For Appellant: Major Ormond R. Fodrea (argued); Colonel
Jay L. Cohen (on brief); Major Robin S. Wink.

For Appellee: Captain Deborah M. Carr (argued); Colonel
Jeffery T. Infelise and Lieutenant Colonel Michael J.
Breslin (on brief); Colonel Theodore J. Fink.

Military Judge: Howard R. Altschwager.
 
 

CRAWFORD, Judge:

From January 5-15, 1993, a general court-martial composed of members tried appellant at Hill Air Force Base (AFB), Utah. Contrary to his pleas, appellant was convicted of conspiracy to obstruct justice, conduct unbecoming an officer (3 specifi- cations), and wrongfully fraternizing with an enlisted woman, in violation of Articles 81, 133, and 134, Uniform Code of Military Justice, 10 USC §§ 881, 933, and 934, respectively. The convening authority approved the sentence of dismissal, 3 months' confinement, and partial forfeitures. The Court of Criminal Appeals affirmed the findings and sentence. 43 MJ 523 (1995).

We granted review of the following issues:

On October 15, 1991, appellant arrived at Hill AFB with his 5-year-old son. His wife and infant son remained in Colorado Springs, Colorado, because of the infant's medical problems. The offenses in this case grew out of allegations that appellant dated an enlisted female airman in his squadron.
The initial inquiry into fraternization stemmed primarily from the allegation that A1C Mucci, a 19-year-old servicemember, attended several off-base events with appellant.

A1C Mucci received orders for Germany in April 1992. However, before she departed, she was informed by the Squadron First Sergeant, Larry R. Brubaker, that she was being placed on administrative hold because of allegations of fraternization with appellant. At that time, she told him about three "dates" with appellant. Thereafter, seeking advice, she immediately went back to her duty section and shared this information with A1C Tana D. Chevalier and her supervisor, Technical Sergeant (TSgt) Delcine Mitchell. Both Mucci and Chevalier acknowledge that Mitchell's comments may have been misinterpreted. It was a combination of the allegations of fraternization and the potential cover-up that led to the charges against appellant, Mucci, and Mitchell.

On December 9, 1992, at Mitchell's investigation under Article 32, UCMJ, 10 USC § 832, Major Northup, stationed with the Civil Law Division in the Office of the Judge Advocate General of the Air Force, Washington, D.C., testified by telephone that he had received a telephone call from Mucci seeking legal advice. According to Major Northup, A1C Mucci denied any improper relationship with appellant but was concerned about being continually called into the legal office to change her story. Because Major Northup could not represent her, she wanted to know how she could ask for an individual defense counsel.

Major Northup also testified that Sergeant Mitchell told him that "she never knew that Lieutenant Romano dated Airman Mucci...." Major Northup testified that Sergeant Mitchell told him that A1C Mucci had been promised that if she turned state's evidence, her assignment to Germany would not be canceled. He was also surprised that appellant would be court-martialed if there was only an allegation of dating.

Master Sergeant Paul S. Uloth also testified at Mitchell's Article 32. He stated that, at an unspecified time in June 1992, A1C Mucci, while having lunch with Sergeant Mitchell and him, said that she had lied to Sergeant Brubaker. Sergeant Uloth testified that he advised her to feel free to meet with Sergeant Brubaker but avoid the "barracks lawyers."

In a disclosure request, the defense requested that the Government produce "[a]ny known evidence tending to diminish credibility of witnesses...." They also requested "any impeachment evidence relating to such [prosecution] witnesses...." In a letter dated December 28, 1992, after Mitchell's Article 32, the assistant trial counsel responded that the Government was not aware of any evidence that the defense did not possess. Paragraph 14 of that letter, listing the information provided to the defense, does not disclose statements by Northup or Uloth. Thus, the testimony of Major Northup and Master Sergeant Uloth was not admitted at appellant's trial because the defense was unaware of the testimony. The defense alleges that these statements were crucial because Mucci's credibility was central to the case. Final Brief at 16.

The Government responds that Mucci's denial of involvement with appellant was not new because she made a sworn statement to that effect to Major Russell D. Miller, the individual investigating her administrative hold. She also admitted making earlier denials to defense counsel representing appellant and Mitchell. She admitted at trial that she had changed her story about five times. R. 503. As a result, the Government argues that the testimony from Northup and Uloth would have been cumulative with the other evidence. Answer to Final Brief at 5. In any event, the Government argues that the evidence could have been found with due diligence. Id. at 6.

The court below found that the prosecution "should have disclosed the Northup and Uloth testimony to appellant, even without a request." 43 MJ at 527. However, the court also found the failure to disclose "harmless beyond a reasonable doubt." Id. at 528.

Under a grant of testimonial immunity, A1C Mucci testified at trial about dating appellant. Thereafter, appellant's defense counsel asked for a session under Article 39(a), UCMJ, 10 USC § 839(a). At that session, he made a proffer that if A1C Mucci was permitted to do so, she would testify on cross-examination that originally she told her attorney, Captain Blowers, that she had lied to Sergeant Brubaker, but that later, she told Captain Blowers that what she had told Sergeant Brubaker was the truth. Appellant's defense counsel argued that this testimony was admissible because A1C Mucci made these statements at Sergeant Mitchell's Article 32. He asserted that the "extremely crucial" nature of the evidence would overcome the social interest served by the attorney-client privilege.

The judge denied admission of the evidence. First, the military judge noted that certain statements made by Captain Blowers to Mitchell's defense counsel did not waive the privilege because the privilege belongs to the client. Additionally, he said that A1C Mucci had no choice but to testify under the grant of immunity. Thus, the military judge concluded that there was no voluntary waiver by A1C Mucci and her statements to her lawyer, Captain Blowers, could not be used to cross-examine her.

The genesis of Brady v. Maryland, 373 U.S. 83 (1963), is Mooney v. Holohan, 294 U.S. 103 (1935). In Brady, the Court noted that "[t]he principle of Mooney v. Holohan is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused." Brady, supra at 87. However, Brady left open a number of questions which the Supreme Court sought to resolve in United States v. Agurs, 427 U.S. 97 (1976), and United States v. Bagley, 473 U.S. 667 (1985). This Court has also wrestled with Brady and its progeny. See, e.g., United States v. Stone, 40 MJ 420 (1994); United States v. Hart, 29 MJ 407 (1990).

Recently, in Kyles v. Whitley, ___U.S. ___, ___, 115 S.Ct. 1555, 1566-67 (1995)(a 5-4 opinion), the Supreme Court, in amplifying on Agurs and Bagley, explained "materiality" as follows:

What started as an allegation of fraternization against A1C Mucci, a junior servicemember who sought advice hoping to preserve an overseas assignment, soon grew into an allegation of conspiracy among appellant and others to hamstring the investigation. The central issue in this case was the credibility of the witnesses. Most of the witnesses, including
Master Sergeant Uloth, were from Hill AFB. Major Northup was not from Hill AFB, but was stationed in Washington, D.C. His testimony regarding his conversations with TSgt Mitchell and A1C Mucci was particularly critical to the defense. Early during the investigation, A1C Mucci, TSgt Mitchell, and A1C Chevalier perceived that the legal forces at Hill AFB were operating against them and appellant, and they sought the advice of an individual respected by TSgt Mitchell. Major Northup did not know appellant, did not know A1C Mucci, had not talked to her prior to the telephone conversation, and was professionally and geographically separated from the personnel at Hill AFB. Because the defense was denied this critical evidence, we cannot say that we have "a verdict worthy of confidence." Certainly there was a "reasonable probability" of a different verdict had this evidence been made available. This probability was not speculative or remote. Thus, we cannot say with confidence that failure to reveal A1C Mucci's statements to Major Northup and Sergeant Uloth was harmless beyond a reasonable doubt. We answer Issue I in the affirmative.

At common law, communications made in confidence with an attorney for the purposes of obtaining legal advice are privileged unless the privilege is waived by the client. 8 Wigmore, Evidence § 2292 at 554. (McNaughton rev. 1961).
Statements intended to be communicated to third parties are not confidential. United States v. Hubbard, 16 F.3d 694, 697 n.3 (6th Cir. 1994), rev'd in part, ___ U.S. ___, 115 S. Ct. 1754 (1995); In re Grand Jury Proceedings, 727 F.2d 1352, 1356-1357 (4th Cir. 1984). In an attempt to codify the common-law privileges, the Chief Justice of the United States transmitted to Congress the proposed Federal Rules of Evidence, which defined nine specific testimonial privileges, including the attorney-client privilege. Proposed Fed.R.Evid. 501-513; Trammel v. United States, 445 U.S. 40, 47 (1980). Congress rejected these rules in favor of one general rule on privileges: Fed.R.Evid. 501.

However, in 1980, the President promulgated a revised version of these proposed privilege rules for the military, Mil.R.Evid. 501-512, now in the Manual for Courts-Martial, United States (1995 ed.), including an attorney-client privilege, Mil.R.Evid. 502. The President determined that the benefits of the rules far outweighed the cost. Drafters' Analysis of Mil.R.Evid. 501, Manual, supra at A22-36.

Mil.R.Evid. 502 provides in part:

As has often been said, the purpose of a criminal trial is truthfinding within constitutional, codal, Manual, and ethical rules. See United States v. Mezzanatto, ___ U.S. ___, ___, 115 S. Ct. 797, 803 (1995). Because the privilege rules limit truthfinding by excluding legally relevant evidence, these rules are not "favored" by the federal courts. Herbert v. Lando, 441 U.S. 153, 175 (1979); see also In Re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984); 4 The Works of Jeremy Bentham 288, 321 (Bowring ed. 1843)(recommending
exclusion of all privileges relating to jurisdiction); 8 Wigmore, Evidence § 2192 at 70 (McNaughton rev. 1961).

The military has a hierarchical scheme as to rights, duties, and obligations. The highest source of these is the Constitution, followed by the Uniform Code of Military Justice, the Manual for Courts-Martial, departmental regulations, service regulations, and the common law of Maryland (see S. Rep. No. 486, 81^st Cong., 1^st Sess. 32 (1949)). United States v. Lopez, 35 MJ 35, 39 (CMA 1992). While a lower source on the hierarchy may grant additional or greater rights than a higher source, those additional rights may not conflict with a higher source. The defense's constitutional right to produce evidence under the compulsory process clause may overcome the attorney-client privilege. See, e.g., United States v. Rainone, 32 F.3d 1203 (7th Cir. 1994); Jenkins v. Wainwright, 763 F.2d 1390 (11th Cir. 1985); Valdez v. Winans, 738 F.2d 1087 (10th Cir. 1984); Blackwell v. Franzen, 688 F.2d 496 (7th Cir. 1982); United States v. Coven, 662 F.2d 162, 170 (2d Cir. 1981).

Because we do not know if there will be future proceedings and what might transpire at those proceedings, including whether A1C Mucci would be willing to testify without claiming privilege, it is impossible for us to do the necessary balancing to determine whether appellant would have a constitutional right to admit this evidence. Thus, it would be premature for us to make such a judgment in this case now. We leave that decision initially to the military judge if there is a rehearing.

Since the seminal case on work-product privilege, Hickman v. Taylor, 329 U.S. 495 (1947), a civil case, the work-product rules have been applied to criminal cases. See, e.g., Goldberg v. United States, 425 U.S. 94 (1976)(application of the work- product privilege to the statement of witnesses); United States v. Nobles, 422 U.S. 225 (1975). The theory behind the work- product rule is that, after an attorney has spent time preparing the case, assembling and sorting the facts, deriving a theory and theme for the case, and planning the strategy to be employed, the opponent, without some overriding interests, may not needlessly interfere with the thought processes used in creating the documents. Nobles, 422 U.S. at 238. As the Court in Nobles said: "At its core, the work-product doctrine shelters the mental processes of the attorney ...." Id. Whatever the outer boundaries of the rule, it certainly applies to memoranda which set forth the attorney's theory and theme of the case. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 154 (1975). Because of the broad disclosure rules in the military, many of the privilege issues presented
to other courts have been answered. For example, RCM 701(a)(1)(A) and (C), Manual, supra, require that trial counsel reveal witness statements. In any event, it is questionable whether witness statements reveal the attorney's thought processes in such detail as to require protection. Foremost, open discovery avoids unnecessary trials and enables an accused to make informed decisions as to his or her options. Absent a disclosure requirement, documents specifically compiled and prepared with a reasonable anticipation of trial will be encompassed within the privilege if they encapsulate the attorney's thought processes.

If a rehearing is ordered, we would expect the military judge to examine in camera any documents for which the work- product privilege is claimed. The military judge should determine which documents fall under the work-product privilege in accordance with the principles discussed above. Any documents not released should be sealed. The military judge may issue appropriate protective orders for any documents ordered released to trial defense counsel. See RCM 701(g)(2). If appellate defense counsel request disclosure, the Court of Criminal Appeals shall examine the undisclosed documents in camera and determine if disclosure of any additional documents to appellate defense counsel is required and whether any additional protective orders are required. Any documents not ordered released by the Court of Criminal Appeals shall remain sealed for in camera examination by this Court if further review is granted. See United States v. Branoff, 38 MJ 98 (1993).

The decision of the United States Air Force Court of Criminal Appeals is reversed. The findings of guilty and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Air Force. A rehearing may be ordered.

Chief Judge COX and Judges GIERKE and EFFRON concur.

SULLIVAN, Judge (concurring):

It was fairness that prompted my vote to grant this case and fairness that leads me to concur with the reversal. Every accused in the military is entitled to and should get a fair trial. That is what this case means.

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