
the testimony of the witnesses and the exhibits admitted in the 
record. Remember that anything the lawyers say is not evidence 
in the case. It is your own recollection and interpretation 
of the evidence that controls. 
What the lawyers say is not 
binding upon you. 
Also, you should not assume from anything 
I may have said that I have any opinion concerning any of the 
issues in this case. Except for my instructions to you on the 
law, you should disregard anything I may have said during the 
trial in arriving at your own decision concerning the facts. 
In considering the evidence you may make deductions and 
reach conclusions which reason and common sense lead you to 
make; and you should not be concerned about whether the 
evidence is direct or circumstantial. "Direct evidence" is the 
testimony of one who asserts actual knowledge of a fact, such 
as an eye witness. "Circumstantial evidence" is proof of a 
chain of facts and circumstances tending to prove, or disprove, 
any fact in dispute. The law makes no distinction between the 
EFTA00192230

weight you may give to either direct or circumstantial 
evidence. 
Now, in saying that you must consider all of the evidence, 
I do not mean that you must accept all of the evidence as true 
or accurate. You should decide whether you believe what each 
witness had to say, and how important that testimony was. In 
making that decision you may believe or disbelieve any witness, 
in whole or in part. Also, the number of witnesses testifying 
concerning any particular dispute is not controlling. 
In deciding whether you believe or do not believe any 
witness I suggest that you ask yourself a few questions: Did 
the witness impress you as one who was telling the truth? Did 
the witness have any particular reason not to tell the truth? 
Did the witness have a personal interest in the outcome of the 
case? Did the witness seem to have a good memory? Did the 
witness have the opportunity and ability to observe accurately 
the things he or she testified about? Did the witness appear 
to understand the questions clearly and answer them directly? 
Did the witness's testimony differ from other testimony or 
other evidence? 
EFTA00192231

The fact that a witness has been convicted of a felony 
offense, or a crime involving dishonesty or false statement, is 
another factor you may consider in deciding whether you believe 
that witness. 
You should also ask yourself whether there was evidence 
tending to prove that the witness testified falsely concerning some 
important fact; or, whether there was evidence that at some other 
time the witness said or did something, or failed to say or do 
something, which was different from the testimony the witness gave 
before you during the trial. 
You should keep in mind, of course, that a simple mistake by 
a witness does not necessarily mean that the witness was not 
telling the truth as he or she remembers it, because people 
naturally tend to forget some things or remember other things 
inaccurately. So, if a witness has made a misstatement, you need 
to consider whether it was simply an innocent lapse of memory or an 
intentional falsehood; and the significance of that may depend on 
whether it has to do with an important fact or with only an 
unimportant detail. 
A Defendant has a right not to testify. If a Defendant does 
testify, however, you should decide in the same way as that of any 
other witness whether you believe the Defendant's testimony. 
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The testimony of some witnesses must be considered with 
more caution than the testimony of other witnesses. 
In this case the Government called as one of its witnesses 
a person with whom the Government has entered into a plea 
agreement providing for the possibility of a lesser sentence 
than the witness would otherwise be exposed to. 
Such plea 
bargaining, as it's called, has been approved as lawful and 
proper, and is expressly provided for in the rules of this 
Court. 
However, a witness who hopes to gain more favorable 
treatment may have a reason to make a false statement because 
the witness wants to strike a good bargain with the Government. 
So, while a witness of that kind may be entirely truthful when 
testifying, you should consider such testimony with more 
caution than the testimony of other witnesses. 
When knowledge of a technical subject matter might be 
helpful to the jury, a person having special training or 
experience in that technical field is permitted to state an 
opinion concerning those technical matters. 
Merely because such a witness has expressed an opinion, 
however, does not mean that you must accept that opinion. The 
same as with any other witness, it is up to you to decide 
whether to rely upon it. 
In 
this case you have been 
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permitted to take notes during the course of the trial, and 
most of you - perhaps all of you - have taken advantage of that 
opportunity and have made notes from time to time. 
You will have your notes available to you during your 
deliberations, but you should make use of them only as an aid 
to your memory. In other words, you should not give your notes 
any precedence over your independent recollection of the 
evidence or the lack of evidence; and neither should you be 
unduly influenced by the notes of other jurors. 
I emphasize that notes are not entitled to any greater 
weight than the memory or impression of each juror as to what 
the testimony may have been. 
Count One of the Second Superceding indictment charges 
that the Defendant did knowingly possess one or more matters 
containing child pornography which had been transported in 
interstate or foreign commerce, including by computer. Title 
18, United States Code, Section 2252(a)(4)(B), makes it a 
Federal crime or offense for any person to knowingly possess child 
pornography that has been transported in interstate or foreign 
commerce, including by computer. 
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The Defendant can be found guilty of that offense only if all 
of the following facts are proved beyond a reasonable doubt: 
First: 
That the Defendant knowingly possessed matters 
which the Defendant knew contained a visual 
depiction of a minor engaged in sexually explicit 
conduct; 
Second: 
That the Defendant knew the visual depiction 
contained in the matters was of a minor engaged in 
sexually explicit conduct; 
Third: 
The Defendant knew that production of such a visual 
depiction involved use of a minor in sexually 
explicit conduct; and 
Fourth: 
That the visual depiction had been transported in 
interstate or foreign commerce. 
The term "interstate or foreign commerce" means the movement 
of property from one state to another state or from one state to 
another country. The term "State" includes a State of the United 
States, the District of Columbia, and any commonwealth, territory, 
or possession of the United States. It is not necessary for the 
Government to prove that the Defendant knew that the alleged child 
pornography had moved in interstate or foreign commerce, only that 
it had so moved. 
The term "computer" means an electronic, magnetic, optical, 
electrochemical, or other high speed data processing device 
performing logical, arithmetic, or storage functions, and includes 
any data storage facility or communications facility directly 
related to or operating in conjunction with such device, but such 
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EFTA00192235

term does not include an automated typewriter or typesetter, a 
portable hand-held calculator, or other similar device. 
The term "child pornography" means any visual depiction, 
including any photograph, film, video, picture, or computer image 
or picture, whether made or produced by electronic, mechanical, or 
other means, of sexually explicit conduct where the production of 
such visual depiction involves the use of a minor engaging in 
sexually explicit conduct. 
The term "minor" means any person under the age of eighteen 
(18) years. 
The term "visual depiction" includes data stored on computer 
disk or by electronic means which is capable of conversion into a 
visual image. 
The term "sexually explicit conduct" means actual or 
simulated: 
(a) sexual 
intercourse, 
including 
genital-genital, 
oral-genital, anal-genital, or oral-anal contact, whether 
between persons of the same or opposite sex; or 
(b) lascivious exhibition of the genitals or pubic area of 
any person. 
Regarding the last type of sexually explicit conduct 
"lascivious exhibition" - 
not every exposure of the genitals or 
pubic area constitutes a lascivious exhibition. 
In determining 
whether a visual depiction constitutes a lascivious exhibition, you 
should consider the context and setting in which the genitalia or 
EFTA00192236

pubic area is being displayed. 
You may consider the overall 
content of the material. 
You may also consider such factors as 
whether the focal point of the visual depiction is on the minor's 
genitalia or pubic area, or whether there is some other focal 
point. You may consider whether the setting of the depiction is 
such as to make it appear to be sexually inviting or suggestive; 
for example, in a location or in a pose associated with sexual 
activity. In addition you may consider whether the minor appears 
to be displayed in an unnatural pose or in inappropriate attire. 
You may also consider whether the minor is partially clothed or 
nude. 
You may consider whether the depiction appears to convey 
sexual coyness or an apparent willingness to engage in sexual 
activity, and whether the depiction appears to have been designed 
to elicit a sexual response in the viewer. Of course, a visual 
depiction need not involve all of these factors to be a lascivious 
exhibition. 
Count Two of the Second Superceding Indictment charges that 
the Defendant did knowingly transport or ship in interstate and 
foreign commerce, by any means, including by computer, material 
involving the sexual exploitation of minors. 
Title 18, United 
States Code, Section 2252(a) (1), makes it a Federal crime or 
offense for any person to knowingly transport or ship any visual 
depiction in interstate or foreign commerce, by any means including 
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by computer, if the production of such visual depiction involved 
the use of a minor engaging in sexually explicit conduct and the 
visual depiction is of such conduct. 
The Defendant can be found guilty of that offense only if all 
of the following facts are proved beyond a reasonable doubt: 
First: 
That the Defendant knowingly transported or shipped 
a visual depiction in interstate or foreign 
commerce by any means, including by computer; 
Second: 
That the production of such visual depiction 
involved the use of a minor engaging in sexually 
explicit conduct; 
Third: 
That such visual depiction is of a minor engaged in 
sexually explicit conduct; and 
Fourth: 
That the Defendant knew that at least one of the 
performers in such visual depiction was a minor and 
knew that the visual depiction was of such minor 
engaged in sexually explicit conduct. 
The terms "interstate or foreign commerce," "computer," 
"sexually explicit conduct," "visual depiction", and "minor" have 
been defined to you earlier and apply to Count Two. 
Count Three of the Second Superceding Indictment charges that 
the Defendant did knowingly employ, use, persuade, induce, entice, 
or coerce a minor to engage in sexually explicit conduct outside of 
the United States for the purpose of producing child pornography 
material, and did knowingly transport such material to the United 
States in interstate and foreign commerce by any means, including 
EFTA00192238

by computer. Title 18, United States Code, Section 2251(c)(2)(b), 
makes it a Federal crime or offense for any person to knowingly 
employ, use, persuade, induce, entice or coerce a minor to engage 
in sexually explicit conduct outside of the United States for the 
purpose of producing a visual depiction of such conduct, and 
transport such visual depiction to the United States by any means, 
including by computer, and which visual depiction had actually been 
transported in interstate or foreign commerce or mail. 
The Defendant can be found guilty of that offense only if all 
of the following facts are proved beyond a reasonable doubt: 
First: 
That the Defendant knowingly employed, used, 
persuaded, induced, enticed, or coerced a minor to 
take part in sexually explicit conduct for the 
purpose of producing a visual depiction of such 
conduct; 
Second: 
That such visual depiction is of a minor engaged in 
sexually explicit conduct; 
Third: 
That such production was made outside the United 
States; and 
Fourth: 
That the Defendant knowingly transported such visual 
depiction to the United States, its territories or 
possessions, by any means, including by computer or 
mail. 
The Government need not prove that the Defendant knew that the 
minor was under 18 years old. 
A person "uses" a minor to produce child pornography if the 
minor serves as the subject of photography. 
The term "induce" 
means to stimulate the occurrence of or to cause. 
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The terms "sexually explicit conduct," "visual depiction," and 
"minor" have been described to you earlier and apply to Count 
Three. 
The term "transportation" simply means to send or carry 
something from one place to another. 
Transportation can be 
accomplished in any of a variety of ways, either directly because 
a person personally carries an item or indirectly because a person 
makes use of a third party, such as a commercial shipper or through 
the use of the mails. The transportation must, however, involve 
the movement of the materials into the United States. 
As I mentioned above, this transportation can be accomplished 
by any means, including by a computer. 
Images transmitted or 
received over the Internet to the United States would constitute 
transportation to the United States within the meaning of this 
statute. 
The law recognizes several kinds of possession. A person 
may have actual possession or constructive possession. 
A 
person may also have sole possession or joint possession. 
A person who knowingly has direct physical control of 
something is then in actual possession of it. 
A person who is not in actual possession, but who has both 
the power and the intention to later take control over 
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EFTA00192240

something either alone or together with someone else, is in 
constructive possession of it. 
If one person alone has possession of something, that 
possession is sole. If two or more persons share possession, 
such possession is joint. 
Whenever the word "possession" has been used in these 
instructions it includes constructive as well as actual 
possession, and also joint as well as sole possession. 
You will note that the Second Superceding Indictment 
charges that the offenses were committed "in or about" and "on 
or about" 
certain dates. 
The Government does not have to 
prove with certainty the exact date of the alleged offense. 
It is sufficient if the Government proves beyond a reasonable 
doubt that the offense was committed on a date reasonably near 
the date alleged. 
The word "knowingly," as that term is used in the Second 
Superceding Indictment or in these instructions, means that the 
act was done voluntarily and intentionally and not because of 
mistake or accident. 
In these charges, the Court has reviewed the pertinent 
parts of federal law which are alleged to have been violated. 
EFTA00192241

Where a statute specifies several alternative ways in which an 
offense may be committed, the Second Superceding Indictment may 
allege the several ways in the conjunctive, that is, by using 
the word "and." However, if only one of the alternatives is 
proved beyond a reasonable doubt, that is sufficient for 
conviction, so long as the jury agrees unanimously as to that 
alternative. 
A separate crime or offense is charged in each count of 
the Second Superceding Indictment. 
Each charge, and the 
evidence pertaining to it, should be considered separately. 
The fact that you may find the Defendant guilty or not guilty 
as to one of the offenses charged should not affect your 
verdict as to any other offense charged. 
I caution you, members of the Jury, that you are here to 
determine from the evidence in this case whether the Defendant 
is guilty or not guilty. The Defendant is on trial only for 
those specific offenses alleged in the Second Superceding 
Indictment. 
Also, the question of punishment should never be 
considered by the jury in any way in deciding the case. If the 
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EFTA00192242

Defendant is convicted the matter of punishment is for the 
Judge alone to determine later. 
Any verdict you reach in the jury room, whether guilty or 
not guilty, must be unanimous. In other words, to return a 
verdict you must all agree. Your deliberations will be secret; 
you will never have to explain your verdict to anyone. 
it is your duty as jurors to discuss the case with one 
another in an effort to reach agreement if you can do so. Each 
of you must decide the case for yourself, but only after full 
consideration of the evidence with the other members of the 
jury. 
While you are discussing the case do not hesitate to 
reexamine your own opinion and change your mind if you become 
convinced that you were wrong. But do not give up your honest 
beliefs solely because the others think differently or merely 
to get the case over with. 
Remember, that in a very real way you are judges - judges 
of the facts. Your only interest is to seek the truth from the 
evidence in the case. 
When you go to the jury room you should first select one 
of your members to act as your foreperson. The foreperson will 
EFTA00192243

preside over your deliberations and will speak for you here in 
court. 
A form of verdict has been prepared for your convenience. 
[Explain verdict] 
You will take the verdict form to the jury room and when 
you have reached unanimous agreement you will have your 
foreperson fill in the verdict form, date and sign it, and then 
return to the courtroom. 
If you should desire to communicate with me at any time, 
please write down your message or question and pass the note 
to the court security officer who will bring it to my 
attention. I will then respond as promptly as possible, either 
in writing or by having you returned to the courtroom so that 
I can address you orally. I caution you, however, with regard 
to any message or question you might send, that you should not 
tell me your numerical division at the time. 
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EFTA00192244

Villafana, Ann Marie C. (USAFLS) 
From: 
King. Damon 
Sent: 
Tuesday. March 04, 2008 4:18 PM 
To: 
Greenberg, Bonnie (USAMD); Blanch, Joey (USACAC); USAEO-PSC-Coordinators 
Subject: 
RE: transportation question 
Transportation-aiding and abetting 
The courts in the following cases held or recognized that although the term "transport," 
within the meaning of 18 
§ 2423(a), criminalizing the transportation of a minor 
across state lines for unlawful sexual purposes, does not extend to causing the 
transportation of a minor, to support a conviction under 18 U.S.C.A. § 2423(a) under an 
aiding and abetting theory (18 U.S.C.A. § 2), it is sufficient to prove that the defendant 
caused the minor to be transported across state lines for unlawful sexual purposes. 
In U.S. 
Footman, 215 F.3d 145 (1st Cir. 2000), the court recognized that, although the 
term "tr sport," within the meaning of the 18 U.S.C.A. § 2423(a), criminalizing the knowing 
transport of a minor across state lines for purposes of prostitution, does not extend to 
"causing" the transportation of a minor, to support a conviction under 18 U.S.C.A. § 2423 
under an aiding and abetting theory (18 U.S.C.A. § 2), it is sufficient to prove that the 
defendant caused the minor to be transported across state lines for an unlawful sexual 
purpose. Thus, the court found, in a prosecution for transporting a minor across state lines 
for purposes of prostitution in violation of 18 U.S.C.A. § 2423(a), even if the trial court's 
instructions defining "knowing transportation" as "causing" the transportation of a minor in 
interstate commerce for the purpose of transportation was error, such error was harmless, as 
the definition was proper to support the defendant's conviction as an aider and abettor where 
the evidence indicated that another prostitute was the defendant's agent in transporting the 
minor across state lines, the women traveled in the defendant's car and the minor wired money 
back to the defendant, and the minor testified that she and other prostitutes traveled to 
another state at the defendant's direction. 
In U.S. 
Johnson, 132 F.3d 1279, 48 Fed. R. Evid. Serv. 562 (9th Cir. 1997), a prosecution 
for tran ortation of a minor with intent to engage in criminal sexual activity in violation 
of 42 U.S.C.A. § 2423(a), the court held that the trial judge's jury instructions-that it 
could find the defendant guilty if the jury determined that he had "transported or caused to 
be transported a minor from Norway to Fresno"-were not improper where the defendant was 
charged as an aider and abettor under 18 U.S.C.A. § 2(b). The court said that the defendant 
could be convicted of transportation of a minor with intent to engage in criminal sexual 
activity if he "transported or caused to be transported" a minor under the statute pertaining 
to aiding and abetting, 18 U.S.C.A. § 2(b), permitting a person causing a criminal act to be 
done by another to be punished as a principal actor. Thus, it was enough that the defendant 
caused the Norwegian minor's transport and possessed the requisite intent to engage in 
unlawful sexual conduct even if the entity carrying out the transport-the foreign student 
exchange program or the minor himself-lacked criminal intent. Further, the court found, the 
defendant's conviction was supported by evidence that the defendant, immediately after the 
arrival of the victim, who was a foreign exchange student, progressively introduced 
discussion and then engagement in sexual acts, as well as evidence of inconsistencies and 
misrepresentations in the defendant's application to serve as a host parent, expert testimony 
that the defendant's conduct indicated a sophisticated "grooming" process that did not arise 
spontaneously, and evidence of the defendant's prior sexual contacts with minors. 
See U.S. I Garrett, 720 F.2d 705 (D.C. Cir. 1983), in which the court held that the 
defendant s extensive involvement as a go-between in "facilitating" the interstate 
transportation of a young male to a customer for the purpose of prohibited sexual conduct for 
commercial exploitation satisfied every element of the offense of aiding and abetting the 
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EFTA00192245

primary offense of transportation of a minor in interstate commerce for purposes of 
prohibited sexual conduct for commercial exploitation in violation of 18 U.S.C.A. § 2423. 
Also, the court held, the defendant's so-called withdrawal from the criminal venture, coming 
only after the defendant satisfied himself that his active participation was no longer 
required to assure the success of the venture, namely, the transportation of the minor for 
the aforesaid criminal purposes, was insufficient to constitute abandonment of the criminal 
enterprise. 
A defendant will be deemed to have "transported" an individual, under Mann Act section 
prohibiting knowing transportation of any individual in interstate or foreign commerce with 
intent that such individual engage in prostitution or in criminal sexual activity, where the 
evidence shows that the defendant personally or through an agent performed the proscribed act 
III
of transporting, as opposed to situations where the victim travels nder her own steam, 
without need of anyone to transport her. 18 U.S.C.A. § 2421. U.S. 
Holland, 381 F.3d 80 (2d 
Cir. 2004). 
A defendant will be deemed to have "transported" an individual, under Mann Act section 
prohibiting knowing transportation of any individual in interstate or foreign commerce with 
intent that such individual engage in prostitution or in criminal sexual activity, where the 
evidence shows that the defendant personally or through an agent performed the proscribed act 
of transporting, as opposed to situations where the victim travels nder her own steam, 
without need of anyone to transport her. 18 U.S.C.A. § 2421. U.S. 
Holland, 381 F.3d 80 (2d 
Cir. 2004). 
Sufficient evidence established that codefendant aided and abetted defendant in the 
interstate transportation of a minor with the intent to commit an aggravated sexual assault; 
codefendant accompanied defendant to mall where victims were picked up, participated in 
cruising and smoking marijuana, threatened children to get them to remain in house after 
II 
state line was crossed, turned up stereo to cover sounds o assault, and celebrated with 
defendant after the assault. 18 U.S.C.A. §§ 2, 2423. U.S. 
Bonty, 383 F.3d 575 (7th Cir. 
2004). 
Damon A. King 
Deputy Chief 
Child Exploitation and Obscenity Section Criminal Division United States Department of 
Justice 1400 New York Ave. N.W. Suite 6400 Washington, DC 20005 
(w) 202-353-7304 
(f) 202-514-1793 
 
Original Message 
From: Greenberg, Bonnie (USAMD) [mailto:[email protected]) 
Sent: Saturday, March 01, 2008 8:28 PM 
To: Blanch, Joey (USACAC); USAEO-PSC-Coordinators 
Subject: RE: transportation question 
I would feel comfortable charging it. And you can add in 18 USC Section 2 (aiding and 
abetting) just to be safe 
Sent by Good Messaging (www.good.com) 
 
Original Message 
From: Blanch, Joey (USACAC) 
Sent: Friday, February 29, 2008 09:49 PM Eastern Standard Time 
To: 
USAEO-PSC-Coordinators 
Subject: 
transportation question 
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EFTA00192246