         U NITED S TATES N AVY –M ARINE C ORPS
             C OURT OF C RIMINAL A PPEALS
                        _________________________

                            No. 201700075
                        _________________________

                UNITED STATES OF AMERICA
                                Appellee
                                    v.
                    STEVEN M. LARRABEE
         Staff Sergeant (E-6), U.S. Marine Corps (Retired)
                               Appellant
                        _________________________
 Appeal from the United States Navy-Marine Corps Trial Judiciary

   Military Judges: Lieutenant Colonel Eugene H. Robinson, Jr.,
                               USMC.
     Convening Authority: Commanding General, Marine Corps
               Installations Pacific, Okinawa, Japan.
  Staff Judge Advocate’s Recommendation: Major Christopher W.
                          Pehrson, USMC.
      For Appellant: Commander Brian L. Mizer, JAGC, USN.
 For Appellee: Lieutenant Commander Justin C. Henderson, JAGC,
          USN; Lieutenant George R. Lewis, JAGC, USN.
                      _________________________

                      Decided 28 November 2017
                       _________________________

  Before HUTCHISON, FULTON, and SAYEGH, Appellate Military Judges
                     _________________________

This opinion does not serve as binding precedent, but may be cited
as persuasive authority under NMCCA Rule of Practice and
Procedure 18.2.
                     _________________________

   SAYEGH, Judge:
   At a general court-martial, a military judge convicted the appellant,
pursuant to his pleas, of one specification of sexual assault and one
specification of indecent recording in violation of Articles 120 and 120c,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920 and 920c. The
                  United States v. Larrabee, No. 201700075


military judge sentenced the appellant to eight years’ confinement, a
reprimand, and a dishonorable discharge. The convening authority (CA)
disapproved the reprimand, but approved the remainder of the sentence. In
accordance with the pretrial agreement (PTA), the CA suspended
confinement in excess of 10 months, and, except for that part of the sentence
extending to the dishonorable discharge, ordered the sentence executed.
    The appellant raises four assignments of error (AOEs): (1) the staff judge
advocate (SJA) created unlawful command influence (UCI) by attempting to
have the military judge reassigned a year before he was scheduled to leave
his judicial assignment in Okinawa, Japan; (2) the CA abused his discretion
by not approving the appellant’s request for a post-trial Article 39(a) session
to investigate the appellant’s allegations of UCI; (3) application of jurisdiction
under Article 2(a)(6), UCMJ, is unconstitutional in this case where the
appellant was transferred to the Fleet Marine Corps Reserve three months
prior to committing the offenses to which he pleaded guilty; and (4) a court-
martial cannot sentence a service member transferred to retired status to a
punitive discharge.1
    Having carefully considered the record of trial and the parties’
submissions, we conclude the findings and sentence are correct in law and
fact and find no error materially prejudicial to the appellant’s substantial
rights. Arts. 59(a) and (66)(c), UCMJ.
                                I. BACKGROUND
    The appellant retired from active duty in the United States Marine Corps
on 1 August 2015 and was transferred to the Fleet Marine Corps Reserve.
Upon retiring, the appellant remained in Iwakuni, Japan, and began
managing two local bars. On 15 November 2015, the appellant video-recorded
himself sexually assaulting KAH at one of the bars he managed. On 25 May
2016, the Secretary of the Navy authorized the CA to “apprehend, confine, or,
exercise general-court martial convening authority” over the appellant.2 On 2
June 2016, the CA placed the appellant in pretrial confinement (PTC). On 7
June 2016, an initial review officer (IRO) determined grounds existed to
retain the appellant in PTC.
    In August 2016, the appellant’s trial defense counsel (TDC) filed a motion
alleging the IRO abused his discretion and seeking the appellant’s immediate

   1 In accordance with our holding in United States v. Dinger, 76 M.J. 552 (N-M.
Ct. Crim. App. 2017), rev. granted, __ M.J. __, 2017 CAAF LEXIS 995 (C.A.A.F. Oct
16, 2017), we summarily reject AOEs 3 and 4. United States v. Clifton, 35 M.J. 79,
81-82 (C.M.A. 1992).
   Appellate Exhibit (AE) IV at 2, Secretary of the Navy Memorandum for
   2

Commanding General, Marine Corps Installations Pacific of 25 May 2016.

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                       United States v. Larrabee, No. 201700075


release from PTC. On 14 September 2016, the military judge ruled that the
IRO abused his discretion and ordered the appellant released from PTC. Five
days later, on 20 September 2016, the appellant was released from PTC and
placed on pretrial restriction. On 26 October 2016, the TDC filed a motion,
pursuant to Article 13, UCMJ, for illegal pretrial punishment.
    During the Article 13, UCMJ, motion session, the defense called the SJA
to establish the SJA’s improper motives and basis for advising the CA to not
immediately abide by the military judge’s PTC release order. The SJA
testified that he disagreed with some of the military judge’s past rulings, to
include sentences on previous cases, and that he did not agree with the
military judge’s decision to order the release of the appellant from PTC in
this case, describing it as “erroneous.”3 The SJA testified that he asked the
trial counsel (TC) to file a motion for reconsideration of the military judge’s
PTC release order.4
   The SJA denied that his disagreements were personal or that they in any
way affected his approach to his duties. The SJA described his personal
opinion regarding previous rulings by the military judge:
         Let’s agree to disagree. To characterize this as a vendetta or
         motive against this military judge or against any particular
         accused is just flat wrong. So no, I had no concern whatsoever
         about any previous decision. There’s been hundreds of them
         prior to this, and there will be hundreds of them after that.
         And we will continue with our process as required. I can’t get
         fixated on one decision.5
    In support of the Article 13, UCMJ, motion, the appellant submitted an
affidavit from one of his TDCs, Captain N, alleging specific comments by the
SJA about the military judge. The comments were made during, and in the
context of, pretrial negotiations in the appellant’s case. The affidavit states
that the SJA indicated he would not support the proposed PTA because, in
light of the military judge’s decision to order day-for-day PTC credit, it did
not provide for enough confinement. The SJA further explained that he was
dissatisfied with the military judge’s sentences in two previous cases.
Captain N quotes the SJA as saying, “Okinawa is dealing with a military
judge who just does whatever he wants to do” and “[The military judge] does


   3   Record at 58.
   4 Id. at 69. The motion was ultimately withdrawn based on the government’s

misunderstanding of an email from the military judge that a motion to reconsider
would not be litigated. See id. at 81-82; AE XVI at 1.
   5   Record at 69.

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                        United States v. Larrabee, No. 201700075


whatever he wants to do when I try to do everything right.”6 The SJA
testified that he did not recall making the specific statements alleged in
Captain N’s affidavit, but he did acknowledge that during the previous
“Article 6” visit he discussed with the SJA to the Commandant of the Marine
Corps (CMC) the need for more judge advocates and another military judge in
Okinawa.7 The SJA denied that he requested the military judge be removed
or replaced—he testified that the discussion was intended to facilitate
assignment of more judge advocates and a second military judge to Okinawa
in order to improve case processing times.8 The SJA admitted he made
similar remarks about judge advocate manning in Japan to the Deputy
Commander, Marine Corps Installations Pacific, a week prior to his
testimony.9
    Based on the SJA’s testimony, the military judge approved the TDC’s
request to conduct voir dire of the military judge.10 During this voir dire, the
military judge indicated that his current tour as a military judge was due to
end in the summer 2018 and that he had taken no action to request
reassignment sooner.11 The military judge stated that he had received a
phone call in late September or early October 2016 from Headquarters,
Marine Corps. The purpose of the phone call was to inform the military judge
that he would be reassigned during the upcoming summer of 2017.12 The
military judge was not given a reason for the early reassignment, only that
his replacement was a newly promoted Colonel.13 At the conclusion of the voir
dire, the military judge indicated he had no reservations about his ability to
continue to impartially try the appellant’s case, and that he did not believe a
third party, who knew all of the facts, would have any reservations with him
remaining as the military judge in this case.14
   During argument on the Article 13, UCMJ, motion, the TDC suggested
there was UCI, stating: “Sir, just as a preliminary matter, our questions
regarding the – what has been accused of tampering with the military judge
and by the SJA to get him relocated, we do believe that we have raised at

   6   AE XVII at 7.
   7   Record at 62.
   8   Id. at 63-64.
   9   Id. at 64.
   10   Id. at 72.
   11   Id.
   12   Id. at 73.
   13   Id.
   14   Id. at 74-75.

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                        United States v. Larrabee, No. 201700075


least the appearance of UCI enough to shift the burden with regards to that
issue onto the government.”15 The TDC made no further references to UCI.
During the government’s argument in rebuttal, the TC commented:
         I’m, quite frankly, completely confident that this Court is not
         swayed by the rhetoric that is cited in the motion trying to
         attack and further, you know, unannounced tries to claim some
         sort of [UCI] and that somehow Lieutenant Colonel [P] is
         communicating with Headquarters Marine Corps to try to get
         this – to try tp get your honor removed from the bench, which
         is obviously ridiculous.16
   The military judge issued an immediate bench ruling denying the
appellant’s request for additional confinement credit for illegal pretrial
punishment, but under RULE FOR COURTS-MARTIAL (R.C.M.) 305(k), MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2016 ed.), did award the appellant an
additional day-for-day credit for the period of time the appellant spent in
PTC because the IRO abused his discretion. The military judge’s ruling did
not address UCI.
   On 3 February 2017, the appellant submitted matters pursuant to R.C.M.
1105,requesting that the CA disqualify himself from taking action on the
case, or alternatively, order a post-trial Article 39(a) session, award
additional confinement credit, and grant the appellant access to Marine
Corps Air Station, Iwakuni for medical care. The CA considered, but did not
grant, the appellant’s request.
                                    II. DISCUSSION
A. UCI
    UCI is “‘the mortal enemy of military justice.’” United States v. Gore, 60
M.J. 178, 178 (C.A.A.F. 2004) (quoting United States v. Thomas, 22 M.J. 388,
393 (C.M.A. 1986)). “Congress and this court are concerned not only with
eliminating actual unlawful command influence, but also with ‘eliminating
even the appearance of [UCI] at courts-martial.’” United States v. Lewis, 63
M.J. 405, 415 (C.A.A.F. 2006) (quoting United States v. Rosser, 6 M.J. 267,
271 (C.M.A. 1979)). Indeed, the “appearance of [UCI] is as devastating to the
military justice system as the actual manipulation of any given trial[.]’’
United States v. Simpson, 58 M.J. 368, 374 (C.A.A.F. 2003) (citation and
internal quotation marks omitted).




   15   Id. at 76-77.
   16   Id. at 79.

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                     United States v. Larrabee, No. 201700075


    In United States v. Boyce, 76 M.J. 242 (C.A.A.F. 2017), the court set forth
an analytical framework for courts to use in applying this standard. First, an
appellant must show some evidence that UCI occurred. Id. at 249. This is a
low burden, but the showing “must consist of more than ‘mere speculation.’”
Id. (quoting United States v. Salyer, 72 M.J. 415, 423 (C.A.A.F. 2013))
(additional citation omitted). Once an appellant presents some evidence of
UCI, the burden shifts to the government to prove beyond a reasonable doubt
that “either the predicate facts proffered by the appellant do not exist, or the
facts as presented do not constitute unlawful command influence.” Id. (citing
Salyer, 72 M.J. at 423) (additional citation omitted). If the government meets
this burden, no further analysis is necessary. Id. We consider the totality of
the evidence in determing whether there is the appearance of UCI. Id. at 252.
    We first turn our attention to whether the appellant properly raised the
issue of UCI at trial. The appellant’s brief asserts that UCI was raised at
trial but “[t]he military judge simply ignored the defense request to address
the [UCI] directed at the military judge.”17 We disagree. “The threshold for
raising the [UCI] issue at trial is low, but more than mere allegation or
speculation.” United States v. Biagase, 50 M.J. 143, 150 (C.A.A.F. 1999)
(citing United States v. Johnston, 39 M.J. 242, 244 (C.M.A. 1994)). The
appellant in this case did not file a written UCI motion or make one orally on
the record. In the absence of a written or oral motion, the TDC’s references to
possible UCI during argument on a distinctly separate issue was not
sufficient to properly raise UCI at trial.18 Therefore, we analyze the
appellant’s UCI claim as one first raised on appeal.
    The appellant asserts that the SJA’s criticism of the military judge to the
TDC during pretrial negotiations, and the apparent actions he took in trying
to have the military judge reassigned a year early, amounted to UCI. The
appellant also argues that after the military judge learned of the SJA’s
criticisms, he intentionally ignored the appellant’s request to address UCI at
trial and allowed himself to be influenced in his decision to deny the
appellant’s motion for unlawful pretrial punishment.19
   Although neither a commander nor a CA, actions by an SJA may
constitute UCI, because ‘“a[n SJA] generally acts with the mantle of
command authority.”’ United States v. Hamilton, 41 M.J. 32, 37, (C.M.A.


   17   Appellant’s Brief of 8 May 2017 at 11.
   18 We considered but did not find any abuse of discretion on the part of the
military judge for not recusing himself after he granted additional voir dire and
sought challenges from both parties. Record at 75. See United States v. Allen, 31
M.J. 572 (N.M.C.M.R. 1990).
   19   Appellant’s Brief at 11, 16.

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                     United States v. Larrabee, No. 201700075


1994) (quoting United States v. Kitts, 23 M.J. 105, 108 (C.M.A. 1986)).
Likewise, the Court of Appeals for the Armed Forces has found UCI where
the government sought to remove a sitting military judge and where
government actions compelled a military judge to recuse themself. See Salyer,
72 M.J. at 415; Lewis, 63 M.J. at 405 .
    At the outset, we look for facts which, if true, would constitute actual
UCI. The military judge was not removed from the bench before the end of
his tour. There is no evidence in the record that the SJA’s comments to the
SJA to CMC was the catalyst for the phone call to the military judge.20 Even
assuming the comments by the SJA to Capt N were true in all respects, they
would not amount to actual UCI. The comments reflect the SJA’s frustration
with a military judge who makes decisions uninfluenced by command
authority. The comments were also made in the context of pretrial
negotiations and not in a public forum. Further, following the additional voir
dire of the military judge, the TDC was satisfied that the military judge could
continue to impartially try the appellant’s case. There being no evidence the
military judge was unlawfully removed from the bench, no evidence the SJA’s
comments or actions unlawfully influenced the proper disposition of the
appellant’s case, nor any challenges to the military judge prior to his ruling
on the Article 13, UCMJ motion, we conclude that the appellant has failed to
establish any facts, which if true, would constitute actual UCI and will focus
our analysis on apparent UCI.
    The appellant avers there is apparent UCI because “the public would be
appalled to know the trial judiciary of the Marine Corps can be openly
mocked and manipulated by senior leaders as it was in this case.”21 The
appellant bears the burden of producing “some evidence” of UCI before the
burden shifts to the government. Biagase, 50 M.J. at 150. “[G]eneralized,
unsupported claims of ‘command control’ will not suffice to create a
justiciable issue.” Green v. Convening Authority, 42 C.M.R. 178, 181 (C.M.A.
1970). “The quantum of evidence necessary to raise unlawful command
influence” requires the “record [contain] some evidence to which the [trier of
fact] may attach credit if it so desires” United States v. Ayala, 43 M.J. 296,
300 (C.A.A.F. 1995) (citations and internal quotation marks omitted).
    Assuming, without deciding, that the appellant has met the low threshold
of “some evidence,” the burden of proof shifts to the government to prove



   20 The court will not engage in speculation regarding the purpose or intent behind

how the United States Marine Corps executes the assignments of their judge
advocates.
   21   Appellant’s Reply Brief of 11 Aug 2017 at 3.

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                     United States v. Larrabee, No. 201700075


beyond a reasonable doubt that the facts as presented do not constitute
apparent UCI. Boyce, 76 M.J. at 249.
    Unlike the military judges in Salyer and Lewis who recused themselves,
the military judge here indicated he had no reservations about his ability to
continue to impartially try the appellant’s case, and was not challenged by
either party on his ability to do so. The SJA denied on the record making any
statements or taking any action intended to have the military judge
reassigned.22 The SJA testified that his attempts to facilitate assignment of
additional judge advocates and another military judge to Okinawa were not
based on his personal dissatisfaction with the military judge’s past rulings, or
any rulings in this case. This testimony was unrebutted by the appellant.
Although the SJA admitted to discussing the need for additional legal
personnel in Okinawa with the SJA to the CMC, there is no evidence that
this discussion had any influence on the Headquarters, Marine Corps’ phone
call to the military judge.
    The appellant’s speculation regarding the SJA’s motives “amounts to no
more than a claim of [UCI] in the air.” United States v. Shea, 76 M.J. 277,
282 (C.A.A.F. 2017). Morever, the military judge’s Article 13, UCMJ ruling—
awarding the appellant 111 additional days of PTC credit—demonstrated his
ability to remain impartial despite the SJA’s comments.23 “We will not
presume that a military judge has been influenced simply by the proximity of
events which give the appearance of [UCI] in the absence of a connection to
the result of a particlar trial.” United States v. Allen, 33 M.J. 209, 212
(C.M.A. 1991) (citing Thomas, 22 M.J. at 369 (additional citation oitted). We
find the government has proven beyond a reasonable doubt that the facts as
presented do not constitute apparent UCI.
    However, assuming arguendo the government failed to meet its burden,
we would nonetheless find that the government proved beyond a reasonable
doubt that the UCI did not place an intolerable strain on the public’s
perception of the military justice system because “an objective, disinterested
observer, fully informed of all the facts and circumstances, would harbor a
significant doubt about the fairness of the proceeding.” Boyce, 76 M.J. at 248
(quoting Lewis, 63 M.J. at 415). Unlike actual UCI, which requires prejudice
to the accused, “no such showing is required for a meritorious claim of an
appearance of [UCI]. Rather, the prejudice involved . . . is the damage to the
public’s perception of the fairness of the military justice system as a whole[.]”
Id.



   22   Record at 64.
   23   Id. at 85.

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                     United States v. Larrabee, No. 201700075


    The facts and circumstances surrounding this case include an SJA who
voiced his personal displeasure with the military judge to the TDC during
pretrial negotiations. As stated above, these comments were not intended for
the public, nor were they substantively UCI. The SJA made a specific request
directly to the SJA to CMC for an additional military judge to be assigned to
Japan, and there was a subsequent phone call to the military judge from
Headquarters, Marine Corps informing him that he was being reassigned a
year early. However, the reasons for the phone call are not clearly established
on the record, and ultimately the military judge was never reassigned.
Morever, following voir dire, where the military judge stated on the record he
could impartially try the case, the TDC was apparently satisfied and declined
to challenge him for cause. Finally, a different SJA provided the CA the
required post-trial advice and recommendations.24 Under these facts, we find
that the government has proven beyond a reasonable doubt that any
apparent UCI “did not place ‘an intolerable strain’ upon the public’s
perception of the military justice system and that ‘an objective, disinterested
observer, fully informed of all the facts and circumstances, would [not] harbor
a significant doubt about the fairness of the proceeding.”’ Boyce, 76 M.J. at
249 (quoting Salyer, 72 M.J. 423).
B. CA’s denial of post-trial Article 39(a), UCMJ, hearing
    The appellant asserts as error that the CA abused his discretion in
“ignoring” the request for a post-trial Article 39(a), UCMJ, session after being
presented with “more than enough evidence that the [UCI] in this case is not
harmless beyond a reasonable doubt.”25 Although not referenced in the post-
trial submission, we reviewed the appellant’s request as one pursuant to
R.C.M. 1102(b)(2).
   R.C.M. 1102(b)(2) and (d) provide authority for a CA to direct a post-trial
Article 39(a), UCMJ, session for the purpose of inquiring into, and when
appropriate, resolving “any matter that arises after trial and that
substantially affects the legal sufficiency of any findings of guilty or the
sentence.” R.C.M. 1102(b)(2). “When an appellant requests the [CA] to order
a post-trial Article 39(a) session, it is a matter for the [CA’s] sound discretion
whether to grant the request.” United States v. Ruiz, 49 M.J. 340, 348
(C.A.A.F. 1998). In as much as a CA may be persuaded by facts, a CA is not
compelled to approve a request “based merely on unsworn, unsubstantiated
assertions.” Id. “We review a convening authority’s decision not to grant a


    24 The appellant does not argue and we find no evidence in the record that the

removal of the original SJA was some indicia of UCI. There are many reasons SJAs
are substituted during the post-trial process.
   25   Appellant’s Brief at 19.

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                      United States v. Larrabee, No. 201700075


post-trial hearing for an abuse of discretion.” United States v. Lofton, 69 M.J.
386, 391 (C.A.A.F. 2011) (citing Ruiz, 49 M.J. at 348). Both Lofton and Ruiz
found that it was an abuse of discretion for a CA to deny a request for a
post-trial 39(a) session that was based on substantiated assertions. Lofton,
69 M.J. at 392; Ruiz, 49 M.J. at 348.
   The appellant’s request for a post-trial Article 39(a), UCMJ, was to
address the appellant’s assertions of UCI on the part of the SJA.
         “We request a post-trial hearing to determine (1) whether
         [UCI] occurred in this case; (2) whether the military judge
         should have recused himself before awarding a sentence or
         ruling on motions; and (3) if the answer to (2) is yes, then
         whether SSgt Larrabee should have been awarded additional
         credit for illegal pretrial punishment and the [CA’s] refusal to
         obey a judicial order.”26
    The appellant’s request alleges apparent UCI through the actions of the
SJA and that the military judge was being reassigned early due to “defense
friendly rulings.”27 The appellant’s request also included new allegations that
accused the SJA of fabricating evidence and misrepresenting facts to an
administrative discharge board that occurred after the appellant’s court-
martial and was unrelated to the appellant’s case.28 Finally, the request
included an affidavit from a TDC not detailed to this case. In this affidavit
the TDC alleges a conversation about a PTC issue in an unrelated case where
the SJA said over the phone in a “very derisive tone,” saying ‘“[The Military
Judge] is a liberal judge’ who ‘does not understand the purpose of military
justice’ and that the area needed a better judge, or words substantially to
that effect.”29 The CA’s action indicates the the appellant’s request was
considered before the CA took action and approved the sentence as
adjudged.30
    We find the appellant’s request did not substantiate his assertions. The
affidavit presented to the CA included comments between the SJA and a TDC
made in the context of discussing a PTC issue associated with an unrelated
case. The comments were unprofessional, but not intended for the public, nor
did they constitue UCI on the part of the SJA. The request alluded to the SJA


   26   Addendum to SJA’s Recommendation (SJAR) dated 8 Feb 2017, Encl. (1) at 3.
   27   Id. at 4.
   28   Id.
   29   Id., Encl. (1) to Encl. (1).
   30CA’s Action of 15 Feb 17. A different SJA prepared and processed the SJAR
and SJAR addendum.

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                 United States v. Larrabee, No. 201700075


creating apparent UCI through his actions, but provide the CA no additional
evidence to substantiate that allegation. The appellant asserts the military
judge was being reassigned early because of his previous rulings, but includes
nothing to support the claim. Similarly, the appellant’s allegation that the
SJA intentionally fabricated evidence before an unrelated administrative
discharge board hearing that occurred after the appellant’s trial is not
relevant to the appellant’s court-martial. Although the allegations in the
appellant’s request may raise questions regarding the character and conduct
of the SJA, they do not substantiate the allegation that the SJA was able to
influence the military judge’s rulings in this case, or influence the decision of
Headquarters Marine Corps to notify the military judge of a potential early
reassignment.
    We find the appeallant’s request fails to sufficiently establish any matter
that would affect the legal sufficiency of the proceedings, and thus conclude
that the CA did not abuse his discretion in denying the appellant’s request
for a post-trial Article 39(a), UCMJ, session.
                               III. CONCLUSION
   The findings and sentence, as approved by the CA, are affirmed.
       Senior Judge HUTCHISON and Judge FULTON concur.


                                        For the Court




                                        R.H. TROIDL
                                        Clerk of Court




                                       11
