Cohen v. Cohen
Filing
51
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER: IT IS HEREBY ORDERED that Petitioner's Motion for Leave to File Supplement Evidence in the Form of an Affidavit 45 is GRANTED. IT IS FURTHER ORDERED that Petitioners Complaint for Return of Child 1 is DENIED. A separate Judgment will accompany this Order. Signed by District Judge John A. Ross on 9/1/2016. (CLO)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
YACCOV COHEN,
Petitioner,
v.
OCEAN ESTER DEBORA COHEN,
Respondent.
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Case No. 4:15-CV-01756 JAR
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
This action has been brought pursuant to the Hague Convention on the Civil Aspects of
International Child Abduction, October 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 22514 (the
“Hague Convention”). The Hague Convention seeks to “protect children internationally from the
harmful effects of their wrongful removal or retention” caused either by the removal of a child
from the state of its habitual residence or the refusal to return a child to the state of its habitual
residence. Hague Convention Preamble; see Barzilay v. Barzilay, 536 F.3d 844, 846 (8th Cir.
2008). The principal objectives of the Hague Convention are “to secure the prompt return of
children wrongfully removed to or retained in any Contracting State” and “to ensure that rights
of custody and of access under the law of one Contracting State are effectively respected in the
other Contracting States.” Hague Convention art. 1; see also Silverman v. Silverman, 338 F.3d
886, 897 (8th Cir. 2003). The Hague Convention is implemented in the United States by the
International Child Abduction Remedies Act (“ICARA”), 42 U.S.C. §§ 11601-11610 (1988).
Chafin v. Chafin, 133 S. Ct. 1017, 1021 (2013). See also Abbott v. Abbott, 560 U.S. 1, 9 (2010);
Barzilay, 536 F.3d at 846.
I.
PROCEDURAL BACKGROUND
Petitioner Yaccov Cohen (“Father”) filed his Complaint for Return of Child on
November 25, 2015. (Doc. No. 1) On November 30, 2015, the Court issued an Order to Show
Cause regarding the Complaint and set the matter for hearing on December 9, 2015. (Doc. No. 4)
Respondent Ocean Ester Debora Cohen (“Mother”) filed her answer to the Complaint on
December 8, 2015. (Doc. No. 8) Father appeared for the show cause hearing through counsel;
Mother appeared in person with counsel and the child named in the Complaint, O.N.C. Because
the parties wished to conduct discovery, the Court ordered them to file a joint proposed
scheduling plan by December 14, 2015. (Doc. No. 11) Upon receipt of the parties’ joint proposed
scheduling plan (Doc. No. 12), the Court adopted the plan submitted by the parties and issued a
Case Management Order assigning the case to Track 1 (Expedited). An evidentiary hearing on
Father’s complaint was set for March 1, 2016. (Doc. No. 13) On February 18, 2016, the Court
held a pre-trial conference on the record. Because Father resides in Israel and speaks limited
English, counsel agreed that his testimony at the March hearing could be by telephone with the
assistance of a Hebrew interpreter. (Doc. No. 26) The parties filed their trial briefs on February
26, 2016. (Doc. Nos. 35, 37)
An evidentiary hearing was held on March 1, 2016. Father appeared by telephone from
Israel with the assistance of a Hebrew interpreter located in California; Mother appeared in
person and with counsel. The Court heard arguments from both sides and admitted certain
exhibits from Father and Mother into evidence. The hearing was extremely challenging and took
several hours. On a number of occasions the Court lost the telephone connection, either with
Father in Israel, or with the interpreter in California. At times the connection was not very good.
It was difficult to get through Father’s testimony, and counsel for both sides worked
2
cooperatively with each other to get the case submitted. Following the hearing, the parties were
granted sixty days to submit proposed findings of fact and conclusions of law. (Doc. No. 41)
Both sides filed their submissions on May 2, 2016. (Doc. Nos. 43, 44)
On June 8, 2016, Father moved for leave to file supplemental evidence in the form of an
affidavit in which he elaborates on the process he undertook with the U.S. State Department to
obtain pro bono legal representation in this case. (Doc. No. 45) Father asserts this evidence is
relevant to demonstrate that he acted as expeditiously as he could to file his claim under the
Hague Convention within one year of Mother’s allegedly wrongful retention of O.N.C. Mother
objects and moves to strike Father’s affidavit on the grounds that he did not obtain leave of court
to file any post-trial exhibits and that the time for submission of exhibits has therefore passed.
Mother also argues the evidence is not relevant to the issues in this case. (Doc. No. 46) Father
did not file a response to Mother’s objection. Given the difficulties associated with Father
testifying telephonically through the use of an interpreter, both on deposition and at the hearing,
the Court finds it is not unreasonable to grant Father leave to supplement his testimony with an
affidavit. Moreover, Father’s affidavit is relevant to Mother’s argument, discussed below, that he
failed to commence these proceedings in a timely manner. The Court has carefully considered all
of the evidence submitted and the parties’ proposed findings of fact and conclusions of law. The
matter is now ready for disposition.
II.
FINDINGS OF FACT
Father is an Israeli citizen and currently resides in Israel. Mother is a citizen of both the
United States and Israel and currently resides in St. Louis, Missouri. The parties were married in
Israel on November 4, 2008. They are the parents of a son, O.N.C., born December 6, 2009 in
Israel. O.N.C. is also a citizen of the United States and Israel.
3
Father has an extensive criminal record in Israel with periods of confinement. Over the
years he has accumulated substantial debt, including criminal fines, penalties and restitution
payments. This has resulted in a Stay of Exit Order placed on his visa which prohibits him from
leaving Israel.
In 2010, when O.N.C. was six months old, Father served eleven months of an eighteen
month sentence of imprisonment for assault and using a vehicle without permission. During that
time, Mother and O.N.C. moved in with her parents. After his release on six months house arrest,
Father and Mother lived together with O.N.C. in her parents’ apartment.
Shortly thereafter, the parties began discussing relocating to the U.S. Two of Mother’s
brothers, Noach and David Palatnik, were already living in St. Louis; a third brother, Yitzchak
Palatnik, emigrated later. At that time, Noach was buying and “flipping” real estate and thought
this work would be something Father could do and that a move to America would be a good
opportunity for him. Although the parties disagree as to whose idea it was initially, they both
testified that their plan was for Mother to move to the U.S. with O.N.C., find a place to live,
enroll O.N.C. in school, and work to help Father pay off the debts which were preventing him
from leaving Israel. Father would join them once his debts were paid off and they would live
together in St. Louis.
According to Mother, they decided to move because their financial situation was difficult
and they did not see a future for themselves and their son in Israel. Mother testified she told all
her friends she was leaving Israel “basically for good except for visitations for holidays.” It was
Father’s testimony that their intention was to come and live in the United States for three to five
years to save enough money to buy a house in Israel.
4
With the agreement of Father, Mother and O.N.C. traveled to St. Louis, Missouri on
December 3, 2012. At that time O.N.C. was three years old. Mother began working at an early
childhood center with a focus on Jewish education. She found O.N.C. a pediatrician, enrolled
him in a full-time educational program, and made arrangements for him to receive speech
therapy services through the St. Louis Special School District. She bought a car, registered it, got
a Missouri driver’s license, and paid taxes. Mother and O.N.C. initially lived with her brother
Noach, until they moved into a rented apartment of their own. At the time of the hearing, Mother
was working for her brother David.
Father was in constant communication with Mother and O.N.C., and once she was settled
and working, Mother began sending money to Father. She also borrowed $6,000 from her
brother Noach to help Father pay off his debts. Despite these efforts, however, Father made little
to no progress in reducing the amount of his debts, and the exit stay remained on his visa.
Over the next two years, Mother and O.N.C. returned to Israel twice, each time on roundtrip tickets. Their first visit was from May 22, 2013 to June 11, 2013. Mother, Father and O.N.C.
stayed with Mother’s parents at their apartment. At this point in time, the parties were still
discussing their plan for Father to join them in the U.S. The obstacle to Father joining them
continued to be his inability to pay off his debts.
Mother and O.N.C. traveled to Israel a second time from April 8, 2014 to April 24, 2014.
The parties were still planning for Father to come to the U.S., but Mother’s feelings about their
relationship had become unclear and the marriage was deteriorating. Father became concerned
that Mother would not return again and sought out a lawyer, Yaccov Halpern, to draft a “travel
agreement” requiring her to return to Israel with O.N.C. if he was unable to join them in six
months’ time. The parties presented differing accounts of the circumstances surrounding the
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drafting and execution of this agreement. It was Mother’s testimony that she felt she had no
option but to sign the agreement, presented to her just hours before she and O.N.C. were
scheduled to depart, because she was afraid that Father would not otherwise allow her to return
to the United States with O.N.C. She signed it after a clause was added requiring Father to “stay
away from crime and not get into trouble.” If Father breached the conditions of this clause, then
Mother was not obligated to return under the terms of the agreement. At the hearing, Father
acknowledged he was not seeking to enforce the “travel agreement” and was offering it merely
as evidence of their intent.
It was Mother’s testimony that she intended for some time to reside in the United States.
Once she was back in St. Louis, Mother filed for divorce in July 2014. In August 2014, Mother
received a telephone call from Father telling her he had been arrested, jailed, and then placed on
house arrest at his mother’s residence in Dimona, Israel. Father testified that he learned of the
divorce proceedings in early September 2014 after receiving an advertisement dated August 28,
2014 from a local St. Louis law firm. Father disputes that he was served with the Petition for
Dissolution of Marriage; however, the record indicates service on Father at the address in
Dimona on November 13, 2014.
According to his affidavit, on September 8, 2014, Father applied to the Israeli Ministry of
Justice with a request to open a file to return O.N.C. to Israel. He filed a Request Pursuant to the
Hague Convention with the Israeli Ministry of Justice seeking the international return of O.N.C.
on January 22, 2015. By letter dated January 23, 2015, the U.S. State Department acknowledged
receipt of Father’s Hague Convention application and requested additional documentation from
him including, inter alia, a legal assistance request form to determine his eligibility for pro bono
legal services.
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On March 13, 2015, the Circuit Court of St. Louis County, Missouri entered a Judgment
of Dissolution of Marriage, granting Mother sole legal and physical custody of O.N.C. with
supervised visitation to Father under the Uniform Child Custody Jurisdiction and Enforcement
Act (“UCCJEA”).
On April 29, 2015, Father completed the legal assistance request form and the Israeli
Ministry of Justice submitted it together with the additional documentation requested to the U.S.
State Department that same day.
On June 14, 2015, Father was notified that the State Department had located Mother and
O.N.C. in St. Louis. Between June 14, 2015 and October 2015, the State Department contacted a
number of attorneys on Father’s behalf. He signed an engagement letter with counsel on
November 17, 2015 and filed his complaint in this Court for issuance of a show cause order
under the Hague Convention on November 25, 2015. Father contends that Mother has
wrongfully retained O.N.C. in the United States in violation of his custody rights under Israeli
law. Father asserts that Israel was O.N.C.’s habitual residence prior to retention, and that the
Court must order O.N.C.’s return consistent with their shared intent as evidenced by the parties’
April 24, 2014 travel agreement. Mother contends, however, that the move from Israel to the
United States effected a change in O.N.C.’s habitual residence such that there has been no
wrongful retention in this case.
III.
CONCLUSIONS OF LAW
To establish a prima facie case for return under the Convention, a petitioner must show,
by a preponderance of the evidence, that: (1) prior to removal or wrongful retention, the child
was habitually resident in one Hague signatory country and then wrongfully removed to or
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retained in a different Hague signatory country1; (2) the removal or retention was in breach of
custody rights under the foreign country’s law; and (3) the petitioner was exercising custody
rights at the time of the removal or wrongful retention. Hague Convention, art. 3; 42 U.S.C. §
11603(e); Barzilay, 536 F.3d at 847; Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995).
“[E]very Hague Convention petition turns on the threshold determination of the child’s
habitual residence; all other Hague determinations flow from that decision.” Redmond v.
Redmond, 724 F.3d 729, 742 (7th Cir. 2013). The Convention does not define “habitual
residence” but directs courts to determine the habitual residence of the child at the point in time
“immediately before the removal or retention.” Hague Convention art. 3(a). The date of retention
has not been clearly established in this case. Although Father alleges the wrongful retention
occurred in October 2014, when Mother did not return to Israel with O.N.C. as agreed under the
terms of their “travel agreement,” he also alleges that he became aware of the divorce and child
custody proceedings in St. Louis County in early September 2014. Father was arguably on notice
at that time that Mother intended to remain in the United States with O.N.C. 2 In any event, this
1
The United States and Israel are both signatories to the Hague Convention. See U.S. Hague Convention
Treaty Partners, www.travel.state.gov (last visited Aug. 11, 2016).
2
Mother argues that even if the Court determines that O.N.C.’s habitual residence is Israel, under either
scenario the action was commenced more than one year from the alleged wrongful retention, and the
Court is not required to return O.N.C. if he is now settled in his new environment. Father argues the
“well-settled” affirmative defense set forth in Article 12 of the Convention does not apply because he
began the process of bringing a claim under the Convention well within a year of wrongful retention by
filing his request with the Israeli Ministry of Justice on January 22, 2015. However, U.S. courts have
interpreted “commencement of proceedings” in Article 12 to mean that an action must be filed in court.
See 22 U.S.C. § 9003(f)(3); Muhlenkamp v. Blizzard, 521 F. Supp. 2d 1140, 1152 (E.D. Wash. 2007) (the
one-year period is measured from when the petition was filed in court); Belay v. Getachew, 272 F. Supp.
2d 553, 561 (D. Md. 2003) (the filing of the petition in court commences the judicial proceedings);
Wojcik v. Wojcik, 959 F. Supp. 413, 420 (E.D. Mich. 1997). But see In re A.V.P.G., 251 S.W.3d 117,
124-25 (Tex. Ct. App. 2008) (holding that the well-settled defense did not apply because petitioner filed a
request for return with the National Center for Missing and Exploited Children, an “administrative body”
for purposes of stopping the one-year clock). The Court need not address the applicability of the “wellsettled” affirmative defense, or whether Mother waived it by failing to plead it in her answer to Father’s
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case turns on whether O.N.C. was still a habitual resident of Israel, despite having lived in the
United States for the two years preceding the alleged retention, or whether his habitual residence
changed to the United States when he traveled there with Mother in December 2012 and
remained there (with the exception of two 2 ½ week trips to Israel).
No single factor is necessarily dispositive of the habitual residence inquiry; instead,
“[t]he determination of habitual residence…is a practical, flexible, factual inquiry that accounts
for all available relevant evidence and considers the individual circumstances of each case.”
Redmond, 724 F.3d at 732. In the Eighth Circuit, factors relevant to the determination of habitual
residence include the settled purpose of the move to the new country from the child’s
perspective, parental intent regarding the move, the change in geography, the passage of time,
and the acclimatization of the child to the new country.” Stern v. Stern, 639 F.3d 449, 452 (8th
Cir. 2011) (citing Barzilay, 600 F.3d at 918). Habitual residence is determined by examining
“past experience, not future intentions.” Sorenson v. Sorenson, 559 F.3d 871, 873 (8th Cir. 2009)
(quoting Silverman, 338 F.3d at 898); Nunez–Escudero v. Tice–Menley, 58 F.3d 374, 379 (8th
Cir. 1995).
“The ‘settled purpose’ of a family’s move to a new country is a central element of the
habitual residence inquiry.” Barzilay, 600 F.3d at 918 (citing Silverman, 338 F.3d at 898).
However, “settled purpose “need not be to stay in a … location forever. Id. What is crucial is that
the purpose “have a ‘sufficient degree of continuity to be properly described as settled.’” Id.
Settled purpose must be from the child’s perspective, although parental intent is also considered.
Id.
complaint because, as discussed herein, Father has failed to establish a prima facie case for return under
the Convention in the first instance.
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In Barzilay, for example, father, a resident and citizen of Israel, filed a petition under the
Hague Convention seeking an order compelling his former wife, an Israeli citizen living in
Missouri, to comply with settlement agreements requiring her to move to Israel with the couple’s
three children. Two of the three children had lived their entire lives in Missouri; the oldest child
had lived there for five years – half of her life. There was no indication that the children had
spent any significant amount of time in another country. The children of school age had been
attending school in the United States; none of them had gone to school in Israel. Based on these
facts, the Eighth Circuit concluded that from the children’s perspective, the settled purpose of the
family’s residence in Missouri was to remain there permanently. 600 F.3d at 919.
Similarly in Sorenson, the Eighth Circuit held that Australia was the habitual residence of
a child who remained in Australia with her mother after father returned to the United States. The
child was five years old and had been living in Australia for three years; she even spoke with an
Australian accent. All of her friends lived in Australia, and she was enrolled in preschool. In
short, the child had spent the overwhelming majority of her life in Australia, and the majority of
her connections were to Australia. In addition, the parents had shared the intent to live in
Australia for an indefinite period of time, but at a minimum for three years. Based on these facts,
the Eighth Circuit held that the child had been in Australia long enough to have a “sufficient
degree of continuity to be properly described as settled.” 559 F.3d at 874.
Here, O.N.C. has experienced a clear change in geography and a substantial amount of
time, over three years, has passed since the move to the United States. Sorenson, 559 F.3d at
873-74. The evidence demonstrates that both Mother and Father decided to have O.N.C. reside in
the U.S. The parties disagree on whether the relocation was intended to be permanent, but again,
settled purpose need not be to stay forever so long as there is a “sufficient degree of continuity to
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be properly described as settled.” Barzilay, 600 F.3d at 918. Although O.N.C. resided in Israel
for the first three years of his life, the last three years and eight months - more than half his life have been spent in St. Louis, Missouri. At age 6, O.N.C. is “not only cognizant of his …
surroundings, but also of an age at which [he] is able to develop a certain routine and acquire a
sense of environmental normalcy.” Whiting v. Krassner, 391 F.3d 540, 549 (3d Cir. 2004)
(recognizing that a four-year old “is not only aware of those around him but is able to form
meaningful connections with the people and places he encounters each day.”). O.N.C. has been
enrolled in elementary school, receives speech therapy services through the St. Louis Special
School District, and is doing well. He speaks primarily English, socializes with friends, and is
involved in activities such as martial arts and swimming through the Jewish Community Center.
There is little evidence in the record concerning O.N.C.’s connections with Israel, while it
appears that O.N.C. has considerable connections with his current environment. He enjoys a
close relationship with his three maternal uncles, and he and Mother have found a community of
Israeli-Americans and Israeli expats with whom they socialize. Based on these facts, the Court
concludes that as of October 2014, O.N.C. had been in Missouri long enough to have a
“sufficient degree of continuity to be properly described as settled” from his perspective.
Sorenson, 559 F.3d at 874.
The Eighth Circuit has instructed that parental intent, while not dispositive, is also taken
into account in the habitual residence determination.3 See Stern, 639 F.3d at 452; Barzilay, 600
3
The Court acknowledges a split among the circuits as to the role or significance of parental intent in
resolving habitual-residence questions. Redmond v. Redmond, 724 F.3d 729, 744-47 (7th Cir. 2013).
Circuits following the Ninth Circuit decision in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001), place the
primary focus upon parental intent. See, e.g., Gitter v. Gitter, 396 F.3d 124 (2d Cir. 2005); Maxwell v.
Maxwell, 588 F.3d 245 (4th Cir. 2009); Koch v. Koch, 450 F.3d 703 (7th Cir. 2006). Under this
approach, courts ask first whether the parents demonstrate a shared intention to abandon the former
habitual residence, id. at 1075, and second whether there has been a change in geography for an
“appreciable period of time” that is “sufficient for acclimatization,” id. at 1078, 1067. Other Circuits
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F.3d at 920; Silverman, 338 F.3d at 899. After carefully weighing the evidence and assessing the
parties’ credibility, the Court concludes that the parties intended to relocate to the United States
and establish O.N.C.’s residence here. Indeed, prior to the move, the parties applied together for
approval of O.N.C.’s naturalization application for United States citizenship, something Father
testified was very important to him for his son. Father also testified that Mother’s brothers talked
to him about coming to the U.S. to work with them because of his knowledge in the construction
business. It was understood by the parties that Father would not be able to leave Israel until his
debts were paid off and the stay order on his visa was lifted. Until then, their intent was always
for Mother and O.N.C. to go ahead of Father and settle in the United States. The best evidence of
this intent is the actions taken by the parties. Mother and O.N.C. traveled to the U.S. despite the
known issues surrounding Father’s visa. Mother secured full-time employment, enrolled O.N.C.
in school, bought and registered a car, applied for a Missouri driver’s license, and paid taxes. She
eventually rented an apartment for them. All of these actions demonstrate that Mother was
establishing a life here for the family, and for the next two years, the parties continued to act in
furtherance of their plan. Mother was working and sending money to Father, and Mother
believed Father was making an effort to pay off his debts. Not until April of 2014, when the
marriage deteriorated, did Father claim the relocation had been intended to be temporary.
The Court has considered the “travel agreement” as potential evidence of the parties’
intent; however, there is insufficient credible evidence in the record to support a conclusion that
the parties mutually agreed to alter their intent. Moreover, habitual residence is determined by
focus on habitual residence from the child’s perspective, downplaying parental intent. See, e.g., Robert v.
Tesson, 507 F.3d 981 (6th Cir. 1993); Karkkainen v. Kovalchuk, 445 F.3d 280 (3d Cir. 2006). The Eighth
Circuit has generally followed this approach. See, e.g., Stern, 639 F.3d at 452 (“[t]he child’s perspective
should be paramount in construing this Convention whose very purpose is to protect children by
preventing their removal from the family and social environment in which [their lives have] developed.”)
(internal citations and quotation marks omitted).
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examining “past experience, not future intentions.” Sorenson, 559 F.3d at 873 (quoting
Silverman, 338 F.3d at 898).
Having considered the factors relevant to the habitual residence inquiry in this case, the
Court concludes that Father has failed to establish by a preponderance of the evidence that
O.N.C.’s habitual residence is Israel. The change in geography, passage of time since the move
to the United States, O.N.C.’s acclimatization to his current environment, the degree of settled
purpose in his environment from his perspective, and the shared intent of the parties all point to
the U.S. as O.N.C.’s habitual residence.
IV.
CONCLUSION
The availability of the return remedy depends on the child’s habitual residence because
the “retention of a child in the state of its habitual residence is not wrongful under the
Convention.” Barzilay, 600 F.3d at 916. Here, the Court concludes that the United States, not
Israel, was O.N.C.’s habitual residence immediately before the retention. Thus, Mother’s
retention of O.N.C. in the United States in October 2014 was not wrongful within the meaning of
Article 3 of the Convention. Without a wrongful retention, this Court has no authority to order
O.N.C. to be returned to Israel. “If a child has not been moved from its habitual residence …
relief under the Hague Convention must be denied without further inquiry into whether the
petitioning parent’s custody rights have been breached or whether the petitioning parent was
actually exercising those rights at the relevant time.” Redmond, 724 F.3d at 742. The Court
recognizes the importance of Father’s custody rights and maintaining regular contact with his
son; however, these are not matters for the Court’s consideration in a case for return under the
Hague Convention.
Accordingly,
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IT IS HEREBY ORDERED that Petitioner’s Motion for Leave to File Supplement
Evidence in the Form of an Affidavit [45] is GRANTED.
IT IS FURTHER ORDERED that Petitioner’s Complaint for Return of Child [1] is
DENIED.
A separate Judgment will accompany this Order.
Dated this 1st day of September, 2016.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
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