               UNITED STATES NAVY-MARINE CORPS
                  COURT OF CRIMINAL APPEALS
                       WASHINGTON, D.C.

                                  Before
                J.A. FISCHER, K.M. MCDONALD, D.C. KING
                         Appellate Military Judges

                      UNITED STATES OF AMERICA

                                      v.

                        DAVID MONTALVO III
               LANCE CORPORAL (E-3), U.S. MARINE CORPS

                           NMCCA 201400241
                       GENERAL COURT-MARTIAL

Sentence Adjudged: 31 January 2014.
Military Judge: LtCol C.J. Thielemann, USMC.
Convening Authority: Commanding General, 1st Marine
Division (Rein), Camp Pendleton, CA.
Staff Judge Advocate's Recommendation: Maj V.G. Laratta,
USMC.
For Appellant: James S. Trieschmann, Jr., Esq.; LT
Christopher McMahon, JAGC, USN.
For Appellee: LT James Belforti, JAGC, USN.

                               27 May 2015

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.

KING, Judge:

     A general court-martial consisting of officer and enlisted
members convicted the appellant, contrary to his pleas, of two
specifications of rape in violation of Article 120, Uniform Code
of Military Justice, 10 U.S.C. § 920. The members sentenced the
appellant to be reduced to pay grade E-1, confinement for nine
years, and a dishonorable discharge.            The convening authority
approved the sentence as adjudged.

     The appellant now raises two assignments of error 1: (1) the
military judge erred by denying his request to continue his
trial and (2) the appellant was denied his Sixth Amendment right
to counsel in the post-trial phase of his court-martial.

     After carefully considering the record of trial, the
parties’ briefs, and oral argument, we find merit in the first
assignment of error, our action on which moots the second
assignment of error. 2
                            Background

     VAM was twenty-two years old at the time of the incident.
Her nineteen-year-old friend and coworker, Ms. B, invited VAM to
stay the night at her house on 4 October 2012 and be introduced
to Ms. B’s boyfriend, Lance Corporal (LCpl) C, who lived in a

1
  I. WHETHER THE MILITARY JUDGE ERRED IN LIMITING LCPL MONTALVO’S
CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY DENYING A REQUEST FOUR DAYS
BEFORE TRIAL FOR A CONTINUANCE TO INVESTIGATE NEWLY DISCOVERED INFORMATION
WHEN SUCH INFORMATION WAS RECEIVED LATE DUE TO GOVERNMENT’S FAILURE TO TIMELY
COMPLY WITH THE RULES OF DISCOVERY AND THE DEFENSE WAS OTHERWISE INCAPABLE OF
DISCOVERING THIS INFORMATION BECAUSE THEY WERE PROHIBITED FROM QUESTIONING
THE ALLEGED VICTIM.

II. WHETHER LCPL MONTALVO WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL IN THE POST-TRIAL PHASE OF HIS COURT-MARTIAL WHEN
DEFENSE COUNSEL FAILED TO REQUEST DEFERMENT OF CONFINEMENT AND DEFERMENT IN
REDUCTION OF RANK DESPITE THE FACT THAT LCPL MONTALVO SPECIFICALLY REQUESTED
THAT THEY DO SO.
2
    The court also specified the following issues:

I. IF THE COURT WERE TO FIND THAT THE MILITARY JUDGE ABUSED HIS DISCRETION IN
DENYING THE TRIAL DFENSE COUNSEL’S CONTINUANCE REQUEST, IS THE APPELLANT
ENTITLED TO RELIEF ONLY IF WE ALSO FIND THE ERROR MATERIALLY PREJUDICED A
SUBSTANTIAL RIGHT OF THE APPELLANT’S?

Ia: IF YES, WHAT, IF ANY, SPECIFIC MATERIAL PREJUDICE TO A SUBSTANTIAL RIGHT
DID THE APPELLANT SUFFER?

II. ASSUMING THE INFORMATION SPECIFICALLY REQUESTED BY THE DEFENSE AND
SUBPOENED FROM AT&T DOES NOT QUALIFY AS BRADY MATERIAL, WERE THE APPELLANT’S
DISCOVERY RIGHTS UNDER ARTICLE 46, UCMJ, AND RULE FOR COURTS-MARTIAL 701, MANUAL
FOR COURTS-MARTIAL, UNITED STATES (2012 ed.) VIOLATED?

IIa: IF YES, DOES THE APPELLANT HAVE THE BURDEN TO IDENTIFY MATERIAL
PREJUDICE TO A SUBSTANTIAL RIGHT, OR MUST THE GOVERNMENT SHOW THAT THE
NONDISCLOSURE WAS HARMELSS BEYOND A REASONABLE DOUBT, AND HAS THE RESPONSIBLE
PARTY MET THEIR BURDEN?


                                        2
barracks located on Camp Pendleton. At around 2200, VAM and Ms.
B arrived at LCpl C’s barracks and found LCpl C in the barracks
room of the appellant, where the two Marines were playing
videogames and drinking beer. According to VAM, the four of
them sat in the room and socialized. A few hours later, VAM
became bored and told Ms. B that she was ready to leave. The
Marines escorted them to their car, where VAM testified that
while hugging her goodbye, the appellant groped her buttocks.
Ms. B and VAM then returned to Ms. B’s home.

     At approximately 0230, Ms. B received a text from LCpl C
asking that she return to the barracks. When informed that Ms.
B planned to return, VAM decided to go with her because she was
“uncomfortable with her going alone because it was so late at
night.” 3 Upon arriving back at the appellant’s barracks room,
VAM noticed the appellant was even more intoxicated, so much so
that he was unable to stand without assistance or walk without
staggering. Shortly after arriving, Ms. B and LCpl C departed
for LCpl C’s room, leaving VAM and the appellant alone in the
appellant’s room.

     VAM testified that, at approximately 0300, while she was
helping the appellant look for his phone charger, the appellant
moved behind her and began removing her clothing. Ignoring her
request to stop, the appellant pushed VAM backwards onto the
twin bed and proceeded to engage in oral, vaginal, and anal
intercourse with her over the next three hours. Once the
assault ended, VAM testified that she got dressed and moved to
the spare bed where she lay awake until approximately 0630 when
another Marine knocked on the appellant’s door. Once the
appellant awoke, he picked up the beer bottles in his room and
departed the room with VAM. VAM testified that she and the
appellant told each other to “have a nice day” and went their
separate ways.

     At around 1300 on 5 October 2012, VAM and Ms. B went to
work, where VAM’s aunt also worked. VAM testified that she had
visible bruising on her arm and claims she was concerned that
her family would see it, discover that she was assaulted, and
react negatively. After speaking to several people at her work,
VAM finally decided to report her allegations, called her
parents, and went to the hospital. A subsequent exam indicated
injuries to VAM’s vagina and anus consistent with sexual
activity and the appellant’s DNA was discovered on VAM’s body.

3
    Record at 654.


                                3
The DNA from a separate male was also discovered in VAM’s
underwear, although VAM testified that her most recent sexual
activity with that male was several months prior to the assault.

     VAM declined to appear at the Article 32, UCMJ, hearing,
and the defense was unable to interview her before the trial. 4
Defense requests to depose VAM were denied by the convening
authority and the military judge. The case was referred to a
general court-martial on 26 June 2013, and trial was set for 21
October 2013. However, on 8 October 2013 the military judge
granted a continuance until 17 January 2013 due to the
unavailability of a defense witness.

Second Continuance Request

     On or about 18 December 2013, the defense realized that the
Government had failed to turn over a portion of the
investigative report containing the results of a search of VAM’s
cellular telephone. The defense contacted the trial counsel,
who immediately corrected the inadvertent nondisclosure. Once
the information was received, the defense noticed discrepancies
between VAM’s statements to investigators and the data pulled
from her cellular phone, indicating that evidence may have been
deleted from the cellular phone. Therefore, the defense
immediately requested that the Government subpoena VAM’s “phone
records and text message records” during the relevant time
periods. The Government agreed and served that subpoena on AT&T
the following day.

     Trial was set to commence on 27 January 2014. However,
since AT&T had yet to comply with the subpoena, on 22 January
2014 the defense filed a motion to continue the trial until the
subpoenaed information had been provided. The next day, the
trial counsel provided the defense with a copy of VAM’s cellular
phone bill (bill) covering the relevant time frame as a
substitute for the information subpoenaed from AT&T. The
defense discovered discrepancies between the newly provided bill
and the previously provided discovery. Additionally, AT&T
informed the defense counsel that the subpoenaed information
would provide more detailed information than the phone bill,
including a list of all text messages sent or received.

     At an Article 39(a), UCMJ, hearing held on 24 January 2013,
the defense informed the military judge of the status of the

4
  The record indicates that initial defense requests to interview VAM were
denied and a third attempt was unsuccessful due to scheduling issues.
                                      4
discovery request and also pointed out that the recently
provided bill indicated that beginning at about 1900 and
continuing until just minutes before VAM claims the assault
commenced, VAM texted back and forth 86 times to an individual
with a phone number containing a 404 area code. 5 This
information was deleted from VAM’s phone prior to NCIS
collecting the phone data, and the defense was unsuccessful in
ascertaining the identity of this person. 6 Since the defense had
been provided the information only hours earlier and the
identity of this person and the content of the texts sent
moments before an assault could produce relevant information,
the defense added these justifications to its request for a
continuance.

    In the ensuing colloquy, the military judge questioned the
importance of the text messages, asking the civilian defense
counsel, “why is any of the content of the text messages really
necessary for a fundamentally fair trial for [the appellant]?” 7
Defense counsel responded essentially that he “didn’t know what
he didn’t know” but insisted that he was not on a “fishing
expedition.” 8 Instead, he reiterated that the previously
provided records of cell phone activity indicated the very
strong possibility of “some manipulation . . . of information on
her phone before she [gave] it to law enforcement.” 9 The defense
then argued that:

      [T]his truly is a he said she said [case]. Her
      credibility is the issue in this case. Yes, there are
      some other things that we can cross-examine her on, but
      we are entitled and should be entitled to cross-examine
      her on everything that we legally can. And here in this
      case . . . we’ve got this mystery person that she[’s]
      texting . . . prior to, immediately prior and slightly
      after the event. But if you look elsewhere in this
      billing statement that number doesn’t appear anywhere
      else. Whoever this person is, I think that a fair
      inference is he or she had something to do with the

5
    Record at 211; Appellate Exhibit XXXI at 19.
6
  Defense counsel called the number and left a voice message, which was never
returned.
7
    Id. at 217.
8
    Id. at 218.
9
    Id.


                                        5
       events of this evening. Not necessarily the alleged
       assault, but possibly the reason why she’s there,
       interactions that she may have been having with [Ms. B]
       . . . this is the kind of . . . huge mud cloth right in
       the middle of our evidence that had we – if we had more
       time, we absolutely would have the run down. And we
       only . . . had this literally yesterday. It’s now
       Friday, we have Saturday and Sunday and boom we are in
       trial on Monday. 10

    To this the military judge responded, “[W]hy did it take
almost three months for you to sift through records to realize
. . . I’m missing an enclosure here that you were supposed to be
given to me, Government.” 11 Civilian defense counsel responded
they “did identify this issue in plenty of time to have it
resolved.” 12

    Although the military judge conceded that the defense
concerns had “traction,” 13 he nonetheless determined that “the
fact that [VAM] was texting someone . . . for the five hours
prior to the event . . . does not persuade me that she’s trying
to cover something up. It seems to be more of a level of, none
of your business, if she did delete those messages.” 14
Accordingly, the military judge denied the request for a
continuance, founding his ruling on the following factors:

       (1) “[T]he impact of the lead trial counsel’s ability
       to maintain this case.” While recognizing the concept
       that “trial counsel are typically fungible[,]” the
       military judge held that “[t]he Court does not adopt
       that philosophy in more complex cases.” 15

       (2) The “significant administrative concerns related to
       the scheduling of witnesses in addition to money. Cost
       to the government is not so much of a concern for this


10
     Id. at 226.
11
     Id.
12
     Id.
13
     Id. at 225.
14
     Id. at 237.
15
     Id. at 233.


                                   6
       court notwithstanding [the] lean times in our
       government.” 16

        (3) The fact that “defense has had the bulk of this
        discovery—albeit the one enclosure—for approximately
        three months. And it took almost three months before
        the defense identified that missing enclosure.” 17

        (4) A previously granted continuance request.   On this
        point the military judge stated:

             To grant another continuance at this point in time
             would simply allow us to kick the can forward,
             potentially get some AT&T records that might
             explain not only some missing messages in the NCIS
             Celebrite extract, but also allow the defense some
             additional time to pursue numbers they had not
             seen before this billing statement[.] While
             understanding what the victim was doing just
             before the alleged incident in this case is
             relevant and is important to set the context, the
             timeline for this case, it is not so compelling to
             know exactly who she may have been speaking to
             when a number and a place seem to be limited to
             the moments – or the hours . . . before the
             alleged assault in this case. . . . We don’t know
             what we don’t know[,] [a]nd the fact is: Even if
             we were to find out who owned the 404 number, this
             is not something that could ever possibly develop
             into a situation that the victim in this case was
             trying to fabricate a story, trying to cover up
             some type of consensual relationship with [the
             appellant] for fear of that individual finding
             out[.] . . . [N]ot allowing additional time to
             pursue this particular area does not impact, in
             this court’s mind, Lance Corporal Montalvo’s
             ability to pursue justice and defend himself
             against these charges. 18 . . . [T]he bottom line
             for me . . . is that I understand [the defense
             counsel’s] concerns. I just don’t see them as
             being enough to compel a continuance to which –


16
     Id.
17
     Id. at 234.
18
     Id. at 234-35.


                                   7
             when I look at the long range docket within our
             circuit, we are already quite busy. 19

        (5) Ample existing impeachment evidence. The military
        judge ruled that “the Court believes that there’s
        already sufficient basis in the record for many levels
        of impeachment of the victim.” 20

        (6) Finally, the anticipated three-month delay that
        would be caused by a continuance due to counsel and
        witness schedules.

     The record does not indicate whether the subpoenaed
information was ever received by the Government, nor whether the
identity of the person with whom VAM was texting prior to the
assault was ever determined.

                               Discussion

      The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have
the Assistance of Counsel for his defence.” The Supreme Court
has held that “this right has historically been, and remains
today, the opportunity for a defendant to consult with an
attorney and to have him investigate the case and prepare a
defense for trial.” Kansas v. Ventris, 556 U.S. 586 (2009)
(citation and internal quotation marks omitted). This right
extends to the “meaningful opportunity to present a complete
defense.” United States v. Gaddis, 70 M.J. 248, 252 (C.A.A.F.
2011) (citation and internal quotation marks omitted). Moreover,
RULE FOR COURT MARTIAL 701(e), MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), provides that “[e]ach party shall have adequate
opportunity to prepare its case[.]” R.C.M.. When necessary to
prepare its case, the military judge should grant a continuance
“for as long and as often as is just.” R.C.M. 906(b)(1),
Discussion (citation omitted).

     At trial, the appellant shoulders the burden, by a
preponderance of the evidence, to show “reasonable cause” for
the continuance request, United States v. Allen, 31 M.J. 572,
620, 623 (N.M.C.M.R. 1990), aff'd, 33 M.J. 209 (C.M.A. 1991),
and we will reverse a military judge’s decision on a continuance
request only for an abuse of discretion, United States v.
Miller, 47 M.J. 352, 358 (C.A.A.F. 1997). There is an abuse of
19
     Id. at 236.
20
     Id. at 235.
                                   8
discretion “where reasons or rulings of the military judge . . .
deprive a party of a substantial right such as to amount to a
denial of justice[.]” Miller, 47 M.J. at 358 (citations and
internal quotation marks omitted). The propriety of granting a
continuance is always fact-specific and must be decided in light
of the peculiar circumstances surrounding each case. Ungar v.
Sarafite, 376 U.S. 575, 589 (1964).

To determine whether the military judge abused his discretion,
we consider the following factors:

       surprise, nature of any evidence involved, timeliness of the
       request, substitute testimony or evidence, availability of
       witness or evidence requested, length of continuance,
       prejudice to opponent, moving party received prior
       continuances, good faith of moving party, use of reasonable
       diligence by moving party, possible impact on verdict, and
       prior notice.

Miller, 47 M.J. at 358 (citation and internal quotation marks
omitted).

     Applying these principles and the relevant Miller factors
to this case, we note the following:

1. Surprise and timeliness of motion/Good faith of moving
party. Five days before trial, and apparently prior to any of
the witnesses traveling to the trial site, the defense notified
the military judge that the trial counsel was still working with
AT&T to collect the subpoenaed information. Three days before
trial, the defense was provided the bill, wherein they
discovered the new evidence and immediately requested a
continuance. Other than the “late” discovery that the defense
was missing (the Celebrite enclosure), discussed further below,
the military judge stated that “the Court is not concerned in
any regard with the defense’s late filing.” 21 Nor are we.

2. Nature of the Evidence. The appellant’s defense strategy was
that the sexual activity was consensual and that VAM’s
allegations were false, making a challenge to VAM’s credibility
the lynchpin to that defense. The information sought by the
defense -- the identity of the individual with whom VAM was
communicating as she sat in the appellant’s room moments before
the assault -- was reasonably likely to have led to the

21
     Id. at 234.


                                  9
discovery of what VAM was discussing seconds before she claims
she was assaulted. The fact that these texts were deleted from
VAM’s phone is sufficient to raise the inference that VAM did
not want them discovered and therefore that the texts had
potential evidentiary value.

3. Substitute Testimony or Evidence. Apart from the subpoenaed
information, the defense was seeking an opportunity to discover
with whom VAM was texting immediately prior to the assault and
the content of those texts. The only other source of this
information was VAM herself, who had previously refused to speak
to the defense. In fact, in opposition to the continuance
request, trial counsel argued that the defense could “cross-
examine [VAM] and certainly make the inference, hey you’re
texting somebody; who is it and why did you delete those text[s]
from your phone?” 22 However, as the eventual cross examination
of VAM shows, without the source information such efforts
predictably proved fruitless:

        Q: Were you texting with anybody that evening?
        A: Probably.

        Q: If you were texting with somebody that evening, who
        do you think that was?
        A: It could have been quite a few people.

        Q: Okay, is it possible you were texting with only
        one person that evening?
        A: I believe I was texting a few more than one person
        that evening.

        Q: Okay, if I tell you a phone number, I just want to
        see if you recognize a particular number 404 area
        code, 655-[XXXX]?
        A: I’m sure I know that number, but I don’t know who
        it belongs to.

        Q: Okay. Just as you are sitting here, you don’t
        recognize that number?
        A: Right. 23

        . . . .


22
     Id. at 224.
23
     Id. at 682.


                                  10
        Q: Do you recall whether or not you were texting
        repeatedly one person throughout that evening?
        A: I’m sure that I was, but I don’t remember
        specifically who it was. 24

Contrary to the Government’s position that “Appellant had ample
opportunity to probe VAM’s contact with the ‘404’ number and
whoever else she may have been texting that night,” 25 we find
this exchange devoid of impeachment value vis-à-vis the content
of the texts. We also generally find reliance upon blind cross
examination a wholly inadequate substitute for either pretrial
preparation or of our liberal pretrial discovery practice. 26

     Additionally, we take issue with the military judge’s
finding that a continuance was not required because “there’s
already sufficient basis in the record for many levels of
impeachment of the victim.” 27 The premise of this ruling assumes
the value of the sought-after evidence was no more significant
than the impeachment evidence then available to the parties.
That premise is erroneously based upon speculation, for had the
evidence indicated that the sexual activity between the
appellant and VAM was consensual, no amount of other
“impeachment” evidence would have sufficed to render this
evidence cumulative.

4. Availability of Evidence Requested. A reasonable continuance
would have given the defense a fair opportunity to discover the
content of the text messages, with or without the assistance of

24
     Id. at 690.
25
     Appellee’s Answer of 28 Jan 2015 at 14.
26
  See MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.), App. 21, at A21-33,
R.C.M. 701 Analysis (“Military discovery practice has been quite liberal
. . . . Providing broad discovery at an early stage . . . leads to better
informed judgment about the merits of the case and . . . contributes
substantially to the truth-finding process . . . . It is essential to the
administration of military justice[.]”).
27
   Record at 235. The “many levels of impeachment” referred to by the
military judge included: (1) DNA from both the appellant and from VAM’s
former fiancée were discovered in VAM’s underwear and (2) Ms. B claimed that
VAM spent time with another male between her visits to the appellant’s room.
However, at trial, VAM’s former fiancée testified that the last time he had
intercourse with VAM was months prior to the alleged incident earlier and VAM
explained that the underwear she wore to appellant’s room must not have been
laundered. The defense did not attempt to impeach VAM on whether she had
spent time with another male on the evening in question, and Ms. B did not
testify.


                                        11
a subpoena and/or a warrant of attachment. 28 Moreover, we concur
with defense counsel that this opportunity did not represent a
“fishing expedition.” Instead, it may be likened to the
situation wherein the defense is denied the opportunity to
interview any other percipient witness who communicated with VAM
moments before the assault began. Certainly the defense would
deserve the opportunity to discover what that witness observed
and a failure to do so would surely be questioned. See, ABA
Standards for Criminal Justice: Prosecution and Defense
Function, Standard 4-4.1(a) (3d ed. 1993) (defense counsel
should conduct a prompt investigation of the circumstances of
the case and explore all avenues leading to facts relevant to
the merits of the case and the penalty in the event of
conviction.) See also United States v. Scott, 24 M.J. 186, 192
(C.M.A. 1987) (finding ineffective assistance of counsel when
defense counsel failed to conduct adequate pretrial
investigation.)

5. Length of Continuance. The defense did not specify the
amount of time needed, but the military judge estimated that,
due to the parties’ and witnesses’ schedules, a delay would
require a postponement of at least three months.

6. Prejudice to Opponent. The Government did not complain --
and the record reveals no reason to believe -- that the
Government’s case would be adversely impacted by the requested
continuance. Instead, trial counsel argued only that “competing
interests” weighed in favor of denying the continuance request.
This was so because the evidence was “potential impeachment and
nothing more;” the defense “should have known the enclosure
[was] missing back when they received it;” 29 there was already
one continuance granted; VAM could be cross-examined on the
missing texts; and the content of the texts was not available
via subpoena. 30 We are unpersuaded by the trial counsel’s
assertion that any of these “competing interests” were
sufficient to justify denying this continuance request.



28
     R.C.M. 703(e)(2)(G).
29
     Record at 220-22.
30
  The trial counsel based this statement not upon information from the
cellular provider, but upon his personal experience. Even if true, the
identity of to whom the 404 number was assigned could likely have been
determined by use of a subpoena, and once known, could have led to evidence
regarding the content of the texts.


                                     12
     The military judge then expressed concern, sua sponte,
about the “lead trial counsel’s ability to maintain this case,” 31
although the record provides no basis for this concern. Even if
it did, and while we allow for the possibility that the loss of
a lead trial counsel may prejudicially impact the prosecution of
another case, we find nothing in the record to make us believe
that would have happened here. Thus, in this case, we find no
reason to depart from the well-established principle that trial
counsel are generally fungible. United States v. Royster, 42
M.J. 488, 490 (C.A.A.F. 1995).

     The military judge also expressed “significant
administrative concerns related to the scheduling of
witnesses[.]” 32 However, the trial counsel indicated that the
witnesses had not yet begun to travel for this court-martial
and, while we recognize that experience may lead the military
judge to reasonably conclude that expert witnesses had busy
schedules that would require shuffling if the trial was
continued, the record is silent as to any actual impact.

7. Prior Continuances. The defense had received one continuance
because of the medical unavailability of a defense witness.

8. Reasonable Diligence by Moving Party. The military judge
found that “the defense has had the bulk of the discovery --
albeit the one enclosure -- for approximately three months. And
it took almost three months before the defense identified the
missing enclosure.” 33 To the extent the military judge faulted
the defense for the necessity to seek a continuance, he abused
his discretion.

     Over a month prior to trial, the defense noticed the
omitted discovery, re-requested the discovery the next day, and
then requested the records be subpoenaed a day after the
discovery was provided. Only when the subpoenaed evidence was
not provided did the trial counsel then seek the bill, which
disclosed the existence of the texts in question, and only then
did the Government provide the bill to the defense, on the
Friday before a trial set to begin the following Monday. While
we encourage review of discovery at the earliest opportunity, we
also recognize that the Government could have sought out and
provided the bill to the defense prior to a few days before

31
     Id. at 233.
32
     Id.
33
     Id. at 234.
                                13
trial, reducing the likelihood that a continuance would be
necessary.

     As for the subpoenaed information, the record indicates the
parties were working with AT&T to obtain the information until
the week before trial, at which point the defense brought the
matter to the court’s attention. That said, the defense
requested the information and the Government agreed to obtain
it. The Government alone wields the power to compel production
of evidence, and once the evidence has been determined to be
relevant and necessary, the trial counsel “shall arrange” for
its production. See R.C.M. 703(f)(3), (c)(2)(D), (f)(4)(b).
Under these circumstances, the failure to obtain this evidence
prior to the working day before trial may not be laid at the
feet of the defense.

9. Possible Impact on the Verdict. Any time defense counsel
raises the reasonable possibility of being unprepared for trial,
a military judge must proceed cautiously. See United States v.
Powell, 49 M.J. 220, 225 (C.A.A.F. 1998) (citing United States
v. Browers, 20 M.J. 356, 360 (C.M.A. 1985)). Here, it is clear
that the defense was unable to collect and analyze information
provided to them on the eve of trial, namely, with whom VAM was
texting immediately prior to the time she claims she was
sexually assaulted, and the content of those texts. Without the
chance to collect this information, we question whether defense
had an adequate opportunity to prepare the appellant’s defense,
and that inadequacy impacts whether the appellant received the
effective assistance of counsel the Sixth Amendment affords him.

                                 Prejudice

     Assuming the military judge abused his discretion in
denying the continuance, this court specified the question of
whether or not the appellant was entitled to relief only if we
also found that error materially prejudiced a substantial right
of the appellant’s. The Government responded in the
affirmative, framing any error as “nonconstitutional” which
requires that the appellant “demonstrate that the error
materially prejudices the substantial rights of the accused.” 34
The appellant disagrees, claiming that when a military judge
abuses his discretion in denying a continuance, “this court is
not . . . required to find the error materially prejudiced a
substantial right of the appellant in order to grant him

34
  Government Opposition to Motion for Oral Argument of 18 Mar 2015 at 3
(citation and internal quotation marks omitted).
                                     14
relief,” since “[a]n abuse of discretion based on the military
judge’s failure to allow additional investigation because of a
government discovery violation is essentially a finding that the
military judge violated the appellant’s due process rights.” 35

     We first note that the parties’ arguments and implications
that resolution of this issue ultimately turns on whether or not
the appellant’s discovery rights were violated are misplaced.
Instead, we resolve this case on whether or not the appellant
was afforded an adequate opportunity to prepare for trial.

    We recognize that a military judge “has the responsibility
for safeguarding both the rights of the accused and the
interests of the public in the administration of criminal
justice.” United States v. Vargas, 74 M.J. 1, 8 (C.A.A.F. 2014)
(citations and internal quotation marks omitted); see also
Powell v. Alabama, 287 U.S. 45, 59 (1932) (“The prompt
disposition of criminal cases is to be commended and
encouraged.”). However, we also acknowledge the most basic
tenant that “[a]n unprepared counsel is tantamount to no
counsel.” United States v. Worden, 38 C.M.R. 284, 287 (C.M.A.
1968). In fact, in discussing the tension between the prompt
administration of justice and the accused’s right to prepare,
the Supreme Court stated long ago that:

        [A] defendant, charged with a serious crime, must not
        be stripped of his right to have sufficient time to
        advise with counsel and prepare his defense. . . .
        [I]t is vain to give the accused a day in court, with
        no opportunity to prepare for it, or to guarantee him
        counsel without giving the latter any opportunity to
        acquaint himself with the facts or law of the case.

Powell, 287 U.S. at 59 (citations and internal quotation marks
omitted); see also Strickland v. Washington, 466 U.S. 668, 691
(1984) (finding in preparing a defense, “counsel has a duty to
make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary”); Richter v.
Hickman, 578 F.3d 944, 946 (9th Cir. 2009) (“at the heart of an
effective defense is an adequate investigation. Without
sufficient investigation, a defense attorney, no matter how
intelligent or persuasive in court, renders deficient
performance and jeopardizes his client's defense.”) rev’d and
remanded on other grounds sub nom Harrington v. Richter, 562
U.S. 86 (2011); Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.

35
     Appellant’s Response to Specified Issues of 4 Mar 2015 at 2-3.
                                        15
1985) (positing “time to prepare . . . [is] fundamental to a
meaningful right of representation”) (citation omitted). We
think this principle true whether the failure to adequately
prepare for trial was caused by counsel or by the denial of time
in order to do so. See United States v. Ford, 29 M.J. 597, 599
(A.C.M.R. 1989) (“Rulings by the military judge cannot
permissibly make effective assistance of counsel impossible.")

     The Government urges this court to affirm the appellant’s
conviction because the appellant failed to show prejudice
resulting from the denial of the continuance request, arguing:
“[t]o this day, Appellant has not demonstrated how more time
would have allowed him to find the owner of the ‘404’ number,
the content of any of these text messages, or even a hypothesis
as to why these texts would be relevant[.]” 36 We disagree with
each of the Government’s points. A continuance, coupled with
the Government’s subpoena power, would very likely have been
sufficient to ascertain with whom VAM was texting which would
then likely have led to evidence regarding the content of the
texts. Moreover, after failing to collect the evidence from
AT&T that it subpoenaed, the Government now asks this court to
hold the ramifications of that failure against the defense. We
decline to do so.

     Applying the Miller factors, we conclude that the military
judge abused his discretion in denying a continuance. Not only
did this issue “have traction,” but the parties deserved the
opportunity to investigate what VAM was communicating during the
time immediately prior to an alleged assault as she sat alone in
the room with her attacker. The appellant should have been
afforded the opportunity to investigate this evidence.

     Under the unique circumstances of this case, and relying up
on our plenary power of review as set forth in 10 U.S.C. §
866(c) to “affirm only such findings of guilty and the sentence
or such part or amount of the sentence, as it finds correct in
law and fact and determines, on the basis of the entire record,
should be approved[,]” we hold that denying the defense the
opportunity to investigate this evidence materially prejudiced
the appellant’s substantial rights by depriving him of the right
to adequately prepare for trial.




36
     Appellee’s Answer at 13.
                                16
                           Conclusion

     The findings of guilty and the sentence are set aside. The
record of trial is returned to the Judge Advocate General of the
Navy for remand to an appropriate convening authority. A
rehearing is authorized.

     Senior Judge FISCHER and Judge MCDONALD concur.

                                For the Court



                                R.H. TROIDL
                                Clerk of Court




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