UNITED STATES, Appellee 

v. 

Michael C. BEHENNA, First Lieutenant 

U.S. Army, Appellant 

No. 12-0030 

Crim. App. No. 20090234 

United States Court of Appeals for the Armed Forces

Argued April 23, 2012 

Decided July 5, 2012 

STUCKY, J., delivered the opinion of the Court, in which BAKER, 

C.J., and RYAN, J., joined. EFFRON, S.J., filed a dissenting 

opinion, in which ERDMANN, J., joined. 

Counsel

For Appellant: Jack B. Zimmermann, Esq. (argued); Captain E. 

Patrick Gilman, Kyle R. Sampson, Esq., Megan E. Smith, Esq., and 

Terri R. Zimmermann, Esq. (on brief). 

For Appellee: Captain Stephen E. Latino, (argued); Major Amber 

J. Roach (on brief); Major Ellen S. Jennings. 

Amicus Curiae for Appellant: Philip D. Cave, Esq. (supervising 

attorney), Colleen Campbell (law student), Alexandra Stupple

(law student), and Ryan Williams (law student) – for National 

Institute of Military Justice. 

Amicus Curiae for Appellant: Donald G. Rehkopf Jr., Esq. – for 

National Association of Criminal Defense Lawyers. 

Military Judge: Theodore E. Dixon 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 

 
United States v. Behenna, No. 12-0030/AR 

2

 Judge STUCKY delivered the opinion of the Court. 

 We granted review in this case to determine whether the 

military judge provided complete and accurate self-defense 

instructions, and whether the Government failed to disclose 

favorable and material information to Appellant’s prejudice. We 

hold that, although the military judge’s instruction on 

escalation was erroneous, it was harmless beyond a reasonable 

doubt because escalation was not in issue. Moreover, contrary 

to Appellant’s arguments, withdrawal also was not in issue. We 

further hold that, even assuming that the information Appellant 

asserts the Government failed to disclose was favorable, it was 

immaterial in regard to findings and sentencing because the 

evidence substantially overlapped with other evidence presented 

by other defense experts, Appellant was not entitled to an 

escalation instruction, and the members clearly rejected the 

Government’s theory of premeditated murder. We, therefore, 

affirm the judgment of the United States Army Court of Criminal 

Appeals (CCA). 

I. 

A. 

 Contrary to Appellant’s pleas, a general court-martial with 

members found Appellant guilty of unpremeditated murder and 

assault in violation of Articles 118 and 128, Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. §§ 918, 928 (2006). 
United States v. Behenna, No. 12-0030/AR 

3

Appellant was sentenced to a dismissal, twenty-five years of 

confinement, and forfeiture of all pay and allowances. The 

convening authority reduced the amount of confinement to twenty 

years but otherwise approved the sentence as adjudged. The CCA 

affirmed the findings of guilty and the sentence as approved by 

the convening authority. United States v. Behenna, 70 M.J. 521, 

534 (A. Ct. Crim. App. 2011). 

B. 

 In September 2007, Appellant was assigned to Bayji, Iraq, 

an area north of Baghdad. His platoon’s area of operation was 

Albu Toma. During his deployment, Appellant learned of 

information linking Ali Mansur, the deceased in this case, to a 

group in Albu Toma, who were believed to be responsible for 

attacks on Coalition Forces. Appellant also learned from human 

intelligence reports that Mansur would stand on the police 

station west of Albu Toma overlooking Salaam Village and inform 

insurgents of Coalition Forces’ activities. 

 Before April 21, 2008, Appellant had given out his cell 

phone number to locals so that they could contact him with 

issues. Someone named Ali called Appellant and warned him to 

avoid Albu Toma or else harm would come to his platoon. 

Appellant also learned from a source that Mansur had spoken of 

an improvised explosive device being planted along a roadway 

used by Appellant’s platoon. 
United States v. Behenna, No. 12-0030/AR 

4

 On April 21, Appellant’s platoon was patrolling Salaam 

Village and detained two individuals. On the return trip to 

base, an explosive device was detonated near the vehicles. 

Appellant saw several individuals in his platoon injured or 

killed by the blast. A draft intelligence information report 

issued on April 27 stated that Mansur was likely a member of the 

group that was operating out of Salaam Village. After the 

report was issued, Mansur was apprehended for interrogation, but 

shortly after questioning was finished, Mansur was to be 

returned to Albu Toma. 

 Appellant read the report of Mansur’s interrogation and 

only found information regarding Mansur’s job and background and 

his relation to an RPK.1 Appellant asked that Mansur be 

reinterrogated based on his belief that Mansur had information 

on insurgents operating out of Salaam Village, who Appellant 

believed were responsible for the April 21 attack. Appellant 

did not participate in the second interrogation, and although 

Mansur provided information willingly, the interrogator told 

Appellant that Mansur was being deceptive. 

 

1

 This acronym was not defined in the record, but it likely 

refers to a Russian light machine gun, Ruchnoy (also spelled 

“Ruchnoi”) Pulemyot Kalashnikova. See J. R. Potts, RPK (Ruchnoi 

Pulemyot Kalashnikova) Light Machine Gun, Military Factory (Feb. 

16, 2012), http://www.militaryfactory.com/smallarms/detail.asp? 

smallarms_id=144. 
United States v. Behenna, No. 12-0030/AR 

5

 After the second interrogation, Appellant was ordered to 

return Mansur to Albu Toma. Appellant continued to believe that 

Mansur had information regarding the April 21 attack and the 

group operating out of Salaam Village; he further believed those 

questions had not been asked and answered. On the day that 

Mansur was to be released, Appellant went with an interpreter, 

Mr. Tarik Abdallah Silah (referred to by the parties as Harry), 

to retrieve Mansur from his cell. Appellant told Mansur, “I’m 

going to talk to you later on today. There is [sic] three 

pieces of information that I want from you . . . . If I don’t 

get that information today, you will die today.” Appellant 

admitted the scare tactic was unauthorized but claimed his 

intent was only to frighten Mansur into providing information. 

 Appellant’s platoon returned a different detainee before 

passing through Albu Toma without releasing Mansur. Appellant 

ordered his platoon to take the desert route back to base, 

because he wanted “to talk to Ali in a remote, secure location.” 

On the desert route, Appellant saw a culvert; he ordered the 

platoon to stop, because he believed this was an appropriate 

location to speak with Mansur. Appellant told Harry to follow 

him as Appellant retrieved Mansur from Sergeant Warner’s truck. 

Appellant asked Warner if he had a thermite grenade. Warner did 

not at that time, and Appellant did not order him to find one. 
United States v. Behenna, No. 12-0030/AR 

6

 Appellant, Harry, and Mansur immediately started walking 

towards the culvert. In the meantime, Warner found a thermite 

grenade and caught up with the group at the culvert. Upon 

reaching the culvert, Appellant saw there was a second culvert 

and led the group there. Outside the second culvert, Appellant 

told Mansur he wanted the information he had asked about earlier 

that day. Mansur responded that he did not know anything. 

 Appellant then moved Mansur into the culvert and cut off 

his shirt and told Warner to cut off his pants and underwear. 

Appellant then attempted to remove the zip ties that bound 

Mansur’s hands, but Harry eventually had to remove them for 

Appellant. Appellant ordered Mansur, who was then naked and 

unbound, to sit on a rock or piece of concrete inside the 

culvert. Mansur continued to claim ignorance, so Appellant 

pointed a loaded pistol at him to frighten him into providing 

the information. 

C. 

 By this time, it was dark and dusty outside, visibility was 

low, and Warner was using night vision goggles. As soon as 

Appellant pulled out his pistol, Harry stepped outside the 

culvert because he was afraid of the ricochet. Harry testified 

that from his vantage point he could make out the figure of a 

person but could not distinguish Mansur’s arms and hands. Once 

Harry was outside the culvert, Appellant again asked for the 
United States v. Behenna, No. 12-0030/AR 

7

information and stated that if Mansur did not tell him what he 

wanted to hear that he would die. Mansur said something, and 

Harry looked at Appellant to translate, and then two shots were 

fired. Harry testified that everything happened quickly, that 

he was surprised by the gunshots, and that he did not see 

exactly what happened before the shots were fired. He did not 

know what happened to cause Appellant to shoot Mansur. 

 Warner was approximately thirty-five to fifty meters away 

when he heard the first pistol shot. From his original angle, 

Warner could not see inside the culvert; so, he moved to a 

better position. He saw the muzzle flash from the second shot. 

Warner ultimately identified Appellant as the individual who 

fired the pistol shots that killed Mansur. When Warner reached 

the culvert, Appellant told him to “[t]hrow it.” Warner asked, 

“[t]hrow what” and Appellant said “[d]on’t be stupid.” Warner 

tossed the thermite grenade in the direction of Mr. Mansur’s 

body. Appellant then told Warner to take care of the clothes.2

 

 Appellant’s testimony was mostly consistent with that of 

the other witnesses, although he did elaborate on what occurred 

before he fired his pistol. He testified that he pointed his 

pistol at Mr. Mansur and told him that “[t]his [was his] last 

 

2

 Appellant testified later in the trial that immediately after 

firing the shots he did not say anything. It is unclear from 

the context of the question and answer if Appellant was refuting 
United States v. Behenna, No. 12-0030/AR 

8

chance to tell the information or [he would] die.” Appellant 

testified he heard Mr. Mansur say something in Arabic that was 

different than his previous responses, so he looked over to 

Harry for interpretation. 

 While looking at Harry, Appellant testified that he heard a 

piece of concrete hit over his left shoulder. He turned towards 

Mansur and saw him reaching for the pistol; the distance between 

them was only two or three feet. He took a step or two to his 

left, towards the entrance of the culvert, to create distance 

between him and Mansur, and then fired two shots into Mansur. 

Mansur was shot once in the head and once in the chest; the 

order of the shots was a contested issue. Behenna, 70 M.J. at 

524. Appellant stated that everything happened fast and that he 

fired the shots because he “was scared [Mansur] was going to 

take [his] weapon.” Appellant insisted throughout his testimony 

that he never intended to kill Mansur; he just wanted to scare 

him for information. 

 Upon returning to base, Appellant took Warner on a walk and 

asked him if he was “cool.” Warner indicated he was. Harry 

later asked Appellant why he had shot Mansur, and Harry 

testified that Appellant said “‘Ali Mansur planted explosives 

twice on a specific road and the explosive that went off in the 

 

Warner’s claim. It is clear, however, that an incendiary 

grenade was set off near Mansur’s body. 
United States v. Behenna, No. 12-0030/AR 

9

Salaam Village, he had a hand into this too. He was part of 

this operation.’” 

D. 

 During trial, the defense provided unrebutted testimony 

from two experts in the field of forensics. Dr. Radelat, a 

medical doctor, testified that in his expert opinion that Mansur 

was standing when he was shot. He testified that Mansur’s chest 

wound had entered under his right arm between the fourth and 

fifth rib in a horizontal path indicating that the pistol was 

level with Mansur’s wound and that Mansur’s right arm was not in 

the flight path of the bullet. 

 Dr. Radelat theorized that the chest wound was inflicted 

first, because the photographs appeared to show Mansur clutching 

a chest wound with blood running over his hand. He bolstered 

this analysis by noting that the head wound would have been so 

devastating that, had it been inflicted first, Mansur would not 

have been capable of reacting to the chest wound. Dr. Radelat 

admitted that the horizontal wound could have been caused if 

Mansur had been falling at the same angle the gun was pointed, 

although he suggested this scenario defied reason. 

 The defense also called Mr. Bevel, an expert in scene 

reconstruction. Mr. Bevel theorized that the chest wound was 

inflicted first and that Mansur was standing when shot. He 

concluded that Mansur was standing when shot because of the 
United States v. Behenna, No. 12-0030/AR 

10

level trajectory of the wound. He also bolstered that opinion 

based on the fact that it appeared Mansur had clutched the chest 

wound and the manner in which the blood ran over Mansur’s hand. 

He acknowledged that given the wound’s location on Mansur’s 

chest that his right arm had to be out of the flight path of the 

bullet, which, at the very least, meant his arm was not hanging 

straight down. 

 He noted that the head wound also had a horizontal 

trajectory, which could be consistent with Mansur standing, so 

long as the second shot was fired as Mansur slumped towards the 

ground. Mr. Bevel also testified that the nature of the blood 

trail indicated that Mansur likely was not falling backwards. 

Under Government cross-examination, Mr. Bevel admitted that 

other scenarios could reasonably explain the horizontal wound 

trajectories to the chest and head and how Mansur’s right arm 

avoided the flight pattern of the bullet. Facts necessary to 

resolve the alleged violation under Brady v. Maryland, 373 U.S. 

83 (1963), are included below. 

II. 

 The first issue is whether the members were improperly 

instructed about how Appellant could lose and regain the right 

to act in self-defense. Although we find the instruction on 

escalation was erroneous, the error was harmless beyond a 

reasonable doubt. Appellant was not entitled to such an 
United States v. Behenna, No. 12-0030/AR 

11

instruction at all, as there was no evidence raising the issue 

of escalation. Moreover, contrary to Appellant’s arguments, 

withdrawal was not in issue either, for the same reason. 

A. 

 An allegation that the members were improperly instructed 

is an issue we review de novo. United States v. Ober, 66 M.J. 

393, 405 (C.A.A.F. 2008). In regard to form, a military judge 

has wide discretion in choosing the instructions to give but has 

a duty to provide an accurate, complete, and intelligible 

statement of the law. See United States v. Wolford, 62 M.J. 

418, 419 (C.A.A.F. 2006) (recognizing that instructions must be 

correct and complete); see also United States v. Medina, 69 M.J. 

462, 465 (C.A.A.F. 2011) (noting that an instruction must be 

clear and correct). In reviewing the propriety of an 

instruction, appellate courts must read each instruction in the 

context of the entire charge and determine whether the 

instruction completed its purpose. See Jones v. United States, 

527 U.S. 373, 391 (1999). 

 In regard to substance, the instructional issues in this 

case involve self-defense. The standard for self-defense is set 

out in Rule for Court-Martial (R.C.M.) 916(e)(1), which provides 

that if an individual apprehends on reasonable grounds that 

grievous bodily harm or death is about to be wrongfully 

inflicted to his or her person, then the individual may use such 
United States v. Behenna, No. 12-0030/AR 

12

force as is appropriate for the circumstances, including deadly 

force. See United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F. 

2007) (recognizing that R.C.M. 916 generally restates the wellsettled law of self-defense). 

 The right to act in self-defense, however, is not absolute. 

Initial aggressors and those involved in mutual combat lose the 

right to act in self-defense. See R.C.M. 916(e)(4). However, 

an initial aggressor or a mutual combatant regains the right to 

act in self-defense if the other party escalates the degree of 

force, or if the initial aggressor or the mutual combatant 

withdraws in good faith and communicates that intent to 

withdraw. See Lewis, 65 M.J. at 88; R.C.M. 916(e)(4). With 

these principles in mind, we turn our attention to the 

instructions in this case. 

B. 

 The military judge provided a facially correct instruction 

on self-defense.3

 Appellant’s claim of error is in regard to the 

 

3

 The propriety of giving the initial self-defense instruction 

has not been challenged; it is provided here for context. 

 For self-defense to exist the accused must have 

had a reasonable apprehension that death or grievous 

bodily harm was about to be inflicted on himself and 

he must have actually believed that the force he used 

was necessary to prevent death or grievous bodily 

harm. In other words, self-defense has two parts: 

first the accused must have had a reasonable belief 

that death or grievous bodily harm was about to be 

inflicted upon himself. The test here is whether 
United States v. Behenna, No. 12-0030/AR 

13

following instruction on losing and regaining the right to act 

in self-defense: 

Now there exists evidence in this case that the 

accused may have been assaulting Ali Mansur 

immediately prior to the shooting by pointing a loaded 

weapon at him. A person who without provocation or 

other legal justification or excuse assaults another 

person is not entitled to self-defense unless the 

person being assaulted escalates the level of force 

beyond that which was originally used. The burden of 

proof on this issue is on the prosecution. If you are 

convinced beyond a reasonable doubt that the accused, 

without provocation or other legal justification or 

excuse, assaulted Ali Mansur then you have found that 

the accused gave up the right to self-defense. 

However, if you have a reasonable doubt that the 

accused assaulted Ali Mansur, was provoked by Ali 

Mansur, or had some other legal justification or 

excuse, and you are not convinced beyond a reasonable 

doubt that Ali Mansur did not escalate the level of 

force, then you must conclude that the accused had the 

 

under the same facts and circumstances present in this 

case, an ordinary, prudent adult person, faced with 

the same situation would have believed that there were 

grounds to fear immediate death or serious bodily 

harm; second, the accused must have actually believed 

that the amount of force he used was required to 

protect against death or serious bodily harm. 

 To determine the accused’s actual belief as to 

the amount of force which was necessary you must look 

at it -- you must look at the situation through the 

eyes of the accused. In addition to the circumstances 

known to the accused at the time, the accused age, 

intelligence, and mental condition are all important 

factors to consider in determining the accused’s 

actual belief about the amount of force required to 

protect himself. As long as the accused actually 

believed that the amount of force he used was 

necessary to protect himself against death or grievous 

bodily harm, the fact that the accused may have used 

excessive force does not matter. 
United States v. Behenna, No. 12-0030/AR 

14

right to self-defense, and then you must determine if 

the accused actually did act in self-defense. 

Emphasis added. 

 This instruction is erroneous for two reasons. First, the 

military judge provided no guidance on how to evaluate an offertype assault, which occurs, for instance, when an individual 

points a loaded pistol at another person without lawful 

justification or authorization. We recognize that the military 

judge had previously instructed the members on an assault 

consummated by a battery, but those instructions did not include 

guidance on how to evaluate the offer-type assault that preceded 

the killing of Mansur. See Manual for Courts-Martial, United 

States (MCM) pt. IV, ¶ 54.c.(1)(b) (2012 ed.). Thus, the 

members were never instructed that for Appellant to have 

assaulted Mansur by pointing the pistol at him, Mansur had to 

reasonably apprehend immediate bodily harm. See MCM pt. IV, 

¶ 54.c.(1)(b)(ii). The two varieties of assault are 

sufficiently different that, even when the instructions are 

viewed holistically, the first portion of the instruction was 

incomplete. See United States v. Marbury, 56 M.J. 12, 17 

(C.A.A.F. 2001) (holding the critical issue in offer-type 

assaults is whether the victim reasonably apprehended imminent 

bodily harm as compared to assaults consummated by a battery in 

which the critical issue is actual bodily harm). 
United States v. Behenna, No. 12-0030/AR 

15

 More importantly, the second emphasized portion of the 

instruction is an erroneous statement of law. Specifically, the 

military judge linked the lawful use of force with the issue of 

escalation with the conjunction “and.” (“However, if you have a 

reasonable doubt that the accused assaulted Ali Mansur, was 

provoked by Ali Mansur, or had some other legal justification or 

excuse, and you are not convinced beyond a reasonable doubt that 

Ali Mansur did not escalate the level of force, then you must 

conclude that the accused had the right to self-defense . . . .” 

(emphasis added)). This is an inaccurate statement of law 

because Appellant would have had the right to self-defense if 

his original use of force had been lawful -- it was provoked, 

justified, or otherwise excusable (i.e., Appellant was not an 

initial aggressor) -- or if Mr. Mansur had escalated the level 

of force. See Lewis, 65 M.J. at 88–89; R.C.M. 916(e)(1),(4). 

Having found that the instruction was erroneous, we must test 

for prejudice. 

C. 

 When instructional errors have constitutional implications, 

as instructions involving self-defense do, then the error is 

tested for prejudice under a “harmless beyond a reasonable 

doubt” standard. Lewis, 65 M.J. at 87 (citation and quotation 

marks omitted). Only when the reviewing authority is convinced 

beyond a reasonable doubt that the error did not contribute to 
United States v. Behenna, No. 12-0030/AR 

16

the defendant’s conviction or sentence is a constitutional error 

harmless. Id. (citations omitted). 

 Generally, a superfluous, exculpatory instruction that does 

not shift the burden of proof is harmless, even if the 

instruction is otherwise erroneous. See United States v. 

Thomas, 34 F.3d 44, 48 (2d Cir. 1994) (providing a potentially 

erroneous self-defense instruction could not have been 

prejudicial to the defendants because “their need to defend 

themselves arose out of their own armed aggression”); Melchior 

v. Jago, 723 F.2d 486, 493 (6th Cir. 1983) (even if instruction 

was erroneous it was harmless beyond a reasonable doubt where 

“there was insufficient evidence to submit the issue of selfdefense to the jury in the first instance”). 

 As discussed further below, Appellant lost the right to act 

in self-defense as a matter of law; therefore, any instruction 

on losing and regaining the right to self-defense was 

superfluous. Our case law makes clear that a military judge is 

only required to instruct when there is some evidence in the 

record, without regard to credibility, that the members could 

rely upon if they choose. United States v. Schumacher, 70 M.J. 

387, 389 (C.A.A.F. 2011) (citing Lewis, 65 M.J. at 87). In 

other words, a military judge must instruct on a defense when, 

viewing the evidence in the light most favorable to the defense, 

a rational member could have found in the favor of the accused 
United States v. Behenna, No. 12-0030/AR 

17

in regard to that defense. See id. (quoting Mathews v. United 

States, 485 U.S. 58, 63 (1988)). This is a legal question that 

is reviewed de novo. See id. at 389-990. 

D. 

 We begin by noting that Appellant was not in an active 

battlefield situation, that Mansur was not then actively engaged 

in hostile action against the United States or its allies, and 

that there were no other military exigencies in play. 

Appellant’s counsel at oral argument conceded that Appellant was 

not seeking a special privilege based on Appellant’s status as a 

soldier or presence on the battlefield. After careful 

consideration, we agree that the events that transpired in the 

culvert do not implicate the unique aspects of military service 

in a manner that requires us to apply other than basic criminal 

law concepts. Thus, we evaluate this situation by applying the 

fundamental concepts of self-defense as imbedded in this Court’s 

case law and the MCM. 

 As discussed earlier, if Appellant was the initial 

aggressor -- i.e., the one that provoked or brought about the 

situation that resulted in the necessity to kill another4 -- then 

 

4

 See United States v. Cardwell, 15 M.J. 124, 126 (C.M.A. 1983) 

(discussing an initial aggressor as one who starts an affray); 

see also United States v. Branch, 91 F.3d 699, 717 (5th Cir. 

1996) (citing several cases for the same proposition), rev’d on 

other grounds and remanded, Castillo v. United States, 530 U.S. 

120 (2000). 
United States v. Behenna, No. 12-0030/AR 

18

he lost his right to self-defense, unless the deceased, Mansur, 

either escalated the level of force or Appellant withdrew and 

communicated that withdrawal in good faith. See Lewis, 65 M.J. 

at 88–89; R.C.M. 916(e)(1),(4). 

 Even when viewed in the most favorable light, Appellant’s 

own testimony about the events that transpired in the culvert 

demonstrate that he was the initial aggressor because he brought 

about the situation that resulted in his killing of Mansur. 

Appellant deviated from his assigned duty to return Mansur to 

his home, without authority, to take him to a remote culvert in 

the desert, far from any active hostilities for further 

unauthorized interrogation. 

 More importantly, Appellant then stripped the detainee 

naked and forced him to sit on a rock while Appellant, in full 

combat attire with a loaded pistol, interrogated him. Appellant 

also told Mansur, as he had on other occasions that day, that he 

was going to die unless he provided specific information. Cf.

MCM pt. IV, ¶ 54.c.(1)(c)(iii) (“Thus, if Doe points a pistol at 

Roe and says, ‘If you don’t hand over your watch, I will shoot 

you.’ Doe has committed an assault upon Roe.”). 

 Although we are mindful that Mansur was a detainee, it is 

evident that Appellant’s use of force in the culvert before the 

shooting -- the critical moment in reviewing this issue -- was 
United States v. Behenna, No. 12-0030/AR 

19

unauthorized and excessive.5

 Cf. United States v. Archer, 486 

F.2d 670, 676-77 (2d Cir. 1973) (“It would be unthinkable, for 

example, to permit government agents to instigate robberies and 

beatings merely to gather evidence to convict other members of a 

gang of hoodlums.”). Even accepting the facts as Appellant 

described them on direct examination, there is no evidence on 

which a rational member could rely to conclude that Appellant 

was not the initial aggressor. The next question is whether a 

rational member could have found that Appellant regained the 

right to act in self-defense as a result of either Mansur’s 

escalating the conflict or Appellant’s withdrawing in good 

faith. 

 Under our case law, Mansur could not have escalated the 

level of force in this situation,6 as Appellant had already 

 

5

 Appellant relied on a number of 42 U.S.C. § 1983 civil rights 

cases in his brief. These cases are generally inapplicable to 

the issue before us, because the protection of civil liberties 

of American citizens, which Mansur was not, varies greatly from 

the principles underlying criminal law and the justification for 

using deadly force. However, we note that even § 1983 cases 

recognize that if an officer points a weapon at an individual 

who poses no threat, then it is so clearly an excessive use of 

force that the officer is not entitled to qualified immunity. 

Cf. Baird v. Renbarger, 576 F.3d 340, 346-47 (7th Cir. 2009) 

(holding an officer was not entitled to qualified immunity when 

he pointed his gun at individuals because the people targeted 

and the crime investigated did not suggest even a hint of 

danger). 

6

 We are not deciding what, if any, right Mansur, a detainee of 

the United States Armed Forces, had to defend himself. We are 

determining Appellant’s right to act in self-defense under wellsettled criminal law concepts and in light of his actions. 
United States v. Behenna, No. 12-0030/AR 

20

introduced deadly force. See United States v. Stanley, 71 M.J. 

60, 63 (C.A.A.F. 2012); see also Armstrong v. Bertrand, 336 F.3d 

620, 623, 625–26 (7th Cir. 2003) (holding that an armed gunman 

did not regain the right to self-defense even though the victim 

threatened to kill the gunman and lunged for his gun); Wayne R. 

LaFave, Substantive Criminal Law §10.4(e) (2d ed. 2003) (noting 

that a nondeadly aggressor is one who uses “only his fists or 

some nondeadly weapon”). Even assuming for a moment that Mansur 

could have escalated the level of force, we conclude that a 

naked and unarmed individual in the desert does not escalate the 

level of force when he throws a piece of concrete at an initial 

aggressor in full battle attire, armed with a loaded pistol, and 

lunges for the pistol. See Armstrong, 336 F.3d at 623, 625-26. 

This is especially so when the initial aggressor “had every 

opportunity to withdraw from the confrontation and there was no 

evidence he either attempted or was unable to do so.” See

Behenna, 70 M.J. at 532-33; see also R.C.M. 916(e)(4) Discussion 

(“Failure to retreat . . . does not deprive the accused of the 

right to self-defense[, but] [t]he availability of avenues of 

retreat is one factor which may be considered in addressing . . 

. that the force used was necessary for self-protection). 

 Furthermore, nothing in Appellant’s testimony indicated 

that he clearly manifested an intent to withdraw or that Mr. 

Mansur prevented Appellant from withdrawing. See United States 
United States v. Behenna, No. 12-0030/AR 

21

v. O’Neal, 16 C.M.A. 33, 37, 36 C.M.R. 189, 193 (1966) (“His 

testimony contains no suggestion of a word or act that could 

reasonably be interpreted by the others as indicating he wanted 

to end the fight.”). As the CCA found, there was no evidence 

that Mansur made contact with Appellant’s weapon, that Appellant 

indicated a desire to withdraw, or that Appellant made a goodfaith effort to withdraw. Behenna, 70 M.J. at 532-33. Rather, 

Appellant took one or two steps towards the entrance of the 

culvert where the vast desert, Warner, and the rest of his 

platoon were waiting, before he shot Mansur twice. See id. at 

523. Even accepting the facts as Appellant described them on 

direct examination, no rational member could have found either 

that Mansur escalated the situation or that Appellant withdrew 

in good faith. 

 Contrary to the dissent’s suggestion, we have not decided 

any factual matters that should have been before the members. 

There is no factual issue for the members to resolve until 

“there is some evidence upon which members could reasonably rely 

[upon] to find that each element of the defense has been 

established.” Schumacher, 70 M.J. at 389-90. Importantly, the 

issue in this case is not whether there was some evidence of 

self-defense. Rather, our holding is that any evidence of selfdefense was overcome by other events, namely the unrebutted 

evidence that Appellant was an initial aggressor and the dearth 
United States v. Behenna, No. 12-0030/AR 

22

of evidence of escalation by Mansur or good faith withdrawal by 

Appellant -- matters thoroughly discussed above.7

 

 Ultimately, even if we assume that Mansur lunged for 

Appellant’s pistol and Appellant feared that Mansur would use 

the pistol if he was able to seize it, because Appellant was the 

initial aggressor, and because there was no evidence to support 

a finding of escalation or withdrawal, a rational member could 

have come to no other conclusion than that Appellant lost the 

right to act in self-defense and did not regain it.8

 See Branch, 

91 F.3d at 712 (“The district court is not required to put the 

case to the jury on a basis that essentially indulges and even 

encourages speculations.” (quotation marks and citation 

omitted)). As such, withdrawal was not in issue and the 

erroneous instruction on escalation was superfluous. As we 

noted earlier, superfluous, exculpatory instructions that do not 

impermissibly shift burdens are generally harmless beyond a 

 

7

 The record is devoid of any evidence that Mansur used or had 

access to any means or force that could have caused Appellant’s 

death or grievous bodily harm. Indeed, the evidence suggests 

just the opposite. See Behenna, 70 M.J. at 532 (noting that 

there is no evidence that Mansur, who was naked and unarmed, 

made contact with Appellant’s pistol). 

8

 Despite giving the instruction, the military judge ultimately 

reached a similar conclusion in resolving the alleged Brady

violation. (“In applying the law to the facts of this case, the 

members could come to no reasonable conclusion other than 1LT 

Behenna did not have the right to self-defense. Accordingly . . 

. any evidence as to self-defense did not have, nor would any 

additional evidence as to self-defense have, made a difference 

in the Court’s determinations.”). 
United States v. Behenna, No. 12-0030/AR 

23

reasonable doubt, even if the instructions are otherwise 

erroneous. Nothing in these facts suggests that we should 

deviate from that conclusion. For this reason, Appellant is not 

entitled to relief. 

III. 

 The second issue is whether the Government failed to 

disclose favorable information to Appellant’s detriment in 

violation of Brady. Even if we assume error in this regard, the 

error was harmless beyond a reasonable doubt both in regard to 

findings and sentence. 

A. 

 The Government received a discovery request from defense 

counsel on August 28, 2008, requesting that the Government 

provide defense counsel with all exculpatory evidence. The 

Government gave notice that it had retained Dr. Herbert 

MacDonell as an expert consultant, whose opinion up to trial was 

favorable for the Government. The Government ultimately rested 

its case without calling Dr. MacDonell. On Wednesday, February 

25, 2009, defense put on the testimony of Dr. Radelat and Mr. 

Bevel. During cross-examination by trial counsel, both defense 

experts admitted that alternative explanations existed for the 

forensic evidence. 

 Dr. MacDonell, with the consent of the parties, sat in the 

gallery while the other experts testified. On Wednesday night, 
United States v. Behenna, No. 12-0030/AR 

24

after court was recessed and after the defense experts had 

testified, Dr. MacDonell, in the presence of all three 

Government trial counsel, demonstrated a scenario: 

I asked if he [the aid to the demonstration] could 

stand in front of me and I put a finger in his ribs 

and said “Bang, now drop.” And he went down to his 

knees and as he went by the finger I said, “Bang.” I 

said, “Now that seems to me to be the only logical 

thing.” I admit it is extremely unlikely, but 

sometimes things that happen that are statistically 

improbable do happen [sic]. 

Dr. MacDonell also testified that he ended his discussions with 

trial counsel by stating that “anything is possible,” because 

“[y]ou can’t be certain of a theory like that. A scenario can 

be presented, but if it is consistent with the facts it can be 

believed, but it may not be the only explanation.” 

 On Thursday, Dr. MacDonell heard Appellant’s testimony, 

which was consistent with the theory he presented Wednesday. 

This caused Dr. MacDonell to believe that Appellant was telling 

the truth. During the post-trial Article 39(a), Brady hearing, 

Dr. MacDonell testified that after hearing Appellant’s testimony 

he only spoke with another Government witness about how 

Appellant’s description of events was exactly how he had 

theorized it might have occurred. In an affidavit submitted 

after the Article 39(a) session, however, Dr. MacDonell averred 

that he also told the prosecutors on Thursday that “although the 

scenario I had presented to them the day before [Wednesday] was 
United States v. Behenna, No. 12-0030/AR 

25

unlikely, it still was the only theory I could develop that was 

consistent with the physical evidence. It was also exactly the 

way Lt. Behenna had described the events.” 

 Regardless of the discrepancy, as Dr. MacDonell left for 

his return flight on Thursday, he told defense counsel he would 

have been a great witness for them. When asked to elaborate, 

Dr. MacDonell said he thought it would have been inappropriate 

to explain further given his relation to the Government in this 

case. In light of Dr. MacDonell’s odd statement on Thursday, 

defense counsel asked the prosecutors before trial began on 

Friday morning if it was in possession of any exculpatory 

information. The prosecutors stated that they were unaware of 

any exculpatory information. Later that day, the members 

returned a finding of guilty to assault and unpremeditated 

murder. 

 At approximately 4 p.m. on Friday, Dr. MacDonell sent an email to the prosecutors, in which he stated that “I feel that 

[my opinion] is quite important as possible exculpatory evidence 

so I hope that, in the interest of justice, you informed 

[defense counsel] of my findings. It certainly appears like 

Brady material to me.” One of the prosecutors discovered the email late Friday night and forwarded the e-mail to defense 

counsel with a note that stated “I am not sure that I believe 

that Mr. MacDonell’s new opinion is exculpatory, but I wanted to 
United States v. Behenna, No. 12-0030/AR 

26

send it to you in an abundance of caution.” Defense counsel 

moved for a mistrial on the basis of a Brady violation. 

B. 

Pursuant to Brady, the Government violates an accused’s 

“right to due process if it withholds evidence that is favorable 

to the defense and material to the defendant’s guilt or 

punishment.” Smith v. Cain, 132 S. Ct. 627, 630 (2012). 

Evidence is favorable if it is exculpatory, substantive evidence 

or evidence capable of impeaching the government’s case. United 

States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998) (citing United 

States v. Bagley, 473 U.S. 667, 676 (1985)). Evidence is 

material when “there is a reasonable probability that, had the 

evidence been disclosed, the result of the proceeding would have 

been different.” Smith, 132 S. Ct. at 630. To be material, the 

evidence must have made the “likelihood of a different result . 

. . great enough to ‘undermine[] confidence in the outcome of 

the trial.’” Id. (alteration in original) (citation omitted). 

Once a Brady violation is established, courts need not test for 

harmlessness. Kyles v. Whitley, 514 U.S. 419, 435-36 (1995).9

 

 

9

 The Fifth Circuit, in Kyles v. Whitley, noted that Brady claims 

are subject to harmless error review. See 5 F.3d 806, 818 (5th 

Cir. 1993). The Supreme Court, in reviewing that assertion, 

stated that “contrary to the assumption made by the Court of 

Appeals, 5 F.3d at 818, once a reviewing court applying Bagley

[materiality] has found constitutional error there is no need 

for further harmless-error review.” Kyles, 514 U.S. at 435. 

This makes sense; if there is a reasonable probability that the 
United States v. Behenna, No. 12-0030/AR 

27

C. 

 We do not need to determine who learned of what information 

when. Even if we assume the evidence was favorable and not 

properly disclosed, the evidence was ultimately immaterial both 

as substantive and impeachment evidence. Dr. MacDonell’s 

testimony, at most, would have made Appellant’s version of 

events more likely, that is, that Appellant shot Mansur as he 

stood and reached for Appellant’s pistol. In turn, whether 

Mansur remained seated or stood when he was shot was only 

relevant to two issues: premeditation and self-defense. 

 The result in this case -- Appellant was convicted of 

unpremeditated murder -- negates any argument that this evidence 

could have affected the outcome on the issue of premeditation, 

as the members clearly rejected the Government’s theory of the 

case -- a premeditated, execution-style killing -- when they 

returned a verdict that Appellant was guilty of unpremeditated 

murder. In regard to self-defense, Dr. MacDonell’s testimony 

could not have independently established the factual predicate 

for a self-defense theory; rather, it would have only bolstered 

Appellant’s version of events. Assuming the truth of 

 

evidence would have changed the result at trial, then, by 

definition, the failure to disclose cannot be harmless. There 

is no need to conduct a redundant test. See United States v. 

Meek, 44 M.J. 1, 5 n.2 (C.A.A.F. 1996) (noting that to the 

extent that the harmless error test is incorporated into another 
United States v. Behenna, No. 12-0030/AR 

28

Appellant’s version of what transpired in the culvert, he had 

lost the right to act in self-defense as a matter of law. See

supra Part II.D. 

 Moreover, Dr. MacDonell’s testimony did not differ greatly 

from either of the defense experts’ testimony. The two defense 

experts essentially testified that the most logical theory was 

that Mansur stood as he was shot, with his right arm out of the 

way, as if he were reaching for something, but they agreed this 

was not the only theory that could explain the forensic 

evidence. Dr. MacDonell would have agreed that the defense 

theory was the most, maybe only, logical outcome, but that one 

“can’t be a certain of a theory like that,” because “anything is 

possible,” The difference between Dr. MacDonell’s opinion and 

the other experts’ opinions was negligible. See United States 

v. Gonzalez, 62 M.J. 303, 307 (C.A.A.F. 2006) (noting that the 

overlapping nature of the evidence undercuts an argument that 

the failure to disclose pursuant to Brady was prejudicial); see 

also United States v. Agurs, 427 U.S. 97, 114 (1976) (noting 

that the alleged Brady material did not contradict any evidence 

already admitted and was similar to other evidence in the record 

in holding that there was no Brady violation). 

 

element of the test, then the harmless error test may be 

unnecessary). 
United States v. Behenna, No. 12-0030/AR 

29

 Although there may be value in a Government expert’s 

testimony that the defense theory is more convincing than the 

Government’s theory of the case, it is significantly less so 

when, as in this case, the Government expert did not testify on 

behalf of the Government or recant testimony previously 

provided. See United States v. Cooper, 654 F.3d 1104, 1120 

(10th Cir. 2011) (recognizing that the value of Brady evidence 

must be evaluated in light of the other evidence admitted at 

trial). Dr. MacDonell’s testimony ultimately would not have 

added much to Appellant’s case, other than the novelty that it 

came from a nontestifying expert witness associated with the 

Government’s case. Candidly, that novelty had little 

evidentiary value here in light of the similarity of Dr. 

MacDonell’s opinion with the other defense experts and the ease 

with which Dr. MacDonell’s opinion could have been impeached by 

his failure to provide a reasonably certain or consistent 

opinion. For these reasons, our confidence in the results of 

trial -- both for findings and sentencing10 -- is not undermined 

 

10 Appellant, despite knowing of Dr. MacDonell’s opinion prior to 

sentencing, did not ask for a continuance or take any steps to 

produce Dr. MacDonell on sentencing or otherwise make his 

testimony available at sentencing. This failure belongs to 

Appellant, not the Government. Appellant knew of the 

information with sufficient time to use the information on 

sentencing; thus, the evidence was timely disclosed in regard to 

sentencing. See DiSimone v. Phillips, 461 F.3d 181, 196-97 (2d 

Cir. 2006) (recognizing that there is no bright-line rule for 

when a disclosure is timely; rather, the question is whether the 
United States v. Behenna, No. 12-0030/AR 

30

by the Government’s failure to disclose Dr. MacDonell’s 

testimony. 

IV. 

 The judgment of the United States Army Court of Criminal 

Appeals is affirmed. 

 

evidence was disclosed in sufficient time for an accused to take 

advantage of the information, a determination necessarily 

dependent on the totality of the circumstances). 
United States v. Behenna, No. 12-0030 

 EFFRON, Senior Judge, with whom ERDMANN, Judge, joins 

(dissenting): 

Appellant served as a platoon leader in Iraq in 2008 in an 

area north of Baghdad and Tikrit. The mission of Appellant’s 

unit included counterinsurgency operations and activities in the 

Albu Toma area in conjunction with Iraqi forces. On April 21, 

2008, a hostile attack featuring an improvised explosive device 

(IED) killed two members of his platoon. Based upon 

intelligence information, Appellant interrogated Ali Mansur, a 

person suspected of involvement in terrorist activities, on May 

5, 2008, and on May 16, 2008, in an effort to pinpoint 

responsibility for the terrorist attack. Two different 

narratives emerged at trial concerning the May 16 interrogation. 

The prosecution, based upon witness testimony and forensic 

evidence, contended that Appellant murdered Ali Mansur, who was 

unarmed, unclothed, and defenseless. The defense, based 

primarily on Appellant’s testimony, contended that Ali Mansur 

suddenly reached for Appellant’s weapon during the 

interrogation, and Appellant shot Ali Mansur in self-defense. 

At trial, the prosecution and the defense each brought to 

the members’ attention evidence in the record supporting their 

respective views. The responsibility for determining what 

actually happened -- the crime of murder or justifiable selfdefense -- rested with the members of the court-martial panel. 
United States v. Behenna, No. 12-0030 

2

The responsibility for ensuring that the members made this 

decision in accordance with the proper legal standards rested 

with the military judge. 

Following the close of the evidence, the military judge 

offered a variety of instructions regarding the matters at 

issue, including an instruction on self-defense. The defense 

objected to the content of the self-defense instruction. The 

military judge rejected the defense objection, and the members 

returned a verdict of guilty on the murder charge now under 

review. 

Before our Court, Appellant challenges the content of the 

instruction, and raises a related issue concerning the failure 

of the prosecution to provide timely disclosure of evidence 

favorable to the defense. The majority rejects these challenges 

based upon the majority’s conclusion that any instructional 

error was harmless. __ M.J. __ (22-23) (C.A.A.F. 2012). For 

the reasons set forth below, I respectfully dissent. 
United States v. Behenna, No. 12-0030 

3

I. SELF-DEFENSE 

A. THE DECISIONAL PROCESS IN COURTS-MARTIAL 

1. The separate responsibilities of the military judge and the 

court-martial panel

 In trials by court-martial, Congress has vested the 

responsibility for entering findings -- the decision as to 

whether a servicemember is guilty -- in the court-martial panel, 

which performs the function of a jury. See Articles 25, 51, 52, 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 825, 851, 

852 (2006). To ensure that the panel reaches this determination 

in accordance with the law, and not on the basis of extraneous 

or other improper influences, the military judge instructs the 

panel on the applicable legal standards for reaching the 

decision on findings. See Article 51(c), UCMJ, 10 U.S.C. § 

851(c) (2006); Rule for Courts-Martial (R.C.M.) 920. 

2. The requirement to instruct when self-defense is in issue

 Among the required instructions, the military judge must 

instruct the panel on any special defense “in issue,” including 

self-defense. R.C.M. 920(e)(3); R.C.M. 916(e); United States v. 

Stanley, 71 M.J. 60, 62 (C.A.A.F. 2012) (citing United States v. 

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)). The military judge 

must treat self-defense as in issue when “‘some evidence, 

without regard to its source or credibility, has been admitted 

upon which members might rely if they chose.’” Stanley, 71 M.J. 
United States v. Behenna, No. 12-0030 

4

at 63 (quoting United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 

2007)); see Dep’t of the Army, Pam. 27-9, Legal Services, 

Military Judges’ Benchbook para. 5-1.a. (Jan. 10, 2010) 

[hereinafter Military Judges’ Benchbook] (“The credibility of 

witnesses, including the accused, whose testimony raises a 

possible affirmative defense, is not a factor in determining 

whether an instruction is necessary.”). 

3. Raising the issue of self-defense

R.C.M. 916(e) sets forth the rules governing self-defense. 

Under R.C.M. 916(e)(1): 

It is a defense to a homicide . . . that the 

accused: 

 (A) Apprehended, on reasonable grounds, 

that death or grievous bodily harm was about 

to be inflicted wrongfully on the accused; 

and 

 (B) Believed that the force the accused 

used was necessary for protection against 

death or grievous bodily harm. 

If the record contains “some evidence” raising the issue of 

self-defense, the military judge must instruct the members of 

their responsibility to make the following determinations. 

First, the court-martial panel must decide whether the accused 

“had a reasonable belief that death or grievous bodily harm was 

about to be inflicted on (himself) . . . .” Military Judges’ 

Benchbook para. 5-2-1. The Benchbook further states: “The test 

here is whether, under the same facts and circumstances 
United States v. Behenna, No. 12-0030 

5

presented in this case, an ordinary, prudent adult person faced 

with the same situation would have believed that there were 

grounds to fear immediate death or serious bodily harm.” Id. 

Second, the court-martial panel must decide whether the accused 

“actually believed that the amount of force (he)(she) used was 

required to protect against death or serious bodily harm.” Id. 

In making that decision, the court-martial panel “must look at 

the situation through the eyes of the accused.” Id. “In 

addition to the circumstances known to the accused at the time,” 

the court-martial panel must consider other factors pertinent to 

the case as identified by the military judge. Id. 

4. The degree of force

 The military judge also must instruct the members on how to 

address the degree of force used by the accused: 

As long as the accused actually believed 

that the amount of force (he)(she) used was 

necessary to protect against death or 

grievous bodily harm, the fact that the 

accused may have used excessive force (or a 

different type of force than that used by 

the attacker) does not matter. 

Id.; see United States v. Acosta-Vargas, 13 C.M.A. 388, 393, 32 

C.M.R. 388, 393 (1962). 

 Depending on the circumstances, the military judge will 

instruct the members that: 

[t]he accused, under the pressure of a fast 

moving situation or immediate attack, is not 

required to pause at (his)(her) peril to 
United States v. Behenna, No. 12-0030 

6

evaluate the degree of danger or the amount 

of force necessary to protect 

(himself)(herself). In deciding the issue 

of self-defense, you must give careful 

consideration to the violence and rapidity, 

if any, involved in the incident. 

 

Military Judges’ Benchbook para. 5-2-6. 

5. Opportunity to retreat or seek help

 Depending on the circumstances, the military judge may be 

required to instruct the members to take into account whether 

the accused had an opportunity to withdraw safely or obtain the 

help of others. See id. The responsibility for deciding 

whether such factors, in light of the other circumstances, 

impact the issue of self-defense rests with the court-martial 

panel. See id. 

6. The effect on self-defense when the accused acts as an 

aggressor, engages in mutual combat, or provokes an attack 

 Depending on the circumstances, an accused may lose the 

right to self-defense “if the accused was an aggressor, engaged 

in mutual combat, or provoked the attack.” R.C.M. 916(e)(4). 

The military judge must provide appropriate tailored 

instructions to the court-martial panel if the evidence 

indicates that the accused may have engaged in such conduct. 

Lewis, 65 M.J. at 87-89; R.C.M. 920(e)(3). Under the model 

instructions set forth in the Benchbook, if the evidence raises 

the issue of loss of self-defense by provocation, the military 

judge informs the panel that the right of self-defense is not 
United States v. Behenna, No. 12-0030 

7

lost unless the provoking act “is clearly calculated and 

intended by the accused to lead to a fight (or deadly 

conflict)”. Military Judges’ Benchbook para. 5-2-6. 

7. Regaining the right of self-defense

 If there is evidence that the adversary of the accused 

“escalated the level of conflict” and placed the accused “in 

reasonable apprehension of immediate death or grievous bodily 

harm,” the accused regains the right of self-defense. Id.; see

Lewis, 65 M.J. at 88 (citing United States v. Cardwell, 15 M.J. 

124, 126 (C.M.A. 1983)). Under the model instructions, if the 

accused engages in a provoking act or mutual combat involving 

“force not likely to produce death or grievous bodily harm” and 

the adversary escalates the conflict so that the accused is 

placed “in reasonable apprehension of immediate death or 

grievous bodily harm,” the accused regains the right of selfdefense. Military Judges’ Benchbook para. 5-2-6. As our Court 

noted in United States v. Moore, 15 C.M.A. 187, 198, 35 C.M.R. 

159, 170 (1964): 

One whose acts provoke a situation wherein he has to 

defend himself, who does so without intending thereby 

to provoke a difficulty, or who does so without intent 

to use the provoked assault as a pretext for killing 

or injury, does not thereby forfeit his right of 

perfect self–defense. 

 Because the underlying concept of self-defense involves 

protection and not aggression, the military judge is not 
United States v. Behenna, No. 12-0030 

8

required to give an escalation instruction when the accused uses 

deadly force in the midst of a mutual affray to subdue an 

adversary. See Stanley, 71 M.J. at 64 (concluding that the 

military judge was not obligated to give such an instruction sua 

sponte when four disaffected drug traffickers armed with loaded 

weapons engaged in mutual combat in a chaotic fast-moving 

situation, and the defense did not present a theory of 

escalation at trial or request an escalation instruction; and 

observing that the accused’s use of a loaded firearm to subdue 

an adversary in that situation constituted the use of deadly 

force under the particular circumstances of the case). A 

display of a loaded weapon, however, does not per se constitute 

use of deadly force. See id. at 63 n.3. 

8. The burden of proof

 Where there is some evidence raising the right of selfdefense and the related issues involving the opportunity to 

retreat and the loss of the right of self-defense, the 

prosecution bears the burden of proving that the accused did not 

have the right of self-defense. Military Judges’ Benchbook 

para. 5-2-6. The responsibility of making the determination 

that the accused had an opportunity to retreat, that the accused 

lost the right of self-defense, or that the accused did not 

regain the right of self-defense, rests with the court-martial 

panel. See id. 
United States v. Behenna, No. 12-0030 

9

B. DISCUSSION 

1. Prelude to the shooting

The parties generally agree on the predicate events. 

During Appellant’s military assignment to the theater of 

operations in Iraq, his unit engaged in combat activities 

against hostile forces and suffered losses as the result of 

terrorist activities in the battlefield environment. Appellant 

sought to pinpoint responsibility for the attack. Through 

intelligence channels, he received information pointing to Ali 

Mansur as a person who could provide information about the 

attack. The initial interrogation, and a subsequent 

interrogation by other officials, did not produce useful 

information about the attack. During the initial interrogation, 

on May 5, 2008, Appellant used his helmet to strike Ali Mansur 

on the back, an act that resulted in his conviction for assault. 

The validity of that conviction is not at issue in the present 

appeal. 

 On May 16, 2008, after receiving orders to return Ali 

Mansur to his village, Appellant, who was accompanied by a 

noncommissioned officer (NCO) and an interpreter, decided on his 

own initiative to undertake a further interrogation of Ali 

Mansur en route in an isolated culvert. He did so even though 

it involved a deviation from the order he had received to return 

Ali Mansur to his village. Appellant did not have training or 
United States v. Behenna, No. 12-0030 

10

responsibilities as an interrogator. The interrogation 

techniques Appellant used included removing Ali Mansur’s 

clothing, ordering him to sit, pointing a loaded weapon at Ali 

Mansur, and threatening to kill him if he did not provide the 

requested information. Appellant acknowledged that in doing so, 

he used unauthorized interrogation methods. 

2. The two narratives

 At trial, two different versions emerged as to what next 

occurred on May 16, 2008. The prosecution, relying primarily on 

the testimony of the interpreter, the NCO, and forensic 

evidence, sought to convince the court-martial panel that 

Appellant took Ali Mansur to the culvert in order to kill him, 

and that he did so. Neither the interpreter nor the NCO had a 

complete view of the events that immediately preceded the 

shooting, and the prosecution relied on other evidence, 

primarily the testimony of the pathologist who performed the 

autopsy, in an effort to convince the members that Appellant had 

engaged in an execution-style shooting of a defenseless person. 

 Appellant, in his testimony, acknowledged that he was not a 

trained interrogator, that he employed unauthorized 

interrogation techniques, and that he should not have done so. 

He stated that he used these techniques in an effort to extract 

information from Ali Mansur, and that he had no intent to kill 

him. Appellant testified that during the interrogation, he 
United States v. Behenna, No. 12-0030 

11

heard the sound of concrete hitting concrete over his shoulder. 

Appellant further testified that he saw Ali Mansur stand up from 

the sitting position and reach for Appellant’s weapon; and at 

that point, in self-defense, Appellant shot Ali Mansur. 

3. The limited focus on the unauthorized interrogation 

techniques

 With respect to the unauthorized techniques in the culvert 

on May 16, 2008, the Government did not charge Appellant with 

criminal violation of a specific order or regulation, 

maltreatment of a detainee, simple assault, or assault with a 

dangerous weapon, see Articles 92, 93, 128, UCMJ, 10 U.S.C. §§ 

892, 893, 928 (2006); nor did the Government ask the military 

judge to find that the interrogation techniques amounted to any 

of those offenses as a basis for addressing the issue of selfdefense. 

 The Government did not ask the military judge to conclude 

that the interrogation techniques constituted the use of deadly 

force for purposes of precluding Appellant from asserting the 

right of self-defense; nor did the Government ask the military 

judge to instruct the members on whether there was an 

opportunity to retreat or seek help from others. The military 

judge did not conclude, as a matter of law or fact, that 

Appellant’s interrogation techniques constituted the use of 

deadly force or that Appellant’s conduct otherwise precluded a 
United States v. Behenna, No. 12-0030 

12

self-defense instruction. Instead, the military judge 

recognized that self-defense was in issue. In that regard, 

there was “some evidence” in the record, primarily from 

Appellant’s testimony, that he used the interrogation techniques 

for purposes of extracting information, and not for purposes of 

using deadly force to kill Ali Mansur; that Ali Mansur rose from 

his sitting position and reached for Appellant’s weapon; and 

that, in a fast-moving scenario, and fearing that Ali Mansur 

might try to turn the pistol against him, Appellant shot Ali 

Mansur in self-defense. In that context, providing the members 

with a self-defense instruction was necessary to ensure that the 

decision as to what actually transpired in the culvert would be 

properly made by the court-martial panel. 

4. The instructions provided by the military judge

The issue before us is whether the military judge, in the 

course of providing instructions on self-defense, correctly 

advised the members on how to address the issue of whether, 

based on their assessment of the facts, Appellant lost the right 

of self-defense. In that regard, the granted issue does not 

call upon us to decide whether Appellant is, in fact, guilty of 

the act of murder. The granted issue requires us to determine 

whether the court-martial panel received instructions from the 

military judge on the issue of self-defense that properly 

informed the members as to the determinations they would need to 
United States v. Behenna, No. 12-0030 

13

make during the panel’s deliberations on the issue of guilt or 

innocence. 

The military judge sought to address the issue of 

provocation through the following instruction: 

Now there exists evidence in this case that the 

accused may have been assaulting Ali Mansur 

immediately prior to the shooting by pointing a loaded 

weapon at him. A person who without provocation or 

other legal justification or excuse assaults another 

person is not entitled to self-defense unless the 

person being assaulted escalates the level of force 

beyond that which was originally used. The burden of 

proof on this issue is on the prosecution. If you are 

convinced beyond a reasonable doubt that the accused, 

without provocation or other legal justification or 

excuse, assaulted Ali Mansur then you have found that 

the accused gave up the right to self-defense. 

However, if you have a reasonable doubt that the 

accused assaulted Ali Mansur, was provoked by Ali 

Mansur, or had some other legal justification or 

excuse, and you are not convinced beyond a reasonable 

doubt that Ali Mansur did not escalate the level of 

force, then you must conclude that the accused had the 

right to self-defense, and then you must determine if 

the accused actually did act in self-defense. 

 

The defense objected, arguing that Appellant’s conduct did not 

constitute the offense of assault. The military judge overruled 

that objection. 

As noted in the majority opinion, the last sentence of the 

instruction is problematic. It sets forth six different 

determinations for the members to make, employs two different 

tests for the members to apply, and includes a confusing doublenegative. The instruction asked the members to make the 
United States v. Behenna, No. 12-0030 

14

following six determinations, with little or no guidance as to 

the critical standards applicable to each: 

1. Did Appellant assault Ali Mansur? 

2. Was Appellant provoked by Ali Mansur? 

3. Did Appellant have some legal justification or excuse? 

4. Did Ali Mansur escalate the level of force? 

5. Did Appellant have the right to self-defense? 

6. Did Appellant act in self-defense? 

The instruction contains two different tests -- no reasonable 

doubt and beyond a reasonable doubt -- without clear linkage to 

the separate determinations. The confusing double-negative 

asked the members to determine whether “you are not convinced 

beyond a reasonable doubt that [Ali Mansur] did not escalate the 

level of force.” 

The record reflects the difficulty the members faced in 

comprehending and applying the instruction at issue. Before the 

members closed to deliberate, one of the members asked how an 

assault with a weapon nullifies a self-defense argument. In 

response, the military judge read for a second time the entire 

instruction on self-defense, without specifically addressing the 

member’s question. In addition, one of the members asked for a 

printed copy of all of the instructions, a request that the 

military judge denied. 

The instruction failed to provide the panel with any 

guidance as to whether Appellant had the opportunity to withdraw 

or seek help; nor did it provide the panel with any guidance on 
United States v. Behenna, No. 12-0030 

15

how to determine whether Appellant’s unauthorized interrogation: 

(1) constituted an assault as a matter of law; and (2) whether 

such conduct, if an assault, also constituted the use of deadly 

force for purposes of depriving Appellant of the right of selfdefense. 

The ambiguous wording of the instruction created the 

potential for the members to interpret it as requiring the panel 

to conclude that self-defense would not apply unless the 

evidence demonstrated each of the following: (1) an absence of 

assault; and (2) an escalation by the victim. Such an 

interpretation -- fairly implied from the text of the 

instruction but an incorrect statement of the law -- created a 

fair risk of prejudice. The instruction, compromising the right 

of Appellant to have the issue of self-defense decided by a 

properly instructed court-martial panel, constituted prejudicial 

error. Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006). 

The majority opinion holds that any error was not 

prejudicial because no reasonable court-martial panel could have 

concluded that Appellant acted in self-defense. __ M.J. at 

__ (23). Under the majority view, Appellant did not have the 

right to defend himself, notwithstanding evidence that a person 

suspected of supporting the enemy rose up and reached for 

Appellant’s weapon during an interrogation. The majority takes 

the position that Appellant, by virtue of conducting an 
United States v. Behenna, No. 12-0030 

16

unauthorized interrogation that used improper techniques, 

including pointing a pistol at the suspect and using threatening 

words, did not have the right to defend himself when his life 

was threatened. __ M.J. at __ (18-23). 

I respectfully disagree with the majority’s conclusion on 

the question of prejudice. The evidence at trial established an 

issue of self-defense for resolution by the court-martial panel, 

not this Court. The evidence at trial included testimony that: 

(1) the events occurred during an interrogation of a person 

suspected of aiding enemy forces; (2) the interrogation sought 

to obtain information for use in the combat theater of 

operations; (3) Appellant removed the suspect’s clothing, 

pointed a pistol at the suspect, and used threatening language 

for the purpose of obtaining useful information; and (4) 

Appellant had no intent to use deadly force against the suspect. 

Given the contested nature of this evidence at trial, the 

responsibility for deciding what occurred, and whether Appellant 

acted in self-defense, rested with a properly instructed courtmartial panel. See supra Part I.A. 

Under the majority’s approach, the panel should not have 

had the opportunity to consider factual issues raised by 

Appellant’s testimony, including whether the interrogation 

techniques amounted to the use of force likely to produce death 

or grievous bodily harm, whether Appellant intended to use the 
United States v. Behenna, No. 12-0030 

17

interrogation techniques as a pretext for killing Ali Mansur, or 

whether Appellant reasonably apprehended that Ali Mansur rose up 

and reached for Appellant’s weapon for the purpose of killing 

Appellant. These issues, however, were matters for resolution 

by a court-martial panel, not this Court. See supra Part I.A. 

 If the Government accuses a member of the armed forces of 

conducting an improper and abusive interrogation, the UCMJ 

provides ample authority to hold that person accountable in a 

court-martial. See supra Part I.B.3. Such accountability, 

however, does not require the servicemember to sacrifice the 

right of self-defense; nor does it deprive the servicemember of 

the right to have the panel decide whether, as a matter of fact, 

the circumstances justified the use of force to save the 

servicemember’s life from an attack by a person suspected of 

supporting the enemy. 

II. DISCLOSURE OF EXCULPATORY EVIDENCE 

 Issue II addresses the Government’s obligation to provide 

timely disclosure of exculpatory information to the defense. 

The information at issue had a direct bearing on Appellant’s 

view of the case -- that he acted in justifiable self-defense. 

The majority concludes that any failure by the Government to 

disclose exculpatory information to Appellant in a timely manner 

did not prejudice Appellant. The majority relies primarily on 

the views set forth in the majority’s discussion of Issue I, in 
United States v. Behenna, No. 12-0030 

18

which it concludes that any error with respect to the question 

of self-defense did not prejudice Appellant. In the majority’s 

view, the question of self-defense had no decisional 

significance in the case, rendering harmless any error in the 

disclosure of exculpatory information. I respectfully disagree. 

A. TRIAL PROCEEDINGS 

The prosecution retained at Government expense a highly 

respected authority in forensic evidence, Dr. Herbert MacDonell, 

as an expert consultant and possible expert witness. During 

trial, the Government rested its case without calling Dr. 

MacDonell to testify, but continued to rely on him as an expert 

consultant during the presentation of the defense case, 

including the testimony of Appellant and the forensic experts 

called by the defense. 

On Wednesday, February 25, 2009, Dr. Paul Radelat and Mr. 

Tom Bevel testified as expert witnesses for the defense and 

offered their opinions on the forensic evidence. They opined 

that the evidence indicated that Ali Mansur had been shot while 

standing, with the first shot to the chest and the second shot 

to the head. That testimony had great significance for the 

defense, as it provided scientific support for the defense 

theory of the case. In particular, that testimony tended to 

refute the Government’s theory that Appellant shot Ali Mansur 

while he was sitting, and it tended to support the defense 
United States v. Behenna, No. 12-0030 

19

theory that Ali Mansur was in an upright position, moving 

towards Appellant’s weapon, when Appellant shot him in selfdefense. 

Consistent with the standard practice for expert 

consultants and potential expert witnesses, Dr. MacDonell sat in 

the courtroom and listened to the testimony of the defense 

experts. See M.R.E. 703. After observing the testimony of the 

defense witnesses, Dr. MacDonell met with another Government 

consultant, Dr. Berg, and the three prosecutors to discuss 

strategy and possible rebuttal. 

The military judge later found that during this meeting, 

Dr. MacDonell “theorized and demonstrated that an unlikely but 

possible scenario, that was not inconsistent with the forensic 

evidence and the only logical explanation consistent with the 

testimony of Dr. Radelat and Mr. Bevel” was that Ali Mansur was 

shot first in the chest and second in the head. The military 

judge also found that “[t]his theory was not inconsistent with 

the forensic evidence, but was inconsistent with all other 

evidence known to the Government counsel and Dr. MacDonell.” At 

this point, Appellant had not yet taken the witness stand. 

On Thursday, February 26, 2009, Appellant testified that as 

Ali Mansur stood up and reached for his pistol, Appellant shot 

him twice. Again, Dr. MacDonell was in the courtroom in his 

capacity as a Government expert. After hearing Appellant’s 
United States v. Behenna, No. 12-0030 

20

testimony, Dr. MacDonell told Dr. Berg, “That’s exactly what I 

told you yesterday.” Late Thursday afternoon, the prosecution 

released Dr. MacDonell, who had requested permission to depart. 

As he left the courtroom, Dr. MacDonell approached the lead 

civilian defense counsel and said, “I would have made a great 

witness for you,” or words to that effect. When asked what he 

meant by that, Dr. MacDonell responded that he couldn’t comment 

because he was hired by the Government. 

 On Friday morning, February 27, 2009, the defense counsel 

approached the trial counsel, told her about the encounter with 

Dr. MacDonell, and asked her to explain what Dr. MacDonell meant 

by his remark. The trial counsel said she did not know, and 

that she was unaware of any exculpatory information. Neither 

party took any further action at that point, and the case 

proceeded to the announcement of findings Friday evening. 

In the evening, trial counsel received an e-mail sent by 

Dr. MacDonell earlier that afternoon, which included Dr. 

MacDonell’s observation that he was “concerned that I did not 

testify and have a chance to inform the court of the only 

logical explanation for this shooting,” namely that Ali Mansur 

was standing when shot. (Emphasis added.) The trial counsel 

immediately forwarded it to the defense counsel on Friday night. 

The military judge also received a copy that night after the 

findings were announced. 
United States v. Behenna, No. 12-0030 

21

On Saturday morning, February 28, 2009, the defense moved 

for a mistrial based upon the Government’s failure to disclose 

Dr. MacDonell’s opinion in a timely manner. The military judge 

heard testimony on the motion from Dr. MacDonell and accepted an 

oral stipulation of fact as to the conversation between the 

defense counsel and the trial counsel. Neither side offered 

additional testimony, but both the defense counsel and the trial 

counsel proffered their recollection of the events. Ultimately, 

the military judge denied the motion for a mistrial. He found 

that “[t]here is only one reasonable interpretation of Dr. 

MacDonell’s statement, in light of his area of expertise i.e., 

that he would have testified that in his opinion the forensic 

evidence in some way favorably supported the Defense theory of 

the case.” He also concluded that Dr. MacDonell’s statement to 

the defense that he would have made a good defense witness was 

sufficient notice that he possessed favorable information under 

both Brady v. Maryland, 373 U.S. 83 (1963), and R.C.M. 701. 

The military judge, however, did not focus his inquiry on 

whether the trial counsel erred by not sooner exploring this 

issue with Dr. MacDonell. Instead, the military judge expressed 

concern as to whether the defense counsel were ineffective, as a 

matter of law, in not conducting their own exploration of Dr. 

MacDonnell’s comment. The military judge concluded that, even 
United States v. Behenna, No. 12-0030 

22

if the defense team was deficient, there was no prejudice given 

the strong evidence supporting the murder conviction. 

B. DISCUSSION 

An accused is entitled to “a meaningful opportunity to 

present a complete defense.” California v. Trombetta, 467 U.S. 

479, 485 (1984). To aid the defense counsel in doing so, the 

government must disclose evidence that is material and favorable 

to the defense. Brady, 373 U.S. at 87; R.C.M. 701. Before 

trial, the defense made a specific request for the disclosure of 

all exculpatory evidence. In the present case, the Government 

bears the burden of proving, as a matter of law, that 

nondisclosure in response to a specific request is harmless 

beyond a reasonable doubt. United States v. Webb, 66 M.J. 89, 

92 (C.A.A.F. 2008). 

In view of the prosecution’s disclosure of Dr. MacDonell’s 

e-mail after the return of findings, the issue before us 

involves the timing of the disclosure. Specifically, whether 

the disclosure to the defense on Friday night, after the return 

of findings, constituted timely disclosure in view of the 

prosecution’s awareness of Dr. MacDonell’s views prior to the 

return of findings. 

As noted by the United States Court of Appeals for the 

Second Circuit in Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 

2001) (citations omitted): 
United States v. Behenna, No. 12-0030 

23

It is not feasible or desirable to specify the extent 

or timing of disclosure Brady and its progeny require, 

except in terms of the sufficiency, under the 

circumstances, of the defense’s opportunity to use the 

evidence when disclosure is made. Thus disclosure 

prior to trial is not mandated. Indeed, Brady

requires disclosure of information that the 

prosecution acquires during the trial itself, or even 

afterward. 

. . . At the same time, however, the longer the 

prosecution withholds information, . . . the less 

opportunity there is for use. 

The comments by Dr. MacDonell to the trial counsel on 

Wednesday afternoon placed trial counsel on notice that Dr. 

MacDonell held an opinion favorable to the defense that she had 

a duty to promptly disclose. Irrespective of the duty on 

Wednesday afternoon, when the defense counsel approached the 

trial counsel and questioned her about Dr. MacDonell’s startling 

statement that he would have made a good defense witness, the 

trial counsel at that point had a duty to contact Dr. MacDonell, 

to inquire promptly into the meaning of that statement, and to 

disclose the information to the defense team as soon as 

possible. 

 In denying the motion for a mistrial, the military judge 

concluded that even if the defense had sought to put Dr. 

MacDonell on the stand to offer his opinions, he would have 

ruled that testimony inadmissible. The military judge set forth 

two reasons for that conclusion. First, Dr. MacDonell’s opinion 

of the value of the forensic evidence never really changed. 
United States v. Behenna, No. 12-0030 

24

Second, any “revised” opinion was not based on any reassessment 

of the evidence but merely reflected his evaluation of 

Appellant’s credibility. The Court of Criminal Appeals held 

that the military judge would not have abused his discretion in 

precluding that testimony. United States v. Behenna, 70 M.J. 

521, 530 (A. Ct. Crim. App. 2011). Even if the testimony had 

been admitted, the lower court concluded that the outcome of the 

trial would not have changed in view of the Government’s 

overwhelming evidence of guilt. Id.

 The issue of whether Dr. MacDonell’s opinion was changed or 

revised has no bearing on the duty to disclose. The information 

was favorable to the defense. As noted by the military judge, 

the “only . . . reasonable interpretation of Dr. MacDonell’s 

statement . . . favorably supported the Defense theory of the 

case.” The fact that Dr. MacDonell came to that view after 

considering the facts, data, and testimony presented during the 

court-martial underscores the importance of timely disclosure. 

See R.C.M. 703; United States v. Houser, 36 M.J. 392, 399 

(C.M.A. 1993). 

 The record demonstrates that Dr. MacDonell’s potential 

testimony setting forth his expert views was not confined to a 

mere belief in the credibility of Appellant’s testimony. He 

would have provided the court-martial panel with detailed, 

expert testimony, supplementing the information that had been 
United States v. Behenna, No. 12-0030 

25

provided by the two defense experts, from the perspective of a 

Government-employed consultant of considerable reputation. See

United States v. Mustafa, 22 M.J. 165, 166 (C.M.A. 1986) 

(describing Dr. MacDonell as the “preeminent practitioner in the 

field”). 

 The Government’s theory of the case, as articulated 

immediately prior to closing of the trial for deliberation on 

findings, underscores the prejudice to Appellant stemming from 

the failure to provide timely disclosure of Dr. MacDonell’s 

opinion. The prosecution’s closing argument sought to assure 

the members that the testimony from the defense experts had 

little worth because they simply set forth possibilities instead 

of a definite opinion based upon the forensic evidence. Had Dr. 

MacDonell been called to testify by the defense, it is 

reasonably foreseeable that he would have added further 

information from an important perspective, beyond the testimony 

of the defense experts, based upon his expertise in blood 

spatter analysis. 

III. CONCLUSION 

 A death occurred in the theater of operations. A soldier 

has been convicted of murder. Was it murder or self-defense? 

By law, the responsibility for making that factual determination 

rested with the court-martial panel, not with this Court. The 

ambiguous, confusing, and incorrect instructions from the 
United States v. Behenna, No. 12-0030 

26

military judge deprived Appellant of the right to have a panel 

of officers make that decision. The military judge compounded 

that error by failing to take corrective action with respect to 

the Government’s failure to provide timely disclosure of 

exculpatory evidence. This Court should reverse the decision of 

the Court of Criminal Appeals and authorize a rehearing.