            U NITED S TATES AIR F ORCE
           C OURT OF C RIMINAL APPEALS
                       ________________________

                           No. ACM 38873
                       ________________________

                         UNITED STATES
                             Appellee
                                  v.
                      Michael J. TURPIANO
                Major (O-4), U.S. Air Force, Appellant
                       ________________________

       Appeal from the United States Air Force Trial Judiciary
                        Decided 24 May 2018
                       ________________________

Military Judge: Vance H. Spath (trial and DuBay hearing).
Approved sentence: Dismissal, confinement for 3 months, forfeiture of
$7,353.00 pay per month for 3 months, and a reprimand. Sentence ad-
judged 16 January 2015 by GCM convened at Joint Base San Antonio-
Lackland, Texas.
For Appellant: Major Mark C. Bruegger, USAF; Terri R. Zimmermann,
Esquire; Jack B. Zimmermann, Esquire.
For Appellee: Lieutenant Colonel Joseph J. Kubler, USAF; Major Mat-
thew L. Tusing, USAF; Gerald R. Bruce, Esquire.
Before MAYBERRY, JOHNSON and SPERANZA, Appellate Military
Judges.
Chief Judge MAYBERRY delivered the opinion of the Court, in which
Senior Judge JOHNSON and Judge SPERANZA joined.
                       ________________________

   This is an unpublished opinion and, as such, does not serve as
   precedent under AFCCA Rule of Practice and Procedure 18.4.
                      ________________________
                     United States v. Turpiano, No. ACM 38873




MAYBERRY, Chief Judge:
   A general court-martial composed of officer members convicted Appellant,
contrary to his pleas, of assault consummated by a battery by touching the
breast of Second Lieutenant (2d Lt) RH and touching the mid-section of 2d Lt
CE, in violation of Article 128, Uniform Code of Military Justice (UCMJ), 10
U.S.C. § 928. 1 The adjudged and approved sentence consisted of a dismissal,
confinement for three months, forfeiture of $7,353.00 pay per month for three
months, and a reprimand.
     Appellant alleges: (1) the findings of guilt are factually insufficient; (2) trial
counsel (TC) committed reversible error by failing to disclose favorable infor-
mation; (3) the Addendum to the Staff Judge Advocate Recommendation
(SJAR) and subsequent action by the convening authority (CA) are defective;
(4) the military judge gave an erroneous mistake of fact instruction as to the
offense involving 2d Lt RH; (5) the military judge erroneously instructed the
members that they “must convict” if they believed the Government proved its
case; 2 (6) the military judge gave an erroneous instruction on witness credibil-
ity; (7) Appellant was deprived of his constitutional right to effective assistance
of counsel; 3 (8) the sentence is inappropriately severe; (9) the military judge
erred in allowing the members to consider an unsworn statement from 2d Lt
RH at sentencing; and (10) there was excessive post-trial delay. 4
    As to the third issue, we agree that the Addendum to the SJAR and subse-
quent action by the CA are defective and this error prejudiced a substantial
right of Appellant. We remand for new post-trial processing.




1Appellant was acquitted of rape and assault consummated by a battery of Ms. KP
and assault consummated by a battery of 2d Lt DC.
2 Raised, in part, pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).
Consistent with our superior court’s decision in United States v. McClour, 76 M.J. 23
(C.A.A.F. 2017), we find that, absent objection at trial, the instruction did not consti-
tute plain error.
3   Assignments of Error 6 and 7 are raised pursuant to Grostefon.
4 Because of our decision to remand this case for new post-trial processing, we defer
consideration of Appellant’s request for excessive post-trial delay relief under Article
66(c), Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866(c), and United States
v. Tardif, 57 M.J. 219, 225 (C.A.A.F. 2002).

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                  United States v. Turpiano, No. ACM 38873




                                I. BACKGROUND
    Appellant was a prior enlisted Airman who later received his commission
through Officer Training School. The charges arose during the timeframe when
Appellant, as well as the complaining witnesses, were students at the Basic
Intelligence Officer’s Course (BIOC) at Goodfellow Air Force Base (AFB),
Texas. The course ran from September 2012 to April 2013. The BIOC had hun-
dreds of students, split into day and night shift classes. Appellant was the class
leader for his night shift class. His class was comprised of approximately 18
students, half of whom had active duty experience, the other half being recent
college graduates.
   In January 2013, Appellant started dating a day shift civilian student, Ms.
KP. Their dating quickly transitioned to a non-exclusive sexual relationship,
but this lasted only a few weeks. Soon thereafter, Ms. KP alleged that Appel-
lant had raped her and assaulted her on a separate occasion.
    It was common for the BIOC students to socialize together after class, in-
cluding going to local bars. On one evening in late January 2013, Appellant
danced with a fellow student in the course who was not in his class, 2d Lt RH,
at a “hip hop” club in town. The style of dancing was described as “dirty danc-
ing” or “grinding.” This dancing is sexually charged; 2d Lt RH described “grind-
ing” as follows:
       Whether your back is to someone’s chest, or you’re face to face,
       it is when you put your -- are in contact with each other’s groin
       areas. I mean, your entire torso is touching the entire back of
       someone, down from torso to butt and torso to groin. Or both of
       you have your bodies touching each other and your legs are in
       between each other’s so that your groins are relatively close.
     She testified that this is the way she was dancing with Appellant on the
evening in question, and clarified that it was, “genital region to buttocks con-
tact.” In other words, it was uncontested that 2d Lt RH consensually rubbed
her buttocks against Appellant’s groin during the dancing on that night. 2d Lt
RH did not make any complaint that Appellant had assaulted her to the bar
staff or owners, or civilian or military law enforcement, that evening or in the
months that followed.
   In April 2013, the Air Force Office of Special Investigations (AFOSI) began
an investigation into Ms. KP’s rape allegation against Appellant. During the
investigation, AFOSI agents interviewed approximately 50 witnesses, all of
whom were BIOC students. It was during 2d Lt RH’s four-hour interview on 5


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                  United States v. Turpiano, No. ACM 38873




April 2013 that she first disclosed Appellant had “grazed” her breast while
dancing.
    Similarly, during the extensive AFOSI interviews regarding the alleged
rape of Ms. KP, another prior service student, 2d Lt CE, alleged for the first
time that in early March 2013, Appellant approached her from behind and put
his hands around her mid-section without her permission as she talked with a
friend at a local bar.

                                II. DISCUSSION
A. Factual Sufficiency
    Appellant challenges the factual sufficiency of the evidence of both assault
consummated by battery convictions. With regard to 2d Lt RH, he contends
that there was evidence of accident, consent, and mistake of fact. With regard
to 2d Lt CE, he contends that the evidence does not support a finding of guilt
beyond a reasonable doubt. Each assertion will be discussed individually.
   1. Law
    We review issues of factual sufficiency de novo. United States v. Washing-
ton, 57 M.J. 394, 399 (C.A.A.F. 2002). Our assessment of factual sufficiency is
limited to the evidence presented at trial. United States v. Wheeler, 76 M.J.
564, 568 (A.F. Ct. Crim. App. 2017) (citing United States v. Dykes, 38 M.J. 270,
272 (C.M.A. 1993)), aff’d, ___ M.J. ___, No. 17-0456, 2018 CAAF LEXIS 177
(C.A.A.F. 22 Mar. 2018). We “cannot find as fact any allegations of which the
accused was found not guilty at trial.” United States v. Rosario, 76 M.J. 114,
117 (C.A.A.F. 2017).
    The test for factual sufficiency “is ‘whether, after weighing the evidence in
the record of trial and making allowances for not having personally observed
the witnesses, the members of the service court are themselves convinced of ap-
pellant’s guilt beyond a reasonable doubt.’” Rosario, 76 M.J. at 117 (quoting
United States v. Oliver, 70 M.J. 64, 68 (C.A.A.F. 2011)); see also United States
v. Turner, 25 M.J. 324, 325 (C.M.A. 1987).
    “In conducting this unique appellate role, we take ‘a fresh, impartial look
at the evidence,’ applying ‘neither a presumption of innocence nor a presump-
tion of guilt’ to ‘make [our] own independent determination as to whether the
evidence constitutes proof of each required element beyond a reasonable
doubt.’” Wheeler, 76 M.J. at 568 (alteration in original) (quoting United States
v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)). Just as with legal sufficiency,
“[t]he term reasonable doubt . . . does not mean that the evidence must be free

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                   United States v. Turpiano, No. ACM 38873




from conflict.” Id. (citing United States v. Lips, 22 M.J. 679, 684 (A.F.C.M.R.
1986)).
    2. Analysis
       a. Appellant’s actions while dancing with 2d Lt RH.
    2d Lt RH met Appellant at the end of January 2013 when both of them
were at a local bar with separate groups of friends. During the course of the
night, 2d Lt RH was on the dance floor when she felt someone behind and up
against her, with their chest touching her back. She did not know who it was
initially. After determining it was Appellant, 2d Lt RH engaged in consensual
“dirty dancing” and “grinding” with Appellant. During the dance, their bodies
were very close to and touching each other.
    2d Lt RH testified at trial in January 2015 that during the dance, Appellant
“cupped” her breast with his hand, “gripping” it and applying “pressure.” This
was inconsistent with her description to AFOSI in April 2013 that Appellant
“briefly grazed” her breast, but did not mention cupping. 5
    Appellant took the stand in his own defense and specifically denied touch-
ing 2d Lt RH’s breast in the way that she described during her testimony. On
cross-examination, Appellant testified that he might have “grazed” her breast
as they were dancing, but he did not grab or cup her breast as she alleged at
trial. Appellant stated that even in the club atmosphere, based on the fact that
he had just met 2d Lt RH that night, it would have been wrong for him to have
touched 2d Lt RH’s breast as she described it. Appellant testified that he may
have “grazed” or touched her breasts due to the close distance between them
during the dance and if this happened, he did not do it purposely.
    2d Lt RH did not report that Appellant had assaulted her until her 5 April
2013 interview with AFOSI regarding the alleged rape of Ms. KP. In fact, when
she did make her statement to AFOSI, she told them that she “blew off the
incident because it’s not uncommon at the dance clubs for touching to occur.”
The military judge instructed the members regarding accident, mistake of fact
as to consent, and prior inconsistent statements by 2d Lt RH.
    As charged, the Government needed to prove: (1) Appellant did bodily harm
to 2d Lt RH (by touching her breasts, thighs, and mid-section); and (2) the




5Appellant was charged with touching 2d Lt RH on her breast, thighs, and mid-section.
The members found him not guilty of touching her thighs and mid-section, both of
which were alleged to have happened after he touched her breast.

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                      United States v. Turpiano, No. ACM 38873




bodily harm was done with unlawful force or violence. Manual for Courts-Mar-
tial, United States (2012 ed.) (MCM), pt IV, ¶ 54(b)(2). Bodily harm means “any
offensive touching of another, however slight.” Id. at ¶54(c)(1)(a).
    Appellant did not contest that he touched 2d Lt RH’s breast, thigh, and
mid-section while dancing, and in that order, but avers that it was accidental
or with her consent.
    The credibility of the witnesses was initially an issue for the members to
decide and which we evaluate on appeal. Appellant’s reliance on these events
not being immediately reported does not negate the fact that when questioned
by law enforcement on a separate matter, 2d Lt RH did report it. After weigh-
ing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, we are convinced of Appellant’s guilt be-
yond a reasonable doubt.
          b. “Hugging” of 2d Lt CE.
    2d Lt CE was married and socialized infrequently with her classmates. She
testified that Appellant called her “pet” names such as “honey” or “sweetie,”
and that she had told him to stop calling her by those names. 2d Lt CE alleged
that while she was speaking with a friend in the “smokepit” of a local bar, Ap-
pellant grabbed her from behind and pulled her towards him. During the
course of this maneuver, she turned around and was facing Appellant with his
hands clasped behind her back. She removed his hands stating, “I’m married.”
Appellant again placed his hands around her stating, “It doesn’t mean any-
thing,” and 2d Lt CE again removed his hands and stated, “It does when you’re
married.”
    Appellant’s direct testimony at trial did not address this allegation, but on
cross-examination he stated “I never wrapped my arms around how she de-
scribes,” but went on to state “if I did . . . that would be wrong.” Trial defense
counsel did not ask any questions about this event on re-direct; he later indi-
cated in his declaration that despite spending countless hours preparing for
trial, Appellant changed his story with regard to this incident on the stand. 6
    Unlike the incident involving 2d Lt RH, Appellant did not claim it was an
accident or that he had a mistaken belief that 2d Lt CE consented to him touch-
ing her.
   The credibility of the witnesses was initially an issue for the members to
decide and which we evaluate on appeal. Appellant’s reliance on these events


6   This issue will be further explored later in this opinion.

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                   United States v. Turpiano, No. ACM 38873




not being immediately reported does not negate the fact that when questioned
by law enforcement on a separate matter, 2d Lt CE did report it. Furthermore,
Appellant’s assertion that “a single friendly hug from behind would be insuffi-
cient to secure a conviction” is erroneous. After weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, we are convinced of Appellant’s guilt beyond a reasonable doubt.
B. Discovery
    1. Facts 7
    On 6 April 2013, AFOSI interviewed then-2d Lt KW, 8 another BIOC stu-
dent in Appellant’s night class. 2d Lt KW was relatively new to the military
and had no prior contacts with law enforcement. At the beginning of his inter-
view, he did not know why he was being interviewed or that Appellant was the
subject of the investigation. After the interview, the specifics of which will be
discussed below, 2d Lt KW provided an 11-page written sworn statement to
AFOSI. This statement was included in the Report of Investigation (ROI).
    Shortly after his AFOSI interview, 2d Lt KW contacted his family and con-
veyed he was extremely upset about his treatment by AFOSI. His aunt, also
on active duty in the Air Force, reached out to a friend who was an Air Force
judge advocate, Colonel (Col) DV, and asked if her nephew could contact Col
DV regarding his experience with AFOSI. Col DV agreed to talk to 2d Lt KW
in her personal capacity as the nephew of a friend, not as a military attorney.
2d Lt KW called Col DV, still extremely upset, indicating the AFOSI special
agent (SA) had threatened his career; he felt the statement he had provided
needed to be fixed because it did not reflect what he wanted to say, but rather
what AFOSI wanted it to say; and if this is how the Air Force treated people,
he wanted to get out. Col DV attempted to calm 2d Lt KW down, assuring him
that he would have a chance to explain his statement, probably more than once,
and repeatedly emphasizing that the “system works.” Col DV did not know the
specific facts of the interview, but knew that 2d Lt KW was upset because he
felt he was “manhandled at the [AF]OSI and treated like he was a criminal,




7 These facts were obtained during the post-trial hearing in accordance with United
States v. DuBay, 37 C.M.R. 411, 413 (C.M.A. 1967), ordered by this court on 24 May
2017. Unless otherwise indicated, these facts are based on the military judge’s findings
of fact.
8By the time of the DuBay hearing, KW was a Captain. He will be referred to as 2d Lt
KW throughout this opinion.

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                 United States v. Turpiano, No. ACM 38873




and he didn’t understand why there was so much hostility or aggression to-
wards him.”
    Prior to the Article 32, UCMJ, 10 U.S.C. § 832, hearing which was held on
30 September 2014, Government counsel telephonically contacted 2d Lt KW to
interview him regarding his statement. According to 2d Lt KW, he informed
the counsel that his statement was not accurate, he had no recollection of the
contents of the statement, and he was upset as to how he was treated by
AFOSI. At the Dubay hearing, 2d Lt KW testified that when the Government
counsel interviewed him, their tone went from friendly to agitated and as a
result, all of the memories of the AFOSI incident came back in a bad way. In
an effort to refresh his recollection, the Government counsel e-mailed 2d Lt
KW a copy of his statement and contacted him again. During the second con-
versation with them, 2d Lt KW indicated there were issues with the reliability
of his statement and he wanted no part in the proceedings. No member of the
Government notified Appellant’s defense counsel of their interactions with 2d
Lt KW.
    After the first phone call with the Government counsel, 2d Lt KW went to
see his supervisor, Lieutenant Colonel (Lt Col) EM, and “lost it.” Lt Col EM
also testified at the DuBay hearing and stated that he found 2d Lt KW to be
deeply troubled by the event and procedures which 2d Lt KW described as
“harshly interrogated.” Lt Col EM testified further that 2d Lt KW likened
AFOSI with using coercive tactics of the type used on prisoners of war, and
that 2d Lt KW felt as though he was “broken” during the interrogation. Lt Col
EM characterized 2d Lt KW’s description of the incident as not involving a lot
of specific details, but to the effect that 2d Lt KW was mistreated by AFOSI;
that he made a statement that was inaccurate, but felt he was forced to make
and sign the statement nonetheless; and that 2d Lt KW attempted to disavow
the statement. While Lt Col EM could not say with certainty that 2d Lt KW
used the word “coerced,” he believed 2d Lt KW did, and even if 2d Lt KW did
not, Lt Col EM’s takeaway from the conversation was that he was coerced. Fi-
nally, Lt Col EM indicated he did not speak to anyone else about his discussion
with 2d Lt KW because he felt, or assumed, the matter was being addressed
because it involved a court proceeding. Lt Col EM interpreted the fact that he
was being asked at the DuBay hearing whether he spoke to anyone else about
the information that 2d Lt KW had conveyed to him as indicating that the issue
had not been otherwise addressed.
   During the telephonic interviews of 2d Lt KW, the assistant trial counsel
(ATC) recalled writing 2d Lt KW’s name at the top of a sheet of paper, but
made no additional notations. The ATC did not know what had become of that

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                  United States v. Turpiano, No. ACM 38873




piece of paper. Further, the ATC was certain that a paralegal was present for
both telephone interviews who might have taken notes. The ATC characterized
2d Lt KW as “disrespectful and combative” or “irritated or upset.” TC was fairly
certain there was no paralegal present for either interview and denied 2d Lt
KW was combative or disrespectful. TC did not recall 2d Lt KW’s demeanor
outside the ordinary, stating he was “as unpleased as most witnesses are when
they are called by a JAG.” No interview notes were produced from the Govern-
ment telephone interviews with 2d Lt KW.
    The military judge found 2d Lt KW to be a credible witness. Additionally,
he found 2d Lt KW’s statement to AFOSI contained rumor, erroneous infor-
mation, and details supplied by AFOSI. 2d Lt KW lacked direct knowledge of
numerous facts contained within the statement, but made an effort to comply
with AFOSI’s direction and included anything he knew, believed, or had ever
heard about Appellant. Furthermore, the military judge found 2d Lt KW con-
sistently informed people about his concerns regarding his treatment by
AFOSI; that his statement to AFOSI had inaccuracies; that it was something
he was required to give; and that he wanted to fix it or retract it.
    The military judge found that while the conversation between 2d Lt KW
and the prosecutors happened quickly and did not seem significant to them,
based on the facts of the case, and the impact by AFOSI on gathering evidence,
the information would have been important to the Defense team. Ultimately,
the military judge found that “[b]ased on the unique issues in the case (the
AFOSI conduct), and the importance of the information to both motion prac-
tice, and potentially findings, the government did fail to meet its discovery ob-
ligations with respect to the circumstances of [2d Lt] KW’s AFOSI interview.”
   The CA’s affidavit provided at the DuBay hearing stated:
       If it is true that AFOSI mistreated an officer and that mistreat-
       ment resulted in an inaccurate statement from the witness, and
       that witness was a sober eyewitness to the offenses [Appellant]
       was convicted of and would have testified that he did not see the
       crimes take place, and the members did not hear this testimony,
       that may have affected the action I took in this case.
   2. Law
    “Our review of discovery/disclosure issues utilizes a two-step analysis: first,
we determine whether the information or evidence at issue was subject to dis-
closure or discovery; second, if there was nondisclosure of such information, we
test the effect of that nondisclosure on the appellant’s trial.” United States v.
Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). As a result, we have established two

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                  United States v. Turpiano, No. ACM 38873




categories of disclosure error: (1) “cases in which the defense either did not
make a discovery request or made only a general request for discovery[;]” and
(2) cases in which the defense made a specific request for the undisclosed in-
formation. Id. at 326–27. For cases in the first category, we apply the harmless
error standard. United States v. Hart, 29 M.J. 407, 410 (C.M.A. 1990) (citation
omitted); see United States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012) (“Once
a Brady violation is established, courts need not test for harmlessness.”) (citing
Kyles v. Whitley, 514 U.S. 419, 435-436 (1995)). For cases in the second cate-
gory, we apply the heightened constitutional harmless beyond a reasonable
doubt standard. Roberts, 59 M.J. at 327 (citing Hart, 29 M.J. at 410). Failing
to disclose requested material favorable to the defense is not harmless beyond
a reasonable doubt if the undisclosed evidence might have affected the outcome
of the trial. See Hart, 29 M.J. at 409 (dictum).
    “The Due Process Clause of the Fifth Amendment guarantees that criminal
defendants be afforded a meaningful opportunity to present a complete de-
fense.” United States v. Webb, 66 M.J. 89, 92 (C.A.A.F. 2008) (citation and in-
ternal quotation marks omitted). That guarantee requires the prosecution to
disclose to the defense evidence favorable to an accused where the evidence is
material either to guilt or to punishment. Id. (quoting Brady v. Maryland, 373
U.S. 83, 87 (1963)). To determine whether evidence, including impeachment
evidence, is “material” to guilt or punishment, the court must evaluate whether
“there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” Id. (quoting
United States v. Mahoney, 58 M.J. 346, 349 (C.A.A.F. 2003)). A “reasonable
probability” evaluates “not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in its absence
he received a fair trial.” Id.
     Furthermore, the defense counsel is entitled to rely on a prosecutor’s rep-
resentation that Brady information does not exist or has been disclosed. See
Strickler v. Greene, 527 U.S. 263, 283 n.23 (1999) (“[I]f a prosecutor asserts that
he complies with Brady through an open file policy, defense counsel may rea-
sonably rely on that file to contain all materials the state is constitutionally
obligated to disclose under Brady.”); see also United States v. Shaffer, 789 F.2d
682, 690 (9th Cir. 1986) (quoting Hughes v. Hopper, 629 F.2d 1036, 1039 (5th
Cir. 1980)) (“[D]efense counsel’s knowledge of the [evidence is] effectively nul-
lified . . . when a prosecutor . . . misleads the defense into believing the evi-
dence will not be favorable to the defendant.”).
   Article 46, UCMJ, 10 U.S.C. § 846, establishes the right of an accused to
obtain favorable evidence. This statute is implemented in Rules for Courts-

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                  United States v. Turpiano, No. ACM 38873




Martial (R.C.M.) 701–703. R.C.M. 701 details the liberal discovery practice in
courts-martial and sets forth the rights and corresponding obligations of the
parties. It is well-established that “Article 46 and its implementing rules pro-
vide greater statutory discovery rights to an accused than does his constitu-
tional right to due process.” United States v. Coleman, 72 M.J. 184, 187
(C.A.A.F. 2013) (citing Roberts, 59 M.J. at 327).
    Discovery practice under Article 46, UCMJ, and R.C.M. 701 “promote[s]
full discovery . . . eliminate[s] ‘gamesmanship’ from the discovery process[ ]”
and is “quite liberal . . . . Providing broad discovery at an early stage reduces
pretrial motions practice and surprise and delay at trial.” 2002 MCM, App. 21,
at A21–32. The military rules pertaining to discovery focus on equal access to
evidence to aid the preparation of the defense and enhance the orderly admin-
istration of military justice. To this end, the discovery practice is not focused
solely upon evidence known to be admissible at trial. See United States v.
Stone, 40 M.J. 420, 422 (C.M.A. 1994) (citing United States v. Lloyd, F.2d 348,
351 (D.C. Cir. 1993)).
    Of particular importance in this case are the Government’s duties concern-
ing disclosure of information requested by the Defense that is within the pos-
session, custody, or control of the Government, and material to the preparation
of the Defense, and evidence favorable to the defense. R.C.M. 701(a)(2)(A) and
(a)(6).
   3. Analysis
    We agree with the military judge’s finding that the Government failed to
meet its discovery obligations with respect to the circumstances of 2d Lt KW’s
AFOSI interview. We note at the outset that even if trial counsel were not pre-
viously aware of some of the tactics used by AFOSI in gathering evidence in
this case, after their conversations with 2d Lt KW, it would have become
known to them. As the United States Supreme Court restated in Strickler, “the
individual prosecutor has a duty to learn of any favorable evidence known to
the others acting on the government’s behalf in this case, including the police.”
527 U.S. at 281.
    It is important to emphasize that the military judge found a discovery vio-
lation, but not a Brady violation. As such, while he found the information at
issue to be favorable, he did not find disclosure to be constitutionally required.
The information was material to the preparation of the Defense, to include the
formulation of defense strategy. We agree and therefore analyze whether the
failure to disclose the information was harmless error.



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                   United States v. Turpiano, No. ACM 38873




    To do so, this court must decide whether, in the absence of disclosure of the
Government’s additional knowledge regarding the context and content of 2d Lt
KW’s statement to AFOSI, Appellant “received a fair trial”—in other words,
whether the failure to disclose “undermines confidence in the outcome of the
trial.” Webb, 66 M.J. at 92 (citation omitted); United States v. Oruche, 484 F.3d
590, 597 (D.C. Cir. 2007) (quoting United States v. Cuffie, 80 F.3d 514, 517
(D.C. Cir. 1996)) (“Evidence is material if the undisclosed information could
have substantially affected the efforts of defense counsel to impeach the wit-
ness, thereby calling into question the fairness of the ultimate verdict.”);
Cuffie, 80 F.3d at 518–19 (remanded for a new trial based on a Brady violation
even though “the remaining evidence standing alone would have been suffi-
cient to convict . . . .”); United States v. Smith, 77 F.3d 511, 515 (D.C. Cir. 1996)
(“As the Court made clear in Kyles, the test for materiality is not a sufficiency-
of-the evidence test.”).
     Both the civilian (Mr. MW) and military (Captain (Capt) MAV) trial de-
fense counsel testified at the DuBay hearing that had they known about 2d Lt
KW’s allegations against AFOSI, it would have impacted their trial strategy.
They believed it would have strengthened their unlawful command influence
(UCI) and Article 13, UCMJ, 10 U.S.C. § 813, motions. Finally, Capt MAV tes-
tified that he would “find it hard to believe how it wouldn’t have affected the
outcome of [Appellant’s] trial . . . .” We are not persuaded. The UCI motion fo-
cused on UCI in sexual assault cases generally 9 and as applied to this case
specifically (actions by commands at both Goodfellow AFB and Joint Base
Lackland-San Antonio). There is no reference to action by AFOSI. The motion
listed 11 witnesses 10 and two documentary pieces of evidence. None of the doc-
uments were offered, and only Appellant testified. The military judge held that
the Defense had not met its burden of establishing “some evidence” to support
the claim of actual or apparent UCI. Additionally, the military judge held that
the Defense had put forth no evidence demonstrating that the preferral au-
thority, Special Court-Martial Convening Authority, or General Court-Martial
Convening Authority were “either themselves improperly influenced or pres-
sured or improperly influenced or pressured others regarding this case.”
   The Article 13, UMCJ, motion alleged the no contact orders given to Appel-
lant and AFOSI’s intimidation of witnesses amounted to pretrial punishment.


9Statements made by the President of the United States, the Secretary of Defense,
and the Chief of Staff of the Air Force.
10We note one of the named witnesses was then-First Lieutenant (1st Lt) KW, with
contact information for him in Florida.

                                         12
                   United States v. Turpiano, No. ACM 38873




One witness, Capt DC, testified about the “intimidation” he felt and the fact
that he was threatened with perjury in response to his opinion that Appellant
was a good officer and role model. Capt DC indicated there was no particular
line of questioning, rather AFOSI characterized Appellant as a “dirtbag” and
wanted Capt DC to tell the agents everything possible that could be damaging
to Appellant. Later, AFOSI informed Capt DC that Appellant had been accused
of rape and did not deserve to wear the uniform. At that point, Capt DC backed
down quickly from characterizing Appellant as a good officer. Ultimately,
AFOSI’s tactic of accusing Capt DC of covering for Appellant, along with other
factors, “shaped his perspective of events” and he determined he did not want
to testify on Appellant’s behalf. 11 The military judge found Capt DC credible,
and articulated on the record the fact that he believed AFOSI’s treatment was
wrong. Nevertheless, he denied the motion based on the absence of any evi-
dence of an intent to punish Appellant.
    Based on the facts before us we find no reasonable probability that the ev-
idence 2d Lt KW could have provided would have changed the results of the
proceeding. The evidence would not have materially altered the evidence re-
garding UCI or pretrial punishment. As to findings, although 2d Lt KW could
have provided testimony as a sober witness to the incidents involving both 2d
Lts CE and RH, based on the Defense strategy, calling 2d Lt KW to say he did
not see Appellant hug 2d Lt CE would not have assisted the defense, and in
light of Appellant’s testimony that he may have touched 2d Lt RH’s breast
while dancing, it is not likely that 2d Lt KW’s testimony that he did not see it
would have impacted the findings. Finally, as to sentencing, 2d Lt KW did see
Appellant interact with both victims during the remaining weeks of the course,
after all of the events giving rise to the charges occurred, and could have pro-
vided evidence that they did not exhibit any adverse impacts. Evidence of this
nature was provided to the members. As such, we do not condone the actions
by the Government, but find no relief is warranted.
    While we are troubled by the Government’s overall handling of the discov-
ery regarding 2d Lt KW before, during, and after trial, we are equally con-
cerned by the inaction taken by trial defense counsel to independently discover
the full extent of the AFOSI treatment of witnesses, as will be discussed below.




11 These facts only became known to trial defense counsel after Capt DC had travelled
for the trial and he was interviewed by trial defense counsel after the conclusion of the
first day of trial.

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                  United States v. Turpiano, No. ACM 38873




C. The Addendum to the SJAR and the CA Action
   1. Background
    The military judge found that the Government’s decision to discuss the re-
sults of its inquiry into Appellant’s discovery violation allegations with the con-
vening authority while failing to address this inquiry in the SJAR Addendum
constituted “new matter” pursuant to R.C.M. 1106(f)(7). The Government does
not concede this amounts to new matter, but asserts that even if it were new
matter, there is no prejudice to Appellant. We find the SJA’s decision to inform
the CA of the results of the inquiry introduced “additional matter” from outside
the record, adverse to Appellant and not chargeable to Appellant’s knowledge,
which required notification to the Defense and an opportunity to respond pur-
suant to R.C.M. 1107(b)(3)(B)(iii). Furthermore, we find prejudice; the declara-
tion from the CA at the DuBay hearing asserted that if the facts alleged in the
clemency request regarding 2d Lt KW were true, it may have affected the ac-
tion he took in this case.
   2. Law
    Proper completion of post-trial processing is a question of law which we
review de novo. United States v. Sheffield, 60 M.J. 591, 593 (A.F. Ct. Crim.
App. 2004) (citing United States v. Kho, 54 M.J. 63, 65 (C.A.A.F. 2000)). “[A]n
appellate court may determine if the accused has been prejudiced by testing
whether the alleged error has any merit and would have led to a favorable
recommendation by the SJA or corrective action by the convening authority.”
United States v. Green, 44 M.J. 93, 95 (C.A.A.F. 1996). Because of the highly
discretionary nature of the CA’s action on a sentence, we grant relief if Appel-
lant presents “some colorable showing of possible prejudice” affecting his op-
portunity for clemency. Kho, 54 M.J. at 65 (quoting United States v. Wheelus,
49 M.J. 283, 289 (C.A.A.F. 1998)).
    R.C.M. 1107(b)(3)(B) provides that before taking action the CA may con-
sider, in addition to the record of trial, the accused’s personnel records, and the
matters required by R.C.M. 1107(b)(3)(A), “[s]uch other matters” as the CA
deems appropriate, provided that “if the convening authority considers matters
adverse to the accused from outside the record, with knowledge of which the
accused is not chargeable, the accused shall be notified and given the oppor-
tunity to rebut.”
   3. Analysis
   The information provided to the CA was adverse to Appellant and from
outside the record. Pursuant to RCM 1107(b)(3)B)(iii), Appellant must have
been notified and given an opportunity to rebut such information. See United
                                        14
                   United States v. Turpiano, No. ACM 38873




States v. Catalani, 46 M.J. 325, 326 (C.A.A.F. 1997). Had the fact that an in-
quiry or investigation into the allegations raised by Appellant, as well as the
result of that inquiry, been served on the Defense, Appellant would most defi-
nitely have taken the opportunity to comment. The documents provided by Ap-
pellant in pleadings to this court as well as the testimony of witnesses at the
DuBay hearing amount to rebuttal to which the CA was never privy. See
United States v. Cornwell, 49 M.J. 491 (C.A.A.F. 1998), United States v. James,
2007 CCA LEXIS 80 (A.F. Ct of Crim. App., 16 Feb. 2007) (unpub. op).
    Our analysis focuses on prejudice. The totality of the facts and circum-
stances establish that Appellant’s opportunity for clemency was affected. The
Government conducted an inquiry as to the issue involving 2d Lt KW’s pretrial
statements to trial counsel as well as the underlying actions surrounding his
sworn statement to AFOSI, and then failed to mention this in the SJAR Ad-
dendum or otherwise provide notice to Appellant prior to the CA taking action.
This is a violation of the due process afforded to Appellant at post-trial review.
    “If a military member’s offenses are deemed serious enough to warrant
court-martial, they are serious enough to demand the time needed to carefully
and correctly shepherd each aspect of the case to conclusion.” Parker, 73 M.J.
at 922. Appellant’s case was a particularly high-visibility matter. It is not un-
reasonable to expect that careful attention would be provided in the post-trial
processing of such a case. Such was not the case here. We therefore deem it
appropriate to afford Appellant the full opportunity to which he is entitled to
seek clemency, and to provide the servicing legal office another opportunity to
correctly process this case.
D. Effective Assistance of Counsel
     1. Facts
    Appellant alleges his trial defense counsel were ineffective for a number of
reasons, specifically including failure to investigate and present potential de-
fense witnesses and failure to prepare Appellant to testify. 12 We ordered Ap-
pellant’s trial defense counsel to provide declarations addressing Appellant’s
specific allegations. Appellant’s trial defense counsel provided independent
declarations, which were accepted by the court. These responses resulted in




12 In addition to the specific claims addressed in this opinion, we considered all other
issues raised by Appellant in his declarations and briefs pursuant to Grostefon, 12 M.J.
431. We reject those remaining issues, which require no additional analysis nor war-
rant relief. See United States v. Matias, 25 M.J. 356, 363 (C.M.A. 1987).

                                          15
                  United States v. Turpiano, No. ACM 38873




conflicting factual assertions surrounding the allegations. In response, we re-
manded the case for a DuBay hearing pursuant to United States v. Ginn, 47
M.J. 236, 242–43 (C.A.A.F. 1997).
    Mr. MW was hired by Appellant shortly after the AFOSI investigation be-
gan in April 2013. Capt MAV was individually requested and detailed to the
case prior to the Article 32, UCMJ, hearing in the fall of 2014. Both counsel
remained on the case through trial, and Capt MAV remained on the case
through clemency. The defense strategy was specifically focused on defending
and gaining an acquittal on the sexual assault charge involving Ms. KP. The
Defense felt they had a strong case in that regard. As for the assault consum-
mated by a battery charges, the defense strategy was a combination of assert-
ing the conduct was consensual, did not happen, or was being exaggerated.
    Both trial defense counsel indicated that they were aware of more than one
military member interviewed by AFOSI alleging they were mistreated during
those interviews. Nevertheless, they did not interview the vast majority of the
other individuals named in the ROI and they never interviewed 2d Lt KW.
Four witnesses whom the Defense called at trial were never interviewed by
trial defense counsel prior to arriving for trial: Captain (Capt) TA, 1st Lieuten-
ant (1st Lt) KF, Capt DC, and Major (Maj) JE. 13 Capt DC and Maj JE testified
at the DuBay hearing that the defense strategy involving their potential testi-
mony was devised without ever having spoken to them. Capt DC fit into the
defense case in chief regarding the sexual assault of Ms. KP, and Maj JE was
“scheduled” to be a character witness (despite the fact that he was identified
by 2d Lt CE as a witness to the events the evening of her alleged assault, as
was 1st Lt KF, 2d Lt KW, and 2d Lt CB).
    Upon arriving at Joint Base San Antonio-Lackland on the first day of trial,
Capt DC was interviewed by trial defense counsel and “seemed scared.” Trial
defense counsel inquired as to why. Only then did they learn that he was afraid
to testify as a result of his interactions with AFOSI. While trial defense counsel
had filed a motion alleging illegal pretrial punishment in violation of Article
13, UCMJ, Capt DC was not listed as a witness for that motion. During the
motions hearing, the military judge announced that he was not going to deal
with the Article 13, UCMJ, motion until either right before any potential sen-
tencing or as they worked through the sentencing case because it was not yet


13Maj JE was a Captain at the time of the trial but a Major at the time of the DuBay
hearing. All references will use his current rank.



                                        16
                   United States v. Turpiano, No. ACM 38873




ripe. When the Article 13, UCMJ, motion was addressed, Defense’s only wit-
ness 14 was Capt DC. The military judge concluded there was no Article 13,
UCMJ, violation, but nevertheless opined “if that was [Capt DC’s] treatment
when he got to OSI, even early on in that interview, there’s something wrong
there.” Capt DC testified at the DuBay hearing as well, and both times the
military judge found him credible.
    Maj JE also testified at the DuBay hearing. His testimony included that he
was never asked by the defense team about his treatment by AFOSI but went
on to say that when his AFOSI interview began, the lead agent indicated Maj
JE looked “oddly comfortable.” Maj JE tapped his Security Forces badge and
stated “I’ve played this game before sir,” to which the agent replied “So none of
these tricks are going to really work on you.” Despite the “collegial” nature of
his own interview, he testified that he overheard another interview, described
the interviewing agent as “an irate man” and stated his own interview had to
pause at times because of the volume of what was going on in that other room.
He eventually identified 2d Lt JR as the witness in the other room. The lead
agent in his own interview had to leave the interview to deal with what was
going on in the other room, and when the agent returned, he informed Maj JE
that “they could not get that witness to talk and have even called the squadron
commander to come and try to get her to come clean.” Maj JE testified that
what he heard did not sound professional or appropriate and believed the
squadron commander should not have been there based on the implied state-
ment from his own interviewer that 2d Lt JR had “lawyered up.” The Monday
following these interviews, Maj JE spoke with both 2d Lt KW and 2d Lt DC
who indicated they were scared by the experience with AFOSI and they asked
him if it was normal.
     2. Law
    We review claims of ineffective assistance of counsel de novo, applying the
two-part test outlined by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). United States v. Tippit, 65 M.J. 69, 76
(C.A.A.F. 2007) (citation omitted). Under that test, “in order to prevail on a
claim of ineffective assistance of counsel, an appellant must demonstrate both
(1) that his counsel’s performance was deficient, and (2) that this deficiency




14Of note, Appellant testified as to the UCI motion, and trial defense counsel had re-
quested the military judge consider all the evidence from the UCI motion when ruling
on the Article 13 motion.

                                         17
                  United States v. Turpiano, No. ACM 38873




resulted in prejudice.” United States v. Green, 68 M.J. 360 (C.A.A.F. 2010) (cit-
ing Strickland, 466 U.S. at 687; United States v. Mazza, 67 M.J. 470, 474
(C.A.A.F. 2009)).
    “[T]he defense bears the burden of establishing the truth of the factual al-
legations that would provide the basis for finding deficient performance.” Tip-
pit, 65 M.J. at 76 (citing United States v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)).
When there is a factual dispute, however, appellate courts determine whether
further fact-finding is required, including whether a post-trial fact-finding
hearing is necessary. Ginn, 47 M.J. at 242–43.
     The deficiency prong requires Appellant to show his counsel’s performance
fell below an objective standard of reasonableness, according to the prevailing
standards of the profession. Strickland, 466 U.S. at 688. To determine whether
the presumption of competence has been overcome as alleged by an appellant,
we examine whether there is a reasonable explanation for counsel’s actions
and whether defense counsel’s level of advocacy fell measurably below the per-
formance ordinarily expected of fallible lawyers. United States v. Gooch, 69
M.J. 353, 362 (C.A.A.F. 2011).
   The prejudice prong requires Appellant to show a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694.
   3. Analysis
    The military judge concluded that Appellant’s trial defense counsel pro-
vided effective and competent counsel and were not deficient. We resolve the
issue on a different basis. Assuming arguendo that Appellant’s trial defense
counsel’s efforts were deficient, Appellant has failed to demonstrate he was
prejudiced and is therefore not entitled to relief.
       a. Failure to investigate and identify witnesses.
    Mr. MW’s original affidavit stated that the Defense attempted to track
down and interview all known relevant witnesses regarding the allegations
involving 2d Lt CE and 2d Lt RH. Based on the interviews performed, they
called the witnesses that had relevant or exculpatory information. Maj MAV’s
affidavit states the initial interview of Maj JE was in January 2015, which
matches Maj JE’s testimony at the DuBay hearing. The strategy involving the
“hug” of 2d Lt CE was that Appellant horsed around and hugged her on many
occasions and it was consensual. Consequently, they did not elicit testimony
from 1st Lt KF and Maj JE about this incident during their trial testimony.



                                       18
                   United States v. Turpiano, No. ACM 38873




      Appellate defense counsel argued at the DuBay hearing that while every
attorney may have a different approach, every lawyer has an obligation to pre-
pare for trial. Trial defense counsel have a “duty to make reasonable investi-
gations or to make a reasonable decision that makes particular investigations
unnecessary.” United States v. Akbar, 74 M.J. at 379 (quoting Strickland, 466
U.S. at 691). Strategic choices made by counsel “after thorough investigation
of law and facts relevant to plausible options are virtually unchallengeable
. . . .” Id. (quoting Strickland, 466 U.S. at 690).
   In this case, the trial defense counsel’s reliance on the content of the state-
ments contained within the ROI to develop their theory of the case is troubling.
They interviewed those individuals on the prosecution’s witness list. Based on
that “knowledge,” they identified defense witnesses from other individuals
based on the content of their statements to AFOSI. None of these individuals
were interviewed by the defense team until they arrived for trial.
     Appellant’s trial defense counsel were primarily concerned with the sexual
assault allegation. Mr. MW testified that the non-sexual assaults were “easier
to win” and he was surprised by the findings. We are troubled by the fact that
the defense counsel did not interview many of the witnesses they planned to
call at trial, until after they notified the Government of their intent to call these
witnesses, and the witnesses travelled for trial. Furthermore, both counsel tes-
tified at the DuBay hearing that their client informed them he thought wit-
nesses had been intimidated by AFOSI, and they knew about 2d Lt JR’s inter-
action with AFOSI, including the fact that the commander, Col CH, had been
called into the interview room with 2d Lt JR. Mr. MW testified that after the
trial started (and after they interviewed Capt JC), there was no time to look
into this issue further. This explanation falls short in that it does not address
what actions they could have and should have taken prior to the start of trial.
The civilian trial defense counsel characterized the failure to further pursue
the intimidation or mistreatment of witnesses by AFOSI by stating “that’s our
bad.”
    We are further troubled by the fact that Mr. MW testified he did not believe
2d Lt KW was a factual witness that would help Appellant’s case. Maj MAV
went so far as to testify that because 2d Lt KW was not on the Government’s
witness list, they did not want to call him and highlight his statement to the
trial counsel. This testimony is contradictory to the fact that the Defense filed
UCI and illegal pretrial punishment motions in December 2014 that listed then
1st Lt KW as a witness. Finally, we note that when Appellant testified on the
UCI motion, he maintained that his commander, Col CH, participated in
AFOSI witness interviews, and Mr. MW included misconduct by AFOSI in his

                                         19
                  United States v. Turpiano, No. ACM 38873




opening statement. This information is not contained within the ROI, and
there is no evidence of the extent of investigative efforts by defense counsel, if
any, as to Col CH’s presence at AFOSI during witness interviews. The decla-
ration of Col CH provided by the Government is misleading. The declaration
asserted he had been briefed but did not contain any reference to his partici-
pation in or presence at the AFOSI interview of 2d Lt JR. At the DuBay hear-
ing, the Government conceded that Col CH should not have been in the AFOSI
interview area.
       b. Preparation of Appellant.
    Appellant’s testimony on findings covers 23 pages of the transcript, primar-
ily focused on the allegations involving Ms. KP. His cross-examination testi-
mony regarding the hug of 2d Lt CE is consistent with his written description
of events as annotated on a copy of the Article 32 report which he provided to
both defense counsel via email in December of 2014, a month before trial. That
document addressed the statements of 2d Lt CE and others regarding the ac-
tions of Appellant and included Appellant’s comments regarding the facts as-
serted. In Mr. MW’s declaration to this court, he stated that the defense theory
was that Appellant gave 2d Lt CE “a consensual hug” and described the contact
in his opening statement as consensual. At the DuBay hearing, both counsel
testified that they had received and reviewed the information provided by Ap-
pellant in that December email. Furthermore, Appellant’s trial testimony re-
garding dancing with 2d Lt RH asserting that he might have grazed her breast
but denying touching her inner thighs and mid-section was consistent with his
written description provided to counsel via the December 2014 email, as was
the allegation that 2d Lt RH grabbed his genitals.
    When Appellant testified on direct exam, he testified that he did not assault
2d Lt CE. On cross-examination, when asked “did you place your arms around
[CE]” he replied “what she described up here, no.” In the same declaration
where Mr. MW stated their defense was based on consensual touching, he of-
fers that when Appellant denied the hug on cross-examination, it changed eve-
rything. However, Appellant did not deny the hug, he simply denied it hap-
pened the way 2d Lt CE described. Nevertheless, at the DuBay hearing, Mr.
MW acknowledged receiving and reading the email and attachments from Ap-
pellant in December 2014, which included Appellant’s assertion “[CE] is mak-
ing this whole encounter up” and goes on to describe a different scenario of the
two of them hugging at that bar. Mr. MW testified at the DuBay hearing that
the email did not affect his strategy.
   Furthermore, Mr. MW’s initial sworn declaration indicated Appellant had
never provided him the version of dancing with 2d Lt RH that he testified to
                                       20
                  United States v. Turpiano, No. ACM 38873




on cross-examination at trial. At the DuBay hearing, Mr. MW had to retract
that statement, and acknowledged that Appellant had in fact told both defense
counsel prior to trial that 2d Lt RH had grabbed his genitals while they were
dancing. Finally, Mr. MW indicated his preparation for Appellant’s testimony
did not include any mock or simulated cross-examination, consistent with the
strategy he follows with all of his clients.
    Trial defense counsel focused on the offenses involving Ms. KP and
acknowledged the events involving 2d Lt CE and 2d Lt RH occurred, but did
not amount to assaults. Appellant’s testimony confirmed that he touched 2d Lt
RH while dancing, which could have included touching her breast. While the
Defense relied on mistake of fact or accident, the members did not agree. No
witness other than 2d Lt RH was in a position to provide evidence to rebut this.
The witnesses who could have testified they did not see anything would have
contradicted Appellant’s own testimony. With regard to 2d Lt CE, Appellant
denied hugging her the way she described. Again, the potential defense wit-
nesses would have testified they did not see this incident as she described. It
came down to a credibility question for the members.
       c. Prejudice.
    The information before us establishes that trial defense counsel failed to
interview witnesses regarding the AFOSI tactics and the involvement of the
commander during the investigation. However, there is no evidence that this
would have changed the outcome of the trial. While the conduct is troubling,
we are not convinced trial defense counsel’s failure to more thoroughly vet po-
tential witnesses resulted in prejudice.
    With respect to preparing Appellant to testify, this trial relied heavily on
the credibility of the complaining witnesses versus Appellant. Appellant’s ci-
vilian trial defense counsel characterized Appellant as very involved in his
case, to the point of micromanaging the Defense, which counsel found distract-
ing at times. A difficult client is entitled to the same zealous representation as
one who provides little to no assistance during trial preparation. Based on the
evidence before us Appellant’s testimony was consistent with what he had pre-
viously told his counsel. Neither Appellant nor his counsel has offered any fur-
ther explanation as to how additional preparation would have affected the find-
ings by the members. Therefore, we find Appellant was not prejudiced by his
counsel’s failure to reasonably investigate prior to developing their strategy or
in their preparation of his testimony.




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                  United States v. Turpiano, No. ACM 38873




E. Findings Instructions
   1. Law
    We review the propriety of the instructions given by a military judge de
novo. United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008) (citing United
States v. Maxwell, 45 M.J. 406, 424 (C.A.A.F. 1996)). The military judge bears
the primary responsibility for ensuring that the court members are properly
instructed on the elements of the offense as well as potential defenses, and his
duty is to provide an accurate, complete, and intelligible statement of the law.
Id. (quoting United States v. Westmoreland, 31 M.J. 160, 164 (C.M.A. 1990));
see United States v. Medina, 69 M.J. 462, 465 (C.A.A.F. 2011); United States v.
Wolford, 62 M.J. 418, 419 (C.A.A.F. 2006).
    Defense counsel did not object to any of the instructions now challenged on
appeal. Accordingly, we review for plain error. United States v. Tunstall, 72
M.J. 191, 193 (C.A.A.F. 2013) (citing United States v. Wilkins, 71 M.J. 410, 412
(C.A.A.F. 2012)). However, a defense counsel’s failure to object does not consti-
tute waiver as waiver does not apply to required instructions such as affirma-
tive defenses. United States v. Stanley, 71 M.J. 60, 63 (C.A.A.F. 2012) (citation
omitted). When instructional errors have constitutional implications, as in-
structions involving affirmative defenses do, then the error is tested for preju-
dice under a “harmless beyond a reasonable doubt” standard. Behenna, 71 M.J.
at 234 (citing United States v. Lewis, 65 M.J. 85, 87 (C.A.A.F. 2007)).
    Under plain error jurisprudence, “Appellant has the burden of establishing
(1) error that is (2) clear or obvious and (3) results in material prejudice to his
substantial rights.” United States v. Knapp, 73 M.J. 33, 36 (C.A.A.F. 2014) (cit-
ing United States v. Brooks, 64 M.J. 325, 328 (C.A.A.F. 2007)). “[T]he failure to
establish any one of the prongs is fatal to a plain error claim.” United States v.
Bungert, 62 M.J. 346, 348 (C.A.A.F. 2006). Under the “harmless beyond a rea-
sonable doubt” standard, we must be convinced beyond a reasonable doubt that
the error did not contribute to Appellant’s conviction in order to find such a
constitutional error harmless. Behenna, 71 M.J. at 234 (citing Lewis, 65 M.J.
at 87).
   2. Analysis
       a. Instruction on Mistake of Fact as to Consent.
    Appellant contends that although the military judge gave the legally cor-
rect instruction as to mistake of fact, he misapplied the law when he further
instructed on “reasonable belief” with regard to the allegation involving 2d Lt
RH. The military judge instructed on mistake of fact twice, initially regarding

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                 United States v. Turpiano, No. ACM 38873




the allegation involving Ms. KP. In that instruction, oral and written, the mil-
itary judge correctly stated:
       Mistake of fact as to consent is a defense to that charged offense.
       “Mistake of fact as to consent” means the accused held, as a re-
       sult of ignorance or mistake, an incorrect belief that the other
       person consented to the sexual conduct as alleged. The ignorance
       or mistake must have existed in the mind of the accused and
       must have been reasonable under all the circumstances. To be
       reasonable, the ignorance or mistake must have been based on
       information, or lack of it, that would indicate to a reasonable
       person that the other person consented . . . .
       ...
       The burden is on the prosecution to establish the guilt of the ac-
       cused. If you are satisfied beyond a reasonable doubt that the
       accused was not under the mistaken belief that the other person
       consented to the alleged sexual conduct, then the defense of mis-
       take of fact does not exist. Even if you conclude that the accused
       was under the mistaken belief that the other person consented
       to the sexual conduct as alleged, if you are convinced beyond a
       reasonable doubt that, at the time of the alleged offense, the ac-
       cused’s mistake was unreasonable, the defense of mistake does
       not exist.
       ...
    With regard to the allegation involving 2d Lt RH, the military judge in-
structed, inter alia:
       A “battery” is an unlawful and intentional or culpably negligent
       application of force or violence to another. The act must be done
       without legal justification or excuse and without the lawful con-
       sent of the victim.
       ...
       The evidence has raised the issue of mistake on the part of the
       accused concerning whether [2d Lt RH] consented to the physi-
       cal contact alleged in Specification 1 of the Additional Charge.
       The accused is not guilty of the offense of assault consummated
       by a battery if: he mistakenly believed that [2d Lt RH] was con-
       senting to the physical contact alleged and such belief on his part
       was reasonable.
                                       23
                  United States v. Turpiano, No. ACM 38873




       To be reasonable the belief must have been based on infor-
       mation, or lack of it, which would indicate to a reasonable person
       that [2d Lt RH] was not consenting to the physical contact that
       has been alleged.
       ...
       The burden is on the prosecution to establish the accused’s guilt.
       If you’re convinced beyond a reasonable doubt that, at the time
       of the charged offense, the accused was not under the mistaken
       belief that [2d Lt RH] consented to the alleged physical conduct,
       the defense of mistake does not exist. Even if you conclude that
       the accused was under the mistaken belief that [2d Lt RH] con-
       sented to the alleged physical contact, if you are convinced be-
       yond a reasonable doubt that, at the time of the charged offense,
       the accused’s mistake was unreasonable, the defense of mistake
       does not exist.
(Emphasis added).
    Appellant further relies on the fact that trial counsel repeated the instruc-
tion during closing argument and therefore relied on the error for the sound-
ness of their argument. We do not agree. Appellant could rely on the mistake
of fact defense if he reasonably believed 2d Lt RH consented to being touched
on her breast by someone she just met. While the two may have been “grinding”
on the dance floor, that does not in and of itself allow for any and all touching
to be deemed consensual. Appellant’s first touching of 2d Lt RH was her breast,
and, as addressed above in our assessment of factual sufficiency, there is no
evidence to reasonably believe she consented to that touching. Appellant’s own
testimony belies his argument on appeal.
    While we agree that the military judge’s inclusion of “not consenting” was
an error, and clear and obvious in that it contradicts the previous instruction
regarding consent as well as the sentence in the instruction directly above pre-
ceding it, it did not materially prejudice Appellant. The military judge stated
multiple times that the burden of proof beyond a reasonable doubt was on the
Government. Considering the totality of the instructions, the members were
instructed as to the applicability of mistake of fact as to consent and were not
confused or misled. Further, we are convinced beyond a reasonable doubt that
this error did not contribute to Appellant’s conviction, and therefore was harm-
less beyond a reasonable doubt.




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       b. Instruction on Witness Credibility.
    Appellant asserts that the military judge gave a “superfluous” instruction
referred to as the “human lie detector” instruction, which stated:
       Only you, the members of the court, determine the credibility of
       the witnesses and what the facts in this case are. No witness can
       testify that a witness’s or an alleged victim’s account of what oc-
       curred is true or credible, or whether the witness believes an-
       other witness or an alleged victim.
       To the extent that you believed that any witness testified or im-
       plied that they believe an alleged victim or a witness, that a
       crime occurred, or that an alleged victim or witness is credible,
       you may not consider this as evidence that a crime occurred or
       that the alleged victim or witness is credible.
    Appellant correctly cites the holding of Knapp, 73 M.J. at 36, that human
lie detector evidence is generally not permitted during a court-martial and ar-
gues that his own testimony was inadmissible. However, he asserts that since
the military judge did not provide a curative instruction at the time of Appel-
lant’s testimony, it was improper to provide the instruction later in the overall
findings instructions given to the members. Appellant claims the instruction,
following the character for truthfulness instruction, “essentially directed the
panel to disregard the testimony of the defense’s character witnesses.”
    The impetus for this instruction was the testimony of Appellant on cross-
examination when he repeatedly alleged 2d Lt RH and Ms. KP lied and further
commented that two other witnesses were not credible. Appellant’s claim that
there was no reason for the military judge to provide this instruction is not
supported by the evidence. The instruction given was in fact curative, and
served to properly instruct the members on their duty to determine credibility
of the witnesses and evidence presented.
F. Sentence Severity
   1. Law
    We review sentence appropriateness de novo. United States v. Lane, 64
M.J. 1, 2 (C.A.A.F. 2006). We “may affirm only such findings of guilty and the
sentence or such part or amount of the sentence, as [we find] correct in law and
fact and determine[ ], on the basis of the entire record, should be approved.”
Article 66(c), UCMJ.
   In determining whether a sentence should be approved, our authority is
“not legality alone, but legality limited by appropriateness.” United States v.
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                  United States v. Turpiano, No. ACM 38873




Nerad, 69 M.J. 138, 142 (C.A.A.F. 2010) (quoting United States v. Atkins, 23
C.M.R. 301, 303 (C.M.A. 1957)). This authority is “a sweeping congressional
mandate to ensure ‘a fair and just punishment for every accused.’” United
States v. Baier, 60 M.J. 382, 384 (C.A.A.F. 2005) (quoting United States v. Bau-
erbach, 55 M.J. 501, 504 (A. Ct. Crim. App. 2001)). This task requires “‘indi-
vidualized consideration’ of the particular accused ‘on the basis of the nature
and seriousness of the offense and the character of the offender.’” United States
v. Snelling, 14 M.J. 267, 268 (C.M.A. 1982) (quoting United States v. Mamaluy,
27 C.M.R. 176, 180–81 (C.M.A. 1959)). While we have great discretion in de-
termining whether a particular sentence is appropriate, we are not authorized
to engage in exercises of clemency. United States v. Healy, 26 M.J. 394, 395–
96 (C.M.A. 1988).
   2. Analysis
     Appellant argues that a dismissal is an inappropriately severe sentence for
convictions of assault consummated by a battery. To support his claim, Appel-
lant cites his five combat deployments where he was credited with saving the
life of a fellow service member and the lives of four civilians during an enemy
attack, his 16 years of both enlisted and commissioned service, and his unre-
butted good character. Appellant maintains his innocence as to the offenses,
but avers that if we are satisfied that the conduct constituted a criminal of-
fense, it is so minor in nature that a dismissal is clearly inappropriate.
    While a dismissal is a severe punishment, it is not inappropriately so under
the facts and circumstances of this case. Appellant was the senior ranking of-
ficer in his formal training class, composed of civilians, prior-service and non-
prior-service commissioned officers. The facts and circumstances establish Ap-
pellant’s guilt for inappropriately touching students without their consent. The
evidence depicted Appellant, while intoxicated, “aggressively” or “persistently”
chasing women who were members of his class. Additionally, it was Appellant’s
extended military service that provided him with the status of class leader, a
position of authority with commensurate responsibilities. Appellant welcomed
the authority and status, but was woefully deficient in his military bearing,
demeanor, and general officership. As such, a dismissal is not inappropriately
severe.
G. Victim Impact Evidence.
   1. Facts
    The Government offered a written, unsworn statement by 2d Lt RH during
its sentencing case. The statement indicated 2d Lt RH experienced immediate
and extreme anxiety when Appellant “grabbed [her] around [her] waist, and

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                  United States v. Turpiano, No. ACM 38873




kissed [her] on the neck and cheek . . . .” She also asserted that, “As this hap-
pened very early in my Air Force career, it has in all made me go from a person
who never doubted making this her career, to someone who wants out the first
moment it is offered.” There was no objection by the Defense and the military
judge admitted the statement. Trial counsel referred to and read from the
statement in sentencing argument. The military judge instructed the members
as to how they should view the victim’s unsworn statement:
       Lieutenant [RH] provided a victim impact statement. This state-
       ment is not under oath. This method of making a statement is
       an authorized means for a crime victim to bring information to
       the attention of the court and must be given appropriate consid-
       eration. Lieutenant [RH] cannot be cross examined by the de-
       fense or interrogated by court members upon making such a
       statement. The defense may offer evidence to rebut any state-
       ment of fact contained in them. The weight and significance at-
       tached to this unsworn statement rests within the sound discre-
       tion of each court member. You may consider that the statement
       was not under oath, the inherent probability or improbability
       whether it is supported or contradicted by evidence in the case
       as well as any other matter that may have a bearing upon its
       credibility. In weighing a victim impact statement you are ex-
       pected to use your common knowledge, your common sense and
       your knowledge of human nature and the ways of the world.
   2. Law
    We review a military judge’s admission or exclusion of evidence, including
sentencing evidence, for an abuse of discretion. United States v. Stephens, 67
M.J. 233, 235 (C.A.A.F. 2009) (citing United States v. Manns, 54 M.J. 164, 166
(C.A.A.F. 2000)). In the absence of waiver and objection at trial, decisions to
admit evidence are reviewed for plain error. Knapp, 73 M.J. at 36. “Appellant
has the burden of establishing (1) error that is (2) clear or obvious and (3) re-
sults in material prejudice to his substantial rights.” Id. (citation omitted).
    In 2013, Congress enacted Article 6b, UCMJ, pursuant to the National De-
fense Authorization Act (NDAA) for Fiscal Year 2014. Pub. L. No. 113–66, §
1701, 127 Stat. 672 (2013) (codified as 10 U.S.C. § 806b). Article 6b, UCMJ,
incorporated additional rights of crime victims in presentencing provided in
the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, with an effective date
of 26 December 2013. Article 6b nearly mirrors the rights afforded to victims
in civilian criminal trials under the CVRA and establishes that a victim has
“[t]he right to be reasonably heard . . . at [a] sentencing hearing related to the
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                   United States v. Turpiano, No. ACM 38873




offense.” 10 U.S.C. § 806b(a)(4)(B). The article provides no further guidance on
the manner in which a victim could exercise that right and does not address
the victim’s right to be heard at presentencing in terms of presenting victim
impact. 15
     3. Analysis
    Appellant’s mistaken belief as to the effective date of Article 6b serves as
the foundation for his argument that because victim unsworn statements were
not expressly authorized at the time of his trial, the military judge’s decision
to admit 2d Lt RH’s statement was an abuse of discretion. While it is true that
R.C.M. 1001A was not in existence at the time of trial, a victim’s right to be
heard at sentencing pursuant to Article 6b was.
    The military judge put on the record that both the CVRA and Article 6b,
UCMJ, gave victims a right to be “reasonably heard” at sentencing, and that
federal courts have interpreted this term to mean allowing an unsworn victim
impact statement in sentencing. This statutory provision includes the right of
all crime victims to be “reasonably heard” at sentencing. The military judge
was focused on allowing 2d Lt RH to exercise her right, and doing so without
the pending implementing rules and regulations. As such, we find that the
military judge did not abuse his discretion in permitting 2d Lt RH to provide
her written unsworn statement, a mode now specifically authorized by the
President. See United States v. Parr, No. ACM 38878, 2017 CCA LEXIS 86
(A.F. Ct. Crim. App. 7 Feb. 2017) (unpub. op.). 16

                                  III. CONCLUSION
    The record of trial is returned to The Judge Advocate General for remand
to the convening authority for new post-trial processing consistent with the
opinion. Article 66(e), UCMJ, 10 U.S.C. § 866(e).



15The President did not promulgate R.C.M. 1001A, providing guidance on how to im-
plement Article 6b(a)(4)(B), until 17 June 2015, after Appellant’s trial. R.C.M. 1001A(c)
now indicates that the content of a victim’s unsworn statement is limited to victim
impact and matters in mitigation. R.C.M. 1001A(e) also now expressly permits a victim
to make an unsworn statement orally, in writing, or both.
16See also United States v. Hamilton, 77 M.J. 579 (A.F. Ct. of Crim. App. 2017) (en
banc), rev. granted, United States v. Hamilton, ___ M.J. ___ , No. 18–0135, 2018 CAAF
LEXIS 241 (C.A.A.F. 23 Apr. 2018) (mem.) (Victim unsworn statements offered pursu-
ant to R.C.M. 1001A are not aggravation evidence offered by the Prosecution, but a
means by which a victim exercises their right to be heard on sentencing).

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              United States v. Turpiano, No. ACM 38873




Thereafter, Article 66(b), UCMJ, 10 U.S.C. § 866(b), will apply.


                 FOR THE COURT



                 CAROL K. JOYCE
                 Clerk of the Court




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