IN THE CASE OF
UNITED STATES, Appellee
Ronald C. ROBERTS, Senior Master Sergeant
Crim. App. No. 34236
ERDMANN, J., delivered the opinion of the Court, in which GIERKE, EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., filed an opinion concurring in the result.
For Appellant: Captain David P. Bennett (argued); Colonel Beverly B. Knott, Major Terry L. McElyea, and Major Kyle R. Jacobson (on brief).
Appellee: Major Shannon J. Kennedy (argued); Colonel LeEllen Coacher and Major Jennifer R. Rider (on brief).
Military Judge: Michael B. McShane
This opinion is subject to editorial correction before final publication.
Judge ERDMANN delivered the opinion of the Court.
Appellant Senior Master Sergeant Ronald C. Roberts was convicted in a contested general court-martial of altering a public record, removing a public record, drafting and printing a false Air Force form and making a false statement, all in violation of Article 134, Uniform Code of Military Justice [UCMJ] 10 U.S.C. § 934 (2000). The offenses related to the falsification of Roberts’ 1998 annual review, known as an Enlisted Performance Report (EPR). Roberts was sentenced to 12 months’ confinement and reduction to the lowest enlisted grade. The convening authority approved the confinement but lessened the grade reduction to senior airman.
Prior to Roberts’ court-martial, the defense submitted a motion requesting that the court compel the Government to disclose derogatory data regarding its witnesses, including the lead investigator, Air Force Office of Special Investigations (AFOSI) Special Agent (SA) “M.” The military judge reviewed in camera a record of an internal investigation on SA M and denied the motion.
On appeal to the Air Force Court of Criminal Appeals, Roberts argued, inter alia, that the military judge’s denial of discovery regarding SA M was erroneous because the information withheld related to SA M’s veracity and therefore could have been used to impeach him. The Air Force Court of Criminal Appeals affirmed the findings and sentence in an unpublished opinion.
granted review of the following issue:
WHETHER THE MILITARY JUDGE, AFTER CONDUCTING AN IN CAMERA REVIEW, ERRED BY NOT DISCLOSING TO THE DEFENSE THAT SPECIAL AGENT [M] HAD PREVIOUSLY MADE A FALSE OFFICIAL STATEMENT.
The charges in this case arose out of the circumstances surrounding Roberts’ 1998 EPR. Roberts’ wing commander declined to sign the original EPR that was prepared for his signature due to his concerns over a prior substantiated sexual harassment complaint against Roberts by a subordinate. He instead directed his vice commander to sign the EPR. According to testimony at trial, this lower level endorsement virtually guaranteed that Roberts would not receive a promotion to chief master sergeant. The vice commander signed Roberts’ EPR.
Roberts was subsequently selected for promotion to chief master sergeant, which resulted in a complaint being filed with the Inspector General (IG). The IG investigation revealed multiple inconsistent copies of Roberts’ 1998 EPR on file, which led to a criminal investigation.
In the course of the investigation by AFOSI, the true EPR signed by Roberts’ vice commander was never found. However, two different falsified versions of the EPR were uncovered. One version was purportedly signed by Roberts’ wing commander, while the other version was purportedly signed by Roberts’ vice commander. The version with the vice commander’s purported signature contained glowing language that the vice commander testified he would not have approved, including a bullet which stated Roberts displayed “unmatched initiative, professionalism, and personal concern of [sic] subordinates.”
During an interview with defense counsel prior to trial, the lead AFOSI agent, SA M, revealed that he had previously been disciplined, but declined to provide any details. Defense counsel subsequently requested that the Government provide the defense with copies of all disciplinary actions taken against SA M. A Government attorney-adviser at AFOSI replied in a memorandum that he had reviewed records including those maintained on SA M, and found no information that had to be disclosed. The attorney-adviser further stated that his review of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter.”
Defense counsel then made a motion to compel discovery pursuant to, inter alia, Rule for Courts-Martial 701 [R.C.M.], which asked for all derogatory data against all prospective Government witnesses, and in the alternative, for an in camera review of that information. The motion specifically referenced the disciplinary action against SA M.
The military judge reviewed the records concerning the investigation of SA M in camera. The information provided to the military judge revealed that approximately three years before Roberts’ court-martial, while SA M was at a training course, he had sexual intercourse with another married AFOSI member.
AFOSI investigative report of that incident contains a summary of an
with SA M on
After reviewing the file provided by the prosecution, including the summarized report of the February 13 interview, the military judge denied the defense motion, stating, “I have concluded that that file does not contain any information . . . which would be proper impeachment matters for the defense to have knowledge of and to use in their case.”
Roberts argues that the military judge erred in refusing to order disclosure of information which showed that SA M made a false official statement. He claims he was entitled to the information under R.C.M. 701 and under Brady v. Maryland, 373 U.S. 83 (1963).1 Our review of discovery/disclosure issues utilizes a two-step analysis: first, we determine whether the information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of such information, we test the effect of that nondisclosure on the appellant’s trial.
Nondisclosure of information pertaining to disciplinary action against SA M.
The right of an accused to obtain favorable evidence is established in Article 46, UCMJ, 10 U.S.C. § 846 (2000). This statute is implemented in R.C.M. 701 which details the liberal discovery practice in courts-martial. Rule for Courts-Martial 701 sets forth the rights and corresponding obligations of the parties to a court-martial. Of particular importance in this case are the Government’s duties concerning disclosure of information requested by the defense which is “material to the preparation of the defense . . . ." R.C.M. 701(a)(2)(A).
practice under Article 46 and R.C.M. 701 “promote[s] full discovery . .
eliminates ‘gamesmanship’ from the discovery process” and is “quite
liberal . .
. . Providing broad discovery at an
early stage reduces pretrial motions practice and surprise and delay at
trial.” Manual for
Roberts made a proper request to compel discovery of information and the Government declined disclosure. Thereafter, at Roberts’ request, the matter was submitted to the military judge to review in camera, pursuant to R.C.M. 701. Under such circumstances, the military judge may review the information ex parte, in camera, and may order “that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate.” R.C.M. 701(g)(2).
appellate court reviews a military judge’s decision on a request for
for abuse of discretion.
Information about SA M’s denial of misconduct to which he subsequently confessed, whether or not it constituted proof of a false official statement, was probative of his truthfulness and could have been used in preparation of the defense to determine whether SA M could be impeached under Military Rule of Evidence 608(b) [M.R.E.]. Under M.R.E. 608(b), specific instances of the conduct of a witness, if probative of truthfulness or untruthfulness, may in the discretion of the military judge be inquired into on cross-examination of the witness. In this context however, the question is not whether the military judge would or would not have permitted the cross-examination under M.R.E. 608(b), but whether the information was material to the defense’s preparation for trial. See R.C.M. 701(a)(2)(A). In light of the Government’s incorrect statement that the records of the SA M investigation “did not reveal that SA [M] lied or falsely testified about the matter”, the defense was left with no basis upon which to believe SA M’s veracity could be attacked.
The defense had a right to this information because it was relevant to SA M’s credibility and was therefore material to the preparation of the defense for purposes of the Government’s obligation to disclose under R.C.M. 701(a)(2)(A). In addition, the military judge improperly limited the scope of discovery when he apparently focused on admissibility, ruling that the “file does not contain any information . . . which would be proper impeachment matters for the defense . . . to have knowledge of and to use in their case.” (Emphasis added). We hold that the military judge erred as a matter of law when he denied the defense motion to compel discovery.
Effect of Erroneous Nondisclosure.
Having determined that the information should have been disclosed during discovery, we now turn to the second phase of our analysis. In this context, an appellate court reviews the materiality of the erroneously withheld information in terms of the impact that information would have had on the results of the trial proceedings. Both phases of this analysis involve a determination of “materiality” but they are two distinct inquiries. The first inquiry at the trial level is whether the information would be “material to the defense” in the preparation of their case and the second inquiry, at the appellate level, determines the materiality of the withheld information to the results of the trial.
This Court has adopted two appellate tests for determining materiality with respect to the erroneous nondisclosure of
first test applies to those cases in which the defense either did not
discovery request or made only a general request for discovery. Once the appellant demonstrates wrongful
nondisclosure under those circumstances, the appellant will be entitled
relief only by showing that there is a “reasonable probability” of a
result at trial if the evidence had been disclosed.
United States v. Bagley, 473
The second test is unique to our military practice and reflects the broad nature of discovery rights granted the military accused under Article 46. Where an appellant demonstrates that the Government failed to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct, the appellant will be entitled to relief unless the Government can show that nondisclosure was harmless beyond a reasonable doubt. Hart, 29 M.J. at 410. Roberts made a specific request for information about disciplinary actions involving SA M. The requested information existed and the Government declined to disclose it. The request was reviewed by the military judge who erroneously denied the motion to compel disclosure. We will therefore use the “harmless beyond a reasonable doubt” standard in determining whether Roberts is entitled to relief.3
The circumstantial evidence of Roberts' guilt was overwhelming. Handwriting analyses showed that the signatures on both of the questioned EPRs had been traced. Roberts’ vice commander testified that the signature found on the EPR purportedly signed by him was not his, and that he would not have approved the laudatory language in two of the six bullets under the “Rater’s Rater” section. Roberts had a motive to fabricate his EPR, in order to get a promotion that he knew would otherwise have been denied him. His fingerprint was found on one of the versions of the 1998 EPR next to the wing commander’s falsified signature.
Analysis of Roberts’ fingerprints showed evidence that the upper layer of skin on his hands had been deliberately altered. An altered copy of Roberts’ 1997 EPR with a false signature was
in his office desk. It is well accepted
that circumstantial evidence is sufficient to sustain a finding of
guilt. R.C.M. 918(c); see generally
Moreover, SA M, although an important witness, was far from the linchpin of the Government’s case. He provided foundational testimony for the prosecution exhibits of the various EPR documents and media files. He also testified about his role in securing Roberts’ fingerprints and in obtaining handwriting analyses of the signatures on the questioned EPRs and about his interview of Roberts. Nine other witnesses testified to Roberts’ motive to forge the EPR, his access to the EPR at the critical periods, and the substantial evidence that the documents were in fact forged.
In light of the evidence in the entire record, we are satisfied that the nondisclosure was harmless beyond a reasonable doubt.
The decision of the United States Air Force Court of Criminal Appeals is therefore affirmed.
1 Because we find that the military judge erred by not compelling disclosure pursuant to R.C.M. 701(a)(2)(A) we do not address any separate entitlement Roberts may have had to this information under Brady v. Maryland, 373 U.S. 83 (1963).
2 Since Hart,
this Court has issued a number of decisions that deal with the
undisclosed, discoverable evidence.
3 Although the military judge in this case conducted an in camera review of the disputed evidence under R.C.M. 701(g)(2), we review that ruling as a matter of law, giving no deference to that ruling under our de novo standard of review. Similarly, the appellate standard of review for assessing the impact of improper nondisclosure is not deferential because we are not reviewing any trial level decision. Our appellate assessment of impact is no different regardless of whether the discovery issue was ruled on by the military judge under R.C.M. 701(g)(2) or whether it arose from a Government decision to withhold certain evidence that was not discovered until after trial.
CRAWFORD, Chief Judge (concurring in the result):
case is yet another example of the majority
selectively refusing to follow Supreme Court precedent and fashioning a
different standard for the military without a showing of military
necessity. While I agree with the result
in this case, I would apply the Supreme Court’s “reasonable
standard to the issue of wrongful nondisclosure as this Court did only
term in United States v. Mahoney, 58 M.J. 346 (C.A.A.F. 2003). Also following the Supreme Court, I would
apply the “reasonable doubt” standard where there has been perjured
the years, the courts have sought to
ensure that the accused’s right to a fair
not imperiled by the nondisclosure of evidence to the defense. Accordingly, the Supreme Court’s standard of
review for wrongful nondisclosure cases has evolved.
See, e.g., Strickler
v. Greene, 527 U.S. 263 (1999); Kyles
v. Whitley, 514
evolution of the standard of review
for wrongful nondisclosure stems from the question of which party bears
burden of proof. Addressing this
question in conjunction with standard of review, the Court stated in Strickler, 527
Notwithstanding the burden of proof, the appropriate standard of review remains “reasonable probability” of a different verdict. In keeping with this approach, this Court recently reiterated in Mahoney, as noted supra, that the “reasonable probability” test determines whether there has been wrongful nondisclosure of exculpatory evidence. In so doing, we opined:
constitutional guarantee of due process requires that “criminal
afforded a meaningful opportunity to present a complete defense.”
. . shown when the government’s evidentiary
‘undermines confidence in the outcome of the trial.’”
The “materiality” issue as applied by the majority and found in Rule for Courts-Martial 701(a)(2)(A) [hereinafter R.C.M.] is similar to the language employed in Brady v. Maryland, 373 U.S. 83 (1963), and its progeny:
We find the Strickland formulation of the Agurs test for materiality sufficiently flexible to cover the “no request,” “general request,” and “specific request” cases of prosecutorial failure to disclose evidence favorable to the accused: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.
Bagley’s touchstone of materiality is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.
We should follow Supreme Court precedent which sets forth a bright line rule for nondisclosure and closely approximates the result this Court seeks to achieve today. The “reasonable probability” rule ensures the rights of defendants and protects the interests of the Government. It is a predictable and consistent rule rather than one that depends on predilections of the appellate courts in the future. When the categories mentioned by the majority have to be further defined, I fear the end result will be further selective application of Supreme Court precedent in the future.
Because the result in this case is the
regardless of which standard is applied, I concur in the result reached