UNITED STATES ARMY COURT 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: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA; 

Captain Jennifer K. Beerman, JA (on brief). 

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III, 

JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief). 

24 January 2017 

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

OPINION OF THE COURT 

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

FEBBO, Judge: 

In this appeal we address whether the military judge erred in failing to grant a 

mistrial because of a discovery violation. We find no discovery violation, because 

another reserve unit, with an unclear relationship in the record to appellant’s unit, 

conducted an administrative investigation into the sexual assault four years prior to 

trial. That investigation was unknown to the trial counsel at the time of trial. We 

further find the trial counsel exercised due diligence in his discovery obligations. 

We do not find the military judge abused his discretion in denying the defense 

request for mistrial after discovery of the administrative investigation during the 

presentencing hearing. The military judge concluded, and we agree, the 

investigation was not material evidence. 

A panel with enlisted representation, sitting as a general court-martial, 

convicted appellant, contrary to his pleas, of aggravated sexual assault upon a 

person who was substantially incapacitated and forcible sodomy in violation of 

Articles 120 and 125 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006 
SHORTS—ARMY 20140721 

 2

& Supp. IV 2011) [hereinafter UCMJ]. The convening authority approved the 

adjudged sentence of a dishonorable discharge, confinement for five years, forfeiture 

of all pay and allowances, and reduction to the grade of E-1. The convening 

authority credited appellant with three days of pretrial confinement credit. 

This case is before the court for review pursuant to Article 66, UCMJ. 

Appellant raises one assignment of error which merits discussion, but no relief. We 

find the issues raised by appellant pursuant to United States v. Grostefon, 12 M.J. 

431 (C.M.A. 1982) do not merit relief. 

After a report of sexual assault involving two members of a reserve unit 

activated for training, two parallel investigations began. First, the Contra Costa 

County Sheriff’s Department (CCCSD) and U.S. Army Criminal Investigative 

Command (CID)1

 conducted a joint criminal investigation. A few days later, a 

United States Army Reserve (USAR) unit began an informal administrative 

investigation under Army Reg. 15-6 [hereinafter AR 15-6], Boards, Commissions, 

and Committees: Procedures for Administrative Investigations and Boards of 

Officers (1 Apr. 2016).2 The administrative investigation was to look into the “facts 

and circumstances surrounding” the alleged sexual assault, initially 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 investigation until after 

the court-martial had returned findings. In pretrial discovery requests, the defense 

requested production of an administrative investigation, but identified the wrong 

appointing authority and investigating officer. The military judge denied the 

 

1

 In November 2010, since the allegations involved felony offenses of aggravated 

sexual assault, CID was “the sole agency within the U.S. Army responsible for the 

criminal investigation.” See Army Reg. (AR) 190-2, Criminal Investigation 

Activities, para. 1-6 (15 May 2009). The version of AR 15-6 in effect at the time of 

the allegations (dated 2 October 2006) allowed for concurrent command 

investigations as long as they did not “hinder or interfere” with an investigation 

conducted by a “criminal investigative [agency].” 

 

2

 We note that typically, parallel administrative investigations are not directed when 

there is an ongoing criminal sexual assault investigation. In fact, subsequent 

Department of Defense policy since appellant’s misconduct prohibits commanddirected investigations into allegations of sexual assault. See Dep’t of Defense 

Instruction 5505.18, Investigation of Adult Sexual Assault in the Department of 

Defense (25 Jan. 2013). See also, Dep’t of Defense Instruction 5505.03, Initiation 

of Investigations by Defense Criminal Investigative Organizations (DCIO), para. 4b 

(24 March 2011) (“[I]nvestigations initiated by the DCIOs have primacy over 

collateral investigations conducted by commanders.”).
SHORTS—ARMY 20140721 

 3

defense’s motion for a mistrial. As explained below, we do not direct any relief 

because: 1) the trial counsel exercised due diligence in looking for the AR 15-6 

investigation in response to the defense’s discovery request; 2) after being informed 

of the trial counsel’s efforts, the defense counsel was satisfied that trial counsel 

exercised due diligence and did not file a motion to compel; 3) the administrative 

investigation was not material; and 4) appellant was not prejudiced by its late 

discovery. 

BACKGROUND 

In 2010, appellant was assigned to the 489th Transportation Company 

(Seaport Operations), 257th Battalion, a USAR unit. On the evening of 26 November 

2010, during USAR training at Concord, California, appellant, 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 hotel 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, the CCCSD in Concord, California, began an 

investigation. On 29 November 2010, a CCCSD detective interviewed appellant. At 

the conclusion of his interview, appellant wrote a hand-written letter addressed to 

PFC KS in which he apologized for his conduct on the night of the assault. In the 

letter, which the government introduced as evidence, appellant stated: 

 . . . what happened that night in my room I can never see 

myself doing to anyone and that 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 might 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 right 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 heart 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 investigation, PFC KS underwent a sexual 

assault forensic examination, and appellant provided a DNA sample. Forensic 

testing revealed the presence of appellant’s DNA in PFC KS’s anus. 

B. The Administrative Investigation 

On 3 December 2010, the Commander, 641st Regional Support Group (RSG), 

USAR, appointed an investigating officer [hereinafter IO] to conduct an AR 15-6 

investigation. It is unclear from the record why the 641st RSG conducted an 

investigation. The IO, Lieutenant Colonel (LTC) Thomas, obtained written 

statements from six soldiers, to include appellant and PFC KS. Despite his earlier 

statements to CCCSD, appellant denied any sexual contact 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 consulting any physical or forensic 

evidence, on 10 December 2010, the IO found the sexual assault “did not take place 

on 27 November 2010.” On 8 January 2011, the 641st RSG Command Judge 

Advocate (CJA) completed the legal review for the AR 15-6 investigation. 

C. Pretrial & Trial 

Based on the results of the CCCSD/CID investigation, two years later on 30 

March 2013, the government preferred court-martial charges against appellant. The 

CCCSD/CID investigation did not include or reference the 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. Other than the 

most general requests for “reports of investigation,” 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 addressed to the IO indicated that CCCSD and CID were 

conducting an investigation and provided the IO with the phone numbers for the 

CCCSD detective and the CID Special Agents. The record contains no evidence 

that the IO contacted CCCSD or CID. Rather, the IO stated, mistakenly, civilian 

authorities had “dropped” the matter less than two weeks after appellant allegedly 

committed the offense. In fact, the CCCSD/CID investigation would not be 

completed for months and would find probable 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 assigned to the 3d Infantry Division and Fort Stewart, Georgia, 

raised several discovery issues to the military judge, including a newly received 

defense request for “an 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 Colonel Evans out of the 

143rd ESC [Expeditionary Sustainment Command].” The defense admitted “it is not 

the most specific of request” but stated the defense did not have any other 

information. As discussed above, the administrative investigation actually 

conducted was by a LTC Thomas, assigned out of the 641st RSG. Lieutenant 

Colonel Evans is female while LTC Thomas is male. 

Upon further questioning by the military judge, the defense repeated they 

were seeking an investigation, which they assumed was an AR 15-6 investigation, by 

a “LTC Evans” from the “143rd.” The defense further explained the investigation 

may have been a “command climate” investigation or an investigation into sexual 

assault, but “sworn statements were taken.” 

At the end of the Article 39(a), UCMJ, hearing the trial 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 the trial counsel that he did not believe his 

unit conducted any investigation as described. However, he did relay to the trial 

counsel that there had been a “LTC Evans” who was the legal advisor of the 143rd 

ESC. The trial counsel contacted LTC Evans, who told the trial counsel she was 

familiar with the CCCSD/CID investigation and had conducted the probable cause 

opinion on the CID investigation. She told the trial 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 include 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 silent as to whether the defense counsel ever contacted LTC 

Evans. The defense counsel would later tell the military judge they thought the trial 

counsel’s efforts had “settled” the matter. Although the defense counsel filed 

several pretrial motions—to include motions to compel discovery—the defense 

appeared satisfied by the trial counsel’s efforts and did not file any motion or 

request any relief from the military judge to obtain the investigation. 
SHORTS—ARMY 20140721 

 6

During presentencing, the defense called several witnesses, including 

Specialist (SPC) Williams and Sergeant First Class (SFC) Yeartie who made sworn 

statements during the AR 15-6 investigation. Near the 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 Yeartie and learned there was in fact an 

investigation and where it could be located. 

The military judge recessed the court-martial 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 review in 2011. The defense counsel moved for 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 administrative investigation that was conducted by a male lieutenant 

colonel. 

The military judge made findings of fact which we previously summarized. 

The military judge concluded as a matter of law that the government “was at a 

minimum negligent and certainly violated Brady, Article 46 and R.C.M. 701” but 

that “the government has established that under the circumstances of this case that 

its failure was harmless beyond a reasonable 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 did not explain what action 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 finding that the trial counsel engaged in gamesmanship, 

intentionally withheld evidence favorable to the defense, or engaged in any other 

misconduct other than the failure to disclose the AR 15-6 investigation “was at a 

minimum negligent.” A review of the record likewise finds no evidence of 

intentional withholding, willful ignorance, or gamesmanship. Once the prosecution 

obtained a copy of the AR 15-6 investigation, they immediately provided a copy to 

defense counsel and 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 investigative leads such as locating e-mails 

 

4

 The military judge found it “is not clear to the court which part of her sentencing 

testimony those witnesses are referring to.” 
SHORTS—ARMY 20140721 

 7

exchanged among the command; (3) refresh the memory of witnesses; 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 issue for appeal an appellant must first 

raise and litigate the issue at trial. Thus, if a military judge denies a defense 

discovery motion (e.g. a defense motion under R.C.M. 906(b)(7)), we review the 

trial judge’s decision for an abuse of discretion. As a general proposition, an 

appellant cannot request discovery and then wait to raise the issue to the appellate 

court without first bringing it to the attention of the military judge. “[A] trial on the 

merits, whether in a civil or criminal case, 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 court reviewing the record under Article 

66(c), UCMJ, we review the decisions of the trial court. It is the military judge who 

commits error (be it preserved or unpreserved, plain or invited)—not the trial 

counsel. For example, suppose a defense counsel requests a particular piece of 

information and the trial counsel responds that the information will not be turned 

over. If the defense counsel does not file a motion to compel production, and the 

issue is not brought to the military judge’s attention, we cannot say the military 

judge erred. More broadly, if it is not litigated, the discovery issue will not be part 

of the record of trial and will likely be beyond the scope of our review under Article 

66(c), UCMJ. 

 There are exceptions to this broad proposition, and we generally see them in 

two forms. First, an appellant may allege his counsel at trial was deficient in his 

discovery practice (i.e. ineffective assistance of counsel). Second, an appellant 

generally asserts some type of misconduct or failure by the trial counsel. As 

appellant has not stated a claim of ineffective assistance and our review of the 

record finds no basis for an ineffective assistance of counsel claim, we focus only on 

the latter. 

 While we started with the proposition that 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 counsel’s representations without 

 

5

 Appellant repeats these arguments on appeal. However, appellant does not explain 

what leads could have been followed or developed or how that would have affected 

the trial. Nor does appellant explain how interviewing the IO would have produced 

any information favorable to the defense.
SHORTS—ARMY 20140721 

 8

resorting to litigation, and open and equal discovery encourages resolving discovery 

issues without litigation. If a trial counsel informs a defense counsel that there is no 

responsive information to a request, the defense counsel may assume that the trial 

counsel exercised due diligence before making that determination. This principle is 

particularly true as R.C.M. 701 requires the prosecution “engage[] in ‘good faith 

efforts’ to obtain [requested] 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 under 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 space between these discovery norms. Although we address the 

military judge’s findings below in some depth, ultimately we find the trial counsel 

exercised due diligence in performing his discovery obligations and therefore 

disagree there was a violation of Brady, Article 46, UCMJ, or R.C.M. 701. 

Disclosure by the government generally falls into two categories: 1) 

information the government must turn over without a request from the defense; and 

2) information the government 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 disclosure is significant. If it falls 

into the first category, the defense need not request it—they are always entitled to 

the evidence. In the latter category, the government is responding to a defense 

request. Thus, whether the trial counsel exercised reasonable diligence 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 “reasonably tends to “negate[] or reduce[] the 

degree of guilt or reduce[] punishment.” No defense request is required, disclosure 

is mandatory, and there is no requirement for “materiality.” R.C.M. 701(a)(2), on 

the other hand, requires the government to provide the defense access to anything 

that is “material to the preparation of the defense.” That is, R.C.M. 701(a)(2) 

incorporates a constitutional “materiality” requirement similar to Brady. However, 

neither of these rules subsumes the other. 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 has 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 the defense. Thus, the rule balances two competing 

interests: The rules require broad discovery over information known to the trial 
SHORTS—ARMY 20140721 

 9

counsel, but requires a defense request for information not known by the trial 

counsel. 

In this case, the military judge held the government violated both Brady and 

R.C.M. 701. He held the trial counsel was required to find and turn over the 

administrative investigation both independently of the defense request, and in 

accordance with the defense request. Accordingly, we will address them separately. 

A. Brady v. Maryland 

The Due Process Clause of the Fifth Amendment requires the prosecution to 

disclose evidence that is material and favorable to the defense. Brady, 373 U.S. at 

87. This requirement 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 requirements, the Supreme Court has “rejected 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 demonstrated error with respect to 

nondisclosure, the appellant will be entitled to relief only if there is a reasonable 

probability that there would have been a different result at trial had the evidence 

been disclosed.” United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004). 

The military judge found that the government 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 Government violates an accused’s 

“right to due process if it withholds evidence that is 

favorable to the defense and material to the defendant’s 

guilt or punishment.” Smith v. Cain, [565 U.S. 73, 75] 

(2012). Evidence is favorable if it is exculpatory, 

substantive evidence or evidence capable of impeaching 

the government’s case. United States v. Orena, 145 F.3d 

551, 557 (2d Cir. 1998) (citing United States v. Bagley, 

473 U.S. 667, 676 (1985)). Evidence is material when 

“there is a reasonable probability that, had the evidence 

been disclosed, the result of the proceeding would have 

been different.” Smith, [565 U.S. at 75]. To be material, 

the evidence must have made the “likelihood of a different 

result . . . great enough to ‘undermine[] confidence in the 

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

omitted). Once a Brady violation is established, courts 
SHORTS—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 (internal and parallel citation omitted). 

Here, the military judge found that the government violated Brady. However, 

because the administrative investigation was cumulative and “disclosure would not 

have affected the outcome of trial” (i.e. not material) the error was harmless beyond 

a reasonable doubt. But, if the evidence is not material—no Brady violation can 

occur. If the evidence is irrelevant, 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 used loosely by practitioners, all 

“Brady” evidence is by definition material. 

Setting aside the materiality of the administrative investigation, we also 

disagree that the government was required to find and turn over the administrative 

investigation as a matter of constitutional obligations under the facts of this case. 

We limit our discussion here to that which is constitutionally required, leaving for 

later an analysis under the broader discovery provisions contained 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 general 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 Cir. 2000)(“Brady does not require a prosecutor to turn 

over files reflecting leads and ongoing investigations 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, practitioners often use 

the term “Brady evidence” loosely. We often see in records, for example, 

 

6 Brady sets the constitutional floor of government discovery 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 the hallmarks of the military justice system is that it 

provides an accused with a broader right of discovery than required by the 

Constitution.”) (internal citations omitted). Good military practice often 

incorporates “open-file” discovery. Nothing in this discussion about constitutional 

minimums should be interpreted as abrogating requirements imposed by the rules or 

suggesting discovery should be limited to only that which is required. For example, 

it is beyond dispute that the President’s implementation of Article 46, UCMJ, 

through R.C.M. 701, provides for broad discovery in the pretrial phase. 
SHORTS—ARMY 20140721 

 11

practitioners referring to subpoenaing “Brady evidence” from civilians where the 

evidence is not in the actual or constructive control of the prosecution. 

We answer the question as follows: to comply with Brady, a trial counsel must 

search his or her own file, and the files of related criminal and administrative 

investigations. However, consistent with our superior court’s interpretation of the 

issue, we require a trial counsel 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 trial 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 trial counsel’s personal knowledge.” Jackson, 59 

M.J. at 334. The trial counsel must also “reveal information that it had in its 

possession or knowledge7

 —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 added). A ‘box of evidence,’ for example, offered to the 

prosecution by a government witness for inspection, cataloging, and voluntary 

seizure is under the constructive control of the prosecution. Stellato, 74 M.J. at 487. 

However, for Brady purposes, information under the control of the 

“prosecution” is not the same as information under the control of the entire 

government. Interpreting Brady, the U.S. Supreme Court held an “individual 

prosecutor has a duty to learn of any favorable 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 individual prosecutor has a duty to learn of any favorable 

evidence known to others acting on the Government’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 counsel’s own files, the investigative files of federal law 

enforcement, and—if the facts demonstrate they are in the constructive control of the 

trial counsel—state law enforcement and other agencies. Stellato, 74 M.J. at 486. 

 

“It is well settled that there is no ‘affirmative duty upon the government to 

take action to discover information which it does not possess.’” United States v. 

Tierney, 947 F.2d 854, 864 (8th Cir. 1991) (quoting United States v. Beaver, 524 

 

7

 Although not raised by the facts of this case, we emphasize this analysis is not 

limited to statements that are reduced to a writing and includes information the trial 

counsel learns through oral communications 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) (explaining that the prosecution is not required “to search out exculpatory 

evidence for the defendant”). It is also constitutionally well-established that the 

burden is on the prosecutor to produce exculpatory materials within its control; the 

burden is not on the defendant to first point out that such materials exist. See Kyles, 

514 U.S. at 437. 

 

Turning to the question at hand, we find that a trial counsel’s duties under 

Brady extend to military administrative investigations that are related to the case. 

The “parameters of the review that must be undertaken outside of the prosecutor’s 

own files” will depend on the specific relationship of the government 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 aligned with the prosecution’ 

when there is ‘some reasonable prospect or notice of finding exculpatory evidence.’” 

United States v. Padilla, 2011 U.S. Dist. LEXIS 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 case, we determine the trial counsel did not have actual or 

constructive knowledge or control of the administrative investigation 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 existed. We 

reach this conclusion for several reasons. 

First, the record contains no evidence that supports an inference that the trial 

counsel had actual knowledge of, or control over, an administrative investigation 

completed by the 641st RSG. The administrative investigation was completed by a 

reserve component unit almost four years before trial. As the military judge 

specifically noted, the record of trial 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 allegations, CID was the Army 

“sole” agency responsible for felony criminal investigations. 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. The defense counsel asked the trial counsel to find an 

administrative investigation, conducted by the 143rd ESC and a LTC Evans. 

However, such an investigation did not exist. 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 counsel 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 defense did not explain they knew there was 
SHORTS—ARMY 20140721 

 13

an investigation because appellant had made a sworn statement to a male lieutenant 

colonel investigating officer. Had they provided additional information to the trial 

counsel, the trial counsel may have been able to find the investigation. Nothing in 

the record imputes knowledge or constructive knowledge of the investigation to the 

trial counsel or suggests the trial counsel did not exercise due diligence. Although 

the AR 15-6 IO interviewed PFC KS, the military judge found the trial counsel was 

unaware of the investigation, which included the IO’s interview of PFC KS. Only 

under a strict liability test (i.e., there was an investigation ergo the trial counsel 

erred) could we find fault with the trial counsel. 

Alternatively, we also cannot find a Brady violation based on the defense 

counsel’s access to information necessary to identify the allegedly 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 has no duty to fish through public records equally 

accessible to defense to collate information). As our superior court has stated: 

The purpose of Brady is to assure that the accused will not 

be denied access to exculpatory evidence known to the 

government but unknown to him. Irrespective 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 counsel 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 words, when the trial 

counsel ensures access of government records to the defense, the trial counsel has 

complied with Brady. See UCMJ art. 46. “The State has no obligation to point the 

defense toward potentially exculpatory evidence when that evidence is either in the 

possession of the defendant or can be discovered by exercising 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 (2d Cir. 1975). 

C. Article 46, Uniform Code of Military Justice 

We briefly address the military judge’s finding that the government violated 

Article 46. “Article 46, UCMJ, provides the trial counsel, defense counsel, and the 

court-martial with the “equal opportunity to obtain witnesses and other evidence in 

accordance with” the rules prescribed by the President. UCMJ art. 46, 10 U.S.C. § 

846 (2012); Stellato, 74 M.J. at 481. Article 46, UCMJ, contains a grant of authority 

to the President to prescribe rules of discovery that are “broader than in federal 
SHORTS—ARMY 20140721 

 14

civilian criminal proceedings, [and] is designed to eliminate pretrial 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 omitted). The President has sought to 

provide equal access to evidence at trial by prescribing rules 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 government 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 counsel violated R.C.M. 701, 

and R.C.M. 701 is a rule promulgated by the President pursuant to Article 46, the 

trial counsel also violated Article 46, UCMJ. We believe the latter interpretation is 

correct as we can find no right to discovery in Article 46, UMCJ, that has not been 

incorporated into R.C.M. 701. Or, put differently, one cannot violate the disclosure 

provisions of Article 46, UCMJ, without also violating R.C.M. 701. Accordingly, 

we will focus our analysis on the military judge’s ruling that the trial counsel 

violated R.C.M. 701. 

D. Rule for Courts-Martial 701 

Disclosures in the military are governed by R.C.M. 701, “which sets forth 

specific requirements with respect to ‘evidence favorable 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 violated 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 service of charges, 

upon request of the defense, the Government shall permit the defense to inspect . . . 

books, papers, documents . . . which are within the control of military authorities, 

and which are material to the preparation of the defense.” As an initial matter, as 

discussed above, to the extent that the military judge found the administrative 

investigation not to be “material” when he found its absence to be harmless beyond a 

reasonable doubt, such a finding would result in no violation 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 information in the control of military authorities, when 

requested by the defense. Here, the defense requested an administrative 

investigation conducted by a LTC Evans of the 143rd ESC. It is undisputed that no 

such investigation existed. A request for information under R.C.M. 701(a)(2) must 

be specific enough 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 whatsoever of its existence; and 3) 
SHORTS—ARMY 20140721 

 15

exercised due diligence in responding to the defense request he did receive. A trial 

counsel does not violate R.C.M. 701(a)(2) when he looks for information in the 

exact place the defense requested. 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 investigation had “settled” the matter. 

Moreover, it appears by not filing a motion to compel, appellant was satisfied 

at the time the trial counsel exercised reasonable diligence and forfeited any 

complaint he might have had with the trial counsel’s efforts to find the 

administrative investigation.8

 See generally United States v. Avery, 52 M.J. 496, 

498 (C.A.A.F. 2000) (an accused 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 remedy 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 orders “on at least six occasions compelling 

discovery of witnesses or documents” before dismissing the case). Absent an 

incorrect or misleading response, intentional ignorance of evidence favorable to the 

defense, or gamesmanship 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 circumstances where the defense has identified the evidence 

requested, it is the defense counsel who is best positioned to know if the trial 

counsel’s response to a discovery request satisfies the impetus of the request. 

Consider that appellant himself made a statement as part 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 counsel to find appellant’s statement; possibly 

resulting in additional charges and at least potentially complicating the defense 

strategy. 

In United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004), our superior court 

addressed directly what happens when the trial counsel does not produce evidence 

requested by the defense. Appellant cites Roberts for the proposition that the 

government’s failure to produce defense requested material evidence must be tested 

 

8

 This analysis does not apply to information that the government is required to 

disclose without a defense request or circumstances where the defense counsel 

justifiably relied on the accuracy of the trial counsel’s representations. 
SHORTS—ARMY 20140721 

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to determine whether it is harmless beyond a reasonable doubt.9

 However, Roberts

involves a case where: 1) the defense requested specific 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 military judge erred. CAAF tested for 

constitutional error, as there was a constitutional violation when the government 

refused to turn over material and favorable evidence in possession of the 

government. Here, by contrast, there was no pretrial litigation involving discovery 

of the administrative investigation.10 We do not interpret Roberts as standing for the 

proposition that we test for constitutional error regardless of the trial counsel’s 

reasonable efforts, regardless of whether the defense preserved the issue by filing a 

motion to compel, and regardless 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 violation, we nonetheless address if the military judge abused his 

discretion in denying a mistrial and address prejudice as it relates to the AR 15-6 

investigation. 

E. Materiality & Prejudice 

Mistrials are to be used only “under urgent circumstances, 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) vests a military judge with 

the discretion to declare a mistrial when “manifestly necessary in the interest of 

justice because of circumstances arising during the proceedings which cast 

substantial doubt upon the fairness of the proceedings.” Accordingly, appellate 

courts “will not reverse a military 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 doubt” standard, the 

Roberts court seemed to apply a stricter standard than the 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, regardless of materiality, would be tested for constitutional error on 

appeal. This view discourages 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 exculpatory, the defense would have an avenue for 

relief even in circumstances where discovery did not reveal the item prior to trial. 
SHORTS—ARMY 20140721 

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(C.A.A.F. 2009) (internal citations omitted). “The abuse of discretion standard is a 

strict one, calling for more than a mere difference of opinion.” Stellato, 74 M.J. at 

480. Military judges abuse 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 the range of choices 

reasonably arising from the applicable 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 erred by not fully addressing the ways the 

defense counsel could have used the AR 15-6 investigation. Namely, had the 

defense known of the existence of the AR 15-6 investigation, they could have 

developed additional investigative leads to include obtaining e-mails exchanged by 

the command, refreshed the memories of witnesses, and had an opportunity to 

interview the IO. 

At the hearing on the motion for mistrial, the defense counsel argued these 

points to the military judge. 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, for example, while the defense claims they could have used the 

administrative investigation to interview the IO, the defense makes no assertion that 

the IO would have disclosed anything useful. Similarly, we have no description on 

appeal as to what leads might have been followed and what information they would 

have revealed. 

The administrative investigation was not material to the defense. Material 

evidence must have made the “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 investigation was disclosed prior to trial, the investigation and IO’s 

testimony would have had little probative value. The IO’s poorly informed 

conclusion that there was no sexual assault was inadmissible. The IO investigated 

the allegations for approximately 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] inappropriate behavior toward male soldiers,” and the 

command should refer her to a program “to evaluate her social, emotional, and 

family” issues. Although the appointment memorandum included the contact 

information for CCCSD and CID, there is no indication 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 CCCSD had not completed their 

investigation. The administrative investigation did not include appellant’s statement 

to CCCSD, his hand-written letter to PFC KS, or the DNA test results. 
SHORTS—ARMY 20140721 

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The administrative investigation did not contain exculpatory evidence and had 

limited impeachment value. There was little difference between the information in 

the AR 15-6 investigation and that same information as it was 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 overlapping nature of the evidence [presented 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 the government of what occurred inside the 

[appellant’s] hotel room was provided from evidence and sources other than PFC 

[KS].” The appellant provided an audio taped statement to a CCCSD detective and 

provided DNA evidence. The government admitted appellant’s “apology letter” to 

PFC KS. Private First Class KS provided little testimony on what occurred in the 

hotel room. Her testimony at trial was primarily from the morning after, when she 

was awakened by appellant. Similarly, in the administrative investigation, PFC KS 

stated she did not remember anything that happened after going to the bar or club. 

The AR 15-6 investigation contained statements from several witnesses who testified 

at trial. Among other findings, the military judge also found PFC KS was 

impeached with prior inconsistent statements that she made during 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 contradict any evidence already admitted and was similar to 

other evidence in the record). Even when considering all of the government’s 

interrelated discovery obligations, the military judge found that the government’s 

failure to locate and provide the defense the AR 15-6 investigation would not have 

affected the outcome of the trial and was harmless beyond a reasonable doubt. 

Because we agree with the military judge that the government’s failure to 

disclose the AR 15-6 investigation before trial pursuant to R.C.M. 701 was harmless 

beyond a reasonable doubt, we also conclude the military judge did not abuse his 

discretion in denying appellant’s motion for a mistrial under R.C.M. 915. 

 

12 The one exception was the statement by appellant. In his sworn statement to the 

IO, appellant denied any sexual contact with the victim and gave a detailed version 

of events where he depicted himself as innocent. This assertion completely 

contradicted the statement he had just made as part of the CCCSD/CID investigation. 

However, the absence of this statement in no way prejudiced appellant at trial. 
SHORTS—ARMY 20140721 

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CONCLUSION 

The findings of guilty and the sentence are AFFIRMED. 

Senior Judge MULLIGAN and Judge WOLFE concur. 

FOR THE COURT: 

 JOHN P. TAITT 

 Acting Clerk of Court 

JOHN P. TAITT 

Acting Clerk of Court 

FOR THE COURT: