                         UNITED STATES, Appellee

                                         v.

             Jessica E. McFADDEN, Airman First Class
                    U.S. Air Force, Appellant

                                  No. 12-0501
                           Crim. App. No. 37438

       United States Court of Appeals for the Armed Forces

                          Argued October 7, 2014

                          Decided March 3, 2015

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., joined. OHLSON, J., filed a separate dissenting
opinion, in which BAKER, C.J., joined.


                                     Counsel

For Appellant:    Captain Michael A. Schrama (argued).

For Appellee: Captain Richard J. Schrider (argued); Gerald R.
Bruce, Esq. (on brief).

Military Judge:    William M. Burd



            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. McFadden, No. 12-0501/AF


     Judge STUCKY delivered the opinion of the Court.

     After Appellant testified on her own behalf, a court member

asked if she was aware of the concept of lying by omission.      We

granted Appellant’s petition for review to consider whether the

military judge abused his discretion by failing to grant a

mistrial or to sua sponte excuse the court member.      We hold that

the military judge did not abuse his discretion in not granting

the mistrial, and he did not have a sua sponte duty to excuse

the member.

                      I.   Posture of Case

     Appellant was charged with conspiracy to desert her unit,

two specifications of desertion, and making a false official

statement.    Articles 81, 85, and 107, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 881, 885, 907 (2012).      To each of

the two desertion specifications, Appellant pled not guilty but

guilty of absence without leave.       Article 86, UCMJ, 10 U.S.C. §

886 (2012).   She pled not guilty to the other charges.     A

general court-martial composed of members convicted Appellant of

absence without leave, desertion, conspiracy, and making a false

official statement.   Court members sentenced her to a bad-

conduct discharge, confinement for twenty-four months,

forfeiture of all pay and allowances, reduction to the lowest

enlisted grade, a fine of $1,650, and additional confinement of

thirty-six days if she failed to pay the fine.      Except for the


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United States v. McFadden, No. 12-0501/AF


contingent confinement, the convening authority approved the

adjudged sentence.

     The United States Air Force Court of Criminal Appeals (CCA)

affirmed the findings and the approved sentence.   United States

v. McFadden, No. 37438, 2012 CCA LEXIS 90, at *4, 2012 WL

1059023, at *1 (A.F. Ct. Crim. App. Mar. 15, 2012)

(unpublished).   We granted review to decide whether the military

judge abused his discretion by failing to excuse a court member,

and vacated and remanded the case to the CCA to consider the

granted issue in light of United States v. Nash, 71 M.J. 83

(C.A.A.F. 2012), without prejudice to raise other issues.

United States v. McFadden, 71 M.J. 403 (C.A.A.F. 2012) (summary

disposition).

     In an opinion by Judge Soybel, a civilian appointed as an

appellate military judge by the Secretary of Defense, a panel of

the CCA held that the military judge did not abuse his

discretion in failing to excuse the member.   United States v.

McFadden, No. 37438 (f rev), 2013 CCA LEXIS 240, at *2, *11,

2013 WL 1319455, at *4 (A.F. Ct. Crim. App. Mar. 19, 2013)

(unpublished).   This Court set aside the CCA’s judgment and

returned the case for further review in light of the Supreme

Court’s opinion in Ryder v. United States, 515 U.S. 177 (1995)

(concerning the method of appointing civilians as appellate

military judges), and United States v. Carpenter, 37 M.J. 291


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United States v. McFadden, No. 12-0501/AF


(C.M.A. 1993), vacated, 515 U.S. 1138 (1995).      United States v.

McFadden, 73 M.J. 41 (C.A.A.F. 2013) (summary disposition).        A

panel of the CCA that did not include Judge Soybel affirmed the

findings and approved sentence.    United States v. McFadden, No.

37438 (f rev), 2013 CCA LEXIS 814, at *12, 2013 WL 5436703, at

*4 (A.F. Ct. Crim. App. Sept. 26, 2013).

                          II.    Facts

     At trial, Appellant testified on her own behalf that she

never intended to remain away from her unit permanently, she

always planned to return to the military, and she did eventually

turn herself in to military control.     The military judge asked

Appellant if she told either of the investigators who

interviewed her that she intended to return.     The defense did

not object to the question or ask for an Article 39(a), UCMJ,

10 U.S.C. § 839(a) (2012), hearing.      Appellant answered:   “Oh.

I don’t believe they ever asked.”      The Government then asked if

Senior Airman (SrA) Acree, another military investigator, had

asked her if she intended to come back.     The defense objected on

the ground that the question was beyond the scope of permissible

cross-examination.   The military judge overruled the defense

objection.   Appellant answered:   “Yes, sir, but I used my right

to remain silent at the time.”

     Major Cereste, a court member, and Appellant then engaged

in the following exchange:


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United States v. McFadden, No. 12-0501/AF


     Q. My next question is: You testified today on
     numerous accounts of overt deception, and to me you
     seem to have a heightened intuition of other people’s
     motives. For example, you were aware that perhaps
     Airman Dover might tell people X, Y, Z, so you told
     her certain things. Have you also heard of lying by
     omission -- so -- exercising your right to remain
     silent. So, how is your testimony today regarding
     never intending to desert the Air Force permanently
     different from your previous pattern of deception?

     A. Because, before, I had never formed the intent to
     remain away permanently. And I’ve already admitted to
     going AWOL, which I take responsibility for, but I
     don’t want people to think that intent was to never
     come back.

     During a subsequent Article 39(a) hearing, the defense

moved for a mistrial, asserting that, “[a]s a direct result of

that line of questioning, Major Cereste . . . accused Airman

McFadden of lying by omission by exercise of her right to remain

silent.”1   The military judge declined to grant the mistrial but

offered to instruct the panel.   The military judge solicited

appropriate language for the curative instruction from the

defense and based his instruction on that language:   “You may

not consider the accused’s exercise of her right to remain

silent in any way adverse to the accused.   You may not consider

such exercise as lying by omission.”   The military judge so

instructed the members at the next open session of the court-



1
  This issue could have been avoided had the military judge
reviewed and ruled on the court member’s questions before
permitting them to be posed to Appellant. See Military Rule of
Evidence 614(b).

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United States v. McFadden, No. 12-0501/AF


martial.   The defense did not ask the military judge to voir

dire or excuse any members.

                        III.   Discussion

                A.    Failure to Grant Mistrial

     A military judge “may, as a matter of discretion, declare a

mistrial when such action is manifestly necessary in the

interest of justice because of circumstances arising during the

proceedings which cast substantial doubt upon the fairness of

the proceedings.”    Rule for Courts–Martial (R.C.M.) 915(a).

“[A] mistrial is an unusual and disfavored remedy.   It should be

applied only as a last resort to protect the guarantee for a

fair trial.”   United States v. Diaz, 59 M.J. 79, 90 (C.A.A.F.

2003).   It “‘is reserved for only those situations where the

military judge must intervene to prevent a miscarriage of

justice.’”   United States v. Vazquez, 72 M.J. 13, 19 n.5

(C.A.A.F. 2013) (quoting United States v. Garces, 32 M.J. 345,

349 (C.M.A. 1991)).

     “Because of the extraordinary nature of a mistrial,

military judges should explore the option of taking other

remedial action, such as giving curative instructions.”     United

States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009).    A curative

instruction is preferred to granting a mistrial, which should

only be granted “when ‘inadmissible matters so prejudicial that

a curative instruction would be inadequate are brought to the


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United States v. McFadden, No. 12-0501/AF


attention of the members.’”   Diaz, 59 M.J. at 92 (quoting R.C.M.

915(a) Discussion).   “We will not reverse a military judge’s

determination on a mistrial absent clear evidence of an abuse of

discretion.”   Ashby, 68 M.J. at 122, quoted in United States v.

Coleman, 72 M.J. 184, 186 (C.A.A.F.), cert. denied, 134 S. Ct.

458 (2013).

     At trial, Appellant moved for a mistrial, arguing that the

trial counsel’s line of questions to Appellant caused Major

Cereste to accuse Appellant of “lying by omission,” and that the

Government was attempting to obtain “comment on her right to

remain silent on the record and into the members’ ears.”

Appellant now alleges that Major Cereste’s comments indicated

that she had already found Appellant guilty of the offense of

false official statement before the close of the evidence and

instructions by the military judge.   In determining whether the

military judge abused his discretion by not granting a mistrial,

we look to the actual grounds litigated at trial.

     There is no evidence that the trial counsel was attempting

to bring Appellant’s invocation of her right to remain silent to

the attention of the members.   The trial counsel appears to have

asked about Appellant’s interaction with SrA Acree seeking

clarification of Appellant’s statement that she did not believe

the investigators asked her if she had intended to return to

military control.   It was Appellant who decided that, rather


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United States v. McFadden, No. 12-0501/AF


than just answer the question asked, she would provide an

explanation:     that SrA Acree had asked, but that she had invoked

her right to remain silent.

     Using the instruction approved by the defense, the military

judge told the members that they could not consider Appellant’s

invocation of her right to remain silent against her, and that

they could not consider her invocation of those rights as lying

by omission.     “‘Absent evidence to the contrary, court members

are presumed to comply with the military judge’s instructions.’”

United States v. Hornback, 73 M.J. 155, 161 (C.A.A.F. 2014)

(quoting United States v. Thompkins, 58 M.J. 43, 47 (C.A.A.F.

2003)).    Major Cereste’s question was not so prejudicial that a

curative instruction was inadequate, and there is no evidence

the members did not follow those instructions.     The military

judge did not abuse his discretion by denying the motion for

mistrial.

          B.   Failure to Sua Sponte Excuse Major Cereste

     The parties have the right to challenge court members for

cause.    Article 41(a)(1), UCMJ, 10 U.S.C. § 841(a)(1) (2012).

“A member shall be excused for cause whenever it appears that

the member . . . [s]hould not sit as a member in the interest of

having a court-martial free from substantial doubt as to

legality, fairness, and impartiality.”     R.C.M. 912(f)(1)(N).   A

party may challenge a member for cause “during trial when it


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United States v. McFadden, No. 12-0501/AF


becomes apparent that a ground for challenge may exist,” and a

hearing may be held to resolve the issue.     R.C.M. 912(f)(2)(B).

Appellant did not ask to voir dire or challenge Major Cereste.

     The military judge “may, in the interest of justice, excuse

a member against whom a challenge for cause would lie.”     R.C.M.

912(f)(4) (emphasis added).   A military judge has the

discretionary authority to sua sponte excuse the member but has

no duty to do so.   See Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 346 (2005) (“The word ‘may’

customarily connotes discretion.”); Bryan A. Garner, Garner’s

Dictionary of Legal Usage 568 (3d ed. 2011).

     This Court has characterized the discretionary authority of

a military judge to excuse a member sua sponte “‘in the interest

of justice’” as a “drastic action.”      United States v. Velez, 48

M.J. 220, 225 (C.A.A.F. 1998) (quoting R.C.M. 912(f)(4)).     We

hold that the military judge did not have a duty to sua sponte

excuse Major Cereste.

                        IV.   Judgment

     The judgment of the United States Air Force Court of

Criminal Appeals is affirmed.




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United States v. McFadden, No. 12-0501/AF


     OHLSON, Judge, with whom BAKER, Chief Judge, joins

(dissenting):

     It has long been established that an accused has a right to

an impartial and unbiased panel during a court-martial.     United

States v. Mack, 41 M.J. 51, 54 (C.M.A. 1994).    And yet in the

instant case, I conclude that the military judge failed to take

the required steps to vindicate this fundamental right on behalf

of Appellant, and that the military judge thereby abused his

discretion.   Therefore, because I disagree with the majority’s

analysis of the assigned issues, I respectfully dissent.

                                 Facts

     As noted by the majority, at trial Appellant testified that

she twice had temporarily absented herself from her unit without

authorization, and thereby conceded that she was guilty of two

unauthorized absence offenses.    Contrary to Appellant’s

assertions, however, the Government sought to prove that

Appellant intended to remain away from her unit permanently.      As

a consequence, the court-martial centered on Appellant’s

truthfulness when she claimed at trial that she had never formed

the intent to permanently absent herself.

     During an Article 39(a), Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 839(a) (2012), session the defense noted

that the Government was likely to offer into evidence a

statement Appellant had made to investigators upon her return to
United States v. McFadden, No. 12-0501/AF


her unit.   The defense argued that a portion of that statement

needed to be redacted in order to protect Appellant’s Article

31(b), UCMJ, 10 U.S.C. § 831(b) (2012), rights.    Specifically,

the defense asked the military judge to require the redaction of

the section of the statement where an investigator, Senior

Airman Acree, asked Appellant if she had ever planned on turning

herself in, and Appellant had refused to answer.   This issue

seemingly became moot when the Government informed the court

that it already had redacted that portion of the statement, and

the military judge then admitted the statement into evidence.

     As the trial progressed, Appellant repeatedly asserted that

despite her absences from her unit -- which totaled

approximately three weeks -- she never had decided to remain

away permanently.   At that point, however, the military judge

chose to begin asking Appellant questions in front of the panel

members.    Specifically, the military judge asked Appellant if

she had told Investigator #1 or Investigator #2 that she

intended to “come back.”   Appellant correctly responded that

these two investigators had not asked her that question and that

she “didn’t tell them one way or the other.”   The military judge

did not pursue that matter further.   Nevertheless, during its

recross examination of Appellant, the Government first gained

confirmation that Investigator #1 and Investigator #2 had never

asked her whether she intended to return to her unit, and then

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United States v. McFadden, No. 12-0501/AF


asked Appellant, “Did Senior Airman Acree ask you if you

intended to come back?”

       Obviously mindful of the Article 31(b), UCMJ, implications

of the Government’s question, the defense immediately objected

on the ground that the question was “beyond the scope.”    Without

hearing any argument on the point, the military judge overruled

the objection.    Thus, the Government proceeded with its inquiry,

and Appellant conceded to trial counsel that when questioned by

Senior Airman Acree about her intentions of returning, “I used

my right to remain silent.”

       Following examination by the parties and the military judge,

the military judge permitted the panel members to ask Appellant

questions.    In doing so, the military judge failed to follow the

clear procedures spelled out in Military Rule of Evidence

(M.R.E.) 614(b).1    Rather, the military judge permitted the panel

members to directly question Appellant orally; nothing was

written down, and there was no prior review of the questions in

any manner.    Not surprisingly, this highly irregular procedure --


1
    M.R.E. 614(b) provides:

       The military judge or members may interrogate
       witnesses, whether called by the military judge, the
       members, or a party. Members shall submit their
       questions to the military judge in writing so that a
       ruling may be made on the propriety of the questions
       or the course of the questioning and so that questions
       may be asked on behalf of the court by the military
       judge in a form acceptable to the military judge.
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United States v. McFadden, No. 12-0501/AF


whereby no fewer than seven panel members asked questions that

span nearly thirty pages in the record of trial -- resulted in an

appealable issue.

     Specifically, one of the panel members, Major Cereste,

asked Appellant the following “question” which is at issue:

     Q. My next question is: You testified on numerous
     accounts of overt deception, and to me you seem to have a
     heightened intuition of other people’s motives. For
     example, you were aware that perhaps Airman Dover might
     tell people X, Y, and Z, so you told her certain things.
     Have you also heard of lying by omission -- so --
     exercising your right to remain silent. So, how is your
     testimony today regarding never intending to desert the Air
     Force permanently different from your previous pattern of
     deception?

     Once the panel members concluded their questioning of

Appellant, the military judge placed the court in recess and

then called an Article 39(a), UCMJ, session.   At that session,

the defense noted that “since the members are out,” he was going

to now request a mistrial.2   In furtherance of this motion, the

defense counsel stated the following:

     There was a line of questioning that took place during the
     cross-examination -- I think the subsequent cross-
     examination of Airman McFadden -- that had to do with a
     statement about her exercising her right to remain silent.
     And the prosecution had previously redacted that from the
     1168. The defense did not open the door to that cross-
     examination. The prosecution took advantage of an

2
  The timing of the defense counsel’s objection was perfectly
appropriate. M.R.E. 614(c) provides, “Objections to the calling
of witnesses by the military judge or the members or to the
interrogation by the military judge or the members may be made
at the time or at the next available opportunity when the
members are not present.”
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United States v. McFadden, No. 12-0501/AF


     opportunity presented by the court, during the court’s
     questions, to enter into an area that the prosecution had
     told us they would not. As a direct result of that line of
     questioning, Major Cereste, in the back row, accused Airman
     McFadden of lying by omission by exercise of her right to
     remain silent.

     At this time, pursuant to R.C.M. 915, we believe it’s
     manifestly necessary in the interest of justice because of
     [Appellant’s] response to a court member, to declare a
     mistrial based on the government’s attempt to get that
     statement -- that comment on [Appellant’s] right to remain
     silent on the record and into the members’ ears.3

     The military judge responded to this objection by:     (a)

incorrectly characterizing Appellant’s testimony by stating that

Appellant had initially testified that “nobody” asked her about

whether she had intended to return to her unit; (b) opining that

the Government’s question was permissible because this answer by

Appellant was “misleading”; (c) denying the motion for a

mistrial; and (d) stating that he would “consider giving the

members a cautionary instruction.”

     Indeed, upon reconvening the court-martial, the only action

the military judge took to address this issue was to instruct

the panel members as follows:   “You may not consider the

accused’s exercise of her right to remain silent in any way




3
  The United States Air Force Form 1168, referred to by the
defense counsel, is a standard form utilized in the
investigative context to take written statements providing
details of suspected criminal activity. The same form can be
tailored for statements from suspects, witnesses, and
complainants.
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United States v. McFadden, No. 12-0501/AF


adverse to the accused.   You may not consider such exercise as

lying by omission.”

                             Analysis

     In my view, the military judge’s single step of giving the

panel members a putatively curative instruction was insufficient

to ensure the fairness of the trial and did not adequately

ensure that the panel remained impartial and unbiased.    See

Mack, 41 M.J. at 54-56.   When Major Cereste equated Appellant’s

invocation of her right to remain silent with lying by omission,

it is apparent from the context that Major Cereste already had

concluded that Appellant was lying about the central point of

this court-martial -- whether Appellant was being truthful when

she testified that she had never formed the intent to absent

herself from her unit permanently.   Therefore, based on the

record before us, it is reasonable to conclude that Major

Cereste had failed to remain open minded about the case until

the close of all the evidence, which directly contravened the

express prior instruction of the military judge.   As a

consequence, absent any step by the military judge to voir dire

Major Cereste, I believe there is sufficient evidence for a

reasonable person to conclude that Major Cereste was no longer

an impartial and unbiased panel member.   See United States v.

Strand, 59 M.J. 455, 459 (C.A.A.F. 2004).   And, as the

provisions of Rule for Courts–Martial (R.C.M.) 912(f)(1),

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United States v. McFadden, No. 12-0501/AF


912(f)(1)(N), mandate, a panel member “shall be excused for

cause” when necessary to ensure that the court-martial is “free

from substantial doubt as to legality, fairness, and

impartiality.”

     It is true that instead of seeking a mistrial it may have

been more appropriate for the defense counsel to have asked the

military judge to excuse Major Cereste and to voir dire the

other panel members to determine whether they had been tainted

by Major Cereste’s accusations against Appellant.   After all,

granting a mistrial is considered a “drastic” remedy and such a

step generally would be highly disfavored without an additional

showing by the defense.4   Nevertheless, in light of the fact that

R.C.M. 915(a) states that a mistrial may be declared “in the

interest of justice because of circumstances arising during the

proceedings which cast substantial doubt upon the fairness of

the proceedings,” it was not entirely unreasonable for the

defense counsel to make such a request.

     As the defense counsel noted in support of his mistrial

motion:   (a) the military judge had unilaterally laid the

groundwork which resulted in his decision to improperly permit

the Government to elicit testimony from Appellant regarding her

prior invocation of her right to remain silent; (b) a panel


4
  See United States v. Diaz, 59 M.J. 79, 90, 114-15 (C.A.A.F.
2003).
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United States v. McFadden, No. 12-0501/AF


member used this improper disclosure to conclude that Appellant

had lied by omission when she refused to admit to Senior Airman

Acree that she had intended to stay away from her unit

permanently;5 and (c) because the military judge had failed to

comply with the procedures contained in M.R.E. 614, the other

panel members had heard, and had been potentially tainted by,

Major Cereste’s comment about Appellant’s truthfulness.6   Thus,

it is understandable that the defense counsel had concluded that

“substantial doubt” had been cast “upon the fairness of the

proceedings.”   R.C.M. 915.

     Moreover, under such circumstances the military judge was

not presented with a binary choice of either granting a mistrial

or only giving an additional instruction.   Rather, consistent

with this Court’s precedent, once the defense counsel made a

5
  The importance of this improper disclosure is underscored by
the fact that the Government had scant independent evidence
proving that the Appellant intended to stay away from her unit
permanently. Rather, the Government’s case was based squarely
on the Appellant’s state of mind as demonstrated by her actions,
statements, and testimony. Accordingly, the Appellant’s
credibility was at the very heart of this case, and once Major
Cereste used the improper disclosure that the Appellant had
invoked her Article 31(b), UCMJ, rights as the basis for
challenging in open court the Appellant’s supposed acts of
“deception” and “lying by omission,” the Appellant’s credibility
was considerably undermined.
6
  As evidence that other panel members may have been tainted by
Major Cereste’s accusatory questioning of Appellant, and of the
prejudice to Appellant that may have resulted from this
questioning, I note that the trial counsel recommended a
sentence that included confinement for eighteen months but the
panel awarded a sentence that included confinement for twenty-
four months.
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United States v. McFadden, No. 12-0501/AF


motion for a mistrial, the military judge was required to

consider any lesser remedies short of a mistrial that would

adequately address the defense’s legitimate concerns.   See

United States v. Ashby, 68 M.J. 108, 122 (C.A.A.F. 2009).     In my

view, Major Cereste’s questioning of Appellant adequately

demonstrated that she had not kept an open mind until the close

of evidence.    And importantly, this failure to keep an open mind

was in direct contravention of the military judge’s prior

instructions.   Accordingly, I believe there is no basis to

conclude on the record before us that Major Cereste would be

willing or able to follow any additional instructions the

military judge might give.   Therefore, I find the military

judge’s decision to only give a putative curative instruction to

be wholly inadequate.

                             Conclusion

     I conclude that based on the totality of the circumstances

in the instant case, at a minimum the military judge was

obligated to take the simple and appropriate step of voir diring

Major Cereste and the other court members to determine whether

additional measures were necessary to ensure that the panel

remained fair and impartial.   Upon failing to take that step, I

conclude that the military judge should have recognized that

Major Cereste’s statement substantively brought into question

her fairness and impartiality, and therefore the military judge

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United States v. McFadden, No. 12-0501/AF


abused his discretion when he failed to sua sponte excuse Major

Cereste from the court-martial panel.   Strand, 59 M.J. at 459-

60.   Further, I do not find a basis to conclude that the

military judge’s putative curative instructions rendered this

error harmless.

      Accordingly, because I disagree with the majority’s

analysis of the assigned issues, I respectfully dissent.




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