United States v. Cook, ACM 2016-18

Background

Petitioner (Air Force member) was convicted at a general court-martial of sexual assault (Article 120, UCMJ) and sentenced to dishonorable discharge, 18 months confinement, reduction to E‑1, and forfeitures (some later disapproved by convening authority).
The Government’s case emphasized that the victim (TSgt LT) would not have consented because she had been monogamous with her husband and suffered painful intercourse from a medical condition; credibility of the victim was central to the findings.
Defense had rumors of a prior extramarital affair by TSgt LT with a former airman (Mr. PS) but, despite due diligence, could not locate or corroborate the rumor before trial.
After trial, Defense and Government discovered and interviewed Mr. PS; he provided an affidavit and later testimony admitting multiple sexual encounters with TSgt LT during a 2006 TDY, directly contradicting her prior denials.
Defense moved for a post‑trial Article 39(a) session and a new trial based on newly discovered evidence and alleged fraud on the court; the military judge held a post‑trial session where Mr. PS and other witnesses testified corroborating the affair.
The Court of Criminal Appeals reviewed the petition de novo and concluded the newly discovered evidence was noncumulative impeachment evidence bearing on the dispositive issue (victim credibility), and that a new trial was warranted; findings and sentence were set aside and the case returned to TJAG.

Issues

Issue	Petitioner’s Argument	Government’s Argument	Held
Whether newly discovered evidence (post‑trial affidavit/testimony from Mr. PS that victim had an extramarital affair) warrants a new trial	Mr. PS’s evidence was discovered after trial, not discoverable earlier with due diligence, and would probably produce a substantially more favorable result because it impeaches the victim’s credibility on consent	Government conceded discovery of Mr. PS post‑trial but opposed new trial; argued trial counsel and defense had investigated and defense had opportunity before trial	Granted: Court found defense exercised due diligence, evidence noncumulative and highly impeaching of the victim on the dispositive issue; a new trial was warranted
Whether the defense’s pretrial investigation was deficient (ineffective assistance) for failing to locate/call Mr. PS	Defense argued they diligently investigated rumors and could not locate Mr. PS despite reasonable efforts; thus no ineffective assistance	Government argued investigative efforts occurred and some witnesses had contact info but did not provide it earlier	Court found defense exercised requisite due diligence; ineffective assistance claim not necessary to resolve because new evidence alone warranted relief
Whether fraud on the court by the victim (perjured testimony/concealment) requires relief	Petitioner alleged victim committed fraud by denying the affair at trial	Government disputed or did not concede fraud claim	Court did not need to resolve fraud claim because newly discovered evidence alone justified granting a new trial

Key Cases Cited

United States v. Harris, 61 M.J. 391 (C.A.A.F. 2005) (post‑trial evidence considered in de novo review of new‑trial petition)
United States v. Bacon, 12 M.J. 489 (C.M.A. 1982) (discretion of authority considering petition for new trial; appellate weighing of testimony)
United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011) (standards for newly discovered evidence and believability threshold)
United States v. Johnson, 61 M.J. 195 (C.A.A.F. 2005) (newly discovered evidence standard under R.C.M. 1210)
United States v. Hull, 70 M.J. 145 (C.A.A.F. 2011) (new‑trial petitions disfavored; granted only to avoid manifest injustice)
United States v. Williams, 37 M.J. 352 (C.M.A. 1993) (importance of impeachment evidence affecting credibility in sexual‑assault cases)
United States v. Evans, 26 M.J. 550 (A.C.M.R. 1988) (appellate factfinding and limits on discretion)