IN THE CASE OF 

UNITED STATES, Appellee 

v. 

Javier SANTOS, Sergeant 

U.S. Army, Appellant 

No. 03-0093 

Crim. App. No. 9900559 

United States Court of Appeals for the Armed Forces

Argued October 21, 2003 

Decided March 23, 2004 

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

GIERKE, BAKER, and ERDMANN, JJ., joined. CRAWFORD, C.J., filed 

an opinion concurring in the result. 

Counsel

For Appellant: Captain Michael L. Kanabrocki (argued); Colonel 

Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and 

Major Sean S. Park (on brief); Lieutenant Colonel E. Allen 

Chandler, Jr., Major Jeanette K. Stone, and Captain Linda A. 

Chapman. 

 

For Appellee: Captain Timothy Litka (argued); Colonel Lauren B. 

Leeker, Lieutenant Colonel Margaret B. Baines, and Major 

Theresa A. Gallagher (on brief). 

 

Military Judges: R. J. Hough and S. R. Henley 

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
United States v. Santos, No. 03-0093/AR 

2

Judge EFFRON delivered the opinion of the Court. 

At a general court-martial composed of a military judge 

sitting alone, Appellant was convicted, pursuant to mixed pleas, 

of one specification of violation of a lawful order, two 

specifications of assault consummated by a battery, five 

specifications of aggravated assault, one specification of 

communicating a threat, one specification of indecent assault, 

and one specification of kidnapping, in violation of Articles 

92, 128, and 134, Uniform Code of Military Justice [hereinafter 

UCMJ], 10 U.S.C. §§ 892, 928 and 934 (2000). He was sentenced 

to a dishonorable discharge, confinement for 10 years, total 

forfeitures, and reduction to Private E-1. The convening 

authority approved these results and provided Appellant with 181 

days of pretrial confinement credit against the sentence. The 

Court of Criminal Appeals affirmed in an unpublished summary 

opinion. 

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

issue:

WHETHER THE ARMY COURT OF CRIMINAL APPEALS 

ERRED IN RULING THAT THE GOVERNMENT DID NOT 

VIOLATE PETITIONER'S DUE PROCESS RIGHTS 

UNDER BRADY v. MARYLAND, THE CONFRONTATION 

CLAUSE OF THE SIXTH AMENDMENT TO THE 

CONSTITUTION, AND ARTICLE 46 OF THE UCMJ BY 

FAILING TO DISCLOSE EXCULPATORY, FAVORABLE 

AND MATERIAL EVIDENCE TO THE DEFENSE WHICH 

IT KNEW ABOUT OR SHOULD HAVE KNOWN ABOUT 

WHERE THE PROSECUTION WITHHELD CRITICAL 

IMPEACHMENT EVIDENCE THAT WOULD HAVE PROVEN 
United States v. Santos, No. 03-0093/AR 

3

THAT [Ms. AM] NOT ONLY COMMITTED PERJURY AT 

TRIAL, BUT THAT SHE ALSO HAD STRONG BIASES, 

PREJUDICES, AND MOTIVES TO FABRICATE THE 

CHARGE AGAINST PETITIONER. 

 For the reasons set forth below, we hold that any error 

with respect to discovery was not prejudicial, and therefore 

affirm. 

I. BACKGROUND 

A. FACTUAL SETTING 

1. Testimony at the Article 32 hearing

The granted issue concerns the charge that Appellant 

committed an indecent assault against Ms. AM. At a pretrial 

investigation hearing under Article 32, UCMJ, 10 U.S.C. § 832 

(2000), testimony by Ms. AM included the following matters. She 

dated Appellant at various times in 1997, and she was with 

Appellant at her mother’s house on a night in the late summer. 

When he sought to engage in sexual intercourse with her, she 

rebuffed him. Despite her repeated requests that he stop, he 

performed an act of oral sodomy on her. He then pulled down his 

pants, lay on top of her, touched his penis to her vagina, and 

attempted to penetrate her while she pleaded with Appellant to 

stop. When he did not respond, she pinched him, and she was 

able to extricate herself from the situation. Based upon this 
United States v. Santos, No. 03-0093/AR 

4

information, an indecent assault charge was added to the 

original charges against Appellant. 

2. Defense discovery requests

Defense counsel’s initial discovery request, submitted to 

the trial counsel on February 19, 1999, included the following: 

Any known evidence tending to diminish [the] 

credibility of any witness including . . . 

evidence of other character, conduct, or 

bias bearing on witness credibility under 

M.R.E. 608 . . . Specifically[,] information 

pertaining to . . . Ms. [AM] . . . . The 

defense also requests any other evidence in 

the possession of the government favorable 

to the accused, or tends [sic] to negate the 

guilt of the accused of an offense charged, 

or reduce the punishment for an offense 

charged. 

 On April 7, 1999, defense counsel submitted a supplemental 

discovery request to obtain: 

Any and all statements made by [Ms. AM]. 

Specifically[,] all sworn statements made by 

[Ms. AM] to CID [the Army Criminal 

Investigations Command (CID)] concerning the 

investigation into the death of PFC Chaffin 

[sic]. 

During the CID investigation noted in the discovery request, the 

CID agents at one point treated Appellant as a suspect in the 

death of Private First Class (PFC) Jason Chafin. Eventually, 

however, charges were brought against two other service members, 

and Appellant was not charged in connection with the death of 

PFC Chafin. 
United States v. Santos, No. 03-0093/AR 

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3. The Government’s response to the discovery requests

 The Government, in response to the foregoing requests, 

provided defense counsel with two documents. The first 

document, a report by the Colorado Springs Police Department, 

contained a detective’s summary of an interview with Ms. AM on 

February 3, 1998. According to the summary, Ms. AM stated that 

when she met Appellant in early 1997, they were only friends, 

and she did not consider herself to be his girlfriend. They 

fell out of touch, but he started contacting her again towards 

the end of the summer. The summary primarily addressed events 

on August 29, 1997, the evening that PFC Chafin disappeared. 

During the interview, Ms. AM denied seeing Appellant or his 

friends that evening. When she returned home after the 

interview, Ms. AM called the investigator to state that she 

remembered more details. Specifically, she recalled that she 

saw Appellant and his friend, Specialist (SPC) Neal Johnson, on 

August 29, 1997, when they came to a friend’s apartment that 

evening at approximately seven o’clock, but that they left no 

longer than five minutes later. 

 The second document, a sworn statement given by Ms. AM to 

the CID on February 9, 1999, concerned the allegation that 

Appellant had indecently assaulted her in the summer of 1997. 

In the statement, Ms. AM said that Appellant “often ask[ed her] 
United States v. Santos, No. 03-0093/AR 

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to marry him and to have sexual intercourse with him, which 

[she] never did.” With respect to the night in question, Ms. Am 

stated that after Appellant arrived at her mother’s residence, 

they went into Ms. AM’s bedroom. Appellant kissed her and asked 

to have sexual intercourse, to which she said no. He pushed her 

down, took off her pajama pants, pulled down his pants and 

attempted penetration of her vagina. When he did not respond to 

her requests to stop, she pinched him so that she could 

extricate herself. She was able to do so, and the assault 

ceased. In her sworn statement, Ms. AM did not mention the act 

of oral sodomy that had been discussed during her testimony at 

the Article 32 hearing. 

4. Consideration of the indecent assault charge at trial

 At trial, Ms. AM testified that she did not consider their 

relationship to be that of boyfriend and girlfriend. Although 

she kissed Appellant on occasion, she did not allow their 

interaction to proceed further in terms of sexual contact. 

Appellant repeatedly expressed his desire to marry her prior to 

his pending deployment to Kuwait, and he sought to induce her to 

marry him promising to leave his car with her if they wed. She 

testified that she told him that they should “just wait, wait 

‘till he got back.” 

 With respect to the indecent assault allegation, Ms. AM 

testified that Appellant repeatedly attempted to engage her in 
United States v. Santos, No. 03-0093/AR 

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sexual contact, she eventually allowed him to remove her pajama 

pants. At that time, he performed an act of oral sodomy on her 

without her consent. The balance of her testimony provided a 

description of the incident similar to her testimony at the 

Article 32 hearing and her statement to the CID. She added that 

she first told the CID about the alleged indecent assault in 

January 1998 during the CID’s investigation into PFC Chafin’s 

disappearance. According to Ms. AM, the CID agents asked her 

about Appellant’s character, and she told them about the alleged 

assault. 

 During cross-examination, defense counsel relied upon both 

of the documents obtained during discovery. Defense counsel 

first called her attention to the summary of her interview with 

the Colorado Springs Police Department, which concerned the 

disappearance of PFC Chafin. Defense counsel noted that the 

interview summary contained no claim by Ms. AM that she had been 

sexually assaulted by Appellant. Defense counsel suggested that 

the summary contradicted her statement on direct examination 

that she had reported the alleged indecent assault to 

authorities investigating PFC Chafin’s disappearance. 

 Defense counsel then used the second document, the sworn 

statement given by Ms. AM to the CID, in an effort to impeach 

her credibility. Counsel contrasted her testimony at trial with 

her earlier sworn statement. At trial, she stated that 
United States v. Santos, No. 03-0093/AR 

8

Appellant had performed an act of oral sodomy on her during the 

evening in question, but the sworn statement did not mention 

oral sodomy. 

 During the defense case, Appellant testified on his own 

behalf. He stated that during his relationship with Ms. AM, he 

did not engage in any sexual activity, including oral sodomy. 

He further testified that although he did see Ms. AM during 

Labor Day weekend in 1997, he was dating another individual 

exclusively. He added that his military duties during the 

latter part of the summer had kept him away from the area while 

his unit was performing field exercises. 

 Appellant expressly disputed Ms. AM’s statement that he 

wanted to marry her. He testified that Ms. AM wanted to engage 

in a sham marriage so that she could move out of her mother’s 

home. According to Appellant, Ms. AM attempted to persuade him 

to marry her by telling him that he would receive extra 

compensation as a married soldier. She assured him that they 

could live in separate rooms, he could still date other women, 

and she would take care of his car while he was in Kuwait. 

 Appellant also testified that during his deployment in 

Kuwait, he received letters from Ms. AM. He stated that the 

letters, which were not produced at trial, contained an apology 

from Ms. AM for not telling the truth when she told law 

enforcement that Appellant was not present at her friend’s 
United States v. Santos, No. 03-0093/AR 

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apartment on the night that PFC Chafin was murdered. According 

to Appellant, she also stated that she wanted to have a 

relationship with Appellant when he returned from Kuwait. 

 During his closing argument on findings, trial counsel 

portrayed Ms. AM as a reluctant witness, who had “no vendetta” 

against Appellant. The prosecution theme was that she had 

simply provided information to law enforcement officials who 

asked her about Appellant during their investigation of an 

unrelated case, PFC Chafin’s disappearance. Defense counsel’s 

closing statement sought to portray Ms. AM as untruthful and 

focused on the lengthy period of time that elapsed between the 

alleged incident and her statements to law enforcement 

authorities. At the conclusion of the arguments, the military 

judge deliberated, and entered findings that convicted Appellant 

of a number of charges and acquitted him of others. Appellant 

was convicted of the charge that he indecently assaulted Ms. AM. 

5. Post-Trial Developments

 After the trial was concluded, Appellant asked the CID to 

provide him with documents related to the investigation of his 

case. The CID response included a number of documents generated 

in connection with the disappearance of PFC Chafin, a crime that 

was not the subject of charges in the present case. The 

documents from the Chafin investigation had not been included in 
United States v. Santos, No. 03-0093/AR 

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the prosecution’s response to the defense discovery requests in 

the present case. 

 In this appeal, Appellant contends that six of the 

documents that he received after the trial would have enabled 

him to undermine the credibility of Ms. AM at trial. Appellant 

further contends that failure to provide those document’s during 

discovery requires reversal of the indecent assault conviction. 

We shall first summarize the legal standards applicable to 

review of discovery issues, and then apply those standards to 

the documents at issue in this appeal. 

II. DEFENSE DISCOVERY IN THE MILITARY JUSTICE SYSTEM 

 The military justice system provides for broader discovery 

than required by practice in federal civilian criminal trials. 

See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F. 

1999). Article 46, UCMJ, 10 U.S.C. § 846 (2000), mandates that 

“[t]he trial counsel, the defense counsel, and the court-martial 

shall have equal opportunity to obtain witnesses and other 

evidence in accordance with such regulations as the President 

may prescribe.” The President has implemented Article 46 in 

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

 R.C.M. 701(a)(2)(A) requires the Government, upon defense 

request, to allow inspection of any tangible objects, such as 

papers and documents, that “are within the possession, custody, 
United States v. Santos, No. 03-0093/AR 

11

or control of military authorities, and which are material to 

the preparation of the defense.” Regardless of whether the 

defense has made a request, the Government is required to 

disclose known evidence that “reasonably tends to” negate or 

reduce the degree of guilt of the accused or reduce the 

punishment that the accused may receive if convicted. See

R.C.M. 701(a)(6); see also Williams, 50 M.J. at 440 (noting that 

R.C.M. 701(a)(6) implements the disclosure requirements of Brady 

v. Maryland, 373 U.S. 83 (1963)). Evidence that could be used 

at trial to impeach witnesses is subject to discovery under 

these provisions. See United States v. Watson, 31 M.J. 49, 54 

(C.M.A. 1990)(citing Giglio v. United States, 405 U.S. 150 

(1972)). 

 If the Government fails to disclose discoverable evidence, 

the error is tested on appeal for prejudice, which is assessed 

“in light of the evidence in the entire record.” United States 

v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)). As a general matter, 

when an appellant has demonstrated error with respect to 

nondisclosure, the appellant will be entitled to relief only if 

there is a reasonable probability that there would have been a 

different result at trial if the evidence had been disclosed. 

When an appellant has demonstrated that the Government failed to 

disclose discoverable evidence with respect to a specific 

request or as a result of prosecutorial misconduct, the 
United States v. Santos, No. 03-0093/AR 

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appellant will be entitled to relief unless the Government can 

show that nondisclosure was harmless beyond a reasonable doubt. 

See United States v. Roberts, ___ M.J. ___ (C.A.A.F. 2004). 

 

III. DISCUSSION 

 Under the standards set forth in Roberts and the cases 

cited therein, an appellate court may resolve a discovery issue 

without determining whether there has been a discovery violation 

if the court concludes that the alleged error would not have 

been prejudicial. For purposes of this appeal, we shall assume 

without deciding: (1) that the documents at issue were material 

to the preparation of the defense and should have been disclosed 

in response to the discovery request; and (2) that failure to do 

so should be tested for prejudice on appeal under the harmless 

beyond a reasonable doubt standard. The documents at issue were 

generated by the CID during investigation of PFC Chafin’s 

disappearance. That investigation did not result in charges 

against Appellant, either with respect to PFC Chafin’s 

disappearance or with respect to his relationship with Ms. AM. 

The documents do not directly address the allegation that 

Appellant indecently assaulted Ms. AM. 

 The first document cited by the defense is a redacted CID 

report dated September 21, 1998, summarizing an interview of Ms. 

AM. According to the summary: 
United States v. Santos, No. 03-0093/AR 

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[Ms. AM] was using [Appellant] for his 

vehicle but they did not have sexual 

relations. [Ms. AM] and [Appellant] talked 

about getting married so she could get out 

of her house and receive the extra money 

that spouses receive from the Army. 

[Ms. AM] would drive [Appellant’s] vehicle a 

lot . . . but never would have sex with 

[Appellant]. 

[Ms. AM] mentioned [Appellant] has a lot . . 

. of money everytime [sic] they were around 

each other. 

This document is largely cumulative of other information 

available to Appellant at trial. In view of Appellant’s 

knowledge of his relationship with Ms. AM, as reflected in his 

testimony at trial, as well as his ability to establish that she 

had not made a timely report of the sexual assault allegations, 

the additional value of this document was minimal. To the 

extent that the document addressed the issue of whether Ms. AM 

or Appellant was telling the truth at trial as to who initiated 

the discussion of marriage, the summary is ambiguous at best. 

In any case, it is unlikely that the military judge, as factfinder, would have found it necessary to resolve this collateral 

issue in the course of adjudicating the indecent assault charge 

under the circumstances of this case, particularly where the 

defense did not rely upon consent. 

The second set of documents includes five items regarding 

Appellant’s whereabouts on the night PFC Chafin disappeared. 
United States v. Santos, No. 03-0093/AR 

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Two documents are redacted copies of CID reports, summarizing 

interviews with Ms. AM. Both indicate that Ms. AM had been at 

the apartment of a friend that night, and that neither Appellant 

nor his friend, SPC Johnson, had come to the apartment. A third 

document summarizes an agent’s re-interview of Ms. AM, after she 

had acknowledged that Appellant had been at the apartment. The 

summary notes that in the third interview, Ms. AM said that 

Appellant had told her to tell the CID that he had not been at 

the apartment. The summary contains the agent’s notation that 

either Appellant or Ms. AM was not telling the truth, and it 

contains a marginal notation, “Mention Reward.” The other two 

documents contain statements by SPC Johnson, who indicated that 

he was with Appellant on the day in question and that they were 

at the apartment for some period of time at some point. The 

statements are rambling and lacking in detail, reflecting the 

impact of an apparently substantial quantity of alcoholic 

beverages consumed by SPC Johnson during that day. 

The fact that Ms. AM had provided inconsistent statements 

to law enforcement officials about the evening in question was 

already known to the defense at trial, as reflected in other 

information provided during discovery and Appellant’s own 

testimony. It is unlikely that the brief summaries and SPC 

Johnson’s vague recollections would have enabled the military 

judge -- had he been inclined to do so -- to sort out what 
United States v. Santos, No. 03-0093/AR 

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happened on the night PFC Chafin disappeared. In any case, the 

military judge, as fact-finder, was well aware that Ms. AM had 

provided inconsistent information to law enforcement officials 

on that matter. Because that question had no more than a 

remote, collateral connection to the alleged indecent assault, 

the additional ambiguous information in the CID summaries and 

SPC Jonson’s statements would not have had significant impact on 

the military judge’s adjudication of the findings. 

The review of discovery violations involves case-specific 

considerations. In another case, undisclosed documents from an 

unrelated investigation that cast doubt on the credibility of a 

witness might have greater value. In the present case, in light 

of the minimal probative value and utility of the undisclosed 

documents at issue, and in light of all the evidence presented 

in the record, we hold that any error in not providing these 

documents to Appellant during discovery was harmless beyond a 

reasonable doubt. 

DECISION 

 The decision of the United States Army Court of Criminal 

Appeals is affirmed. 
United States v. Santos, No. 03-0093/AR 

CRAWFORD, Chief Judge (concurring in the result): 

 See my separate opinion in United States v. Roberts, 

___ M.J. ___ (C.A.A.F. 2004)(concurring in the result).