United States v. StellatoUnited States v. Stellato
For Appellee: Captain Janae M. Lepir (argued); Colonel John P. Carrell and Major A.G. Courie III.
Judge OHLSON delivered the opinion of the Court.*
The accused1 was charged with sexually assaulting his young daughter on various occasions over the course of a one-and-a-half-year period. More than a year after charges were preferred, the military judge dismissed the charges with prejudice because of discovery violations, finding that the trial counsel‘s failure to provide discovery was “continual and egregious,” the trial counsel‘s approach to discovery was “recklessly cavalier,” and the trial counsel‘s actions constituted “an almost complete abdication of discovery duties.” Following the Government‘s appeal under
I. BACKGROUND
A. The Investigations
The accused, a reservist recalled to active duty, was a major assigned to the 348th Military Police Battalion, Fort Bliss, during the times relevant to this case. In May 2009, the accused‘s wife, Mrs. MS, made a complaint to the Allen County, Indiana, Sheriff‘s Department that the accused had molested their daughter, Miss MS,2 between 2007 and 2009. Miss MS was between two and four years old during this period of time. In a series of e-mails with Mrs. MS dated between May and July 2009, the accused denied the sexual assault allegations. Mrs. MS retained copies of these e-mails.
While investigating the accusations, the Sheriff‘s Department seized a plastic banana from Mrs. MS‘s home that was allegedly used in the sexual assaults. Also, Miss MS was forensically interviewed, and she began to see counselors, mental health providers, and medical providers. Mental health professionals also examined Mrs. MS. One of these professionals, Dr. Fred Krieg, evaluated both Mrs. MS and the accused for child custody proceedings, took notes of the exam, and wrote a report. In his report, Dr. Krieg wrote that it was inconclusive “[w]hether Miss MS ... was sexually abused or not” by any person. In regard to the accused, Dr. Krieg noted that “there is no evidence at this point that [the Accused] sexually abused his child.”
In May 2012, Mrs. MS reported to the Army‘s Criminal Investigation Division (CID) at Fort Bliss that the accused had sexually assaulted Miss MS over the course of several years. During CID‘s investigation, Miss MS asserted that Miss LRE (who was approximately the same age as, and a friend of, Miss MS) was present during the accused‘s alleged sexual assaults and had also been molested by the accused. At the time of this May 2012 sexual assault report, the accused was deployed to Afghanistan.
Because of these allegations, the accused was redeployed to Fort Bliss in November 2012. From the date of his redeployment and throughout the pendency of the criminal investigation and court-martial, the command placed the accused under restrictions, which
In December 2012, the CID investigators reported their findings to the trial counsel in this case, Captain (CPT) K. Daniel Jones. On February 25, 2013, CPT Jones traveled to West Virginia to meet with Mrs. MS and Miss MS to discuss the case. During this meeting, Mrs. MS referred to evidence about the sexual assault allegations which she kept in a box that was sitting on the table in the kitchen where they met. CPT Jones later conceded that he was aware of this box in late February or early March of 2013, but that he never examined its contents.
Around February 9, 2013, Mrs. MS collected in a binder some documents from the box that related to the allegations of molestation. She then placed the binder in the box. Among other items in the box were notes of conversations Mrs. MS had with Miss MS about the allegations, journals that Mrs. MS kept about the allegations, and correspondence between Mrs. MS and the accused about the allegations. The box also contained a note on which Mrs. MS recorded a recantation by Miss MS.
B. The Charges
On March 13, 2013, the Government preferred charges against the accused alleging one specification of rape of a child, three specifications of aggravated sexual contact with a child, one specification of indecent liberties with a child, and one specification of sodomy with a child, in violation of
C. Discovery
At the time of the preferral of charges on March 13, 2013, the Government provided the accused with some discovery, including the Allen County Sheriff‘s Department‘s report, the CID report, and the accused‘s interrogations. However, CPT Jones “never disclosed to Defense that there was a ‘box’ of evidence being held by Mrs. [MS].”
Following preferral, the accused filed his first discovery request on March 22, 2013, seeking exculpatory evidence, impeachment evidence, evidence within the possession of the Government material to the preparation of the defense, results of physical and mental exams of Miss MS and Mrs. MS, all previous statements by prosecution witnesses, and prior statements by the accused. This discovery request also sought preservation of evidence.
CPT Jones, in consultation with the former chief of justice at Fort Bliss, decided not to respond to the accused‘s first discovery request until closer to referral.3 However, in the interim CPT Jones never told anyone, including Mrs. MS or the state law enforcement agencies involved in the investigation, to preserve evidence. Moreover, CPT Jones did not inform Mrs. MS about the discovery request. Although CPT Jones already was aware that Mrs. MS had possessed e-mails between Mrs. MS and the accused that were responsive to the defense discovery request, CPT Jones did not notify the defense of their existence and hе did not obtain them from Mrs. MS.
However, CPT Jones did inform Mrs. MS that any evidence she provided to him would have to be turned over to the accused, so she should ask him questions ahead of time. CPT Jones‘s precise testimony on this point was: “[S]he wanted to provide stuff [to me] and then have me make a judgment call on
CPT Jones also testified that he later informed Mrs. MS that the Government needed any evidence that was relevant to the case. However, he conceded that he did not define the term “relevant” or attempt to secure the box of evidence for his own review. Further, he did not ask Mrs. MS about her journals or inconsistent statements, and he did not ask about her mental health treatment until she voluntarily disclosed it. Mrs. MS also later stated that she did not “believe” that CPT Jones had asked her whether Miss MS had ever recanted her sexual abuse allegations. CPT Jones testified that he “did all that discovery very early in this case and [he] did not ... sit down with Mrs. [MS] and talk about what she knew about this case and the facts and that stuff in full.... [T]he plan was to do that kind of the week before trial with her.”
Prior to trial there was an “initial partial disclosure” to the defense of some of the evidence from the box when Mrs. MS scanned “select documents” in her possession and sent them to CPT Jones on a thumb drive. The thumb drive did not contain all of the evidence in Mrs. MS‘s possession, though this fact was not disclosed to the defense until March 2014. Upon receiving the thumb drive, the Government printed documents that were on it but then had to destroy the thumb drive because it had been connected to a Government server. A second thumb drive was sent to CPT Jones, though it is unclear whether the second thumb drive was a mirror image of the first. What is clear from the record is that “all of the evidence in the ‘box’ did not make its way onto the thumb drive that was provided to defense in documentary form.”
The Government provided Section III disclosures4 on June 24, 2013, and its first written response to the accused‘s discovery request on July 9, 2013. In responding to one discovery request, CPT Jones added the disclaimer that while all writings used to prepare witnesses for trial were provided, “Defense may want to ask again.”5
Approximately one month before the September 17, 2013, trial, the accused sought a continuance specifically noting: (1) the Government‘s delay in appointing a forensic expert; (2) the need to depose Miss LRE about exculpatory statements; and (3) a pending motion to compel discovery. The Government opposed the motion. The military judge granted a continuance and rescheduled the trial for December 10, 2013. In granting the accused the continuance, the military judge warned the Government that its decision to “take a hard stand on discovery ... invite[d] disaster at trial.” (Ellipsis in original.)
In conjunction with the continuance request, the accused needed the military judge‘s intervention in order to obtain two important pieces of discovery evidence. First, the accused sought the plastic banana that was alleged to have been used in the sexual assaults of Miss MS.6 The Government
Second, the accused sought to depose Miss LRE. The Government opposed this request, asserting that Miss LRE was “not relevant to the charges before the Court,” and that Miss LRE‘s inability to “hardly remember” the events was not exculpatory. The Government further noted that Miss LRE would be available for trial but that her legal guardian would not allow her to testify or speak with investigators if she was under threat of subpoena. The military judge denied the defense‘s deposition request. However, “to satisfy defense‘s discovery concerns,” the military judge оrdered the Government to inform Miss LRE‘s parents that her presence would be required at trial if she did not submit to an interview. After the military judge‘s order, on November 1, 2013, Miss LRE was subjected to a forensic interview in which she contradicted Miss MS‘s allegations. Specifically, Miss LRE denied (1) being molested by the accused, and (2) having witnessed the accused molest Miss MS. The accused did not receive a copy of this interview until December 5, 2013.
On November 26, 2013, the accused moved to compel production of witnesses and for a second continuance based on incomplete discovery. The military judge granted the motion to compel witnesses but denied the motion for a continuance. The judge also ordered the Government to comply with new discovery deadlines.
Also on November 26, the accused received documents from the West Virginia family court. The military judge had ordered the Government to produce these documents from the family court proceedings on September 17, 2013. Upon obtaining these family court documents, the accused learned of additional witnesses involved in the state custody proceedings who were relevant to his defense—the guardian ad litem and the psychologist, Dr. Krieg. The accused then moved to compel production of these witnesses on December 4, 2013. The Government opposed the motion on the basis that the accused delayed requesting the witnesses until eight days after learning about them.
On the eve of the December 10 trial, the military judge granted a second continuance because of the Government‘s failure to produce two defense witnesses. The accused‘s trial was rescheduled for March 18, 2014. After the military judge had rescheduled the trial for the second time, CPT Jones and his wife went to dinner with Mrs. MS and Miss MS after they had traveled to the December 2014 court-martial site. Mrs. MS later gave CPT Jones a baby gift to celebrate the upcoming birth of his child.
CPT Jones deployed to Afghanistan and no longer served as trial counsel for the accused‘s case after the December 2013 continuance. The new trial counsel, CPT BH, disclosed to the defense on March 5, 2014, that Mrs. MS had informed the Government that Miss MS had recanted an unspecified allegation immediately after making it. Mrs. MS had contemporaneously recorded the recantation on a handwritten note, and this note was provided to the accused on March 10, 2014. This note had been in the box of evidence which was created and retained by Mrs. MS and which the Government did not examine or disclose the existence of prior to the third scheduled trial date.
The afternoon before trial on March 17, the military judge held a conference under
The box of evidence was produced after the third continuance. However, after this continuance Dr. Krieg, a defense witness who interviewed the family for the custody proceedings, passed away from cancer. The Government had been in contact with Dr. Krieg and knew that he was scheduled for surgery in February 2014. Once the parties learned about the gravity of his condition, it was too late to depose Dr. Krieg. Therefore, although Dr. Krieg‘s report was available, Dr. Krieg‘s notes and his testimony were not.
D. Dismissal
Based on the events outlined above, the accused moved to dismiss the case on prosecutorial misconduct grounds. The military judge did not resolve the prosecutorial misconduct issue directly but instead examined whether trial counsel‘s discovery violations warranted dismissal of the charges. In doing so, the military judge found “continual and egregious discovery” violations by CPT Jones. After considering “all possible remedies in this case” and the requirement “to craft the least drastic sanction,” the military judge dismissed the case with prejudice based on “the nature, magnitude, and consistency of the discovery violations” in the case.
E. The Appeal
Following the military judge‘s ruling, the Government filed an Article 62, UCMJ, appeal. The CCA adopted the military judge‘s findings of fact, but determined that the military judge committed an abuse of discretion by (1) relying on an erroneous view of discovery law and (2) dismissing the charges with prejudice. As a result, the CCA vacated the military judge‘s ruling.
The accused petitioned for review in this Court, and we granted review on these two issues:
I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY VIOLATION AND REVERSING THE MILITARY JUDGE‘S REMEDY OF DISMISSAL.
II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS APPLIED AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION, OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.
United States v. Stellato, 74 M.J. 324 (C.A.A.F.2015). For the reasons cited below, we conclude that the military judge did not abuse his discretion in finding discovery violations and in dismissing this case with prejudice. We therefore reverse the CCA‘s decision.
II. STANDARD OF REVIEW
Although the granted issues ask whether the CCA erred in reversing the military judge‘s decision, we review the military judge‘s rulings directly in an Article 62, UCMJ, appeal. United States v. Buford, 74 M.J. 98, 100 (C.A.A.F.2015). Our review of a military judge‘s discovery rulings is for an abuse of discretion. See United States v. Jones, 69 M.J. 294, 298 (C.A.A.F.2011); United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F.2004). We alsо apply an abuse of discretion standard when reviewing a military judge‘s remedy for discovery violations. See United States v. Trimper, 28 M.J. 460, 461-62 (C.M.A.1989). “The abuse of discretion standard calls for more than a mere difference of opinion.” United States v. Wicks, 73 M.J. 93, 98 (C.A.A.F.2014) (citation omitted) (internal quotation marks omitted). Instead, an abuse of discretion occurs “when [the military judge‘s] findings of fact are clearly erroneous, the court‘s decision is influenced by an erroneous view of the law, or the military judge‘s decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.” United States v. Miller, 66 M.J. 306, 307 (C.A.A.F.2008).
In deciding this case, we must evaluate two decisions by the military judge: (1) the determination that trial counsel committed discovery violations; and (2) the determination that dismissal with prejudice was an appropriate remedy in this case. See Buford, 74 M.J. at 100 (reviewing military judge decision directly in
A. Discovery Violations
1. The Law
The Rules for Courts-Martial further define a trial counsel‘s obligations under Article 46, UCMJ. See United States v. Pomarleau, 57 M.J. 351, 359 & n. 9 (C.A.A.F.2002). Three provisions are of particular relevance to this case. First, “[e]ach party shall have equal opportunity to interview witnesses and inspect evidence.”
In addition to these discovery rules, the actions of military counsel are governed by the Army Rules of Professional Conduct. These rules state, in relevant part, “A lawyer shall not” (1) “unlawfully obstruct another party‘s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value,” (2) “counsel or assist another person to do any such act,” or (3) “fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.” Dep‘t of the Army, Reg. 27-26, Legal Services, Rules of Professional Conduct for Lawyers, R. 3.4(a), (d) (May 1, 1992); cf. American Bar Association Model Rule of Professional Conduct 3.4 (2014 ed.). When contrasting the mandates of these discovery and ethics rules with the actions of the trial counsel in this case, we are deeply troubled by the amount of gamesmanship that was employed, the number of pretrial motions that were required to be filed by the defense and resolved by the military judge, and the
2. The Military Judge‘s Findings
The military judge concluded that the Government committed “continual and egregious” discovery violations in the instant case. This conclusion was based on extensive findings of fact. The CCA determined that these findings were not clearly erroneоus, and it adopted them. By finding no clear error, the CCA was bound by the military judge‘s fact-finding and “could not find its own facts or substitute its own interpretation of the facts” in this Article 62, UCMJ, appeal. United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F.2007). We similarly are “bound by the facts as found by the military judge unless those facts are clearly erroneous.” Id.
In reaching his conclusions in this case, the military judge made the following findings of fact. First, a year had passed from the time the defense made its first discovery request until the time the Government finally sought to fully comply with its discovery obligations. Second, the Government failed to disclose the existence of the box of evidence in Mrs. MS‘s possession, failed to secure the box, and failed to ensure that the box‘s relevant contents were provided to the defense. Although the Government did provide to the defense copies of documents contained on the thumb drives created by Mrs. MS, there was “no way of ascertaining if the printed documents comprise[d] everything that was stored on the thumb drives ... [Moreover], all of the evidence in the ‘box’ did not make its way onto the thumb drive that was provided to defense in documentary form.” Third, trial counsel never instructed law enforcement agencies or Mrs. MS to preserve evidence after the defense specifically sought preservation of evidence. Fourth, despite the accused‘s discovery requеst, trial counsel never asked Mrs. MS about whether she had received mental health treatment. He only learned that she had received such treatment
Based on these findings of fact, the military judge determined that trial counsel had committed “continual and egregious” discovery violations and reached the following conclusions. First, the Government violated
3. Discussion
Consistent with the holding of the CCA, we conclude that the military judge‘s findings of fact were not clearly erroneous. Accordingly, we are bound by them in the course of our analysis. Cossio, 64 M.J. at 256. In terms of the military judge‘s findings of discovery violations, we address each of them separately below.
a. Mrs. MS‘s Mental Health Records
The military judge concluded that the Government failed to respond to the accused‘s discovery request pertaining to the existence of mental health records. The CCA found no error in this finding, and the Government has not challenged this determination before us. We therefore accept the military judge‘s finding that the Government violated the accused‘s discovery rights when it did not investigate the existence of Mrs. MS‘s mental health records following the acсused‘s discovery request.
b. Preserve Evidence
The military judge found that the Government failed to take the necessary steps in response to a defense request to preserve evidence. The CCA, however, disagreed with this finding, noting that most of the evidence was not in the Government‘s possession and that the military judge failed to make a bad-faith finding.
In analyzing this issue, we first note that the
In the instant case, we conclude that the record supports the military judge‘s finding that trial counsel did not exercise due diligence in preserving or protecting evidence. The accused‘s discovery request specifically stated, “The government is requested to preserve and produce [a series of] physical evidence for subsequent examination/use by the defense....” And yet, CPT Jones did not seek to preserve any evidence from its key Government witness, Mrs. MS, or from the civilian law enforcement agency that investigated some of the molestation allegations against the accused. This failure occurred despite (1) the accused‘s discovery request to preserve, (2) CPT Jones‘s knowledge that these entities might have items of potential evidentiary value, and (3) CPT Jones‘s access to this evidence. The fact that CPT Jones did not make an effort to preserve any evidence refutes the notion that he exercised due diligence in this regard. We also note that the Government destroyed a thumb drive that contained evidence on it without satisfactorily demonstrating that the documents printed from the thumb drive comprised everything on that drive. We therefore conclude that the military judge reasonably determined that CPT Jones‘s inaction with respect to the preservation request, as well as the Government‘s destruction of the thumb drive under the particular circumstances present here, constituted a failure to respond to the accused‘s discovery request to preserve evidence.
In reaching this conclusión, we are not creating any new affirmative Government obligation to preserve evidence. Rather, we are merely applying the existing discovery rules. The duty to preserve includes: (1) evidence that has an apparent exculpatory value and that has no comparable substitute, see United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F.2015) (citing California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); (2) evidence that is of such central importance to the defense that it is essential to a fair trial, see
c. Miss LRE
The military judge next found that the “Government refused to produce a material
The record demonstrates that the defense requested to depose Miss LRE prior to trial because she “hardly remember[ed]” Miss MS and she never disclosed any abuse to her parents. However, instead of facilitating any discovery from Miss LRE, the Government opposed the defense request. Although the military judge denied the accused‘s deposition request, he sought to address the accused‘s “discovery concerns” by ordering a forensic interview of Miss LRE because he properly recognized that the accused had a discovery interest in Miss LRE. See United States v. Irwin, 30 M.J. 87, 92 (C.M.A.1990) (noting in child molestation case that defense is entitled to an еqual opportunity to interview witness). Indeed, as noted above, the
We recognize that the Government did not conceal Miss LRE to prevent her from being interviewed, see United States v. Killebrew, 9 M.J. 154, 161 (C.M.A.1980), or impose conditions on attempts to interview Miss LRE such as requiring a third party to be present during the defense interview. See United States v. Enloe, 15 C.M.A. 256, 262, 35 C.M.R. 228, 234 (1965). Instead, the Government denied access to Miss LRE and took the untenable position that Miss LRE was not “part of the charged offenses” despite Miss MS‘s allegation that Miss LRE was present for some of the abuse. We therefore find that the military judge did not abuse his discretion in finding that the Government‘s position with respect to Miss LRE constituted a discovery violation because it violated
d. The Plastic Banana
The military judge found that the plastic banana should have been disclosed under
Generally speaking, we agree with the proposition that an object held by a state law enforcement agency is ordinarily not in the possession, custody, or control of military authorities. See United States v. Poulin, 592 F.Supp.2d 137, 142-43 (D.Me.2008) (citing cases in declaring that “local law enforcement offices” are not included in “government” for purposes of the federal civilian criminal discovery rule,
Although the facts of the instant case may not fit neatly within any of the circumstances outlined in the above case law, we conclude that the military judge did not clearly err in finding that the Government exercised control over the banana despite the banana‘s physical presence in the Sheriff‘s Department. In reaching this conclusion, we note that trial counsel had access to other evidence held by the Department. For example, the Government was able to obtain the Sheriff‘s Department‘s report about their investigation into sexual abuse allegations involving the accused, as well as copies of the Sheriff‘s Department‘s interview of Miss MS. Also, as the military judge found, once the Government was ordered to perform a search, trial counsel was readily able to gain possession of the banana from the Sheriff‘s Department. Therefore, we find that the military judge did not abuse his discretion in concluding that the Government violated
e. The Box
The military judge also found a discovery violation based on the Government‘s untimely disclosure and production of the box of evidence. This box contained exculpatory matеrial, including a note about Miss MS‘s recantation of certain allegations and e-mails in which the accused denied the allegations of molestation. However, the CCA found no discovery violation because the Government (1) disclosed the evidence in its possession that had come from the box and (2) had no duty to seek out other exculpatory evidence which was contained in the box. We disagree with the CCA‘s analysis.
The accused‘s March 2013 discovery request generally sought the production of tangible objects within the Government‘s possession, custody, or control and specifically sought the production of “[a]ll reports, documents and writings, statements, information, and evidence, obtained or gathered by each individual, military or civilian, relating to the allegations.” Under the
As noted above, the Government need not physically possess an object for it to be within the possession, custody, or control of military authorities. Herе, the military judge determined that, for the purposes of
In its opinion, the CCA determined that the Government did not commit a discovery violation because trial counsel ultimately provided to the defense all of the evidence from the box that was in its possession. However, this determination by the CCA contradicts the military judge‘s factual finding that there was “no way of ascertaining if the printed documents [provided to the accused] comprised everything that was stored on the thumb drives.” It also ignores the fact that the Government‘s duty under
With respect to the military judge‘s
In regard to the latter point, a trial counsel‘s duty to search beyond his or her own prosecution files is generally limited to:
(1) the files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses; (2) investigative files in a related case maintained by an entity closely aligned with the prosecution; and (3) other files, as designated in a defense discovery request, that involved a specified type of information within a specified entity.
Id. (citations omitted) (internal quotation marks omitted). However, this list is not exhaustive because trial counsel‘s duty to search beyond his own files “will depend in any particular case on the relationship of the other governmental entity to the prosecution and the nature of the defense discovery request.” Id.
Under the circumstances of the instant case, we find that the military judge did not err in determining that trial counsel had a duty under
Nevertheless, despite Mrs. MS‘s status as a Government witness and not a Government agent, our inquiry into the box‘s discoverability does not end there. Specifically, we note
Under these circumstances and pursuant to the provisions of
By effectively remaining willfully ignorant as to the contents of the box and by not disclosing its existence to the defense, CPT Jones did not disclose exculpatory evidence
B. Remedy for Discovery Violations
1. The Law
“[M]ilitary courts possess the authority to impose sanctions for noncоmpliance with discovery requirements....” Pomarleau, 57 M.J. at 360. “In the military justice system,
(A) Order the party to permit discovery;
(B) Grant a continuance;
(C) Prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and
(D) Enter such other order as is just under the circumstances.
We previously have determined in other contexts that a military judge did not abuse his or her discretion in dismissing a case with prejudice. United States v. Dooley, 61 M.J. 258, 262-63 (C.A.A.F.2005) (speedy trial); United States v. Gore, 60 M.J. 178, 187-89 (C.A.A.F.2004) (unlawful command influence); see also United States v. Bowser, 74 M.J. 326 (C.A.A.F.2015) (summary disposition) (refusal to produce trial counsel‘s witness interview notes for in camera inspection). We now conclude that dismissal with prejudice may also be an appropriate remedy for a discovery violation under
However, before we analyze the military judge‘s decision to dismiss the charges
2. Discussion
The military judge determined that dismissal with prejudice was appropriate because of “the nature, magnitude, and consistency of the discovery violations.” In making this determination, the military judge found that the accused was prejudiced by the discovery violations in three ways. First, the discovery violations delayed the Government‘s production—and thus delayed the accused‘s receipt—of exculpatory evidence in the form of e-mails, the recantation note, and Miss LRE‘s statements. Second, the continuances19 needed to remеdy the Government‘s multiple discovery violations prevented the accused from calling a key witness, Dr. Krieg, who passed away before trial could begin, but who was available on the previously scheduled trial dates. Third, the continuances “significantly prejudiced” the accused by: (1) interfering with his career progression; (2) preventing him from communicating with his family to resolve custody issues; and (3) placing him under “extreme and unwarranted restrictions.” The military judge concluded by noting that “[t]he almost complete abdication of discovery duties” “call[ed] into serious question whether the Accused [could] ever receive a fair trial” where evidence was lost, unaccounted for, or left in the hands of an interested party.
“Prejudice may take many forms....” Dooley, 61 M.J. at 264. In the speedy trial context, we have noted that prejudice can include “any detrimental effect on [the accused‘s] trial preparation,” “any impact on the right to a fair trial,” and “any restrictions or burdens on [the accused‘s] liberty.” Id. In the unlawful command influence context, we have noted that there was prejudice where the convening authority‘s influence deprived the accused of a witness. See Gore, 60 M.J. at 188. For prepreferral delay
In cases involving discovery violations, Article III courts have held that the proper inquiry is whether there was “injury to [an accused‘s] right to a fair trial.” United States v. Garrett, 238 F.3d 293, 299 (5th Cir.2000); United States v. Valentine, 984 F.2d 906, 910 (8th Cir.1993) (noting that discovery sanctions are warranted where violations prejudice the defendant‘s substantive rights). In making this determination, these courts have examined: (1) whether the delayed disclosure hampered or foreclosed a strategic option, United States v. Mathur, 624 F.3d 498, 506 (1st Cir.2010) (belated Brady disclosure); (2) whether the belated disclosure hampered the ability to prepare a defense, United States v. Warren, 454 F.3d 752, 760 (7th Cir.2006) (noting that belated discovery disclosure did not interfere with ability to prepare a defense), and Golyansky, 291 F.3d at 1250 (“To support a finding of prejudice, the court must determine that the [discovery disclosure] delay impacted the defendant‘s ability to prepare or present its case.“); (3) whether the delay substantially influenced the fact-finder, United States v. De La Rosa, 196 F.3d 712, 716 (7th Cir.1999); and (4) whether the non-disclosure would have allowed the defense to rebut evidence more effectively, United States v. Accetturo, 966 F.2d 631, 636 (11th Cir.1992). See also Discovery and Access to Evidence, 44 Geo. L.J. Ann. Rev. Crim. Proc. 405, 431 n. 1189 (2015) (citing cases where prejudice was found).
As can be seen then, pursuant to this case law, prejudice can arise from discovery violations when those violations interfere with an accused‘s ability to mount a defense. We conclude that these cases are grounded in sound reasoning, and we adopt this approach in the court-martial context.
Based on this holding, we conclude that the military judge did not err in finding prejudice from the discovery violations in this case. First, these discovery violations “resulted in the inability of the Defense to call a key witness, Dr. Krieg.” No one disputes that Dr. Krieg‘s inability to testify was prejudicial to the defense. In fact, at oral argument the Government conceded as much by stating, “There is prejudice to appellant with the loss of Dr. Krieg. Clearly there is.” Second, the military judge specifically determined that the continuing discovery violations resulted in lost evidence, unaccounted for evidence, and evidence left in the hands of an interested party. These circumstances deprived the accused of evidence, indicating that his ability to mount a defense was compromised, and as the military judge noted, “call[ed] into serious question whether the Accused [could] ever receive a fair trial.” We therefore conclude there was no error in the military judge‘s finding of prejudice.
To complete our review of the military judge‘s decision to dismiss with prejudice, we finally examine whether he appropriately considered lesser, alternative remedies.
The military judge considered “all possible remedies” to determine the appropriate sanction for the discovery violаtions, correctly noting that he was required “to craft the least drastic remedy” to obtain the desired result. In the course of considering these alternative remedies, the military judge made the following observations. First, “[t]he remedy of continuance [was] exhausted” because such continuances “only serv[ed] to help the Government perfect its case and frustrat[e] the Accused‘s ability to have his day in court.” Second, affording the accused an opportunity to have an Article 32, UCMJ, investigation despite his previous waiver of that right only extended the length of the case and gave “the Government additional opportunities to right its wrongs, when it [had] already been given multiple opportunities to do so.” Third, the removal of CPT Jones from the case would have been an empty gesture because a new trial counsel already had replaced him. Fourth, the exclusion of the evidence at issue would not remedy the discovery violations because that evidence was largely exculpatory in nature. Fifth, the exclusion of Mrs. MS‘s testimony
After considering and rejecting these alternative remedies for the discovery violations, the military judge also examined “other factors” in determining the appropriate remedy to impose in this case. Specifically, the military judge concluded that the Government‘s decision to “leav[e] disclosure to the whims of interested parties or law enforcement agencies, [to] refus[e] to make a key eyewitness available for interview, and [to] fail[] to respond to the most basic discovery requests” unless ordered by the court to do so demonstrated that the Government had “systematically ignored” discovery obligations.
In its decision in this case, the CCA faulted the military judge for not considering two alternative remedies: (1) granting relief under
IV. CONCLUSION
Under the specific circumstances of this case, we conclude that dismissal with prejudice was within the range of remedies available to the military judge, and that the military judge did not abuse his discretion in determining that trial counsel committed a series of discovery violations, that these discovery violations prejudiced the accused, and that no remedy short of dismissal with prejudice would adequately address this prejudice.
We further conclude that the conduct of trial counsel in this case was deeply troubling. Full and timely compliance with discovery obligations is the lifeblood of a fair trial. Accordingly, parties to courts-martial are admonished to fulfill their discovery obligations with the utmost diligence.
We heartily endorse the principle that “[a] trial counsel is not simply an advocate but is responsible to see that the accused is accorded procedural justice.” Dep‘t of the Army, Reg. 27-26, Legal Services, Rules of Professional Conduct for Lawyers, R. 3.8 Comment (May 1, 1992). And as eloquently stated by Justice Sutherland eighty years ago, we note that:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
V. DECISION
The decision of the United States Army Court of Criminal Appeals is reversed. The decision of the military judge is reinstated.
STUCKY, Judge (concurring in the result):
I concur that the trial counsel violated his discovery obligations with regard to the box and its contents, and that Appellant was
The majority opinion begins its analysis of the banana by citing dictа from several cases, the holdings of which do not support the propositions attributed to them or which are taken out of context. The majority opinion cites United States v. Marshall, 132 F.3d 63, 69 (D.C.Cir.1998), and United States v. Brazel, 102 F.3d 1120, 1150 (11th Cir.1997), for the proposition that a trial counsel cannot avoid disclosure obligations under
The majority then lists four “scenarios in which evidence not in the physical possession of the prosecution team is still within its possession, custody, or control.”1 Id. at 484-85. Scenario (1)—“the prosecution had knowledge of and access to the object“—and scenario (3)—“the evidence resides in another agency but was part of a joint investigation“—are based on United States v. Bryan, 868 F.2d 1032, 1036-37 (9th Cir.1989). In that case, the Ninth Circuit held that the accused, who was charged after a nationwide IRS investigation оf his activities, was entitled to discovery of documents and witness statements both within and outside the District of Oregon. Id. at 1033, 1036. The materials had been developed as part of a nationwide federal investigation and were all in the hands of the federal government. This is not Appellant‘s case.
Scenario (2)—“the prosecution has the legal right to obtain the evidence“—is based on one sentence in an opinion of a federal district court, without any citation to authority, which concerns the legal right of the government to obtain materials from an accused based on a deferred prosecution agreement. United States v. Stein, 488 F.Supp.2d 350, 363 (S.D.N.Y.2007). This is not Appellant‘s case.
Scenario 4—“the prosecution inherits a case from a local sheriff‘s office and the object remains in the possession of the local law enforcement“—is based on United States v. Poulin, 592 F.Supp.2d 137, 142-43 (D.Me.2008), a federal district court case. There, the federal government inherited a sheriff‘s investigation and gained such control over a state “apparatus” that contained “a searchable collection of recordings of telephone conversations” that “the state agency‘s own use of the system [was] largely at the Government‘s direction.” Id. at 142-43. The federal government clearly controlled the “apparatus.” This is not Appellant‘s case.
A close examination of the cited cases shows that they cannot support the four broad scenarios stated by the majority to be the “case law” of the “Article III courts,” and certainly cannot support the proposition relevant to the issue in this case—whether possession of the banana by a local law enforcement agency constitutes constructive possession by “military authorities.” Rather, the consistent position of Article III precedent at the federal circuit court level is that “the government‘s possession, custody, or control” does not encompass objects possessed and controlled by an agency of a state or local government. See United States v. Sarras, 575 F.3d 1191, 1215 (11th Cir.2009) (federal government had no duty to turn
The majority recognizes, in somewhat of an understatement, that “the facts of the instant case may not fit neatly within any of the circumstances outlined in the above case law.” Stellato, 74 M.J. at 485. Nevertheless, it then asserts that because the trial counsel had access to other evidence held by the Sheriff‘s Department, and was eventually able to obtain the banana, the military judge did not abuse his discretion in finding a discovery violation. The fact that the trial counsel had access to other evidence held by the Sheriff‘s Department or was later able to obtain the banana does not change the discovery calculus. Military authorities did not have possession, custody, or control over the banana and, therefore, did not commit a discovery violation by failing to provide it to the defense.