                       UNITED STATES, Appellee

                                    v.

         Laprie D. TOWNSEND, Master-at-Arms Second Class
                       U.S. Navy, Appellant

                              No. 07-0229

                       Crim. App. No. 200501197

       United States Court of Appeals for the Armed Forces

                       Argued December 5, 2007

                       Decided February 5, 2008

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and STUCKY and RYAN, JJ., joined. BAKER, J.,
filed a separate dubitante opinion.

                                 Counsel

For Appellant:    Lieutenant Anthony Yim, JAGC, USNR (argued).

For Appellee: Major Brian K. Keller, USMC (argued); Commander
Paul C. LeBlanc, JAGC, USN, and Captain Roger E. Mattioli, USMC
(on brief).

Military Judge:   John W. Rolph




       This opinion is subject to revision before final publication.
United States v. Townsend, No. 07-0229/NA

     Judge ERDMANN delivered the opinion of the court.

     Master-at-Arms Second Class Laprie D. Townsend was

convicted at a general court-martial of attempted unpremeditated

murder and reckless endangerment as a result of an incident in

which he discharged a firearm at a vehicle containing several

occupants.   He was sentenced to a dishonorable discharge and ten

years of confinement.   The convening authority approved the

sentence, but reduced the period of confinement to six years.

The United States Navy-Marine Corps Court of Criminal Appeals

affirmed the findings and the sentence as reduced by the

convening authority.    United States v. Townsend, No. NMCCA

200501197, 2007 CCA LEXIS 23, at *23-*29 (N-M. Ct. Crim. App.

Jan. 12, 2007).   We granted Townsend’s petition to determine

whether the military judge abused his discretion when he denied

Townsend’s challenge for cause against one of the members of the

court-martial panel.

     Townsend claims that his challenge to LT B should have been

granted on the basis of implied bias, as a reasonable observer

would perceive that LT B’s presence as a member rendered the

trial unfair.   Based on the facts of this record, we conclude

that the military judge did not abuse his discretion.    None of

the reasons offered in support of the challenge, either alone or

cumulatively, result in the public perceiving that Townsend




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United States v. Townsend, No. 07-0229/NA

received less than a court of fair, impartial members.   We

therefore affirm the decision of the Court of Criminal Appeals.

                              Background

     Townsend requested trial by officer and enlisted members.

LT B was among the members assembled for the court-martial.

Following group voir dire, each court member was individually

voir dired.   Questioning of LT B by both the trial counsel and

the defense counsel focused, in part, on LT B’s legal training

and professional aspirations, his relationship with his police

officer father, his view of law enforcement personnel, and his

opinion of defense counsel.

     LT B indicated that he had taken the “Non-Lawyer Legal

Officer Course” at the Naval Justice School where he received

“just basics” on legal defenses which included the concept of

self-defense.   At the time of trial he was enrolled in a

criminal law class as a night law student.   Asked what type of

lawyer he wanted to be, LT B responded that he wanted to become

a criminal prosecutor.   LT B indicated that he desired to be a

prosecutor as “public service”, “putting the bad guys in jail”,

and “keeping the streets safe.”

     Nonetheless, LT B stated that he was not biased toward the

Government’s case and that he could “absolutely” set aside

anything he may have learned elsewhere and follow the

instructions as given by the military judge.   He assured the



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United States v. Townsend, No. 07-0229/NA

military judge that his desire to become a criminal prosecutor

did not change his belief that Townsend was innocent until

proven guilty beyond a reasonable doubt and he would be able to

follow the military judge’s instructions if they differed from

information he had learned at school.   LT B affirmed that he

would listen to both the prosecution and defense and hold the

Government to its burden of proof.   He said he had not prejudged

Townsend.

     Following up on questions about why LT B wanted to be a

prosecutor, defense counsel asked LT B, “[W]hat are your

opinions of defense counsels?”   LT B responded that he had a

“mixed view.”   Specifically, he had high regard for military

defense counsel who were military officers and individuals of

high ethical and moral standards.    However, he had “lesser of a

respect for some of the ones you see on TV, out in the civilian

world.”   This reference to television lawyers arose from the

fact that LT B was a regular viewer of the television show Law

and Order.

     LT B said that his father, with whom he was close, was a

member of the law enforcement community.    As a result, LT B had

a “healthy respect for law enforcement, and people in

authority.”   Asked if he would hold the testimony of law

enforcement personnel in higher esteem than other witnesses, LT

B responded that he would try to be objective about everything.



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United States v. Townsend, No. 07-0229/NA

If he had a “gut decision” to make, he stated that:   “a good

cop, [if] he’s had a good record, you know, [was] well

respected, that -- that would definitely give some credibility

to their testimony.”   Asked if he could follow the military

judge’s instructions with respect to weighing the credibility of

law enforcement as he would any other witness, LT B responded,

“Yes.”    LT B stated that a witness’s status as a law enforcement

officer would not automatically cause him to believe or

disbelieve that individual.

     Townsend’s defense counsel challenged LT B and one other

panel member for cause.   The military judge summarily granted

the challenge to the other member and asked for argument on the

challenge against LT B.   Citing Rule for Courts-Martial (R.C.M.)

912(f), Townsend’s counsel argued that LT B’s beliefs had been

“hardened” in regard to criminal cases by his legal training and

desire to be a prosecutor, and by his relationship with his

father.    The defense counsel noted that LT B’s respect for law

enforcement officers would cause him to defer to the officers’

credibility and when combined with LT B’s express desire to “put

the bad guys away,” would cast doubt on his impartiality.

Finally, the detailed defense counsel noted that LT B had

expressed a general disdain for defense counsel in the civilian

world and that defense counsel in general “troubled him in some

regard.”



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United States v. Townsend, No. 07-0229/NA

     The trial counsel responded that LT B had indicated without

hesitation that he could be impartial and would apply the law as

instructed upon by the military judge.   With respect to

assessing the credibility of law enforcement officers, the trial

counsel noted LT B’s statement that he would judge a law

enforcement officer’s credibility by the same criteria he would

apply to any other witness.   Finally the trial counsel

emphasized that LT B’s answers were genuine and sincere and that

LT B indicated he would follow the military judge’s instructions

regardless of his desire to be a criminal prosecutor.

     The military judge denied the challenge for cause:

     I do want to state that I found him to be extremely
     genuine and sincere in his responses. The fact that
     he is in Law School and desires to be a prosecutor is
     –- is not, in itself, a basis for challenge. He made
     it very clear that he would listen to all the
     evidence, that he didn’t have a particular slant one
     way or the other in regard to the prosecution or the
     defense in this case, that he understood the
     presumption of innocence, and the burden of proof
     beyond a reasonable doubt, and I’m confident, in what
     I observed of this young officer’s demeanor, that he
     is legitimately sincere and serious about his role at
     this court-martial, and therefore I will deny that
     challenge for cause.

Defense counsel then used his peremptory challenge to remove a

different panel member thereby preserving his appeal of the

denial of the challenge for cause to LT B.   See R.C.M.

912(f)(4).




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United States v. Townsend, No. 07-0229/NA

                              Discussion

     “An accused is entitled to a trial by members who are

qualified, properly selected, and impartial.”     United States v.

Moreno, 63 M.J. 129, 132 (C.A.A.F. 2006) (citing Article 25,

UCMJ, 10 U.S.C. § 825 (2000)).    R.C.M. 912 encompasses

challenges based upon both actual bias and implied bias.      United

States v. Clay, 64 M.J. 274, 276 (C.A.A.F. 2007); United States

v. Ai, 49 M.J. 1, 4-5 (C.A.A.F. 1998).      Townsend does not allege

actual bias.   While he argued that voir dire revealed potential

grounds for actual bias, he conceded that LT B had been

successfully rehabilitated.

     R.C.M. 912(f)(1)(N) provides a challenge where it appears

an individual “[s]hould not sit as a member in the interest of

having the court-martial free from substantial doubt as to

legality, fairness, and impartiality.”     Implied bias exists

when, despite a disclaimer, most people in the same position as

the court member would be prejudiced.      United States v.

Napolitano, 53 M.J. 162, 167 (C.A.A.F. 2000); United States v.

Warden, 51 M.J. 78, 81 (C.A.A.F. 1999); United States v.

Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996).      To test whether

there is substantial doubt about the fairness of the trial, we

evaluate implied bias objectively, “through the eyes of the

public,” reviewing “the perception or appearance of fairness of

the military justice system.”    United States v. Schlamer, 52



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United States v. Townsend, No. 07-0229/NA

M.J. 80, 92-93 (C.A.A.F. 1999); United States v. Dale, 42 M.J.

384, 386 (C.A.A.F. 1995).    Our inquiry is to determine whether

the risk that the public will perceive that the accused received

something less than a court of fair, impartial members is too

high.    United States v. Wiesen, 56 M.J. 172, 176 (C.A.A.F.

2001).

        Although we review issues of implied bias for abuse of

discretion, the objective nature of the inquiry dictates that we

accord “a somewhat less deferential standard” to implied bias

determinations of a military judge.      United States v. Armstrong,

54 M.J. 51, 54 (C.A.A.F. 2000); United States v. Napoleon, 46

M.J. 279, 283 (C.A.A.F. 1997).    In addition, we have held that

military judges should apply a liberal grant mandate in ruling

on challenges asserted by an accused.      United States v. White,

36 M.J. 284, 287 (C.M.A. 1993); see also Clay, 64 M.J. at 277;

United States v. James, 61 M.J. 132, 139 (C.A.A.F. 2005); United

States v. Downing, 56 M.J. 419, 422 (C.A.A.F. 2002).      Where a

military judge does not indicate on the record that he has

considered the liberal grant mandate in ruling on a challenge

for implied bias, we will accord that decision less deference

during our review of the ruling.       See Clay, 64 M.J. at 277;

United States v. Hollings, 65 M.J. 116, 119 (C.A.A.F. 2007);

United States v. Terry, 64 M.J. 295, 296 (C.A.A.F. 2007).

Consequently, “we will overturn a military judge’s ruling on an



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United States v. Townsend, No. 07-0229/NA

accused’s challenge . . . where he clearly abuses his discretion

in applying the liberal grant mandate.”   Moreno, 63 M.J. at 134.

     Before this court Townsend renews his claims that his trial

would be perceived as unfair because LT B:   had a close

relationship with his law enforcement father; was a law student

at the time of trial with a career goal of being a criminal

prosecutor; was disposed to give a law enforcement officer’s

testimony more credibility than he would give to other

witnesses; and did not hold defense attorneys in high regard.

Townsend argues that the military judge should not be accorded

much deference because he did not indicate that he considered

either implied bias or the liberal grant mandate in his ruling.

     The Government responds that the record does not support a

claim that any of the reasons put forward by Townsend raise

implied bias and argues that Townsend has failed to show that

the public would harbor any misgivings about the fairness of his

trial.   Additionally, the Government urges that there is nothing

to overcome LT B’s many assurances that he would follow the

instructions of the military judge and serve as a fair,

impartial court member.

     Initially, we agree with Townsend about the deference we

should accord to the military judge’s ruling.   While the

military judge assessed the credibility and demeanor of LT B on

the record, the ruling denying the challenge of LT B did not



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United States v. Townsend, No. 07-0229/NA

reflect whether he considered either implied bias or the liberal

grant rule.1   Therefore, we accord less deference to his ruling

than we would to one which reflected consideration of implied

bias in the context of the liberal grant mandate.   See Clay, 64

M.J. at 277 (“A military judge who addresses implied bias by

applying the liberal grant mandate on the record will receive

more deference on review than one that does not.”).

     Law enforcement personnel are not per se disqualified from

service as court members.   See Dale, 42 M.J. at 386.   If status

as a law enforcement officer is not a disqualification, it

follows that a mere familial relationship with a member of the

law enforcement community creates no greater basis upon which to

disqualify a member than law enforcement status itself.   We

discern nothing in the record to suggest that LT B was hardened

in his views on criminal law by virtue of his respect for his

father or his father’s background in law enforcement.




1
  The military judge did at one point indicate that he was
granting a Government challenge, in part, by applying the
liberal grant mandate. We note that this case was tried prior
to our decision in United States v. James, 61 M.J. 132, 139
(C.A.A.F. 2005), in which we found “no basis for application of
the ‘liberal grant’ policy when a military judge is ruling on
the Government’s challenges for cause.” Although the military
judge here was not aware of our holding in James, we do not
consider his single reference to the liberal grant mandate in
the context of a Government challenge to be a reflection that he
gave similar consideration to the mandate when ruling on
Townsend’s challenge against LT B.

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United States v. Townsend, No. 07-0229/NA

     While the voir dire reflected that LT B had respect for law

enforcement, that respect did not translate into any objectively

discernable bias.    Although LT B indicated that he would afford

a certain amount of credibility to a police officer with a good

record, his view was not so inflexible that it would not yield

to the military judge’s instructions on credibility.   In fact,

evidence of a police officer’s record, good or bad, would be a

factor that any court member could use along with his or her

personal observation of the witness and all other evidence of

record in determining credibility.    Thus, LT B’s statement is

not an indication of a bias or prejudice that would not yield to

proper instruction or create an appearance of unfairness in this

trial.

     A similar conclusion can be derived as to LT B’s enrollment

in law school and his desire to become a prosecutor.   Lawyers

are not per se disqualified as court-martial members unless they

have served in one of the capacities explicitly set forth as a

disqualification in the Uniform Code of Military Justice (UCMJ).

See Article 25(d)(2), UCMJ; R.C.M. 912(f); see also United

States v. Hedges, 11 C.M.A. 642, 643, 29 C.M.R. 458, 459 (1960).

It follows that one who only aspires to become a lawyer is not

disqualified and presents no greater threat to the fairness of a

proceeding than does a court member who is a fully trained and

licensed attorney.



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United States v. Townsend, No. 07-0229/NA

     While LT B stated that following law school he would like

to become a prosecutor, the record shows that he was aware of

the proper role of a court member and would adhere to that role.

He specifically said that he would cast aside any legal notions

he developed from his legal education and would strictly follow

the instructions of the military judge.    Even setting aside

these disclaimers, we see no reasonable basis upon which to

conclude that LT B’s status as a law student or his career

aspirations presented a substantial basis to question the

fairness of this proceeding.

     Lastly, we note that the claim that LT B did not like

defense lawyers or did not hold defense lawyers in high regard

is not an accurate reflection of LT B’s responses during

individual voir dire.   The record reflects that LT B expressed

high regard for military defense counsel as officers and persons

of high integrity.   It further reflects that Townsend was

represented by a military defense counsel in this case rather

than a civilian defense counsel.     Even his remarks about

civilian defense counsel were cast in the context of how

television portrayed civilian defense counsel on the Law and

Order television program.   These remarks cannot be reasonably

interpreted to imply that LT B disliked licensed, professional

defense counsel, military or civilian.




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United States v. Townsend, No. 07-0229/NA

     The record reflects that the factors asserted as a basis

for implied bias are not disqualifying or egregious and would

not, individually or cumulatively, result in the public

perception that Townsend received something less than a court-

martial of fair and impartial members.   In fact, a

dispassionate, objective review of this record reflects quite

the opposite.   LT B understood and appreciated the role of a

court member, including his obligation to apply the law as

instructed upon by the military judge and his obligation to

remain unbiased.   We believe a reasonable observer, considering

the record as a whole, would have harbored no questions about LT

B’s neutrality, impartiality, and fairness.

     However, appellate defense counsel goes on to argue that we

should find implied bias regardless because there is a point at

which numerous efforts to rehabilitate a member will themselves

create a perception of unfairness in the mind of a reasonable

observer.   In other words, appellate defense counsel posits the

question, “How much is too much?”    The question has merit within

the context of challenges for implied bias.

     It might be possible that a particular member of a court-

martial would require rehabilitation to such an extent that the

rehabilitation itself would give rise to reasonable questions

about the fairness of the proceeding if that member were to

remain on the panel.   The need to engage in extensive



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United States v. Townsend, No. 07-0229/NA

rehabilitation of a potential court member may present the very

type of “close” situation that supports application of the

liberal grant mandate.    Clay, 64 M.J. 277 (“[I]n close cases

military judges are enjoined to liberally grant challenges for

cause.”).    This, however, is not that situation.    This was not a

case in which an extensive rehabilitation of LT B was required

or pursued.    During voir dire, each side questioned LT B only

once.    Trial counsel questioned LT B followed by questioning

from defense counsel.    There was no extensive back and forth

effort to undermine and then rehabilitate LT B’s qualifications

to sit as a member of the court.       This straightforward

individual voir dire was dramatically different than a repeated

effort to rehabilitate LT B which might have created substantial

doubts about the fairness of this proceeding.

        None of the factors urged by Townsend serve to disqualify

LT B from serving as a court member and they would not cast

doubt in the eyes of the public upon the fairness of this court-

martial.    The record reflects that LT B understood his role as a

court member and that he would follow the instructions of the

military judge.    Examining the cumulative impact of LT B’s

disclaimers in light of the liberal grant mandate, we conclude

that this is not a close case where failure to apply the liberal

grant mandate is fatal.    The military judge did not abuse his

discretion in denying the challenge against LT B.



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United States v. Townsend, No. 07-0229/NA

                            Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed.




                               15
United States v. Townsend, No. 07-0229/NA


     BAKER, Judge (dubitante):

     The liberal grant mandate exists for cases like this.     As

the majority opinion points out, there are no inherently

disqualifying factors presented in the voir dire testimony of LT

B, but there certainly are many candidates.

     First, LT B expressed negative views of civilian defense

attorneys, but not military counsel.   Second, LT B admitted that

he would give more credibility to a law enforcement officer,

that he had a “gut” feeling to side with a law enforcement

officer in a close case.   Third, it was LT B’s aspiration to be

a prosecutor, in order to “put [] the bad guys in jail.”

     Additionally, two other factors, which would not normally

constitute implied bias, must be considered in the context of

these preceding statements by LT B.    First, in pursuit of his

goal of being a prosecutor, LT B was a part-time law student

studying criminal law, including theories of self-defense (some

of which would form the foundation of Appellant’s argument).

Finally, LT B stated during voir dire that his father -- with

whom he had a close, respectful relationship -- was a law

enforcement officer.

     Against these potentially disqualifying facts must be

weighed those factors that argue against excusal.   First, the

Appellant himself concedes that LT B’s participation as a member

resulted in no actual bias, and there is no evidence that LT B’s
United States v. Townsend, No. 07-0229/NA


bias -- if such existed -- affected the case.   Second, the

military judge gave an instruction that members were not to

consider any outside sources in reaching their findings.     Third,

there was a lengthy voir dire of LT B, during which he stated

that he harbored no preconceptions concerning the case and made

all the correct rehabilitative statements.   Viewed in the

abstract from the record, these assurances by LT B seem oblique

and dubious;1 nonetheless, the military judge found them to be

sincere and genuine.


1
  Consider the following exchange during voir dire between LT B
and the Assistant Trial Counsel:

     ATC: . . . In this case the government is going to present
     testimony from several members of the Naval Criminal
     Investigative Service, and obviously they’re members of the
     law enforcement community. Will you hold their testimony
     in higher regard, meaning more likely to believe what they
     say simply because they’re NCIS Agents, or will you weigh
     their testimony, just like you’ll weigh the testimony of
     any other witness who may testify?

     LT B: Well, to be honest with you, that’s a -- that’s a --
     I think that’s not quite a black and white answer, and what
     I mean is, of course we all try and be objective when we
     sit here, and we weigh everything we hear as -- as an
     objective person.

     But I think if -- if -- if you had a gut decision to make,
     one way or the other, I think that the fact that they were
     -- had a law enforcement person with a good record that
     might give you a little bit more cut to the other way, if
     it was too close, and you weren’t quite sure. But -- well,
     he’s -- he’s a -- he’s a good cop, he’s had a good record,
     you know, he’s well respected, that -- that would
     definitely give some credibility to their testimony, I
     would think.



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United States v. Townsend, No. 07-0229/NA


     At some point, a member of the public, as well as an

accused, might begin to wonder why it was necessary for the

government to rehabilitate this member of the panel not once,

but several times on ten different subjects,2 however sincere the

responses.   An outside observer might well wonder whether this

member really felt differently about military and civilian

defense counsel, after hearing LT B’s statements that his gut

told him to side with law enforcement and he wanted to be a

prosecutor so he could “put [] the bad guys in jail.”   As with

the trees at Dolly Sods, the wind only blows in one direction.

Put more directly, it is obvious to any observer, judicial or

public, that this member was in outlook “pro-prosecution”, which

is not necessarily the same as saying that LT B was biased.

     Therefore, in my view this case presented an easy trial

level call to dismiss the member and avoid any issues of implied



     ATC: Okay. If the military judge were to instruct you
     that you have to use the same factors when weighing the
     credibility of that NCIS Agent as you do any other witness,
     could you follow those instructions, and use those same
     factors when deciding on the credibility of an NCIS Agent?

     LT B: Yes.
2
  I.e., Extrajudicial knowledge of the law, law school
attendance, desire to be a prosecutor, knowledge of forensic
science, participation in a previous judicial proceeding,
relationship to a law enforcement officer causing bias in favor
of prosecution, gun ownership, views of criminal defense
attorneys, willingness to give sentence accused to life
imprisonment, and perception of witnesses testifying in exchange
for a lower sentence.

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United States v. Townsend, No. 07-0229/NA


bias on appeal.   Why would a military judge take a chance,

where, in fact, the accused has objected to the member sitting

on his court and preserved the issue?   Why take the chance that

an appellate court will disagree and reset the clock after years

of appellate litigation?   Three considerations inform this view.

     First, in a system of panel selection where the convening

authority selects the pool of members and the parties only have

one peremptory challenge, application of the liberal grant

concept helps to address questions that may linger in public

perception regarding the appearance of bias in the selection of

members.

     Second, this court-martial took place at Norfolk Naval

Station.   There is no indication that there were national

security reasons why the potential pool of members was small,

perhaps necessitating a “tie goes to the government” approach on

implied bias.

     Third, appellate review of member challenges is an

ungainly, if not impractical, tool to uphold and reinforce the

importance of Rule for Courts-Martial (R.C.M.) 912 in military

justice practice.   Among other things, appellate courts do not

have the benefit of hearing the tone of a response or to observe

the demeanor of voir dire responses.    Further, where matters of

appearance and nuance rather than clear error are involved,

courts might well be hesitant to reset the clock.   And yet, from


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United States v. Townsend, No. 07-0229/NA


within the system, it may be particularly hard to discern the

extent to which member selection is viewed in public circles as

a weak link in the otherwise strong chain of military justice.

Hence, trial judges are repeatedly enjoined at the appellate

level to consider questions of implied bias and to do so on the

record.

     For these reasons, I think it was an easy call at the trial

level to dismiss LT B from the member pool, but a harder call to

do so on appeal as a matter of law.   The government should not

have had to work so hard to rehabilitate a member whose outlook

was fundamentally with the prosecution.   At the same time, this

was a close case as a matter of law (as opposed to practice),

and I was not present to evaluate the tone, content, and

sincerity of the member’s responses, all of which inform an

implied as well as actual bias challenge.   Indeed, the nature of

LT B’s responses conveys conscientious honesty.   It is the

responsibility of the military judge -- and not appellate courts

-- to make determinations based on such ineffable factors.

Nonetheless, LT B’s consistently equivocal responses to the

questions cited above leave me with doubts.   As a result, I

reluctantly concur.




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