## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before TOZZI, CAMPANELLA, and CELTNIEKS Appellate Military Judges

UNITED STATES, Appellant

v. Major MICHAEL F. STELLATO United States Army, Appellee

ARMY MISC 20140453

Headquarters, Fort Bliss Timothy P. Hayes, Military Judge

For Appellee: Captain Robert H. Meek, III, JA (argued) ; Colonel Kevin Boyle, JA;
Lieutenant Colonel Jonathan F. Potter, JA; Captain Robe rt H. Meek, III, JA (on brief).

For Appellant: Captain Janae M. Lepir, JA (argued); Colonel John P. Carrell, JA;
Lieutenant Colonel James L. Varley; JA, Major Kenneth W. Borgnino, JA (on brief).

17 November 2014

----------------------------------------------------------------------- OPINION OF THE COURT AND ACTION ON APPEAL
BY THE UNITED STATES FILED PURSUANT TO ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE

------------------------------------------------------------------------

TOZZI, Senior Judge:

Appellee is charged at a general court-martial with one specification of rape of a child, three sp ecifications of aggravated sexu al contact with a child, one specification of indecent libert ies with a child, and one sp ecification of sodomy with a child under the age of 12, in violation of Articles 120 and 125, Unif orm Code of Military Justice, 10 U.S.C. §§ 920, 925 (20 06 & Supp. I 20 08) [hereinafter UCMJ].
This case is before this co urt pursuant to a gov ernment appeal of th e military judge’s ruling in accordance wi th Article 62, UCMJ.

At trial, the mi litary judge dismissed the char ges and specifications with prejudice as a remedy for wh at the military judge called “continual and egregious” discovery violations. On appeal, the government claims that the military judge abused his discretion both by finding di scovery violations and by imposing the remedy of dismissal with prej udice. Upon review of the record pursuant to ArticleSTELLATO—ARMY MISC 20140453

2 62, we conclude that the milit ary judge based his ruling u pon an erroneous view of the law and, accordingly, abused his discretion.

JURISDICTION

As a threshold matter, we must determ ine whether we have jurisdiction to
hear this case. Arti cle 62, UCMJ, permits this court to consider government appeals of “[a]n order or ruling of the military judge which terminates the proceedings with respect to a charge or specif ication.” UCMJ art. 62(a)(1) (A). Within 72 hours, the government must provide the military judge with written notice of appeal from the order or ruling, which must include a certification that the appeal is not being taken for purpose of delay. UCMJ art. 62(a)(2). Here, the military judge in this general court-martial ordered that the charges be di smissed with prejudic e on 20 May 2014. On 22 May 2014, the gov ernment provided timely notice of appeal of the military judge’s order and certified that the appeal is not being taken for the purpose of delay. Accordin gly, we have jurisdiction under Article 62 to c onsider this government appeal.

BACKGROUND

This interlocutory gove rnment appeal arises fro m the military judge’s dismissal of all charges and specifications with prejudice. The military judge
entered extensive findi ngs of facts and conclusions of law, which we set forth
below. 1

a. The Military Judge’s Findings of Fact

This case involves purported discovery violations over the course of several months. The accused, a m obilized reservist, is char ged with various acts of molesting his biologic al daughter, MS, from 2007 through 2009. At that time, MS was between less than three ye ars and less than five year s of age. The accused was interviewed in Afghanistan on 29 October 2012 regarding these a llegations. In November 2012, his command re deployed the accused back to the United States.
His demobilization station has been at all relevant times Fort Bliss, Texas.

1 The military judge’s ex tensive findings of fact are not clearly erroneous. As such, we adopt those findings. However, becaus e the military judge styled his factual findings in numbered paragr aphs, used internal record citations, and referred to witnesses by their full names, we have stylistically modi fied his ruling rather than quote it verbatim.STELLATO—ARMY MISC 20140453

3 The original trial counsel in this case was Captain (CPT) KJ, and the assistant trial counsel was CPT FC, the Special Victim Prosecutor. Captain KJ was responsible for responding to discovery re quests and communicating with Mrs. MS, the alleged victim’s mother. 2

On approximately 9 Februa ry 2013, Mrs. MS, with th e assistance of friends, compiled what witnesses desc ribed as a “box” of evidence relating to this case. 3
Mrs. MS had compiled this evidence over several years since the allegations were first made and kept it in a large, color-co ded binder seve ral inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her
home. Mrs. MS and MS live in Morgantown, West Virginia.

Later that month, between 25 and 27 February 201 3, CPT KJ and CPT FC traveled to Morgantown to me et Mrs. MS and MS. The fi rst meeting occu rred at one of MS’s therapy a ppointments and later co ntinued at the home of Mrs. MS and MS.

The military judge found CPT KJ became aware of the “box” of evidence in late February or early March 2013 after he visited MS and Mrs. MS with CPT FC.
Mrs. MS testified that she re ferred to this evidence and s howed the binder to CPT KJ
while in her kitchen. At that point, CPT FC was in the basement entertaining MS. Captain KJ cautioned Mrs. MS that any ev idence that she provided to him would
have to be turned over to the defense, so if she had qu estions she shou ld “ask ahead
of time.” Mrs. MS testified that she did not take th at statement to mean that she should not provide the eviden ce to the government, but th at she should be aware it
would be disclosed to the defense.

As part of his initial discussion, CPT KJ instru cted Mrs. MS that the government would need anythi ng that was “relevant.” Captain KJ did not define relevance, nor did he attempt to secure the “box” of evidence when he learned of it. 4

He did not tell Mrs. MS to preserve it, although Mrs. MS intuitively un derstood that she should not destroy anythi ng. Captain KJ did not foll ow up with he r to ensure that she had provided ever ything to him, but stated that he was “under the impression” that he had ever ything. He never di sclosed to the defe nse that there was

2 The alleged victim and her mother have th e same initials. We distinguish the two by referring to the child as MS and the mother as Mrs. MS.

3 The military judge’s ruling often placed quotations around the word “box.” Accordingly, we will do the same here.

4 The “box” ultimately remained in West Virginia in the po ssession of Mrs. MS until
March 2014.STELLATO—ARMY MISC 20140453

4 a “box” of evidence be ing held by Mrs. MS and does not recall if he even told CPT FC about the “box.” Captain KJ told CP T FC that Mrs. MS would provide a “thumb
drive.” When CPT FC left West Virginia, she was unaware of the existence of the
“box” and remained unaware of its existence un til March 2014.

Charges were preferred on 13 Ma rch 2013. The government contemporaneously provided some initial discovery to the defense, including six
DVDs. When the civilian defense counsel re ceived this discovery, one DVD was blank, one was corrupted, th ree would not run, and one was missing ten minutes of
audio from a forensic intervie w. The government later pr ovided uncorrupted copies. Although some of the corruption may have occurred at the local Trial Defense Services office, the government acknowledg es that at least one DVD was corrupted
when delivered.

On 22 March 2013, the defe nse filed its first discov ery request, requesting, among other items, exculpator y evidence; impeac hment eviden ce; evidence within the possession of the government that is material to the preparation of the defense; results of physical and ment al examinations (including Mrs. MS’s medical and mental examinations); all previous oral and writte n statements made by a prosecution witness to include notes, wr itings used to prepar e for trial, prior inconsistent statements, email, and text message communications by Mrs. MS in relation to this case; prior statements from the accused; and a request to preserve evidence. Although CPT KJ la ter testified that this request was “very generic,” the military judge specifically found that th is discovery request included several very specific requests pertaining to personal, medical, a nd mental health records of Mrs. MS; email messages between Mrs. MS and the accused; and st atements from MS. Captain KJ, his chief of milita ry justice, and the senior trial counsel decided that the discovery request woul d not be answered right away , but would be responded to
“closer to referral.” Howeve r, CPT KJ began collecting ev idence at this time. He
also testified that he never told anyone, su ch as Mrs. MS or various law enforcement agencies that had investigated the allegation s in multiple jurisdic tions, to “preserve
evidence.”

While testifying about the “box,” Mrs. MS said that CPT KJ never went through the “box ” to make sure he had everythin g, nor did he show her the defense discovery request or give he r a list of evidence she ne eded to provide. He never
asked her whether she had received mental health treatment un til she voluntarily disclosed it to him, despite the specific defe nse discovery request. She also testified
that CPT KJ never asked if MS made an inconsistent st atement, which she had. Additionally, CPT KJ never told Mrs. MS to provide her journals containing information about the case. The military judge found that CPT KJ was aware that Mrs. MS at one time posses sed emails from her husband that had be en specifically requested in discovery and fa iled to both notify the defe nse that they at one time existed and ensure that they were retrieved and provid ed to the defense. TheSTELLATO—ARMY MISC 20140453

5 military judge reasoned that given the fact that Mrs. MS eventually produced the emails in March 2014, that with minimal dili gence the emails would have been
available well be fore March 2014.

The initial partial disclosu re of the evidence in th e “box” occurre d when Mrs.
MS sent select documents to CPT KJ in th e mail on a thumb dr ive or flash drive, which CPT KJ testified “may ha ve been prior to preferral.” It was not clear until the
third continuance in March 2014 (when previously undi sclosed emails were provided to the defense) that the thumb drive did not contain all the evidence in the possession of Mrs. MS. Fu rthermore, the thumb drive was turned over to the 1st
Armored Division G-6 to iden tify its contents. The G-6 gave prin ted documentation of its contents to CPT KJ, but refused to return the t humb drive from Mrs. MS and
stated that it had been de stroyed because it had been connected to the 1st Armored Division domain. Captain KJ stated that he acquired an other thumb driv e from Mrs.
MS a few weeks later and took it home and copied the co ntents to a di sk and then returned the thumb drive to the prosecution file. It is unclear when and where this thumb drive was created, as Mrs. MS stated that she cr eated two thumb drives, and
the second one remained in he r possession until af ter the third con tinuance in March 2014. The military judge stat ed that he had no way of as certaining if the printed documents comprised everything that was stored on the th umb drives, or if the first
and second thumb drives were mirror images of one another, or if there were only
two thumb drives. All that can be said with certainty is that all of the evidence in
the “box” did not make its way onto the thum b drive that was provided to defense in documentary form.

On 8 May 2013, the a ccused waived his right to an Article 32 hearing. On 24 June 2013, the government provided disclosures require d pursuant to Military Rule of Evidence [hereinaft er Mil. R. Evid.] 304(d)( 1), commonly known as Section
III disclosures. On 27 June 2013, the convening authorit y referred this case to a general court-martial.

On 9 July 2013, th e government represen ted to the military judge that it would be ready for trial on 5 August 2013. That same day, th e government provided its first written discovery resp onse, which included the disclaimer that while all writings used to prepare for trial had been provided, “[ d]efense may want to ask again” as trial nears. Th e military judge docketed th e case for 17 September 2013.

Before the first trial da te, the defense requested a continuance due to incomplete discovery. On 20 August 2013, the defense filed a motion to compel discovery, where one of the ite ms sought was a pl astic banana that had been seized as evidence, apparently by the Allen Count y, Indiana Sheriff’s De partment. MS had indicated that, while in her hom e, she was penetrated with something that felt like a
banana. A detective in that office had initia lly told CPT KJ that he was not sure that
he still had the banana and later that the only evidence the detective still had was theSTELLATO—ARMY MISC 20140453

6 police report and two interviews. When the defense requested the banana, the
government resp onded that the defense was not en titled to “lost evid ence.” When the military judge ordered the gove rnment to search for the banana, it was located in the Sheriff’s Departme nt’s evidence locker . Ultimately, DNA tests were run on the banana, and that banana contained the DNA of MS and the DNA of an unknown male, but not the accused’s DNA.

The defense’s continuance request also addressed the production of Ms. LE. The government’s response to this continua nce request denied pr oduction of Ms. LE because she was not “part of the charged offense.” MS stated that Ms. LE was present for some of the alle ged offenses and was also victimized by the accused.
When the court ordered a fore nsic interview of Ms. LE, she denied ever being victim to any sexual offenses and had only a vague recollection of the victim. Although the military judge did not indica te when he ordered the fore nsic interview of Ms. LE, it
is uncontrovert ed and uncontested that the interview occurred after the government denied production of he r as a witness.

On 26 August 2013, the military judge granted th e defense’s continuance request and docketed the case for a 10 De cember 2013 trial date. On 16 September 2013, the accused was ar raigned, and he defe rred entry of his pl eas. In a written ruling on 17 September 2013, the military judge cautioned the government that their
decision to “take a hard stand on discovery . . . invites disaster at trial.” Captain KJ
testified that he continued his efforts to provide discovery ba sed on “what [he] deemed relevant and necessary.” In his wo rds, he “considered” the military judge’s warning but “chose not to go th rough any further delineation of what was provided.”

Captain KJ acknowledged that he made a statement in front of the Chief of Client Services in the presence of civilian defense counsel that the civilian defense counsel was “defending rapists” and had se nt an email to the civilian defense counsel that, in effect, stated that she was “defending the guilty.”

On 26 November 2013, th e defense moved for a se cond continuance based on incomplete discovery. Th e military judge denied the continuance but ordered the government to comply with new discovery deadlines and granted the defense
additional time to file motions based on new discovery. The de fense filed a motion to compel additional discovery which the m ilitary judge gr anted. On the eve of trial in December 2013, the militar y judge granted a second co ntinuance primarily due to the continued inability of the government to secure two defense witnesses, despite the fact that some go vernment witnesses had already trav eled to Fort Bliss for trial.
The case was docketed a th ird time with a 18 March 2014 trial da te. Mrs. MS’s medical records, which the military judge had ordered for an in camera review, continued to be provided to the milita ry judge from Januar y 2014 through early
March 2014.STELLATO—ARMY MISC 20140453

7 Captain KJ and his wife went to dinner with Mrs. MS and MS in December 2013 in El Paso, Texas, an d Mrs. MS is “pretty sure ” she paid for the dinner, although CPT KJ testified that he and his wife took Mrs. MS and MS to dinner. Mrs. MS gave a gift to CPT KJ to celebrate the pending bi rth of a child, but CPT KJ was unaware of the gift, due to his depl oyment, until after it was provided.

On about 5 March 2014, the new trial counsel, CPT BH, disclosed to the
defense that Mrs. MS had revealed to hi m during a recent interv iew that MS had at
one time recanted an allegation immediately after ma king it. Captain FC was not aware of the recantation prio r to this time. Mrs. MS wrote the recantation down when it happened and th at note, or a porti on of it, was provided to the defense on approximately 10 March 2014.

On 17 March 2014, the mi litary judge held a Rule for Courts-Martial [hereinafter R.C.M.] 802 conference, where the de fense requested a third continuance for what the military judge called “the follow ing non-exclusive reasons.” First, the government had informed the defe nse that Mrs. MS had at least two journals that she kept with details of the case th at she was using to prepare for
trial that had not b een and would not be provided to the defens e because Mrs. MS did not bring them to trial but brou ght only selected scan ned pages. Mrs. MS
confirmed that no one ever as ked her or told her to bring the journals or the “box” or
binder of evidence to Fort Bliss.

Second, the government ha d just provided in the R.C.M. 802 conference, witnessed by the military judge, emails be tween the accused and Mrs. MS in which the accused made statements directly contra dicting the allegations as well as Mrs.
MS’s statements that the ac cused had never deni ed the allegations. The defense had specifically requested these ema ils in its initial discovery request on 22 March 2013. Mrs. MS stated that she had previously provided the emails, bu t later acknowledged that she had inadvertently no t provided the emails to th e government prior to March

2014.

Third, the government revealed to the defense and the milit ary judge in the
R.C.M. 802 conference that there was a “box” of info rmation in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia. This
was the first time the “box” had been disclo sed to the defense or the military judge, despite the defense receiving some of its conten ts in piecemeal discovery after being scanned by a friend of Mrs. MS and forw arded on a thumb drive to the government. The military judge gr anted the defense’s re quest for continuance, and the trial was
docketed for a four th time for 8 July 2014.

The “box” of evidence was not produc ed until after the third continuance when CPT FC and her paralega l traveled to West Virginia to inventory the “box” andSTELLATO—ARMY MISC 20140453

8 its contents. Captain FC to ld Mrs. MS at that time that she needed to provide everything she had, “whe ther she thought it was relevant or not.”

The military judge specif ically found that Mrs. MS is “clearly” and “understandably” very personally and emot ionally involved in the case. She had
recorded conversation s between herself and the accuse d with equipmen t she bought at a store called the “Spy Shop” in Fort Wayne, Indiana, at the behest of Fort Wayne law enforcement personnel. She asserted that all those reco rdings have been provided to the government. Throughout 2013 , she developed a strong rapport with CPT KJ. Captain FC requested that CPT KJ provide her feedback on his progress
with the case relative to discussions with Mrs. MS, but was re peatedly rebuffed to the point where she br ought her concerns to both the former an d current chief of military justice. Regardi ng the discovery provided by Mrs. MS, CPT KJ testified that he did not plan on sitting down with her until the week befo re trial to discover
all the information that she knew.

The military judge fo und that the three contin uance requests were all attributable to the govern ment’s failure to produce witnesses or documentary evidence. The military judg e noted that the fourth tria l date was ten months after
the first trial date. He fu rther calculated that 461 days would elapse between charges being preferred and th e fourth trial date . The military j udge attributed 421 of those days to th e government. Since redeploying, the accused has been at Fort Bliss with an administrative flag in place. He had been removed from the lieutenant colonel promotion list. The accused is prohibite d from drinking alco hol, has to sign in and out when leaving post, and is unable to secure a vehicle. He lives in a
barracks which houses en listed soldiers and is required to walk to the dining facility
for meals.

On 2 April 2014, the defens e filed a motion to dismis s with prejudice due to prosecutorial misconduct in th e form of repeated discovery violations. The military judge conducted Article 39(a ) sessions addres sing this motion on 29-30 April 2014 and on 16 May 2014.

b. The Military Judge’s Anal ysis and Conclusions

After finding the precedin g facts, the military judg e cited Article 46, UCMJ, which provides that th e parties shall have equal opportunity to obtain witnesses and
other evidence. The milita ry judge generall y noted that R.C. M. 701 provides “specific guidance to trial and defe nse counsel regarding their discovery obligations.” He also note d that R.C.M. 701(g)(3) pr ovides remedies a military judge might impose for failure to comply wi th discovery violations, including orders permitting discovery, granting continuances, limiting the evidence presented by the parties, and “such other order as is just under the circumstances.”STELLATO—ARMY MISC 20140453

9 The military judge no ted that he issued orders co mpelling discovery of either witnesses or documentary evid ence on at least six occasi ons, many of those orders requiring multiple disclosures. The milita ry judge grante d three defense continuance requests, two on the eve of trial after wi tness travel had commenced, for what the military judge called “continuing discovery vi olations.” He noted that limitations on the presentation of evidence would not be helpful because much if not all the
evidence at issue is favorable to the defens e. The military judge determined that he was left to fashion a remedy that was “just under th e circumstances.”

The military judge then no ted that defense styled th eir motion as a motion to dismiss for prosecutorial misc onduct. The military judge then discussed the law of prosecutorial misconduct and noted that dismissal could be a remedy. However, the military judge also noted th at he should impos e the least severe sanction that will accomplish prompt and full co mpliance with discovery orders.

The military judge stated that in this ca se, “the discovery vi olations have been continual and egregious.” He specifically cited the government’s failure to disclose
the “box” of evidence that included written denials by the accused and recantations by MS. The military judge fo und that the governm ent “knew that the box existed[,]”
but failed to secu re it, and failed to en sure that the entirety of its relevant contents were provided to the defense, and failed to disclose the existence of the “box” until
the eve of the third trial date.

The military judge held th at the government violated R.C.M. 701(a)(2)(A) in regards to the “box” and the plastic banana . That rule governs discovery of items “within the possession, cust ody, or control of military authorities, and which are material to the preparation of the defense . . . .” The military judge held that the government exercised control over the plas tic banana by seizi ng it from the Allen County Sheriff’s Department and having it tested upon co urt order. Further, the military judge reasoned that “the fact that [CPT FC] was able to seize the ‘box’ of
evidence in March 2014 indicates that [CPT KJ] had the ability to do so in February 2013 or any time thereaf ter.” The military judge noted that both the banana and the
“box” of evidence were ex culpatory, specifically identifying the lack of the
accused’s DNA on the banana and Mrs. MS’s note take n when MS recanted her allegation. The mi litary judge noted that R.C.M. 701(a)(6)(A) re quires disclosure as soon as practicable of evidence favorable to the defense which reasonably tends to negate guilt. However, the m ilitary judge did no t expressly find a violation of that
rule.

The military judge stated that the g overnment “took a re cklessly cavalier approach to discovery.” The military ju dge then described se veral failures in regards to discover y. First, the military judge agai n noted the exculp atory nature of the “plastic banana alleged to have been lost or destroyed which the [g]overnment refused to investigat e until ordered to do so by” the military judge. Second, theSTELLATO—ARMY MISC 20140453

10 military judge note d the “exculpatory” emails “w ithheld, intentionally or inadvertently, by the accused’ s wife . . . .” Th ird, the military j udge noted that the defense only learned on the eve of the third trial that evid ence “was being filtered piecemeal by [Mrs. MS] to the [g]overnment was originally stored in a color-coded binder in a box in the po ssession of Mrs. [MS], k nown for over a year by the [g]overnment to contain mate rial evidence.” Fourth, the military judge noted that the government refused to produce a material allege d eyewitness, Ms. LE, who
denied the offenses ever occurred.

The military judge found pr ejudice primarily because a “key w itness” for the defense, Dr. K, had died after the most r ecent continuance and was not able to be deposed before his death. He had interviewed MS and Mrs. MS shortly after the allegations first came to light. 5 The military judge also found prejudic e because the delays have prevented the accused’s career progressio n, thwarted his ability to communicate with his family to resolve custody issues, and resulted in “extreme and
unwarranted” restrictions su ch as being relegated to an enlisted barracks, being denied the ability to purchase a vehicle abse nt an exception to po licy, being required to sign in and out to leav e post, and being prohibited fr om drinking alcohol.

The military judge de termined that multiple cont inuances could only partially remedy the above prejudices, and “calls into serious qu estion as to whether the
accused can ever receive a fair trial given the evidence that has alre ady been lost, unaccounted for, or left to the devices of an interest ed party.” The military judge determined that the remedy of further continua nces had been “exhausted” because each continuance brought ad ditional disclosure s of exculpatory evidence. The military judge determined that further continuances only serve to help the government perfect its case, wh ile frustrating the accused’s ability to have his day in court while suffering under significant restrictions that “serve no legitimate [g]overnment objective in th is case.” Although the defe nse suggested permitting an Article 32 hearing, the militar y judge determined that remedy would only extend the “languishing” of the case and allow the govern ment to right its wrongs.

The military judge further determined that he could not remove CPT KJ from
the case because he was no longer the trial counsel. The military judge also found that removing CPT FC woul d not be necessary or reme dial because she was not responsible for the discovery in this case. Lastly, the military judge determined that

5 The military judge noted that Dr. K’s records of interviews are not available. However, the military judge ea rlier found that the report was discovered, but that his
interview notes were no t. We assume that the milita ry judge used records and notes interchangeably.STELLATO—ARMY MISC 20140453

11 withholding evidence was not an appropriat e remedy because th e tardily disclosed evidence was exculpatory in nature.

In deciding to dismiss the case, the military judg e found no legitimate reason for what he called the gove rnment’s violations. The military judge noted “[b]y leaving discovery to the whim s of interested parties or law enforcement agencies, refusing to make a key eyew itness available for an interv iew, and faili ng to respond to the most basic discovery requests such as the request to pr eserve evidence or
determine the existence of mental health records, unless orde red to do so by the [military judge], the obligatio ns of R.C.M. 701 have been systemically ignored.”

The military judge, noting the length of the delay, analyzed the case to determine whether a constitutional speedy trial violation occu rred. Because the accused had not raised a sp eedy trial claim, the mi litary judge found no such
violation.

However, the military judge determined that “based solely on the nature, magnitude, and consistencey of the discovery violations in th is case, this is the very
rare case where dismissal is an appropriate remedy. As dismissal without prejudice only gives the [g]overn ment the opportunity to reset a nd perfect its case, and offers no remedy for the material prejudice and denial of due process already inflicted upon the [a]ccused, the only appropriate remedy left in this case is dismissal with prejudice. Being able to reach this conclu sion based on the violat ions of R.C.M. 701 alone, the Court declines to make a finding of prosec utorial misconduct in this

case.”

LAW AND DISCUSSION

a. Standard of Review

When ruling on government interlocutory appeals made pursuant to Article 62(b), we “may act only with respect to matters of law.” We may not make additional findings of fact; rather, “[o]n questi ons of fact, [our] court is limited to determining whether the mi litary judge’s findings ar e clearly erroneous or unsupported by th e record.” United States v. Lincoln , 42 M.J. 315, 320 (C.A.A.F. 1995) (quoting United States v. Kosek , 42 M.J. 60, 64 (C .M.A. 1994)). We are “bound by the military judge’s factual determinations un less they are unsupported by
the record or clear ly erroneous.” United States v. Gore , 60 M.J. 178, 185 (C.A.A.F. 2004).

As such, we review a m ilitary judge’s decision to dismiss charges and specifications for an ab use of discretion. See United States v. Bowser , __ M.J. ___, 2014 CCA LEXIS 764, at *15 (A.F. Ct. Crim. App. 3 Oct. 2014) (citations omitted). Our superior court has “long held that dism issal is a drastic remedy and courts mustSTELLATO—ARMY MISC 20140453

12 look to see whether alternat ive remedies are available . . . . When an error can be rendered harmless, dismissa l is not an appropriate re medy . . . . [D]ismissal of charges is appropriate when an accused would be prejud iced or no us eful purpose would be served by contin uing the proc eedings.” United States v. Gore , 60 M.J. 178, 187 (C.A.A.F. 2004) (citations omitted). “The ab use of discretion standard is a strict one, calling for more than a me re difference of opin ion. The challenged action must be ‘arbitrary, fa nciful, clearly unreasonable, or clearly erroneous.’”
United States v. White , 69 M.J. 236, 239 (C.A .A.F. 2010) (quoting United States v. Lloyd , 69 M.J. 95, 99 (C.A.A.F . 2010) (citations a nd quotation marks omitted)). The
abuse of discretion standard of review re cognizes that a judge ha s a range of choices and will not be reversed so long as th e decision remains wi thin that range. Gore , 60 M.J. at 187 (citing United States v. Wallace , 964 F.2d 1214, 12 17 n.3 (D.C. Cir. 1992)). “An abuse of discretion means that ‘when judicial action is taken in a discretionary manner, such action cannot be set aside by a revi ewing court unless it
has a definite and firm convi ction that the cour t below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Id. (quoting United States v. Houser , 36 M.J. 392, 397 (C.M .A. 1993) (citations omitted)).

b. Discovery Obligations in th e Military Justice System

“A military accused . . . has the right to obtain favorable evidence under Article 46, UCMJ . . . , as implemented by R.C.M. 701-703.” United States v.
Coleman , 72 M.J. 184, 186-87 (C.A.A .F 2013). It is well-e stablished that “Article 46 and its implementing rules provide greater statutory discovery rights to an
accused than does his constituti onal right to due process.” Id. at 187 (citing United
States v. Roberts , 59 M.J. 323, 327 (C.A.A.F. 2004); United States v. Hart , 29 M.J. 407, 409-10 (C.M.A. 1990 )). As our superi or court noted in Roberts :

Discovery practice under Article 46 and R.C.M. 701 “promote[s] full discovery . . . eliminates ‘gamesmanship’ from the discovery process” and is “quite liberal . . . . Providing broad di scovery at an ea rly stage reduces pretrial motions practice and surprise and delay at trial.” Manual for Courts-Martial, United States (2002 ed.), Analysis of Rules for Co urts-Martial A21-32. The military rules pertaining to discovery focus on equal
access to evidence to aid th e preparation of the defense and enhance the orderly administ ration of military justice. To this end, the discovery practice is not focused solely upon evidence known to be admissible at trial. See United

States v. Stone , 40 M.J. 420, 422 (C .M.A. 1994)(citing United States v. Lloyd , 992 F.2d 348, 351 (D.C. Cir. 1993)). The parties to a cour t-martial should evaluateSTELLATO—ARMY MISC 20140453

13 pretrial discovery an d disclosure issues in light of this
liberal mandate.

59 M.J. at 325. 6

Two discovery rules are most relevant to this appeal. First, R.C.M. 701(a)(2)
addresses various it ems within the poss ession, custody, or control of military
authorities and materi al to the preparatio n of the defense.

(2) Documents, tangible objects, reports. After service of charges, upon reques t of the defense, the Government shall permit the defense to inspect:

(A) Any books, papers, docume nts, photogra phs, tangible objects, buildings, or places, or copies of portions thereof,
which are within th e possession, custody, or control of military authorities, and wh ich are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief at trial, or were obtained from or belong to the accused;
and

(B) Any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of military authorit ies, the existenc e of which is known or by the exercise of due diligence may become known to the trial counsel, and which are material to the preparation of the defense or are intended for use by the trial counsel as evidence in the prosecution case-in-chief
at trial.

(Emphasis added). We note that R.C.M. 701( a)(2)(B) places an a dditional burden of due diligence on the tr ial counsel.

Second, R.C.M. 701(a)(6) sets forth specific requirements with respect to “[ e ] vidence favorable to the defense ”:

6 The 2012 edition of the Manual for Courts-Marti al, United States [hereinafter

MCM ] includes the same quot ed language.STELLATO—ARMY MISC 20140453

14 (6) Evidence favorable to the defense. The trial counsel shall, as soon as practicable, disclose to the defense the
existence of evid ence known to the tr ial counsel which reasonably tends to:

(A) Negate the guilt of the accused of an offense charged;

(B) Reduce the degree of gu ilt of the accused of an offense charged; or

(C) Reduce the punishment.

“The foregoing provisi on implements the Suprem e Court’s decision in Brady v. Maryland , 373 U.S. 83, 87 . . . (1963).” United States v. Williams , 50 M.J. 436, 440 (C.A.A.F. 1999) (citations omit ted). “[T]he individual pros ecutor has a du ty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, includin g the police.” Kyles v. Whitley , 514 U.S. 419, 4 37 (1995). The term “others acting on the go vernment’s behalf in the case” generally applies to governmental entities. See Williams , 50 M.J. at 441 (applyi ng the due diligence standard to “governmental files beyond the pros ecutor’s own files.”); see also
United States v. Graham , 484 F.3d 413, 417 (6th Cir. 2007) (“‘ Brady clearly does not impose an affirmative du ty upon the government to take action to discover
information which it does not possess.’ . . . [C ]ooperating witnesse s . . . stand in a very different position in relation to the prosecution than do police officers and other governmental agents.”) (quoting United States v. Beaver , 524 F.2d 963, 966 (5th Cir. 1975)).

In interpreting the outer parameters of R.C.M. 701(a)(6), ou r superior court in
Williams noted

[t]he scope of the due-dilige nce requirement with respect to governmental files beyond the prosecutor’s own files generally is limited to: (1) the files of la w enforcement authorities that have participated in the investigation of the subject matter of th e charged offenses, (2) investigative files in a related case maintained by an entity “closely aligned with the” prosecution, and (3) other files, as designated in a defense disc overy request, that involved a specified type of information within a specified entity.

50 M.J. at 441 (citations omi tted). The court also noted that these issues are
resolved on a “case- by-case” basis. Id. “To the extent that re levant files are known
to be under the cont rol of another govern mental entity, the prosecution must make
that fact known to the defense and engage in ‘goo d faith efforts’ to obtain theSTELLATO—ARMY MISC 20140453

15 material.” Id. (citing Standard 11-2.1(a), Commen tary, American Bar Association, Criminal Justice Discovery Stan dards 14 n.9 (3d ed. 1995)).

A third discovery rule, R. C.M. 701(g)(3), gives the m ilitary judge authority to take action regarding discove ry violations brought to his attention. “A military judge may take one or more of the following actions:

(A) Order the party to permit discovery;

(B) Grant a continuance;

(C) Prohibit the party from intr oducing evidence, calling a witness, or raising a de fense not disclosed; and

(D) Enter such other order as is just under the
circumstances. This rule sh all not limit the right of the accused to testify in the accused’s behalf.

While not dispositive, the lack of dismissa l as an express reme dy under this Rule
indicates the drastic natu re of that remedy.

c. Whether The Military Judge Abused His Discretion

After reviewing the record and according due deference to the military judge,
we are convinced that he based his ruling on an err oneous view of the law for two reasons. First, the military judge’s view of the government’s discovery obligations exceeded the government’s ob ligations required by the C onstitution, statutes, and regulations. Second, in ligh t of this erroneous view of the law, his decision to dismiss the charges and specifications with prejudice was an abus e of discretion. We address each purported disc overy violation in turn and then address the military judge’s remedy of dismissal with prejudice.

1. The Plastic Banana

The military judge abused his discretion by fi nding a discovery violation regarding the plastic banana . Specifically, he fou nd a violation of R.C.M. 701(a)(2)(A) when “the [g]overnment exercised control ov er the banana by seizing it from the Allen County Sheriff’s Department and having it tested upon court order.” That rule applies to “tangible objects . . . which are within th e possession, custody,
or control of military authorities .” (emphasis added). Once military authorities gained control of the banana, they had it tested and turned over the resulting
information to the defense. Put another way, R.C.M. 701(a)(2)(A) was not at issue so long as the banana was in the possession of th e Allen County Sheriff’sSTELLATO—ARMY MISC 20140453

16 Department. Once the banana came into the military ’s possession, the military complied with that rule ’s requirements.

The more precise question , which the military judg e did not analyze, was
whether the trial counsel vi olated R.C.M. 701(a)(6) by relying on a detective’s assertion “that the only evidence the det ective still had was th e police report and two interviews.” We assume without deciding that the trial counsel erred by relying on the Allen County Sheriff’s Department representation. 7 However, “[d]elayed
disclosure of ev idence does not in an d of itself constitute a Brady violation.” United

States v. O’Hara , 301 F.3d 563, 569 (7th Cir. 2002). Courts “h ave never interpreted due process of law as re quiring more than that Brady material must be disclosed in
time for effective use at trial.” United States v. Coppa , 267 F.3d 132, 142 (2d Cir. 2001). Thus, to the extent that the accused suffered a di scovery violation regarding the plastic banana, he is now fully able to use all that potentially exculpatory
evidence at trial.

2. The “Box” of Evidence

We also conclude that the military j udge abused his discretion regarding the
“box” of evidence. We reach this conc lusion by using a two-step analysis. 8 First,
we must determine whethe r the trial counsel disclo sed the evidence in the

7 See Kyles , 514 U.S. at 438 (rejec ting the argument that Brady does not apply to
information known to the police but not the prosecutor). We cannot, based on this record, determine the question of cross- jurisdiction constructi ve knowledge. When addressing cross-jurisdiction constructive knowledge, the following issu es addressed include: “(1) whethe r the party with know ledge of the informat ion is acting on the government's ‘behalf’ or is under its ‘control’; (2) the extent to which state and federal governments are part of a ‘team,’ are participating in a ‘joint investigation’ or are sharing resources; and (3) whether the entity charged with constructive possession has ‘ready access’ to the evidence.” United States v. Risha , 445 F.3d 298, 304 (3d Cir. 2006). The military judge made no findings as to this issue, and we lack the authority to do so ourselves. As a result we assu me error bu t find no
harm to the accused because he now has the banana in his po ssession for use at trial.

8 Ordinarily, on direct review, we anal yze nondisclosure clai ms in a different manner. “[F]irst, we determ ine whether the information or evidence at issue was subject to disclosure or di scovery; second, if there was nondis closure of such information, we test the effect of that nondisclosure on the appellant’s trial.”
Roberts , 59 M.J. at 325. The probl em here is that while the Roberts analysis works well for direct review, we ar e in an interlocutory appeal , where there is no way to
test the effects on non-disclosure on a trial th at has not yet occurred.STELLATO—ARMY MISC 20140453

17 government’s possession relating to the “b ox.” Second, we must determine whether the trial counsel had any furt her duty to investigate a “b ox” held by a cooperating witness in order to comply with R.C.M. 701(a)(6).

As to the first qu estion, based on the facts f ound by the military judge, the
trial counsel disclose d the evidence in the government’ s possession re lating to the
“box” of evidence. Althou gh the government had some difficulty reproducing the thumb drive using its G-6 staff section, th at staff section eventually printed the
contents of the thum b drive. Those documents were given to the defense. The military judge did qu estion whether the documents gi ven to the defense comprised everything on the thumb drive. However, he did not sp ecifically find a suppression
of evidence. Fu rthermore, while the mi litary judge stated that the governm ent knew the “box” “contain[ed] material evidence,” the trial counsel did disclose to the defense all evidence the government knew to be incl uded in the “box.” 9

Having determined that the trial coun sel disclosed all the evidence in the government’s possession a nd all the evid ence known to the gove rnment regarding the “box,” we must analyze th e second question: To what extent did the trial counsel have a duty to seek out exculpatory information in a “ box” possessed by a cooperating witness? We co nclude that the mi litary judge relied on an erroneous view of the law. The trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.

United States v. Graham is an instructive federal cas e. There, an unindicted co-conspirator testified pursuant to a plea deal with the governm ent. 484 F.3d at
415. Three weeks into trial, that witness produced fiftee n boxes, some marked “Graham” of previously undisclosed evidence. Id. at 416. The cooperating witness thought he had informed the government of those bo xes between a month and a
month and a half earlier. Id. The prosecutor’s notes fr om several months earlier stated, “[h]aven’t turned over old files, 1980s, to Graham ’s attorney. We want to
review them first.” Id. at 418. The record did not indicate that the government had possession of the boxes. Id.

The Sixth Circuit found no Brady violation because “ cooperating witnesses . . . stand in a very different position in relation to the prosecution than do

9 The military judge separate ly found that CPT KJ “was under the impr ession” that he had everything and that “it was not cl ear until the third co ntinuance in March
2014 . . . that the thumb driv e did not contain all the evid ence in the possession of Mrs. [MS].”STELLATO—ARMY MISC 20140453

18 police officers and other gove rnmental agents. The Supr eme Court in this regard relied directly on the fact that ‘the prosecutor has the means to discharge the government's Brady responsibility if he will.’ [ Kyles , 514 U.S.] at 438. That is not necessarily the case with re gard to cooperating witnesse s, as the circ umstances of
this case demonstrate.” 10

10 As one district court noted, “ insofar as Defendants' subm issions can be understood to suggest that a coop erating witness qualifies as a me mber of the ‘prosecution team’ thus charging the [g]overnment with the knowledge the witness possesses, [d]efendants do not pr ovide any support for this claim. Courts that ha ve considered this issue, however, have concluded that a cooperatin g witness is not, in fact, a member of the pr osecution team. See, e.g., United States v. Garcia , 509 F. App’x 40, 42-43 (2d Cir. 2013) (not ing that the Second Circuit ‘has neve r held that the ‘prosecution team’ includes cooperating witnesses’); Graham , 484 F.3d at 417 (‘Graham argues that the Government exerci sed effective control over the evidence because Allen was a cooperatin g witness. Neither the case law nor the facts of this case support this argument.’); United States v. Meregildo , 920 F. Supp . 2d 434, 444- 45 (S.D.N.Y. 2013) (con cluding that cooperating witn ess was not a member of the prosecution team); [ United States v. Salahuddin , No. 10-104, 2012 U.S. Dist. LEXIS 100296, 2012 WL 2952436, at *24 (D.N.J. July 19, 2012)] (rejectin g the defendant’s claim that the Government was charged with the knowledge of its cooperating witness and stating that the defendant failed to ‘offer any support that the Government can be charged with all knowledge possessed by a cooperating witness’); United States v. Abdulwahab , No. 10-248, 2011 U.S. Dist. LEXIS 108529, 2011 WL 4434236, at *7 (E.D. Va. Sept. 22, 2011) (‘The United States has no duty
under Brady to investigate evidence that is under the control of a cooperating witness.’); United States v. Smith , No. 08-31, 2011 U.S. Di st. LEXIS 63056, 2011 WL 2416804, at *4 (E.D. Ky. J une 13, 2011) (‘the informat ion in question was in the ‘possession,’ for l ack of a better word, of its cooperating witn ess - not one of the prosecution's own agents . For this reason, th e Court is not persuade d that this is an
instance where the United States willfu lly ignored information which it would otherwise have been requ ired to disc lose under Brady . . . .’); United States v.
McCall , No. 00-0505, 2009 U.S. Dist. LEXIS 113205, 2009 WL 4016616, at *1 (N.D. Cal. Nov. 18, 2 009) (declining to extend the prosecutor's duty to learn of any
favorable evidence known to police investigator s and government agents to include cooperating witnesses); cf. United States v. Cocchiola , 358 F. App'x 376, 381 (3d Cir. 2009) (‘the requirement that the Government disclose the material evidence in its possession is fu ndamentally different from placing an affirm ative obligation on prosecutors to ferret out any pote ntially exculpatory evidence.’); United States v. Harry , 927 F. Supp. 2d 1185, 1210 (D.N.M. 2013) (‘A prosecutor do es not have a duty to obtain evidence from third parties.’); United States v. Lujan , 530 F. Supp. 2d 1224, 1231 (D.N.M. 2008 ) (‘neither does the government have an affirmative duty

(continued . . .)STELLATO—ARMY MISC 20140453

19 Furthermore, the record do es not reflect, and the mi litary judge did not find, that Mrs. MS or MS were effectively gove rnment agents. In our view, nothing in this case gives us reason to merge the prosecuting sove reign United States and a cooperating witness and treat the two as on e. Given the facts, MS and Mrs. MS cooperated with the trial counsel, but did not become agents of the trial counsel.

Thus, the “box,” and th e evidence within it such as the note do cumenting the recantation and the emails, were outsid e the possession and knowledge of the government. The trial counse l did not have a du ty to search a “b ox” belonging to third party cooperating witnesses for exculpatory info rmation. The military judge
abused his discretion to the extent that he believed that the tr ial counsel had such a duty.

3. Mrs. MS’s Mental Health Records

We find no abuse of discretion from th e military judge rega rding Mrs. MS’s mental health records. Although we might read the record differently, compare Article 62 with Article 66, we agree with the mil itary judge that the trial counsel should have inquired furthe r into Mrs. MS’s mental he alth records, including the fact that she was receiving th erapy after referral of charge s, when the military judge
ordered the records produced for an in camera review.

4. The Denial of Production of Ms. LE

Although the military judg e did not expressly stat e that the government violated a duty by declining to produce Ms. LE as a wi tness for the defense, it appears that he consid ered this failure in dismissing the charges. 11 The military judge did not find that the go vernment refused to produce Ms. LE ou t of bad faith or some other improper purpose. It is clear from the moti ons that Ms. LE’s parents
refused to have Ms. LE inte rviewed and that accordingly no investigator or counsel
had interviewed her before the first continua nce. The military judge ordered her to be forensically interviewed, and that reco rding of the interview was served on the defense, albeit slowly, before the second trial date. It is clear from the record that

(. . . continued)
under Brady to seek out information that is not in its or its agents’ possession.’).”
United States v. Munchak , NO. 3:CR-10-75, 2014 U.S. Dist. LEXIS 98032, *47-*50 (M.D. Penn. Ju ly 17, 2014).

11 The production of witnesses, strictly sp eaking, is not a ques tion of discovery, but of production. As su ch, production of witn esses is gove rned by R.C.M. 703 instead
of R.C.M. 701.STELLATO—ARMY MISC 20140453

20 the defense only requested Ms. LE as a witness after receiving the forensic interview. It is equally clear from the record that the gover nment was going to produce Ms. LE for trial in response to that request. 12 We fail to see how a military judge could reasonably have found a discovery or production violat ion here.

5. Failure to Pres erve Evidence

The military judge al so noted the trial co unsel’s failure to pr eserve evidence.
We first note that most of this evidence involved items either outside the possession and control of the governme nt (such as the “box”) or evidence that the accused eventually received (such as the plastic banana). Furthermor e, the Supreme Court has required a showing of bad faith when ex amining instances of failure to preserve
evidence. See Arizona v. Youngblood , 488 U.S. 51, 58 (1988) (“We therefore hold
that unless a criminal defendant can show bad faith on the part of police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”). The military judge ma de no such finding of bad fait h here. With no finding of bad faith, and all potential ly exculpatory evidence now in the posses sion of the accused, we find neither a due process violat ion nor a violation of military discovery or production rules given th e trial counsel’s failure to preserve evidence.

6. Totality of the Circumstances

We have considered the discovery and pro duction issues “collectively, not item by item.” Kyles , 514 U.S. at 436. Although we have cited federal cases applying Brady , we are cognizant that our stat utory and executiv e guidance is
broader than Brady

. United States v. Trigueros , 69 M.J. 604, 609 (Army Ct. Crim. App. 2010). However, in ou r view, a trial counsel’s dut y in the military justice system to seek exculpatory information fro m a non-governmental th ird party, such as a cooperating witness, is the same as a prosecutor’s duty in the federal system.

Nothing in this opinion limits trial counsel from seeking exculpatory evidence
from all sources throu ghout preparation for tria l. We encourage su ch best practices. Nonetheless, we conclude that measuring due diligenc e in the cont ext of nongovernmental third parties is difficult and fraught with co ncerns. A tria l counsel, as agent of the govern ment, has a clear du ty to find exculpatory evidence in government files. See Williams , 50 M.J. at 439-41. Th at duty, however, does not

12 The record supports the military judge’s finding th at the government denied production of Ms. LE in the context of the first continua nce request. However, the defense never formally requ ested production of Ms. LE as a witness until after receiving the recording of the interview.STELLATO—ARMY MISC 20140453

21 extend to evidence in the possession of in terested third parties and that the trial
counsel does not know exists.

7. The Remedy of Dismissal

Ultimately, we conclude that the military judge abused his discretion by dismissing the charges and specifications wi th prejudice. He clearly misjudged the scope and magnitude of the disc overy issues in this case. The military judge was in an unenviable position. Multiple times before three dist inct trial date s, potentially exculpatory evidence arose which could aid the accused in his de fense. However, this potentially exculpatory evidence, such as items fr om the “box,” mostly arose from non-governmental third parties.

In short, it appears that the discovery issues involv ing the “box,” the plastic banana, and Ms. LE have be en resolved. The accuse d is in possession of significantly more potentia lly exculpatory evidence than when the case was originally docketed. We must balance this gain of potentially exculpatory evidence against the prejudices articulated by the milita ry judge. It is true that a key defense witness, Dr K., has died. It is clear fr om the record that Dr . K could potentially impeach both MS and Mrs. MS . We do not discount the potential probative power of impeachment evidence. The military judge can force the government to stipulate, either by fact or expected testimony, to Dr. K’s impeac hment evidence. The military judge also noted that the ac cused has been “suffering und er significant restrictions that serve no legitimate [g]overnment objective in [thi s] case.” The military judge has significant authority to remedy any pretrial punishment, should the matter be litigated. See UCMJ art. 13 (prohibi ting pretrial punishment). We are also cognizant of the pers onal and professional setbacks against the accused, which the military judge articulated as an example of the prejudic e in this case . However, those setbacks must be balanced agains t the accused’s acquis ition of potential exculpatory evidence.

We are left with a definite and firm c onviction that dismis sal with pr ejudice is not amongst the reasonable range of remedies for a military judge in this case. This
case has not been a model of pretrial discovery a nd production. The government should have better responded to discovery requests an d orders from the military judge, and the government failed to produce some de fense witnesses for trial. 13
Although not required to do so, the trial counsel could have asked to personally inspect the “b ox” in February 2013, so that he could be tter investigate his case. By doing so, he would have disc overed the evidence that only became known to the parties later. He would ha ve then had a duty to disc lose that evidence once he

13 The military judge made no ruling on prosecutorial miscon duct, and neithe r do we.STELLATO—ARMY MISC 20140453

22 became aware of it. Ho wever, not all shortcomin gs are the government’s responsibility. The military judge clearly erred when he ruled that the “box” of evidence and the exculpatory emails and note docu menting the recant ation within it
were discoverable under R.C.M. 701(a)(6).

Thus, dismissal, which is a “disfavored sanction,” see United States v. Rogers

, 751 F.2d 1074, 1076- 77 (9th Cir. 1985 ), is not a reasonable re medy in this case. As one federal circuit court remarked, “we conclude that dismissal for a Brady violation may be appropriate in cases of deliberate misconduct because those cases call for penalties which are not only corrective but are also hi ghly deterrent. Deliberate misconduct is targeted for extra deterrence because we ex pect willful misbehavior to be the most effectively deterr ed by enhanced penalties.” Virgin Islands v. Fahie

, 419 F.3d 249, 254-55 (3 rd Cir. 2005). He re, the military judg e did not make a specific finding as to whet her trial counsel engaged in willful misconduct. See United States v. Quinn , 537 F. Supp. 2d 99, 110 (D.D.C. 2005 ) (“the government
cannot shield it self from its Brady obligations by willful ig norance or failure to investigate.”). Without a finding of willful ignorance, willful suppression, or other
misconduct from th e military judge, we cannot conclude th at dismissal with prejudice is a reasonable remedy.

In conclusion, we find th at the military judge ab used his disc retion in dismissing the charges and specifications with prejudice where he relied on an
erroneous view of as pects of applicable discovery law and the defense eventually came into possession of all of the known information they were seeking. We vacate the military judge’s ruling di smissing the charges and spec ifications with prejudice and remand this case for proceedings not inconsistent wi th this opinion.

CONCLUSION

The government’s appeal under Article 62 is GR ANTED. The military judge’s 20 May 2014 ruling is VACATED. The record of trial is returned to the military judge for proceedings not inconsistent with this opinion.

Judge CAMPANELLA and Ju dge CELTNIEKS concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.
Clerk of Court MALCOLM H. SQUIRES, JR.
Clerk of Court FOR THE COURT: