UNITED STATES, Appellee 

v. 

Shawn R. Hull, Staff Sergeant 

U.S. Air Force, Appellant 

No. 11-0131 

Crim. App. No. 37470 

United States Court of Appeals for the Armed Forces

Argued April 21, 2011 

Decided June 10, 2011 

EFFRON, C.J., delivered the opinion of the Court, in which 

BAKER, ERDMANN, STUCKY, and RYAN, JJ., joined. 

Counsel

For Appellant: Major Bryan A. Bonner (argued); Lieutenant 

Colonel Gail E. Crawford and Major Darrin K. Johns (on brief); 

Colonel Eric N. Eklund. 

For Appellee: Captain Joseph J. Kubler (argued); Colonel Don M. 

Christensen and Gerald R. Bruce, Esq. (on brief). 

Military Judge: Ronald A. Gregory 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Hull, No. 11-0131/AF 

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Chief Judge EFFRON delivered the opinion of the Court. 

A general court-martial composed of a military judge sitting 

alone, convicted Appellant, pursuant to mixed pleas, of 

dereliction of duty (providing alcohol to a minor), rape, and 

adultery, in violation of Articles 92, 120, and 134, Uniform 

Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 920, 934 

(2006). The sentence adjudged by the court-martial and approved 

by the convening authority included a dishonorable discharge, 

confinement for three years, and reduction to E-1. The United 

States Air Force Court of Criminal Appeals affirmed. United 

States v. Hull, No. ACM 37470, 2010 CCA LEXIS 342, at *7, 2010 

WL 4069060, at *3 (A.F. Ct. Crim. App. Sept. 15, 2010) 

(unpublished). 

On Appellant’s petition, we granted review of the following 

issue: 

WHETHER THE STAFF JUDGE ADVOCATE ERRED IN 

ADVISING THE CONVENING AUTHORITY, PURSUANT 

TO RULE FOR COURTS-MARTIAL (R.C.M.) 1106, 

THAT NO NEW TRIAL WAS WARRANTED, AND WHETHER 

THE CONVENING AUTHORITY ERRED BY FAILING TO 

ORDER A NEW TRIAL DESPITE THE STAFF JUDGE 

ADVOCATE’S ACKNOWLEDGEMENT THAT APPELLANT 

HAD PRESENTED NEW EVIDENCE THAT FELL WITHIN 

THE PARAMETERS OF R.C.M. 1210. 

 For the reasons set forth below, we conclude that the staff 

judge advocate (SJA) did not err in his advice to the convening 

authority, and that the convening authority did not abuse her 

discretion in denying Appellant’s request for a new trial. 
United States v. Hull, No. 11-0131/AF 

3

I. THE NEW TRIAL REQUEST 

 Subsequent to the adjudication of findings and sentence, 

but prior to the convening authority’s action, information came 

to the attention of defense counsel regarding the credibility of 

a key prosecution witness. Based upon this information, the 

post-trial submissions by the defense to the convening authority 

under Rule for Court-Martial (R.C.M.) 1105 included a request 

for a rehearing pursuant to R.C.M. 1107(c)(2)(B). 

 The convening authority’s decision to deny the defense 

request provides the focus for the present appeal. To place the 

appellate consideration of these matters in context, Part A 

describes the pertinent testimony at trial. Part B describes 

the post-trial proceedings, including the defense request for a 

new trial, the recommendation by the SJA, and the action by the 

convening authority. 

A. TRIAL PROCEEDINGS 

1. The prosecution’s primary witnesses

The prosecution relied primarily on three witnesses to 

establish the essential facts on the underlying charges: 

Officer Ryan Freeman, a civilian law enforcement official who 

investigated the allegations in the immediate aftermath of 

the alleged rape; a neighbor, Daniel Yarbrough; and the 

complainant, TB. 
United States v. Hull, No. 11-0131/AF 

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Officer Freeman testified that on the night of the 

incident, he responded to a call indicating that a rape had 

taken place at an apartment complex near Hill Air Force Base, 

Utah. Officer Freeman stated that he obtained statements from 

TB and her friend, Jessica Hutchison. Over defense objection, 

the military judge permitted Officer Freeman to relate details 

of the statements provided to him by TB and Ms. Hutchison on the 

theory that the statements constituted excited utterances under 

Military Rule of Evidence 803(2). 

According to Officer Freeman, Ms. Hutchison related the 

following information in her verbal statement. On the night of 

the incident, she had spent the evening in the apartment with TB 

and Appellant. TB told Ms. Hutchison that her boyfriend was 

coming over to pick her up, and TB went into her bedroom to 

change clothes. Ms. Hutchison subsequently heard some noises 

coming from TB’s room. When she entered TB’s bedroom to 

investigate, she saw TB with her face on the bed, repeating the 

word “No.” Appellant, who was naked from the waist down, was 

positioned on top of TB. Upon this discovery, Ms. Hutchison ran 

to the apartment of her neighbor in order to call the police. 

Ms. Hutchison told Officer Freeman that Appellant had “possibly 

raped” TB. In a written statement provided to Officer Freeman, 

Ms. Hutchison added that when she walked into TB’s room to 
United States v. Hull, No. 11-0131/AF 

5

investigate the noises, TB “was saying No No No” and Appellant 

“had her pinned down behind her raping her.” 

TB’s neighbor, Daniel Yarbrough, testified that at 

approximately 11:00 p.m., he heard a woman’s voice at his door 

“screaming hysterically.” He described it as a bloodcurdling 

scream” of “[h]elp me.” He opened the door and saw Ms. 

Hutchison, who was “topless,” being followed by Appellant, whose 

“pants were halfway on, half off.” According to Mr. Yarbrough, 

the two individuals at his door were screaming at each other. 

After he called 911 to report the altercation, he heard noises 

coming from TB’s apartment “like furniture being bumped around 

and . . . people struggling, fighting.” Subsequently, he 

entered the apartment, which he described as being in “disarray 

. . . like people had been messing around in there, fighting 

around in there.” He saw TB, who was crying. 

TB provided a similar description of the evening’s events. 

She stated that after entering her bedroom, Appellant proceeded 

to remove her clothes, push her on the bed, and rape her. 

2. The defense at trial

The defense took the position that TB and Appellant had 

engaged in consensual sexual activity, and that TB had not been 

truthful in claiming that she had been raped. The defense 

relied primarily upon the trial testimony of Ms. Hutchison, who 

had significantly revised her original account of the incident. 
United States v. Hull, No. 11-0131/AF 

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At the time of the incident, Ms. Hutchison was dating Appellant, 

had recently given birth to Appellant’s child, and had recently 

moved into TB’s apartment where she and her young child lived in 

TB’s living room. In contrast to her initial statement to 

Officer Freeman, Ms. Hutchison testified at trial that Appellant 

and TB “had been flirting that night,” and that she observed 

“what was about to be consensual sex” when she entered TB’s 

bedroom. 

At trial, Ms. Hutchison indicated that TB may have been 

motivated to make a rape allegation in response to Ms. 

Hutchison’s reaction upon seeing TB and Appellant in the 

bedroom. Ms. Hutchison described herself as a person who tends 

to “overreact.” She added that upon discovering Appellant and 

TB together in the bedroom, she became the angriest that she had 

“ever been.” When she confronted TB after the discovery, Ms. 

Hutchison “was very mad, very mad, and [she] was like . . . Was 

that rape?” At this point she described her demeanor as 

“hostile” towards TB, and testified that she “would have 

probably hit her or done something violent to her” if TB had 

informed her that the actions had in fact been consensual. In 

addition, because she was taller and larger than TB, it “would 

have been very easy, and I’m sure she knew it, for me to hurt 

her in some way.” 
United States v. Hull, No. 11-0131/AF 

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In response to questions at trial as to why she had changed 

her description of the events -- from an initial 

characterization of rape to her trial testimony of a consensual 

romantic encounter -- Ms. Hutchison testified that she had 

initially agreed with TB that a rape had occurred because she 

was “extremely mad” at Appellant and wanted him “to pay” for 

cheating on her. She stated that at the time “it was easier to 

believe that it was rape than that it was totally consensual, 

because then at that point it would mean that he had more or 

less betrayed my trust.” 

The defense also directly attacked TB’s credibility at 

trial. The defense sought to portray TB’s description of the 

alleged rape as lacking consistency from one telling to the 

next. In that regard, the defense focused on TB’s changing 

descriptions, over time, regarding the timeline of events, the 

location of her clothing, her positions on the bed, and 

Appellant’s actions. 

In response to the defense case, the Government relied 

primarily upon the evidence obtained on the night of the 

incident. The Government argued that Ms. Hutchison’s initial 

verbal and written statements, TB’s initial verbal and written 

statements, the testimony of TB’s neighbor, and Officer 

Freeman’s description of the evening’s events all led to the 

conclusion that Appellant had raped TB. In addition, the 
United States v. Hull, No. 11-0131/AF 

8

Government argued that Ms. Hutchison’s later contrary trial 

testimony lacked credibility. Specifically, the Government 

contended that Ms. Hutchison had “a motive to lie” and to 

protect Appellant because she continued to receive financial 

assistance from him. In support of this proposition, the 

Government noted that Appellant currently paid Ms. Hutchison’s 

gas, electric, garbage, sewer, and water bills, and also 

provided medical care, clothes, and toys for their young child. 

B. POST-TRIAL PROCEEDINGS 

1. The defense request for a new trial

On January 29, 2009, the military judge entered a finding 

of guilty on the charge that Appellant had raped TB. On March 

17, 2009, the SJA served on the defense the SJA’s recommendation 

to the convening authority under R.C.M. 1106, which recommended 

approval of the findings and sentence. 

The area defense counsel submitted a clemency request to 

the convening authority on April 9, 2009, requesting that the 

convening authority “set aside AB Hull’s conviction” or, in the 

alternative, “grant a new trial” because of “new evidence that 

was not available at trial.” Counsel attached an unsworn 

statement signed by Taycee Smith, dated April 8, 2009, which 

contained the following two paragraphs: 

1. I am Taycee Smith, a resident of the 

State of Utah. I worked at Citibank 

Financial with [TB] in October of 2008. I 
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knew [TB] from work. I am aware that [TB] 

claimed to have been raped by SSgt Shawn 

Hull. [TB] told me on two occasions that 

what happened between SSgt Hull and [TB] was 

not rape. [TB] stated that everything had 

been planned and that it was all consensual. 

2. I was not present with [TB] and SSgt 

Hull when the alleged rape occurred. I only 

know what [TB] told me afterwards. She did 

not tell me why she claimed that it was 

rape, she only told me that it was not rape, 

that what happened was consensual. 

Below her signature, Ms. Smith added the following handwritten 

note, followed by her initials: “Conrad Quick heard [TB] say 

this as well.” 

The defense submission offered the following background on 

the development of this information. According to defense 

counsel, Ms. Micaela Gonzalez, a defense witness, had informed 

Ms. Smith that Appellant had been found guilty of raping TB, at 

which time Ms. Smith told Ms. Gonzalez that TB had described the 

incident as consensual. Ms. Gonzalez relayed this information 

to Ms. Hutchison, who in turn informed the defense on March 23, 

2009, more than a month after the conclusion of trial. 

Defense counsel contended that the newly discovered 

evidence warranted relief because there was “no question [that] 

this evidence could have made a difference” at trial. According 

to the defense, the “only evidence that an actual rape occurred 

was [TB]’s testimony” at trial, and that even “without Ms. 

Smith’s new evidence, there were several problems with [TB]’s 
United States v. Hull, No. 11-0131/AF 

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testimony and her recollection of the event.” Defense counsel 

added that TB had “given multiple accounts as to what happened 

and they have all changed significantly from each other.” The 

defense counsel concluded by contending that with “Miss Smith’s 

new evidence to place [TB]’s testimonial inconsistencies in 

perspective, it is very likely that AB Hull would not be found 

guilty at all.” 

The senior defense counsel submitted a similar request to 

the convening authority. The senior defense counsel’s request 

asked the convening authority to “set aside the conviction” or, 

in the alternative, “order a rehearing (i.e., a new trial) 

pursuant to RCM 1107(c)(2)(B).” 

2. The Government’s inquiry

The Government sought to obtain further details regarding 

the information from Ms. Smith, but ran into difficulties. 

When trial counsel attempted to interview Ms. Smith, she proved 

uncooperative and evasive. Trial counsel made multiple 

unsuccessful attempts to call Ms. Smith, and left various 

messages that went unanswered. When he subsequently reached Ms. 

Smith by phone on April 14, 2009, she agreed to a short inperson interview at her home the next morning. When trial 

counsel showed up for the meeting the next day, however, Ms. 

Smith was not present. She did not respond to trial counsel’s 

ensuing phone calls. 
United States v. Hull, No. 11-0131/AF 

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On April 17, 2009, trial counsel was able to reach Ms. 

Smith by phone. He emphasized the importance of an interview in 

view of the consequences for SSgt Hull, who was facing a threeyear prison term. She declined to meet with the trial counsel, 

but agreed to address a few questions during the phone call. 

When the trial counsel asked Ms. Smith as to whether she had 

been truthful in her written statement, she said: “‘I don’t 

know how true the statement is. I didn’t believe it. I didn’t 

believe much of anything that [TB] or Jessica Hutchison said 

because every day the story changed.’” When trial counsel asked 

her to provide contact information for Conrad Quick, the other 

party mentioned in her statement, she responded: “‘I asked him 

if he heard [TB] say it and he said he must not have been paying 

attention at the time.’” She did not provide trial counsel with 

any contact information for Mr. Quick. In a subsequent phone 

call, she stated that she could not identify the date or 

location of her conversation with TB, other than noting that it 

was “at a party in Layton, likely during the month of Oct 08.” 

Ms. Smith also noted that TB had made a similar statement “in a 

restaurant in Roy, also in Oct 08.” 

Over the next three days, trial counsel again tried to 

contact Ms. Smith in an effort to compare Ms. Smith’s statement 

with TB’s statements. Ms. Smith, however, did not return his 

phone messages. At that point, trial counsel summarized the 
United States v. Hull, No. 11-0131/AF 

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developments in a memorandum entitled: “Attempted Witness 

Interview: Taycee Smith.” After setting forth the details of 

his efforts to contact Ms. Smith and her brief remarks to him, 

he concluded: 

Ms. Smith’s oral statement that she really 

didn’t believe what [TB] or Ms. Hutchison 

said, combined with her inability to recall 

the place or month of the conversation casts 

significant doubt on the credibility of her 

written statement. Her refusal to 

participate in an in-person interview, as 

well as her repeated failure to return phone 

calls also weakens the credibility of her 

written statement. 

3. The SJA’s addendum

On May 28, 2009, the SJA prepared an addendum to his 

recommendation to the convening authority under R.C.M. 

1106(f)(7). The addendum, which was served on the defense, 

addressed the defense request for a new trial, the trial 

counsel’s memorandum, and a sworn statement provided by TB on 

May 14, 2009. In the sworn statement, TB denied that she had 

ever told Ms. Smith that she had made false allegations against 

Appellant, adding: “I stand by the statements I made at SSgt 

Hull’s trial.” 

The SJA’s addendum described the discovery of the new 

evidence by the defense, the difficulties encountered by trial 

counsel in conducting the subsequent inquiry, the unwillingness 

of Ms. Smith to cooperate, and the nature of the information 
United States v. Hull, No. 11-0131/AF 

13

provided by Ms. Smith. Based on these considerations, the SJA 

advised the convening authority that “the credibility of her 

written statement should be considered by you.” The SJA also 

noted that TB had “remained completely cooperative, as well as 

firm and consistent in her statements and affidavit, contrasting 

the demeanor of the alleged new witness, Ms. Smith.” 

The SJA informed the convening authority that “Rule for 

Courts-Martial 1210(f)(1)(2)(3) states that a new trial may be 

granted only on grounds of newly discovered evidence or fraud in 

the court-martial. The rule further provides that: 

a new trial shall not be granted on the 

grounds of newly discovered evidence unless 

the petition shows that: the evidence was 

discovered after the trial; the evidence is 

not such that it would have been discovered 

by the petitioner at the time of trial in 

the exercise of due diligence; and the newly 

discovered evidence, if considered by a 

court-martial in the light of all other 

pertinent evidence, would probably produce a 

substantially more favorable result for the 

accused. 

Based on this standard and his analysis of the newly 

discovered evidence, the SJA informed the convening 

authority: 

The statements by the new witness Taycee 

Smith do fall within the parameters of RCM 

1210. However, the unwillingness of this 

witness to make herself available to be 

interviewed, the potential credibility 

issues of Ms. Smith . . . and the fact that 

the court members had substantial 

opportunity to assess the victim’s 
United States v. Hull, No. 11-0131/AF 

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credibility, all give compelling reasons to 

uphold the conviction and finding of the 

Court. 

In that context, the SJA recommended against granting a new 

hearing. 

4. The defense response to the SJA’s addendum

In defense counsel’s June 9, 2009, response to the SJA’s 

addendum, the defense reiterated its request that the convening 

authority either set aside the findings or order a new trial. 

Defense counsel contended that it “is clear that [Ms. Smith] 

wants no part of this process.” The defense added that this 

circumstance “does not mean that [Ms. Smith] is in any way 

untruthful in what she told both me and the government 

representative,” as she “has absolutely no reason to lie and has 

in fact told the same facts to both sides.” Counsel further 

argued that the information Ms. Smith “possesses is vital for 

finding the truth,” and that one “of the benefits of a new 

trial, is that Ms. Smith can be compelled to cooperate.” 

According to the defense, “[i]n the trial process, she can be 

made to appear to testify or even to provide a deposition. No 

such power to compel her cooperation exists in these post trial 

proceedings.” 

5. The second addendum and the convening authority’s action

On June 10, 2009, the SJA provided the convening authority 

with a further addendum, stating that he “still find[s] no 
United States v. Hull, No. 11-0131/AF 

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compelling reason” to set aside Appellant’s conviction or order 

a rehearing. On June 11, 2009, the convening authority took 

action, approving Appellant’s adjudged sentence, thereby denying 

his request to set aside the conviction or grant a new trial. 

II. DISCUSSION 

A. THE SCOPE OF POST-TRIAL ACTION BY A CONVENING AUTHORITY 

 A convening authority is authorized “to modify the findings 

and sentence of a court-martial” as “a matter of command 

prerogative involving the sole discretion of the convening 

authority.” Article 60(c)(1), UCMJ, 10 U.S.C. § 860(c)(1); see

R.C.M. 1107(b)(1). When taking action on the results of trial, 

the convening authority may order a rehearing “as to some or all 

offenses of which findings of guilty were entered and the 

sentence, or as to sentence only.” R.C.M. 1107(e)(1)(A). 

 In practical terms, a rehearing in full ordered by a 

convening authority under Article 60 involves the same trialstage procedures as a new trial ordered by the Judge Advocate 

General or appellate courts under Article 73, UCMJ, 10 U.S.C. § 

873. See R.C.M. 810. The convening authority’s power to order 

a rehearing under Article 60, however, differs in a number of 

significant respects from the authority to order a new trial 

under Article 73 by the Judge Advocate General and appellate 

courts. A petition under Article 73 may be submitted at “any 
United States v. Hull, No. 11-0131/AF 

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time within two years after approval by the convening authority 

of a court-martial sentence . . . on the grounds of newly 

discovered evidence or fraud on the court,” and is subject to 

the standards and criteria set forth in R.C.M. 1210. By 

contrast, the convening authority, who may order a full or 

partial rehearing when taking post-trial action on the case as a 

matter of command prerogative, is not limited by the standards 

and criteria of Article 73 and R.C.M. 1210. See Article 60, 

UCMJ; R.C.M. 1107. 

 In view of the potential impact of newly discovered 

evidence on appellate consideration of a case, the SJA or the 

convening authority may find it useful to apply Article 73 and 

R.C.M. 1210 criteria as a means of addressing such information 

early in the post-trial process. The convening authority, 

however, is not obligated to apply those criteria in exercising 

command prerogative powers under Article 60. 

 In the course of considering action under Article 60 in the 

face of newly discovered evidence, the convening authority has 

options other than considering a rehearing on the findings and 

sentence. The convening authority also has the power to address 

post-trial developments by returning the record for a limited 

post-trial hearing before the military judge under Article 

39(a), UCMJ, 10 U.S.C. § 839(a). See R.C.M. 1102(b)(2) 

(authorizing a hearing “for the purpose of inquiring into, and, 
United States v. Hull, No. 11-0131/AF 

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when appropriate, resolving any matter that arises after trial 

and that substantially affects the legal sufficiency of any 

findings of guilty or the sentence”). 

 In the present case, the defense asked the convening 

authority to either dismiss the charges or order a rehearing in 

full. The defense did not ask the convening authority to return 

the case to the military judge for a hearing under Article 39(a) 

to resolve any of the post-trial issues under R.C.M. 1102(b)(2). 

On appeal, the defense contends: (1) that the SJA provided the 

convening authority with erroneous legal advice when he 

recommended that the convening authority not order a new trial; 

and (2) that the convening authority erred in not ordering a new 

trial after the SJA noted that the defense request “f[ell] 

within the parameters” of the new trial standards under 

R.C.M. 1210. 

 B. THE STAFF JUDGE ADVOCATE’S ADVICE AND THE CONVENING 

AUTHORITY’S ACTION 

 Prior to acting on the results of a general court-martial 

and certain special courts-martial, the convening authority must 

consider the SJA’s recommendation prepared under R.C.M. 1106. 

See Article 60(d), UCMJ. Although the SJA “is not required to 

examine the record for legal errors,” the SJA must state whether 

“corrective action on the findings or sentence should be taken 

when an allegation of legal error is raised in matters submitted 
United States v. Hull, No. 11-0131/AF 

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[by the defense] under R.C.M. 1105 or when otherwise deemed 

appropriate by the staff judge advocate.” R.C.M. 1106 (d)(4). 

The SJA’s response to legal errors raised by the defense “may 

consist of a statement of agreement or disagreement with the 

matter raised by the accused.” Id. “An analysis or rationale 

for the staff judge advocate’s statement, if any, concerning 

legal errors, is not required.” Id. Although not required, an 

analysis of legal issues raised by the defense may facilitate 

resolution of legal issues at the trial level, thereby 

conserving appellate resources. See United States v. Taylor, 60 

M.J. 190, 195 (C.A.A.F. 2004) (noting that “[b]ecause the 

defense submission included allegations of legal error, the 

staff judge advocate’s advice to the convening authority was 

particularly important”). 

 In the present case, the defense submitted a post-trial 

request for a rehearing invoking the new trial criteria of 

R.C.M. 1210. The SJA proceeded to address the defense request 

on the terms raised by the defense. In that context, it was not 

inappropriate for the SJA to apply the criteria set forth in 

R.C.M. 1210 by analogy to the rehearing request. Cf. United 

States v. Scaff, 29 M.J. 60, 65-66 (C.M.A. 1989) (noting the 

propriety of utilizing R.C.M. 1210 criteria in the post-trial 

setting while examining newly discovered evidence in the context 

of an Article 39(a) session). Although the SJA might have added 
United States v. Hull, No. 11-0131/AF 

19

further information concerning the distinction between a “new 

trial” ordered during appellate review under Article 73, and a 

“rehearing” ordered by a convening authority under Article 60, 

omission of that information did not constitute error in the 

context of the defense request in the present case. In that 

regard, we note that the defense, which has not raised that 

distinction in the present appeal, has persisted in treating the 

present case as involving the criteria for a new trial under 

Article 73 and R.C.M. 1210. 

 In his advice to the convening authority, the SJA 

focused primarily upon the vague nature of Ms. Smith’s 

unsworn oral and written statements, as well as her 

failure to cooperate when the Government attempted to 

further investigate the matter. The SJA concluded 

that: 

the unwillingness of [Ms. Smith] to make 

herself available to be interviewed, the 

potential credibility issues of Ms. Smith . 

. . , and the fact that the court members 

had substantial opportunity to assess the 

victim’s credibility, all give compelling 

reasons to uphold the conviction and finding 

of the Court. 

In the defense post-trial submissions, and on appeal, 

the defense contends that any difficulty in obtaining 

information regarding the details of Ms. Smith’s 

account or the credibility of her statements could 
United States v. Hull, No. 11-0131/AF 

20

have been resolved by setting aside the findings and 

ordering a new trial, which would then have the power 

to compel her attendance by subpoena. 

 This Court has emphasized that “requests for a new trial, 

and thus rehearings and reopenings of trial proceedings, are 

generally disfavored,” and are “granted only if a manifest 

injustice would result absent a new trial, rehearing, or 

reopening based on proffered newly discovered evidence.” United 

States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). The defense 

has not contested the validity of the trial counsel’s memorandum 

regarding the difficulties in obtaining information from Ms. 

Smith, nor has the defense presented a sworn statement from Ms. 

Smith or any corroborating evidence. Most important, the 

defense -- having been informed of the SJA’s negative view of 

the defense request due to the vagueness of the information and 

related matters -- did not ask the convening authority to order 

a post-trial Article 39(a) session for the purpose of compelling 

Ms. Smith or any other witnesses to appear and give sworn 

testimony. In the absence of a defense request for a post-trial 

Article 39(a) session, and in light of the vague nature of the 

unsworn information provided by the defense, the SJA was not 

obligated to inform the convening authority as to the 

possibility of ordering such a hearing. See United States v. 
United States v. Hull, No. 11-0131/AF 

21

Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998); United States v. 

Begnaud, 848 F.2d 111, 113 (8th Cir. 1988). 

 In addition to contending that the SJA erred, the defense 

also contends that the convening authority erred by not relying 

upon that portion of the SJA’s advice which noted that the newly 

discovered evidence “fall[s] within the parameters of RCM 1210.” 

Although the phrase highlighted by the defense could be viewed 

as favorable to Appellant’s position on appeal, it would be 

inappropriate to focus on this phrase in isolation without 

considering the remainder of the SJA’s advice in context. When 

viewing the SJA’s recommendation in its entirety, it is apparent 

that the SJA did not take the position that a new trial was 

required under the criteria set forth in R.C.M. 1210. Instead, 

the recommendation makes clear that the SJA was advising the 

convening authority that the defense evidence could be 

considered under the criteria of R.C.M. 1210, and that the 

nature of the evidence did not warrant a new trial under those 

criteria. 

 Under the circumstances of this case, particularly the 

nature of the defense’s newly discovered evidence and the 

absence of a defense request for a post-trial Article 39(a) 

session, the SJA did not misadvise the convening authority. 

Likewise, the convening authority did not abuse her discretion 

in approving the findings and sentence. 
United States v. Hull, No. 11-0131/AF 

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III. CONCLUSION 

 The decision of the United States Air Force Court of 

Criminal Appeals is affirmed.