                         UNITED STATES, Appellee

                                         v.

               Michael C. BEHENNA, First Lieutenant
                       U.S. Army, Appellant

                                  No. 12-0030
                         Crim. App. No. 20090234

       United States Court of Appeals for the Armed Forces

                          Argued April 23, 2012

                           Decided July 5, 2012

STUCKY, J., delivered the opinion of the Court, in which BAKER,
C.J., and RYAN, J., joined. EFFRON, S.J., filed a dissenting
opinion, in which ERDMANN, J., joined.


                                     Counsel


For Appellant: Jack B. Zimmermann, Esq. (argued); Captain E.
Patrick Gilman, Kyle R. Sampson, Esq., Megan E. Smith, Esq., and
Terri R. Zimmermann, Esq. (on brief).

For Appellee: Captain Stephen E. Latino, (argued); Major Amber
J. Roach (on brief); Major Ellen S. Jennings.

Amicus Curiae for Appellant: Philip D. Cave, Esq. (supervising
attorney), Colleen Campbell (law student), Alexandra Stupple
(law student), and Ryan Williams (law student) – for National
Institute of Military Justice.

Amicus Curiae for Appellant: Donald G. Rehkopf Jr., Esq. – for
National Association of Criminal Defense Lawyers.

Military Judge:    Theodore E. Dixon


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Behenna, No. 12-0030/AR


     Judge STUCKY delivered the opinion of the Court.

     We granted review in this case to determine whether the

military judge provided complete and accurate self-defense

instructions, and whether the Government failed to disclose

favorable and material information to Appellant’s prejudice.    We

hold that, although the military judge’s instruction on

escalation was erroneous, it was harmless beyond a reasonable

doubt because escalation was not in issue.    Moreover, contrary

to Appellant’s arguments, withdrawal also was not in issue.    We

further hold that, even assuming that the information Appellant

asserts the Government failed to disclose was favorable, it was

immaterial in regard to findings and sentencing because the

evidence substantially overlapped with other evidence presented

by other defense experts, Appellant was not entitled to an

escalation instruction, and the members clearly rejected the

Government’s theory of premeditated murder.   We, therefore,

affirm the judgment of the United States Army Court of Criminal

Appeals (CCA).

                               I.

                               A.

     Contrary to Appellant’s pleas, a general court-martial with

members found Appellant guilty of unpremeditated murder and

assault in violation of Articles 118 and 128, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 918, 928 (2006).


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United States v. Behenna, No. 12-0030/AR


Appellant was sentenced to a dismissal, twenty-five years of

confinement, and forfeiture of all pay and allowances.     The

convening authority reduced the amount of confinement to twenty

years but otherwise approved the sentence as adjudged.     The CCA

affirmed the findings of guilty and the sentence as approved by

the convening authority.    United States v. Behenna, 70 M.J. 521,

534 (A. Ct. Crim. App. 2011).

                                 B.

     In September 2007, Appellant was assigned to Bayji, Iraq,

an area north of Baghdad.   His platoon’s area of operation was

Albu Toma.   During his deployment, Appellant learned of

information linking Ali Mansur, the deceased in this case, to a

group in Albu Toma, who were believed to be responsible for

attacks on Coalition Forces.    Appellant also learned from human

intelligence reports that Mansur would stand on the police

station west of Albu Toma overlooking Salaam Village and inform

insurgents of Coalition Forces’ activities.

     Before April 21, 2008, Appellant had given out his cell

phone number to locals so that they could contact him with

issues.   Someone named Ali called Appellant and warned him to

avoid Albu Toma or else harm would come to his platoon.

Appellant also learned from a source that Mansur had spoken of

an improvised explosive device being planted along a roadway

used by Appellant’s platoon.


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United States v. Behenna, No. 12-0030/AR


     On April 21, Appellant’s platoon was patrolling Salaam

Village and detained two individuals.   On the return trip to

base, an explosive device was detonated near the vehicles.

Appellant saw several individuals in his platoon injured or

killed by the blast.   A draft intelligence information report

issued on April 27 stated that Mansur was likely a member of the

group that was operating out of Salaam Village.   After the

report was issued, Mansur was apprehended for interrogation, but

shortly after questioning was finished, Mansur was to be

returned to Albu Toma.

     Appellant read the report of Mansur’s interrogation and

only found information regarding Mansur’s job and background and

his relation to an RPK.1   Appellant asked that Mansur be

reinterrogated based on his belief that Mansur had information

on insurgents operating out of Salaam Village, who Appellant

believed were responsible for the April 21 attack.   Appellant

did not participate in the second interrogation, and although

Mansur provided information willingly, the interrogator told

Appellant that Mansur was being deceptive.




1
  This acronym was not defined in the record, but it likely
refers to a Russian light machine gun, Ruchnoy (also spelled
“Ruchnoi”) Pulemyot Kalashnikova. See J. R. Potts, RPK (Ruchnoi
Pulemyot Kalashnikova) Light Machine Gun, Military Factory (Feb.
16, 2012), http://www.militaryfactory.com/smallarms/detail.asp?
smallarms_id=144.

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United States v. Behenna, No. 12-0030/AR


     After the second interrogation, Appellant was ordered to

return Mansur to Albu Toma.   Appellant continued to believe that

Mansur had information regarding the April 21 attack and the

group operating out of Salaam Village; he further believed those

questions had not been asked and answered.   On the day that

Mansur was to be released, Appellant went with an interpreter,

Mr. Tarik Abdallah Silah (referred to by the parties as Harry),

to retrieve Mansur from his cell.    Appellant told Mansur, “I’m

going to talk to you later on today.   There is [sic] three

pieces of information that I want from you . . . . If I don’t

get that information today, you will die today.”   Appellant

admitted the scare tactic was unauthorized but claimed his

intent was only to frighten Mansur into providing information.

     Appellant’s platoon returned a different detainee before

passing through Albu Toma without releasing Mansur.    Appellant

ordered his platoon to take the desert route back to base,

because he wanted “to talk to Ali in a remote, secure location.”

On the desert route, Appellant saw a culvert; he ordered the

platoon to stop, because he believed this was an appropriate

location to speak with Mansur.   Appellant told Harry to follow

him as Appellant retrieved Mansur from Sergeant Warner’s truck.

Appellant asked Warner if he had a thermite grenade.   Warner did

not at that time, and Appellant did not order him to find one.




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United States v. Behenna, No. 12-0030/AR


     Appellant, Harry, and Mansur immediately started walking

towards the culvert.   In the meantime, Warner found a thermite

grenade and caught up with the group at the culvert.   Upon

reaching the culvert, Appellant saw there was a second culvert

and led the group there.   Outside the second culvert, Appellant

told Mansur he wanted the information he had asked about earlier

that day.    Mansur responded that he did not know anything.

     Appellant then moved Mansur into the culvert and cut off

his shirt and told Warner to cut off his pants and underwear.

Appellant then attempted to remove the zip ties that bound

Mansur’s hands, but Harry eventually had to remove them for

Appellant.   Appellant ordered Mansur, who was then naked and

unbound, to sit on a rock or piece of concrete inside the

culvert.    Mansur continued to claim ignorance, so Appellant

pointed a loaded pistol at him to frighten him into providing

the information.

                                 C.

     By this time, it was dark and dusty outside, visibility was

low, and Warner was using night vision goggles.   As soon as

Appellant pulled out his pistol, Harry stepped outside the

culvert because he was afraid of the ricochet.    Harry testified

that from his vantage point he could make out the figure of a

person but could not distinguish Mansur’s arms and hands.      Once

Harry was outside the culvert, Appellant again asked for the


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United States v. Behenna, No. 12-0030/AR


information and stated that if Mansur did not tell him what he

wanted to hear that he would die.      Mansur said something, and

Harry looked at Appellant to translate, and then two shots were

fired.    Harry testified that everything happened quickly, that

he was surprised by the gunshots, and that he did not see

exactly what happened before the shots were fired.     He did not

know what happened to cause Appellant to shoot Mansur.

        Warner was approximately thirty-five to fifty meters away

when he heard the first pistol shot.     From his original angle,

Warner could not see inside the culvert; so, he moved to a

better position.    He saw the muzzle flash from the second shot.

Warner ultimately identified Appellant as the individual who

fired the pistol shots that killed Mansur.     When Warner reached

the culvert, Appellant told him to “[t]hrow it.”     Warner asked,

“[t]hrow what” and Appellant said “[d]on’t be stupid.”     Warner

tossed the thermite grenade in the direction of Mr. Mansur’s

body.    Appellant then told Warner to take care of the clothes.2

        Appellant’s testimony was mostly consistent with that of

the other witnesses, although he did elaborate on what occurred

before he fired his pistol.    He testified that he pointed his

pistol at Mr. Mansur and told him that “[t]his [was his] last

2
  Appellant testified later in the trial that immediately after
firing the shots he did not say anything. It is unclear from
the context of the question and answer if Appellant was refuting



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United States v. Behenna, No. 12-0030/AR


chance to tell the information or [he would] die.”      Appellant

testified he heard Mr. Mansur say something in Arabic that was

different than his previous responses, so he looked over to

Harry for interpretation.

       While looking at Harry, Appellant testified that he heard a

piece of concrete hit over his left shoulder.      He turned towards

Mansur and saw him reaching for the pistol; the distance between

them was only two or three feet.       He took a step or two to his

left, towards the entrance of the culvert, to create distance

between him and Mansur, and then fired two shots into Mansur.

Mansur was shot once in the head and once in the chest; the

order of the shots was a contested issue.      Behenna, 70 M.J. at

524.   Appellant stated that everything happened fast and that he

fired the shots because he “was scared [Mansur] was going to

take [his] weapon.”    Appellant insisted throughout his testimony

that he never intended to kill Mansur; he just wanted to scare

him for information.

       Upon returning to base, Appellant took Warner on a walk and

asked him if he was “cool.”   Warner indicated he was.     Harry

later asked Appellant why he had shot Mansur, and Harry

testified that Appellant said “‘Ali Mansur planted explosives

twice on a specific road and the explosive that went off in the



Warner’s claim. It is clear, however, that an incendiary
grenade was set off near Mansur’s body.

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United States v. Behenna, No. 12-0030/AR


Salaam Village, he had a hand into this too.   He was part of

this operation.’”

                                 D.

     During trial, the defense provided unrebutted testimony

from two experts in the field of forensics.    Dr. Radelat, a

medical doctor, testified that in his expert opinion that Mansur

was standing when he was shot.   He testified that Mansur’s chest

wound had entered under his right arm between the fourth and

fifth rib in a horizontal path indicating that the pistol was

level with Mansur’s wound and that Mansur’s right arm was not in

the flight path of the bullet.

     Dr. Radelat theorized that the chest wound was inflicted

first, because the photographs appeared to show Mansur clutching

a chest wound with blood running over his hand.   He bolstered

this analysis by noting that the head wound would have been so

devastating that, had it been inflicted first, Mansur would not

have been capable of reacting to the chest wound.    Dr. Radelat

admitted that the horizontal wound could have been caused if

Mansur had been falling at the same angle the gun was pointed,

although he suggested this scenario defied reason.

     The defense also called Mr. Bevel, an expert in scene

reconstruction.   Mr. Bevel theorized that the chest wound was

inflicted first and that Mansur was standing when shot.   He

concluded that Mansur was standing when shot because of the


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United States v. Behenna, No. 12-0030/AR

level trajectory of the wound.   He also bolstered that opinion

based on the fact that it appeared Mansur had clutched the chest

wound and the manner in which the blood ran over Mansur’s hand.

He acknowledged that given the wound’s location on Mansur’s

chest that his right arm had to be out of the flight path of the

bullet, which, at the very least, meant his arm was not hanging

straight down.

     He noted that the head wound also had a horizontal

trajectory, which could be consistent with Mansur standing, so

long as the second shot was fired as Mansur slumped towards the

ground.   Mr. Bevel also testified that the nature of the blood

trail indicated that Mansur likely was not falling backwards.

Under Government cross-examination, Mr. Bevel admitted that

other scenarios could reasonably explain the horizontal wound

trajectories to the chest and head and how Mansur’s right arm

avoided the flight pattern of the bullet.   Facts necessary to

resolve the alleged violation under Brady v. Maryland, 373 U.S.

83 (1963), are included below.

                                 II.

     The first issue is whether the members were improperly

instructed about how Appellant could lose and regain the right

to act in self-defense.   Although we find the instruction on

escalation was erroneous, the error was harmless beyond a

reasonable doubt.   Appellant was not entitled to such an


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United States v. Behenna, No. 12-0030/AR

instruction at all, as there was no evidence raising the issue

of escalation.   Moreover, contrary to Appellant’s arguments,

withdrawal was not in issue either, for the same reason.

                                 A.

     An allegation that the members were improperly instructed

is an issue we review de novo.   United States v. Ober, 66 M.J.

393, 405 (C.A.A.F. 2008).    In regard to form, a military judge

has wide discretion in choosing the instructions to give but has

a duty to provide an accurate, complete, and intelligible

statement of the law.   See United States v. Wolford, 62 M.J.

418, 419 (C.A.A.F. 2006) (recognizing that instructions must be

correct and complete); see also United States v. Medina, 69 M.J.

462, 465 (C.A.A.F. 2011) (noting that an instruction must be

clear and correct).   In reviewing the propriety of an

instruction, appellate courts must read each instruction in the

context of the entire charge and determine whether the

instruction completed its purpose.    See Jones v. United States,

527 U.S. 373, 391 (1999).

     In regard to substance, the instructional issues in this

case involve self-defense.   The standard for self-defense is set

out in Rule for Court-Martial (R.C.M.) 916(e)(1), which provides

that if an individual apprehends on reasonable grounds that

grievous bodily harm or death is about to be wrongfully

inflicted to his or her person, then the individual may use such


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United States v. Behenna, No. 12-0030/AR

force as is appropriate for the circumstances, including deadly

force.   See United States v. Lewis, 65 M.J. 85, 88 (C.A.A.F.

2007) (recognizing that R.C.M. 916 generally restates the well-

settled law of self-defense).

     The right to act in self-defense, however, is not absolute.

Initial aggressors and those involved in mutual combat lose the

right to act in self-defense.   See R.C.M. 916(e)(4).     However,

an initial aggressor or a mutual combatant regains the right to

act in self-defense if the other party escalates the degree of

force, or if the initial aggressor or the mutual combatant

withdraws in good faith and communicates that intent to

withdraw.   See Lewis, 65 M.J. at 88; R.C.M. 916(e)(4).    With

these principles in mind, we turn our attention to the

instructions in this case.

                                B.

     The military judge provided a facially correct instruction

on self-defense.3   Appellant’s claim of error is in regard to the


3
  The propriety of giving the initial self-defense instruction
has not been challenged; it is provided here for context.

          For self-defense to exist the accused must have
     had a reasonable apprehension that death or grievous
     bodily harm was about to be inflicted on himself and
     he must have actually believed that the force he used
     was necessary to prevent death or grievous bodily
     harm. In other words, self-defense has two parts:
     first the accused must have had a reasonable belief
     that death or grievous bodily harm was about to be
     inflicted upon himself. The test here is whether

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United States v. Behenna, No. 12-0030/AR

following instruction on losing and regaining the right to act

in self-defense:

     Now there exists evidence in this case that the
     accused may have been assaulting Ali Mansur
     immediately prior to the shooting by pointing a loaded
     weapon at him. A person who without provocation or
     other legal justification or excuse assaults another
     person is not entitled to self-defense unless the
     person being assaulted escalates the level of force
     beyond that which was originally used. The burden of
     proof on this issue is on the prosecution. If you are
     convinced beyond a reasonable doubt that the accused,
     without provocation or other legal justification or
     excuse, assaulted Ali Mansur then you have found that
     the accused gave up the right to self-defense.
     However, if you have a reasonable doubt that the
     accused assaulted Ali Mansur, was provoked by Ali
     Mansur, or had some other legal justification or
     excuse, and you are not convinced beyond a reasonable
     doubt that Ali Mansur did not escalate the level of
     force, then you must conclude that the accused had the



     under the same facts and circumstances present in this
     case, an ordinary, prudent adult person, faced with
     the same situation would have believed that there were
     grounds to fear immediate death or serious bodily
     harm; second, the accused must have actually believed
     that the amount of force he used was required to
     protect against death or serious bodily harm.

          To determine the accused’s actual belief as to
     the amount of force which was necessary you must look
     at it -- you must look at the situation through the
     eyes of the accused. In addition to the circumstances
     known to the accused at the time, the accused age,
     intelligence, and mental condition are all important
     factors to consider in determining the accused’s
     actual belief about the amount of force required to
     protect himself. As long as the accused actually
     believed that the amount of force he used was
     necessary to protect himself against death or grievous
     bodily harm, the fact that the accused may have used
     excessive force does not matter.



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United States v. Behenna, No. 12-0030/AR

     right to self-defense, and then you must determine if
     the accused actually did act in self-defense.

Emphasis added.

     This instruction is erroneous for two reasons.     First, the

military judge provided no guidance on how to evaluate an offer-

type assault, which occurs, for instance, when an individual

points a loaded pistol at another person without lawful

justification or authorization.    We recognize that the military

judge had previously instructed the members on an assault

consummated by a battery, but those instructions did not include

guidance on how to evaluate the offer-type assault that preceded

the killing of Mansur.   See Manual for Courts-Martial, United

States (MCM) pt. IV, ¶ 54.c.(1)(b) (2012 ed.).     Thus, the

members were never instructed that for Appellant to have

assaulted Mansur by pointing the pistol at him, Mansur had to

reasonably apprehend immediate bodily harm.    See MCM pt. IV,

¶ 54.c.(1)(b)(ii).   The two varieties of assault are

sufficiently different that, even when the instructions are

viewed holistically, the first portion of the instruction was

incomplete.   See United States v. Marbury, 56 M.J. 12, 17

(C.A.A.F. 2001) (holding the critical issue in offer-type

assaults is whether the victim reasonably apprehended imminent

bodily harm as compared to assaults consummated by a battery in

which the critical issue is actual bodily harm).



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United States v. Behenna, No. 12-0030/AR

     More importantly, the second emphasized portion of the

instruction is an erroneous statement of law.   Specifically, the

military judge linked the lawful use of force with the issue of

escalation with the conjunction “and.”   (“However, if you have a

reasonable doubt that the accused assaulted Ali Mansur, was

provoked by Ali Mansur, or had some other legal justification or

excuse, and you are not convinced beyond a reasonable doubt that

Ali Mansur did not escalate the level of force, then you must

conclude that the accused had the right to self-defense . . . .”

(emphasis added)).   This is an inaccurate statement of law

because Appellant would have had the right to self-defense if

his original use of force had been lawful -- it was provoked,

justified, or otherwise excusable (i.e., Appellant was not an

initial aggressor) -- or if Mr. Mansur had escalated the level

of force.   See Lewis, 65 M.J. at 88–89; R.C.M. 916(e)(1),(4).

Having found that the instruction was erroneous, we must test

for prejudice.

                                 C.

     When instructional errors have constitutional implications,

as instructions involving self-defense do, then the error is

tested for prejudice under a “harmless beyond a reasonable

doubt” standard.   Lewis, 65 M.J. at 87 (citation and quotation

marks omitted).    Only when the reviewing authority is convinced

beyond a reasonable doubt that the error did not contribute to


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United States v. Behenna, No. 12-0030/AR

the defendant’s conviction or sentence is a constitutional error

harmless.   Id. (citations omitted).

     Generally, a superfluous, exculpatory instruction that does

not shift the burden of proof is harmless, even if the

instruction is otherwise erroneous.    See United States v.

Thomas, 34 F.3d 44, 48 (2d Cir. 1994) (providing a potentially

erroneous self-defense instruction could not have been

prejudicial to the defendants because “their need to defend

themselves arose out of their own armed aggression”); Melchior

v. Jago, 723 F.2d 486, 493 (6th Cir. 1983) (even if instruction

was erroneous it was harmless beyond a reasonable doubt where

“there was insufficient evidence to submit the issue of self-

defense to the jury in the first instance”).

     As discussed further below, Appellant lost the right to act

in self-defense as a matter of law; therefore, any instruction

on losing and regaining the right to self-defense was

superfluous.   Our case law makes clear that a military judge is

only required to instruct when there is some evidence in the

record, without regard to credibility, that the members could

rely upon if they choose.   United States v. Schumacher, 70 M.J.

387, 389 (C.A.A.F. 2011) (citing Lewis, 65 M.J. at 87).   In

other words, a military judge must instruct on a defense when,

viewing the evidence in the light most favorable to the defense,

a rational member could have found in the favor of the accused


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United States v. Behenna, No. 12-0030/AR

in regard to that defense.   See id. (quoting Mathews v. United

States, 485 U.S. 58, 63 (1988)).      This is a legal question that

is reviewed de novo.    See id. at 389-990.

                                 D.

     We begin by noting that Appellant was not in an active

battlefield situation, that Mansur was not then actively engaged

in hostile action against the United States or its allies, and

that there were no other military exigencies in play.

Appellant’s counsel at oral argument conceded that Appellant was

not seeking a special privilege based on Appellant’s status as a

soldier or presence on the battlefield.     After careful

consideration, we agree that the events that transpired in the

culvert do not implicate the unique aspects of military service

in a manner that requires us to apply other than basic criminal

law concepts.   Thus, we evaluate this situation by applying the

fundamental concepts of self-defense as imbedded in this Court’s

case law and the MCM.

     As discussed earlier, if Appellant was the initial

aggressor -- i.e., the one that provoked or brought about the

situation that resulted in the necessity to kill another4 -- then


4
  See United States v. Cardwell, 15 M.J. 124, 126 (C.M.A. 1983)
(discussing an initial aggressor as one who starts an affray);
see also United States v. Branch, 91 F.3d 699, 717 (5th Cir.
1996) (citing several cases for the same proposition), rev’d on
other grounds and remanded, Castillo v. United States, 530 U.S.
120 (2000).

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United States v. Behenna, No. 12-0030/AR

he lost his right to self-defense, unless the deceased, Mansur,

either escalated the level of force or Appellant withdrew and

communicated that withdrawal in good faith.   See Lewis, 65 M.J.

at 88–89; R.C.M. 916(e)(1),(4).

     Even when viewed in the most favorable light, Appellant’s

own testimony about the events that transpired in the culvert

demonstrate that he was the initial aggressor because he brought

about the situation that resulted in his killing of Mansur.

Appellant deviated from his assigned duty to return Mansur to

his home, without authority, to take him to a remote culvert in

the desert, far from any active hostilities for further

unauthorized interrogation.

     More importantly, Appellant then stripped the detainee

naked and forced him to sit on a rock while Appellant, in full

combat attire with a loaded pistol, interrogated him.   Appellant

also told Mansur, as he had on other occasions that day, that he

was going to die unless he provided specific information.   Cf.

MCM pt. IV, ¶ 54.c.(1)(c)(iii) (“Thus, if Doe points a pistol at

Roe and says, ‘If you don’t hand over your watch, I will shoot

you.’ Doe has committed an assault upon Roe.”).

     Although we are mindful that Mansur was a detainee, it is

evident that Appellant’s use of force in the culvert before the

shooting -- the critical moment in reviewing this issue -- was




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United States v. Behenna, No. 12-0030/AR

unauthorized and excessive.5   Cf. United States v. Archer, 486

F.2d 670, 676-77 (2d Cir. 1973) (“It would be unthinkable, for

example, to permit government agents to instigate robberies and

beatings merely to gather evidence to convict other members of a

gang of hoodlums.”).   Even accepting the facts as Appellant

described them on direct examination, there is no evidence on

which a rational member could rely to conclude that Appellant

was not the initial aggressor.   The next question is whether a

rational member could have found that Appellant regained the

right to act in self-defense as a result of either Mansur’s

escalating the conflict or Appellant’s withdrawing in good

faith.

     Under our case law, Mansur could not have escalated the

level of force in this situation,6 as Appellant had already


5
  Appellant relied on a number of 42 U.S.C. § 1983 civil rights
cases in his brief. These cases are generally inapplicable to
the issue before us, because the protection of civil liberties
of American citizens, which Mansur was not, varies greatly from
the principles underlying criminal law and the justification for
using deadly force. However, we note that even § 1983 cases
recognize that if an officer points a weapon at an individual
who poses no threat, then it is so clearly an excessive use of
force that the officer is not entitled to qualified immunity.
Cf. Baird v. Renbarger, 576 F.3d 340, 346-47 (7th Cir. 2009)
(holding an officer was not entitled to qualified immunity when
he pointed his gun at individuals because the people targeted
and the crime investigated did not suggest even a hint of
danger).
6
  We are not deciding what, if any, right Mansur, a detainee of
the United States Armed Forces, had to defend himself. We are
determining Appellant’s right to act in self-defense under well-
settled criminal law concepts and in light of his actions.

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United States v. Behenna, No. 12-0030/AR

introduced deadly force.   See United States v. Stanley, 71 M.J.

60, 63 (C.A.A.F. 2012); see also Armstrong v. Bertrand, 336 F.3d

620, 623, 625–26 (7th Cir. 2003) (holding that an armed gunman

did not regain the right to self-defense even though the victim

threatened to kill the gunman and lunged for his gun); Wayne R.

LaFave, Substantive Criminal Law §10.4(e) (2d ed. 2003) (noting

that a nondeadly aggressor is one who uses “only his fists or

some nondeadly weapon”).   Even assuming for a moment that Mansur

could have escalated the level of force, we conclude that a

naked and unarmed individual in the desert does not escalate the

level of force when he throws a piece of concrete at an initial

aggressor in full battle attire, armed with a loaded pistol, and

lunges for the pistol.   See Armstrong, 336 F.3d at 623, 625-26.

This is especially so when the initial aggressor “had every

opportunity to withdraw from the confrontation and there was no

evidence he either attempted or was unable to do so.”   See

Behenna, 70 M.J. at 532-33; see also R.C.M. 916(e)(4) Discussion

(“Failure to retreat . . . does not deprive the accused of the

right to self-defense[, but] [t]he availability of avenues of

retreat is one factor which may be considered in addressing . .

. that the force used was necessary for self-protection).

     Furthermore, nothing in Appellant’s testimony indicated

that he clearly manifested an intent to withdraw or that Mr.

Mansur prevented Appellant from withdrawing.   See United States


                                20
United States v. Behenna, No. 12-0030/AR

v. O’Neal, 16 C.M.A. 33, 37, 36 C.M.R. 189, 193 (1966) (“His

testimony contains no suggestion of a word or act that could

reasonably be interpreted by the others as indicating he wanted

to end the fight.”).   As the CCA found, there was no evidence

that Mansur made contact with Appellant’s weapon, that Appellant

indicated a desire to withdraw, or that Appellant made a good-

faith effort to withdraw.   Behenna, 70 M.J. at 532-33.    Rather,

Appellant took one or two steps towards the entrance of the

culvert where the vast desert, Warner, and the rest of his

platoon were waiting, before he shot Mansur twice.    See id. at

523.   Even accepting the facts as Appellant described them on

direct examination, no rational member could have found either

that Mansur escalated the situation or that Appellant withdrew

in good faith.

       Contrary to the dissent’s suggestion, we have not decided

any factual matters that should have been before the members.

There is no factual issue for the members to resolve until

“there is some evidence upon which members could reasonably rely

[upon] to find that each element of the defense has been

established.”    Schumacher, 70 M.J. at 389-90.   Importantly, the

issue in this case is not whether there was some evidence of

self-defense.    Rather, our holding is that any evidence of self-

defense was overcome by other events, namely the unrebutted

evidence that Appellant was an initial aggressor and the dearth


                                 21
United States v. Behenna, No. 12-0030/AR

of evidence of escalation by Mansur or good faith withdrawal by

Appellant -- matters thoroughly discussed above.7

     Ultimately, even if we assume that Mansur lunged for

Appellant’s pistol and Appellant feared that Mansur would use

the pistol if he was able to seize it, because Appellant was the

initial aggressor, and because there was no evidence to support

a finding of escalation or withdrawal, a rational member could

have come to no other conclusion than that Appellant lost the

right to act in self-defense and did not regain it.8   See Branch,

91 F.3d at 712 (“The district court is not required to put the

case to the jury on a basis that essentially indulges and even

encourages speculations.” (quotation marks and citation

omitted)).   As such, withdrawal was not in issue and the

erroneous instruction on escalation was superfluous.   As we

noted earlier, superfluous, exculpatory instructions that do not

impermissibly shift burdens are generally harmless beyond a


7
  The record is devoid of any evidence that Mansur used or had
access to any means or force that could have caused Appellant’s
death or grievous bodily harm. Indeed, the evidence suggests
just the opposite. See Behenna, 70 M.J. at 532 (noting that
there is no evidence that Mansur, who was naked and unarmed,
made contact with Appellant’s pistol).
8
  Despite giving the instruction, the military judge ultimately
reached a similar conclusion in resolving the alleged Brady
violation. (“In applying the law to the facts of this case, the
members could come to no reasonable conclusion other than 1LT
Behenna did not have the right to self-defense. Accordingly . .
. any evidence as to self-defense did not have, nor would any
additional evidence as to self-defense have, made a difference
in the Court’s determinations.”).

                                22
United States v. Behenna, No. 12-0030/AR

reasonable doubt, even if the instructions are otherwise

erroneous.   Nothing in these facts suggests that we should

deviate from that conclusion.   For this reason, Appellant is not

entitled to relief.

                                III.

     The second issue is whether the Government failed to

disclose favorable information to Appellant’s detriment in

violation of Brady.   Even if we assume error in this regard, the

error was harmless beyond a reasonable doubt both in regard to

findings and sentence.

                                 A.

     The Government received a discovery request from defense

counsel on August 28, 2008, requesting that the Government

provide defense counsel with all exculpatory evidence.    The

Government gave notice that it had retained Dr. Herbert

MacDonell as an expert consultant, whose opinion up to trial was

favorable for the Government.   The Government ultimately rested

its case without calling Dr. MacDonell.    On Wednesday, February

25, 2009, defense put on the testimony of Dr. Radelat and Mr.

Bevel.   During cross-examination by trial counsel, both defense

experts admitted that alternative explanations existed for the

forensic evidence.

     Dr. MacDonell, with the consent of the parties, sat in the

gallery while the other experts testified.   On Wednesday night,


                                 23
United States v. Behenna, No. 12-0030/AR

after court was recessed and after the defense experts had

testified, Dr. MacDonell, in the presence of all three

Government trial counsel, demonstrated a scenario:

     I asked if he [the aid to the demonstration] could
     stand in front of me and I put a finger in his ribs
     and said “Bang, now drop.” And he went down to his
     knees and as he went by the finger I said, “Bang.” I
     said, “Now that seems to me to be the only logical
     thing.” I admit it is extremely unlikely, but
     sometimes things that happen that are statistically
     improbable do happen [sic].

Dr. MacDonell also testified that he ended his discussions with

trial counsel by stating that “anything is possible,” because

“[y]ou can’t be certain of a theory like that.   A scenario can

be presented, but if it is consistent with the facts it can be

believed, but it may not be the only explanation.”

     On Thursday, Dr. MacDonell heard Appellant’s testimony,

which was consistent with the theory he presented Wednesday.

This caused Dr. MacDonell to believe that Appellant was telling

the truth.   During the post-trial Article 39(a), Brady hearing,

Dr. MacDonell testified that after hearing Appellant’s testimony

he only spoke with another Government witness about how

Appellant’s description of events was exactly how he had

theorized it might have occurred.    In an affidavit submitted

after the Article 39(a) session, however, Dr. MacDonell averred

that he also told the prosecutors on Thursday that “although the

scenario I had presented to them the day before [Wednesday] was



                                24
United States v. Behenna, No. 12-0030/AR

unlikely, it still was the only theory I could develop that was

consistent with the physical evidence.    It was also exactly the

way Lt. Behenna had described the events.”

        Regardless of the discrepancy, as Dr. MacDonell left for

his return flight on Thursday, he told defense counsel he would

have been a great witness for them.    When asked to elaborate,

Dr. MacDonell said he thought it would have been inappropriate

to explain further given his relation to the Government in this

case.    In light of Dr. MacDonell’s odd statement on Thursday,

defense counsel asked the prosecutors before trial began on

Friday morning if it was in possession of any exculpatory

information.    The prosecutors stated that they were unaware of

any exculpatory information.    Later that day, the members

returned a finding of guilty to assault and unpremeditated

murder.

        At approximately 4 p.m. on Friday, Dr. MacDonell sent an e-

mail to the prosecutors, in which he stated that “I feel that

[my opinion] is quite important as possible exculpatory evidence

so I hope that, in the interest of justice, you informed

[defense counsel] of my findings. It certainly appears like

Brady material to me.”     One of the prosecutors discovered the e-

mail late Friday night and forwarded the e-mail to defense

counsel with a note that stated “I am not sure that I believe

that Mr. MacDonell’s new opinion is exculpatory, but I wanted to


                                  25
United States v. Behenna, No. 12-0030/AR

send it to you in an abundance of caution.”    Defense counsel

moved for a mistrial on the basis of a Brady violation.

                                 B.

     Pursuant to Brady, the Government violates an accused’s

“right to due process if it withholds evidence that is favorable

to the defense and material to the defendant’s guilt or

punishment.”    Smith v. Cain, 132 S. Ct. 627, 630 (2012).

Evidence is favorable if it is exculpatory, substantive evidence

or evidence capable of impeaching the government’s case.      United

States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998) (citing United

States v. Bagley, 473 U.S. 667, 676 (1985)).    Evidence is

material when “there is a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have

been different.”   Smith, 132 S. Ct. at 630.   To be material, the

evidence must have made the “likelihood of a different result .

. . great enough to ‘undermine[] confidence in the outcome of

the trial.’”    Id. (alteration in original) (citation omitted).

Once a Brady violation is established, courts need not test for

harmlessness.   Kyles v. Whitley, 514 U.S. 419, 435-36 (1995).9


9
  The Fifth Circuit, in Kyles v. Whitley, noted that Brady claims
are subject to harmless error review. See 5 F.3d 806, 818 (5th
Cir. 1993). The Supreme Court, in reviewing that assertion,
stated that “contrary to the assumption made by the Court of
Appeals, 5 F.3d at 818, once a reviewing court applying Bagley
[materiality] has found constitutional error there is no need
for further harmless-error review.” Kyles, 514 U.S. at 435.
This makes sense; if there is a reasonable probability that the

                                 26
United States v. Behenna, No. 12-0030/AR

                                  C.

        We do not need to determine who learned of what information

when.    Even if we assume the evidence was favorable and not

properly disclosed, the evidence was ultimately immaterial both

as substantive and impeachment evidence.    Dr. MacDonell’s

testimony, at most, would have made Appellant’s version of

events more likely, that is, that Appellant shot Mansur as he

stood and reached for Appellant’s pistol.    In turn, whether

Mansur remained seated or stood when he was shot was only

relevant to two issues:    premeditation and self-defense.

        The result in this case -- Appellant was convicted of

unpremeditated murder -- negates any argument that this evidence

could have affected the outcome on the issue of premeditation,

as the members clearly rejected the Government’s theory of the

case -- a premeditated, execution-style killing -- when they

returned a verdict that Appellant was guilty of unpremeditated

murder.    In regard to self-defense, Dr. MacDonell’s testimony

could not have independently established the factual predicate

for a self-defense theory; rather, it would have only bolstered

Appellant’s version of events.    Assuming the truth of


evidence would have changed the result at trial, then, by
definition, the failure to disclose cannot be harmless. There
is no need to conduct a redundant test. See United States v.
Meek, 44 M.J. 1, 5 n.2 (C.A.A.F. 1996) (noting that to the
extent that the harmless error test is incorporated into another



                                  27
United States v. Behenna, No. 12-0030/AR

Appellant’s version of what transpired in the culvert, he had

lost the right to act in self-defense as a matter of law.   See

supra Part II.D.

     Moreover, Dr. MacDonell’s testimony did not differ greatly

from either of the defense experts’ testimony.   The two defense

experts essentially testified that the most logical theory was

that Mansur stood as he was shot, with his right arm out of the

way, as if he were reaching for something, but they agreed this

was not the only theory that could explain the forensic

evidence.    Dr. MacDonell would have agreed that the defense

theory was the most, maybe only, logical outcome, but that one

“can’t be a certain of a theory like that,” because “anything is

possible,”   The difference between Dr. MacDonell’s opinion and

the other experts’ opinions was negligible.   See United States

v. Gonzalez, 62 M.J. 303, 307 (C.A.A.F. 2006) (noting that the

overlapping nature of the evidence undercuts an argument that

the failure to disclose pursuant to Brady was prejudicial); see

also United States v. Agurs, 427 U.S. 97, 114 (1976) (noting

that the alleged Brady material did not contradict any evidence

already admitted and was similar to other evidence in the record

in holding that there was no Brady violation).




element of the test, then the harmless error test may be
unnecessary).

                                 28
United States v. Behenna, No. 12-0030/AR

     Although there may be value in a Government expert’s

testimony that the defense theory is more convincing than the

Government’s theory of the case, it is significantly less so

when, as in this case, the Government expert did not testify on

behalf of the Government or recant testimony previously

provided.   See United States v. Cooper, 654 F.3d 1104, 1120

(10th Cir. 2011) (recognizing that the value of Brady evidence

must be evaluated in light of the other evidence admitted at

trial).    Dr. MacDonell’s testimony ultimately would not have

added much to Appellant’s case, other than the novelty that it

came from a nontestifying expert witness associated with the

Government’s case.   Candidly, that novelty had little

evidentiary value here in light of the similarity of Dr.

MacDonell’s opinion with the other defense experts and the ease

with which Dr. MacDonell’s opinion could have been impeached by

his failure to provide a reasonably certain or consistent

opinion.    For these reasons, our confidence in the results of

trial -- both for findings and sentencing10 -- is not undermined


10
  Appellant, despite knowing of Dr. MacDonell’s opinion prior to
sentencing, did not ask for a continuance or take any steps to
produce Dr. MacDonell on sentencing or otherwise make his
testimony available at sentencing. This failure belongs to
Appellant, not the Government. Appellant knew of the
information with sufficient time to use the information on
sentencing; thus, the evidence was timely disclosed in regard to
sentencing. See DiSimone v. Phillips, 461 F.3d 181, 196-97 (2d
Cir. 2006) (recognizing that there is no bright-line rule for
when a disclosure is timely; rather, the question is whether the

                                 29
United States v. Behenna, No. 12-0030/AR

by the Government’s failure to disclose Dr. MacDonell’s

testimony.

                               IV.

     The judgment of the United States Army Court of Criminal

Appeals is affirmed.




evidence was disclosed in sufficient time for an accused to take
advantage of the information, a determination necessarily
dependent on the totality of the circumstances).

                               30
United States v. Behenna, No. 12-0030


     EFFRON, Senior Judge, with whom ERDMANN, Judge, joins

(dissenting):

     Appellant served as a platoon leader in Iraq in 2008 in an

area north of Baghdad and Tikrit.   The mission of Appellant’s

unit included counterinsurgency operations and activities in the

Albu Toma area in conjunction with Iraqi forces.   On April 21,

2008, a hostile attack featuring an improvised explosive device

(IED) killed two members of his platoon.   Based upon

intelligence information, Appellant interrogated Ali Mansur, a

person suspected of involvement in terrorist activities, on May

5, 2008, and on May 16, 2008, in an effort to pinpoint

responsibility for the terrorist attack.   Two different

narratives emerged at trial concerning the May 16 interrogation.

The prosecution, based upon witness testimony and forensic

evidence, contended that Appellant murdered Ali Mansur, who was

unarmed, unclothed, and defenseless.    The defense, based

primarily on Appellant’s testimony, contended that Ali Mansur

suddenly reached for Appellant’s weapon during the

interrogation, and Appellant shot Ali Mansur in self-defense.

     At trial, the prosecution and the defense each brought to

the members’ attention evidence in the record supporting their

respective views.   The responsibility for determining what

actually happened -- the crime of murder or justifiable self-

defense -- rested with the members of the court-martial panel.
United States v. Behenna, No. 12-0030


The responsibility for ensuring that the members made this

decision in accordance with the proper legal standards rested

with the military judge.

     Following the close of the evidence, the military judge

offered a variety of instructions regarding the matters at

issue, including an instruction on self-defense.   The defense

objected to the content of the self-defense instruction.    The

military judge rejected the defense objection, and the members

returned a verdict of guilty on the murder charge now under

review.

     Before our Court, Appellant challenges the content of the

instruction, and raises a related issue concerning the failure

of the prosecution to provide timely disclosure of evidence

favorable to the defense.   The majority rejects these challenges

based upon the majority’s conclusion that any instructional

error was harmless.   __ M.J. __ (22-23) (C.A.A.F. 2012).   For

the reasons set forth below, I respectfully dissent.




                                 2
United States v. Behenna, No. 12-0030


                           I.   SELF-DEFENSE

              A. THE DECISIONAL PROCESS IN COURTS-MARTIAL

1.   The separate responsibilities of the military judge and the
     court-martial panel

     In trials by court-martial, Congress has vested the

responsibility for entering findings -- the decision as to

whether a servicemember is guilty -- in the court-martial panel,

which performs the function of a jury.    See Articles 25, 51, 52,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 825, 851,

852 (2006).    To ensure that the panel reaches this determination

in accordance with the law, and not on the basis of extraneous

or other improper influences, the military judge instructs the

panel on the applicable legal standards for reaching the

decision on findings.    See Article 51(c), UCMJ, 10 U.S.C. §

851(c) (2006); Rule for Courts-Martial (R.C.M.) 920.

2.   The requirement to instruct when self-defense is in issue

     Among the required instructions, the military judge must

instruct the panel on any special defense “in issue,” including

self-defense.    R.C.M. 920(e)(3); R.C.M. 916(e); United States v.

Stanley, 71 M.J. 60, 62 (C.A.A.F. 2012) (citing United States v.

McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002)).     The military judge

must treat self-defense as in issue when “‘some evidence,

without regard to its source or credibility, has been admitted

upon which members might rely if they chose.’”    Stanley, 71 M.J.



                                   3
United States v. Behenna, No. 12-0030


at 63 (quoting United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F.

2007)); see Dep’t of the Army, Pam. 27-9, Legal Services,

Military Judges’ Benchbook para. 5-1.a. (Jan. 10, 2010)

[hereinafter Military Judges’ Benchbook] (“The credibility of

witnesses, including the accused, whose testimony raises a

possible affirmative defense, is not a factor in determining

whether an instruction is necessary.”).

3.   Raising the issue of self-defense

     R.C.M. 916(e) sets forth the rules governing self-defense.

Under R.C.M. 916(e)(1):

          It is a defense to a homicide . . . that the
          accused:

               (A) Apprehended, on reasonable grounds,
          that death or grievous bodily harm was about
          to be inflicted wrongfully on the accused;
          and

               (B) Believed that the force the accused
          used was necessary for protection against
          death or grievous bodily harm.

If the record contains “some evidence” raising the issue of

self-defense, the military judge must instruct the members of

their responsibility to make the following determinations.

First, the court-martial panel must decide whether the accused

“had a reasonable belief that death or grievous bodily harm was

about to be inflicted on (himself) . . . .”   Military Judges’

Benchbook para. 5-2-1.    The Benchbook further states: “The test

here is whether, under the same facts and circumstances


                                  4
United States v. Behenna, No. 12-0030


presented in this case, an ordinary, prudent adult person faced

with the same situation would have believed that there were

grounds to fear immediate death or serious bodily harm.”       Id.

Second, the court-martial panel must decide whether the accused

“actually believed that the amount of force (he)(she) used was

required to protect against death or serious bodily harm.”      Id.

In making that decision, the court-martial panel “must look at

the situation through the eyes of the accused.”    Id.   “In

addition to the circumstances known to the accused at the time,”

the court-martial panel must consider other factors pertinent to

the case as identified by the military judge.   Id.

4.   The degree of force

     The military judge also must instruct the members on how to

address the degree of force used by the accused:

          As long as the accused actually believed
          that the amount of force (he)(she) used was
          necessary to protect against death or
          grievous bodily harm, the fact that the
          accused may have used excessive force (or a
          different type of force than that used by
          the attacker) does not matter.

Id.; see United States v. Acosta-Vargas, 13 C.M.A. 388, 393, 32

C.M.R. 388, 393 (1962).

     Depending on the circumstances, the military judge will

instruct the members that:

          [t]he accused, under the pressure of a fast
          moving situation or immediate attack, is not
          required to pause at (his)(her) peril to


                                5
United States v. Behenna, No. 12-0030


           evaluate the degree of danger or the amount
           of force necessary to protect
           (himself)(herself). In deciding the issue
           of self-defense, you must give careful
           consideration to the violence and rapidity,
           if any, involved in the incident.

Military Judges’ Benchbook para. 5-2-6.

5.   Opportunity to retreat or seek help

     Depending on the circumstances, the military judge may be

required to instruct the members to take into account whether

the accused had an opportunity to withdraw safely or obtain the

help of others.    See id.   The responsibility for deciding

whether such factors, in light of the other circumstances,

impact the issue of self-defense rests with the court-martial

panel.   See id.

6.   The effect on self-defense when the accused acts as an
     aggressor, engages in mutual combat, or provokes an attack

     Depending on the circumstances, an accused may lose the

right to self-defense “if the accused was an aggressor, engaged

in mutual combat, or provoked the attack.”    R.C.M. 916(e)(4).

The military judge must provide appropriate tailored

instructions to the court-martial panel if the evidence

indicates that the accused may have engaged in such conduct.

Lewis, 65 M.J. at 87-89; R.C.M. 920(e)(3).    Under the model

instructions set forth in the Benchbook, if the evidence raises

the issue of loss of self-defense by provocation, the military

judge informs the panel that the right of self-defense is not


                                   6
United States v. Behenna, No. 12-0030


lost unless the provoking act “is clearly calculated and

intended by the accused to lead to a fight (or deadly

conflict)”.   Military Judges’ Benchbook para. 5-2-6.

7.   Regaining the right of self-defense

     If there is evidence that the adversary of the accused

“escalated the level of conflict” and placed the accused “in

reasonable apprehension of immediate death or grievous bodily

harm,” the accused regains the right of self-defense.   Id.; see

Lewis, 65 M.J. at 88 (citing United States v. Cardwell, 15 M.J.

124, 126 (C.M.A. 1983)).   Under the model instructions, if the

accused engages in a provoking act or mutual combat involving

“force not likely to produce death or grievous bodily harm” and

the adversary escalates the conflict so that the accused is

placed “in reasonable apprehension of immediate death or

grievous bodily harm,” the accused regains the right of self-

defense.   Military Judges’ Benchbook para. 5-2-6.   As our Court

noted in United States v. Moore, 15 C.M.A. 187, 198, 35 C.M.R.

159, 170 (1964):

     One whose acts provoke a situation wherein he has to
     defend himself, who does so without intending thereby
     to provoke a difficulty, or who does so without intent
     to use the provoked assault as a pretext for killing
     or injury, does not thereby forfeit his right of
     perfect self–defense.

     Because the underlying concept of self-defense involves

protection and not aggression, the military judge is not



                                 7
United States v. Behenna, No. 12-0030


required to give an escalation instruction when the accused uses

deadly force in the midst of a mutual affray to subdue an

adversary.   See Stanley, 71 M.J. at 64 (concluding that the

military judge was not obligated to give such an instruction sua

sponte when four disaffected drug traffickers armed with loaded

weapons engaged in mutual combat in a chaotic fast-moving

situation, and the defense did not present a theory of

escalation at trial or request an escalation instruction; and

observing that the accused’s use of a loaded firearm to subdue

an adversary in that situation constituted the use of deadly

force under the particular circumstances of the case).   A

display of a loaded weapon, however, does not per se constitute

use of deadly force.   See id. at 63 n.3.

8.   The burden of proof

     Where there is some evidence raising the right of self-

defense and the related issues involving the opportunity to

retreat and the loss of the right of self-defense, the

prosecution bears the burden of proving that the accused did not

have the right of self-defense.   Military Judges’ Benchbook

para. 5-2-6.   The responsibility of making the determination

that the accused had an opportunity to retreat, that the accused

lost the right of self-defense, or that the accused did not

regain the right of self-defense, rests with the court-martial

panel.   See id.


                                  8
United States v. Behenna, No. 12-0030


                             B. DISCUSSION

1.   Prelude to the shooting

     The parties generally agree on the predicate events.

During Appellant’s military assignment to the theater of

operations in Iraq, his unit engaged in combat activities

against hostile forces and suffered losses as the result of

terrorist activities in the battlefield environment.     Appellant

sought to pinpoint responsibility for the attack.     Through

intelligence channels, he received information pointing to Ali

Mansur as a person who could provide information about the

attack.   The initial interrogation, and a subsequent

interrogation by other officials, did not produce useful

information about the attack.    During the initial interrogation,

on May 5, 2008, Appellant used his helmet to strike Ali Mansur

on the back, an act that resulted in his conviction for assault.

The validity of that conviction is not at issue in the present

appeal.

     On May 16, 2008, after receiving orders to return Ali

Mansur to his village, Appellant, who was accompanied by a

noncommissioned officer (NCO) and an interpreter, decided on his

own initiative to undertake a further interrogation of Ali

Mansur en route in an isolated culvert.      He did so even though

it involved a deviation from the order he had received to return

Ali Mansur to his village.    Appellant did not have training or


                                   9
United States v. Behenna, No. 12-0030

responsibilities as an interrogator.     The interrogation

techniques Appellant used included removing Ali Mansur’s

clothing, ordering him to sit, pointing a loaded weapon at Ali

Mansur, and threatening to kill him if he did not provide the

requested information.      Appellant acknowledged that in doing so,

he used unauthorized interrogation methods.

2.     The two narratives

       At trial, two different versions emerged as to what next

occurred on May 16, 2008.     The prosecution, relying primarily on

the testimony of the interpreter, the NCO, and forensic

evidence, sought to convince the court-martial panel that

Appellant took Ali Mansur to the culvert in order to kill him,

and that he did so.   Neither the interpreter nor the NCO had a

complete view of the events that immediately preceded the

shooting, and the prosecution relied on other evidence,

primarily the testimony of the pathologist who performed the

autopsy, in an effort to convince the members that Appellant had

engaged in an execution-style shooting of a defenseless person.

       Appellant, in his testimony, acknowledged that he was not a

trained interrogator, that he employed unauthorized

interrogation techniques, and that he should not have done so.

He stated that he used these techniques in an effort to extract

information from Ali Mansur, and that he had no intent to kill

him.   Appellant testified that during the interrogation, he


                                   10
United States v. Behenna, No. 12-0030

heard the sound of concrete hitting concrete over his shoulder.

Appellant further testified that he saw Ali Mansur stand up from

the sitting position and reach for Appellant’s weapon; and at

that point, in self-defense, Appellant shot Ali Mansur.

3.   The limited focus on the unauthorized interrogation
     techniques

     With respect to the unauthorized techniques in the culvert

on May 16, 2008, the Government did not charge Appellant with

criminal violation of a specific order or regulation,

maltreatment of a detainee, simple assault, or assault with a

dangerous weapon, see Articles 92, 93, 128, UCMJ, 10 U.S.C. §§

892, 893, 928 (2006); nor did the Government ask the military

judge to find that the interrogation techniques amounted to any

of those offenses as a basis for addressing the issue of self-

defense.

     The Government did not ask the military judge to conclude

that the interrogation techniques constituted the use of deadly

force for purposes of precluding Appellant from asserting the

right of self-defense; nor did the Government ask the military

judge to instruct the members on whether there was an

opportunity to retreat or seek help from others.   The military

judge did not conclude, as a matter of law or fact, that

Appellant’s interrogation techniques constituted the use of

deadly force or that Appellant’s conduct otherwise precluded a



                               11
United States v. Behenna, No. 12-0030

self-defense instruction.   Instead, the military judge

recognized that self-defense was in issue.   In that regard,

there was “some evidence” in the record, primarily from

Appellant’s testimony, that he used the interrogation techniques

for purposes of extracting information, and not for purposes of

using deadly force to kill Ali Mansur; that Ali Mansur rose from

his sitting position and reached for Appellant’s weapon; and

that, in a fast-moving scenario, and fearing that Ali Mansur

might try to turn the pistol against him, Appellant shot Ali

Mansur in self-defense.   In that context, providing the members

with a self-defense instruction was necessary to ensure that the

decision as to what actually transpired in the culvert would be

properly made by the court-martial panel.

4.   The instructions provided by the military judge

     The issue before us is whether the military judge, in the

course of providing instructions on self-defense, correctly

advised the members on how to address the issue of whether,

based on their assessment of the facts, Appellant lost the right

of self-defense.   In that regard, the granted issue does not

call upon us to decide whether Appellant is, in fact, guilty of

the act of murder.   The granted issue requires us to determine

whether the court-martial panel received instructions from the

military judge on the issue of self-defense that properly

informed the members as to the determinations they would need to


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United States v. Behenna, No. 12-0030

make during the panel’s deliberations on the issue of guilt or

innocence.

     The military judge sought to address the issue of

provocation through the following instruction:

     Now there exists evidence in this case that the
     accused may have been assaulting Ali Mansur
     immediately prior to the shooting by pointing a loaded
     weapon at him. A person who without provocation or
     other legal justification or excuse assaults another
     person is not entitled to self-defense unless the
     person being assaulted escalates the level of force
     beyond that which was originally used. The burden of
     proof on this issue is on the prosecution. If you are
     convinced beyond a reasonable doubt that the accused,
     without provocation or other legal justification or
     excuse, assaulted Ali Mansur then you have found that
     the accused gave up the right to self-defense.
     However, if you have a reasonable doubt that the
     accused assaulted Ali Mansur, was provoked by Ali
     Mansur, or had some other legal justification or
     excuse, and you are not convinced beyond a reasonable
     doubt that Ali Mansur did not escalate the level of
     force, then you must conclude that the accused had the
     right to self-defense, and then you must determine if
     the accused actually did act in self-defense.

The defense objected, arguing that Appellant’s conduct did not

constitute the offense of assault.    The military judge overruled

that objection.

     As noted in the majority opinion, the last sentence of the

instruction is problematic.   It sets forth six different

determinations for the members to make, employs two different

tests for the members to apply, and includes a confusing double-

negative.    The instruction asked the members to make the




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United States v. Behenna, No. 12-0030

following six determinations, with little or no guidance as to

the critical standards applicable to each:

     1.   Did   Appellant assault Ali Mansur?
     2.   Was   Appellant provoked by Ali Mansur?
     3.   Did   Appellant have some legal justification or excuse?
     4.   Did   Ali Mansur escalate the level of force?
     5.   Did   Appellant have the right to self-defense?
     6.   Did   Appellant act in self-defense?

The instruction contains two different tests -- no reasonable

doubt and beyond a reasonable doubt -- without clear linkage to

the separate determinations.    The confusing double-negative

asked the members to determine whether “you are not convinced

beyond a reasonable doubt that [Ali Mansur] did not escalate the

level of force.”

     The record reflects the difficulty the members faced in

comprehending and applying the instruction at issue.    Before the

members closed to deliberate, one of the members asked how an

assault with a weapon nullifies a self-defense argument.    In

response, the military judge read for a second time the entire

instruction on self-defense, without specifically addressing the

member’s question.    In addition, one of the members asked for a

printed copy of all of the instructions, a request that the

military judge denied.

     The instruction failed to provide the panel with any

guidance as to whether Appellant had the opportunity to withdraw

or seek help; nor did it provide the panel with any guidance on



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United States v. Behenna, No. 12-0030

how to determine whether Appellant’s unauthorized interrogation:

(1) constituted an assault as a matter of law; and (2) whether

such conduct, if an assault, also constituted the use of deadly

force for purposes of depriving Appellant of the right of self-

defense.

     The ambiguous wording of the instruction created the

potential for the members to interpret it as requiring the panel

to conclude that self-defense would not apply unless the

evidence demonstrated each of the following:    (1) an absence of

assault; and (2) an escalation by the victim.   Such an

interpretation -- fairly implied from the text of the

instruction but an incorrect statement of the law -- created a

fair risk of prejudice.   The instruction, compromising the right

of Appellant to have the issue of self-defense decided by a

properly instructed court-martial panel, constituted prejudicial

error.   Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006).

     The majority opinion holds that any error was not

prejudicial because no reasonable court-martial panel could have

concluded that Appellant acted in self-defense.   __ M.J. at

__ (23).   Under the majority view, Appellant did not have the

right to defend himself, notwithstanding evidence that a person

suspected of supporting the enemy rose up and reached for

Appellant’s weapon during an interrogation.    The majority takes

the position that Appellant, by virtue of conducting an


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United States v. Behenna, No. 12-0030

unauthorized interrogation that used improper techniques,

including pointing a pistol at the suspect and using threatening

words, did not have the right to defend himself when his life

was threatened.   __ M.J. at __ (18-23).

     I respectfully disagree with the majority’s conclusion on

the question of prejudice.   The evidence at trial established an

issue of self-defense for resolution by the court-martial panel,

not this Court.   The evidence at trial included testimony that:

(1) the events occurred during an interrogation of a person

suspected of aiding enemy forces; (2) the interrogation sought

to obtain information for use in the combat theater of

operations; (3) Appellant removed the suspect’s clothing,

pointed a pistol at the suspect, and used threatening language

for the purpose of obtaining useful information; and (4)

Appellant had no intent to use deadly force against the suspect.

Given the contested nature of this evidence at trial, the

responsibility for deciding what occurred, and whether Appellant

acted in self-defense, rested with a properly instructed court-

martial panel.    See supra Part I.A.

     Under the majority’s approach, the panel should not have

had the opportunity to consider factual issues raised by

Appellant’s testimony, including whether the interrogation

techniques amounted to the use of force likely to produce death

or grievous bodily harm, whether Appellant intended to use the


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United States v. Behenna, No. 12-0030

interrogation techniques as a pretext for killing Ali Mansur, or

whether Appellant reasonably apprehended that Ali Mansur rose up

and reached for Appellant’s weapon for the purpose of killing

Appellant.   These issues, however, were matters for resolution

by a court-martial panel, not this Court.   See supra Part I.A.

     If the Government accuses a member of the armed forces of

conducting an improper and abusive interrogation, the UCMJ

provides ample authority to hold that person accountable in a

court-martial.   See supra Part I.B.3.   Such accountability,

however, does not require the servicemember to sacrifice the

right of self-defense; nor does it deprive the servicemember of

the right to have the panel decide whether, as a matter of fact,

the circumstances justified the use of force to save the

servicemember’s life from an attack by a person suspected of

supporting the enemy.

              II.   DISCLOSURE OF EXCULPATORY EVIDENCE

     Issue II addresses the Government’s obligation to provide

timely disclosure of exculpatory information to the defense.

The information at issue had a direct bearing on Appellant’s

view of the case -- that he acted in justifiable self-defense.

The majority concludes that any failure by the Government to

disclose exculpatory information to Appellant in a timely manner

did not prejudice Appellant.   The majority relies primarily on

the views set forth in the majority’s discussion of Issue I, in


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United States v. Behenna, No. 12-0030

which it concludes that any error with respect to the question

of self-defense did not prejudice Appellant.    In the majority’s

view, the question of self-defense had no decisional

significance in the case, rendering harmless any error in the

disclosure of exculpatory information.    I respectfully disagree.

                         A. TRIAL PROCEEDINGS

     The prosecution retained at Government expense a highly

respected authority in forensic evidence, Dr. Herbert MacDonell,

as an expert consultant and possible expert witness.   During

trial, the Government rested its case without calling Dr.

MacDonell to testify, but continued to rely on him as an expert

consultant during the presentation of the defense case,

including the testimony of Appellant and the forensic experts

called by the defense.

     On Wednesday, February 25, 2009, Dr. Paul Radelat and Mr.

Tom Bevel testified as expert witnesses for the defense and

offered their opinions on the forensic evidence.   They opined

that the evidence indicated that Ali Mansur had been shot while

standing, with the first shot to the chest and the second shot

to the head.   That testimony had great significance for the

defense, as it provided scientific support for the defense

theory of the case.   In particular, that testimony tended to

refute the Government’s theory that Appellant shot Ali Mansur

while he was sitting, and it tended to support the defense


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United States v. Behenna, No. 12-0030

theory that Ali Mansur was in an upright position, moving

towards Appellant’s weapon, when Appellant shot him in self-

defense.

     Consistent with the standard practice for expert

consultants and potential expert witnesses, Dr. MacDonell sat in

the courtroom and listened to the testimony of the defense

experts.   See M.R.E. 703.   After observing the testimony of the

defense witnesses, Dr. MacDonell met with another Government

consultant, Dr. Berg, and the three prosecutors to discuss

strategy and possible rebuttal.

     The military judge later found that during this meeting,

Dr. MacDonell “theorized and demonstrated that an unlikely but

possible scenario, that was not inconsistent with the forensic

evidence and the only logical explanation consistent with the

testimony of Dr. Radelat and Mr. Bevel” was that Ali Mansur was

shot first in the chest and second in the head.      The military

judge also found that “[t]his theory was not inconsistent with

the forensic evidence, but was inconsistent with all other

evidence known to the Government counsel and Dr. MacDonell.”        At

this point, Appellant had not yet taken the witness stand.

     On Thursday, February 26, 2009, Appellant testified that as

Ali Mansur stood up and reached for his pistol, Appellant shot

him twice.   Again, Dr. MacDonell was in the courtroom in his

capacity as a Government expert.       After hearing Appellant’s


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United States v. Behenna, No. 12-0030

testimony, Dr. MacDonell told Dr. Berg, “That’s exactly what I

told you yesterday.”   Late Thursday afternoon, the prosecution

released Dr. MacDonell, who had requested permission to depart.

As he left the courtroom, Dr. MacDonell approached the lead

civilian defense counsel and said, “I would have made a great

witness for you,” or words to that effect.   When asked what he

meant by that, Dr. MacDonell responded that he couldn’t comment

because he was hired by the Government.

     On Friday morning, February 27, 2009, the defense counsel

approached the trial counsel, told her about the encounter with

Dr. MacDonell, and asked her to explain what Dr. MacDonell meant

by his remark.   The trial counsel said she did not know, and

that she was unaware of any exculpatory information.   Neither

party took any further action at that point, and the case

proceeded to the announcement of findings Friday evening.

     In the evening, trial counsel received an e-mail sent by

Dr. MacDonell earlier that afternoon, which included Dr.

MacDonell’s observation that he was “concerned that I did not

testify and have a chance to inform the court of the only

logical explanation for this shooting,” namely that Ali Mansur

was standing when shot. (Emphasis added.)    The trial counsel

immediately forwarded it to the defense counsel on Friday night.

The military judge also received a copy that night after the

findings were announced.


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United States v. Behenna, No. 12-0030

     On Saturday morning, February 28, 2009, the defense moved

for a mistrial based upon the Government’s failure to disclose

Dr. MacDonell’s opinion in a timely manner.   The military judge

heard testimony on the motion from Dr. MacDonell and accepted an

oral stipulation of fact as to the conversation between the

defense counsel and the trial counsel.   Neither side offered

additional testimony, but both the defense counsel and the trial

counsel proffered their recollection of the events.    Ultimately,

the military judge denied the motion for a mistrial.   He found

that “[t]here is only one reasonable interpretation of Dr.

MacDonell’s statement, in light of his area of expertise i.e.,

that he would have testified that in his opinion the forensic

evidence in some way favorably supported the Defense theory of

the case.”   He also concluded that Dr. MacDonell’s statement to

the defense that he would have made a good defense witness was

sufficient notice that he possessed favorable information under

both Brady v. Maryland, 373 U.S. 83 (1963), and R.C.M. 701.

     The military judge, however, did not focus his inquiry on

whether the trial counsel erred by not sooner exploring this

issue with Dr. MacDonell.   Instead, the military judge expressed

concern as to whether the defense counsel were ineffective, as a

matter of law, in not conducting their own exploration of Dr.

MacDonnell’s comment.   The military judge concluded that, even




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United States v. Behenna, No. 12-0030

if the defense team was deficient, there was no prejudice given

the strong evidence supporting the murder conviction.

                            B.    DISCUSSION

     An accused is entitled to “a meaningful opportunity to

present a complete defense.”      California v. Trombetta, 467 U.S.

479, 485 (1984).   To aid the defense counsel in doing so, the

government must disclose evidence that is material and favorable

to the defense.    Brady, 373 U.S. at 87; R.C.M. 701.       Before

trial, the defense made a specific request for the disclosure of

all exculpatory evidence.    In the present case, the Government

bears the burden of proving, as a matter of law, that

nondisclosure in response to a specific request is harmless

beyond a reasonable doubt.       United States v. Webb, 66 M.J. 89,

92 (C.A.A.F. 2008).

     In view of the prosecution’s disclosure of Dr. MacDonell’s

e-mail after the return of findings, the issue before us

involves the timing of the disclosure.         Specifically, whether

the disclosure to the defense on Friday night, after the return

of findings, constituted timely disclosure in view of the

prosecution’s awareness of Dr. MacDonell’s views prior to the

return of findings.

     As noted by the United States Court of Appeals for the

Second Circuit in Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir.

2001) (citations omitted):


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United States v. Behenna, No. 12-0030

     It is not feasible or desirable to specify the extent
     or timing of disclosure Brady and its progeny require,
     except in terms of the sufficiency, under the
     circumstances, of the defense’s opportunity to use the
     evidence when disclosure is made. Thus disclosure
     prior to trial is not mandated. Indeed, Brady
     requires disclosure of information that the
     prosecution acquires during the trial itself, or even
     afterward.

     . . . At the same time, however, the longer the
     prosecution withholds information, . . . the less
     opportunity there is for use.

     The comments by Dr. MacDonell to the trial counsel on

Wednesday afternoon placed trial counsel on notice that Dr.

MacDonell held an opinion favorable to the defense that she had

a duty to promptly disclose.   Irrespective of the duty on

Wednesday afternoon, when the defense counsel approached the

trial counsel and questioned her about Dr. MacDonell’s startling

statement that he would have made a good defense witness, the

trial counsel at that point had a duty to contact Dr. MacDonell,

to inquire promptly into the meaning of that statement, and to

disclose the information to the defense team as soon as

possible.

     In denying the motion for a mistrial, the military judge

concluded that even if the defense had sought to put Dr.

MacDonell on the stand to offer his opinions, he would have

ruled that testimony inadmissible.    The military judge set forth

two reasons for that conclusion.     First, Dr. MacDonell’s opinion

of the value of the forensic evidence never really changed.


                                23
United States v. Behenna, No. 12-0030

Second, any “revised” opinion was not based on any reassessment

of the evidence but merely reflected his evaluation of

Appellant’s credibility.   The Court of Criminal Appeals held

that the military judge would not have abused his discretion in

precluding that testimony.   United States v. Behenna, 70 M.J.

521, 530 (A. Ct. Crim. App. 2011).     Even if the testimony had

been admitted, the lower court concluded that the outcome of the

trial would not have changed in view of the Government’s

overwhelming evidence of guilt.    Id.

     The issue of whether Dr. MacDonell’s opinion was changed or

revised has no bearing on the duty to disclose.    The information

was favorable to the defense.   As noted by the military judge,

the “only . . . reasonable interpretation of Dr. MacDonell’s

statement . . . favorably supported the Defense theory of the

case.”   The fact that Dr. MacDonell came to that view after

considering the facts, data, and testimony presented during the

court-martial underscores the importance of timely disclosure.

See R.C.M. 703; United States v. Houser, 36 M.J. 392, 399

(C.M.A. 1993).

     The record demonstrates that Dr. MacDonell’s potential

testimony setting forth his expert views was not confined to a

mere belief in the credibility of Appellant’s testimony.    He

would have provided the court-martial panel with detailed,

expert testimony, supplementing the information that had been


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United States v. Behenna, No. 12-0030

provided by the two defense experts, from the perspective of a

Government-employed consultant of considerable reputation.    See

United States v. Mustafa, 22 M.J. 165, 166 (C.M.A. 1986)

(describing Dr. MacDonell as the “preeminent practitioner in the

field”).

     The Government’s theory of the case, as articulated

immediately prior to closing of the trial for deliberation on

findings, underscores the prejudice to Appellant stemming from

the failure to provide timely disclosure of Dr. MacDonell’s

opinion.   The prosecution’s closing argument sought to assure

the members that the testimony from the defense experts had

little worth because they simply set forth possibilities instead

of a definite opinion based upon the forensic evidence.    Had Dr.

MacDonell been called to testify by the defense, it is

reasonably foreseeable that he would have added further

information from an important perspective, beyond the testimony

of the defense experts, based upon his expertise in blood

spatter analysis.

                         III.   CONCLUSION

     A death occurred in the theater of operations.   A soldier

has been convicted of murder.   Was it murder or self-defense?

By law, the responsibility for making that factual determination

rested with the court-martial panel, not with this Court.    The

ambiguous, confusing, and incorrect instructions from the


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United States v. Behenna, No. 12-0030

military judge deprived Appellant of the right to have a panel

of officers make that decision.    The military judge compounded

that error by failing to take corrective action with respect to

the Government’s failure to provide timely disclosure of

exculpatory evidence.   This Court should reverse the decision of

the Court of Criminal Appeals and authorize a rehearing.




                                  26
