UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                           TATE, SCHENCK, and WALBURN
                              Appellate Military Judges

                           UNITED STATES, Appellee
                                        v.
                         Private E1 MARK S. GRISHAM
                          United States Army, Appellant

                                   ARMY 20050479

                      Headquarters, I Corps and Fort Lewis
                          Mark L. Toole, Military Judge
        Colonel David M. Diner, Staff Judge Advocate (trial and addendum)
   Lieutenant Colonel Tania M. Antone, Acting Staff Judge Advocate (post-trial)

For Appellant: Captain Frank B. Ulmer, JA (argued); Colonel John T. Phelps II, JA;
Lieutenant Colonel Steven C. Henricks, JA; Major Billy B. Ruhling II, JA; Captain
Frank B. Ulmer, JA (on brief).

For Appellee: Captain James T. Dehn, JA (argued); Colonel John W. Miller II, JA;
Major Elizabeth A. Marotta, JA; Captain Michael C. Friess, JA; Captain James T. Dehn,
JA (on brief).

                                   29 February 2008

                             ------------------------------------
                               OPINION OF THE COURT
                             ------------------------------------

TATE, Chief Judge:

       On 14 April 2005, a military judge sitting as a general court-martial convicted
appellant, consistent with his pleas, of wrongful possession and use of
methamphetamines, in violation of Article 112a, Uniform Code of Military Justice,
10 U.S.C. § 912a [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge, confinement for thirty-six months, and forfeiture of all pay
and allowances. Pursuant to a pretrial agreement, the convening authority reduced
the term of confinement to nine months, and otherwise approved the adjudged
sentence. This case is before the court for review under Article 66, UCMJ
[hereinafter Grisham II].

      In a previous court-martial on 12 January 2005, a military judge sitting as a
general court-martial convicted appellant, consistent with his pleas, of attempted
GRISHAM – ARMY 20050479

larceny, failure to go to his appointed place of duty, wrongful possession of
methamphetamines with intent to distribute, wrongful distribution of heroin,
wrongful use of methamphetamines (four specifications), wrongful carrying of a
concealed weapon, and receipt of stolen property. The military judge sentenced
appellant to a bad-conduct discharge, twelve years confinement, and forfeiture of all
pay and allowances. In accordance with the pretrial agreement, the convening
authority reduced the term of confinement to forty months and otherwise approved
the adjudged sentence. Appellant appealed that conviction to another panel of this
court, asserting that the uncharged misconduct provision of his pretrial agreement
precluded the government from preferring charges at a second court-martial. This
court summarily affirmed appellant’s first conviction and sentence on 30 August
2007. United States v. Grisham, ARMY 20050032 (Army Ct. Crim. App. 30 Aug.
2007) (unpub.), pet. denied, 2008 CAAF LEXIS 101 (C.A.A.F. 9 Jan. 2008)
[hereinafter Grisham I].

       Appellant now asserts, inter alia, the government failed to comply with a
provision in the Grisham I pretrial agreement. Appellant argues the pretrial
agreement in Grisham I precluded the government from preferring the charges in the
present case. 1 He asks this court to overturn the findings and sentence in Grisham
II based on the government’s failure to honor the pretrial agreement in Grisham I.
We disagree and find no relief is warranted.

                                      FACTS

                                     Grisham I

       To adequately address appellant’s assertions, we will take judicial notice of
our own record and the conclusion of court-martial proceedings in appellant’s first
case, Grisham I. See United States v. Jones, 64 M.J. 596, 599 (Army Ct. Crim. App.
2007) (citing United States v. Lovett, 7 U.S.C.M.A. 704, 708, 23 C.M.R. 168, 172
(1957) (“An appellate court, however, can take judicial notice of its own records.”);
United States v. Jackson, 1 U.S.M.C.A. 190, 192, 2 C.M.R. 96, 98 (1952) (noting

1
  Appellant also asserts the preferral of charges against him in Grisham II amounts
to government misconduct, alleging the government was improperly motivated by
seeking retaliation rather than justice when it elected to court-martial him for his
subsequent drug use while in pretrial confinement. We have reviewed this allegation
and find it without merit. The government did not conclusively learn of appellant’s
subsequent drug use until after the convening authority had referred Grisham I and
approved the pretrial agreement. The additional set of charges, therefore, could not
be added to that pending case without appellant’s consent and waiver of the Article
32, UCMJ, hearing. The government was not acting in bad faith when it chose to
proceed with Grisham I as charged, and deferred preferral of the additional charges
to a later date.


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GRISHAM – ARMY 20050479

and citing to “authority in both service and civilian cases for . . . taking judicial
notice of the record of trial in another court-martial”); United States v. Moses,
11 C.M.R. 281, 285 (A.B.R. 1953) (“The board of review may take judicial notice of
the record of trial in a companion court-martial.”); United States v. Lawrence,
1 C.M.R. 248, 252 (A.B.R. 1951) (“We may take judicial notice of our own official
records in certain instances.”)).

       Between May 2004 and August 2004, appellant possessed and used
methamphetamines and subsequently became involved in distributing
methamphetamines and heroin to other soldiers. On 26 May 2004, appellant’s drug
use was discovered when he tested positive for methamphetamines during a unit-
wide urinalysis test. Two weeks later, on 7 June 2004, a command-directed health
and welfare inspection revealed money, drugs, and drug paraphernalia in appellant’s
barracks room. Undeterred by these discoveries, appellant’s drug use continued for
several months. On 20 October 2004, charges were preferred against appellant for
wrongful use of a controlled substance (heroin and methamphetamines) and wrongful
distribution of a controlled substance (heroin and methamphetamines) (Grisham I).
Only two days later, appellant was arrested off post by civilian authorities for
possessing stolen checks, attempting to steal currency from a bank by using stolen
checks, possessing a concealed firearm, and possessing drugs (methamphetamines)
and drug paraphernalia.

       As a result of the off-post offenses, combined with the aforementioned
charges for drug use and possession, appellant was placed in pretrial confinement on
26 October 2004. On 9 November 2004, appellant’s commander preferred additional
charges relating to the 22 October 2004 off-post offenses. After consulting with his
detailed defense counsel, appellant signed an offer to plead guilty on 1 December
2004 in return for a maximum confinement period of forty months. The terms
“offer” and “agreement” both appeared on the face of the pretrial offer paperwork
submitted to the convening authority. 2 The offer also contained the following
provision: “The government agrees not to prefer any additional charges or
specifications against the accused for any potential misconduct of which the
government is aware at the time this offer is signed.” (emphasis added). On
3 December 2004, the convening authority referred all charges to a general court-
martial and, on 8 December 2004, accepted and signed appellant’s Grisham I pretrial
agreement.

      During the providence inquiry in Grisham I, on 12 January 2005, the military
judge reviewed appellant’s pretrial agreement to ensure appellant understood the
terms. The record reflects that both trial and defense counsel agreed, and appellant
understood, the government could not prefer charges for any misconduct it was

2
 The pretrial agreement was labeled, as is standard practice, “PRETRIAL
AGREEMENT (OFFER TO PLEAD GUILTY).”


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GRISHAM – ARMY 20050479

aware of on or before 1 December 2004, the date appellant signed the offer. The
military judge made clear this date should not be confused with 8 December 2004,
the date the convening authority signed the agreement. The following colloquy
ensued:

      MJ: So both parties agree. I want to make sure that that’s your
      understanding also, Private Grisham. That any misconduct that
      you might have committed that’s not been charged here, if the
      government was aware of it on or before 1 December, charges
      cannot be preferred. Is that your understanding also?

      ACC: Yes, ma’am.

Once the providence inquiry was complete, the military judge accepted appellant’s
pleas, finding that he had entered them willingly and voluntarily, with full
understanding of their meaning and effect.

                                        Grisham II

       While in pretrial confinement and at the same time the offer was presented to
the convening authority, appellant arranged to have someone mail crystal
methamphetamine to him in jail. The drug was hidden inside an envelope appellant
received sometime after 26 October 2004. Appellant used the crystal
methamphetamine several days later. On 1 December 2004, the confinement facility
conducted a urinalysis test for all inmates. Appellant’s urine sample was forwarded
to the Tripler Army Medical Center laboratory where it initially tested positive for
amphetamines on 6 December 2004. In accordance with the facility’s standing
operating procedures and Department of Defense requirements, the laboratory
conducted several follow-up confirmatory tests and, on 10 December 2004, certified
the positive results on a Dep’t of Def., Form 2624, Specimen Custody Document –
Drug Testing (Feb. 1998). These results were then forwarded to appellant’s unit.

       Consequently, appellant faced possible further additional charges stemming
from the wrongful possession and use of a controlled substance while he was in
pretrial confinement. Defense and government counsel entered into preliminary
discussions to add these additional charges to the pending Grisham I offenses
already referred to general court-martial on 3 December 2004. Negotiations,
however, stalled and the government proceeded without the additional charges and
specifications. The Grisham I court-martial convened on 12 January 2005 and the
military judge found appellant guilty in accordance with his pleas. After trial,
appellant never mentioned any concerns with his guilty plea or pretrial agreement in
his request for clemency matters submitted to the convening authority, in accordance
with Rule for Courts-Martial [hereinafter R.C.M.] 1105.




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GRISHAM – ARMY 20050479

       Almost a month after appellant was found guilty and sentenced in Grisham I,
the government preferred new charges for the possession and use of
methamphetamines discovered while he was in pretrial confinement. These charges
were augmented by an additional charge for conspiracy to distribute
methamphetamines, and served as the basis for appellant’s conviction in Grisham II.
Appellant agreed to unconditionally plead guilty to the wrongful use and possession
specifications in exchange for dismissal of the conspiracy charge, disapproval of a
dishonorable discharge, if one were adjudged, and limitation of confinement to nine
months. Appellant’s offer to plead guilty in Grisham II did not mention the Grisham
I misconduct provision. On 6 April 2005, the convening authority approved the
pretrial agreement.

      At no stage in the Grisham II court-martial did the defense counsel (who also
represented appellant in Grisham I) or appellant assert that the Grisham I pretrial
agreement limited the government from preferring charges in Grisham II. As in
Grisham I, appellant failed to bring such objections to the attention of the convening
authority when submitting post-trial clemency matters pursuant to R.C.M. 1105 in
Grisham II.

                                         LAW

                                 Standard of Review

       “Interpretation of a pretrial agreement is a question of law, which we review
de novo.” United States v. Lundy, 63 M.J. 299, 301 (C.A.A.F. 2006); United States
v. Acevedo, 50 M.J. 169, 172 (C.A.A.F. 1999). Although not addressed by appellate
counsel, this court finds substantial evidence in the record to demonstrate waiver of
appellant’s asserted issue. Nevertheless, rather than determine whether appellant’s
unconditional guilty plea waived any appellate right to contest the validity of his
preferral, we consider appellant’s argument as a Constitutional claim that his Due
Process rights were violated. 3



3
  Under the circumstances of this case, we review appellant’s Constitutional
challenge to his convictions de novo. See United States v. Bart, 61 M.J. 578, 581
(N.M. Ct. Crim. App. 2005) (allowing appellant to raise a Constitutional challenge
to a sodomy conviction for the first time on appeal); United States v. Sollmann,
59 M.J. 831, 834 (A.F. Ct. Crim. App. 2004) (citing Menna v New York, 423 U.S. 61
(1975)) (“a guilty plea does not preclude a [C]onstitutional challenge to the
underlying conviction”). But see United States v. Heath, 39 M.J. 1101 (C.G.C.M.R.
1994) (applying the principle of waiver for a Constitutional challenge to a guilty
plea conviction raised for the first time on appeal); United States v. Collins, 41 M.J.
428, 430 (C.A.A.F. 1995) (applying waiver for a double jeopardy challenge to a
guilty plea because the “existing record” was not sufficiently developed).


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GRISHAM – ARMY 20050479

                                          Guilty Plea

       The gravity of pleading guilty is such that the Supreme Court mandated the
Constitutional requirement that any guilty plea must be entered into voluntarily,
knowingly, and with an understanding of the surrounding circumstances and likely
consequences. See Santobello v. New York, 404 U.S. 257, 262-263 (1971). While
the same requirement exists for guilty pleas in military courts, “the military justice
system imposes even stricter standards on military judges with regards to guilty
pleas than those imposed on federal civilian judges.” United States v. Perron, 58
M.J. 78, 81 (C.A.A.F. 2003) (citing United States v. Outhier, 45 M.J. 326, 331
(C.A.A.F. 1996)). The military judge has an “independent obligation . . . to ensure
that the accused understands what he gives up because of his plea and the accused’s
consent to do so must be ascertained.” United States v. Resch, 65 M.J. 233, 237
(C.A.A.F. 2007).

       Furthermore, actions of the parties may affect a guilty plea even after the plea
has been accepted. “It is fundamental to a knowing and intelligent plea that where
an accused pleads guilty in reliance on promises made by the Government in a
pretrial agreement, the voluntariness of the plea depends on the fulfillment of those
promises by the Government.” Perron, 58 M.J. at 82. “When a plea rests in any
significant degree on a promise or agreement of the prosecutor, so that it can be said
to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello, 404 U.S. at 263. However, an “appellant bears the burden of
establishing that there is a significant basis in law or fact to overturn a guilty plea.”
Lundy, 63 M.J. at 301. Consequently, to overturn a guilty plea it becomes necessary
for an appellant to demonstrate that a term of his pretrial agreement was violated
and he, therefore, did not receive the benefit of his bargain. See Perron, 58 M.J. at
82; see also Santobello, 404 U.S. at 262.

                        Contract Law and Pretrial Agreements

       A pretrial agreement is a contract created through the bargaining process
between the accused and the convening authority. See Lundy, 63 M.J. at 300;
Perron, 58 M.J. at 86; Acevedo, 50 M.J. at 172. It is well established in federal and
military courts that pretrial agreements will be interpreted using contract law
principles. See Acevedo, 50 M.J. at 172 (citing Government of Virgin Islands v.
Scotland, 614 F.2d 360, 363-64 (3rd Cir. 1980)). Generally, pretrial agreements will
be strictly enforced based upon the express wording of the agreements; however,
“[w]hen interpreting pretrial agreements contract principles are outweighed by the
Constitution’s Due Process Clause protections for an accused.” Id.

      “We begin any analysis of a pretrial agreement by looking first to the
language of the agreement itself.” Id. In the context of pretrial agreements
involving the Constitutional rights of a military accused, “we look not only to the



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GRISHAM – ARMY 20050479

terms of the agreement, or contract, but to the accused’s understanding of the terms
of an agreement as reflected in the record as a whole.” Lundy, 63 M.J. at 301.

                                Military Judge’s Role

       It is paramount for the military judge to resolve any ambiguities,
inconsistencies, or misunderstandings between the accused and the government
during the providence inquiry. United States v. Dunbar, 60 M.J. 748, 750 (Army Ct.
Crim. App. 2004). “We have long emphasized the critical role that a military judge
and counsel must play to ensure that the record reflects a clear, shared understanding
of the terms of any pretrial agreement between an accused and the convening
authority.” United States v. Williams, 60 M.J. 360, 362 (C.A.A.F. 2004). The
military judge is required to ensure an accused understands the pretrial agreement
and the parties agree to its terms. See R.C.M. 910(f)(4); see also Dunbar, 60 M.J at
750. “The accused must know and understand not only the agreement’s impact on
the charges and specifications which bear on the plea . . . but also other terms of the
agreement, including consequences of future misconduct or waiver of various
rights.” United States v. Hunter, 65 M.J. 399, 403 (C.A.A.F. 2008) (quoting United
States v. Felder, 59 M.J. 444, 445 (C.A.A.F. 2004)). In the face of ambiguity, it is
the military judge’s responsibility to clarify the terms of the agreement on the
record, and ensure that all parties, especially the accused, understand the terms and
their implications. See Dunbar, 60 M.J. at 751 (citing United States v. Reedy, 4 M.J.
505, 506 (A.C.M.R. 1977) and Dep’t of the Army, Pam 27-9, Legal Services:
Military Judges’ Benchbook, para. 2-2-6 (1 Apr. 2001)).

                                    DISCUSSION

                           Terms of the Pretrial Agreement

       The parties agree, and the record reflects, that the government learned of the
additional misconduct on 6 December 2004. Appellant, however, now asserts that
the uncharged misconduct provision in his Grisham I pretrial agreement precluded
the convening authority from preferring the charges in Grisham II, because the
government knew of the additional misconduct prior to the date the convening
authority signed the offer, 8 December 2004. The government asserts the additional
charges were not precluded and, therefore, appellant was only protected from further
charges of misconduct as of the date appellant signed the offer, 1 December 2004.

       The operative language at the crux of this issue is the phrase “at the time this
offer is signed.” Appellant and counsel signed the pretrial agreement on
1 December 2004. The convening authority then accepted the agreement by signing
it on 8 December 2004. Applying basic contract law principles to this provision, we
cannot agree with appellant’s position that the record unambiguously supports the
conclusion that the “offer” was signed on 8 December 2004.



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GRISHAM – ARMY 20050479

        The term “offer” has distinct legal significance in the context of contract law.
An offer is the “manifestation of willingness to enter into a bargain, so made as to
justify another person in understanding that his assent to that bargain is invited and
will conclude it.” Restatement (Second) of Contracts §24 (1981). The offer,
standing alone, is not a contract. 4 It must be accepted by the offeree before it
becomes a contract. Acceptance of an offer is the “manifestation of assent to the
terms made by the offeree.” Restatement (Second) of Contracts §50 (1981). Thus, a
strict application of contract law results in the conclusion that it was appellant who
made the offer to enter into the pretrial agreement. This offer was “signed” when
appellant and his counsel executed it on 1 December 2004. True, the document was
later signed again when the convening authority accepted the offer, but the operative
language of the agreement speaks of “the time the offer was signed,” not the time “it
is signed by both parties.”

        Under the terms of the agreement, appellant reaped the benefit of the bargain,
protection from prosecution for any known uncharged misconduct at the time
appellant signed the offer on 1 December 2004. Our jurisprudence warns against
strictly applying contract law principles in certain circumstances, particularly when
such interpretations harm the accused. 5 The present case, however, clearly
demonstrates an example of when the terms of the agreement benefited an appellant.
Once the convening authority accepted appellant’s offer, appellant was insulated
against prosecution for any known offenses discovered prior to the date of the offer.
Only misconduct discovered after the effective date of 1 December 2004 would be
viable for prosecution.

       As clarified on the record, appellant understood the effective date of his offer
as 1 December 2004, and therefore understood the exact time limitation on the
government’s protection from prosecution for prior misconduct. Since the terms of
the offer, drafted by appellant, explicitly state that the government will not pursue
any additional charges for misconduct “known of at the time the agreement was
signed,” a belief that he would be protected from prosecution for misconduct not yet
discovered on 1 December 2004 is without justification. As the record indicates, the
laboratory did not possess even preliminary positive results on appellant’s urinalysis

4
 “An offer is a promise to do or refrain from doing some specified thing in the
future; a display of willingness to enter into a contract on specified terms, made in a
way that would lead a reasonable person to understand that an acceptance, having
been sought, will result in a binding contract.” Black’s Law Dictionary 1111 (7th
ed. 1999).
5
 As Chief Justice Crawford commented, in her concurring opinion, United States v.
Hardcastle, 53 M.J. 299, 304 (C.A.A.F. 2000), “[j]ustice has no price tag and
pretrial agreements can not always fit within the strictures of contract-law
principles.”


                                           8
GRISHAM – ARMY 20050479

testing until 6 December 2004. Therefore, this misconduct was not within the
contemplation of the parties when the terms were drafted and the offer was signed by
appellant on 1 December 2004.

                               Understanding of the Parties

       Appellant urges this court to view the term “offer” synonymous with “pretrial
agreement.” Both terms appear on the pretrial agreement’s header. We do not agree
that this juxtaposition means the terms are synonymous. At best, the juxtaposition
creates an ambiguity compelling us to look outside the four corners of the document
to establish a clear understanding of the pretrial agreement. As our superior court
reminded us in Lundy, we must look to the record for clarification of the parties’
understanding at the time the offer was made, the agreement was created, and
appellant entered his pleas. 63 M.J. at 303 (citing Perron, 58 M.J. at 85).

       Recognizing the responsibility to resolve any potential discrepancies, the
military judge in Grisham I ensured the terms of the agreement, wherever potentially
ambiguous, were adequately clarified on the record. She thoroughly reviewed with
both parties the terms dictating the limits of the protection against prosecution,
explicitly stating, “the accused has protection against charges being preferred for
any offense that the government was aware of on or before 1 December 2004.” The
military judge specifically asked appellant, on the record, whether this was also his
understanding of the terms of his pretrial agreement. Appellant responded, “Yes,
ma’am.” With this clear understanding of his pretrial agreement, it is now
disingenuous for appellant to assert he believed the effective date of his protection
from prosecution for misconduct was 8 December 2004. As the court stated in
Acevedo:

                    Looking to the actions of the participants at trial we
             find little support for appellant’s claim that the agreement
             was ambiguous or other than as he understood it. To the
             contrary, the record shows that appellant understood the
             agreement and that he knowingly and intelligently pleaded
             guilty in accordance with it.

50 M.J. at 172.

                          Effect of the Pretrial Agreement

       Appellant urges this court to overturn the findings and sentence in Grisham II
because the Grisham I pretrial agreement barred the government from prosecuting
appellant, and therefore the charges underlying Grisham II were preferred in direct
violation of the terms of his first pretrial agreement. This assertion mistakenly




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GRISHAM – ARMY 20050479

relies upon appellant’s patently false premise that the effective date of his offer was
8 December 2004.

       In this case, the trial judge identified the possibility of confusion and
conducted a thorough inquiry on the record to resolve any ambiguities created by the
provisions of the pretrial agreement. The colloquy among the trial judge, appellant,
and both counsel clearly demonstrates that the parties agreed on the effective date of
the pertinent provision. As in Acevedo, the trial judge in this case “fulfill[ed] [her]
affirmative obligations . . . [and] ensured on the record that appellant had entered
into the agreement freely and voluntarily.” 50 M.J. at 172-73 (internal citations
omitted).

       The judge’s efforts, as memorialized in the record, distinguish this case from
United States v. Williams, where the record reflected “the exchange between the
parties and the military judge plainly demonstrates something far short of a ‘clear,
shared understanding’ of the disputed restitution provision.” 60 M.J. 360, 362
(C.A.A.F. 2004). Likewise, we are confident that a meeting of the minds occurred
here. See Dunbar, 60 M.J. at 751 (holding that “no meeting of the mind’s
occurred”). All parties clearly confirmed they understood the operative date of the
relevant provision as 1 December 2004. Even after both his courts-martial,
appellant had the opportunity to challenge the military judge’s interpretation of the
pretrial agreement when he submitted his R.C.M. 1105 matters to the convening
authority. 6 Assisted by competent and legally qualified counsel, appellant failed to
do so. We find the government was not precluded from preferring charges against
appellant and his pleas were knowing and voluntary.

      We have considered appellant’s remaining assignments of error, and those
matters personally raised by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and find them to be without merit. Accordingly, the
findings and sentence are affirmed.



6
 Our superior court has identified use of R.C.M. 1105 submissions as a method to
avoid re-litigating the providency of guilty pleas:

             Where there has been a mutual misunderstanding as to a
             material term, the convening authority and an accused may
             enter into a written post-trial agreement under which the
             accused, with the assistance of counsel, makes a knowing,
             voluntary, and intelligent waiver of his right to contest the
             providence of his pleas in exchange for an alternative
             form of relief.

United States v. Smith, 56 M.J. 271, 279 (C.A.A.F. 2002).


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GRISHAM – ARMY 20050479

    Senior Judge SCHENCK and Judge WALBURN concur.
                                FORTHE
                               FOR  THECOURT:
                                       COURT:



                               MALCOLM
                               MALCOLMH.    H.SQUIRES,
                                               SQUIRES,JR.
                                                        JR.
                               Clerk of Court
                               Clerk of Court




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