UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before the Court Sitting En Banc

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Private E1 KEITH R. HAWKINS 

United States Army, Appellant 

ARMY 20120070 

Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell 

Timothy Grammel, Military Judge 

Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate 

For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D. 

Bashore, JA; Lieutenant Colonel Katherine A. Lehmann, JA (on brief); Colonel 

Kevin Boyle, JA; Major Vincent T. Shuler, JA; Lieutenant Colonel Katherine A. 

Lehmann, JA (on brief in response to specified issues). 

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA; 

Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief and on 

brief in response to specified issues).

18 April 2014 

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

OPINION OF THE COURT 

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

CAMPANELLA, Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of failing to obey a lawful general regulation by possessing 

synthetic cannabinoids and wrongfully manufacturing methamphetamine, in 

violation of Articles 92 and 112a, Uniform Code of Military Justice, 10 U.S.C. 

§§ 892 and 912a [hereinafter UCMJ]. The military judge sentenced appellant to a 

bad-conduct discharge, confinement for ten months, and forfeiture of all pay and 

allowances. The convening authority approved only so much of the sentence as 

provided for a bad-conduct discharge and confinement for nine months.1

 The 

                                                           

1 The convening authority deferred automatic and adjudged forfeitures until action. 

At action, the convening authority waived the automatic forfeitures for a period of 

six months. The pretrial agreement limited the maximum period of confinement to 

fifteen months. The record contains no explanation of the one-month reduction in 

confinement provided by the convening authority in his action. 
HAWKINS —ARMY 20120070 

2 

convening authority credited appellant with forty-four days against the sentence to 

confinement. 

This case is before us for review pursuant to Article 66, UCMJ. Appellant 

raises one assignment of error, claiming the Article 112a, UCMJ, charge and its 

specification of manufacturing methamphetamine should be dismissed. Appellant 

asserts the government possessed exculpatory information that indicated the 

substance produced was not actually methamphetamine. Appellant further asserts 

the government’s failure to disclose this information is a constitutional due process 

violation. We find this matter warrants discussion and relief. 

 BACKGROUND 

Appellant lived on-post at Fort Campbell, Kentucky. He shared his twobedroom quarters with another soldier, Private First Class (PFC) BB, and that 

soldier’s wife, TS.2

 

On 25 September 2011, PFC BB asked appellant to purchase pseudoephedrine 

for him and his wife, expressly intending to use it to manufacture methamphetamine. 

Knowing PFC BB’s intention, appellant purchased the pseudoephedrine and gave it 

to PFC BB and TS. 

That same day, appellant became aware that PFC BB was manufacturing 

methamphetamine inside appellant’s quarters when he smelled “chemicals” 

emanating from the laundry room. When appellant checked to see what was causing 

the odor, he found PFC BB and TS “making meth.” Appellant, surprised that PFC 

BB was manufacturing methamphetamine inside his quarters, told PFC BB to 

immediately stop and to leave the house by the next morning. 

The next morning, appellant observed that “everything [was] out of the 

house,” but PFC BB and his wife had not left. Appellant and PFC BB then went to 

physical training. Afterwards, PFC BB asked appellant again to buy him 

pseudoephedrine. Again, knowing PFC BB’s purpose was to manufacture 

methamphetamine, appellant bought PFC BB the pseudoephedrine. Appellant also 

purchased synthetic cannabinoids that morning. 

Later that day, appellant reported PFC BB’s methamphetamine manufacturing 

enterprise to his chain of command and gave his consent to search his quarters. A 

search was conducted and a makeshift methamphetamine lab was found. The 

dangerous materials from the lab were destroyed by local civilian law enforcement at 

the request of Fort Campbell authorities. The remaining lab materials and chemicals 

                                                           

2 Private First Class BB and his wife were living in appellant’s quarters pending 

approval of a Basic Housing Allowance request. 
HAWKINS —ARMY 20120070 

3 

were seized by Army criminal investigators and sent to a laboratory for drug testing. 

Synthetic cannabinoids were also seized from the home. 

 

The original charges preferred against appellant included, inter alia, Article 

112a, UCMJ, wrongful manufacture of methamphetamine, as well as attempted 

manufacture of methamphetamine, a violation of Article 80, UCMJ. 

Prior to the government receiving the drug test results from the laboratory, 

appellant entered into a pretrial agreement with the government to plead guilty to the 

wrongful manufacture of one gram of methamphetamine, and to an Article 92, 

UCMJ, offense for failing to obey a lawful general regulation by possessing 

synthetic cannabinoids. In exchange, the government agreed to limit appellant’s 

sentence to confinement and to dismiss with prejudice all of the charges and 

specifications to which appellant pleaded not guilty, including the attempted 

manufacture of methamphetamine. 

As part of the pretrial agreement, appellant agreed to enter into a stipulation 

of fact with the government. A civilian police seizure report attached as an 

enclosure to the stipulation of fact indicated that 5.5 grams of methamphetamine had 

been seized from appellant’s home. 

On 24 January 2012, consistent with the pretrial agreement, the providence 

inquiry, and the stipulation of fact, the military judge accepted appellant’s pleas of 

guilty and dismissed with prejudice the Article 80, UCMJ, charge and its 

specification of attempted manufacture of methamphetamine. 

 

While in confinement, appellant encountered PFC BB, who had been tried 

after appellant’s court-martial. Private First Class BB informed appellant that PFC 

BB and his wife had apparently been unsuccessful in their attempts to actually create 

methamphetamine in appellant’s quarters on 25 and 26 September 2011. 

Accordingly, PFC BB only pleaded guilty to and was convicted of attempted 

manufacture of methamphetamine. 

By the time appellant learned this information from PFC BB, the convening 

authority had already taken action on appellant’s case. 

Appellant asks this court to consider materials outside his record of trial, but 

within PFC BB’s record of trial, to determine whether the government possessed 

exculpatory information or not. The materials from PFC BB’s record of trial 

include: (1) an excerpt from PFC BB’s Article 32, UCMJ, pretrial investigation’s 

non-verbatim summarized transcript; (2) PFC BB’s offer to plead guilty; (3) the 

stipulation of fact from BB’s case; (4) PFC BB’s charge sheet; and (5) an excerpt 

from PFC BB’s trial transcript. 
HAWKINS —ARMY 20120070 

4 

Private First Class BB’s Article 32, UCMJ, investigation took place on 

7 February 2012, fourteen days after appellant’s guilty plea and conviction. The 

investigation transcript contains summarized testimony from an Army drug 

suppression agent who testified that on the preceding Friday (3 February 2012), 

Army criminal investigators received the chemical laboratory results for the 

substances submitted for testing from the methamphetamine laboratory crime scene 

at appellant’s home. In response to government questions about the government 

laboratory results, the agent stated “no meth was revealed, just the precursors to 

create meth such as Sudafed,” but on cross examination, the agent further stated “we 

are still unsure of [sic] what [PFC BB] had at the scene was meth.” In PFC BB’s 

case, the government stipulated that the unknown substance created was not, in fact, 

methamphetamine. 

The actual laboratory results are not included in the materials submitted to 

this court for review by appellant. Appellant submits that, to date, the government 

has not provided him the actual results of the laboratory drug tests. Appellate 

defense counsel has not asked this court to order such a disclosure. There is nothing 

in appellant’s record of trial or appellate filings to suggest that appellant requested 

discovery of such evidence before, during, or after his court-martial. 

 

 LAW AND DISCUSSION 

At the outset, we note this opinion addresses the government’s obligation to 

disclose exculpatory information involving appellant’s case that is within its 

possession post-trial but prior to action by the convening authority. 

This opinion does not address Rule for Courts-Martial [hereinafter R.C.M.] 

1210 or Article 73, UCMJ, regarding appellant’s right to petition for a new trial 

based on newly discovered evidence. Nor do we address R.C.M. 910(j) regarding 

appellant’s waiver of objections to the factual basis upon which his plea of guilty 

was made. To the extent that we consider information outside the record, we do so 

for the purposes of analyzing the collateral matter of due process—not for legal 

sufficiency purposes. See United States v. Roane, 43 M.J. 93, 99 (C.A.A.F. 1995); 

United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993); United States v. Davenport, 

9 M.J. 364, 367 (C.M.A. 1980); United States v. Peele, 46 M.J. 866, 868 (Army Ct. 

Crim. App. 1997). 

 Further, this opinion does not address R.C.M. 701(d) which places a time 

limit on the discovery requirement stating, “[i]f, before or during the court-martial, 

a party discovers additional evidence or material previously requested or required to 

be produced . . . that party shall promptly notify the other party or the military judge 

of the existence of the additional evidence or material.” R.C.M. 701(d) (emphasis 

added). 
HAWKINS —ARMY 20120070 

5 

In his assignment of error, appellant asserts the Article 112a, UCMJ, charge 

and its specification should be dismissed based on a due process violation. 

Specifically, appellant alleges: (1) before the convening authority took action, the 

government possessed exculpatory information; (2) the government did not disclose 

this information; and (3) this information indicated the substance produced in 

appellant’s case was not methamphetamine. 

Appellant argues that although the exculpatory information, in the form of 

negative laboratory results, came to light after his guilty plea, the Supreme Court’s 

decision in Brady v. Maryland, 373 U.S. 83 (1963), nonetheless requires the 

government to provide him with exculpatory information—even after the gavel has 

fallen. Appellant asserts the government’s failure to disclose this information 

deprived him of his right to constitutional due process and the post-trial clemency 

rights afforded him under the UCMJ and Rules for Courts-Martial. Appellant further 

asserts government counsel had an ethical obligation to provide the laboratory 

results to the defense. Appellant claims the appropriate remedy in this case is 

dismissal of the charge and its specification because the military judge previously 

dismissed with prejudice the lesser included offense of attempt to manufacture 

methamphetamine. In the alternative, appellant asks this court to affirm only the 

offense of attempted manufacture of methamphetamine. We find under the facts of 

this case, a Brady violation occurred in that the government, prior to convening 

authority action, had in its possession exculpatory information material to guilt or 

punishment that it did not disclose. As such, we provide relief in our decretal 

paragraph.

 

Application of Brady in the Post-Trial Context

The Due Process Clauses of the Fifth and Fourteenth Amendments impose 

certain duties upon the government to ensure “that ‘justice shall be done’” in all 

criminal prosecutions. United States v. Agurs, 427 U.S. 97, 111 (1976) (quoting 

Berger v. United States, 295 U.S. 78, 88 (1935)). In Brady, the Supreme Court held 

“the suppression by the prosecution of evidence favorable to an accused . . . violates 

due process where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or the bad faith of the prosecution.” 373 U.S. at 87. 

In subsequent cases, the Supreme Court provided guidance on judging Brady

claims. To establish that a Brady violation undermines a conviction, a convicted 

defendant must make each of three showings: (1) the evidence at issue is “favorable 

to the accused, either because it is exculpatory, or because it is impeaching;” (2) the 

government suppressed the evidence, “either willfully or inadvertently;” and (3) the 

information was material in that “prejudice . . . ensued.” Strickler v. Greene, 527 

U.S. 263, 281 (1999); see also Banks v. Dretke, 540 U.S. 668, 691 (2004). A 

successful Brady claim, by its nature, calls into question the underlying conviction 

or sentence. Because it is a constitutional obligation, the Supreme Court later 

instructed that Brady evidence must be disclosed regardless of whether the defendant 
HAWKINS —ARMY 20120070 

6 

makes a request for exculpatory evidence. Agurs, 427 U.S. at 107. With regard to 

materiality, “evidence is material only if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of the proceeding would have 

been different.” United States v. Bagley, 473 U.S. 667, 682 (1985) (separate opinion 

of Blackmun, J., joined by O’Connor, J.). A reasonable probability is defined as “a 

probability sufficient to undermine confidence in the outcome.” Id. 

 In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court explained: 

[A] showing of materiality does not require demonstration 

by a preponderance that disclosure of the suppressed 

evidence would have resulted ultimately in the defendant's 

acquittal . . . . Bagley’s touchstone of materiality is a 

“reasonable probability” of a different result, and the 

adjective is important. The question is not whether the 

defendant would more likely than not have received a 

different verdict with the evidence, but whether in its 

absence he received a fair trial, understood as a trial 

resulting in a verdict worthy of confidence. A “reasonable 

probability” of a different result is accordingly shown 

when the Government’s evidentiary suppression 

“undermines confidence in the outcome of the trial.” 

Id. at 434 (citing Bagley, 473 U.S. at 678). 

The Supreme Court elaborated: 

[O]nce a reviewing court applying Bagley has found 

constitutional error there is no need for further harmlesserror review. Assuming arguendo that a harmless-error 

enquiry were to apply, a Bagley error could not be treated 

as harmless, since a reasonable probability that, had the 

evidence been disclosed to the defense, the result of the 

proceeding would have been different, necessarily entails 

the conclusion that the suppression must have had 

substantial and injurious effect or influence in determining 

the . . . verdict. 

Kyles, 514 U.S. at 435 (internal quotation marks and citations omitted). 

Under Brady and its progeny, it is firmly settled that a criminal defendant has 

a constitutional right to obtain all material evidence—known to the government 
HAWKINS —ARMY 20120070 

7 

before and during trial—that is favorable to the defendant’s case. The Supreme 

Court’s application of Brady in a post-trial context is less clear.3

 

Numerous federal and state courts have extended Brady in the post-conviction 

context.4

 However, in 2009, the Supreme Court found the government does not have 

a continuing Brady obligation post-conviction, and the Constitution does not require 

states to turn over evidence post-conviction for DNA testing. District Attorney’s 

Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009). The Court 

reasoned that Brady provides no support for such a constitutional right and that 

“‘once a defendant has been afforded a fair trial and convicted . . . the presumption 

of innocence disappears.’” Id. at 69 (quoting Herrera v. Collins, 506 U.S. 390, 399 

(1993)). The convicted have “only a limited interest in post-conviction relief.” 

Osborne, 557 U.S. at 69. However, here, we readily distinguish Osborne’s

applicability to the current scenario. 

Osborne dealt with a collateral attack—not a scenario where the conviction 

was not yet final. Both the conviction and sentence had already been affirmed on 

direct appeal in Osborne. Id. at 58. Furthermore, Osborne sought the opportunity to 

access and test DNA evidence already in the possession of the government with the 

hope of producing yet uncreated exculpatory results. While finding post-conviction 

due process rights are “not parallel” to trial due process rights, the Supreme Court 

did not unambiguously foreclose the possibility that Brady obligations may continue 

through direct appeal. Id. at 69. 

Prior to Osborne, the Supreme Court signaled that a prosecutor’s Brady duties 

may indeed survive the conclusion of trial. See Imbler v. Pachtman, 424 U.S. 409, 

427 n.25 (1976) (observing that after a conviction, prosecutors are “bound by the 

ethics of [their] office to inform the appropriate authority of after-acquired or other 

information that casts doubt upon the correctness of the conviction”). As far back as 

1915, the Supreme Court held that when a state grants a criminal defendant a right to 

direct appeal, “the proceedings in the appellate tribunal are . . . part of the process 

                                                           

3 Brendan Max, The Duty to Disclose Exculpatory Evidence Discovered After Trial, 

94 Ill. B.J. 138 (2006). 

4 High v. Head, 209 F.3d 1257 (11th Cir. 2000) (a state’s duty to disclose is 

ongoing); Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992) (a state should turn 

over exculpatory evidence relevant to a habeas corpus proceeding); Bowen v. 

Maynard, 799 F.2d 593 (10th Cir. 1986) (the duty to disclose is ongoing and extends 

to all stages of the judicial process); Curl v. Superior Court, 44 Cal. Rptr. 3d 320 

(Cal. Ct. App. 2006); Duckett v. State, 918 So.2d 224 (Fla. 2005), cert. denied, 549 

U.S. 846 (2006) (noting the existence of a continuing duty to disclose); State v. 

Bennett, 81 P.3d 1 (Nev. 2003) (the state has an affirmative duty to disclose before 

during and after defendant has been convicted); People v. Garcia, 22 Cal. Rptr. 2d 

545 (Cal Ct. App. 1993) (the duty to disclose does not end when trial is over). 
HAWKINS —ARMY 20120070 

8 

of law under which he is held in custody by the state, and to be considered in 

determining any question of alleged deprivation of his life or liberty contrary to the 

Fourteenth Amendment.” Frank v. Mangum, 237 U.S. 309, 327 (1915); see also 

Evitts v. Lucey, 469 U.S. 387, 393 (1985) (“[I]f a State has created appellate courts 

as an integral part of the . . . system for finally adjudicating the guilt or innocence of 

a defendant, . . . the procedures used in deciding appeals must comport with the 

demands of the Due Process and Equal Protection Clauses of the Constitution.”) 

(internal quotation marks and citations omitted). 

More recently, the United States Court of Appeals for the Seventh Circuit 

observed that: 

[A] defendant’s conviction is not final as a matter of law 

until he exhausts the direct appeals afforded to him, and, 

until that exhaustion, he is entitled to the full breadth of 

due process available. See also Gonzalez v. Thaler, 132 

S.Ct. 641, 645–46, 652–54 . . . (2012) (holding that “[f]or 

petitioners who pursue direct review all the way to [the 

Supreme Court], the judgment becomes final at the 

conclusion of direct review—when this Court affirms a 

conviction on the merits or denies a petition for certiorari 

[and that] [f]or all other petitioners, the judgment becomes 

final at the expiration of the time for seeking such 

review—when the time for pursuing direct review in this 

Court, or in state court, expires”); Skinner v. Switzer, 131 

S.Ct. 1289, 1303 . . . (2011) (Thomas, J., dissenting) 

(explaining that “[t]rial procedures are used to initially 

convict a prisoner; appellate procedures review the 

validity of that conviction before it becomes final; and 

collateral review procedures permit challenge to the 

conviction after it is final”) (emphasis added). 

Fields v. Wharrie, 672 F.3d 505, 515 (2012). 

The Seventh Circuit further instructed that the government’s Brady 

obligations “remain in full effect on direct appeal and in the event of retrial because 

the defendant's conviction has not yet become final, and his right to due process 

continues to demand judicial fairness.” Id.

5

 

                                                           

5 See also Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“It is not feasible or 

desirable to specify the extent or timing of disclosure Brady and its progeny require, 

except in terms of the sufficiency, under the circumstances, of the defense's 

opportunity to use the evidence when disclosure is made. Thus disclosure prior to 

trial is not mandated. Indeed, Brady requires disclosure of information that the 
HAWKINS —ARMY 20120070 

9 

Brady Application Post-Trial and Prior to Convening Authority Action 

Although a military member may have been convicted and sentenced at a 

court-martial, the “direct appeal” process is not complete. “Direct appeal” in the 

military continues at least through the respective Court of Criminal Appeals review. 

An accused’s appeal to his or her respective Court of Criminal Appeals (“service 

court”) in qualifying cases is a matter of right, whereas review by the Court of 

Appeals for Armed Forces (CAAF) is discretionary in most cases.6

 See R.C.M. 

1209. 

More significantly, however, even before a military case is reviewed by a 

service court on direct appeal, it is first reviewed by the court-martial convening 

authority (CA). Congress has provided servicemembers with a unique additional 

right of review for convicted military personnel whereby the CA reviews each case, 

pursuant to Article 60, UCMJ. This review is performed and action taken, in most 

cases, with the advice of specifically assigned judge advocates pursuant to Articles 6 

and 60(d), UCMJ. 

Article 60, UCMJ, also directs the CA to take action on the findings and 

sentence of a court-martial only after consideration of any matters submitted by the 

accused. The CA is empowered with the “sole discretion,” as a “matter of command 

prerogative” after receiving a written recommendation from a staff judge advocate 

officer, to “approve, disapprove, commute, or suspend the sentence in whole or in 

part.” UCMJ art. 60. This review precedes an appeal by the accused to his or her 

respective service’s court of criminal appeals pursuant to Article 66, UCMJ, and 

their right to petition for review by the CAAF pursuant to Article 67, UCMJ.   

The accused may submit any matter to the CA that may reasonably tend to 

affect the CA’s decision whether to approve or disapprove any findings of guilty, the 

sentence, or any portion thereof. R.C.M. 1105. Submissions may include new 

                                                                                                                                                                                               

prosecution acquires during the trial itself, or even afterward.”) (emphasis added) 

(internal citations omitted).

6

 If the sentence, as approved by the convening authority, includes death, a badconduct discharge, a dishonorable discharge, dismissal of an officer, or confinement 

for one year or more, the case is reviewed by the Court of Criminal Appeals of that 

military Service. Pursuant to Article 67(a), UCMJ, the Court of Appeals for the 

Armed Forces shall review the record in: 1) all cases in which the sentence, as 

affirmed by a Court of Criminal Appeals, extends to death; 2) all cases reviewed by 

a Court of Criminal Appeals which the Judge Advocate General orders sent to the 

Court of Appeals for the Armed Forces for review; and 3) all cases reviewed by a 

Court of Criminal Appeals in which, upon petition of the accused and on good cause 

shown, the Court of Appeals for the Armed Forces has granted a review. 
HAWKINS —ARMY 20120070 

10 

evidence; clarification of matters presented at trial; allegations of errors affecting 

the legality of the findings or sentence; portions or summaries of the record and 

copies of documentary evidence offered or introduced at trial; matters in mitigation 

which were not available for consideration at the court-martial; and clemency 

recommendations by any member, the military judge, or any other person. R.C.M. 

1105(b). 

Currently, the CA has wide discretion and may for any or no reason, 

disapprove the findings, or may dismiss any offense, or change the finding of guilty 

of any offense to one of a lesser included offense. The CA may also disapprove all, 

or any part of, a legal sentence. The CA also has the power to reduce or suspend a 

sentence, or change the punishment to one of a different nature.7

 Additionally, the 

CA has the ability under R.C.M. 1107 to consider matters outside the record and to 

order a rehearing should any issue arise that warrants further examination. 

Prior to taking final action pursuant to Article 60, UCMJ, the convening 

authority must consider the results of trial, the recommendation of the Staff Judge 

Advocate pursuant to R.C.M. 1106, and any post-trial clemency matters submitted 

by the accused and his attorney.

Given this case had not yet reached the convening authority when the 

investigator offered testimony at PFC BB’s Article 32, UCMJ, hearing relating to 

the purported negative drug laboratory test results, we find the government’s Brady

obligations with respect to those lab results applied in this setting.8

 We take issue 

with the government’s failure to disclose “previously-produced forensic evidence, 

the testing of which concededly could prove beyond any doubt that the defendant did 

not commit the crime for which he was convicted . . . .” Harvey v. Horan, 285 F.3d 

298, 317 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing en banc). It 

would seem “the very same principle of elemental fairness that dictates pre-trial 

production of all evidence dictates post-trial production” as well. Id. 

Here, the government had in its possession presumably exculpatory laboratory 

results during the pendency of appellant’s R.C.M. 1105 and 1106 submission which 

                                                           

7

  These provisions were in effect during the pendency of this case. It is subject to 

change after 24 June 2014, when Congressional modification to CA power will take 

effect.   See 10 U.S.C. § 860 (2012), amended by National Defense Authorization Act 

for Fiscal Year 2014, Pub. L. No. 113-66 §1702(b), 127 Stat. 672, 955–58 (2013). 

8

  Brady and its progeny do not require “the prosecution to review records that are 

not directly related to the investigation of the matter that is the subject of the 

prosecution, absent a specific request indentifying the entity, the type of records, 

and the type of information.” United States v. Williams, 50 M.J. 436, 443 (C.A.A.F. 

1999); see also United States v. Joseph, 996 F.2d 36 (3d Cir. 1993). 
HAWKINS —ARMY 20120070 

11 

it did not provide to appellant or the CA.9 This new information suggested appellant 

may have been not guilty of a charge of which he was found guilty. This 

exculpatory evidence, in the possession of the government before convening 

authority action, should have been turned over to the defense to allow them the 

opportunity to present it to the convening authority.10 

Materiality of the Non-disclosed Information 

Having determined that the laboratory results should have been disclosed, we 

now turn to materiality. 

In a case in which the defense either did not make a discovery request or 

made only a general request for discovery, appellant will be entitled to relief only by 

showing that there is a “reasonable probability” of a different result at trial if the 

undisclosed evidence had been disclosed. Bagley, 473 U.S. at 682 (opinion of 

Blackmun, J., joined by O’Connor, J.); Hart, 29 M.J. at 410; see also Cone v. Bell, 

556 U.S. 449 (2009); Strickler, 527 U.S. at 290. It simply is not sufficient, 

therefore, to claim that “there is a reasonable possibility that . . . testimony might 

have produced a different result . . . .” Strickler, 527 U.S. at 291. Appellant’s 

burden is to “establish a reasonable probability of a different result.” Id. 

While the investigator’s testimony is not dispositive as to what was 

manufactured that day in appellant’s laundry room—that is not the question we must 

address.11 The question is whether, in the absence of the withheld laboratory results, 

the appellant received a fair trial “worthy of confidence” in the outcome. Kyles, 514 

                                                           

9

 We note that we must presume, although we are unable to confirm, the laboratory 

results were exculpatory because the government still has not disclosed the results. 

10 Given that the actual laboratory results are the property of the United States 

government, there is no way the defense counsel could have obtained the lab results 

without the intervention and assistance of the government. 

11 This case involves exculpatory information versus impeachment evidence. Under 

Brady, failure to disclose impeachment evidence is viewed with no less significance 

than a failure to disclose exculpatory evidence; however, there is a distinction 

between exculpatory information and impeachment information in practical 

application of the materiality analysis. Exculpatory evidence primarily includes 

evidence which tends to directly negate an element of the charged offense by its very 

nature. In this case, if true, the objective scientific information could make the trial 

result a factual impossibility in that the substance produced was not 

methamphetamine. In contrast, impeachment evidence consists of evidence which 

tends to impeach or contradict a government witness. In those cases, it would be 

more difficult to prove materiality. 
HAWKINS —ARMY 20120070 

12 

U.S. at 434. We, therefore, ask if appellant had known of the laboratory results and 

been able to present them to the convening authority, would they have brought into 

question the factual underpinning of a charge of which appellant was found guilty. 

Again, the standard is one of whether the facts are called into question, not whether 

that question can be refuted. 

If appellant had knowledge of the information prior to CA action, appellant 

could have requested the CA consider that information and approve only a 

conviction for an attempt to manufacture methamphetamine. Not disclosing the 

information in a timely fashion deprived appellant of that opportunity. 

Given that the factual predicates for the Article 112a, UCMJ, charge and 

specification in PFC BB’s case and appellant’s case are the same, we find there is a 

reasonable probability of a different result had the information been disclosed and 

presented. Specifically, there is a reasonable probability that the CA would have 

approved only an attempt to manufacture methamphetamine in appellant’s case just 

as he did in appellant’s co-actor’s case.12 

 Remedy 

Having found that a Brady violation occurred before action, we must 

determine the appropriate remedy. We could return the case to the convening 

authority or authorize a fact finding hearing. Out of judicial economy and consistent 

with appellant’s requested relief, however, we will affirm only the offense of 

attempt to manufacture methamphetamine. See UCMJ art. 79. That is not only what 

                                                           

12 The dissent asserts that in any race to the courthouse, certain risks are taken and 

that discovery of exculpatory evidence may be one of these risks. United States v. 

Hawkins, M.J. , slip op. at (Army Ct. Crim. App. Apr. 2014) (Krauss, 

J., dissenting). This is certainly true in a mature judicial system and is a legitimate 

tactical decision made by an accused with the advice of his attorney. However, one 

of those assumed risks should not be a deprivation of the process that is still due. 

It would be a mistake to read the majority opinion as suggesting appellant is getting 

the benefit of his bargain pretrial and then getting a second bite at the bargain posttrial. Instead, in this case we examine the government’s obligations to ensure fair 

process throughout the court-martial—which of necessity includes the government’s 

duties through action by the CA. These duties include the government’s obligation 

to ensure material evidence of guilt or innocence is brought to the attention of trial 

participants. If the CA has authority to disapprove a finding of guilty post-trial as 

he does under the law applicable to this case, he should have matters material to 

such a determination prior to taking action—regardless of whatever tactical 

calculation the accused and his counsel may have made. 
HAWKINS —ARMY 20120070 

13 

the appellant requests, but also the very best result with respect to findings he could 

have hoped for if the case were returned for further disposition.13 

 

While the military judge dismissed with prejudice the separately charged 

Article 80, UCMJ, lesser included offense of attempted manufacture of 

methamphetamine, we find this had no effect on the remaining greater charge of 

which appellant was convicted. This court still has the authority to sustain a finding 

of guilty as to the lesser included offense. UCMJ arts. 59(b), 79. The dismissal of 

the lesser included offense merely effectuated R.C.M. 307(c)(4) which states that in 

no case should both an offense and a lesser included offense thereof be separately 

charged. Under the present circumstances, dismissal of the explicitly charged lesser 

included offense does not preclude our full and complete review of the greater 

offense or prevent this court from entering a finding of guilty to the lesser crime of 

attempt. 

CONCLUSION 

Upon consideration of the entire record and the submissions by the parties the 

court affirms only so much of the finding of guilty of the Specification of Charge III 

as finds that appellant did: 

at or near Fort Campbell, Kentucky, between on or about 

25 September 2011 and 26 September 2011, attempt to 

wrongfully manufacture 1 gram of methamphetamine, in 

violation of Article 80, UCMJ. 

The remaining findings of guilty are AFFIRMED. 

Based on the foregoing, we are able to reassess the sentence on the basis of 

the error noted and do so after conducting a thorough analysis of the totality of the 

circumstances presented by appellant’s case and in accordance with the principles 

articulated by our superior court in United States v. Winckelmann, 73 M.J. 11, 15-16 

(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986). 

                                                           

13 Looking at the context of the entire record regarding the attempt to manufacture 

methamphetamine, in accordance with United States v. Redlinski, 58 M.J. 117, 119 

(C.A.A.F. 2003), we find the accused was aware of the elements, both explicitly and 

inferentially. Here, appellant admitted to purchasing pseudoephedrine knowing PFC 

BB intended to manufacture methamphetamines. Appellant also admitted he 

specifically intended to manufacture methamphetamines. Under these 

circumstances, the record objectively reflects appellant understood his actions went 

beyond preparatory steps and were a direct movement toward the commission of the 

intended offense. Thus, an adequate factual predicate for the offense of attempted 

manufacture was established in this case.
HAWKINS —ARMY 20120070 

14 

In evaluating the Winckelmann factors, we first find no dramatic change in the 

penalty landscape or exposure. Appellant’s maximum punishment for attempt was 

the same as that for the underlying offense of manufacturing methamphetamine. See 

Manual for Courts-Martial, United States (2012 ed.) pt. IV, ¶ 4(e). We note 

appellant pleaded guilty in a judge alone court-martial. The nature of the remaining 

offenses captures the gravamen of the original charges and the significant 

circumstances surrounding appellant’s conduct remain admissible and relevant to the 

remaining offenses. Finally, based on our experience, we are familiar with the 

remaining offenses so that we may reliably determine what sentence would have 

been imposed at trial. 

After reassessing the sentence and the entire record, we AFFIRM the 

approved sentence. We find this purges the error in accordance with Sales and 

Winckelmann, and is also appropriate under Article 66(c), UCMJ. All rights, 

privileges, and property, of which appellant has been deprived by virtue of that 

portion of the findings set aside by this decision are ordered restored. 

Chief Judge PEDE, Senior Judge KERN, Senior Judge COOK, Senior Judge 

LIND, Judge ALDYKIEWICZ, Judge HAIGHT, Judge MARTIN, and Judge 

BORGERDING concur. 

KRAUSS, Judge, dissenting: 

I agree that Brady disclosure requirements apply post-trial through the 

completion of direct appeal that ends with the Supreme Court. See Imbler v. 

Pachtman, 424 U.S. 409, 427 n.25 (1976); Fields v. Wharrie, 672 F.3d 505, 514-515

(7th Cir. 2012); Leka v. Portuondo 257 F.3d 89, 100 (2d Cir. 2001); United States v. 

Behenna, 71 M.J. 228, 246 (C.A.A.F. 2012) (Effron, J. dissenting). Whether a 

broader obligation to disclose under Article 46, Uniform Code of Military Justice 

[hereinafter UCMJ] UCMJ and Rule for Courts-Martial [hereinafter R.C.M.] 701 

extends beyond the end of trial is another question. See United States v. Lofton, 69 

M.J. 386, 390 (C.A.A.F. 2011); United States v. Simmons, 38 M.J. 376, 381-82 

(C.M.A. 1993) (distinguishing government obligations under R.C.M. 701 and Brady 

v. Maryland, 373 U.S. 83 (1963)); Simmons, 38 M.J. at 383 (Gierke, J. concurring); 

see also United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002) (discussing 

parameters of appellate discovery). What we can say is that when an accused pleads 

guilty without the benefit of full discovery he takes certain risks that bear certain 

consequences, not the least of which is the risk that he and his lawyer may have 

failed to appraise the quality of the government’s evidence against them. See 

McMann v. Richardson, 397 U.S. 759, 770 (1970); Brady v. United States, 397 U.S. 

742, 756-57 (1970); see also United States v. King, 30 M.J. 59, 68-69 (C.M.A. 1990) 

(McMann applicable to direct appeals). Secondly, where an accused fails to request 

discovery of the specific material in question and does nothing to discover that 

material himself, where that material is reasonably discoverable by a reasonably 
HAWKINS —ARMY 20120070 

15 

diligent defense counsel, he is in no position to complain about what might 

otherwise constitute a “Brady violation.” See Simmons, 38 M.J. at 382 (citing

United States v. Wilson, 901 F.2d 378 (4th Cir. 1990)); United States v. Hicks, 848 

F.2d 1 (1st Cir. 1988); Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984); United 

States v. LeRoy, 687 F.2d 610, 618-19 (2d Cir. 1982), cert. denied, 459 U.S. 1174 

(1983); Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), cert. denied, 396 

U.S. 960 (1969); see also United States v. Garlick, 61 M.J. 346, 351 (C.A.A.F. 

2005). 

Because here the appellant decided to plead guilty without the benefit of full 

discovery, failed to request discovery of the type of material at issue, and failed to 

discover the material himself despite the fact that such evidence was readily 

discoverable, the question is not whether and how he obtains relief for any 

ostensible Brady violation but whether his defense counsel was ineffective. See 

Tollett v. Henderson, 411 U.S. 258 (1973); McMann, 397 U.S. 759; Simmons, 38 

M.J. at 382 n.3; United States v. Moussaoui, 591 F.3d 263, 278-81, 285-90 (4th Cir. 

2010) (applying Brady v. United States, 397 U.S. 742, and McMann, 397 U.S. 759, 

on direct appeal relative to a Brady v. Maryland, 373 U.S. 83, issue); see also 

United States v. Brozzo, 58 M.J. 284 (C.A.A.F. 2003) (summ. disp.) (setting aside 

Air Force Court decision, United States v. Brozzo, 57 M.J. 564 (A.F. Ct. Crim. App. 

2002), and remanding to Air Force Court for consideration of an ineffective 

assistance of counsel issue under asserted Brady violation circumstances); United 

States v. Brozzo, 60 M.J. 310 (C.A.A.F. 2004) (summ. disp.) (reversing the 

subsequent Air Force Court decision, United States v. Brozzo, ACM 34542, 2003 WL 

22047904 (A.F. Ct. Crim. App. 26 Aug. 2003), that held no ineffective assistance of 

counsel, in light of a government concession of a prejudicial discovery violation, 

referring to United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004), which ultimately 

relied on R.C.M. 701 in its holding). 

Appellant bears the risk of regretting his plea of guilty by discovering, after 

sentence is announced, that he and his lawyer may have jumped the gun a bit in 

presuming that the substance seized by the police is what the government says it is 

absent scientific test results being complete. The fact that he is now in possession 

of summarized hearsay testimony of a police investigator from his co-conspirator’s 

(PFC BB’s) Article 32, UCMJ, investigation that is ultimately ambiguous as to the 

supposed nature of the substance at issue is not a substantial basis to question the 

plea. See United States v. Stokes, 65 M.J. 651 (Army Ct. Crim. App. 2007); United 

States v. Kelly, 32 M.J. 813 (N.M.C.M.R. 1991).14 

                                                           

14 It is unclear whether or to what extent the majority relies on the stipulation of fact 

in Private First Class BB’s case in deciding that the government in this case violated 

the Brady rule. I find no authority, and the majority cites no authority, for the 

proposition that a stipulated fact in one case is relevant and available to establish the 

existence of the same fact in a related but separately adjudicated case. See Jacobs v. 

Scott, 513 U.S. 1067 (1995) (Stevens, J. dissenting) (citing United States v. Powers, 
HAWKINS —ARMY 20120070 

16 

 

There is no doubt that if the United States were in possession of such 

information before or at the time of appellant’s plea and failed to disclose it, we 

would be in a significantly different situation. See, e.g., Garlick, 61 M.J. 346;

Simmons, 38 M.J. 376. It would certainly be the case if appellant had requested 

discovery of such information and was willing to wait until its production before 

entering a plea. See Garlick, 61 M.J. 346. However, appellant fails to establish a 

R.C.M. 701 violation, let alone a Brady violation, prior to or at the time of his guilty 

plea. He does not assert that with this information his plea would have been 

different. He neither asserts nor does the record reveal any affirmative 

misrepresentation by the United States, coercion to plead guilty, or infirmity of 

appellant, at the time of his plea, to do so providently. Therefore, there is no 

substantial basis to question that plea. See Tollett, 411 U.S. 258; McMann; 397 U.S. 

759; Moussaoui, 591 F.3d 263; Garlick, 61 M.J. 346. 

The majority apparently blurs obligations under R.C.M. 701 and Brady and 

thereby invites the perverse results that follow: an accused who enjoys no relief for 

a Brady violation before his guilty plea now enjoys complete relief for a Brady

violation occurring after acceptance of his provident plea. See United States v. Ruiz, 

536 U.S. 622 (2002);15 United States v. Conroy, 567 F.3d 174, 178-79 (5th Cir. 

2009); see also Moussaoui, 591 F.3d at 278-81; McCann v. Mangialardi, 337 F.3d 

782, 787-88 (7th Cir. 2003). The majority does not hold that the higher disclosure 

obligations of Article 46, UCMJ, and R.C.M. 701 apply post-conviction. See, e.g., 

United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004); Simmons, 38 M.J. 376. 

There is good reason for this: R.C.M. 701(d) imposes a continuing duty to disclose 

before or during the court-martial and is based on the federal rule of discovery and 

American Bar Association standards relative to discovery before and during trial. 

R.C.M. 701(d); R.C.M. 701(d) analysis at A21-34. 

Nor does the majority rely on this court’s authority under Article 66, UCMJ, 

to rectify an injustice that warrants correction. See generally United States v. 

Nerad, 69 M.J. 138 (C.A.A.F. 2010). Instead, it seems to rely more on a notion like 

that of “military due process,” a concept recently cashiered by our superior court. 

United States v. Vazquez, 72 M.J. 13, 19 (C.A.A.F. 2013). As here discussed, under 

circumstances such as those present in this case, an appellant’s Constitutional rights 

                                                                                                                                                                                               

467 F.2d 1089, 1097 (7th Cir. 1972) (Stevens, J. dissenting) (lamenting the ability of 

the United States to take inconsistent positions in related cases)). 

15 It is also important to note that the majority opinion fails to recognize that 

Supreme Court precedent certainly precludes advance of any Brady violation claim 

relative to a guilty plea based on nondisclosure of material impeachment evidence. 

United States v. Ruiz, 536 U.S. 622, 629 (2002); see also Moussaoui, 591 F.3d at 

286.  
HAWKINS —ARMY 20120070 

17 

to the fairness and integrity of his convictions and sentence are enforced through the 

Sixth Amendment guarantee of the effective assistance of counsel, not the Fifth 

Amendment Due Process Clause. See Moussaoui, 591 F.3d at 279 (citing Blackledge 

v. Perry, 417 U.S. 21, 29-30 (1974)), 285-90; Stokes, 65 M.J. at 656-57.16 

 

Absent action by Congress or the President to define post-conviction 

discovery rules for the military justice system, we are left with the responsibility to 

enforce the Brady line of cases as fully defined by the common law. As referenced 

above, this line of cases is not so forgiving of defense counsel’s failures or the 

ramifications of tactical decisions made by counsel or choices made by an appellant 

before and during a guilty plea. In addition, the Brady rule should not be applied 

where a reasonably diligent defense counsel could have readily obtained the 

evidence that was not otherwise disclosed. See Cobb v. Thaler, 682 F.3d 364, 378-

79 (5th Cir. 2012); Spirko v. Mitchell, 368 F.3d 603, 610-11 (6th Cir. 2004); Boss v. 

Pierce, 263 F.3d 734, 740-41 (7th Cir. 2001); Barnes v. Thompson, 58 F.3d 971, 

975-76 (4th Cir. 1995). 

 

Applying the law that we have to the question of whether the United States 

denied appellant a fair opportunity for clemency or corrective action from the 

convening authority in this case, because it failed to disclose favorable information 

discovered after trial, appellant loses.17 To the extent the Brady rule applies after 

acceptance of a provident guilty plea, where an appellant fails to specifically request 

discovery of such material and fails to obtain and exploit the matter himself when it 

is readily available for discovery, he surrenders opportunity to fix blame on the 

United States for what might otherwise warrant relief. See Wilson, 901 F.2d 378; 

Garlick, 61 M.J. 346; Simmons, 38 M.J. 378. 

It is plain from this record that a reasonably diligent defense counsel could 

have readily obtained the information about which appellant now complains. 

                                                           

16 And so much the better, a guilty plea relieves the United States of its burden to 

prove an accused guilty at a fair trial, ensuring the accuracy of the plea through the 

Sixth Amendment rather than the Fifth, under circumstances such as these, enforces 

the responsible and prompt litigation and resolution of such matters at the trial level, 

and before action, rather than rewarding happenstance discovery upon post 

conviction review, while respecting a soldier’s choice to plead guilty after 

consultation with his counsel. This is increasingly important as Congress limits the 

discovery purpose of the Article 32, UCMJ, investigation and the authority and 

discretion of the convening authority to effectively address issues like those in this 

case. 

17 See District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 

52, 69-70 (2009) (Supreme Court relying on post-trial discovery processes of 

individual jurisdictions, on direct appeal, to resolve this sort of problem.). 
HAWKINS —ARMY 20120070 

18 

Indeed, appellant’s trial defense counsel followed and made reference to PFC BB’s 

case in his R.C.M. 1105 matters submitted to the convening authority. This fact is 

enough to establish that appellant’s defense counsel could have readily discovered 

PFC BB’s plea of attempt rather than manufacture of methamphetamine and the 

reasons for it.18 See, e.g., Westley v. Johnson, 83 F.3d 714, 725-26 (5th Cir. 1996) 

(no Brady violation where transcript of co-defendant’s case containing favorable 

information for defense was readily available) and cases cited above relevant to 

readily discoverable evidence and Brady. Private First Class BB was tried by the 

same office on charges referred by the same convening authority at the same 

installation within a few months of appellant’s own trial and two weeks prior to 

submission of appellant’s R.C.M. 1105 matters. Appellant offers no explanation as 

to why he limited reference to PFC BB’s sentence rather than the full facts of PFC 

BB’s case. It appears from the record and the affidavit of appellant’s counsel that 

they both simply presumed the substance was methamphetamine without thinking 

much further about it (there was apparently at least a field test that showed positive 

for methamphetamine), as appellant now presumes it was not methamphetamine 

based on the related proceedings discussed. 

Of course, when the United States accuses a soldier of manufacturing a 

contraband substance, they will likely submit that substance for testing by an 

accredited laboratory before subjecting that soldier to a potential criminal conviction 

and deprivation of liberty. The defense can request such testing. The soldier can 

also plead not guilty and force the government to prove his guilt. 

It makes sense that the government might forgo the expense and time of 

testing that substance, if the accused soldier insisted he could enter a provident plea 

without the need for any such confirmation. It also makes sense that that soldier’s 

defense counsel might reasonably rely on his client’s insistence despite counsel’s 

advice that laboratory testing might reveal otherwise and as long as the soldier 

understood the risk he was taking by pleading guilty prior to full discovery. The law 

requires we presume defense counsel did just that. See generally United States v. 

Perez, 64 M.J. 239, 243 (C.A.A.F. 2006). More problematic for defense counsel is 

that neither the record of trial, allied papers or appellate filings suggest he made any 

                                                           

18 The majority assumes the existence of an exculpatory laboratory report and its 

contents though there is no such report in the record of either this case or the case of 

appellant’s co-conspirator. In a case like this, where there is, at best, the possible 

existence of conflicting evidence on the subject of the nature of an alleged 

contraband substance, rather than evidence of actual innocence, for example, the 

relief provided by the majority is rather extraordinary. Appellant admitted, under 

oath and after being advised of his rights to trial, that the substance produced was 

methamphetamine. He did this after receipt of a police report stating that the 

substance seized was methamphetamine. Presuming the existence of a report of 

scientific evidence, whose contents and accuracy are untested because of appellant’s 

guilty plea, is frail basis to disapprove an otherwise reliable finding of guilty. 
HAWKINS —ARMY 20120070 

19 

discovery request let alone request for the type of information at issue. But 

appellant does not assert that his defense counsel was deficient in his advice or in 

failing to present matter to the convening authority that might have obtained some 

corrective action. 

Because appellant fails to make a cognizable Brady violation claim and 

because he makes no claim of ineffective assistance of counsel, and the record is 

insufficient by itself to establish ineffective assistance, I cannot join the majority 

opinion. 

 FOR THE COURT: 

 ANTHONY O. POTTINGER. 

 Acting Clerk of Court

ANTHONY O. POTTINGER 

Acting Clerk of Court 

FOR THE COURT: