## UNITED STATES ARMY COUR T 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. Bova rnick, Staff Judge Advocate

For Appellant: Lieutenant Colonel Imogene M. Jami son, JA; Majo r Jacob D. Bashore, JA; Lieutenant Co lonel Katherine A. Lehma nn, JA (on brie f); Colonel Kevin Boyle, JA; Major Vinc ent T. Shuler, JA; Lieutena nt 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 Wa rner, JA (on brief and on brief in response to specified issues).

18 April 2014

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OPINION OF THE COURT

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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 wrongfull y manufacturing methamphetamine, in
violation of Articles 92 and 112a, Uniform Code of Military Jus tice, 10 U.S.C. §§ 892 and 912a [hereinafter UCMJ]. The military judge sentenced appellant to a bad-conduct discharge, confinement for te n months, and forfeitu re of all pay and allowances. The convening authority appr oved only so much of the sentence as provided for a bad-conduct discharge and confinem ent for nine months. 1 The

1 The convening authority defe rred automatic and adjudged forf eitures unt il action. At action, the convening authority waived the automatic forfeitu res for a period of six months. The pretrial agreement limited the maximum period of confinement to
fifteen months. The record contains no ex planation of the one- month reduction in confinement provided by the co nvening authority in his action.HAWKINS

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2 convening authority credited a ppellant with forty-four days against the sentence to
confinement.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises one assignment of error, claiming the Article 112a, UC MJ, charge and its specification of manufacturing methampheta mine should be dismissed. Appellant asserts the government possessed exculp atory information that indicated the substance produced was not actually meth amphetamine. Appellant further asserts the government’s failure to disclose this information is a cons titutional 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, expressl y intending to use it to ma nufacture methamphetamine. Knowing PFC BB’s intention, appellant purc hased the pse udoephedrine an d gave it
to PFC BB and TS.

That same day, appellant became aware that PFC BB was manufacturing methamphetamine inside ap pellant’s quarters when he smelled “chemicals” emanating from the laundry ro om. When appellant checke d to see what was causing the odor, he found PFC BB an d TS “making meth.” Appe llant, surprised that PFC BB was manufacturing methamphe tamine inside his quart ers, told PFC BB to immediately stop and to leave th e house by the next morning.

The next morning, appellan t observed that “every thing [was] out of the house,” but PFC BB and his wi fe had not left. Appellan t and PFC BB then went to physical training. Afte rwards, PFC BB asked appe llant again to buy him pseudoephedrine. Again, knowing PFC BB’s purpose was to manufacture methamphetamine, appellant bought PFC BB the ps eudoephedrine. Appellant also purchased synthetic cannabinoids that morning.

Later that day, appellant reported PFC BB’s methamphetami ne manufacturing enterprise to his chain of command and gave his consent to search his quarters. A
search was conducted and a makeshift methampheta mine lab was found. The dangerous materials from the lab were destroyed by local ci vilian law enforcement at the request of Fo rt Campbell authorities . The remaining lab ma terials and chemicals

2 Private First Class BB and his wife were living in appell ant’s quarters pending approval of a Basic H ousing Allowance request.HAWKINS

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3 were seized by Army criminal investigators and sent to a laboratory for drug testing. Synthetic cannabinoids were al so seized from the home.

The original charges preferre d against appellant included, inter alia, Article 112a, UCMJ, wrongful manufacture of me thamphetamine, as we ll as attempted manufacture of methamphe tamine, a violation of Article 80, UCMJ.

Prior to the government re ceiving the drug test resu lts from the laboratory, appellant entered into a pretrial agreement wi th the government to plead guilty to the wrongful manufacture of on e 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 dismis s with prejudice all of the charges and specifications to which ap pellant pleaded not guilty, including the attempted
manufacture of me thamphetamine.

As part of the pretrial ag reement, appellant agreed to enter into a stipulation of fact with the government . A civilian police seizur e report attached as an enclosure to the stipulatio n of fact indicated that 5.5 grams of methamphetamine had been seized from appellant’s home.

On 24 January 2012, consistent with the pretri al agreement, the providence inquiry, and the stipulation of fact, the military judge acce pted appellan t’s pleas of guilty and dismissed with prejudice the Article 80 , UCMJ, charge and its specification of attempted manufa cture of methamphetamine.

While in confinement, appellant enco untered PFC BB, wh o had been tried after appellant’s court- martial. Private First Class BB informed appellant that PFC BB and his wife had apparently been unsuccessf ul in their attempts to actually create methamphetamine in appellant’s quarte rs on 25 and 26 September 2011. Accordingly, PFC BB only pleaded gu ilty to and was convicted of attempted
manufacture of me thamphetamine.

By the time appellant le arned this information from PFC BB, the convening authority had already taken act ion on appellant’s case.

Appellant asks this court to consider mate rials outside his reco rd 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 fr om 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 tria l transcript.HAWKINS

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4 Private First Class BB’s Article 32, UCMJ, investigation took place on 7 February 2012, fourte en days after appella nt’s guilty plea an d conviction. The investigation transcript contains summarized test imony from an Army drug suppression agent who testified that on th e preceding Friday (3 February 2012), Army criminal investigators received the chemical laboratory results for the substances submitted for testing from th e methamphetamine labo ratory crime scene at appellant’s home. In response to government ques tions about the government laboratory results, the agent stated “no me th was revealed , just the precursors to
create meth such as Sudafe d,” but on cross examination, th e agent further stated “we are still unsure of [s ic] what [PFC BB] had at the sc ene was meth.” In PFC BB’s case, the government stipulated that the un known 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. Appella nt 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 or der such a disclosure. There is nothing in appellant’s record of trial or appellate filings to suggest that appellant requested discovery of such ev idence before, during, or after his court-martial.

LAW AND DISCUSSION

At the outset, we note this opinion ad dresses the government’s obligation to disclose exculpatory information involvin g appellant’s case th at is within its possession post-trial but prior to action by the convenin g authority.

This opinion does not address Rule for Courts-Martial [hereinafter R.C.M.] 1210 or Article 73, UCMJ, re garding appellant’s right to petition for a new trial based on newly discovered evidence. No r do we address R.C. M. 910(j) regarding appellant’s waiver of objecti ons to the factual basis u pon 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 collater al matter of due pr ocess—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, 27 2 (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. 70 1(d) which places a time limit on the discovery requ irement stating, “[i]f, before or during the court-martial, a party discovers additional evidence or mate rial previously reque sted or required to be produced . . . that party shall promptly notify the othe r party or the military judge
of the existence of the additional eviden ce or material.” R. C.M. 701(d) (emphasis added).HAWKINS

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5 In his assignment of error, appellant asserts the Article 112a, UCMJ, charge and its specification should be dismis sed based on a due pr ocess violation. Specifically, appellant allege s: (1) before the conveni ng authority t ook action, the government possessed exculpatory informati on; (2) the governmen t did not disclose this information; and (3) this informat ion indicated the substance produced in appellant’s case was not methamphetamine.

Appellant argues that al though the exculpatory info rmation, in the form of negative laboratory results, came to light after his guilt y plea, the Supreme Court’s
decision in Brady v. Maryland

, 373 U.S. 83 (1963), none theless requires the government to provide him with exculpator y information—even after the gavel has fallen. Appellant as serts the government’s failure to disclose this information deprived him of his right to constitutional due process an d the post-trial clemency rights afforded him under the UCMJ an d Rules for Courts-Marti al. Appellant further asserts government counsel had an ethical obligation to provide the laboratory results to the defense. Ap pellant claims the appropriate remedy in this case is dismissal of the charge and its specification because the military judge previously dismissed with prejud ice the lesser incl uded offense of atte mpt to manufacture methamphetamine. In the alte rnative, appellant asks this court to affirm only the offense of attempted manufactu re of methamphetamine. We find under the facts of this case, a Brady violation occurred in that th e government, prior to convening authority action, had in its possession exculpatory information material to guilt or punishment that it di d 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 Fourte enth Amendments impose certain duties upon th e 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 guid ance on judging Brady
claims. To establish that a Brady violation undermines a c onviction, 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 evid ence, “either willfully or inadvertently;” and (3) the
information was material in th at “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, cal ls into question the underlying conviction
or sentence. Because it is a constitutional obligation, the Supreme Court later
instructed that Brady evidence must be disclosed rega rdless of whethe r the defendantHAWKINS

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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 pr oceeding would have
been different.” United States v. Bagley , 473 U.S. 667, 682 (19 85) (separate opinion of Blackmun, J., jo ined by O’Connor, J.). A reasonab le 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 do es 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 probabilit y” 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 ev idence, but whether in its
absence he received a fair trial, underst ood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different re sult 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 fu rther 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 di fferent, necessarily entails
the conclusion that the su ppression must have had substantial and injurious effect or influence in determining
the . . . verdict.

Kyles , 514 U.S. at 435 (int ernal quotation marks an d citations omitted).

Under Brady and its progeny, it is firmly settled that a criminal defendant has a constitutional right to ob tain all material eviden ce—known to the governmentHAWKINS

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7 before and during trial—that is favora ble to the defendant’s case. The Supreme Court’s application of Brady in a post-trial cont ext 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 go vernment does not have a continuing Brady obligation post-convic tion, and the Constituti on 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 constituti onal 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 lim ited interest in post -conviction relief.”
Osborne , 557 U.S. at 69. However, here, we readil y distinguish Osborne’s applicability to the cu rrent scenario.

Osborne dealt with a collateral attack—n ot a scenario where the conviction was not yet final. Both the conviction and sentence had alre ady been affirmed on direct appeal in Osborne

. Id . at 58. Furthermore, Osborne sought the opp ortunity to
access and test DNA evidence already in the possession of the government with the hope of producing ye t uncreated exculpatory results. While finding post-conviction due process rights ar e “not parallel” to trial due process righ ts, the Supreme Court did not unambiguously forecl ose 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 co nclusion of trial. See Imbler v. Pachtman , 424 U.S. 409, 427 n.25 (1976) (observing that after a conviction, pros ecutors are “bound by the ethics of [their] office to inform the appropriate authorit y of after-acquired or other
information that casts doubt upon the correctness of the convicti on”). As fa r back as 1915, the Supreme Court held th at when a state grants a cr iminal defendant a right to direct appeal, “the pr oceedings 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 du ty to disclose is ongoing); Thomas v. Goldsmith , 979 F.2d 746 (9th Cir. 199 2) (a state should turn over exculpatory evidence relevant to a habeas corp us proceeding); Bowen v. Maynard , 799 F.2d 593 (10th Cir. 198 6) (the duty to disclo se 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 th e existence of a continuing duty to disclose); State v.

Bennett , 81 P.3d 1 (Nev. 2003) (t he state has an affirmativ e duty to disclose before during and after defendant has been convicted); People v. Garcia , 22 Cal. Rptr. 2d 545 (Cal Ct. App. 1993) (t he duty to disclose do es not end when trial is over).HAWKINS

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8 of law under which he is he ld in custody by the state, and to be co nsidered in determining any question of alleged depr ivation of his life or lib erty 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 crea ted appellate courts as an integral part of the . . . system for finally adjudicati ng the guilt or innocence of a defendant, . . . the proced ures used in deciding appe als must com port with the
demands of the Due Process and Equal Protection Clause s of the Cons titution.”) (internal quotation marks and citations omitted).

More recently, the United States Court of Appeal s for the Seventh Circuit
observed that:

[A] defendant’s conviction is not final as a matter of law
until he exhausts th e direct appeals affo rded 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, 652–5 4 . . . (2012) (holding that “[f]or petitioners who pursu e direct review all the way to [the Supreme Court], the judgment becomes final at the
conclusion of direct review —when this C ourt affirms a
conviction on the merits or denies a petition for certiorari [and that] [f]or all other petiti oners, 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 fi nal”) (emphasis added).

Fields v. Wharrie

, 672 F.3d 505, 5 15 (2012).

The Seventh Circuit further inst ructed that the government’s Brady obligations “remain in full e ffect on direct appeal and in the event of retrial because
the defendant's conviction ha s not yet become fi nal, and his righ t 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 exte nt or timing of disclosure Brady and its progeny require, except in terms of the sufficiency, unde r the circumstances, of the defense's opportunity to use the evidence when disclosure is made. Thus disclosu re prior to
trial is not manda ted. Indeed, Brady requires disclosure of information that theHAWKINS

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9 Brady Application Post-Trial and Pr ior to Convening Authority Action

Although a military member may have been convic ted and sentenced at a court-martial, the “direct ap peal” 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 revi ew by the Court of Appeals for Armed Forces (CAAF) is discretionary in most cases. 6 See R.C.M.
1209.

More significantly, however, even befo re a military case is reviewed by a
service court on di rect appeal, it is first review ed by the court- martial convening authority (CA). Congress has provided servicemembers with a unique additional right of review for convicted military pe rsonnel whereby the CA reviews each case, pursuant to Article 60 , UCMJ. This review is perf ormed and action taken, in most cases, with the advice of specifically assi gned judge advocates pur suant to Articles 6 and 60(d), UCMJ.

Article 60, UCMJ, also di rects the CA to take act ion 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 re ceiving a written recommendati on from a staff judge advocate officer, to “approve, disapp rove, commute, or suspend th e 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 Artic le 66, UCMJ, and their right to petition for review by th e 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 whet her to approve or disapprove any findi ngs of guilty, the sentence, or any portion th ereof. R.C.M. 1105. S ubmissions 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 co nvening 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 Crimin al Appeals of that military Service. Pursuant to Article 67 (a), UCMJ, the Cour t of Appeal s for the
Armed Forces shall re view the record in: 1) all cases in which the sentence, as affirmed by a Court of Criminal Appeals, ex tends to death; 2) a ll cases reviewed by a Court of Criminal Appeals which the Judge Advocate General orders sent to the Court of Appeals for the Arme d Forces for review; and 3) all cases re viewed by a Court of Criminal Appeals in which, upon petition of the accused a nd on good cause shown, the Court of Appe als for the Armed Forces has granted a review.HAWKINS

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10 evidence; clarification of matters presented at trial; allegations of errors affecting the legality of th e findings or sentence ; portions or summarie s of the record and copies of documentary evidence offered or introduced at trial; matters in mitigation
which were not availa ble for consideration at the court-martial; and clemency recommendations by any member, the military judge, or any othe r person. R.C.M. 1105(b).

Currently, the CA has wi de discretion and may for any or no reason, disapprove the findings, or ma y dismiss any offense, or ch ange the findi ng of guilty of any offense to one of a le sser 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 Addition ally, the CA has the ability under R.C. M. 1107 to cons ider matters outside the record and to order a rehearing should any issue arise that warrants further examination.

Prior to taking final ac tion pursuant to Articl e 60, UCMJ, the convening authority must consider the results of trial, the recomm endation of the Staff Judge Advocate pursuant to R.C.M. 1106, and any post-t rial clemency matters submitted by the accused and his attorney.

Given this case had no t yet reached the conveni ng authority when the investigator offered testimony at PFC BB’s Article 32, UCMJ, he aring 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 prov e beyond any d oubt that the defendant did
not commit the crime for which he was convicte d . . . .” Harvey v. Horan , 285 F.3d 298, 317 (4th Cir. 2002) (Luttig, J., respecting the deni al 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 posse ssion presumably ex culpatory laboratory results during the pendency of appellant’s R.C.M. 11 05 and 1106 submission which

7 These provisions were in effe ct during the pendency of this case. It is subject to change after 24 June 2014, when Congressional modifica tion 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. 11 3-66 §1702(b), 127 Stat . 672, 955–58 (2013).

8 Brady and its progeny do not re quire “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 indent ifying 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

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11 it did not provide to appellant or the CA. 9 This new informatio n suggested appellant may have been not guilty of a charge of which he was found gu ilty. This exculpatory evidence, in th e possession of the gove rnment before convening authority action, should have been turned over to the defense to allow them the opportunity to present it to the convenin g 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 di scovery request or made only a general re quest for discovery, appe llant will be entitled to relief only by showing that there is a “reaso nable probability” of a different result at trial if the
undisclosed evidence ha d 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 si mply 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 “estab lish a reasonable probability of a different result.” Id

.

While the investigator’s testimony is not dispos itive as to what was
manufactured that day in appellant’s laundry room—t hat is not the que stion we must
address. 11 The question is whether, in the absence of the with held laboratory results, the appellant received a fair trial “wor thy of confidence” in the outcome. Kyles , 514

9 We note that we must pres ume, although we are unable to confirm, the laboratory results were exculpatory be cause the government still has not disc losed the results.

10 Given that the actual laboratory results are the property of the United States government, there is no way th e defense counsel co uld have obtained the lab results
without the inte rvention and assistance of the government.

11 This case involves exculpatory informatio n versus impeachment evidence. Under Brady , failure to disclose impeachment evidence is viewed with no less significance than a failure to disclose exculpatory ev idence; however, ther e is a distinction between exculpatory information and im peachment informat ion in practical application of the materia lity analysis. Excu lpatory evidence primarily includes evidence which tends to directly negate an element of the charged offense by its very nature. In this case, if tr ue, the objective scientific information could make the trial result a factual impossi bility in that the subs tance produced was not methamphetamine. In contrast, impeachmen t evidence consists of evidence which tends to impeach or contradi ct a government witness. In those cases, it would be more difficult to pr ove materiality.HAWKINS

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12 U.S. at 434. We, therefore, ask if appell ant had known of the la boratory results and been able to present them to the conveni ng authority, would they have brought into question the factual u nderpinning of a char ge of which appellant was found guilty. Again, the standard is one of whether the facts are ca lled 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 a nd approve only a conviction for an attempt to manufacture methamphetamine. Not disclosing the information in a timely fa shion deprived appellant of that opportunity.

Given that the factual predicates fo r 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 prob ability of a different result had the information been disclosed and presented. Specificall y, there is a reasonable probab ility 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 befo re action, we must determine the appropriate re medy. We could re turn the case to the convening authority or authorize a fact finding hearin g. Out of judicial ec onomy 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 eviden ce 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 certain ly 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 ri sks should not be a depr ivation of the pr ocess that is still due.

It would be a mistake to read the majority opinion as su ggesting appellan t is getting the benefit of his bargain pret rial and then getti ng a second bite at the bargain posttrial. Instead, in this case we examine the government’s obligati ons to ensure fair process throughout the court-martial—whic h of necessity includ es the government’s duties through action by the CA . These duties include the governm ent’s obligation to ensure material evidence of guilt or inno cence is brough t to the attent ion 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 ac tion—regardless of whatever tactical
calculation the accu sed and his counse l may have made.HAWKINS

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13 the appellant requests, but also the very best resu lt with respect to findings he could have hoped for if the case were returned for further disposition. 13

While the military judge dismissed w ith prejudice the se parately charged Article 80, UCMJ, lesser included offense of a ttempted manufacture of methamphetamine, we find this had no effe ct on the remaining greater charge of which appellant was convicted. This court still has the au thority to sustain a finding of guilty as to the lesser in cluded offense. UCMJ arts. 59(b), 79. Th e dismissal of the lesser included offense merely effectua ted R.C.M. 307(c)(4) wh ich 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 expl icitly charged lesser
included offense does not preclude our full and comple te 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 s ubmissions by the parties the court affirms only so much of the finding of guilty of the Specifica tion of Charge III as finds that appellant did:

at or near Fort Campbell, Ke ntucky, between on or about 25 September 2011 and 26 Se ptember 2011, attempt to wrongfully manufacture 1 gr am of methamphetamine, in
violation of Ar ticle 80, UCMJ.

The remaining findings of guilty are AFFIRMED.

Based on the foregoing, we ar e 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 reco rd regarding the atte mpt 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 elem ents, both explicitly and inferentially. Here, appellant admitted to purchasing pseudoephedrine knowing PFC
BB intended to manufacture methamphetamines. Appe llant also admitted he specifically intended to manufacture methamphetamines. Under these circumstances, the record objectively refl ects appellant underst ood his actions went beyond preparatory steps a nd were a direct movement toward the commission of the
intended offense. Th us, an adequate factual predicat e for the offense of attempted
manufacture was established in this case.HAWKINS

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14 In evaluating the Winckelmann factors, we first find no dramatic change in the penalty landscape or exposu re. Appellant’s maximum punishment for attempt was the same as that for the underlying o ffense 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 a nd the significant
circumstances surroundi ng appellant’s conduct remain admissible and relevant to the remaining offenses. Finall y, based on our expe rience, we are familiar with the remaining offenses so that we may reliably determine what sentence would have been imposed at trial.

After reassessing the se ntence 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 Ar ticle 66(c), UCMJ. All rights, privileges, and property, of which appellan t 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, Se nior 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 disclo se under Article 46, Unifor m Code of M ilitary Justice [hereinafter UCMJ] UCMJ and Rule for Co urts-Martial [hereinafter R.C.M.] 701 extends beyond the end of tr ial 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) (dis tinguishing governmen t obligations under R.C.M. 701 and Brady v. Maryland , 373 U.S. 83 (1963)); Simmons , 38 M.J. at 383 (Gie rke, J. concurring);
see also United States v. Campbell , 57 M.J. 134 (C.A.A .F. 2002) (discussing parameters of appellate discov ery). What we can say is that when an accused pleads guilty without the benefit of full discovery he takes certai n risks that bear certain consequences, not the least of which is th e risk that he and his lawyer may have failed to appraise the qu ality of the government’s evidence against them. See
McMann v. Ri chardson, 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 app eals). Secondly, where an accused fails to request discovery of the spec ific material in question and do es nothing to discover that material himself, where that material is reasonably di scoverable by a reasonablyHAWKINS

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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 (11t h 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 gu ilty without the benefit of full discovery, failed to request di scovery of the type of materi al at issue, and failed to
discover the material himsel f despite the fact that such evidence was readily discoverable, the question is not whet her 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 Ai r 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 in effective assi stance of counsel, in light of a government concessi on 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 announce d, that he and his lawyer may have jumped the gun a bit in presuming that the subs tance seized by the po lice 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 poli ce investigator from hi s co-conspirator’s (PFC BB’s) Article 32, UCMJ, investigation that is ulti mately ambiguous as to the supposed nature of the substance at issue is not a substantial ba sis 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 re lies 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 author ity, and the majority cites no authority, for the proposition that a stipulated f act 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) (Ste vens, J. diss enting) (citing United States v. Powers

,HAWKINS

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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 significantl y 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 in formation and was willing to wait until its production before entering a plea. See Garlick

, 61 M.J. 346

. However, appellant fails to es tablish a
R.C.M. 701 violat ion, let alone a Brady violation, prior to or at the time of his guilty plea. He does not assert that with this in formation his plea would have been
different. He neither as serts 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. Ther efore, 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 ob ligations 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 af ter acceptance of hi s provident plea. See United States v. Ruiz

, 536 U.S. 622 (2002); 15 United States v. Conroy , 567 F.3d 174, 17 8-79 (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 th e higher disclosure obligations of Article 46, UCMJ, and R. C.M. 701 apply po st-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 continui ng duty to disclose before or during the court- martial and is based on the fe deral 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) analys is at A21-34.

Nor does the majority rely on this co urt’s authority under Article 66, UCMJ, to rectify an injustice th at 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 du e process,” a concept recently cash iered by our supe rior court. United States v. Vazquez , 72 M.J. 13, 19 (C.A .A.F. 2013). As he re discussed, under circumstances such as those present in this case, an appellant’s C onstitutional rights

467 F.2d 1089, 1097 (7th Cir. 1 972) (Stevens, J. di ssenting) (lamenti ng the ability of
the United States to take inconsistent positions in relate d cases)).

15 It is also important to note that the majority opinion fails to recognize that Supreme Court precedent certai nly precludes advance of any Brady violation claim relative to a guilty plea based on nondisclosure of materi al impeachment evidence. United States v. Ruiz , 536 U.S. 622, 629 (2002); see also Moussaoui , 591 F.3d at
286.HAWKINS

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17 to the fairness and integrity of his convictions and sentence are enforced through the Sixth Amendment guarantee of the effectiv e assistance of coun sel, not the Fifth
Amendment Due Process Clause. See Moussaoui , 591 F.3d at 279 (citing Blackledge v. Perry , 417 U.S. 21, 29-3 0 (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 forg iving of defense counse l’s failures or the
ramifications of tactical de cisions made by coun sel or choices made by an appellant before and during a guilty plea. In ad dition, the Brady rule should not be applied where a reasonably diligent defense co unsel could have r eadily 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 ha ve to the question of wh ether the United States denied appellant a fair opportunity for clemency or corrective action from the convening authority in this case, because it faile d to disclose favorable information
discovered after tria l, appellant loses. 17 To the extent the Brady rule applies after acceptance of a provident guil ty plea, where an appellant fa ils to specifically request discovery of such mate rial and fails to obta in and exploit the matter himself when it is readily available for discovery, he surrenders opportunity to fix blame on the United States for what migh t 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 re asonably diligent de fense counsel could have readily obtained the information about which ap pellant now complains.

16 And so much the bett er, a guilty plea relieves the United Stat es 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 circ umstances such as these, enforces the responsible and prompt litigation and reso lution of such matters at the trial level, and before action, rather than rewarding happensta nce discovery upon post conviction review, while re specting a soldier’s choice to plead guilty after
consultation with his counsel. This is increasi ngly important as C ongress limits the discovery purpose of the Article 32, UC MJ, investigation an d the authority and discretion of the convening au thority to effectively address issues like those in this

case.

17 See District Attorney’s O ffice for the Third Judici al District v. Osborne , 557 U.S. 52, 69-70 (2009) (Supreme Co urt relying on post-trial discovery processes of individual jurisdicti ons, on direct appeal, to re solve this sort of problem.).HAWKINS

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18 Indeed, appellant’s trial defense counsel followed and made re ference to PFC BB’s
case in his R.C.M. 1105 matter s submitted to the convening au thority. This fact is enough to establish that appellant’s defe nse counsel could have readily discovered PFC BB’s plea of attempt ra ther 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 transcri pt of co-defendant’s ca se containing favorable information for defense was readily availa ble) and cases cited above relevant to readily discoverable evidence and Brady . Private First Class BB was tried by the same office on charges re ferred by the same convening author ity at the same
installation within a few m onths of appellant’s own tr ial and two weeks prior to submission of appellant’s R.C.M. 1105 matt ers. Appellant offe rs no explan ation 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 affidavi t of appellant’s counsel that they both simply presumed the substance was metham phetamine without thinking much further about it (there was apparently at least a fiel d test that showed positive for methamphetamine), as appellant now presumes it was not methamphetamine based on the related proceedings discussed.

Of course, when the Unit ed States accuses a soldier of manufacturing a
contraband substa nce, they will likely submit that substanc e 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 an d force the government to prove his guilt.

It makes sense that the government might forgo the expens e 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 make s sense that that soldier’s
defense counsel mi ght reasonably re ly on his client’s insist ence despite counsel’s advice that laboratory testin g might reveal otherwise and as long as the soldier understood the risk he was taking by pleadi ng guilty prior to full discovery. The law requires we presume defens e counsel did just that. See generally Unit ed States v.
Perez , 64 M.J. 239, 243 (C.A.A.F . 2006). More problematic for de fense counsel is
that neither the record of trial, allied papers or appe llate filings suggest he made any

18 The majority assumes the existence of an exculpatory laborato ry report and its contents though there is no such report in the record of either this ca se or the case of appellant’s co-conspirator. In a case like this, where there is, at best, the possible existence of conflicting ev idence on the subject of th e nature of an alleged
contraband substa nce, rather than evidence of act ual innocence, for example, the relief provided by the majority is rather extraordinary. Appe llant admitted, under oath and after being a dvised of his rights to trial, that the substance produced was methamphetamine. He did th is after receipt of a police report stating that the substance seized was methamphetamine. Presuming the existenc e of a report of scientific evidence, whose contents and accu racy are untested b ecause of appellant’s guilty plea, is frail basis to disapprove an otherwise reliable find ing of guilty.HAWKINS

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19 discovery request let alone request for the type of information at issue. But appellant does not assert that his defense counsel was defi cient in his advice or in failing to present ma tter to the convening authority th at 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: