July 17, 2001

Al Giordano's Affidavit About "The Mexico Papers"





v. Index No. 00603429




I, Al Giordano, being duly sworn, depose and say:

1. I have prepared this affidavit so that it may be used as evidence and argument to respond to Banamex's claims regarding Narco News Bulletin.

2. Banamex has cut and pasted allegedly defamatory material out of context and re-ordered it, in order to invent defamation that never happened.

3. My specific response to the Banamex claims regarding the eight allegedly defamatory web pages on Narco News Bulletin appear in the order that Banamex made them Exhibits.

4. This affidavit provides the court with the information it needs to conduct its "examination of the full context of the communication in which the statement appears"; and "consideration of the broader social context or setting surrounding the existence of any applicable customs or conventions which might 'signal to readers that what is being read or heard is likely to be opinion, not fact,'" in addition to the other criteria the court must consider in making this determination at this point of the process (Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 566 N.Y.S.2d 906 (1991))

About "The Mexico Papers"

(The Narco News Bulletin: April 18, 2000 to August 9, 2000)

5. During the "relevant time period" of the Banamex lawsuit, I published 82 commentaries and named them The Narco News Bulletin. They are attached in full as Exhibit A.

6. I published the majority of them from Mexico, and a few of them from Spain. I did not publish any of them from New York or the United States.

7. They are mainly about the drug war in Mexico. "The Mexico Papers" contains six chapters, each with multiple articles. The first five chapters have as their nexus coverage of drug policy and its consequences in Mexico. The sixth and final chapter includes the remaining articles, many of which have as their nexus coverage of the drug war in Colombia, the Caribbean, and complicity by United States officials in drug trafficking in Latin America.

8. I ask that the Court read the entire work because I believe that only by reading the entire work titled "The Mexico Papers" will the Court be able to pass judgment on its "full context," its "broader social context or setting" and the "applicable customs or conventions" (Immuno, supra) that signal it as a work of argument and opinion. I apologize, in advance, for its length.

9. I ask that, as the Court reads this work, that it remembers the very first statement made in the work named Narco News Bulletin, the page titled "Opening Statement." That statement provides the context, discloses my intent in writing the work, and reveals its "applicable customs and conventions" of being an argument that recites the facts upon which it bases its opinion.

Summary of the Eight Allegedly "Defamatory" Pages

10. The Banamex complaint included only eight pages as Exhibits of the 82 articles that appeared on Narco News Bulletin and claims that those eight commentaries were defamatory.

11. None of those eight commentaries were about Banamex.

12. Two of those eight commentaries were republications of articles that appeared in Mexican newspapers: "Dare to Legalize" by Mario Menendez (Complaint Exhibit C, "The Mexico Papers," page 214), and "Roberto Hernandez Elected?" (Complaint Exhibit I, "The Mexico Papers," page 453) by Isabel Arvide. I personally translated those articles to the best of my translating abilities at the time. Nobody has ever suggested to me-–nor has Banamex suggested-–that they were not reasonably accurate translations.

13. Three more of those eight commentaries were about the press and its behavior in Mexico, and constitute press criticism and analysis, and were not about Banamex: "The Sam Dillon Story" (Complaint Exhibit F, and "The Mexico Papers," page 236); "Dillon Responds" (Complaint Exhibit E, and "The Mexico Papers," page 254), and; "Mario Menendez Rodriguez" (Complaint Exhibit B, and "The Mexico Papers," page 203). In each case, the version provided by "The Mexico Papers" is more accurate than the Banamex version because it includes footnotes to the links that provide the supporting facts. The Banamex exhibits do not inform the Court that there were such links, much less detail them.

14. Two of those eight commentaries were about the activities of Mexican Presidential Candidate and then President-elect Vicente Fox, a politician during the relevant time period, and now President of Mexico, but not about Banamex: "Citibank Implicated in Money Laundering for Fox Campaign" (Complaint Exhibit H, and "The Mexico Papers," page 361), and; "Where's Vicente Fox Today?" (Complaint Exhibit G, and "The Mexico Papers," page 440). Likewise, as to these and all articles, the version provided by "The Mexico Papers" is more accurate for the same reasons and must be read by the Court.

15. The remaining commentary among the eight claimed to be defamatory by Banamex was, in fact, part two of a series of commentaries grouped together as editorial, and was not about Banamex: "1994: The Consolidation of Narco-Power" (Complaint Exhibit D and "The Mexico Papers," page 299). In order to examine the "full context" of this commentary, it is necessary to read the entire series, grouped together in "The Mexico Papers," pages 288-424). The word "series" clearly implies a whole work, the rest of which the Complaint exhibits improperly did not include. This series was about elections in 1988, 1994, 1999 and 2000. They were about public policy-–not business matters.

16. I believe it is very revealing that the name "Banamex" did not appear in a single one of the headlines of articles claimed by Banamex to be "of and concerning" Banamex. I shall review them here: "Mario Menendez Rodriguez" (Complaint Exhibit B); "Dare to Legalize," by Mario Menendez (Complaint Exhibit C); "1994: The Consolidation of Narco-Power" (Complaint Exhibit D); "Dillon Responds" (Complaint Exhibit E); "The Sam Dillon Story" (Complaint Exhibit F); "Where's Vicente Fox Today" (Complaint Exhibit G); "Citibank Implicated in Money Laundering for Fox Campaign" (Complaint Exhibit H), and; "Roberto Hernandez Elected?" by Isabel Arvide (Complaint Exhibit I).

17. Since, as every journalist knows, more people read the headline than read the article, the titles of these commentaries reveal that I was not at all engaged in any "campaign" to defame Banamex as alleged by its counsel.

18. Beyond the titles of the works, the text of each of them, as I will now demonstrate, support my Motion to Dismiss. They are either not defamatory, are arguments of protected opinion, or are not "of and concerning" Banamex.

Banamex Misrepresents These Commentaries as "the Banamex Story"

19. One of the claims repeated, disingenuously, throughout the Banamex Complaint is an invented claim that the commentaries (and even statements made prior to the existence of www.narconews.com ) were described or referred to by me on the website as "the Banamex story": (Complaint, paragraph 10) "Describing it as ‘the Banamex story'"; (Complaint, paragraph 26) "referring to the articles generally as ‘the Banamex story'"; (Banamex memorandum, page 9) "He referred to the articles generally as ‘the Banamex story,'" and; (Banamex memorandum, page 36) "Giordano's oral and written statements about what he called ‘the Banamex story.'"

20. It is simply untrue that I described, referred to, or called any of the allegedly defamatory statements or articles, individually or in the aggregate, "the Banamex story."

21. That phrase, "the Banamex story," was a phrase Mr. Sam Dillon, a New York Times correspondent, made during a phone call in March 1999, long before the March 2000 appearance in New York or the April 2000 inauguration of www.narconews.com.

22. Other than the recounting of that telephone call, at no other moment, in any of the spoken appearances in New York, or in any other statement made on www.narconews.com, to the best of my memory, does the phrase "the Banamex story" appear in any form.

23. Also, it is appropriate to note that the polemic series that includes that phone call and the "Dillon Responds" commentary was titled "The Sam Dillon Story."

24. That was the headline, not "the Banamex story" (see page 236, "The Mexico Papers").

Complaint Exhibit B:

"The Story About Mario Menendez"

25. The list of eight web pages from www.narconews.com as exhibits in the Banamex complaint is out of chronological order.

26. The first of those exhibits is Banamex complaint Exhibit B, "Mario Renato Menendez Rodriguez."

27. The Banamex complaint takes words from this commentary out of context.

28. This commentary was, in fact, titled "Publisher's Statement," clearly placing it in the realm of opinion.

29. The Banamex complaint, using its technique of brandishing out-of-context "snippets" of my work to distort their meaning, lifts only two paragraphs from this lengthy article about a Mexican journalist's courage in the face of State persecution. During that article, I discuss my 1999 preparation of the Boston Phoenix article (Giordano Exhibit C). It is during that part of my "Publisher's Statement" that the following two paragraphs were lifted out of context by Banamex:

"Of course I had to consider the distinct possibility that the story was not true. And so I dedicated the next three months to researching and investigating the story. I listened to all sides …

"The preponderance of the evidence eventually converted into what lawyers call ‘beyond a reasonable doubt.' Indeed the banker was a drug trafficker, and, more startling, the U.S. Ambassador to Mexico and the White House knew it when they agreed to hold the ‘anti-drug' summit on his land." (Banamex complaint, paragraph 27)

30. This article begins on page 203 of "The Mexico Papers" (Giordano Exhibit D).

31. At the top of the page there is a graphic image of the front page of the daily Por Esto! newspaper with a caption underneath. That caption says: "The Daily of Dignity, Identity and Sovereignty, that in nine years has been chosen by newspaper readers as the top regional daily and the third most widely read in all of Mexico."

32. That caption is underlined, instructing the reader that it contains a "link" to a supporting source of information. Specifically, that link brings the reader to the site of the daily Por Esto!, which at that time, and in the present, contains the February 1999 three part series by Menendez that is referred to in this same "Publisher's Statement."

33. The Banamex Complaint Exhibit B does not fairly represent this page because it fails to disclose to the court that this and other links appear on the page, directing the reader to the information supporting the opinions stated. "The Mexico Papers," does inform precisely where the links appear and describes the information that is disclosed and linked from the page. Even beyond specific links, the text itself of this and all commentaries on Narco News credit and disclose the sources of facts upon which the opinionated commentaries are based.

34. Beyond the link to Por Esto!'s website, there are other links, including to the article titled "The Sam Dillon Story" (Banamex Complaint Exhibit F, and "The Mexico Papers," page 236). There are also prominent links to the May 1999 Boston Phoenix story (Giordano first affidavit, Exhibit C), a May 2000 Narco News Bulletin story about the journalistic work of Por Esto! on another issue (which supports my praise for Menendez in this Publisher's Statement on a news story unrelated to Hernandez or Banamex) titled "Helicopter Robbed at Gunpoint" ("The Mexico Papers," page 107), my republication of Menendez's "Dare to Legalize" that had been previously published in the daily Por Esto! in Mexico (Banamex Complaint Exhibit C, and "The Mexico Papers," page 214), repeated links to the website of Por Esto!, to "The Sam Dillon Story," and to "Dare to Legalize" (Ibid).

35. These links constitute part of the disclosure of facts that supported the opinions stated. The text itself adds other recitations that also support the opinions.

36. The tone of this "Publisher's Statement" is entirely autobiographical on my part, and speaks in the first person, from the point of view of a journalist viewing with great enthusiasm the work of another journalist, which is another clear signal to the reader that it constituted opinion and argument.

37. In paragraph 31 of its complaint, Banamex lifts six statements from this "Publisher's Statement" that included approximately 40 full paragraphs of text.

38. The Banamex complaint does not reveal that it cut-and-pasted that text to make it appear as if those separate statements read as one continuous text. Banamex does not even use ellipses, thus declining to divulge to the Court its taking of words out of their full context. One must read the "Publisher's Statement" and accompanying links, as well as "The Mexico Papers," in order to determine full context.

39. Based on these six out-of-context "snippets," the Banamex complaint alleges that "By these statements, Defendant Giordano and Defendant The Narco News Bulletin intended to convey, did convey, and were reasonably understood by readers of The Narco News Bulletin as conveying that Banamex is controlled and managed by a criminal drug trafficker. These assertions of fact are false, malicious and defamatory, and Defendants knew them to be false when made, or made them with reckless disregard for the Truth. Indeed, defendants had no photographs of cocaine on Hernandez's property." (Banamex complaint, paragraph 31).

40. My statements were not and are not false, nor malicious, nor defamatory, nor "of and concerning" Banamex (which is only mentioned in this Publisher's Statement to appropriately identify Hernandez, who was, first, defined as "the host of the Clinton-Zedillo drug summit" with a specific link from that exact point in the Publisher's Statement to the 1999 Boston Phoenix story (Giordano affidavit, Exhibit C).

41. This fact also underscores the main reason it was necessary to write about Hernandez at all: He was host to a presidential anti-drug summit after Por Esto! had accused him of narco-trafficking. This is an important story. It is a story with its nexus in public policy, specifically in Mexico City and Washington, as well as on the Yucatan Peninsula of Mexico. It involves the behavior of presidents and public officials.

42. The first mention of Roberto Hernandez in this Publisher's Statement was:

Por Esto! had a banner headline with the name of the powerful banker who hosted the presidential anti-drug summit. It said: "Roberto Hernández Ramírez: Narcotraficante."

There were photographs, dozens of them, of cocaine, of once-pristine beaches littered with cocaine containers, of the dead body of a narco-sailor washed upon the shore, of a private airfield on the banker's beachfront properties... all supported by witness testimony, documents, facts, and something that one rarely sees in the US media: historic memory. The article was part of a three-part series that Por Esto! ran on that Valentine's Day weekend of '99.

43. The Publisher's Statement began with the accurate statement that "Por Esto! had a banner headline with the name of the powerful banker" (Banamex is not even mentioned here). I did not call Mr. Hernandez "narcotraficante" (in Spanish), as alleged. The reality is that I accurately described a headline that I read in Por Esto! while telling a first-person autobiographical story about journalism and journalists.

44. Banamex also claimed in paragraph 31 that "Indeed, defendants had no photographs of cocaine on Hernandez's property." I presume that is in response to my statement that "There were photographs, dozens of them, of once-pristine beaches littered with cocaine containers, of the dead body of a narco-sailor washed upon the shore, of a private airfield on the banker's beachfront properties… all supported by witness testimony, documents, facts …"

45. The recited Por Esto! series did indeed have two photographs of cocaine that had been seized by Mexican authorities on the properties of Hernandez. (The Court has copies of these photographs in the large number of Exhibits presented by Defendant Menendez in his motion to dismiss). One of those photographs appears on my article represented by Banamex Exhibit G ("Where is Vicente Fox Today?"), and it is captioned as such. That article also disclosed the photographs of Columbian-made containers associated with cocaine trafficking-–"cocaine containers"--on the beaches of Hernandez's properties. All of those photos-–about 41 of them –-appeared in the recited Por Esto! series (and were shown on the wide screen at the prior Columbia University Law School forum by Menendez, which was referred to in this Publisher's Statement.) The readers of my Publisher's Statement had ample access to the supporting facts in order to form their own opinions to what was clearly an opinion and argument by me.

46. Therefore, it is clear that Banamex has not (here or anywhere in its complaint) demonstrated with "convincing clarity" that I knew anything to be false. This is an affidavit. I swear under oath that I never said anything knowing it to be false. Banamex has not offered a shred of sworn testimony or other allowable evidence to suggest knowledge by me or Narco News Bulletin of falsehood.

47. As I stated on Narco News Bulletin from the first day of its publication, I spoke my truth. I have always acknowledged that others have their truths and I believe I have always recited the facts upon which my opinions were based out of a respect for the reader (or listener) so that he and she could form their own opinions based on those same facts.

48. I wish to address the statement I made about "what lawyers call beyond a reasonable doubt." Banamex, in its complaint and its memorandum, leans very heavily on those words, which were in my "Publisher's Statement." It is a misguided and disingenuous attempt to portray my opinions as statements of actionable fact and not opinion.

49. The use of the words clearly implies that, like a lawyer, I was making an argument in favor of my opinion, just as jurors are instructed by judges to reach their opinions as to whether particular proof rises to the level of proof beyond a reasonable doubt.

50. Banamex also claims stated in its complaint that "Giordano claimed that he also had personally investigated Menendez's allegations for three months" (Banamex complaint, paragraph 27).

51. Banamex has offered no sworn testimony or evidence that I did not investigate the story. The record I have already submitted reflects otherwise. The disclosed and linked-to 1999 Boston Phoenix story reveals an extensive investigation on my part.

52. This question of whether I "personally investigated" the stories or not is also another example of why this case, if it belongs anywhere, belongs in Mexico. My investigation was in Mexico. All witnesses and supporting information to that investigation were and remain in Mexico, and speak Spanish.

Complaint Exhibit C:

"Dare to Legalize" by Mario Menendez

53. Banamex's allegations regarding Complaint Exhibit C ("Dare to Legalize," by Mario Menendez, see "The Mexico Papers," page 214) are insufficient to include that text in a lawsuit in New York because it was not an original publication, but, rather, a re-publication of an article already published in the Mexican newspaper Por Esto!

54. The article clearly states, as its first sentence, that it was a translation of a previously published article: "The following report was published in the daily Por Esto!, the third most widely read newspaper in Mexico, on May 22, 2000, and translated to English by The Narco News Bulletin" (Banamex Exhibit C, and "The Mexico Papers," page 214).

55. Banamex has properly not brought suit against articles published in Por Esto! in New York.

56. Banamex, properly, did not set forth in its Complaint that any translation constitutes a new publication. Even if that were a potential issue here, Banamex did not allege it, and therefore it is moot.

57. Banamex, properly, did not argue that my translation changed the text or added to it.

58. Banamex properly did not allege that any words from my brief introduction of the article were defamatory. Therefore, the Banamex complaint is only directed toward the text of the translation.

59. Banamex did petition the Mexican attorney general to prosecute Menendez for this article in Mexico, and Banamex lost. As a matter of policy, this issue has already had its day in Court, in Mexico, where it belongs.

60. That Banamex includes this article and one other translation (Exhibit I, authored by Mexican national columnist Isabel Arvide) in the complaint against Narco News Bulletin and I, points to the importance of the Court examining the "full context" of the entire work named Narco News Bulletin. In the Narco News Bulletin "Opening Statement" of April 18, 2000 (see "The Mexico Papers," page 8), I state: "This newsletter relays what the Mexican and Latin American press is saying about the drug war." The "Opening Statement" goes on to state:

Many of these stories will appear to English-speaking readers as out-of-context to the media-driven "consensus" within the United States regarding the drug war. These stories are not reported in the United States or other world powers: the very nations that pride themselves on freedom of the press. Why not? Ineptness? Intent? The imposed silence of a market-driven media? Each of these ills is a factor and Narco News will take no prisoners in afflicting the comfortable members of the Fourth Estate, one at a time, for their role in the whole mess. Artificially created consensus--based on untruths and lack of information--always breaks. Each time it shatters, that fracture is called history.

The Narco News Bulletin does not claim objectivity: we are out to break the manufactured consensus north of the border, where the illusion that the drug war is about combatting drugs remains the dominant discourse. In the South, as the stories we translate and summarize demonstrate, a new consensus, based on the reality of drug prohibition between nations and peoples, is already under construction. The Narco News Bulletin likewise seeks to comfort the afflicted members of the press who practice authentic journalism. Latin American journalists (and a very few conscientious gringos), living daily at the drug war front and facing greater danger than the desk jockeys of the mass media, are doing a better job at covering the problem than those who have grown soft in the land of the First Amendment.

61. The Opening Statement, the very first defining statement of what I do under the name "Narco News Bulletin," says very clearly, "The Narco News Bulletin does not claim objectivity: we are out to break the manufactured consensus…" It also states a very activist role in society and in journalism, that the work "seeks to comfort the afflicted members of the press who practice authentic journalism. Latin American journalists…." It is clearly an entire work that signals strongly to the reader that it is pure opinion.

62. Narco News Bulletin is expressly "of and concerning" important policy issues: the drug war in Latin America, particularly in Mexico during the relevant time period, and the behavior of the media, particularly in Mexico during this period.

Banamex Exhibit D:

"1994: The Consolidation of Narco-Power"

63. Paragraph 30 of the Banamex complaint claims this commentary –-part of a series of 16 stories titled "Election Fraud and the Narco"--about past and present elections in Mexico leading up to the July 2, 2000 presidential vote, was improper.

64. The Banamex complaint alleges that "Giordano again falsely and maliciously portrayed the "Banamex CEO" as a criminal cocaine trafficker and declared that he had purchased Banamex with illegal drug profits." (Banamex Complaint, paragraph 30).

65. Again, Banamex relies on its "snippets" strategy, taking statements out of context in isolation of what precedes and follows them.

66. Banamex does not inform the Court that this story was part of a stated series that certainly must be examined as a whole.

67. The first part of the series is entitled "Editorial" placing it, and the stories that followed, in the realm of opinion. The whole thing was clearly an argument. That first part stated that "strange behavior from Washington has everything to do with protecting the fragile US-imposed prohibition on drugs. It is a prohibition that perhaps once served other goals--it never made a dent in the drug trade--but now it is making a mess of every other policy it touches: economic, political, human rights, immigration, democracy itself. The war-on-drugs is the lynchpin of injustice in the hemisphere. And until that problem is tackled, there will be no democracy, nor human rights, in our América."

68. The next three parts of the series were historical reviews of previous election years in Mexico, titled: "1988: The Narco-President Wins by Electoral Fraud." It was followed by "1994: The Consolidation of Narco-Power" (Banamex Complaint Exhibit D and "The Mexico Papers," page 299). That story was followed in the series by "1999: The Stealing of Guerrero". The story alleged by Banamex to be defamatory was, in fact, part of a series meant to be read as a series.

69. Those first four parts of this 16-part series contained 17 different "links" to either other Narco News pages or to original information sources such as PBS Frontline's "Money, Murder and Mexico," the George H.W. Bush Library, the World Policy Foundation and others.

70. The story in question has six links, including to the daily Por Esto!, the PBS Frontline "Money, Murder and Mexico" series (which itself has extensive pages and links on the theme I was writing about.)

71. This page begins with the statement:

"The true bosses of the illegal drug trade do not appear on the FBI "Most Wanted" list. Nor do they appear on Washington's "narco-list" of "top foreign drug traffickers," a report that conveniently ignores a lot (i.e. the entire Mexican South) in its naming of mid-level managers, teamsters and enforcers in the cocaine trade. The real chiefs of drug trafficking appear, rather, in the Forbes magazine list of the wealthiest men on earth."

72. I wrote this opinion to outline the argument I was making. I then recited the supporting information and facts that supported my opinion, consistent with the definition of pure opinion at issue in this proceeding.

73. The next two sentences I wrote were: "The Chief Operating Officers of drug trafficking (sic) are not Mexicans, nor Colombians: they are US and European bankers, those who launder the illicit proceeds of drug trafficking. Institutions like Citibank of New York--as this report documents--are the true beneficiaries of the prohibition on drugs and its illegal profits."

74. This statement responds to prior articles I wrote under the name Narco News Bulletin about accusations made by the U.S. Ambassador to Mexico while in California that Mexico is the "world headquarters of narco-trafficking." This points to the importance of the Court considering the "full context" of all the statements made on www.narconews.com during the relevant time period. (see "Ambassador Big Mouth," page 15, "The Mexico Papers," and "U.S. is ‘World Headquarters of Drug Money Laundering," page 39, Ibid, as two important prior stories that kicked off this discussion).

75. It is obvious to any reasonable person that these statements did not concern Mexican bankers like Hernandez or Banamex because it specifically excludes "Mexicans or Colombians" and specifically includes "US and European bankers" as "the Chief Operating Officers of drug trafficking."

76. The next sentence is: "Mexico has an election coming up on July 2nd in which narco-money is already flowing freely in a blatant vote-buying campaign (also documented by this series, in both its historic and its present forms).

77. The Banamex Complaint cites the immediate following paragraphs as allegedly defamatory:

Today we look at the white-collar drug trafficking class of Mexico, those who consolidated their control over that country's piece of the narco under Presidents Salinas and Zedillo, Bush and Clinton.

Some of these men--like BANAMEX CEO Roberto Hernández Ramírez--are rags-to-riches stories. Hernández, according to Forbes magazine, could not afford to finance an American Express credit card in 1980. Today he earns the largest annual salary in Mexico--reported as $29 million dollars--and is a billionaire presiding over Mexico's top banking institution.

78. My very opinionated criticism is aimed, clearly, at "Presidents Salinas and Zedillo, Bush and Clinton." In other words, the entire piece is an argument about government behavior.

79. Banamex is only mentioned, appropriately, to describe Roberto Hernandez's known public role, which is necessary so as not to confuse him with others of the same or similar names. My description of him recites facts in Forbes magazine that Banamex has not disputed.

80. The Banamex complaint alleges that the text it plucked out from the immediate following paragraph, again using its counsel's "snippets" strategy, is defamatory and "of and concerning" Banamex. It accomplishes that deception (Banamex complaint paragraph 30) by placing an ellipsis to hide important clarifying information to the Court:

Other political businessmen, like … BANAMEX co-owner Alfredo Harp Helú appear with Hernández on the Forbes list. The first three have been widely implicated in narco-money, and the bankers all own banks in which officials have been arrested for drug money laundering.

81. But a reading of the full paragraph specifically excludes Hernandez and Harp Helu, the Banamex officials, from the description of "widely implicated in narco-money." The full unabridged text of the paragraph reads:

Other political businessmen, like Carlos Hank González, his son Carlos Hank Rohn, TV Azteca owner Ricardo Salinas Pliego, Serfin bank owner Adrián Sada González, Bancomer owner Eugenio Garza Lagüera, Banorte owner Roberto González, and BANAMEX co-owner Alfredo Harp Helú appear with Hernández on the Forbes list. The first three have been widely implicated in narco-money, and the bankers all own banks in which officials have been arrested for drug money laundering. (Emphasis added.)

82. Thus, the paragraph's reference to "the first three" of the businessmen specifically refers to "Carlos Hank Gonzales, his son Carlos Hank Rohn, (and) TV Azteca owner Ricardo Salinas Pliego." None of these men, to my knowledge, have anything to do with Banamex. Indeed, the first two are banking competitors and the third, the TV station owner, is a competitor to the Televisa TV network that includes Banamex owner Hernandez on its board.

83. This also disproves the false accusation made by Banamex in its complaint that I intentionally set out to defame Banamex or its owner by participating in an invented "scheme to extort money" from Banamex. Here, I am writing these opinions about its competitors. I don't choose sides between businessmen and bankers. It was necessary to write about the system that the aforementioned presidents permitted.

84. The last sentence of that paragraph, that "the bankers all own banks in which officials have been arrested for drug money laundering" has not been contested by Banamex in its complaint. It is undisputed that a 1998 press release by the Federal Reserve Board listed the banks whose officials have been arrested for drug money laundering, and that two Banamex officials indeed were "arrested for drug money laundering" in 1998.

85. In the full context of the work "The Mexico Papers" under the name of Narco News Bulletin, that fact was already and specifically recited as coming from the periodical "Money Laundering Alert," with a link to that periodical:

Washington-backed Mexican presidential candidate Francisco Labastida--to whom was he sending signals? --then went to the Gulf state of Veracruz accompanied by Roberto Hernández Ramírez, president of BANAMEX, the National Bank of Mexico.

BANAMEX has been targeted by the US Federal Reserve Board utilizing its "Feds Death Penalty" law against drug money washing (see Money Laundering Alert, May 1999). 1

1 Denotes Link to Money Laundering Alert from www.narconews.com

86. Thus, my opinions recited the facts relied upon, linked to the source of those facts from www.narconews.com. It was true, and Banamex has not alleged that that statement was false. Banamex officials had been arrested for drug money laundering.

87. The next set of "snippets" from this story as taken out-of-context by the Banamex complaint is:

Salinas became president through a massive and corrupt act of election fraud …

88. Banamex, which in its memorandum accuses me of being "too cute by half," did something more than half-cute at this point in its complaint. It withheld from the Court the evidence that this story was, in fact, part of a series that should be read as a whole. The full sentence, without the now signature "Banamex Complaint Ellipsis" reads:

Salinas became president through a massive and corrupt act of election fraud (see Part One of this series2 for the facts).

2 Link to part one of this series ("1988: The Fraud that Keeps on Taking").

89. Thus, the recitation of facts about Carlos Salinas clearly provided a link and a statement that this story was part of a series, and it even instructed the reader to "see Part One of this series3 for the facts."

3 Link to part one of this series ("1988: The Fraud that Keeps on Taking").

90. In fact, this story contains six such links and the series of 16 stories contains scores of them, which must recite disclosed facts to back up my "Editorial" opinion.

91. Interestingly, some of my harshest opinions about Roberto Hernandez as expressed on www.narconews.com were not cited in the complaint. One example begins on page 30 of "The Mexico Papers":

Narco News commentary: The BANAMEX president is still smarting from the public confrontation he recently provoked with Cárdenas, the elected governor of Mexico City (on leave to run for president), during the March 4th National Banking Convention in Acapulco. There, Hernández, in front of reporters, told Cárdenas that his speech - in which the left's standard bearer promised to fire the current bank regulators of the nation - was in "very bad taste." Cárdenas replied to the presumed narco-banker, "Look, Roberto, we have a difference of point of view. What did you expect?" Later that day, Cárdenas spoke to a rally of supporters about the angry reaction of Hernández--Forbes magazine's 289th richest man in the world--saying, "We will see who this banker is... It is said that he is one of the prestanombres (financial front men, or "name loaners") for (ex-Mexican president and presumed narco-trafficker in self-imposed exile) Carlos Salinas de Gortari."

And this just in: BANAMEX president Hernández is reportedly on the secret list of illegal beneficiaries of the Fobaproa bank scandal. The Fobaproa fund, something akin to the FDIC in the US, dished out billions of dollars in never-paid loans, many of which were then used to further cover up the laundering of drug money. Federal deputy Dolores Padierna of the PRD party told reporters Andrea Becerril and Juan Antonio Zuñiga of La Jornada on Sunday, March 18th, that the federal regime does not want the list of Fobaproa beneficiaries released to the public because to open these files "would mean the re-fall of the Mexican political system.... The day that this list is known the political system falls, and Zedillo falls."

"Roberto Hernández, the leading bankers, the PRI, and the government don't want this list to be known because it will demonstrate the cozyness between the top political powers and the giant financial groups," said Padierna.

Cárdenas, who has struggled in third place in the public opinion polls for the presidential grail, saw his support nearly double overnight--after he took on Hernández and the nation's banks--from 11 percent to 22 percent, according to one poll.

92. Banamex wisely chose not to allege that my accurate reciting of the Mexico City Governor's public accusation that Hernandez is said to be a "prestanombre" or "name-loaner" for ex-President Salinas is false. I simply place that April 2000 statement here to provide the Court with important context regarding my opinions expressed in Banamex Complaint Exhibit D, and because Salinas is such a key figure in this commentary.

93. That April 4, 2000 statement by the presidential candidate had a very profound impact on my subsequent opinions about Hernandez. Cardenas, one of the few Mexican politicians with a pristine reputation for honesty, and someone I personally admire, made his statement between the March 2000 New York appearances and the publication of Narco News Bulletin on the Internet later in April 2000. It is extremely relevant to my opinions expressed throughout Narco News Bulletin, and particularly those in Complaint Exhibit D.

94. This is one example of why my statements on the Internet, having come after the March 2000 New York appearances, represent a new evolution in my opinions and must be examined separately and distinctly by the Court. Banamex should not be allowed to take a "snippet" from slander to establish an element of libel or vice versa.

95. Returning to Exhibit D, the next "snippet" taken out-of-context by the Banamex complaint refers to former president Salinas. Banamex, again, used its "ellipsis strategy" to hide information from the Court and to distort my words. The Banamex complaint version reads:

During his term he privatized the banking industry. And he sold the banks to men who were not bankers: Roberto Hernández… and Alfredo Harp Helú were no more professional bankers than TV Azteca owner Ricardo Salinas Pliego… was a professional journalist.

96. The full paragraph, however, mentioned important competitors to Hernandez and Harp, making the statements "of and concerning" a political matter; an political system, in the context of a story on political fundraising. Also excised from the Banamex complaint version is a very strong opinion about Hernandez's TV competitor Salinas Pliego.

During his term he privatized the banking industry. And he sold the banks to men who were not bankers: Roberto Hernández, Adrián Sada, Roberto González and Alfredo Harp Helú were no more professional bankers than TV Azteca owner Ricardo Salinas Pliego--who bought the station with $29.5 million dollars in laundered money provided by Salinas' brother--was a professional journalist. Salinas sold the banks and other industries to his group; a club of political supporters of the PRI, known as the "technocrats" or "neoliberals."

97. It provides important context to my expressed opinions about an entire political system.

98. The next set of "snippets" from the Banamex complaint read as follows:

The single-biggest winner in the wave of bank privatizations was Roberto Hernández Ramírez, who received the largest prize of all: BANAMEX, the National Bank of Mexico. He and his team of investors paid roughly one billion US dollars for BANAMEX ….

Where did this group of neo-bankers obtain the capital to purchase these banks? It will never be known. A suspicious fire in the federal treasury department destroyed all the documents pertaining to the bank sales. But the tracks have not been entirely charred nor covered.

Roberto Hernández and others purchased the nation's banks with narco-money …

99. The information excised by Banamex with its Ellipsis Strategy is contained where the ellipsis is placed and by the Banamex complaint's withholding of the important paragraph that immediately followed (they are underlined here). The full paragraphs read:

The single-biggest winner in the wave of bank privatizations was Roberto Hernández Ramírez, who received the largest prize of all: BANAMEX, the National Bank of Mexico. He and his team of investors paid roughly one billion US dollars for BANAMEX. The first year's recorded profits equalled, already, one-half of the investment: $500 million dollars.

Where did this group of neo-bankers obtain the capital to purchase these banks? It will never be known. A suspicious fire in the federal treasury department destroyed all the documents pertaining to the bank sales. But the tracks have not been entirely charred nor covered.

Roberto Hernández and others purchased the nation's banks with narco-money.

The privatization of Mexico's banks was specifically designed by Salinas to make possible the laundering of illegal drug money. And President Salinas--using his brother, Raúl as the bag man--built into the plan his own enrichment. It was the single-largest get-rich-quick scheme in human history. (Emphasis added.)

100. These were statements about public policy and a president-politician.

101. The statement "Roberto Hernandez and others purchased the nation's bank with narco-money" receives important context by the immediate words that follow: that it was about a "the privatization of Mexico's banks" and thus an opinion in the realm of important government policy. Privatization is commonly understood to describe the process when a government entity is sold to the private sector. By definition, privatization can only be done by a government. That "Roberto Hernandez and others purchased the nation's banks with narco-money" is not "of and concerning" Banamex, because, indeed, the historical reference (and this essay is previously described as "a review of history") refers both to Hernandez before he was at all associated with Banamex and to an era when Banamex was a nationalized bank, the property of government. As such, Banamex, even as a government entity at the time, clearly had no decision-making power over to whom Salinas sold that government property. (And again, above, it is already stated that this is about Salinas' behavior, not Banamex's, when I said: "During his (Salinas') term he privatized the banking industry. And he (Salinas) sold the banks to men who were not bankers." (Emphasis added.)

102. I have every right and duty to express my opinions about what presidents and governments do.

103. Banamex cannot claim any statement about Hernandez before he was associated with the bank are "of and concerning" Banamex. They are not.

104. This is especially true because during that time period, Banamex was government property.

105. My statement was expressly about "Hernandez and others." (Emphasis added.) The "others" are mentioned by name throughout this web page. These were clearly statements about an entire political system. And the facts behind those opinions were disclosed.

106. No criminal activity by Banamex as an institution is implied or alleged by these statements.

107. Roberto Hernandez is not the plaintiff here.

108. Carlos Salinas is not the plaintiff here.

109. Statements about the activities of Hernandez-–a public figure who promotes his celebrity, poses for media photos, and is a political campaigner and fundraiser–-are not "of and concerning" Banamex even when in reference to his activities after he purchased the bank from the government. And they are certainly not statements "of and concerning" Banamex when they constitute a "review of history" about times when Hernandez was not at all associated with the operation of Banamex.

110. The Banamex complaint raises two more sets of "snippets" from its Exhibit D.

111. The next "snippet," still in paragraph 30 of the complaint, reads:

Roberto Hernández had been, according to the newspaper Por Esto!, the financial engineer of the Gulf Cartel, launched in the 1980s by Juan N. Guerra and based in the Texas border city of Matamoros, Tamaulipas. The Hernández narco-trafficking story has been widely explored by Por Esto! since its first report on December 16, 1996, and also by The Narco News Bulletin.

And yet Hernández quickly surpassed the legendary drug-trafficker Juan N. Guerra, who remained a kind of narco-ecologist: Guerra's primary product was marijuana. Hernández entered the lucrative cocaine trade, as documented by the photos of cocaine trafficking on his Caribbean beachfront properties.

112. The Banamex complaint fails to inform the Court that the words "Por Esto!" contain a link to that Mexican newspaper, reinforcing the already recited and accurate basis for my opinion as "according to the newspaper Por Esto!"

113. Banamex has not alleged that it is inaccurate that Por Esto! reported that Hernandez had been "financial engineer of the Gulf Cartel."

114. This "snippet" excises important clarifying information both before and after the snippet. The context was, first, provided by the prior paragraph, excised by Banamex from the complaint, about President Salinas:

He also assured that his political party, the PRI, would receive its secret slush fund for the 1994 elections (after the 1988 electoral fraud was exposed, Salinas needed to develop a more sophisticated election-stealing plan). Roberto Hernández and other members of the Salinas project would see to that as part of their end of the deal.

115. At this point I launched into a long commentary about political fundraising by the Salinas regime, in which all my opinions about Hernandez recite the information (from Por Esto!, from PBS Frontline, and from a book by journalist Andres Oppenheimer, among other sources of information) upon which my opinions throughout www.narconews.com were based.

116. The next 20 or so paragraphs are mainly commentary regarding a competing banker and political fundraiser, Carlos Cabal Peniche and an "internecine battle between oligarchs."

117. The commentary on Cabal Peniche is followed by my commentary on political fundraising by the Mexican ruling party of Presidents Salinas and Zedillo, and returns to mention Roberto Hernandez in the context of his role as a political fundraiser. My opinions clearly and specifically recite and disclose the facts and give the reader access to the same facts in order to form his and her own opinion:

We lead you to the night of February 23, 1993, toward the end of the Salinas presidency. Some of the names you have read above--Roberto Hernández is central to this story--you will now read again.

The best account of how drug money and the profits from its related FOBAPROA robbery were diverted into the 1994 presidential campaign, illegally and secretly, comes from the report by Miami Herald correspondent Andrés Oppenheimer, in his book: Bordering on Chaos - Guerrillas, Stockbrokers, Politicians and Mexico's Road to Prosperity (1996, Little, Brown and Company).

Oppenheimer is not a leftist, nor is he anti-business. To the contrary, he is known worldwide for his hostility to the Cuban and other left-leaning governments. This may in fact have helped him gain the sources to reveal this story. He is also a Pulitzer prize winner in journalism.

In his book, Oppenheimer reports on the $750 million dollar banquet hosted by Salinas with the 30 Mexican businessmen who were most enriched by his presidency. Narco News will provide a link to the full chapter by Oppenheimer below, but here are a few key excerpts so that our readers may understand the magnitude of The Buying of the Election 1994.

118. The excerpt from the Oppenheimer book, which includes a link to the full chapter and urges readers to review the entire Oppenheimer text, tells of a secret political fundraiser hosted by Roberto Hernandez in which 30 Mexican oligarchs gave at least $25 million dollars apiece to a slush fund for the ruling party. Banamex, wisely, has not alleged any falsehood regarding this part of the commentary. However, Banamex does in its complaint and memorandum, improperly allege that I claimed, in another story, that Banamex engages in illegal bribery (which, as will be explained, I did not). However, in light of Oppenheimer's 1996 report on what he termed an illegal political fundraising scheme, my inclusion of the Oppenheimer excerpt on this page of www.narconews.com will provide important context when, later, this memorandum and affidavit discusses that invented bribery claim by Banamex.

119. The republished Oppenheimer text included this paragraph:

...Among the guests were television tycoon Don Emilio Azcarraga, known as El Tigre ("The Tiger"), described by Forbes magazine as the richest man in Latin America (the magazine estimated his net worth that year at $5.1 billion); telecommunications czar Don Carlos Slim (net worth: $3.7 billion); cement baron Lorenzo Zambrano (net worth: $2 billion); Bernardo Garza Sada (net worth: $2 billion); Jeronimo Arango (net worth: $1.1 billion); Angel Losada Gomez (net worth: $1.3 billion); Adrian Sada (net worth: $1 billion); and Carlos Hank Rohn, whose multimillion-dollar fortune was almost entirely in family-owned businesses and thus unaccountable. Mixed with the guests were party organizers Borja and Hernandez, who had--as an additional show of support for the party--provided the Paris-trained kitchen personnel of his Banamex bank to cater the event....

120. Banamex, wisely, does not allege any libel about my commentary that immediately followed the above paragraph:

Thus, when North Americans look at the photos of cocaine trafficking on Hernández properties and wonder--Why isn't this man in prison, or on the US "narco-list"? Why has the Mexican government persecuted the journalists who proved the narco-banker's illicit crimes? Why did President Bill Clinton agree to hold an "anti-drug" summit at Hernández' hacienda in 1999?--this story provides the answers. We return to Oppenheimer's splendidly-researched text:

....But how much were the business leaders supposed to fork out? The conversation went back and forth. Officials at the head table at first avoided giving a figure, then suggested that the PRI needed a campaign chest of at least $500 million. Then, Salinas's friend Roberto Hernández, the banker, threw out the figure that had been previously agreed upon between the three banquet organizers during their breakfast at the University Club.

"Mr. President, I commit myself to making my best effort to collect twenty-five million," Hernández said.

There was an awkward silence in the room.

"Mexican pesos or dollars?" one of the billionaire guests asked.

"Dollars," responded Hernández and Borrego, almost in chorus.

121. The paragraph authored by me, in between the Oppenheimer text, asks questions, which also signals to the reader that my words offer opinion, and make an argument in favor of that opinion. This is another example of how my statements here are clearly couched as opinions, and, at that, opinions mainly about government behavior. That paragraph also reiterates that I asked the reader to look to the sources of others to form his and her own opinion based on disclosed facts.

122. The last statement from this web page alleged in the Banamex complaint to be defamatory was:

The story does not, of course, end there. More clear, now than ever, is the role of some of these magnates-–like the Banamex owner Hernandez and the Carlos Hank family--at the highest levels of drug trafficking.

123. My suggestion that "the story does not, of course, end there" points to the future parts of the 16-part series, and suggest the issue is not closed.

124. Banamex does not factually contest Hernandez's relation with ex-president Salinas.

125. Salinas, as frequently stated throughout www.narconews.com, and by disclosed facts (in particular, this story's link to the PBS Frontline series and web site on "Money, Murder and Mexico") was a Narco-President "at the highest levels of drug trafficking." I began this commentary by stating that "he (Salinas) ought to be" on the Forbes' list: "ought to be" clearly signals that we are discussing opinions. It is my opinion that those "magnates" who raised money on a grand scale for this Narco-President and his party played a "role…at the highest levels of drug trafficking." And that is also backed by information repeatedly disclosed throughout Narco News Bulletin during the relevant time period of this lawsuit.

126. Likewise, I made a bold statement of opinion at the very beginning of this web page commentary: "The true bosses of the illegal drug trade do not appear on the FBI "Most Wanted" list. Nor do they appear on Washington's "narco-list" of "top foreign drug traffickers,"…The real chiefs of drug trafficking appear, rather, in the Forbes magazine list of the wealthiest men on earth." It strongly signals to the reader that this commentary is a very bold and robust offering of opinion. It is an opinion that is not at all commonly accepted in society. It is an opinion meant to shock and awaken the public to what I believe is the reality of the corrupt war on drugs. It implicitly criticizes government for looking the other way at some narco-traffickers while persecuting others. (It does not imply, however, that all men on the Forbes list are in the category of drug traffickers, rather, simply, that some of them are in that category, and then goes on to disclose what I base that opinion on.)

127. The next section of this web page speaks in detail about my opinions on the activities of banker-politician Carlos Hank Gonzalez, a competitor of Hernandez and of Banamex.

128. My commentary on this web page, as stated, began in the realm of protected opinion. It also ended with protected opinion. It ends with this passage:

But why, you may ask, isn't the Mexican public more upset about narco money in their campaigns?

We posed this question to a prominent Oaxaca businessman, who answered it very frankly. Indeed, we have heard this sentiment from many Mexican citizens who have nothing to do with drugs or drug money.

"Narco money in the campaign?" he repeated the question. "Good! The elections are the only time when the narco reinvests in Mexico! The rest of the time their money is put into Swiss banks, into Citibank, into Grand Cayman, everywhere but here. For all the pain we Mexicans receive from the narco, the election is the only time when they give anything back to our national economy."

"That's probably not the answer you wanted to hear," he concluded. "But it is the reality of my country."

129. This also places my commentary on this particular web page in the category of a lament. A lament is "a passionate expression of grief" (Oxford American Dictionary). In this commentary, I express many emotions: sadness, indignation, frustration… and all these emotions also clearly signal to the reader that an opinion is being offered about an important public policy issue: repeatedly stated throughout www.narconews.com as "the war on drugs."

130. Thus, Banamex Complaint Exhibit D, like the entire work and argument made under the name Narco News Bulletin, clearly rests in the legal realm of protected opinion and cannot, by definition, be considered defamatory.

Banamex Complaint Exhibit E:

"Dillon Responds"

131. Paragraph 32 of the Banamex complaint alleges that this web page on www.narconews.com defames Banamex. But on this web page I do not discuss the corporate behavior of Banamex.

132. Banamex, improperly, fails to disclose to the Court to what Sam Dillon was responding on the page titled "Dillon Responds": he was responding to a column by Carlos Ramirez in El Universal, a major Mexico City daily, not to me.

133. The Ramirez column was translated and republished by me on www.narconews.com and although it is not offered by Banamex as an exhibit, it appears, with other related stories, in "The Mexico Papers" (page 248, titled "New York Times Stumbles in Mexico" by Carlos Ramirez). The Court should give careful reading to the entire series of articles by me and by other journalists (including in Banamex Complaint Exhibit A, the Village Voice story by Cynthia Cotts). A direct and heated debate among and between journalists, and particularly between Mr. Sam Dillon of the New York Times, his allies, and me, and also other journalists, was going on. What we were discussing and arguing about are issues very important to journalism and speech in our society: how the media does or does not do its job.

134. Every single reference to Mr. Dillon (including in Banamex complaint Exhibits A, B, E and F, and during the Columbia University forum) is clearly signaled as being part and parcel of a heated and antagonistic dispute between Mr. Dillon and me, in which I state, accurately, that in a March 1999 telephone call from him in Mexico to me in Mexico he threatened me of the consequences he would perpetrate if I published what he called "the Banamex story" later that Spring of 1999 in the Boston Phoenix.

135. Banamex raises the following objection to part of the "Dillon Responds" page: "Giordano referred to the "Banamex owner and presumed drug trafficker Roberto Hernandez Ramirez" and asserted that a Mexican television company is "linked to narco-money" because it is partly owned by Hernandez."

136. That "Mexican television company," Televisa, is not the plaintiff here.

137. Statements that mention Televisa are not "of and concerning" Banamex.

138. To my knowledge, Mr. Hernandez's membership and responsibilities as a board member of Televisa are independent of whatever he does at Banamex.

139. The "Dillon Responds" page also contains various links to the information upon which my opinions were based: 1., the Carlos Ramirez column to which Dillon responded; 2., El Universal newspaper, where the Ramirez column appeared; 3., the "links page" of www.narconews.com (which appears as an exhibit in the Banamex memorandum); 4., The New York Times; 5., "The Sam Dillon Story" (Banamex Complaint Exhibit F, and "The Mexico Papers," page 236); The May 1999 Boston Phoenix story (Giordano Exhibit C) (this is precisely linked to from the exact set of words complained about by Banamex: "presumed drug-trafficker Roberto Hernandez Ramirez" creating a prima facie disclosure of the facts it was based upon, something the Banamex complaint chose to withhold from the court in the form it offered this page as an Exhibit); "The Narco Media" ("The Mexico Papers, page 115); "Dallas A.M. News and New York Times Election Stories" ("The Mexico Papers," page 31); "…And Yet the Very Next Day He Walks with ‘Narco-Banker'" ("The Mexico Papers," page 28); The February 2000 Village Voice column (Banamex Complaint Exhibit A); A Washington Office on Latin America Report on the Mexican Elections; The Mexican Federal Institute of Elections; "Mario Menendez Rodriguez" (Banamex Complaint Exhibit B and "The Mexico Papers," page 209); and various links to the "Home Page" of Narco News Bulletin which directs readers on link paths to all its pages.

Banamex Complaint Exhibit F:

"The Sam Dillon Story"

140. Paragraph 33 of the Banamex Complaint alleges defamation with the following "snippets" taken out of context:

Defendant Giordano again falsely depicted Hernández as a drug trafficker. Identifying Hernández as the "owner of Banamex," Giordano repeatedly described him as a "narco-banker," referred to supposed "published photographs and a major investigative report on cocaine trafficking in the Caribbean beachfront properties of Roberto Hernández Ramirez," referred to "Mr. Hernández's cocaine trafficking," and indicated that "the people of the Yucatán peninsula widely considered the presidential host [Hernández] to be a major drug trafficker." Giordano also referred "to the cocaine trafficking in the Mr. Hernández's properties--complete with private airfield and 43 kilometers of beaches for Colombian cocaine boats to enter. . ."

141. Again, the Court must view the full context. The information that supports the opinions stated is clearly disclosed, linked to, does not imply undisclosed information, is not "of and concerning" Banamex and is clearly in the realm of protected opinion.

142. One of the first things signaling to the reader that this is opinion is that the headline is a parody of the New York Times masthead with the motto: "All the News that Wasn't Printed." The style of my writing in this commentary is radically different than the rest of what appears on www.narconews.com.

143. This story must be read in its entirely. And the accompanying stories on "The Mexico Papers" (Giordano Exhibit D) by Carlos Ramirez and by me about the entire saga of Sam Dillon's unsolicited intrusion into and interference with my work provides important context for the Court.

144. The story repeatedly discloses the sources of information upon which the opinions expressed in this New York Times parody are based: The stories in Por Esto! about the activities on Hernandez properties; other reports in the Mexican press, specifically by Proceso magazine, Carlos Ramirez of El Universal, Julio Hernandez Lopez of La Jornada, Jaime Aviles of La Jornada, and two Village Voice stories by Cynthia Cotts.

145. The story implies no undisclosed information.

146. The story is also a fair account of Mexican judicial proceedings, and therefore not actionable. It states:

The Por Esto! editor was, at that time, under fierce attack by a BANAMEX lawsuit and persecution by the federal Attorney General's office; they alleged that Por Esto! had illegally trespassed on the banker's properties when they took the photographs of cocaine trafficking. The federal Attorney General -- long one of Mr. Dillon's favorite "official sources" -- had, in fact, refused to investigate the criminal complaint filed by Por Esto! against Mr. Hernández for drug trafficking, environmental destruction and damage to ancient Mayan ruins on his properties.

In other words, to the Mexican Attorney General, the photos of cocaine trafficking on Mr. Hernández property were good enough to wield as evidence against the Por Esto! photographer González Subirats and the other authentic journalists at the newspaper for trespassing, but the more serious crimes that the photographs exposed would remain above the law.

In September of 1999, the Mexican Supreme Court dismissed the BANAMEX lawsuit against Mr. Menéndez, saying, "All the reports by Mr. Menéndez were based on the facts."

147. The Mexican Court's decision in September 1999, made before the founding of Narco News Bulletin in April 2000, and before the New York forums of March 2000, is devastating to the plaintiff's insufficiently argued claim of malice, or knowing falsehood, or reckless disregard for the truth. My statements had already received a judicial stamp of approval in Mexico.

Banamex Exhibit G:

"Where's Vicente Fox Today?"

148. Paragraph 34 of the Banamex complaint alleges that this web page is "defamatory" because it refers to Hernandez as "narco-banker" (in quotes), "narcotraficante" (as quotation and display of report in Por Esto!), that I described Hernandez's property as "the property of Roberto Hernandez, president of the banking group Banamex-Accival," and as "narco property," and as "the Cocaine peninsula" and that I referred to "the cocaine trafficking operation on Hernandez properties.":

149. Paragraph 34 of the Banamex complaint continues:

He stated that "the Caribbean beachfront properties of banker Roberto Hernandez Ramirez, of BANAMEX and the Forbes list, are operating as a key entry point for hundreds of tons of South American cocaine" and published photos with the following captions: "1. Por Esto! Reporters inside Roberto Hernandez properties in 1996, investigating what local fishermen reported as a huge cocaine trafficking operation protected by the owner. The cocaine boats entered by night into these estuaries and unloaded their illicit cargo, later to be sent North to the US in small airplanes… 3. The private airfield from which small planes fly north on Hernandez properties ‘without any governmental oversight.' 4. 200 kilos of cocaine seized on ‘Punta Pajaros', owned by Hernandez, the exact place where Mexico's President-Elect chose to spend his vacation 120 hours after winning the July 2, 2000 elections, as guest of the banker Hernandez."

150. Everything about this page, like others, signals to the reader that it is an argument of opinion. From the headline: "Where's Vicente Fox Today?" to the responses I provide: "Noooo… not with US drug czar Barry McCaffrey. No, not with Ambassador Davidow (that was Friday)." (Accompanied by a photo of Fox and McCaffrey together, and then by separate photos of Davidow and Fox.) The extended and heavily sarcastic spelling of the word "no" in the headlines as "Noooo…" immediately signals the very nature of this commentary as opinion.

151. The opinion immediately and repeatedly disclosed the information and sources upon which it was based. First, an article in El Universal, that reported on Fox's vacation on Hernandez's properties:

El Universal, July 8, 2000, reports:

"Vicente Fox Quesada and his family traveled yesterday on a vacation to the island of Punta Pajaros, Quintana Roo, property of Roberto Hernández, president of the banking group Banamex-Accival...."

152. The words "El Universal" contained a link to El Universal.

153. In between the El Universal text, I added my own comments, clearly in the realm of polemic and opinion:

Narco News must be making this up... The largest newspaper in Mexico is reporting that the President-elect is on the most famous narco-property of the Caribbean?

El Universal continues:

"Fox left Mexico City at midday to the Toluca airport. At 2 p.m. he boarded a private Cessna airplane, license number 650EASPC, to be taken to the city of Cancún, Quintana Roo. At 6:55 p.m. a helicopter transported Fox and his family to island of Punta Pajaros, located three hours by land and sea from the principle tourist zone of Mexico...."

But isn't that where the old boss Zedillo vacationed with the "narco-banker?"

El Universal continues:

"One cannot arrive easily at the island of Punta Pajaros. Armed people guard the island 24 hours a day. This place is frequented by President Ernesto Zedillo, who this weekend also happens to be in Quintana Roo..."

(Emphasis added to my opinions, which were displayed in a different color and indentation, clearly separating them from the source material of El Universal upon which, along with other disclosed information in this web page's commentary, they were based.)

154. Then, after quoting El Universal accurately on the armed island of Punta Pajaros, I disclosed and displayed another source of the opinions expressed: A map published in the daily Por Esto! of "The Cocaine Peninsula" ("La Peninsula de la Coca."). That map contained the following caption:

"The Cocaine Peninsula -- 43 kilometers of beach where tons of cocaine have been unloaded, owned by narco-banker Roberto Hernández Ramírez" SOURCE: the daily Por Esto! (Mexican Courts Ruled "All of these reports were based on the facts.")

155. Additionally, a link was provided to Por Esto!

156. The next part of the page is another headline: "From Coca-Cola to the Coca Peninsula." (Fox is a former Coca-Cola executive and he had just been elected president of Mexico). I used the Coca-Cola logo as part of the headline. This also clearly signals to the reader that this commentary was in the realm of opinion, and delivered with a touch of humor. It also reiterates what the first headline told the reader: This was a commentary about the behavior of a politician, a former governor and congress member, now president-elect. And it also rapidly brought two U.S. officials – the ambassador and the drug czar – into the commentary.

157. The commentary immediately follows with a headline: "Fox's New Summer Home?" (Again, with a question mark, also signaling opinion) and is followed by another disclosed source my opinions: an article from the daily La Jornada of Mexico City. The La Jornada article, like the El Universal article before it, and like my commentaries on Narco News Bulletin and elsewhere, appropriately identified Hernandez as "Roberto Hernández, president of the banking group Banamex-Accival."

158. The press and public must be able to identify public figures by the affiliation through which those public figures promote their celebrity. In Hernandez's case, it is his public role as owner of Banamex. As a matter of policy, for the court to therefore rule that any report regarding Hernandez is therefore "of and concerning" Banamex would create a very dangerous precedent, and invite all corporations into New York court to sue anyone who speaks or writes about the extracurricular activities of their officials. For example, under this potential precedent, the corporate producers of the TV show "The West Wing" could bring a flurry of lawsuits against all the people, even comedians like Jay Leno and David Letterman, who have commented upon the recent arrest of the founder and screenwriter of that program for possession of illegal hallucinogenic mushrooms. Or the New York Mets corporation could sue over any commentary on the drug problems of Daryll Strawberry. The Court must think of its own burden, as well, when considering Banamex's pleadings to open the doors of the Court to all corporations across the planet to sue over statements that mention the activities of anyone associated with the corporation.

159. The next section explicitly, in accordance with New York law regarding protected opinion, recites the facts that support the opinions expressed. As Parks v. Steinbrenner makes clear: New York also protects the right to be in error about interpretation of the facts as long as the reader or listener can review the recited facts and form his and her own opinion. Although I had never heard of Parks v. Steinbrenner when I wrote these words, they clearly follow its ruling to the letter and conform with its definition, and that of Steinhilber, of protected opinion. Reciting "the facts" by the name of "the facts" does not make something a statement of fact: To the contrary, it conforms exactly with New York's definition of protected opinion.

160. In this specific case, the second part of that headline, of equal size, further confirms the polemic and opinionated nature of the statement: "A Timeline of the Story the NY Times Failed to Squash." This is a clear reference to context that is recited and linked to in the text below it; the dispute between Mr. Dillon of the Times and I that permeates the entire work.

161. The very first item in the recited timeline says:

December 16, 1996: The daily 5 Por Esto!, Mexico's third most-read newspaper, reports that the Caribbean beachfront properties of banker Roberto Hernández Ramírez, of BANAMEX and the Forbes list, are operating as a key entry point for hundreds of tons of South American cocaine. Photos6 by Gonzalo Subirats of Por Esto!

5 Link to Por Esto!

6 Graphic image of photos by Gonzalo Subirats as published on front page of Por Esto!

162. Consistent with the Court's definition of protected opinion, it discloses the source – the newspaper Por Esto! and the photos themselves. It also links to the web page of Por Esto! There is not even a hint of undisclosed information.

163. In addition, the first opinions that Banamex alleges, and insufficiently so, as "defamatory" were captions on disclosed –-indeed, republished from a Por Esto! cover–-photos that any reader could look at and form their own opinions.

164. Banamex has not alleged that the captions were inaccurate portrayals of the photos.

165. Paragraph 35 of the Banamex complaint further alleges, that I "conveyed that Banamex and/or its Chairman and General Director attempted to bribe a Por Esto! reporter."

166. But as revealed by the "snippet" used by Banamex in its complaint, in no way did I convey, or even imply, that the bribe attempt upon reporter Renan Castro came from Banamex or its owner. I simply said "journalist Renan Castro is offered a bribe of $300,000 US dollars to denounce and discredit the story."

167. In fact, that attempted bribe could have come from any number of people or officials: The Mexican presidency, its ruling party, its attorney general, all of whom were notorious for using government funds to bribe reporters. In the parlance of Mexican journalism, government bribes of reporters are so famous that they have a nickname: "El Chayote." A Chayote is a green, spiny, fruit that is the color of U.S. dollars. It typically comes from government officials. Regardless, I made absolutely no speculation on a matter I did not know: where the bribe attempt came from. I stated my opinion strictly within the bounds of information I did know: that somebody tried to bribe my colleague Renan Castro. Banamex cannot sufficiently argue that this statement was "of and concerning" Banamex or implied any activity by Banamex or its officials because they were not even mentioned in the context of that statement.

168. The very next passage on this web page was not mentioned by the Banamex complaint. But it reveals that this discussion was also about important official proceedings in Mexico, that are absolutely privileged under New York law:

March 1997: The Por Esto! newspaper files criminal charges against Roberto Hernández Ramírez for narco-trafficking, destruction of the environment by the cocaine operation on a federally-protected nature reserve, and destruction of ancient Mayan ruins of Chac Mool on the Hernández properties.

The office of Mexican Attorney General Jorge Madrazo reacts not by investigating the facts on the banker and presidential-pal Hernández, but with a campaign of harrassment and threats against the journalists, and their family members, of Por Esto!

Divisions emerge within the Mexican federal government. The Armed Forces begin more aggressive patrolling of the waters along the Caribbean coast of Quintana Roo. Smaller and competing cocaine traffickers begin to switch their routes from the Caribbean to the Pacific Ocean. But presidential orders come down that the Armed Forces are forbidden from entering the properties of Roberto Hernández Ramírez. President Ernesto Zedillo continues vacationing with Hernández at "Punta Pajaros."

169. That the newspaper Por Esto! filed criminal charges against Hernandez for narco-trafficking, destruction of the environment and of ancient Mayan ruins is a fact that is not disputed by Banamex in its complaint or in its memorandum. Thus, the following allegations in the Banamex complaint are also quite bogus:

170. In paragraph 36 of the Banamex complaint, the plaintiff alleges, and again using its deplorable tactic of lifting "snippets" out of context, that my recitation of the facts that support my opinions was somehow defamatory to Banamex, which it is not. The Court should read the entire commentary, but I draw its attention to the full context of the two snippets by Banamex in paragraph 36:

1997-1998: The citizens of the Yucatán Peninsula express their outrage about the impunity with which cocaine trafficking on the banker's properties are protected by the federal government. They speak out against the official attacks on freedom of the press. More than 100 town councils, indigenous organizations, unions, church groups and sporting associations pass resolutions denouncing the cocaine trafficking and the attacks on Por Esto!

Thousands flock to public assemblies held every two weeks by Mario Menéndez Rodríguez7, publisher and editor of Por Esto!, in different towns and cities, to show their support. (Menéndez is the only newspaper publisher in Mexico or North America who subjects himself to direct public comment and criticism and prints the transcripts of the assemblies in his newspaper.)

Especially irritating to the Maya indigenous populations is the destruction of the ancient ceremonial center of Chac Mool by the cocaine trafficking operation on Hernández properties, and the environmental disaster caused by cocaine trafficking garbage that is left upon the formerly pristine Caribbean beaches in the Sian Ka'an Protected Nature Reserve.

Photo by Gonzalo Subirats of Por Esto!8

Chac Mool, ancient Mayan ceremonial center (300 a.d.) that has sustained serious damage since the narco-banker Hernández bought the property.

Photos by Gonzalo Subirats of Por Esto!9

Garbage strewn across beaches on the Cocaine Peninsula of Roberto Hernández Ramírez, almost all of it Colombian-made and associated with cocaine trafficking by narco-sailors: gas tanks thrown away after use by Colombian shark boats, baby powder used by sailors on long journeys, quick sugar food containers, glue containers for fixing plastic cocaine packaging; products made in Medellín, Cali, Baranquilla and Cartagena along Colombia's Caribbean coast. These non-biodegradable products are the same brands as those found on seized Colombian shark boats used to transport cocaine.

7 Link to May 2000 Hero of the Month.

8 Photo of ancient ceremonial ruins at Chac Mool.

9 Photos of Colombian made containers found on the beaches of Hernandez.

171. Again, the full context demonstrates the process by which I made my argument of opinion: by disclosing the information upon which my opinions are based, even to the extent of republishing the photos that were the basis of a legal process in Mexico. The photos are clearly marked and credited to photographer "Gonzalo Subirats of Por Esto!" and recite the facts upon which opinions throughout many pages of Narco News Bulletin that are at issue in this lawsuit are based upon.

172. The prior passage from my commentary also makes it clear that this was a political issue on the Yucatan peninsula for years before I knew about it or offered my opinions. Banamex, wisely, has not alleged that my statement that the destruction of ancient Mayan ruins "especially irritating to the Maya indigenous populations" was false.

173. All the statements about Mayan ruins and ecological damage that I made followed a fair and accurate discussion of legal proceedings in Mexico. New York protects my right to discuss legal proceedings.

174. The Court should pay special attention to the more accurate version that appears in "The Mexico Papers" beginning on page 440, because it will find 19 links to specific supporting information, including previous reports in Por Esto! and my 1999 Boston Phoenix story.

175. Additionally, none of these statements were "of and concerning" Banamex.

Banamex Complaint Exhibit H:
"Citibank Implicated in Money Laundering for Fox Campaign"

176. Paragraph 37 of the Banamex complaint makes the only allegation in the complaint based upon a mention of Banamex as a corporate entity. However, Banamex's allegation is insufficient in that my opinions expressed did not imply or state any illegal activity by Banamex.

177. Again, Banamex uses its "snippets" strategy, taking two paragraphs from a political story about political fundraising, out of a commentary that was also part of the same 16 part series recited in my discussion of Exhibit D ("1994: The Consolidation of Narco Power"), and placing them far out of context.

178. This commentary contains 41 paragraphs, not two. The version that provides the Court with the links and context not disclosed by Banamex's version appears on page 361 of "The Mexico Papers" (Giordano Exhibit D).

179. The two paragraphs alleged to be defamatory by Banamex are:

Mexican banking and business institutions can also be found on the money laundering route: BANAMEX, Bancomer, Bital, and TV Azteca, which received around $90,000 US Dollars through this scheme for Fox campaign TV ads, but from other sources than the Fox campaign. All of them are owned by key players of the New Mexican Oligarchy. Not only did they set Fox up to knock him down, but they all made money off the deal.

* * *

How can the July 2, 2000 vote possibly be defined as free, fair and transparent now that it is revealed that the same financial interests-– Citibank, Banamex, TV Azteca, etc.–-implicated in drug money laundering by PRI officials, can now be found along the money laundering trail of Fox and the PAN.

180. These were only two paragraphs of a 41 paragraph story titled "Citibank Implicated on Fox Campaign Money Laundering Trail" and subtitled "U.S. Interests are found along illicit money route."

181. The full text of the article makes it clear that the "illicit" activity was by the Fox campaign.

182. The opinions expressed, again, fully disclosed the facts upon which my opinions were based. Specifically, a story in El Universal. I also included a graphic chart published in El Universal and translated it for the readers.

183. The statement "they all made money off the deal" does not imply that they all did so illicitly: That's what banks do. They make money on each transaction. The full text of the story also makes it clear that it was TV Azteca that received the $90,000 for advertising.

184. Nor does "setting up" a politician "to knock him down" constitute any illegal activity. That's simply politics.

185. My commentary on this web page included the following statement:

The confirmation of the key facts came from the most surprising of sources: the very same Vicente Fox.

According to El Universal of June 22, 2000:

Vicente Fox responded to the accusations. He accepted that the checks are real, but assured, "not one centavo has entered from outside the country; they are donations by people, from simple people to professionals and businessowners."

Fox then accused the Mexican federal government of "espionage" against him in their obtaining of the documents.

We conclude that, yes, Fox is correct that he -- and every member of the opposition from political parties to members of Civil Society -- have been victims of illegal spying. The Narco News Bulletin and its publisher, too, have in our possession proofs and evidences that the US State Department and Mexican authorities have done the same with us: Welcome to the club, Mr. Fox. Standing up to the powerful and to the corrupt can be a real drag sometimes.

186. The last paragraph of this section clearly signals to the reader that this is an expression of opinion, and a personal one at that. The reciting of statements made in El Universal clearly discloses the facts upon which those opinions were based.

187. The first of the two "snippited" paragraphs in this section of the Banamex complaint is lifted from a list that was prefaced by a strong personal opinion – that government espionage against Fox "must be punished and exposed" - and then recited the facts upon which that opinion was based. It also states very clearly my opinion that the illicit activity was conducted by the Fox campaign:

To be crystal clear, as this case is investigated, those who engaged in illegal espionage must be punished and exposed. And The Narco News Bulletin will not now nor never push that very serious part of this developing story under the rug.

But the fact remains that these documents, which Fox himself says are real, demonstrate:

1. Money-laundering by the Fox campaign in a style that mirrors that of the narco-traffickers.

2. The use of foreign banks -- in violation of Mexican law -- to launder Fox campaign money.

3. Involvement in the dark route of these monies by foreign banking institutions such as Citibank of New York -- already implicated in the Salinas and Hank family money-laundering scandals -- and the Bank of the West, of El Paso, Texas.

4. Also implicated in this international money-laundering route is a company named Dehydration Technologies of Belgium and a transfer of $200,000 US Dollars to a bank account in Puebla, Mexico.

5. Mexican banking and business institutions can also be found on this money-laundering route: BANAMEX, Bancomer, Bital, and TV Azteca, which received around $90,000 US Dollars through this scheme for Fox campaign TV ads, but from other sources than the Fox campaign. All of them are owned by key players in the New Mexican Oligarchy. Not only did they set Fox up to knock him down, but they all made money off the deal.

6. The Fox campaign finance chairman, Lino Korrodi, who was Fox's boss at the Coca-Cola company in Mexico, and his companies K-Beta, Grupo Alta Technología en Impresos, and his company ST-and-K of Mexico.

7. The company Fox Brothers -- "that is not the name of a circus," noted a PRI legislator yesterday when offering these evidences in the Mexican federal House of Deputies -- transfered $33,690 US dollars from Citibank in New York to the "Amigos of Fox" campaign organization and other businesses in this money-laundering pipeline.

One fact that particularly drew our attention at The Narco News Bulletin was the way that certain monies had been broken down into smaller sums and then re-assembled (a classic money-laundering maneuver to avoid official suspicion).

Under US law, all checks and money transfers of $10,000 or more receive greater bank scrutiny and must be reported to federal treasury officials.
Interesting, then, that the first two checks, photocopied below, were each for $8,500 US dollars, even though they came from the same sources and had the same destinations.

The second two checks, for roughly $30,000 US dollars each, were then channeled from these funds to TV Azteca to pay for Fox's ad campaign.

This is a chart from El Universal of June 22, 2000, that we will translate.

It is titled:


"Flow of money coming from outside the country for the campaign of Vicente Fox, according to the PRI"

188. The commentary then discloses the chart provided by El Universal and translates it for the reader.

189. Banamex's allegedly "defamatory" paragraph appears as #5. in a numbered list of seven points regarding an entire gamut of corporations that were found along the money laundering trail of the Fox campaign according to El Universal.

190. It would not have been possible, nor responsible, for me to have commented on the El Universal story and the behavior of the Fox campaign without mentioning the corporations cited by El Universal as having been along that route or trail.

191. To my knowledge, Banamex has brought no action against El Universal for publishing that information.

192. Interestingly, Banamex declined to add this sentence in its complaint: "In this dirty money trail we note the same players that have been implicated in the major Mexican drug money laundering cases of recent history: Citibank, BANAMEX, TV Azteca...."

193. Banamex neglected to include that sentence from my commentary on this web page because it provides the important context that makes the second "snippeted" paragraph a statement of opinion. The facts supporting that opinion had already been disclosed for months on Narco News Bulletin, on pages with commentaries that Banamex has never alleged were defamatory.

194. An examination of the full context of this commentary also reveals that it is an opinion aimed at United States corporate meddling in Mexican political affairs. The United States was the source of the money, which was the entire reason it had to be hidden (laundered), and what made this a front-page story in Mexico's largest daily newspaper.

Banamex Complaint Exhibit I:

"Roberto Hernandez Elected?"

195. Paragraph 38 of the Banamex complaint alleges that two sentences of a republished opinion column from a member of the Mexican press constitutes "factual allegations" by me against Banamex.

196. Regarding this text, I first incorporate the arguments already made about Banamex Complaint Exhibit C ("Dare to Legalize," by Mario Menendez), that Banamex can not be allowed to sue me in New York for articles that were first published in Mexico and I simply republished on Narco News Bulletin.

197. Furthermore, the column is not "of and concerning" Banamex.

198. Finally, the column does not, as Banamex alleges, make "false allegations that Banamex's Chairman and General Director uses his alleged drug money to woo politicians, the latest being Vicente Fox, and help them gain power, to then use their power to protect him and his drug trafficking operations."

199. The only two sentences from this column by a nationally-known Mexican columnist cited by the Banamex complaint opine:

And now we already know, also, that the vote of refusal of the PRI served so that Roberto Hernandez can continue enjoying his personal island – with or without snow of all flavors and types – so that his fortune is saved from any possible contingency, so that he will never be investigated by any authority, so that the worst of our political reality will be maintained?

We voted in favor of the drug traffickers' choice?

200. The entire polemic by columnist Arvide is saturated with the signals that it is about opinion. Indeed, she is an opinion columnist.

201. She also recites the facts upon which her opinion was based: "Does any Mexican remember that series of reports by Por Esto! that spoke about how in this ecological reserve tons of cocaine were landed? Or would it be better to ask ourselves whether this matters to anyone?"

202. The columnist was commenting on a recent election and the events after it regarding the president-elect's choice of vacationing at Hernandez's property.

Summary of Above Arguments

203. When the Court considers the statement before it individually, as to (a) whether these statements are "of and concerning" Banamex, (b) whether they constitute protected opinion under New York law, (c) whether certain of these commentaries are privileged discussion of public proceedings (in the full context of the entire work in which they appear-–"The Mexico Papers" (Giordano Exhibit D)), the Court will dismiss each paragraph alleging libel.

204. It also will conclude that Banamex has not even made "a sufficient start" in alleging malice.

205. I thank the Court, in advance, for taking the time to examine the full context of the Narco News Bulletin statements at issue in this proceeding. I am sure the examination will be time consuming-–Banamex has fired many bullets here-–but I did not bring this lawsuit. Narco News Bulletin is simply defending itself from a lawsuit that should not have been brought. I am grateful for the opportunity to have its arguments considered.


Dated: July 12, 2001 ___________________________
Al Giordano

This affidavit is in support of:

Round Two: Joint Memorandum By Narco News Bulletin and Al Giordano

"Second Affidavit by Al Giordano"

"Third Affidavit by Al Giordano"

Affidavit by Raj Dutt of Voxel.net

And a New Exhibit:

"The Mexico Papers," by Al Giordano

This memorandum and accompanying exhibits are offered to the Court in support of:

Motion to Dismiss by The Narco News Bulletin

Motion to Dismiss by Al Giordano

Which were filed together in April 2000 with:

Affidavit by Al Giordano

Affidavit by Al Giordano With Respect to Narco News Bulletin

Affidavit by Karen Thatcher concerning Banamex "Agency" in New York

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