                              IN THE CASE OF


                        UNITED STATES, Appellee

                                     v.

                       Michael J. SONEGO, Airman
                       U.S. Air Force, Appellant

                               No. 04-0480

                         Crim. App. No. S30216

       United States Court of Appeals for the Armed Forces

                        Argued December 8, 2004

                         Decided April 1, 2005

ERDMANN, J., delivered the opinion of the Court, in which
GIERKE, C.J., and EFFRON and BAKER, JJ., joined. CRAWFORD, J.,
filed a dissenting opinion.

                                  Counsel

For Appellant: Major Sandra K. Whittington (argued); Lieutenant
Colonel Carlos L. McDade, Major Antony B. Kolenc, Major Terry L.
McElyea, and Captain L. Martin Powell (on brief).

For Appellee: Captain Jin-Hwa L. Frazier (argued); Lieutenant
Colonel Robert V. Combs and Lieutenant Colonel Gary F. Spencer
(on brief); Major Shannon J. Kennedy.

Military Judge:    Israel B. Willner


  This opinion is subject to editorial correction before final publication.
United States v. Sonego, No. 04-0480/AF

       Judge ERDMANN delivered the opinion of the Court.

       Airman Michael Sonego entered a plea of guilty to wrongful

use of ecstasy in violation of Article 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 912a (2000).   He was

sentenced by members to a bad-conduct discharge, restriction to

the limits of Lackland Air Force Base for two months, forfeiture

of $500 pay per month for twelve months, and a reduction in

grade to E-1.    The convening authority approved only the bad-

conduct discharge and partial forfeitures.   The findings and the

approved sentence were affirmed by the United States Air Force

Court of Criminal Appeals in an unpublished opinion.     United

States v. Sonego, ACM S30216 (A.F. Ct. Crim. App. Apr. 28,

2004).

       After Sonego’s trial, his defense counsel discovered that

one of the panel members may have failed to answer a question

honestly during voir dire.   Voir dire is critical to the

fairness of a court-martial.   United States v. Mack, 41 M.J. 51,

54 (C.M.A. 1994).   A defendant’s right to a fair trial is

undermined if panel members fail to answer material questions

honestly during voir dire.   Id.   We granted review to determine

whether Sonego was entitled to any post-trial relief.1


1
    We granted review of the following issue:
       WHETHER APPELLANT IS ENTITLED TO AN IMPARTIAL SENTENCE
       REHEARING WHERE, DURING VOIR DIRE, A PANEL MEMBER
       FAILED TO DISCLOSE HIS BELIEF THAT EVERY SERVICEMEMBER
       WHO USES DRUGS SHOULD GET A PUNITIVE DISCHARGE.

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United States v. Sonego, No. 04-0480/AF



                            BACKGROUND

     Sonego was accused of taking two ecstasy pills on two

consecutive days in January 2002.    When questioned by

investigators, he immediately confessed to his misconduct.    At

trial Sonego pleaded guilty and was sentenced by a panel of

three officer members.

     During voir dire, the military judge asked the standard

voir dire questions found in the Military Judges’ Benchbook.

Legal Services, Dep’t of the Army, Pamphlet 27-9, Military

Judges’ Benchbook ch. 2, § V, para. 2-5-1 (2001).    Among the

questions the military judge asked was:

     It is a ground for challenge if you have an inelastic
     predisposition toward the imposition of a particular
     punishment based solely on the nature of the crime for
     which the accused is to be sentenced. Does any
     member, having read the charge and specification[,]
     believe that you would be compelled to vote for any
     particular punishment solely because of the nature of
     the charge?

See id.   Captain Bell, who was a potential member, answered “no”

and was subsequently seated on the panel.   He was not called for

individual voir dire.

     Bell was an active participant in the sentencing

proceedings.   When the first witness was testifying, Bell was

the only panel member to respond to a question from the military

judge about the members’ ability to hear the testimony.   During

the defense’s case, after Sonego’s mother had testified about


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United States v. Sonego, No. 04-0480/AF

Sonego’s background and character, Bell asked the military judge

whether the members would have access to documents that would

show whether Sonego had used drugs before he enlisted in the Air

Force.

     During the deliberations the members sent a note to the

military judge asking if there were any discharge options

available other than a bad-conduct discharge.      The military

judge called the members in and explained that the only

discharge option available to the court was a bad-conduct

discharge.   When the military judge asked if there were any

further questions, Bell asked whether there would be mandatory

confinement time associated with a punitive discharge.         The

military judge told the court that confinement was not required

even if Sonego was sentenced to a bad-conduct discharge.

     Nearly a month after the trial, Sonego’s trial defense

counsel, Captain Page, was representing another airman in a drug

case when Bell was again selected to sit on the panel.         During

voir dire in the second case, Bell expressed a predisposition

that any servicemember convicted of a drug offense should

receive a bad-conduct discharge.       Bell was subsequently

challenged for cause and removed from the panel.

     No transcript was made in the second case because it

resulted in an acquittal, but Page later drafted a sworn

declaration in which he recounted Bell’s different responses in



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United States v. Sonego, No. 04-0480/AF

the two cases.   Page’s declaration did not include the specific

wording of any questions asked of the panel in general or of

Bell in particular.   On appeal to the Court of Criminal Appeals,

Sonego requested a new sentence proceeding that was supported by

Page’s declaration.   That court denied the request on the ground

that Sonego had not demonstrated that Bell failed to answer any

question honestly.

     Before this Court, Sonego argues that Bell failed to reveal

his true beliefs during voir dire, and, that had he revealed his

true feelings about drug use by members of the military, Bell

could have been successfully challenged for cause.   Sonego

argues that his sentence -– which included a bad-conduct

discharge but no confinement -– was so moderate as to indicate

that he might have avoided a punitive discharge altogether if

Bell had not been a member of the panel.   Sonego further argues

that he should be given a new sentence hearing, or, in the

alternative, a trial-level evidentiary hearing to develop the

facts further.

     The Government’s response was that Sonego is not entitled

to a new sentence hearing or even an evidentiary hearing because

he has not established that Bell failed to disclose information

during voir dire.    The Government argues that the accused must

make a prima facie showing of nondisclosure before an

evidentiary hearing can be ordered.



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United States v. Sonego, No. 04-0480/AF

                            DISCUSSION

      In McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.

548, 556 (1984), the United States Supreme Court set out the

test for determining when a party is entitled to a new trial due

to an incorrect voir dire response:      “[T]o obtain a new trial in

such a situation, a party must first demonstrate that a juror

failed to answer honestly a material question on voir dire, and

then further show that a correct response would have provided a

valid basis for a challenge for cause.”       We adopted this test

in Mack, and held that “where a party asserts juror

nondisclosure during voir dire as a ground for a new trial, the

normal procedure is to remand the issue to the trial court for

resolution.”   41 M.J. at 55.   In United States v. Humpherys, we

reiterated, “[A]n evidentiary hearing is the appropriate forum

in which to develop the full circumstances surrounding each of

[the Mack/McDonough] inquiries.”       57 M.J. 83, 96 (C.A.A.F.

2002).   We did not order an evidentiary hearing in Humpherys,

however, because the military judge had already conducted a

post-trial session under Article 39(a), UCMJ, 10 U.S.C. § 839(a)

(2000), after which he applied the McDonough test.       57 M.J. at

95.

      Although an evidentiary hearing is the usual procedure for

resolving claims of juror dishonesty, we have not had the

occasion to address the measure of proof required to trigger an



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United States v. Sonego, No. 04-0480/AF

evidentiary hearing.   The measure of proof required to trigger a

McDonough evidentiary hearing is a question where the federal

circuits have differed.   Of the eight circuits that have

addressed this issue, six have adopted a standard that requires

something less than proof of juror dishonesty before a hearing

is convened.   See United States v. Carpa, 271 F.3d 962, 967

(11th Cir. 2001); Pope v. Man-Data, Inc., 209 F.3d 1161, 1163

(9th Cir. 2000); United States v. Tucker, 137 F.3d 1016, 1026

(8th Cir. 1998); United States v. Boney, 977 F.2d 624, 634-35

(D.C. Cir. 1992); United States v. Boylan, 898 F.2d 230, 258 (1st

Cir. 1990); United States v. Cattle King Packing Co., Inc., 793

F.2d 232, 243 (10th Cir. 1986).

     While some of the circuits have declined to establish a

particular test, choosing instead to leave the decision within

the broad discretion of the deciding court, the Ninth Circuit

has held that “‘[a] court confronted with a colorable claim of

juror bias must undertake an investigation of the relevant facts

and circumstances.’”   Pope, 209 F.3d at 1163 (quoting Dyer v.

Calderon, 151 F.3d 970, 974 (9th Cir. 1998)).    The First Circuit

has also adopted the “colorable claim” rule.    See Boylan, 898

F.2d at 258.   The Eighth Circuit has held that “a movant who

makes a sufficient showing of McDonough-type irregularities is




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United States v. Sonego, No. 04-0480/AF

entitled to the court’s help in getting to the bottom of the

matter.”   Tucker, 137 F.3d at 1026.2

     The standard urged by the Government -– a prima facie

showing -- would swallow the first prong of the McDonough test.

It is unreasonable to expect an appellant to produce prima facie

proof of juror dishonesty without the benefit of an evidentiary

hearing or other fact-finding procedure where the evidence may

be fully developed.   We conclude that the “colorable claim” test

used by the First and Ninth Circuits provides the better test

because it eliminates frivolous claims but keeps the door open

for claims that may prove valid upon further examination.    This

Court has adopted the “colorable claim” test in other contexts.

See, e.g., United States v. Taylor, 60 M.J. 190, 195 (C.A.A.F.

2004) (prejudice due to post-trial error); United States v.

Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002) (appellate discovery);

United States v. Douglas, 56 M.J. 168, 170 (C.A.A.F. 2001)

(violation of rights under United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982)); United States v. Diaz-Duprey, 51 M.J. 168
(C.A.A.F. 1999) (ineffective assistance of counsel).




2
  Unlike the First, Eighth, Ninth, Tenth, Eleventh and District
of Columbia Circuits, the Second Circuit has held that a post-
trial hearing is only necessary if the party requesting the
hearing can produce “clear, strong, substantial and
incontrovertible evidence that a specific, nonspeculative
impropriety has occurred which could have prejudiced the trial of
a defendant.” United States v. Moon, 718 F.2d 1210, 1234 (2d
Cir. 1983) (citation omitted). The Fifth Circuit requires that
the movant establish a prima facie case under McDonough before an
evidentiary hearing is required. Montoya v. Scott, 65 F.3d 405,
420 (5th Cir. 1995).


                                 8
United States v. Sonego, No. 04-0480/AF

     Here, Sonego has made a colorable claim of juror dishonesty.

His attorney, an officer of the court, has declared under penalty

of perjury that a panel member provided a contradictory voir dire

response on a critical issue less than one month after Sonego’s

trial.3   The Government argues that this proof falls short

because Sonego has not and cannot establish what Bell was

thinking when he answered “no” to the voir dire question.     It is

true that Sonego’s proof does not provide prima facie evidence

that Bell failed to answer the voir dire question honestly.    It

does, however, provide a colorable claim sufficient to trigger

an evidentiary hearing.   It is a question of fact whether Bell

answered honestly when he was questioned about his

predispositions and Sonego is entitled to an evidentiary hearing

at which he can fully develop the answer to this question.

     Thus, the Air Force court erred by failing to order an

evidentiary hearing in accordance with United States v. DuBay,

17 C.M.A. 147, 37 C.M.R. 411 (1967).

                              DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.   The record of trial is returned

to the Judge Advocate General of the Air Force for submission to

the convening authority to order a hearing to resolve questions



3
  The parties do not dispute that an inelastic predisposition
toward a particular punishment is a valid basis for a challenge
for cause. United States v. Tippit, 9 M.J. 106 (C.M.A. 1980).

                                 9
United States v. Sonego, No. 04-0480/AF

of fact and make conclusions of law with respect to whether the

McDonough test for a new trial due to juror nondisclosure during

voir dire has been met.    Upon completion of these proceedings,

the record, along with the military judge’s findings of fact and

conclusions of law, shall be returned to the convening authority

for further consideration and action, to include setting aside

the original action and ordering a new sentence hearing, if

appropriate.

     In the event that the convening authority deems such a

hearing impracticable, the convening authority shall set aside

the action and either order a rehearing on the sentence or take

action approving a sentence of no punishment.

     Upon completion of proceedings below, the record of trial

shall be sent directly to the Air Force Court of Criminal

Appeals for review.   Thereafter, Article 67, UCMJ, 10 U.S.C. §

867 (2000), shall apply.




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United States v. Sonego, No. 04-0480/AF


     CRAWFORD, Judge (dissenting):

     As I am unwilling to abandon precedent and arbitrarily

reassign appellate burdens, I cannot join the majority in

rewarding Appellant for what I view as the certainly

questionable -– and potentially “sharp” -– practice of defense

counsel in both the timing and substance of this issue.     Viewed

from any angle, Appellant has failed to meet his burden in two

regards:   he has not acted in a timely manner, and he has not

“demonstrate[d] that a [panel member] failed to answer honestly

a material question on voir dire.”   McDonough Power Equipment,

Inc. v. Greenwood, 464 U.S. 548, 556 (1984).   Because we

necessarily encourage repetition of those practices we reward, I

must respectfully dissent from the majority’s remand for a

proceeding under United States v. DuBay, 17 C.M.A. 147, 37

C.M.R. 411 (1967).   Not only is this remand based entirely on

one counsel’s belated, conclusory recollection of an opinion

voiced in an unrecorded proceeding, but that same counsel’s

unexplained delay in raising the issue has effectively denied

any opportunity for the Government to preserve evidence of the

“facts” on which Appellant now relies.

     In United States v. Humpherys, 57 M.J. 83, 96 (C.A.A.F.

2002), this Court examined, for abuse of discretion, a military

judge’s denial of a motion for new trial based on a material

misstatement by a court member during voir dire involving the
United States v. Sonego, No. 04-0480/AF


denial of a rating-chain relationship.    Applying the test

prescribed by the United States Supreme Court, we held in

Humpherys that:

     [w]hen a panel member fails to disclose information
     during voir dire, the defendant must make two showings
     in order to receive a new trial. “‘[A] party must
     first demonstrate that a [panel member] failed to
     answer honestly a material question on voir dire, and
     then further show that a correct response would have
     provided a valid basis for a challenge for cause.’
     McDonough Power Equipment, Inc. v. Greenwood, 464 U.S.
     [548,] 556 [(1984)].” United States v. Mack, 41 M.J.
     51, 55 (C.M.A. 1994). We have noted that an
     evidentiary hearing is the appropriate forum in which
     to develop the full circumstances surrounding each of
     these inquiries. Id. at 55-56.

57 M.J. at 96 (citation omitted).

     Unlike Appellant’s case, in Humpherys the material

misstatement was one of fact, as opposed to opinion, and was

brought to the military judge’s attention soon after its

discovery.   Emphasizing the importance of timely action by

counsel, this Court explained the benefits that timeliness

offers the truth-finding process:

     The post-trial process empowers the military judge to
     investigate and resolve allegations, such as those in
     this case, by interviewing the challenged panel
     members. It allows the judge to accomplish this task
     while the details of trial are still fresh in the
     minds of all participants. The judge is able to
     assess first-hand the demeanor of the panel members as
     they respond to questioning from the bench and
     counsel. Our role in the process is to review the
     results and ensure the military judge has not abused
     his or her discretion in reaching the findings and
     conclusions.



                                 2
United States v. Sonego, No. 04-0480/AF


Id.

      In requesting a new sentence hearing, or in the alternative

a post-trial evidentiary hearing, Appellant asserts that during

voir dire at Appellant’s court-martial, a panel member --

Captain (Capt) Bell -– failed to disclose an inelastic

predisposition toward a punitive discharge.   Had Appellant made

a timely offer of evidence sufficient to support that assertion,

I would agree that a post-trial evidentiary hearing would be

appropriate; however, Appellant has not, and I do not.

      Unlike the factual incongruity in Humpherys, susceptible of

proof by resort to a verbatim record and a published rating

chain or a completed evaluation report,1 the misrepresentation

Appellant claims is one of personal opinion or belief, allegedly

stated in materially different terms, separated by approximately

three weeks.   Also unlike Humpherys, where the military judge,

after being given dispositive evidence of material misstatements

made during voir dire, convened a post-trial session to inquire

into the circumstances and effect of those misstatements, the

military judge in this case was given no such opportunity.

Instead, years later, we are asked to order a DuBay hearing on

the basis of a counsel’s uncorroborated suggestion, in a



1
  In Mack, which we cited in Humpherys, the question before us
was also one of fact, proved on appeal by resort to two
authenticated records of trial by court-martial.

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United States v. Sonego, No. 04-0480/AF


carefully crafted declaration, that there may have been a

material misstatement of opinion by a court member.

     We have before us Appellant’s record of trial, in which

Capt Bell is credited with a negative response to the question

of inelastic predisposition; however, we have no evidence of

Capt Bell’s answers at the subsequent trial of another airman,

only the declaration of Capt Page, the detailed defense counsel

in both proceedings, which loosely summarizes Capt Page’s

impression of Capt Bell’s responses at that later proceeding.

There is no statement from Capt Bell, and no transcript or tape

recordings from the subsequent trial in which Capt Bell gave the

allegedly contradictory response(s).   There is no statement from

anyone else present in the courtroom at those later proceedings,

e.g., the civilian defense counsel, the court reporter, or the

military judge.   There is no evidence that Capt Page or the

appellate defense counsel sought production of a partial

transcript, or even the tapes, of that later proceeding.    There

is no evidence that Capt Page moved for a post-trial session or

new trial under either Rule for Court Martial (R.C.M.) 1102 or

R.C.M. 1210, respectively, despite the fact that the voir dire

sessions were only about three weeks apart.   Further, Capt Page

did not bring this matter to the convening authority’s attention

in his R.C.M. 1105 matters.   Compounding this evidentiary vacuum

-– even if we were to assume that Capt Bell’s responses to


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United States v. Sonego, No. 04-0480/AF


questions on inelastic predisposition were materially different

at the later proceeding -- is that we are faced not with a

failure to disclose a material matter of fact, but with a

potential difference of opinion and, more importantly, with the

question of when, if ever, Capt Bell’s opinion on the matter

changed.

     The declaration of Appellant’s trial defense counsel,

signed ten months after that later proceeding, and nearly a year

after our Humpherys decision, contains a rough account of Capt

Bell’s voir dire responses at the second trial.   Neither the

defense counsel nor the appellate defense counsel claim the

account was contemporaneously recorded, and neither offers any

reason why, immediately following that second proceeding, with

Appellant’s conviction and Capt Bell’s voir dire at Appellant’s

trial fresh in his mind, Appellant’s defense counsel apparently

did nothing.   Now, however, wielding his defense counsel’s

“officer of the court” status, Appellant asks this Court to

order what his defense counsel could, and clearly should, have

sought themselves while facts and memories were fresh, had they

harbored any genuine belief in the merit of this issue.

     Viewed benignly, the course chosen by the defense may

reflect earnest, zealous representation, flavored with a bit of

Steve Martin’s famous catchphrase, “I forgot.”    It would not be

untoward under the circumstances, however, to ask whether the


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United States v. Sonego, No. 04-0480/AF


defense intentionally delayed raising the issue until memories

had dimmed, command interest had waned, and the cost and

inconvenience of a DuBay hearing outweighed any perceived

benefit to the Government.   Be that as it may, when this Court,

without requiring any explanation, embraces and rewards this

practice, we ensure its emulation by subsequent appellants.

     By conferring evidentiary status on the defense counsel’s

unsupported, untimely, and conclusory declaration, the majority

exalts his “officer of the court” status, while impugning the

integrity of Capt Bell, who now, presumably, will be dragged

into court to defend his honor against Appellant’s accusation

that he lied under oath.   It does not speak well of this Court

to assign opprobrium to Capt Bell with so little cause.    Not

only would I follow Article 67, UCMJ, 10 U.S.C. § 867 (2000), in

declining to find facts from Capt Page’s declaration, but, as a

predicate to impeaching Capt Bell, I would require a

satisfactory demonstration from appellate defense counsel of

Capt Page’s efforts to:    procure a verbatim transcript of the

later voir dire; procure the tapes from which to make such a

transcript; offer the statement of any other observer or

participant in the courtroom; make a contemporaneous record of

Capt Bell’s responses; or seek a post-trial session under

Article 39(a), UCMJ, 10 U.S.C. § 839(a)(2000), from the military

judge or the convening authority.     In short, I would require


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United States v. Sonego, No. 04-0480/AF


Appellant to meet the burden established by our precedent,

consistent with the weight of federal case law.

     In that regard, I cannot agree that Humphreys, Mack, and

the bulk of the federal circuits support the remedy awarded to

Appellant by the majority opinion.    Every case cited by the

majority (except United States v. Boylan, 898 F.2d 230 (1st Cir.

1990), which examined the effect of extraneous information in

the jury room) deals with questions of fact, susceptible of

proof by resort to recorded testimony, court records, and other

documentary evidence.   Moreover, each of those cases examines a

claim of juror misconduct raised either during trial or

expeditiously thereafter -– none addresses a delay of ten months

from the time counsel learned of the potential misconduct to the

time he raised that issue (notwithstanding numerous intervening

opportunities to do just that).   Even in the fact-based

instances addressed by those decisions, none of the cases cited

by the majority advances the proposition that an appellant is

entitled to an evidentiary hearing pursuant to a mere claim of

potential bias by a juror.   In holding that the trial judge did

not err in declining to hold such a hearing, the First Circuit

said, “When a colorable claim of jury misconduct surfaces, the

district court has broad discretion to determine the type of

investigation which must be mounted.   The trial judge may, but




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United States v. Sonego, No. 04-0480/AF


need not, convene a fullblown evidentiary hearing.”   Boylan, 898

F.2d at 258 (internal citations omitted).

       In denying Appellant’s request for an evidentiary

hearing, I would apply the sound framework applied by the Eighth

and Eleventh Circuits:

     [“]Examination of all of the cited authorities . . .
     leads us to the conclusion that the cases fall along a
     continuum focusing on two factors. At one end of the
     spectrum the cases focus on the certainty that some
     impropriety has occurred. The more speculative or
     unsubstantiated the allegation of misconduct, the less
     the burden to investigate . . . . At the other end of
     the continuum lies the seriousness of the accusation.
     The more serious the potential jury contamination,
     especially where alleged extrinsic influence is
     involved, the heavier the burden to investigate.[”]
     In sum, the depth of investigation required depends on
     both the gravity of the alleged misconduct and the
     substantiality of the movant's showing of misconduct.

United States v. Tucker, 137 F.3d 1016, 1031 (8th Cir.

1998)(quoting United States v. Caldwell, 776 F.2d 989, 998 (11th

Cir. 1985)).

     It is precisely the “substantiality of the movant’s showing

of misconduct” that we must question before we direct any

remedy, even a fact-finding Article 39(a) session.    To do

otherwise is to establish that, despite circumstances suggesting

intentional delay by Appellant and his counsel and, even when

raised for the first time on appeal by affidavit alone, a

conclusory suggestion of member misconduct is sufficient not

only to shift to the Government the burden of proving that the



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United States v. Sonego, No. 04-0480/AF


suggestion is false, but to require the Government to conduct -–

at the least -– a costly and time-consuming DuBay hearing.

     Rather than bestow this new and undeserved remedy, I would

invite defense counsel to fulfill their obligations as “officers

of the court,” and share with this tribunal the evidence that

supports their arguments, or, in its absence, evidence of their

due diligence in attempting to procure it.   At the very least, I

would require the military judge, as a predicate to further

fact-finding, to find that Capt Page made good faith efforts to

procure the record at the time.




                                  9
