## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, FEBBO, and WOLFE Appellate Military Judges

UNITED STATES, Appellee

v. Sergeant ERIC D. SHORTS United States Army, Appellant

ARMY 20140721

Headquarters, Fort Stewart
John T. Rothwell , Military Judge Colonel Francisco A. Vila, Staff Judge Advocate

For Appellant: Colone l Mary J. Bradley, JA; Major Christopher D. Coleman, JA; Captain Jennifer K. Be erman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie III, JA; Major Michael E. Korte, JA; Captai n Austin L. Fenwick, JA (on brief).

24 January 2017

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OPINION OF THE COURT

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FEBBO, Judge:

In this appeal we address whether the mi litary judge er red in failing to grant a
mistrial because of a discovery violation. We find no discovery viol ation, because another reserve unit, with an unclear relati onship in the record to appellant’s unit, conducted an administrative investigation in to the sexual assault four years prior to trial. That investig ation was unknown to the trial counsel at the time of trial. We
further find the trial counse l exercised due dili gence in his discove ry obligations. We do not find the military judge abused his discreti on in denying the defense request for mistrial after discovery of the ad ministrative invest igation during the presentencing hearing. The military j udge concluded, a nd we agree, the investigation was not material evidence.

A panel with enlisted re presentation, sitti ng as a general court-martial, convicted appellant, contrary to his pleas, of aggravated sexu al assault upon a person who was substantiall y incapacitated and forcible sodomy in violation of
Articles 120 and 125 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006SHORTS—ARMY 20140721

2 & Supp. IV 2011) [hereina fter UCMJ]. The convening authority approved the adjudged sentence of a dishonorable discharg e, confinement for five years, forfeiture of all pay and allowances, and reduction to the grade of E-1. The convening authority credited a ppellant with three days of pretrial confinement credit.

This case is before the court for review pursuant to Article 66, UCMJ. Appellant raises one assignmen t of error which merits disc ussion, but no relief. We
find the issues raised by appellant pu rsuant to United States v. Grostefon , 12 M.J. 431 (C.M.A. 1982) do not merit relief.

After a report of sexual assault involvin g two members of a reserve unit activated for training, two pa rallel investigatio ns began. First, the Contra Costa County Sheriff’s Departme nt (CCCSD) and U.S. Army Criminal Investigative Command (CID) 1 conducted a joint criminal investigation. A few days later, a United States Army Rese rve (USAR) unit began an informal administrative investigation under Army Reg. 15-6 [herei nafter AR 15-6], Boards, Commissions,
and Committees: Proce dures for Administra tive Investigations and Boards of Officers (1 Apr. 2016). 2 The administrative investigation was to look into the “facts
and circumstances surrou nding” the alleged se xual assault, initial ly focusing on “any command policy violations or leadership issues which may have contributed to this
unfortunate event.”

The trial counsel could not locate the administrative invest igation until after the court-martial had returned findings. In pretrial discovery requests, the defense requested production of an administrative investigati on, but identifi ed the wrong appointing authority and inve stigating officer. The military judge denied the

1 In November 2010, since the allegations involved fel ony offenses of aggravated sexual assault, CID was “the sole agency within the U. S. Army respon sible for the criminal investigation.” See Army Reg. (AR) 190-2, Criminal Investigation Activities, para. 1-6 ( 15 May 2009). The versio n of AR 15-6 in effe ct at the time of the allegations (dated 2 October 2006) al lowed for concur rent command investigations as long as they did not “h inder or interfere” wi th an investigation conducted by a “criminal investigative [agency].”

2 We note that typically, para llel administrative investigations are not directed when there is an ongoing cr iminal sexual assault investig ation. In fact , subsequent Department of Defense po licy since appella nt’s misconduct prohibits commanddirected investigations into al legations of sexu al assault. See Dep’t of Defense Instruction 5505.18, Investigation of Adu lt Sexual Assault in the Department of Defense (25 Jan. 2013). See also , Dep’t of Defense Inst ruction 5505.03, Initiation of Investigations by Defense Criminal Investigativ e Organizations (DCIO), para. 4b (24 March 2011) (“[I]nvestig ations initiated by the DCIOs have primacy over collateral investigations conducted by commanders.”).SHORTS—ARMY 20140721

3 defense’s motion for a mistrial. As explai ned below, we do no t direct any relief because: 1) the trial counsel exercised due diligence in look ing for the AR 15-6 investigation in response to the defense’s discovery request; 2) after being informed
of the trial counsel’s effort s, the defense coun sel was satisfied th at trial counsel exercised due diligence and di d not file a motion to comp el; 3) the administrative investigation was not material; and 4) ap pellant was not prejud iced by its late discovery.

BACKGROUND

In 2010, appellant was a ssigned to the 489th Tr ansportation Company (Seaport Operations), 257th Battalion, a USAR unit. On the ev ening of 26 November 2010, during USAR training at Concord, California, appell ant, Private First Class (PFC) KS, and other USAR Soldiers went to bars and night clubs and consumed
alcohol. Private First Class KS consumed alcohol, became intoxicated, and spent the night in appellant’s ho tel room. On 27 November 2010, PFC KS reported to her unit that appellant sexually assaulted her.

A. The Contra Costa County Investigation

On 28 November 2010, th e CCCSD in Concord, California, began an investigation. On 29 Novemb er 2010, a CCCSD detective in terviewed appellant. At the conclusion of his interview, appellant wrote a hand-written letter addressed to PFC KS in which he apologized for his condu ct on the night of th e assault. In the letter, which the gov ernment introduced as evid ence, appellant stated:

. . . what happened that night in my room I can never see myself doing to anyone and th at is not who I am and that
is not what I stand for. I had way to [sic] much to drink that night and I made a very, very, very, stupid choice in
actions. . . . What happened to you no one should have to go through that. At this point I wish I could go back and
erase all this shit!! I know that you migh t not care at this point but this is going to kill me on the inside for the rest of my life. But make me a better choice maker in the
future! I have never been in trouble or done anything like
this before. I can’ t finde [sic] the righ t words to say how sorry I am but I’m truely [sic ] sorry about everything. I hope some day down the line however long it takes I hope you finde [sic] it in your he art to forgive me. Cause I totaley [sic] against motherfucker that do shit like this [sic] I sware [sic].SHORTS—ARMY 20140721

4 In the course of the CCCSD/CID inve stigation, PFC KS und erwent a sexual
assault forensic ex amination, and appe llant provided a DNA sample. Forensic testing revealed the pr esence of appellant’s DNA in PFC KS’s anus.

B. The Administrative Investigation

On 3 December 2010, the Commander, 641 st Regional Supp ort Group (RSG), USAR, appointed an investiga ting officer [hereinafter IO ] to conduct an AR 15-6 investigation. It is uncl ear from the record why th e 641st RSG conducted an investigation. The IO, Lieutenant Colo nel (LTC) Thomas, obtained written statements from six soldiers, to include appellant and PFC KS. Despite his earlier statements to CCCSD, appell ant denied any sexual cont act with PFC KS. Private First Class KS told the investigating officer, as she would testify at trial, that she had no memory of the alleged offense. The IO did not request or receive appellant’s interview with CCCSD, hand -written letter to PFC KS , or the DNA evidence
results. 3

Accordingly, based on appellant’s denial of any sexual contact, PFC KS’s lack of memory, and the IO not collecting or consu lting any physical or forensic evidence, on 10 December 2010, the IO found the sexual as sault “did no t take place
on 27 November 2010.” On 8 January 2011, the 64 1st RSG Command Judge Advocate (CJA) completed th e legal review for the AR 15-6 investigation.

C. Pretrial & Trial

Based on the results of th e CCCSD/CID investigation, two years later on 30 March 2013, the government preferred cour t-martial char ges against appellant. The CCCSD/CID investigation did not includ e or reference th e administrative investigation.

On 28 June 2013, appellant’s defense counsel made a general request for discovery under Rule for Courts-Martial [hereinafter R.C.M.] 701. Ot her than the most general requests for “reports of in vestigation,” and witness statements in possession of the government, the request did not include a specific request for the administrative investigation in question.

3 The appointment memo addr essed to the IO indicated that CCCSD and CID were conducting an investigation and provided the IO with the phone numbe rs for the CCCSD detective and the CID Sp ecial Agents. The record contai ns no evidence
that the IO contacted CCCSD or CID. Rather, the IO st ated, mistakenly, civilian authorities had “dropped” th e matter less than two weeks after appellant allegedly
committed the offense. In fact, the CCCSD/CID inve stigation would not be completed for months and would find prob able cause to believe appellant committed
the offenses.SHORTS—ARMY 20140721

5 During a pretrial Article 39(a), UCMJ, hearing, the trial counsel, an active duty judge advocate assi gned to the 3d Infantry Division and Fort Stew art, Georgia, raised several discovery issu es to the mi litary judge, includin g a newly received defense request for “a n investigation” by a “lieutenant colonel.” The trial counsel
stated he was unaware of any investigation.

The defense counsel stated that after their initial request they had clarified that they were seeking “an investigation” by “a Lieutenant Col onel Evans out of the 143rd ESC [Expeditionary Sustainment Comma nd].” The defense ad mitted “it is not the most specific of requ est” but stated the defens e did not have any other
information. As discusse d above, the administrativ e investigation actually conducted was by a LTC Thom as, assigned out of the 641st RSG. Lieutenant
Colonel Evans is female wh ile LTC Thomas is male.

Upon further questioning by the military judge, the defense repeated they were seeking an investigatio n, which they assumed was an AR 15-6 investigation, by
a “LTC Evans” from the “143rd.” The de fense further explaine d the investigation may have been a “command clim ate” investigation or an investigation into sexual assault, but “sworn statements were taken.”

At the end of the Article 39(a), UCMJ, hearing the tr ial counsel explained the continued steps he intended to take to find the administrative investigation and
“LTC Evans.” The defense did not ask the court for any relief.

After the hearing, the trial counsel contacted the judge advocate assigned to the 143rd ESC. The judge advocate told th e trial counsel that he did not believe his unit conducted any investigation as described. Howe ver, he did relay to the trial
counsel that there had been a “LTC Evans” who was the legal a dvisor of the 143rd
ESC. The trial counsel co ntacted LTC Evans, who told the trial counsel she was familiar with the CCCSD/CID investigatio n and had conducted the probable cause opinion on the CID investigation. She told the tria l counsel she did not believe there was any administrative investigation.

The trial counsel informed the defense of his efforts to find the administrative investigation, to incl ude tracking down and talking to LTC Evans. The trial counsel provided the defense with the contact information of LTC Evans in case the defense wanted to contact her directly with additional questions.

The record is sile nt as to whether the defens e counsel ever contacted LTC
Evans. The defense c ounsel would later tell the military judge th ey thought the trial
counsel’s efforts had “settle d” the matter. Although the defense counsel filed several pretrial motions—to include motions to comp el discovery—the defense appeared satisfied by the tr ial counsel’s efforts and di d not file any motion or request any reli ef from the military judge to obtain the investigation.SHORTS—ARMY 20140721

6 During presentencing, the defense called several witn esses, including Specialist (SPC) Williams an d Sergeant First Class (SFC) Yeartie who made sworn statements during the AR 15-6 investigation. Near th e end of the defense case, some of the witnesses approached the defense counsel and informed them they believed PFC KS was not being truthful during her sentencing testimony. 4 During a comfort break the defense counsel spoke to SFC Ye artie and learned there was in fact an investigation and where it could be located.

The military judge recessed the court-ma rtial for two days to give the trial
counsel additional time to find the administrative investigation. The trial counsel subsequently obtained the administrative investigation from the 641st RSG CJA, who conducted the legal revi ew in 2011. The defense co unsel moved fo r a mistrial pursuant to R.C.M. 915(a).

D. The Ruling on the Motion for Mistrial

Sergeant First Class Yeartie testified at the motion for mistrial. She stated
she recalled an administrati ve investigation that was c onducted by a male lieutenant
colonel.

The military judge made findings of fa ct which we previously summarized. The military judge co ncluded as a matter of law th at the government “was at a minimum negligent and certainly violated Brady , Article 46 and R.C.M. 701” but that “the government has esta blished that under the circumstances of this case that
its failure was harm less beyond a reas onable doubt.” See generally Brady v. Maryland , 373 U.S. 83 (1963); United States v. Cano , 61 M.J. 74 (C.A .A.F. 2005).

The military judge di d not explain what ac tion or omission of the trial counsel constituted negligence and a violation of Brady, Article 46, UCMJ, or R.C.M. 701. The military judge made no fi nding that the trial counse l engaged in gamesmanship, intentionally withheld eviden ce favorable to the defense, or enga ged in any other
misconduct other than the fa ilure to disclose the AR 15- 6 investigation “was at a minimum negligent.” A review of the record li kewise finds no evidence of intentional withholding, willfu l ignorance, or gamesmanship . Once the prosecution obtained a copy of the AR 15- 6 investigation, they immediately prov ided a copy to
defense counsel a nd the court.

Defense counsel argued the nondisclosed information was favorable to appellant because the AR 15 -6 could have been used to, among other things: (1) impeach PFC KS; (2) develop further invest igative leads such as locating e-mails

4 The military judge found it “i s not clear to the court whic h part of he r sentencing testimony those witnesses are referring to.”SHORTS—ARMY 20140721

7 exchanged among the command; (3) refres h the memory of w itnesses; and (4)
interview the IO. 5 After a hearing on the defense motion for a mistrial, the military judge made oral findings of fact and law and denied the motion for a mistrial.

LAW AND DISCUSSION

In general, to preserve a discovery is sue for appeal an appellant must first raise and litigate the issue at trial. Thus, if a milita ry judge denies a defense discovery motion (e.g. a defe nse motion under R.C.M. 906(b)(7)), we review the trial judge’s decision for an abuse of discreti on. As a genera l proposition, an appellant cannot request disc overy and then wait to rais e the issue to the appellate court without first bringing it to the attenti on of the military judge. “[A] trial on the merits, whether in a civil or criminal ca se, is the ‘main event,’ and not simply a ‘tryout on the road’ to appellate review.” Freytag v. Commissioner , 501 U.S. 868, 895 (1991) (Scalia, J. concurring) (quoting Wainwright v. Sykes , 433 U.S. 72, 90 (1977)).

Stated differently, as an appellate co urt reviewing the re cord under Article 66(c), UCMJ, we review the deci sions of the trial co urt. It is the military judge who commits error (be it preserved or unpre served, plain or invited)—not the trial counsel. For example, supp ose a defense counse l requests a particular piece of information and the trial counsel responds that the information will not be turned
over. If the defens e counsel does not file a motion to compel production, and the
issue is not brought to the military judge’s attention, we ca nnot say th e military judge erred. More br oadly, if it is not litigated, the discovery i ssue will not be part
of the record of trial and w ill likely be beyond the scope of our review under Article 66(c), UCMJ.

There are exceptions to this broad pr oposition, and we gene rally see them in two forms. First, an appellant may allege his counsel at trial was deficient in his discovery practice (i.e. in effective assistance of coun sel). Second, an appellant generally asserts some type of misconduct or failure by the trial counsel. As appellant has not stated a claim of ineffective assist ance and our review of the
record finds no basis for an ineffective as sistance of counsel clai m, we focus only on
the latter.

While we started with the proposition th at the defense must litigate discovery issues at trial in order to preserve the issue for appeal, there are exceptions. A defense counsel may of course rely on a trial coun sel’s representations without

5 Appellant repeats these argum ents on appeal. However, appellant does not explain
what leads could have been followed or de veloped or how that would have affected the trial. Nor does appell ant explain how interviewing th e IO would have produced any information favora ble to the defense.SHORTS—ARMY 20140721

8 resorting to litigation, and op en and equal discovery enco urages resolving discovery
issues without liti gation. If a trial counse l informs a defe nse counsel that there is no responsive information to a request, the defense counsel may as sume that the trial counsel exercised due diligen ce before making th at determination. This principle is particularly true as R.C.M. 701 requires the prosecution “engage[] in ‘good faith efforts’ to obtain [req uested] material.” United States v. Williams , 50 M.J. 436, 441 (C.A.A.F. 1999); R.C.M. 701(a) (2). Likewise, no motion to compel is required to
ensure that a trial counsel discloses information that und er the rules the government is required to turn over as a matter of course.

We start with these general thoughts because this case occupies the intersection of the sp ace between these disc overy norms. Alth ough we ad dress the military judge’s findi ngs below in some depth, ultima tely we find th e trial counsel exercised due diligence in performing his discovery ob ligations and therefore disagree there wa s a violation of Brady , Article 46, UCMJ, or R.C.M. 701.

Disclosure by the governm ent generally falls into two categories: 1) information the government must turn over without a request from the defense; and 2) information the governme nt turns over or provides access to upon a defense request. Compare R.C.M. 701(a)(1), (a)( 3), (a)(4), (a)(6) with R.C.M 701(a)(2), (a)(5).

The distinction between the two types of di sclosure is significant. If it falls into the first category, the defense need not request it—they ar e always en titled to the evidence. In the latter category, the government is responding to a defense request. Thus, whether the trial counsel exerci sed reasonable dili gence in response to the request will depend on the specificity of the request.

Consider a comparison: R.C.M 701(a)(6) requires the government to provide
to the defense all information which “reason ably tends to “negat e[] or reduce[] the degree of guilt or reduce[] p unishment.” No defense request is required, disclosure is mandatory, and there is no requirement for “materialit y.” R.C.M. 701(a)(2), on the other hand, requires th e government to prov ide the defense access to anything that is “material to the pr eparation of the defense.” That is, R.C. M. 701(a)(2) incorporates a constitutional “mat eriality” requirement similar to Brady . However,
neither of these rules subsumes the othe r. R.C.M. 701(a) (6) is limited to
information “ known to the trial counsel.” R.C.M. 701(a)(6) requires trial counsel to
turn over what he or she ha s but does not create an obligation to get information of
which the trial counsel is unaware. But see United States v. Jackson , 59 M.J. 330, 334 (C.A.A.F. 2004) (outlining the scope of a prosecutor’s duty as to matters not within his or her personal knowledge). R.C.M. 701(a)( 2) on the other hand is triggered by a request by th e defense. Thus , the rule balanc es two competing interests: The rules requir e broad discovery over info rmation known to the trialSHORTS—ARMY 20140721

9 counsel, but requires a de fense request for information not know n by the trial
counsel.

In this case, the milita ry judge held the gove rnment violated both Brady and
R.C.M. 701

. He held the trial counsel was re quired to find an d turn over the
administrative inves tigation both independently of the defense request, and in accordance with the defense request. Acco rdingly, we will addr ess them separately.

A. Brady v. Maryland

The Due Process Clause of the Fifth Am endment requires the prosecution to
disclose evidence that is material and favorable to the defense. Brady , 373 U.S. at 87. This requiremen t exists whether there is a general request or no request at all. United States v. Agurs , 427 U.S. 97, 107 (1976). Under due process discovery and disclosure requirem ents, the Supreme Court has “r ejected any . . . distinction between impeachment evidence and exculpatory evidence.” United States v.
Eshalomi , 23 M.J. 12, 23 (C.M .A. 1986) (quoting United States v. Bagley , 473 U.S. 667, 676 (1985)). “[W] hen an appellant has demonstr ated error with respect to nondisclosure, the appe llant will be entitled to relie f only if there is a reasonable probability that there would have been a different resu lt at trial ha d the evidence
been disclosed.” United States v. Santos , 59 M.J. 317, 321 (C .A.A.F. 2004).

The military judge found that the governme nt violated Brady , but that this error was harmless. This analysis was incorrect as a matter of law. Every Brady violation is per se not harmless. As our superior court explained in United States v.
Behenna , 71 M.J. 228 (C.A.A.F. 2012):

Pursuant to Brady, the Govern ment 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 , [565 U.S. 73, 75] (2012). Evidence is favora ble if it is exculpatory,
substantive evidence or eviden ce 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 reasonab le probability that , had the evidence been disclosed, the result of the proceeding would have
been different.” Smith , [565 U.S. at 75]. To be material,
the evidence must have made th e “likelihood of a different result . . . great en ough to ‘undermine[] confidence in the
outcome of th e trial.’” Id . (alteration in or iginal) (citation omitted). Once a Brady violation is established, courtsSHORTS—ARMY 20140721

10 need not test for harmlessness. Kyles v. Whitley , 514 U.S. 419, 435-36 (1995).

Behenna , 71 M.J. at 237-38 (i nternal and parallel ci tation omitted).

Here, the military ju dge found that the go vernment violated Brady . However,
because the administra tive investigation was cumulative and “disclosure would not
have affected the outcome of trial” (i.e. not material) the error was harmless beyond
a reasonable do ubt. But, if the evidence is not material —no Brady violation can

occur. If the evidence is irrele vant, cumulative with other evidence, or otherwise
would not have caused “the result of the proceeding to be different” the government
does not violate Brady . Although the term is often us ed loosely by pr actitioners, all

“ Brady ” evidence is by definition material.

Setting aside the materiality of the ad ministrative investigation, we also disagree that the government was required to find and tu rn over the administrative investigation as a matter of constitutional obligations under the fa cts of this case.
We limit our discussion here to that whic h is constitutionally required, leaving for later an analysis under the broader discov ery provisions contai ned in the Rules for
Courts-Martial. 6

The Brady rule is not an evidentiary rule that grants broad discovery powers to a defendant, because there “is no genera l constitutional right to discovery in a
criminal case.” Weatherford v. Bursey , 429 U.S. 545, 559 (1977); Downs v. Hoyt

, 232 F.3d 1031, 1037 (9th Ci r. 2000)(“ Brady does not require a prosecutor to turn over files reflecting leads and ongoing investigatio ns where no exonerating or impeaching evidence has turned up.”).

The question here, as we see it, is where , and how hard , must the trial counsel look for evidence in order to avoid violating Brady ? Again, practiti oners often use
the term “ Brady evidence” loosely. We often see in records, for example,

6 Brady sets the constitutional floor of government disc overy requirements. The Rules for Courts-Martial provide for much broader government disclosure. United
States v. Santos , 59 M.J. 317, 321 (C.A.A.F. 2004); United States v. Kinney , 56 M.J. 156 (C.A.A.F. 2001) (“One of th e hallmarks of the military ju stice system is that it provides an accused with a broader right of discovery than required by the Constitution.”) (inter nal citations omitted)

. Good military practice often incorporates “open-file” disc overy. Nothing in this discussion a bout constitutional minimums should be interpreted as abroga ting requirements impos ed by the rules or suggesting discovery should be limited to on ly that which is re quired. For example, it is beyond dispute that the Presiden t’s implementation of Article 46, UCMJ, through R.C.M. 701, provides for broad discover y in the pretrial phase.SHORTS—ARMY 20140721

11 practitioners referrin g to subpoenaing “ Brady evidence” from civilians where the
evidence is not in the actual or cons tructive control of the prosecution.

We answer the question as follows: to comply with Brady , a trial counsel must
search his or her ow n file, and the files of related criminal and administrative investigations. However, consistent w ith our superior court’ s interpretation of the issue, we require a trial coun sel only exercise due diligence . See United States v.
Simmons , 38 M.J 276 (C.A.A.F. 1993); United States v. Mahoney , 58 M.J. 346 (C.A.A.F. 2003).

B. Where to Look?

So, where must a tr ial counsel look for Brady evidence? Clearly, a trial
counsel must search his or her own file. However, “[d] iscovery is not limited to matters within the scope of the tr ial counsel’s pers onal knowledge.” Jackson , 59
M.J. at 334. The trial co unsel must also “reveal info rmation that it had in its possession or knowledge 7 —whether actual or constructive .” United States v

. Stellato, 74 M.J. 473, 487 (quoting United States v. Beers , 189 F.3d 1297, 1304 (10th Cir. 1999) (emphasis adde d). A ‘box of evidence,’ for example, offered to the prosecution by a government witness fo r inspection, cataloging, and voluntary
seizure is under the constructive control of the prosecution. Stellato , 74 M.J. at 487.

However, for Brady purposes, information und er the control of the “prosecution” is not the same as inform ation under the control of the entire government. Interpreting Brady , the U.S. Supreme Cour t held an “individual prosecutor has a duty to learn of any fa vorable evidence known to the others acting on the government’s behalf in the case , including the police.” Kyles , 514 U.S. at 437 (emphasis added). See also United States v. Mahoney , 58 M.J. 346, 348 (C.A.A.F. 2003) (“The individua l prosecutor has a duty to learn of an y favorable
evidence known to othe rs acting on the Governme nt’s behalf.”) (quoting Stricker v.
Greene , 527 U.S. 263, 281 (1999)) . In general, the courts interpreting this rule require a search of a trial co unsel’s own files, the investigative files of federal law enforcement, and—if the facts demonstrate th ey are in the constr uctive control of the
trial counsel—state law enfor cement and other agencies. Stellato , 74 M.J. at 486.

“It is well settled that there is no ‘affirmative du ty upon the government to
take action to discover informati on which it does not possess.’” United States v. Tierney , 947 F.2d 854, 8 64 (8th Cir. 19 91) (quoting United States v. Beaver , 524

7 Although not raised by the facts of this case, we emphasize th is analysis is not
limited to statements that ar e reduced to a writing and in cludes information the trial counsel learns through oral co mmunications with witnesses. See Stellato , 74 M.J. at
487.SHORTS—ARMY 20140721

12 F.2d 963, 966 (5th Cir. 1975)); United States v. Kraemer , 810 F.2d 173 , 178 (8th Cir. 1987) (expla ining that the prosecut ion is not required “to search out exculpatory evidence for the defendant”). It is also constitutional ly well-established that the burden is on the prosecutor to produce exculpatory materials within its control; the
burden is not on the defendan t to first point out that such materials exist. See Kyles

, 514 U.S. at 437.

Turning to the questi on at hand, we find that a trial counsel’s duties under Brady extend to military administ rative investigations that are related to the case. The “parameters of the review that must be undertaken ou tside of the prosecutor’s own files” will depend on th e specific relation ship of the govern ment entity to the prosecution. Williams , 50 M.J at 441. “A prosecutor may have a duty to search files maintained by other ‘ governmental agencies closely al igned with the prosecution’ when there is ‘some reasonable prospect or notice of finding ex culpatory evidence.’”
United States v. Padilla , 2011 U.S. Dist. LEX IS 31091, *7 (quoting United States v.
Brooks , 966 F.2d 1500, 1503, 296 U.S. App. D. C. 219 (D.C. Cir. 1992)). However,
based on the facts in this ca se, we determine the trial couns el did not have actual or constructive knowledge or co ntrol of the administrative in vestigation at issue here,
or “some reasonable prospect or notice of finding exculpatory evidence.” Put differently, there was no evidence introduced that the trial counsel knew, or through
the exercise of due diligence, should have known the investigation ex isted. We
reach this conclusion for several reasons.

First, the record contains no evidence th at supports an infe rence that the trial counsel had actual knowledge of, or control over, an ad ministrative investigation completed by the 641st RSG. The administ rative investigation was completed by a reserve component unit almost four years before trial. As the military judge specifically noted, th e record of tr ial does not explain the relationship between appellant’s unit and the 641st RSG, or even why the 641st conducted an investigation. By regulation, at the time of the alle gations, CID was the Army “sole” agency responsible for felony criminal inve stigations. The CCCSD/CID investigation does not mention the administrative investigation.

Additionally, we have no evidence in the record that would explain why the
trial counsel should have known that the 641st RSG conducted an administrative investigation in 2010. Th e defense counsel asked the trial counsel to find an administrative investigat ion, conducted by the 143rd ESC and a LTC Evans. However, such an investigation did not ex ist. The trial counsel tracked down the 143rd ESC, found LTC Evans, and reported the results of that contact to appellant’s
defense counsel.

Moreover, the defense c ounsel did not provide to the trial counsel any explanation why they believed there had been an administrative investigation, at least on the record. For example, the de fense did not explain they knew there wasSHORTS—ARMY 20140721

13 an investigation becaus e appellant had made a sworn statement to a male lieutenant colonel investigating officer. Had they pr ovided additional info rmation to the trial counsel, the trial counsel may have been able to find the investigation. Nothing in the record imputes kn owledge or constructiv e knowledge of the in vestigation to the trial counsel or sugges ts the trial counsel did not exer cise due diligenc e. Although
the AR 15-6 IO interviewed PFC KS, the military judge found the trial counsel was unaware of the investigation, which included th e IO’s interview of PFC KS. Only under a strict liability test (i.e., there was an inve stigation ergo th e trial counsel erred) could we find fault with the trial counsel.

Alternatively, we al so cannot find a Brady violation based on the defense
counsel’s access to inform ation necessary to identify the alle gedly exculpatory evidence in the case. “Certainly, Brady does not require the government to conduct discovery on behalf of the defendant.” United States v. Baker , 1 F.3d 596, 598 (7th Cir. 1993); see also United States v. Flores , 540 F.2d 432, 437 (9th Cir. 1976) (noting that government ha s no duty to fish through public records equally
accessible to defense to collate informat ion). As our superi or court has stated:

The purpose of Brady is to assure that the accused will not be denied access to exculp atory evidence known to the government but unknow n to him. Irresp ective of whether the statement here was exculpatory evidence under Brady

, a question we do not reach, there is no Brady violation
when the accused or his coun sel knows before trial about the allegedly exculpatory information and makes no effort to obtain its production.

United States v. Lucas , 5 M.J. 167 (C.M.A. 1978). In other wo rds, when the trial counsel ensures access of gov ernment records to the defense, the trial counsel has complied with Brady. See UCMJ art. 46. “The State has no ob ligation to point the defense toward potentially exculpatory eviden ce when that evidence is either in the possession of the defendant or can be discovered by exer cising due diligence.”
Rector v. Johnson , 120 F.3d 551, 558- 59 (5th Cir. 1997); Pippin v. Dretke , 434 F.3d 782 (5th Cir. 2005); United States v. Payne , 63 F.3d 1200, 1208 (2nd Cir. 1995); United States v. Bermudez , 526 F.2d 89, 100 (2 d Cir. 1975).

C. Article 46, Uniform C ode of Milit ary Justice

We briefly address the mi litary judge’s finding that the government violated Article 46. “Article 46, UCMJ , provides the tria l counsel, defense counsel, and the court-martial with the “equal opportunity to obtain witnesses and other evidence in
accordance with” the ru les prescribed by the President. UCMJ art. 46, 10 U.S.C. § 846 (2012); Stellato , 74 M.J. at 481. Artic le 46, UCMJ, contains a grant of authority to the President to prescribe rules of discovery that are “broader than in federalSHORTS—ARMY 20140721

14 civilian criminal proc eedings, [and] is desi gned to eliminate pret rial gamesmanship, reduce the amount of pretrial motions practice, and reduce the potential for surprise and delay at trial.” United States v. Jackson , 59 M.J. 330, 333 (C.A.A.F. 2004) (internal citations and quotation marks om itted). The President has sought to provide equal access to evidence at trial by prescribing rule s that provide for discovery pretrial

.

One reading of the military judge’s ruling is that he found a violation of
Article 46 separate from his finding that the gover nment violated its discovery obligations under R.C.M. 701. Alternatively, the military judge’s ruling could be interpreted as finding that because he found the trial counse l violated R.C.M. 701, and R.C.M. 701 is a rule promulgated by the President pu rsuant to Ar ticle 46, the
trial counsel also violated Ar ticle 46, UCMJ. We believe the latter interpretation is correct as we can find no right to discov ery in Article 46, UMCJ , that has not been incorporated into R.C.M. 701 . Or, put differently, one ca nnot violate the disclosure provisions of Article 46, UCMJ , without also violating R. C.M. 701. Accordingly,
we will focus our an alysis on the milita ry judge’s ruling that the trial counsel
violated R.C.M. 701.

D. Rule for Courts-Martial 701

Disclosures in the military are govern ed by R.C.M. 701, “which sets forth specific requirements with re spect to ‘evidence favorabl e to the defense’ . . .”
United States v. Williams , 50 M.J. 436, 440 (C.A.A.F. 1999). In making a ruling
that the trial counsel had vi olated R.C.M. 701, the only provision referred to by the trial judge was R.C.M. 701(a) (2), which provides that “[a]fter serv ice of charges, upon request of the defense, the Government shal l permit the defense to inspect . . . books, papers, documents . . . which are within th e control of milita ry authorities, and which are material to the preparation of the defense.” As an initial matter, as discussed above, to the extent that th e military judge found the administrative investigation not to be “mat erial” when he found its abse nce to be harmless beyond a
reasonable doubt , such a finding would result in no violati on of R.C.M. 701(a)(2) (requiring materiality).

However, again setting aside whether the administrative investigation was material, it is not clear how the trial counsel did not comply with the rule. R.C.M 701(a)(2) addresses info rmation in the control of military authorities, when requested by the defense. Here, the defense reque sted an administrative investigation conducted by a LTC Evans of the 143rd ESC. It is undisputed that no such investigation existed. A request for information und er R.C.M. 701(a)(2) must be specific enoug h that the trial counsel, through the exercise of due diligence, knows where to look (or where to provide the defense access ). We cannot find the trial counsel erred under R.C.M. 701(a)(2) when he: 1) failed to produce something that was not requested; 2) had no knowledge wh atsoever of its ex istence; and 3)SHORTS—ARMY 20140721

15 exercised due diligence in resp onding to the defens e request he did re ceive. A trial
counsel does not violate R. C.M. 701(a)(2) when he lo oks for information in the exact place the defense request ed. In fact, in a colloquy with the military judge, the defense counsel described his belief that the trial counsel’s efforts in locating the
administrative inve stigation had “settle d” the matter.

Moreover, it appears by not filing a motion to compel , appellant wa s satisfied
at the time the tr ial counsel exercise d reasonable diligence and forfeited any complaint he might have had with the trial counsel’s effo rts to find the
administrative investigation. 8 See generally United States v. Avery , 52 M.J. 496, 498 (C.A.A.F. 2000) (an ac cused may affirmatively waive the government’s nondisclosure in discovery). R.C.M. 906(b)(7) specifically provides for the defense to file a motion to compel discovery, and R.C. M. 701(g)(3) specifically provides for the military judge to grant relief. If the defense finds the trial counsel’s efforts in meeting a defense request for evidence fall short, the re medy is to raise the matter to the military judge so that it can be addressed. See Stellato , 74 M.J. at 482, n.8 (noting where the military judge issued or ders “on at le ast six occasion s compelling discovery of witnesses or documents” before dismissi ng the case). Absent an incorrect or misleading response, intenti onal ignorance of evidence favorable to the defense, or gamesmansh ip by a trial counsel, if a defense counsel is satisfied by the trial counsel’s due diligence in response to a discovery request, they cannot later complain of the trial counsel’s efforts because it turns out their satisfaction was misplaced. At least in circ umstances where the defense ha s identified the evidence requested, it is the defense counsel who is best po sitioned to know if the trial counsel’s response to a discovery reques t satisfies the impetus of the request.

Consider that appellant hims elf made a statement as pa rt of the administrative investigation. That statement contradicted both his statement to CCCSD, the DNA evidence, and the defense theory of the case at trial. A pretrial motion to compel, if successful, would have lead the trial counse l to find appellant’s statement; possibly resulting in additiona l charges and at le ast potentially comp licating the defense strategy.

In United States v. Roberts , 59 M.J. 323 (C.A.A.F. 2 004), our superior court addressed directly what happens when th e trial counse l does not produ ce evidence requested by the defense. Appellant cites Roberts for the proposition that the government’s failure to produ ce defense requested material evidence must be tested

8 This analysis does not apply to informat ion that the government is required to
disclose without a defense request or circumstan ces where the defense counsel justifiably relied on the accuracy of the trial c ounsel’s representations.SHORTS—ARMY 20140721

16 to determine whether it is harmless beyond a reasonable doubt. 9 However, Roberts involves a case where: 1) the defense requested specif ic information; 2) the information requested was material; 3) the government possessed the information but told the defense that they refused to turn it over; 4) the defense filed a motion to compel; and 5) the military judge denied the defense motion. The Court of Appeals for the Armed Forces (CAAF) found the mili tary judge erred. CAAF tested for constitutional error, as there was a cons titutional violation when the government
refused to turn over mate rial and favorable eviden ce in possessi on of the government. Here, by contra st, there was no pretrial liti gation involving discovery of the administrative investigation. 10 We do no t interpret Roberts as standing for the proposition that we test for constitutiona l error regardless of the trial counsel’s reasonable efforts, re gardless of whether th e defense preserved th e issue by filing a motion to compel, and regardle ss of the specificity or materiality of the information in question. We do not test for constitutional error for discovery violations unless
the violation was constitutional.

Accordingly, we do not find a violation of R.C.M. 701. 11 Although we do not find a discovery viol ation, we nonetheless address if the military judge abused his discretion in denying a mistrial and addres s prejudice as it relates to the AR 15-6 investigation.

E. Materiality & Prejudice

Mistrials are to be used only “under urgent circumst ances, and for plain and
obvious reasons.” United States v. Trigueros , 69 M.J. 604, 608 (Army Ct. Crim. App. 2010) (internal citations omitted). R.C.M. 915(a) ve sts a military judge with
the discretion to declare a mistrial when “manifestly necessary in the interest of justice because of circum stances arising during th e proceedings which cast substantial doubt upon the fa irness of the proceedings.” Accordingly, appellate
courts “will not reverse a mi litary judge’s determination on a mistrial absent clear
evidence of an abuse of discretion.” United States v. Ashby , 68 M.J. 108, 122

9 We note that by applying a “harmless beyond a reasonable d oubt” standard, the
Roberts court seemed to apply a st ricter standard than th e U.S. Supreme Court has held applicable for Brady violations.

10 Under appellant’s view of Roberts , every non-disclosure of information requested by the defense, regardle ss of materiality, would be te sted for constitutional error on appeal. This view discoura ges resolving matters early (and at the trial level).

11 We note a specific article of the UCMJ provides an avenue of relief when new
evidence is discovered after trial. See UCMJ art. 73. Had the administrative investigation been material or exculpator y, the defense would have an avenue for
relief even in circumstances where discover y did not reveal the item prior to trial.SHORTS—ARMY 20140721

17 (C.A.A.F. 2009) (internal citati ons omitted). “The abuse of discretion standard is a strict one, calling for more than a mere differenc e of opinion.” Stellato , 74 M.J. at 480. Military judges ab use their discretion when their “findings of fact are clearly erroneous, the court’s decision is influenced by an erroneous view of the law, or the military judge’s decision on the issue at hand is outside th e range of choices reasonably arising from the appl icable facts and the law.” Id. (quoting United States v. Miller, 66 M.J. 306, 307 (C.A .A.F. 2008)).

Appellant asserts the military judge er red by not fully addr essing the ways the
defense counsel could have used the AR 15-6 investig ation. Namely, had the
defense known of the existe nce of the AR 15-6 investig ation, they could have developed additional investigative leads to include obta ining e-mails exchanged by the command, refreshed the me mories of witnesses, an d had an opportunity to
interview the IO.

At the hearing on the motion for mist rial, the defense co unsel argued these points to the military judg e. The military judge was not required to explicitly address every point argued by the defense and government counsel. Neither at trial nor on appeal did the defense elaborate how they could have used the administrative investigation. Thus, fo r example, while the defense claims they could have used the administrative investig ation to interview the IO, the de fense makes no assertion that the IO would have disclosed anything usef ul. Similarly, we ha ve no description on appeal as to what l eads might have been followed an d what information they would
have revealed.

The administrative investigation was not material to the de fense. Material
evidence must have made th e “likelihood of a different result . . . great enough to ‘undermine[ ] confidence in the outcome of the trial.’” Behenna , 71 M.J. at 238 (quoting Smith v. Cain , 565 U.S. at 75 (alteration in original)). Even if the administrative investig ation was disclosed prior to tria l, the investigation and IO’s testimony would have had little probative value. The IO’s poor ly informed
conclusion that there was no sexual assault was inadmissibl e. The IO investigated the allegations for approximate ly seven days and obtained six statements. Without speaking to a medical professional, the IO concluded that PFC KS had a drinking problem and “display[ed] in appropriate behavior toward male soldiers,” and the
command should refer her to a program “to evaluate he r social, emotional, and family” issues. Although the appointment memorandum included the contact
information for CCCSD and CID, there is no indicati on that he contacted CCCSD and CID before concluding that the case was “dropped” by civilian authorities. At the time the IO completed the investigation, the CCCS D had not completed their investigation. The administra tive investigation di d not include appellant’s statement to CCCSD, his hand-writte n letter to PFC KS, or the DNA test results.SHORTS—ARMY 20140721

18 The administrative investigation did not contain exculpator y evidence and had limited impeac hment value. There was little diffe rence betwee n the inform ation in the AR 15-6 investigation and that same information as it wa s presented at trial. 12

See Behenna , 71 M.J. at 238 (citing United States v. Gonzalez , 62 M.J. 303, 307 (C.A.A.F. 2006)) (“The overlap ping nature of th e evidence [prese nted at trial] undercuts an argument that the failure to disclose pursuant to Brady was prejudicial.”). The military judge, reviewing the totality of the record, found that the “bulk of the evidence presented by th e government of what occurred inside the [appellant’s] hotel room was provided from evidence and sources other than PFC [KS].” The appellant provid ed an audio taped statemen t to a CCCSD detective and provided DNA evidence. The government admitt ed appellant’s “a pology letter” to
PFC KS. Private First Clas s KS provided little testim ony on what occurred in the hotel room. Her testimony at trial was primarily from th e morning after, when she was awakened by appellant. Similarly, in the administrative investigation, PFC KS
stated she did not remember anything that happene d after going to th e bar or club. The AR 15-6 investig ation contained statements from several witnesses who testified at trial. Among other fi ndings, the militar y judge also found PFC KS was impeached with prior inconsistent statemen ts that she made du ring two Article 32, UCMJ, investigations.

The administrative investigation did not materially contradict evidence presented at trial. See Agurs , 427 U.S. at 114 (no Brady violation when the alleged Brady material did not contradi ct any evidence already ad mitted and was similar to other evidence in the record). Even when considering all of the government’s interrelated discovery obli gations, the military judge found that th e government’s failure to locate and provide the defense the AR 15-6 investigation would not have
affected the outcome of th e trial and was harm less beyond a reas onable doubt.

Because we agree with th e military judge th at the government ’s failure to
disclose the AR 15-6 in vestigation before tr ial pursuant to R.C. M. 701 was harmless beyond a reasonable doubt, we also conclude the military judge did no t abuse his discretion in denying ap pellant’s motion for a mi strial under R.C.M. 915.

12 The one exception was the st atement by appellan t. In his sworn statement to the IO, appellant denied a ny sexual contact with the victim and gave a detailed version of events where he depicted himself as innocent. This as sertion completely contradicted the statement he had just made as part of the CCCS D/CID investigation. However, the absence of this statement in no way prejudiced appellant at trial.SHORTS—ARMY 20140721

19 CONCLUSION

The findings of guilty and the sentence are AFFIRMED.

Senior Judge MULLIGAN an d Judge WOLFE concur.

FOR THE COURT:

JOHN P. TAITT Acting Clerk of Court JOHN P. TAITT Acting Clerk of Court FOR THE COURT: