                         UNITED STATES, Appellee

                                         v.

                    Walter S. COLEMAN, Specialist
                         U.S. Army Appellant

                                  No. 13-0007
                         Crim. App. No. 20100417

       United States Court of Appeals for the Armed Forces

                          Argued March 12, 2013

                            Decided May 9, 2013

STUCKY, J., delivered the opinion of the Court, in which ERDMANN
and RYAN, JJ., and COX, S.J., joined. BAKER, C.J., filed a
separate opinion concurring in the result.



                                     Counsel


For Appellant: Captain Robert N. Michaels (argued); Colonel
Patricia A. Ham and Major Richard E. Gorini (on brief).


For Appellee: Captain Sasha N. Rutizer (argued); Major
Catherine L. Brantley, Major Robert A. Rodriguez, and Captain
Bradley M. Endicott (on brief).


Military Judge:    Charles D. Hayes


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Coleman, No. 13-0007/AR


     Judge STUCKY delivered the opinion of the Court.

     “[T]he suppression by the prosecution of evidence favorable

to an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland, 373 U.S. 83, 87 (1963).   We granted review to

consider whether the military judge erred by failing to grant a

defense motion for mistrial based on the trial counsel’s failure

to disclose to the defense that the staff judge advocate (SJA)

had agreed to recommend the convening authority (CA) reduce a

co-accused’s sentence in exchange for his testimony against

Appellant.   We hold that the military judge did not abuse his

discretion in denying the motion for mistrial as the

Government’s error in failing to notify the defense of the co-

accused’s agreement with the SJA was harmless beyond a

reasonable doubt.

                      I.   Posture of the Case

     A general court-martial consisting of officer and enlisted

members convicted Appellant, contrary to his pleas, of causing

DD to engage in a sexual act by using strength and power

sufficient that DD could not avoid or escape the sexual conduct,

and adultery.   Articles 120 and 134, Uniform Code of Military

Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2006).    Appellant was

sentenced to a dishonorable discharge, confinement for ten


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United States v. Coleman, No. 13-0007/AR


years, forfeiture of all pay and allowances, and reduction to

the lowest enlisted grade.    The CA reduced the sentence to

confinement to five years but otherwise approved the sentence.

The United States Army Court of Criminal Appeals (CCA) set aside

the adultery conviction because the specification failed to

include the terminal element of the offense but otherwise

affirmed the findings and sentence.    United States v. Coleman,

No. 20100417, 2012 CCA LEXIS 245, at *18-*19, 2012 WL 2756004,

at *6 (A. Ct. Crim. App. July 9, 2012) (unpublished).

                          II.    Background

     Appellant and Private First Class (PFC) Jarvis Pilago were

charged with sexually assaulting DD, PFC Pilago’s neighbor,

after she had been drinking alcohol with them at a neighborhood

gathering.   When interviewed by military investigators,

Appellant invoked his right against self-incrimination, while

PFC Pilago made a lengthy statement incriminating both himself

and Appellant.   On March 19, 2010, through counsel, Appellant

submitted a discovery request to the Government, asking for

disclosure of any immunity or leniency pertaining to any

witnesses.   “Specifically the defense is requesting immediate

disclosure of any agreement with PFC Jarvis Joshua Pilago to

cooperate with the government in any way.”    The request for

discovery was “a continuing request.”    The Government response,

undated, stated as follows:     “Not applicable at this time.   The


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United States v. Coleman, No. 13-0007/AR


Government will comply with the defense request if it becomes

relevant.”

     PFC Pilago’s trial concluded on May 12, 2010, the day

before Appellant’s trial commenced.   He was convicted of

adultery and forcible sodomy of DD.   His sentence included a

dishonorable discharge and confinement for forty-two months.

PFC Pilago’s defense counsel approached the SJA and obtained his

oral agreement to recommend to the CA that PFC Pilago be granted

twelve months of clemency in exchange for his truthful testimony

at Appellant’s trial, which was scheduled to begin the following

day, May 13.

     After this verbal agreement was reached but before PFC

Pilago testified, the trial counsel told the defense counsel

that “there was no immunity agreement, nothing in writing and

‘negotiations had kind of been reached.’”   The defense counsel

interviewed PFC Pilago.   At the Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2006), hearing held before PFC Pilago testified in

Appellant’s case, the defense counsel asked if there was a deal

in place.    The assistant trial counsel answered, “No, there’s

nothing in writing.”

     The defense counsel moved the military judge to prevent PFC

Pilago from testifying that he had been convicted or to provide

any details about his sentence.   Later, he corrected himself,

noting that the motion was limited to “what he was convicted of,


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United States v. Coleman, No. 13-0007/AR


not the overall conviction.   A conviction would be appropriate

impeachment for the defense, but not necessarily the specific

act that he was convicted of.”   The Government agreed to abide

by the defense request.

     PFC Pilago testified for both the prosecution and the

defense in Appellant’s trial.    For the prosecution, PFC Pilago

testified that while he, Appellant, and DD were engaged in sex

in her bedroom, DD said “Stop”; that he (PFC Pilago) had twice

told Appellant, “Dude, she said stop”; and that Appellant had

replied “just to keep going.”    During cross-examination,

Appellant’s defense counsel focused on DD’s ability to consent

to the sexual acts despite her alcohol consumption.   He did not

cross-examine PFC Pilago about DD’s demand for them to stop, nor

about his recent court-martial conviction.   On direct

examination for the defense, PFC Pilago testified that he,

Appellant, and DD had had consensual sex in PFC Pilago’s bedroom

and backyard shed earlier on the same evening.

     In his post-trial submissions, Appellant asked the CA to

grant him clemency, inter alia, because the only witness to

corroborate DD’s testimony was PFC Pilago and the defense had

not been provided written notification that the SJA had agreed

to recommend clemency for him in exchange for his testimony

against Appellant.   The SJA recommended that the CA order a




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United States v. Coleman, No. 13-0007/AR


post-trial hearing to resolve the issue.    The CA ordered the

hearing on December 14, 2010.

     After the post-trial hearing, the military judge determined

that the SJA’s promise to recommend clemency in exchange for PFC

Pilago’s testimony “was favorable and material to defense trial

preparation and should have been disclosed.”   Nevertheless, he

concluded that the Government had sustained its burden to

establish that the error was harmless beyond a reasonable doubt.

                           III.   The Law

     A military judge has discretion to “declare a mistrial when

such action is manifestly necessary in the interest of justice

because of circumstances arising during the proceedings which

cast substantial doubt upon the fairness of the proceedings.”

Rule for Courts-Martial (R.C.M.) 915(a).    “We will not reverse a

military judge’s determination on a mistrial absent clear

evidence of an abuse of discretion.”   United States v. Ashby, 68

M.J. 108, 122 (C.A.A.F. 2009).

     The failure of the trial counsel to disclose evidence that

is favorable to the defense on the issue of guilt or sentencing

violates an accused’s constitutional right to due process.

Brady, 373 U.S. at 87; accord Smith v. Cain, 132 S. Ct. 627, 630

(2012).   The Supreme Court reviews all such cases for harmless

error -- whether “there is a ‘reasonable probability that, had

the evidence been disclosed, the result of the proceeding would


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United States v. Coleman, No. 13-0007/AR


have been different.’”   Smith, 132 S. Ct. at 628–29 (quoting Cone

v. Bell, 556 U.S. 449, 469–70 (2009)).

     A military accused also has the right to obtain favorable

evidence under Article 46, UCMJ, 10 U.S.C. § 846 (2006),1 as

implemented by R.C.M. 701–703.2   This Court has held that Article

46 and its implementing rules provide greater statutory

discovery rights to an accused than does his constitutional


1
  “The trial counsel, the defense counsel, and the court-martial
shall have equal opportunity to obtain witnesses and other
evidence in accordance with such regulations as the President
may prescribe.” Article 46, UCMJ.
2
  The President’s rules provide that:

     (1) Each party is entitled to the production of
     evidence which is relevant and necessary. R.C.M.
     703(f).

     (2) Upon the request of the defense, the government
     must produce any documents that are in the possession
     of military authorities and are “material to the
     preparation of the defense or are intended for use by
     the trial counsel as evidence in the prosecution case-
     in-chief at trial.” R.C.M. 701(a)(2)(A).

     (3) The trial counsel must disclose to the defense the
     existence of evidence known to the trial counsel which
     reasonably tends to:

          (A) Negate the guilt of the accused of an offense
     charged;

          (B) Reduce the degree of guilt of the accused of
     an offense charged; or

          (C) Reduce the punishment.

     R.C.M. 701(a)(6).

United States v. Graner, 69 M.J. 104, 107 (C.A.A.F. 2010).

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United States v. Coleman, No. 13-0007/AR


right to due process.   United States v. Roberts, 59 M.J. 323,

327 (C.A.A.F. 2004); see United States v. Hart, 29 M.J. 407,

409-10 (C.M.A. 1990).   As a result, we have established two

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 information.    Roberts, 59

M.J. at 326–27.   For cases in the first category, we apply the

harmless error standard.   Hart, 29 M.J. at 410; see United

States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012).     For cases

in the second category, we apply the heightened constitutional

harmless beyond a reasonable doubt standard.    Roberts, 59 M.J.

at 327; Hart, 29 M.J. at 410 (dictum).     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).

                           IV.   Discussion

     “Our review of discovery/disclosure issues utilizes a two-

step analysis:    first, we determine whether the information or

evidence at issue was subject to disclosure or discovery;

second, if there was nondisclosure of such information, we test

the effect of that nondisclosure on the appellant’s trial.”

Roberts, 59 M.J. at 325.    The Government rightly concedes that


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United States v. Coleman, No. 13-0007/AR


Appellant specifically requested disclosure of any agreement

with PFC Pilago and the requested matter was favorable to the

defense, should have been disclosed, and was not disclosed.

Therefore, the question before us is whether the Government’s

failure to disclose the specifically requested information was

harmless beyond a reasonable doubt.

     PFC Pilago’s direct testimony for the Government was very

brief -- one and one-half pages.       The trial counsel asked what

he and Appellant did in DD’s bedroom on the night of July 26,

2009 -- he had his penis in DD’s mouth while Appellant was

engaged in intercourse with her.       Trial counsel then asked what

DD said.   PFC Pilago testified that she said “Stop”; PFC Pilago

told Appellant that DD had said to stop, but Appellant said to

keep going.   This evidence corroborated DD’s testimony that

Appellant had sex with her3 and that she had told both of them to

stop, and they did not.

     For the defense, PFC Pilago testified that earlier in the

evening, Appellant had performed oral sex on a consenting DD in

PFC Pilago’s bedroom while she performed oral sex on PFC Pilago;

the threesome engaged in consensual sexual acts in a shed; they

later went to DD’s home, which was across the street; that DD

was not so intoxicated she could not cross the street


3
  This was further corroborated by medical evidence that DD
suffered a vaginal tear.

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United States v. Coleman, No. 13-0007/AR

unassisted, could carry on a conversation without slurring her

words, and unlock the door to her home, all without stumbling or

fumbling.

     In his closing argument, the defense counsel argued that

the sexual relationship between Appellant and DD was consensual.

He asserted that:   (1) DD had a motive to lie -- her husband was

deployed and she did not want to lose him, especially with a

newborn who would need health insurance; (2) DD was not

substantially incapacitated (a separate charge of which

Appellant was acquitted that apparently was charged in the

alternative to rape by force); (3) that Appellant did not engage

in sexual acts with DD in her bedroom; and (4) that DD’s

previous sexual encounters with Appellant that evening were

consensual.   The defense counsel also argued that it was

convenient for DD to not remember the consensual sex that she

had with Appellant and PFC Pilago earlier that evening.     Defense

counsel then discussed PFC Pilago’s motive to lie.   He drew

attention to the accomplice instruction the military judge had

given concerning PFC Pilago’s testimony:

     [The military judge] said, in essence, be wary of
     accomplice testimony because of the benefits that
     someone may receive from them; the benefits of
     immunity; and the benefits of potentially receiving
     some sort of clemency from the Commanding General in
     his own case. I am not asking the panel to do
     something unreasonable. So, what I’ll tell you is
     that Jarvis Pilago testified to a lot of different
     things. I’m asking you to consider the evidence that


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United States v. Coleman, No. 13-0007/AR

     he gave to the government is the evidence that is
     going to help him with his clemency. It’s the
     evidence that helped the government . . . . Panel
     members, there was no sex in [DD’s] bedroom. PFC
     Pilago told you what he had to tell you to get his
     clemency. [DD] made up the bedroom story to avoid
     telling her husband she cheated on him.

     The defense knew that PFC Pilago had been convicted and

sentenced for the same offenses with which Appellant was

charged.   The defense counsel could have impeached PFC Pilago

with the conviction and punishment but chose not to do so.

Nevertheless, Appellant’s counsel did argue that PFC Pilago was

testifying because he wanted clemency from the CA for his

participation in the offenses, and PFC Pilago’s motive to

misrepresent was self-evident to the court members.   It is

unclear how knowing that the SJA had agreed to recommend that

the CA grant PFC Pilago clemency in exchange for his testimony

would have caused the defense counsel to change strategy or

tactics or led to a different result.   It would not have

affected either the defense counsel’s ability to cross-examine

PFC Pilago or his closing argument.

     Although not necessary for disposition of this case, the

Government also seems to have been prepared to counter any

attempt by the defense to impeach the credibility of PFC Pilago

with evidence that he had (1) been convicted of sexual

misconduct for the same incident that formed the basis of




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United States v. Coleman, No. 13-0007/AR

Appellant’s charges and (2) made a prior statement to law

enforcement that was consistent with his testimony at trial.

     A prior consistent statement is not hearsay if it is

“offered to rebut an express or implied charge against the

declarant of recent fabrication or improper influence or

motive.”   Military Rule of Evidence (M.R.E.) 801(d)(1)(B).

     This Court has consistently interpreted the rule to
     require that a prior statement, admitted as
     substantive evidence, precede any motive to fabricate
     or improper influence that it is offered to rebut.
     Where multiple motives to fabricate or multiple
     improper influences are asserted, the statement need
     not precede all such motives or inferences, but only
     the one it is offered to rebut.

United States v. Allison, 49 M.J. 54, 57 (C.A.A.F. 1998)

(citations omitted).

     PFC Pilago’s prior consistent statement was made well

before his counsel approached the SJA to make a deal.   It is

most likely that, had the defense tried to impeach PFC Pilago

with the agreement, the prior consistent statement would have

been admitted to rebut any defense contention that he had motive

to alter his testimony to obtain clemency.   Even if the military

judge would have refused to admit the prior consistent statement

for the truth of the matter asserted, it still would have been

admissible “simply to corroborate, or rehabilitate, the in-court

testimony of a witness, regardless of whether it qualifies for

exception from the hearsay rule under Fed. R. Evid.



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United States v. Coleman, No. 13-0007/AR

801(d)(1)(B).”   David F. Binder, Hearsay Handbook, 4th § 40.1,

at 1052 (2012-13 ed.) (Fed. R. Evid. 801(d)(1)(B) is

substantially the same as M.R.E. 801(d)(1)(B)); see 2 Stephen A.

Saltzburg et al., Military Rules of Evidence Manual

§ 801.02[6][c], at 8-27 (7th ed. 2011); United States v.

Simonelli, 237 F.3d 19, 27 (1st Cir. 2001); United States v.

Ellis, 121 F.3d 908, 919 (4th Cir. 1997).

     In conclusion, while the conduct of the prosecution in not

disclosing the oral agreement between PFC Pilago’s counsel and

the SJA was, at a minimum, negligent, and certainly violated

Brady, Article 46, and R.C.M. 701–703,4 the Government has

established that under the circumstances of this case its

failure was harmless beyond a reasonable doubt -- disclosure

would not have affected the outcome of the trial.   Therefore,

the military judge did not abuse his discretion in refusing to

declare a mistrial.

                           V.   Judgment

     The judgment of the United States Army Court of Criminal

Appeals is affirmed.



4
  We disagree with the military judge’s suggestion that the
failure to disclose was somehow mitigated because the
experienced defense counsel could have divined that PFC Pilago
was testifying as a result of a deal with the Government. The
defense counsel’s experience does not relieve the Government of
its burden to disclose under Brady, Article 46, UCMJ, and R.C.M.
701–703.

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United States v. Coleman, No. 13-0007/AR


     BAKER, Chief Judge (concurring in the result):

     I agree with the majority’s analysis regarding the

threshold application of Brady v. Maryland, 373 U.S. 83 (1963),

and Article 46, Uniform Code of Military Justice, (UCMJ), 10

U.S.C. § 846 (2006), to this case.   Pilago’s oral agreement with

the prosecutor for a favorable clemency recommendation was

clearly favorable and material to the defense.   It should have

been disclosed to Appellant, regardless of whether he expressly

requested it, although he did, and regardless of whether

Appellant knew Pilago had been convicted and sentenced for the

same offense.   However, unlike the majority, I would not rely on

evidence that was not admitted, and potentially not admissible,

in determining whether the failure to disclose was harmless

beyond a reasonable doubt.   Cf. United States v. Holt, 58 M.J.

227, 232 (C.A.A.F. 2003) (“Article 66(c) limits the Courts of

Criminal Appeals to a review of the facts, testimony, and

evidence presented at the trial, and precludes a Court of

Criminal Appeals from considering extra-record matters when

making determinations of guilt, innocence, and sentence

appropriateness.” (citations and internal quotation marks

omitted)); United States v. Duffy, 3 C.M.A. 20, 23, 11 C.M.R.

20, 23 (1953) (holding that the military justice system does not

“permit appellate reviewing authorities to cast beyond the

limits of the record for ‘evidence’ with which to sustain a
United States v. Coleman, No. 13-0007/AR


conviction.”); United States v. Whitman, 3 C.M.A. 179, 180, 11

C.M.R. 179, 180 (1953) (“look[ing] outside the record for

evidence of guilt” is “reversible error”).    In addition, I

hesitate to assume that actual knowledge of a clemency agreement

can never enhance the effectiveness of a cross-examination or

closing statement.

     First, the prior consistent statement made by Pilago was

marked for identification only at the outset of trial.   But it

was neither admitted nor referred to at trial, nor discussed at

the post-trial Article 39(a), UCMJ, 10 U.S.C. § 39(a) (2006),

session.    See R.C.M. 1103(b)(3) (“The following matters shall be

attached to the record: . . . (B) Exhibits . . . which were

marked for and referred to on the record but not received in

evidence.” (emphasis added)).   The preliminary marking of a

document for administrative convenience does not make that

document part of the evidentiary record at trial or on appeal.

Arguments can be made on both sides of the ledger as to whether

this evidence might have come in, if it had been offered as

evidence.   But it was not offered, and therefore the military

judge never conducted the necessary M.R.E. 401 and 403 analyses

in order to admit the evidence.    Nor was the matter appealed to

this Court by either party.   Therefore, it seems speculative, if

not unfair, for this Court to now incorporate this prior

statement into its harmless error analysis.

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United States v. Coleman, No. 13-0007/AR


     Second, an agreement to recommend clemency to a co-actor

offers a qualitatively different opportunity to cross-examine

and expose bias than does the knowledge alone that a witness was

a co-actor and might hope for clemency.    Contrast United States

v. Coleman, __ M.J. __ (11) (C.A.A.F. 2013) (knowledge of an

actual agreement with the witness “would not have affected

either the defense counsel’s ability to cross-examine PFC Pilago

or his closing argument.”).   Disclosure of such an agreement

would allow defense counsel to present evidence, and not merely

argument, of a witness’s motive to testify for the government.

The distinction could affect the outcome of a trial.

     Nonetheless, I concur with the majority because there is no

doubt that the disclosure would not have affected the outcome in

this case.   Among other things, the military judge instructed

members on the inherent risks of relying on accomplice

testimony.   The victim, DD, testified and her testimony was

substantiated by medical evidence.     In addition, defense counsel

cross-examined Pilago and thus was able to relate the military

judge’s accomplice instruction to Pilago’s possible hope for

clemency.    Finally, Pilago’s bias would have been self-evident

to members in a case of this sort.

     Therefore, I concur with the majority’s finding that the

erroneous failure to disclose the accomplice’s agreement with

the SJA in this case was harmless beyond a reasonable doubt.  

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