                                   CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                           Before
                               BERGER, BURTON, and FEBBO
                                  Appellate Military Judges

                             UNITED STATES, Appellee
                                          v.
                          Staff Sergeant CALVIN R. GIBBS
                            United States Army, Appellant

                                      ARMY 20110998

              Headquarters, I Corps (Rear) (Provisional) (convened)
                          Headquarters, I Corps (action)
    U.S. Army Combined Arms Center and Fort Leavenworth (DuBay Hearing)
                       Kwasi Hawks, Military Judge (trial)
                 J. Harper Cook, Military Judge (DuBay Hearing)
   Lieutenant Colonel John T. Rawcliffe, Acting Staff Judge Advocate (pretrial)
 Colonel William R. Martin, Staff Judge Advocate (recommendation & addendums)


For Appellant: Phillip Stackhouse, Esquire (argued); Captain Patrick A. Crocker,
JA; Phillip Stackhouse, Esquire (on brief); Captain Jennifer K. Beerman, JA.

For Appellee: Captain Anne C. Hsieh, JA (argued); Major A.G. Courie III, JA;
Major Steven J. Collins, JA; Captain Anne C. Hsieh, JA (on brief).


                                         28 June 2018

                                 ----------------------------------
                                  MEMORANDUM OPINION
                                 ----------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

FEBBO, Judge:

       Appellant was one of the squad leaders of a remarkably ill-disciplined platoon
deployed to Afghanistan between 2009 and 2010. While deployed, he and other
members of the platoon conspired to kill Afghan noncombatants by staging the
killings as lawful lethal engagements. Amongst other offenses, this conspiracy
resulted in the separate murders of three Afghan males.
GIBBS—ARMY 20110998

       A military panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of three specifications of conspiracy (one to commit
premeditated murder, one to commit battery, and one to commit aggravated assault
with a dangerous weapon), three specifications of premeditated murder, assault 1
consummated by battery, aggravated assault with a dangerous weapon, wrongful
possession of bones and a tooth taken from Afghan corpses, wrongful solicitation of
another to cut the finger off a corpse, two specifications of obstruction of justice,
two specifications of dereliction of duty, and failure to obey a lawful general order,
in violation of Articles 81, 92, 118, 128, and 134, Uniform Code of Military Justice,
10 U.S.C. §§ 881, 892, 918, 928, and 934 (2006) [UCMJ]. The convening authority
(CA) approved the adjudged sentence of a dishonorable discharge, confinement for
life with eligibility for parole, forfeiture of all pay and allowances, a reprimand, and
reduction to the grade of E-1.

       After remand pursuant to United States v. DuBay, 17 U.S.C.M.A 147, 37
C.M.R. 411 (1967), this case is again before us for our Article 66, UCMJ, review.
We determine the charges and their specifications are legally and factually
sufficient. We also determine the CA did not abuse his discretion under Rule for
Courts-Martial [R.C.M.] 1102 and that the government did not commit a post-trial
Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963). 2 Lastly, we hold
appellant did not petition for a new trial and is therefore not entitled to a new trial,
and that even if we were to construe his assignments of error as a request for a new
trial based on newly discovered evidence, the post-trial testimony provided by the
two co-conspirators does not meet the requirements of R.C.M. 1210.

                                    BACKGROUND

       As with any complicated, multiple-witness trial, there are inconsistencies in
the testimony and evidence presented. While recognizing that the trial court saw



1
    Corrected; this line was inadvertently deleted from previously served copy.
2
  Appellant assigned multiple errors to include the factual and legal insufficiency of
his convictions of: conspiracy to commit premeditated murder; conspiracy to commit
aggravated assault; the three specifications of premeditated murder; and the
aggravated assault. Appellant also asserts that the CA abused his discretion by
denying the defense request for a post-trial hearing regarding newly-available
exculpatory evidence and that the government committed a post-trial Brady
violation. While we address each of these issues in turn, we have also considered
the matters personally asserted by appellant pursuant to United States v. Grostefon,
12 M.J. 431 (C.M.A. 1982), and determined they do not warrant discussion or relief.




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GIBBS—ARMY 20110998

and heard the witnesses, under our Article 66(c), UCMJ, authority to resolve
controverted questions of fact, we make the following factual findings.

        A. Unit Conditions at Forward Operating Base Ramrod, Afghanistan

       Appellant deployed from the Republic of Korea to Afghanistan in 2009 with
the 5th Stryker Brigade Combat Team (SBCT). During the deployment, appellant
moved to a platoon at Forward Operating Base (FOB) Ramrod to serve as a squad
leader. Prior to appellant arriving at FOB Ramrod, the platoon had only engaged
and killed one Taliban fighter. However, the unit had experienced several
Improvised Explosive Device (IED) attacks and while on patrols routinely saw
“squirters,” suspected Taliban fighters fleeing from engagement on motorcycles.
The platoon was generally frustrated with their inability to directly engage the
Taliban in combat.

      This frustration was combined with a remarkable lack of platoon discipline.
A number of soldiers routinely smoked hashish. Appellant was aware of and
condoned the drug use, even though he did not use drugs himself. The platoon also
had lax grooming standards and had several disengaged officer and non-
commissioned officer (NCO) leaders that condoned misconduct in the company. 3
For example, a platoon leader allowed members of the unit to mutilate an Afghan
corpse and take pictures with the body.

      Around December 2009, a well-liked NCO in the platoon lost his leg in an
IED attack and had to be medically evacuated from Afghanistan. Prior to the attack,
the NCO had volunteered to go on the patrol while appellant remained at the FOB.
Appellant felt remorse for not going on the patrol. This particular attack greatly
added to the frustration of the platoon.

                     B. The Agreement to Kill Unarmed Afghans

       On several patrols, appellant commiserated with Corporal (CPL) Jeremy
Morlock, a member of another squad within appellant’s platoon, about the IED
attack. 4 Appellant resented not only the Taliban and enemy insurgents, but Afghans


3
 This is not intended to be a critique of everyone assigned to the B Company, 2d
Battalion, 1st Infantry Regiment during the deployment.
4
  Corporal Morlock, and other Soldiers from the platoon were later reduced to
Private (E-1) at their courts-martial. To make it easier to follow the rank structure
of the platoon at the time of the offenses, the soldiers will be referred to by their
rank at that time.




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GIBBS—ARMY 20110998

in general. Appellant referred to them as “savages” and other derogatory terms,
believing they should be killed. Over the course of several conversations,
appellant’s hatred eventually led him to discuss the prospect of murdering unarmed
Afghans. Appellant told CPL Morlock that on a previous deployment to Iraq he had
unlawfully killed the occupants of a vehicle at a checkpoint and subsequently lied to
his command by claiming it had been a lawful engagement.

       Appellant and CPL Morlock discussed fabricating similar “scenarios” in order
to justify unlawfully killing local Afghans. In one scenario, a “drop weapon” could
be planted on a body to make it look like an Afghan died while engaged in hostile
acts against the platoon. Another scenario involved detonating a grenade to make it
appear as if the murdered Afghan had thrown the grenade. They agreed the
scenarios would be more believable if the killings occurred in pro-Taliban villages
and involved military-age males.

       Eventually, CPL Morlock and appellant included Staff Sergeant (SSG) David
Bram and Sergeant (SGT) Darren Jones in their discussions about killing
noncombatant Afghans. Appellant and CPL Morlock also discussed the planned
scenarios with other platoon members, including Private First Class (PFC) Andrew
Holmes, Specialist (SPC) Adam Winfield, SPC Michael Wagnon II, CPL Emmitt
Quintal, PFC Ashton Moore, SPC Adam Kelly, and SPC Corey Moore. Some of the
junior soldiers were motivated by the prospect that the staged killings could earn
them Combat Infantryman Badges, awards, and the ability to tell combat stories.
Appellant asked other soldiers in the platoon about their thoughts on being part of a
“small kill team,” being part of “black ops,” and killing unarmed civilians with
grenades and Claymore mines.

      Ultimately, appellant contacted an NCO from another unit on the FOB and
obtained a crate of grenades without going through his platoon’s resupply system.
Appellant did not add them to his platoon’s accountability records. In December
2009, appellant gave CPL Morlock one of these off-the-books grenades.

        C. Murder of an Unarmed Afghan Civilian at La Muhammad Kalay

       On 15 January 2010, CPL Morlock and PFC Holmes were patrolling the
village of La Muhammad Kalay when they saw several Afghan males working in a
field. They had an interpreter call one of the Afghans to them and then dismissed
the interpreter. The Afghan stood twenty feet away from them on the other side of a
waist-high wall while they discussed implementing the grenade scenario. The
Afghan never displayed any hostile intent or committed a hostile act. Corporal
Morlock then activated the off-the-books grenade, dropping it over the wall, and
PFC Holmes shot the Afghan with his automatic weapon.




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GIBBS—ARMY 20110998

       Appellant and other members of the platoon, including SSG Bram, ran
towards the sound of the grenade explosion and weapons fire. There were lines of
white powder on the ground, indicating use of a U.S. grenade. Staff Sergeant Bram
kicked dirt around, erasing the white film. Platoon members searched the dead body
and found no weapons or ammunition. Appellant cut off a finger from the body and
the next day gave it to PFC Holmes as a trophy because PFC Holmes was the one
who shot the Afghan. Later, CPL Morlock apologized to appellant for implementing
the scenario without him. Appellant replied, “Well, you know, no problem. You did
a good job. You did exactly what we talked about.”

                   D. Appellant Obtains an AK-47 Drop Weapon

       In January 2010, an Afghan National Police (ANP) vehicle was struck by an
IED outside of FOB Ramrod. Appellant recovered an AK-47 and magazines from
the IED site. The AK-47 was made with black material and metal, and had a
collapsible assault-style stock. Initially, appellant and CPL Morlock discussed using
the AK-47 in a similar manner as the off-the-books grenade, but decided to let SSG
Bram come up with a plan. The AK-47 was kept in a storage compartment of SSG
Bram’s Stryker vehicle. Staff Sergeant Bram, CPL Quintal, and CPL Morlock
discussed potentially using the AK-47 as a drop weapon after engaging a “squirter.”
After this plan failed to materialize, appellant and CPL Morlock discussed finding
an isolated Afghan, killing him, and staging the AK-47 afterward.

                        E. The Conspiracy Begins to Unravel

      In February 2010, SPC Winfield, appellant’s vehicle commander, left their
Stryker unsecured. As a result, appellant chastised SPC Winfield and made him do
physical exercises. In turn, SPC Winfield got mad and told appellant he “quit” as
the vehicle commander. Appellant, later, told CPL Morlock he was concerned SPC
Winfield might reveal the murders. Appellant also spoke with SPC Winfield, told
him not to say anything, and told him “you know what will happen if you do.”
Specialist Winfield understood this to be a threat that he would be killed.

      On 14 February 2010, SPC Winfield sent his parents Facebook instant-
messages. 5 He informed them that he got in trouble for leaving his Stryker unlocked
and quit his job as vehicle commander. Specially, he wrote: “i cannot work for my
squad leader who punishes me for leaving a Stryker unlocked and gives high fives to
the guy who kills innocent people and plans more with him.” He told his father an


5
 These Facebook messages were retrieved from SPC Winfield’s parents’ computer.
His parents and sister testified about the exact date of the messages. Since the date
was also Valentine’s Day, they were sure of the date.




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GIBBS—ARMY 20110998

Afghan farmer was murdered the previous month by making it look like the Afghan
threw a grenade. He informed his father the whole platoon knew it was staged. He
did not know who to trust, was thinking about speaking to a chaplain, but was
already receiving threats. He suggested that his father could go to the Army
Inspector General or Criminal Investigation Command (CID). He explained to his
father, “well if you talk to anyone on my behalf i have proof they are planning
another one [murder] in the form of an ak47 they want to drop on a guy.” His father
was afraid for his son’s safety. Specialist Winfield told his father he thought he
convinced his platoon he was not going to say anything.

               F. Murder of Unarmed Afghan Civilian at Kari Kheyl

       On 22 February 2010, the platoon went on a mission to Kari Kheyl village.
The perception that Kari Kheyl was a source of Taliban activity lent itself to a
scenario. While preparing to leave FOB Ramrod, appellant and CPL Morlock
discussed isolating an individual in the town, killing him, and then planting the AK-
47 acquired from the ANP on the body. They hid the acquired AK-47 and magazines
in appellant’s assault pack. The AK-47 did not initially fit, so they removed the
flash suppressor and forced the assault pack closed.

       Upon entering the village, appellant, the platoon leader, and other members of
the unit met with the village elders. Later, appellant escorted an unarmed Afghan
male to CPL Morlock’s position. At the time, CPL Morlock was with SPC Michael
Wagnon securing the outside of a compound. Appellant asked CPL Morlock and
SPC Wagnon if they wanted to “smoke this guy.” All three agreed to kill the Afghan
and make it appear the Afghan fired on appellant with the AK-47.

       Appellant then entered into the compound. Specialist Wagnon and CPL
Morlock waited outside the entry, but CPL Morlock could still see appellant. The
Afghan never displayed any hostile intent or committed a hostile act. Appellant
fired rounds into the wall by the entry, making it appear the Afghan had shot in
appellant’s direction. Appellant then shot the Afghan. Appellant then dropped the
AK-47 near the Afghan. Specialist Wagnon and CPL Morlock then entered the
compound and also shot at the Afghan. The Afghan was killed.

       Another squad leader in the platoon, SSG Kris Sprague, heard the gun fire and
arrived first at the scene of the shooting. Appellant reported the Afghan shot at him
and then the Afghan’s weapon “jammed,” allowing appellant to return fire.

       Staff Sergeant Sprague was an AK-47 enthusiast and recognized the weapon
by the Afghan as a Hungarian AMD 65 that was used by the ANP. Staff Sergeant
Sprague retrieved the AK-47 and carried it while clearing the compound. No other
weapon or ammunition was found in the compound. He initially noticed the weapon
was on safe and later, when clearing the weapon, determined it did not have a round



                                          6
GIBBS—ARMY 20110998

in the chamber. The AK-47 was missing a hand guard, sling, and flash suppressor
(“muzzle break”). Staff Sergeant Sprague requested permission to fire the weapon
because he had never had an opportunity to fire an AK-47 in full automatic.
Appellant tried to dissuade him from firing the weapon, stating it may have
defective or dangerous ammunition. However, SSG Sprague fired a burst from the
AK-47. It did not malfunction.

       After the squad searched and took identifying data from the body, appellant
cut off one of the Afghan’s fingers with a pair of trauma shears, keeping it as a
trophy. The Afghan was placed in a body bag. As the platoon left Kari Kheyl, they
came under direct and indirect fire from mortars and small arms.

                     G. Shooting at Unarmed Afghan Farmers

       Appellant obtained an 81mm U.S. mortar round from an Afghan National
Army (ANA) compound. At some point, he also obtained a rocket propelled grenade
(RPG) round, a broken Claymore mine held together with duct tape, 20 to 30 feet of
detonation cord, some C-4 plastic explosive, and an old Russian pineapple-style
grenade. Appellant also tried to obtain a 9mm pistol through a trade with ANA
soldiers. Appellant and CPL Morlock discussed using the explosives to create an
IED and using the Russian grenade for a scenario.

      Appellant contacted a friend, SSG Robert Stevens, a medic, about coming to
FOB Ramrod on patrol with the platoon. Appellant informed SSG Stevens they
would “find somebody to kill.” Staff Sergeant Stevens volunteered to go to FOB
Ramrod while the senior medic there was on leave. He went on patrol with
appellant’s platoon for approximately two to three weeks.

       On 10 March 2010, SSG Stevens joined appellant on a dismounted patrol that
included SGT Jones and SPC Wagnon. Two Afghan farmers were in a field and
appellant placed the squad in a trench. Appellant could see the two Afghan males
were unarmed, one was carrying a shovel, and neither displayed any hostile intent or
committed a hostile act. Appellant pulled SSG Stevens aside, and told him to pull
out the duct-taped Claymore mine in his assault pack. Appellant suggested they lure
the males towards the squad and kill the Afghans with the Claymore. Staff Sergeant
Stevens objected because he thought the Claymore would also kill them.

      Appellant falsely shouted one of the Afghans was carrying an RPG. He
counted down and gave the order to open fire on the two farmers. When fired upon,
the two men ran away. As the squad went to search for the Afghans, appellant told
SSG Stevens if both of the Afghans were killed, they would say a third Afghan must
have run off with the RPG. Once in the field, an Afghan put his arms up and was
searched. All he had was a shovel lying next to his feet. The squad did not believe
he was one of the two individuals they had fired upon and released him. They did



                                         7
GIBBS—ARMY 20110998

not find any indication either of the males were killed or wounded. The squad did
not find any weapons in the field—only the shovel.

                H. Murder of Unarmed Afghan Civilian at Qualaday

       The village of Qualaday was just outside FOB Ramrod. Prior to May 2010,
the platoon had patrolled the village and detained an Afghan male who had an IED
in his house. The Afghan was subsequently released. On 2 May 2010, the platoon
planned another patrol to this village. Appellant and CPL Morlock discussed
looking for an opportunity to use the Russian pineapple grenade in a staged scenario.
Before leaving the FOB, CPL Morlock also discussed the scenario with several other
members of the platoon, including SPC Winfield and SSG Bram. However, SSG
Bram informed appellant and CPL Morlock he was no longer interested in
conducting scenarios.

      While on patrol, CPL Morlock and SPC Winfield entered a small compound
and were immediately greeted by an elderly Afghan male along with some children
and a woman. Appellant arrived shortly thereafter and had the elderly gentlemen
walk outside the compound. Appellant, CPL Morlock, SPC Winfield and SPC Corey
Moore then discussed killing the Afghan and claiming the Afghan attacked them
with two grenades.

       Appellant, CPL Morlock, and SPC Winfield set-up around the elderly
gentleman. Appellant, then, threw a grenade at the Afghan, blowing apart his legs.
Corporal Morlock and SPC Winfield shot at the Afghan. Afterward, appellant
walked over to the body and shot the Afghan twice in the head. Corporal Morlock
placed the Russian pineapple grenade next to the Afghan’s body. The pineapple-
style grenade was the same one appellant previously obtained from the ANA base.

       Corporal Morlock told the platoon leader that the Afghan had approached
them with two grenades. He reported that he and SPC Winfield shot the Afghan and
the Afghan dropped one of the grenades, blowing off his own legs. He informed the
platoon leader he believed the other grenade was still by the Afghan’s body. This
grenade was the Russian pineapple grenade he had just planted. The platoon
ultimately searched the body and found no other weapons or ammunition. Appellant
later cut off a finger from the Afghan’s hand and removed a tooth. The rest of the
compound was searched and the platoon did not find any other weapons,
ammunition, or military aged males.

      While still at the site, appellant walked up to SPC Winfield and told him he
was a “made man and [he] didn’t have anything to worry about as far as [appellant].”




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GIBBS—ARMY 20110998

                            I. The Conspiracy is Exposed

       In early May 2010, PFC JS became annoyed that members of his platoon
smoked hashish in his Containerized Housing Unit (CHU). He reported the drug use
and the platoon subsequently learned of the report. Members of the platoon
including CPL Morlock and appellant agreed to deal with PFC JS and intimidate him
to ensure he would not speak further with the command.

       On 5 May 2010, appellant, CPL Morlock, SSG Bram, SPC Corey Moore, CPL
Quintal, SGT Jones, and SPC Kelly went to PFC JS’s CHU to confront him. They
discussed not hitting him above the neck so as not to leave any marks. At first PFC
JS denied speaking to the command, but eventually broke down under physical
duress. After admitting he informed the command about the drug use, appellant and
the other soldiers punished PFC JS, holding him down and alternating between group
and individualized threats and beatings. They told PFC JS to keep his mouth shut
before filing out of the CHU.

       Later, appellant, CPL Morlock and another soldier PFC Michael LeCroy
returned to reinforce their message. Appellant pulled out two severed fingers and
threatened to kill PFC JS if he did not keep his mouth shut. They suggested a
scenario where they could take PFC JS on a mission, execute him, and blame it on
the enemy. Private First Class JS had seen the fingers before and knew they came
from dead Afghans. Private First Class JS was afraid of the threats, and thought he
would be killed. He did not report the beating until pressured for an explanation by
an NCO from another unit who discovered the injuries and bruises on his body.

                    J. CID Interviews and Search of FOB Ramrod

       Based on PFC JS’s reports CID opened an investigation. On 11 May 2010,
CPL Morlock, SPC Winfield, CPL Quintal, PFC JS, and appellant were transported
to Kandahar Airfield (KAF) for questioning. Explosive Ordnance Disposal
conducted a search of FOB Ramrod. They found the 81mm mortar and RPG round
hidden in HESCO barriers near appellant’s CHU. CID also conducted a search and
found two fingers and bones in the HESCO barriers near appellant’s CHU and the
duct-taped claymore mine in appellant’s Stryker.

                                K. The Courts-Martial

        A series of courts-martial followed. Appellant was tried after all of the other
trials except for the trials of SPC Wagnon and SSG Bram. All of the tried soldiers
that testified at appellant’s trial were granted immunity. Staff Sergeant Bram and
SPC Wagnon’s courts-martial were not completed at the time of appellant’s trial,
and they were never called as witnesses by either party.




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GIBBS—ARMY 20110998

                             LAW AND DISCUSSION

                          A. Legal and Factual sufficiency

       Article 66(c), UCMJ, establishes our statutory duty to review a record of trial
for legal and factual sufficiency de novo. United States v. Walters, 58 M.J. 391, 395
(C.A.A.F. 2003). We may affirm only those findings of guilty that we find correct
in law and fact and determine, based on the entire record, should be affirmed. Id.
The test for legal sufficiency of the evidence is whether, viewing the evidence in the
light most favorable to the government, a factfinder could rationally have found all
of the essential elements of an offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); United States v. Blocker, 32 M.J. 281, 284-
85 (C.M.A. 1991). In resolving questions of legal sufficiency, this court is “bound
to draw every reasonable inference from the record in favor of the prosecution.”
United States v. Craion, 64 M.J. 531, 534 (Army Ct. Crim. App. 2006) (citations
omitted).

       In weighing factual sufficiency, we take “a fresh, impartial look at the
evidence,” applying “neither a presumption of innocence nor a presumption of
guilt.” United States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002). “[A]fter
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we must be] convinced of the [appellant’s] guilt
beyond a reasonable doubt.” United States v. Turner, 25 M.J. 324, 325 (C.M.A.
1987).

                  1. Appellant’s Arguments and Legal Sufficiency

       Appellant asserts the evidence for the six most serious offenses is legally and
factually insufficient. These offenses include conspiracy to commit murder, the
underlying separate murders of three Afghans, conspiracy to commit aggravated
assault, and the underlying aggravated assault of shooting at two Afghan farmers.

       The crux of appellant’s position is the testimony against him should not be
believed. Appellant asserts CPL Morlock and SPC Winfield provided the only
evidence that implicated him in any alleged murders or conspiracy to commit
murder. Appellant states there was no evidence presented implicating him in any
aggravated assault or conspiracy to commit aggravated assault. Appellant claims
both the AK-47 incident and the shooting at farmers who allegedly had an RPG were
lawful engagements. According to appellant, CPL Morlock is a liar, was biased
against appellant, and had a motive to fabricate the allegations. Appellant asserts
that CPL Morlock and other co-conspirators colluded to implicate appellant.
Furthermore, CPL Morlock in particular, and other witnesses in general, were under
the influence of hashish “during a good part of the deployment.”




                                          10
GIBBS—ARMY 20110998

       These arguments address factual, rather than legal sufficiency. The inferences
in favor of the government we are required to draw under a legal sufficiency analysis
are such that the testimony and evidence presented, in the context of the entire trial,
meet the requirement that a factfinder could rationally have found all of the essential
elements of the offenses beyond a reasonable doubt. As such, the charged offenses
were legally sufficient. We will therefore evaluate the evidence in light of
appellant’s arguments for factual sufficiency and whether we ourselves are
convinced of appellant’s guilt beyond a reasonable doubt.

                                2. Factual Sufficiency

       Appellant makes several salient arguments regarding the quality of the
government’s evidence. For the most part, the witnesses at trial were a group of
drug users, liars, and murderers. In reviewing the factual sufficiency of the
evidence, we must therefore consider what evidence we believe, even if presented
through the testimony of admitted criminals. When credibility is an issue, direct and
circumstantial evidence is even more important. After reviewing the entire record of
trial we conclude that appellant was similarly a liar and murderer. Thus, although a
number of the witnesses against appellant had both a motive to fabricate and the
opportunity to collude against appellant, we find their testimony generally to be
credible on the key facts for the charged offenses. Moreover, appellant’s own
admissions, use of the AK-47 retrieved from the ANP IED site as a drop weapon
after killing an unarmed Afghan, and the implausibility of much of appellant’s own
testimony combined with the other compelling physical and circumstantial evidence
is such that we are ourselves convinced of appellant’s guilt beyond a reasonable
doubt for all of the offenses.

                        a. Witnesses’ Bias Against Appellant

       Appellant asserts the witnesses were biased against him. However, prior to
appellant getting them involved in “scenarios” to kill unarmed Afghans and
assaulting and threatening to kill a member of the platoon, the members of the unit
had a high opinion of appellant, liked him, trusted him, and thought “he was the best
squad leader they ever had.” The junior soldiers trusted appellant and respected his
physical fitness and experience from prior deployments. For similar reasons, the
NCOs also respected and trusted appellant when he joined the platoon. Staff
Sergeant Sprague had previously served with appellant. Similarly, SSG Stevens
knew appellant for several years before the deployment to Afghanistan, liked him,
and considered him to be a close friend. In SSG Stevens’ opinion, while they were
previously assigned together in 2008, every soldier “loved [appellant]” and appellant
was the most popular soldier in the company.

       Appellant is correct that the other co-conspirators now resent him, primarily
for getting them involved in serious criminal offenses. As their squad leader, they



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GIBBS—ARMY 20110998

wanted appellant to share in full responsibility for the conspiracy that he initiated
and the offenses he committed. However, this anger is much different than
fabricating allegations against appellant. The co-accuseds got involved in the
conspiracy because they trusted and respected appellant. They thought he was
competent and credible enough for them literally to get away with murder.

                        b. Motives to Fabricate and Collusion

       Appellant contends that CPL Morlock was the true mastermind behind any
alleged offenses and CPL Morlock colluded with the other witnesses to frame
appellant. Essentially, according to appellant, the criminals that testified had a
motive to fabricate appellant’s involvement in order to minimize their own
culpability.

        Indeed, many of the witnesses provided self-serving testimony, minimizing
their roles in the most serious offenses. For example, CPL Morlock testified he only
shot in the general direction and did not know whether he hit the Afghan at either
Kari Kheyl or Qualaday, despite being an expert marksman and being respectively
only ten and twenty feet away from each of the individuals at whom he fired his
weapon. Similarly, SPC Winfield testified that he did not shoot at the Afghan at
Qualaday, but instead shot high over the Afghan’s head. 6 Specialist Kelly was not
credible when he testified that he just automatically covered the grenade spoon with
dirt after the first murder and did not give his actions any thought. However, these
minimizations are a far cry from fabricating the allegations against appellant.

       Corporal Morlock was very detailed and generally credible through hundreds
of pages of testimony and cross-examination. Further, his alleged motive to
fabricate was undermined by his own admissions to the crimes. For example,
according to appellant, CPL Morlock was not even at Kari Kheyl during what
appellant characterized as a lawful engagement involving the AK-47. If this were
actually the case, it would mean CPL Morlock confessed to a murder he did not
commit. This would have been an opportunity for CPL Morlock to credibly distance
himself from the shooting, yet, CPL Morlock admitted to participating in this
murder.

      Appellant further points to the opportunity for collusion against him by
witnesses coordinating and discussing the contents of their statements at the very


6
  If SPC Winfield fired high with his Squad Automatic Weapon, as claimed, then it
was in the direction of his platoon with only a mud wall in between. There was no
testimony that any member of the platoon received any indirect fire during this
incident.




                                           12
GIBBS—ARMY 20110998

beginning stages of the investigation. Inexplicably, after the investigation began,
members of the platoon were transported to KAF and housed together. Although
ordered not to discuss their testimony, CPL Morlock, CPL Quintal, and SPC
Winfield felt comfortable enough to drive around KAF and smoke hashish together.
Specialist Winfield testified that during these drives, they may have spoke “a little
bit” about what they told CID. Given their relationship, we find it unlikely they
only spoke “a little bit.” The record establishes that these witnesses were trying to
minimize their own and their friends’ involvement in the crimes. For example, CPL
Morlock testified that he originally tried to protect SSG Bram, PFC LeCroy, and
PFC Holmes from investigation into their crimes. Other co-conspirators initially
denied any actual involvement or knowledge in the murders. Indeed, at the start of
the investigation, the co-accuseds discussed not saying anything to CID. Similarly,
appellant told SPC Winfield to lie to CID and keep his mouth shut.

       However, from the very start of their admissions to CID, members of the unit
discussed appellant being involved in planning the “scenarios” and murders. The
co-conspirators’ testimony was supported by independent evidence in the record.
Poignantly, this included SPC Winfield’s messages in February to his parents.
These messages occurred prior to any potential collusion taking place and provided a
snap-shot of appellant’s knowledge of the first murder, continued involvement in the
conspiracy to kill unarmed Afghans, possession of the AK-47 as a drop weapon to
stage another murder, and later threats against SPC Winfield if he exposed
appellant’s crimes. There was also credible incriminating testimony from SSG
Stevens who was a long-time friend of appellant, was not part of appellant’s unit,
and was not considered a suspect until later in the investigation. The record of trial
also established appellant’s guilt independently and prior to any potential co-
conspirator’s motive to fabricate to CID.

                     c. Appellant’s Testimony was Not Credible

      As this court has previously recognized an accused who testifies “does so at
his own peril.” See United States v. Pleasant, 71 M.J. 709, 712-13 (Army Ct.
Crim. App. 2012). “[W]hen a defendant chooses to testify, he runs the risk that if
disbelieved the jury might conclude the opposite of his testimony is true.” Id.
(quoting United States v. Williams, 390 F.3d 1319, 1325 (11th Cir. 2004) (further
quotations and citations omitted)). Here, the military panel disbelieved appellant’s
testimony. Similarly, in our independent assessment of the record, we also find
appellant’s testimony was not credible. The trial was not just a credibility battle
between two conflicting camps of testimony about what actually happened during
the platoon’s ill-fated deployment. There was also compelling physical and
circumstantial evidence presented at trial that supports the guilty findings.

      For example, appellant’s explanation for gathering grenades, weapons, and
explosives is completely unbelievable. According to appellant, he did not obtain



                                         13
GIBBS—ARMY 20110998

grenades “off-the-books.” Appellant testified that grenades were used all the time
and were not an accountable item. They were often used to collapse wells, caves, or
other hard to reach areas that might contain enemy weapon caches. However,
appellant’s platoon leader contradicted this testimony confirming that grenades were
a reportable and accountable item. Appellant further obtained grenades outside of
the unit supply system, specifically testifying he went to another unit on the FOB in
order to get resupplied with a partial crate of grenades. Appellant also supplied SSG
Stevens with a grenade outside the unit supply system. These were unaccounted for
grenades. According to other witnesses even appellant referred to the grenades as
“off-the-books.”

       Even more incredible, at the time the conspiracy was exposed, appellant was
in possession of multiple weapons and explosives that could be used as “drop
weapons.” Appellant explained he obtained the cracked Claymore mine from
another unit that was leaving the area of operations and intended to blow it up in a
hole, similar to how the unit used grenades. He also stated he intended to blow up
the 81mm mortar to make a larger explosion when they destroyed the defective
Claymore mine. According to appellant, he obtained the RPG from the ANA to
conduct a live-fire with his unit.

       If appellant intended to lawfully use the gathered contraband, it would not
have been stored around living areas. Similarly, an experienced infantry soldier and
NCO would not have obtained and stored an unsafe, cracked-in-half, duct-taped
Claymore mine inside his Stryker vehicle for legitimate purposes. If intended for
legitimate purposes, the weapons and explosives would have been properly
accounted for and stored in a safe area.

       Appellant also admitted to assaulting PFC JS with other soldiers in the
platoon because he was angry that PFC JS falsely reported that everyone in the
platoon was using drugs. According to appellant, he did not know soldiers were
smoking hashish. Appellant thought PFC JS was a coward and was mad PFC JS
accused him of drug use. Appellant admitted to showing PFC JS severed fingers to
“scare him” and to persuade him to not report the assault. However, appellant’s
actions and threats were more consistent with someone that was trying to impede
investigation of much more serious offenses.

      These are just some examples of appellant’s implausible and incredulous
testimony.

       d. The Timing of Appellant’s Arrival and the Increase in Engagements

       Before appellant arrived at FOB Ramrod the platoon had only been involved
in one combat engagement. Yet within approximately five months of appellant
arriving, the platoon had four engagements. Each of the Afghans killed in the



                                         14
GIBBS—ARMY 20110998

engagements after appellant’s arrival was searched. The only weapons or
ammunition found on them were the respective drop-weapons. Additionally, no
other weapons or ammunition were found in the area around any of the engagements.
Furthermore, the grenade attack at Qualaday occurred in close proximity to a woman
and children. In retrospect, the overall “scenario” involving an elderly Afghan male
holding two grenades, removing the pin, and blowing apart his own legs while
attacking is completely unbelievable. At the time, since the unit was engaged in
combat operations and the Army trusts soldiers not to murder noncombatants, the
platoon’s engagements were not questioned or suspected of being crimes. In
hindsight, after the conspiracy was revealed, these “scenarios” were clearly staged.

     e. Factual Sufficiency of Specification 1 of Charge I, Conspiracy to Commit
    Premeditated Murder, and Specification 1 of Charge II, Premediated Murder in
                           January at La Muhammad Kalay

       Appellant contends CPL Morlock and SPC Winfield provided the only
testimony to support any conspiracy to commit premediated murder as it pertains to
appellant. He further contends CPL Morlock was the only witness to appellant’s
averred participation of providing an off-the-books grenade for the incident at La
Muhammad Kalay in January where CPL Morlock threw a grenade and PFC Holmes
shot an unarmed Afghan. He asserts SGT Jones and appellant, the only other
witnesses to testify about the alleged preplanning of this incident by using an off-
the-books grenade, flatly denied any conspiracy. 7



7
 Further, appellant notes this court only found CPL Morlock guilty of attempted
murder for his actions at La Muhamad Kalay based on his providence inquiry into
his plea to premeditated murder. United States v. Morlock, ARMY 20110230, 2014
CCA LEXIS 280 (Army Crim. Ct. App. 30 April 2014) (mem. op.), rev. denied, 74
M.J. 80 (C.A.A.F. 2014). This court found that the military judge should have
resolved inconsistencies between CPL Morlock’s guilty plea to premediated murder
as a principal versus as an aider and abettor. However, we are constrained in our
Article 66(c), UCMJ, review by the facts and evidence presented in this record,
rather than CPL Morlock’s providence inquiry at his guilty plea.

In appellant’s trial CPL Morlock testified, “After the explosion, sir, I stood up at my
position there by the wall and the individual appeared to be dead, sir, yes. “ He
further confirmed that when another soldier fired at the body afterward the Afghan
did not react, move, or do anything. Furthermore, in appellant’s trial, SPC Christy,
a medic, testified that he arrived at the scene shortly after the explosion and the
Afghan was lying face down in blood and was dead.


                                                                       (continued . . .)


                                          15
GIBBS—ARMY 20110998

      We are convinced beyond a reasonable doubt that appellant was a part of a
conspiracy with other members of Bravo Company that existed between 1 November
2009 and 11 May 2010 with the object of that conspiracy being the premeditated
murder of Afghan noncombatants. While appellant asserts the only evidence of
appellant’s participation in planning the La Muhammad Kalay incident in January
2010 was CPL Morlock’s testimony, SPC Winfield, SPC Christy, and CPL Quintal
each corroborated CPL Morlock’s testimony.

       Specialist Winfield testified that in December, 2009 CPL Morlock informed
him that “[appellant] had been telling [CPL Morlock] how to do it and when [CPL
Morlock] finally got the grenade [CPL Morlock] kept talking about it more and
more.” This testimony was bolstered by the Facebook messages SPC Winfield sent
his family in February, 2010, in the midst of the on-going conspiracy, which
specifically referenced “[his] squad leader…giv[ing] high fives to the guy who kills
innocent people and plans more with him.” Appellant was SPC Winfield’s squad
leader.

       Additionally, CPL Quintal and SPC Christy also corroborated CPL Morlock’s
testimony, testifying respectively that in December, 2009 and January, 2010, CPL
Morlock told each of them appellant had given CPL Morlock the off-the-books
grenade and how to get away with murder. We are ourselves convinced beyond a
reasonable doubt that appellant was a part of the conspiracy to commit premeditated
murder against Afghan noncombatants. We are also convinced appellant’s
participation in the conspiracy occurred prior to CPL Morlock and PFC Holmes
murdering an Afghan noncombatant at La Muhammad Kalay. Appellant is therefore
criminally liable for their actions.

f. Factual Sufficiency of Specification 2 of Charge II, Premeditated Murder at Kari
                         Kheyl and the AK-47 Drop Weapon

      Appellant contends the only issue in dispute for the killing at Kari Kheyl was
whether appellant acted in self-defense within the law of armed conflict or
committed premeditated murder as charged. We are convinced beyond a reasonable
doubt that the Afghan did not shoot at appellant with an AK-47, but rather appellant
planted the weapon next to the unarmed Afghan after murdering him.

     At trial, appellant denied any conspiracy to murder unarmed Afghan civilians.
According to appellant, he shot the Afghan male at Kari Kheyl in self-defense.


(. . . continued)
Based on the record before us, we are ourselves convinced beyond a reasonable
doubt that the actions of CPL Morlock and PFC Holmes caused the Afghan’s death.




                                         16
GIBBS—ARMY 20110998

Appellant entered a compound previously identified as belonging to a “Taliban
Commander.” While in the compound, appellant heard shots fired at him, turned,
and saw an Afghan holding an AK-47 that had “malfunctioned.” Appellant shot the
Afghan. At the same time, SPC Wagnon ran into the compound, pushed appellant
behind cover, and also shot the Afghan. Appellant denied planting an AK-47 after
the shooting. He stated he returned the AK-47 he found during the IED strike to the
ANP. He also testified CPL Morlock was not even at the compound at the time of
the Kari Kheyl shooting.

       We do not find appellant’s testimony that the shooting was a lawful
engagement to be credible. Appellant was an experienced infantry NCO with prior
deployments to Iraq and Afghanistan and prior combat engagements. Even though
his unit became complacent, his explanations for his actions were contrary to what
we would expect of an experienced infantry soldier and NCO. Appellant testified
that he went inside a “Taliban commander” compound alone, without clearing
around the corner, and with his weapon hooked on a D-ring and not at a ready
position. Appellant’s explanation of how he entered the compound is contrary to
what would be expected of an experienced infantry soldier and NCO.

        Further, contrary to appellant’s self-defense story that the Afghan’s weapon
“jammed” or “malfunctioned,” allowing appellant to return fire, SSG Sprague
testified the AK-47 did not have a round in the chamber and functioned properly
when he test fired it. Appellant, specifically tried to dissuade SSG Sprague from
using the weapon. Staff Sergeant Sprague testified that it would be unusual to have
an empty chamber if the weapon actually had malfunctioned or jammed.

       Appellant further takes issue with CPL Morlock’s testimony that the AK-47
was the same weapon appellant had obtained earlier from the ANP IED incident.
Appellant asserted he returned the AK-47 from the ANP IED incident to the ANP
and that it, therefore, could not have been used as a drop-weapon. However, aside
from appellant’s testimony, there was no evidence that appellant gave an AK-47 to
the ANP. In fact, the testimony presented established that appellant took the AK-47
from the IED site, multiple witnesses testified to seeing the AK-47 in and around the
Stryker, and several witnesses testified that appellant was in possession of the AK-
47. Additionally, SSG Stevens testified that appellant himself told SSG Stevens that
appellant obtained the AK-47 from the ANP IED site and used the weapon to stage
the killing of an Afghan.

        This testimony and the other evidence presented at trial establishes that
appellant retained the AK-47 after the ANP IED attack and used the same weapon to
kill the Afghan male at Kari Kheyl. The description of the weapon taken from the
ANP IED site and the weapon lying next to the body at Kari Kheyl affirmed both
weapons were composed of the same black material and had a folding stock. While
the weapon recovered next to the body was missing the front handgrip, sling, and



                                         17
GIBBS—ARMY 20110998

suppressor, CPL Quintal explained that he removed the forward grip and leather
sling from the weapon when it was stored in the Stryker and CPL Morlock explained
he and appellant had removed the suppressor in order to fit the weapon into
appellant’s assault pack. The descriptions of the weapons were the same because it
was the same weapon.

       Appellant also contends that on the day of the Kari Kheyl shooting he was
carrying a “Land Warrior” 8 in his assault pack and that the system is clearly visible
in a photograph taken that day. According to appellant, this would have precluded
the AK-47 from being carried in appellant’s pack as CPL Morlock claimed.
However, both SSG Sprague and SPC Corey Moore testified appellant’s assault pack
appeared empty after the shooting. This was also consistent with appellant’s
testimony that he would normally leave the Land Warrior in his Stryker and did not
typically take it on patrols because it was “big and bulky” and essentially
“worthless.” Appellant also testified that individuals in the field often would strap
the Land Warrior to their kits without the pieces being hooked up to the main unit.
Although the eye-piece and controls are visible in the photograph taken at Kari
Kheyl, the main unit is not. Consistent with appellant’s own description, we find
that appellant had the eye-piece and controls attached to his helmet and kit without
the controls being hooked up to the main unit of the Land Warrior system. It was
not hooked up because appellant’s assault pack was in fact empty the day of the Kari
Kheyl shooting as both SSG Sprague and SPC Moore testified.

       CPL Morlock’s testimony was also bolstered by appellant’s friend, SSG
Stevens, who testified appellant admitted staging the killing of an Afghan by
planting an AK-47. Appellant then told SSG Stevens to “take this” information to
his “grave.” Further, directly contradicting appellant’s testimony and supporting
CPL Morlock’s version of events, PFC Willis testified he saw CPL Morlock with
SPC Wagnon at the entryway to the alley and CPL Morlock fired a couple rounds.
Lastly, SPC Winfield’s Facebook message to his parents on Valentine’s Day 2014
specifically referenced the potential future use of an AK-47: “well if you talk to
anyone on my behalf i have proof that they are planning another one in the form of
an ak47 they want to drop on a guy[.]” Combined with the other testimony and drop
weapons and explosives discovered by EOD and CID, we are ourselves convinced
beyond a reasonable doubt that appellant committed premeditated murder by
shooting the Afghan at Kari Kheyl.




8
 A Land Warrior is a piece of equipment that tracks the location of members of a
platoon and also allows for radio communication. It was described as similar to
other Blue Force trackers, but for use at the small unit level.




                                         18
GIBBS—ARMY 20110998

     g. Factual Sufficiency of Specification 3 of Charge I, Conspiracy to Commit
    Aggravated Assault, and Specification 2 of Charge IV, Aggravated Assault, by
                        Shooting at Unarmed Afghan Farmers

      Appellant contends the only evidence relevant to the conspiracy to commit
aggravated assault and aggravated assault charges was the testimony of SSG
Stevens, SGT Jones, and appellant. Staff Sergeant Stevens testified the squad
unlawfully fired on Afghan farmers. Both appellant and SGT Jones testified the
shooting was a lawful engagement. We are convinced beyond a reasonable doubt the
Afghan males did not engage in a hostile act and did not display any hostile intent
before being unlawfully fired upon.

       Staff Sergeant Stevens testified appellant discussed getting SSG Stevens a
“kill” before the patrol tried to lure the Afghan farmers to its location, and
specifically discussed with him killing the two farmers with the same duct-taped
Claymore mine later recovered by CID. It was a clear day with “outstanding”
visibility. The farmers were only around 100-200 meters away and the squad
observed them for approximately five minutes. At this distance, SSG Stevens could
see that one of the farmer’s had a shovel over his shoulders. The farmers never
engaged in a hostile act or displayed any hostile intent. Appellant called out that
one of the farmers had an RPG and another individual on the line sarcastically
responded “Yeah, I see that -- I see it also.” Appellant then gave the order to fire
counting down, “One, two, three, fire.” Staff Sergeant Stevens testified that he,
appellant, SGT Jones, SPC Wagnon, and PFC Moore all opened fire in the direction
of the farmers. After the squad stopped firing appellant then told them that if they
had killed the farmers “the story would be that there was a third guy that got away
with an RPG . . .”

       Appellant on the other hand testified the squad lawfully engaged the Afghans
because he positively identified one of them was carrying an RPG. While appellant
admitted he used colorful language when he invited SSG Stevens to come on a 3rd
platoon mission, he claimed “come with us you’ll get the fucking kills,” did not
mean killing unarmed civilians. Appellant testified while on dismounted patrol they
set up security in a grape field when he received a radio transmission from the
platoon leader during the mission stating there was SIGINT that a male with an RPG
was in the area and was about to attack. 9 After receiving the radio transmission, the
squad observed three Afghan males in the field. Someone yelled that one of the
males had a radio antenna. Appellant testified he stood up on a berm to observe the


9
  In rebuttal, the platoon leader during this mission (not the same platoon leader
involved in mutilating an Afghan body) credibly testified he did not transmit to
appellant there was a threat of an imminent attack or “an RPG team” in the area.




                                          19
GIBBS—ARMY 20110998

three Afghans more closely and yelled in Pashto for them to come towards his squad.
However, they ran away. Appellant saw one of the Afghans carrying an RPG,
appellant then dropped down and fired at them. Others in the squad fired as well.

       Sergeant Jones testified for the defense and denied any conspiracy to kill
innocent Afghans. Sergeant Jones testified that the night prior to the dismounted
patrol where they confronted the farmers, the unit was briefed that the area was
“very hostile.” Sergeant Jones stated he did not see anyone with an RPG, did not
see anyone with a radio, did not fire his weapon, and did not see appellant stand on a
berm. Essentially, he claimed he was cross-loading equipment with SPC Wagnon
facing away from the farmers. Sergeant Jones testified he, nevertheless, believed
the male Afghans in the field were a “threat.”

        In addition to the testimony of these three individuals, both SGT Hefner and
SPC Winfield provided limited testimony regarding the engagement. Both SGT
Hefner and SPC Winfield were to the left flank of the rest of the squad and asserted
at trial they were not involved in the shooting itself. Sergeant Hefner never saw the
farmers at all. However, just prior to the shooting he heard someone yell, “RPG”
and then count-off “one, two, three, fire.” Similarly, SPC Winfield heard appellant
state, “Hey, those guys have an RPG.” He had seen individuals in a field who “were
just farming” and assumed appellant was talking about them. He then overheard
some discussion from the squad and “then there was a count down and then they
started firing.” He believed the statements were made by appellant.

        We find appellant’s and SGT Jones’s version of events to be incredible.
According to appellant, despite having received a radio transmission informing him
of an imminent RPG attack, he nonetheless stood on top of a berm to observe the
Afghans in the field. According to appellant, this was also after someone in the
squad yelled out that one of the Afghans had a radio antenna. 10 Appellant’s actions
were entirely inconsistent with those of an NCO with his combat experience and
would have silhouetted him to allegedly hostile Afghans with an RPG. Furthermore,
SGT Jones’ testimony was entirely self-serving, claiming he saw absolutely nothing
and denied essentially everything. This included not even seeing appellant stand on
the berm. Despite having allegedly seen nothing, to include never having seen the
farmers engage in any hostile act or display any hostile intent, he amazingly still
testified they were a threat.




10
  Appellant himself testified that individuals with radios were seen as such a threat
in the area that the unit tried to change the rules of engagement to allow engaging
individuals with radios.




                                          20
GIBBS—ARMY 20110998

       On the other hand, both SGT Hefner and SPC Winfield corroborated SSG
Stevens’ testimony that appellant counted down before giving an order to fire.
An experienced infantry soldier and NCO would have ordered soldiers to
immediately fire upon a hostile threat from an RPG instead of counting down “one,
two, three” before ordering them to fire. We are convinced beyond a reasonable
doubt it was clear to appellant and the soldiers in line that the Afghans did not have
an RPG or any other weapon when they collectively agreed, counted down, and did
fire upon the farmers. Likewise, we are ourselves convinced beyond a reasonable
doubt that appellant was a part of the conspiracy to commit aggravated assault and
committed aggravated assault by shooting at these Afghan noncombatants.

   h. Factual Sufficiency of Specification 3 of Charge II, Premeditated Murder at
                                      Qualaday

       Appellant asserts the only evidence to support the charge of premeditated
murder of the elderly Afghan at Qualaday is the testimony of CPL Morlock and SPC
Winfield. He claims while the testimony of each corroborated the other, the
overwhelming weight of the evidence, by multiple objective witnesses, showed
appellant was not involved in the killing at all. We, however, are convinced beyond
a reasonable doubt that appellant threw a grenade at the elderly Afghan, CPL
Morlock and SPC Winfield shot him, and the scene was then staged with the Russian
pineapple grenade to cover up their premeditated murder. Lastly, appellant then
walked over to the Afghan and shot him twice in the head.

        Corporal Morlock testified that, prior to leaving the FOB, appellant talked
with him about bringing and looking for an opportunity to use the Russian grenade
in a scenario. Both he and SPC Winfield testified that while in the village the two
of them entered a smaller compound and encountered an elderly Afghan with what
appeared to be his family. Appellant arrived with other members of the unit. CPL
Morlock testified that SGT Jones and SPC Rodriguez continued northeast leaving
himself, appellant, SPC Winfield and SPC Corey Moore with the Afghan. They then
planned that appellant would throw a grenade, SPC Winfield and CPL Morlock
would shoot the Afghan, and SPC Moore would essentially act as a lookout. Lastly,
after the engagement CPL Morlock would plant the Russian pineapple grenade next
to the body. Specialist Winfield’s testimony corroborated this plan except he
testified both SGT Jones and SPC Rodriguez were also a part of the discussion.
They then implemented the plan. Appellant threw a grenade. The grenade went off
and SPC Winfield and CPL Morlock shot at the Afghan. CPL Morlock then planted
the pineapple grenade next to the Afghan’s body. Both CPL Morlock and SPC
Winfield testified that when CPL Morlock put the grenade next to the body appellant
walked up to the Afghan and shot him point blank two times in the head.

     In contrast, appellant testified he was not involved in the engagement at all.
According to appellant, the squad was in a larger compound when SPC Winfield and



                                          21
GIBBS—ARMY 20110998

CPL Morlock left on their own. Appellant, SGT Jones and SPC Rodriguez then
began a protracted search to try and find CPL Morlock and SPC Winfield in a maze
of different rooms, to include searching the roof. Eventually, appellant allegedly
found the two and chastised them, assigning them to the rear of the element.
Specialist Rodriguez and SGT Jones were in the front and appellant was in the
middle. After continuing the patrol away from the compound for another thirty to
forty seconds appellant heard gunfire. Appellant testified that he specifically
recalled saying something to SPC Rodriguez or maybe SGT Jones and remembers
being midsentence when the shots or explosions occurred. He then turned around
and saw CPL Morlock and SPC Winfield laying on the ground firing into a cloud of
dust. Appellant testified that he then attempted to make a radio call, but CPL
Morlock was already on a radio screaming “we’re in contact.” As soon as CPL
Morlock finished transmitting, appellant used his radio to call the platoon sergeant.
Appellant had no memory of SPC Moore being there, but stated he could have been.

        SPC Rodriguez and Sergeant Jones each testified for the defense that there
was never a meeting to discuss killing an Afghan male. Specialist Rodriguez
testified that he, appellant, and SGT Jones were having a conversation when they
heard the gunfire. However, SGT Jones testified that while he could see appellant
when the engagement occurred, appellant was too far away to have a conversation.
He admitted appellant was not in mid-sentence talking with him because of this
distance. Sergeant Jones also confirmed that SPC Moore was on the patrol and was
close to appellant when the engagement occurred. Specialist Moore testified he was
on the patrol but denied being a part of a conspiracy to kill anyone. He also testified
that after the engagement he saw appellant “index” or “double tap” the Afghan, but
could be mixing it up with the La Muhammad Kalay incident.

       Admittedly the testimony of SGT Jones, SPC Rodriguez, and SPC Moore
contained favorable aspects for the defense. However, we find CPL Morlock’s and
SPC Winfield’s testimony about the murder more credible. Furthermore, in contrast,
appellant’s story is implausible. We find it incredible that appellant would not
remember SPC Moore’s presence on the patrol at the time of the encounter,
especially in light of SGT Jones’s testimony indicating SPC Moore was the closest
individual to appellant. Sergeant Jones’s and SPC Rodriguez’s testimony also
contradicted each other regarding whether appellant was engaged in conversation
with them. According to SGT Jones, he could not have been talking to appellant
because appellant was too far away. Lastly, appellant’s presence was corroborated
by PFC Willis who saw appellant, CPL Morlock, SPC Winfield, and SPC Corey
Moore leave part of the compound to clear the other side just before hearing the
explosion and gunfire.

      Appellant also went to great lengths to describe the protracted search for CPL
Morlock and SPC Winfield that occurred before the engagement. This story of going
here and there in order to find the two, complete with introspective remarks on



                                          22
GIBBS—ARMY 20110998

where they could possibly be, is ridiculous in light of appellant’s later testimony.
According to appellant, both he and CPL Morlock had radios that each of them
separately used to call in the engagement. Appellant’s circuitous attempts earlier to
find the two was clearly fabricated given that he and CPL Morlock each had radios.
However, appellant did not need to find them because they were already together
conspiring to and committing premeditated murder.

        Lastly, a photograph introduced at trial corroborates the testimony of CPL
Morlock, SPC Winfield, and SPC Moore that they witnessed appellant shoot the
Afghan twice in the head. This photograph depicts the Afghan’s head and shows a
fairly large wound in the back of the head behind the right ear. We are ourselves
convinced beyond a reasonable doubt that appellant conspired to and did commit
premeditated murder of an unarmed Afghan at Qualaday.

       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
with respect to all of the specifications and charges of which he was found guilty.
Appellant had the means, motive, and opportunity to conspire and kill unarmed
Afghan civilians. Sadly, appellant was the catalyst and driving force of these
crimes.

                          B. Allegations of Post-Trial Error

       Like the trial, the post-trial procedures involved in appellant’s case were long
and complicated. Appellant assigned two separate errors regarding the post-trial
processing of his case: 1) the convening authority abused his discretion by failing to
grant a post-trial Article 39(a) session based on the information defense then had
regarding testimony both SSG Bram and SPC Wagnon would have provided had they
been granted immunity and testified at appellant’s court-martial; and 2) the
government committed a post-trial Brady violation by failing to disclose the contents
of post-trial interviews with SSG Bram.

       We ordered a DuBay hearing to find facts and resolve factual disputes
regarding these issues. After reviewing the DuBay hearing and the findings of the
DuBay judge, we determine the convening authority did not abuse his discretion and
there was no post-trial Brady violation. Further, we also determine appellant’s
requested relief did not constitute a request for a new trial. In the alternative, to the
extent appellant’s assignment of errors could be considered such a request, appellant
has not met his burden under R.C.M. 1210.




                                           23
GIBBS—ARMY 20110998

 1. Background Facts Based on Both the Post-Trial Processing of Appellant’s Case
                            and the DuBay Hearing

       As detailed in our legal and factual sufficiency analysis, there were a number
of co-accuseds and disciplinary matters that arose from the criminal activities on the
platoon’s deployment. Cases against members of the platoon included court-martial
proceedings against CPL Morlock, SPC Winfield, SSG Stevens, CPL Quintal, PFC
Holmes, SPC Wagnon, SSG Bram, SGT Jones, SPC Kelly, SPC Corey Moore, and
appellant.

       The government’s strategy in timing the courts-martial was to complete a trial
and then grant immunity to the convicted soldier. This allowed the government to
order the newly convicted soldier to cooperate and testify in the remaining trials
without raising Kastigar issues. 11 The prosecution team planned to proceed to trial
on the less culpable accuseds first. They then planned to recommend the CA grant
testimonial immunity to a newly convicted soldier and order him to testify against a
more culpable accused.

        In the government’s assessment, appellant was the most culpable. As such,
they originally planned to conduct his trial last. For SSG Bram’s charges, the
government had planned to conduct his trial before appellant’s trial. However, due
to litigation delays, SSG Bram’s contested trial was not completed until about a
week after appellant’s November 2011 trial. After SSG Bram’s trial was complete,
the government immunized SSG Bram and intended for him to also testify against
SPC Wagnon. With respect to SPC Wagnon, as the cases proceeded the government
determined the evidence against SPC Wagnon was the weakest, forcing the
government to delay the date of SPC Wagnon’s trial until after appellant’s case
completed. The government intended to immunize appellant and order him to testify
against SPC Wagnon.

       The government made it clear to the defense counsel involved in the various
cases, to include appellant’s counsel, that the staff judge advocate (SJA) would not
recommend the CA grant testimonial immunity for any given witness until
completion of that witness’ own court-martial or administrative proceedings.
Although not required by any particular rule, the Office of the Staff Judge Advocate


11
  Kastigar v. United States, 406 U.S. 441 (1972), held the government can compel a
witness who invokes the Fifth Amendment privilege against self-incrimination by
conferring immunity. However, in any subsequent prosecution of such an
immunized witness, the prosecution affirmatively bears the burden to show that
proposed evidence is derived from legitimate independent sources from the
compelled testimony. Id. at 461-62.




                                          24
GIBBS—ARMY 20110998

(OSJA) required that all requests for immunity be submitted in writing for these
cases. The OSJA further required all requests for immunity be processed through
the Chief of Justice and the SJA for action by the CA. Individual prosecutors did
not have the discretion to wait on or disregard formal immunity requests. Overall,
the CA granted testimonial immunity and issued orders to testify for twenty-three
soldiers. 12

       At the time of appellant’s trial, SPC Wagnon and SSG Bram both had
indicated through counsel an intent to invoke their Fifth Amendment privilege
against self-incrimination if called to testify. Their own trials had not been
completed and they had not been granted testimonial immunity. Appellant’s counsel
never submitted a written request for immunity for these two individuals to testify at
appellant’s trial. 13 Yet, SPC Wagnon and SSG Bram were both listed on the defense
witness list for appellant’s trial. SPC Wagnon was at the courthouse during
appellant’s trial dressed in his Class A or Army Service Uniform. This gave the
appearance SPC Wagnon was going to testify for appellant without a grant of
immunity. Appellant’s trial concluded on 10 November 2011. Neither SSG Bram
nor SPC Wagnon was called by either party as a witness. After appellant’s trial, the
government continued with court-martial proceedings against the two.

       On 18 November 2011, SSG Bram was convicted of a number of offenses to
include conspiracy to commit assault, obstruction of justice, wrongfully soliciting
CPL Quintal to murder Afghan noncombatants, and dereliction of duty for willfully
failing to properly account for and dispose of an AK-47. The government then
immunized SSG Bram and conducted a post-trial interview. In this interview with
the government, SSG Bram discussed issues that were contrary to the trial testimony


12
  This included granting appellant immunity and issuing him an order to testify after
his own trial.
13
   This fact was highly contested at the DuBay hearing. Both the prosecution and
trial defense teams contradicted each other regarding whether a formal written
immunity request was ever submitted. After considering testimony and numerous
exhibits for purposes of his DuBay findings, to include a “Consent Motion to
Continue” dated 25 February 20[11] signed by trial counsel and containing the
statement “The defense has requested of the GCMCA that immunity be granted for
all of these witnesses and asked that depositions be ordered; however, that request is
still pending[,]” the DuBay judge assessed the credibility of all witnesses and found
the greater weight of evidence supported a finding that “Appellant’s original trial
defense team did not make a written request for immunity for either SPC Wagnon or
SSG Bram prior to the Appellant’s trial.” In light of all of the evidence presented
we similarly find no written request for immunity was made.




                                          25
GIBBS—ARMY 20110998

of CPL Morlock, SPC Quintal, and SPC Winfield. SSG Bram’s attorney later
discussed the interview with appellant’s counsel. Based on this information,
appellant’s counsel proffered that if SSG Bram had been called to testify, “he would
say he never saw an AK-47 that was picked up from the . . . IED incident, he never
engaged in an exchange of an AK-47 with Gibbs, and had no idea about an AK-47
being used in illegal conduct.” The government did not disclose the content of the
interview to appellant until after appellant submitted clemency matters averring a
post-trial Brady violation.

       After the government conducted the interview with SSG Bram, the convening
authority dismissed charges against SPC Wagnon and administratively discharged
him in lieu of court-martial, under Chapter 10, Army Regulation 635-200. In
December 2012, after he was discharged and no longer subject to court-martial
jurisdiction, appellant’s counsel interviewed SPC Wagnon. SPC Wagnon provided a
sworn statement to appellant’s counsel in which he denied committing any unlawful
acts, specifically denied any conspiracy to murder Afghans existed, and asserted
appellant’s use of force on 22 February 2010 to shoot and kill the Afghan male at
Kari Kheyl was justified in self-defense. 14 The letter also stated that SPC Wagnon
reviewed CPL Morlock’s statement about the shooting at Kari Kheyl and asserted
CPL Morlock was a liar.

       After the court-martial record was authenticated and prior to initial action by
the CA, appellant’s defense counsel made multiple requests for a post-trial hearing
to address this potentially exculpatory evidence from SPC Wagnon and SSG Bram.
According to appellant’s defense counsel, they made immunity requests before trial,
but asserted these requests were denied by the government. The SJA completed
three addendums to the staff judge advocate recommendation (SJAR) and appellant’s
counsel submitted two supplemental R.C.M. 1105 clemency requests in rebuttal to
these addendums.

       Among a number of other disputes, the parties disagreed about the following:
(1) whether appellant requested the CA grant immunity for SPC Wagnon and SSG
Bram to testify at appellant’s trial (2) whether the timing and order of the CA grants
of immunity to other co-accuseds was improper during the multiple courts-martial
arising from the platoon’s deployment to Afghanistan (3) whether SPC Wagnon’s
and SSG Bram’s anticipated testimony was new and exculpatory evidence that
substantially effected the legal sufficiency of the findings of guilty and sentence at
appellant’s trial and (4) whether the CA was required to direct a post-trial hearing to
consider SPC Wagnon’s and SSG Bram’s testimony.


14
 The sworn statement was not technically a sworn affidavit. However, SPC
Wagnon signed the statement and swore the information in the statement was true.




                                          26
GIBBS—ARMY 20110998

        The SJA disagreed with appellant’s allegations of error. The SJA stated that
the government had the authority to order trials of co-accused in a manner beneficial
to its case and will often wait to the completion of an accused’s trial before
attempting to gain cooperation in subsequent trials. According to the SJA, the
statement made by SPC Wagnon was “self-serving” and made after SPC Wagnon had
the benefit of observing witnesses and the information from the previous trials of co-
conspirators.

       The SJA acknowledged that SSG Bram was interviewed by the government
after his own court-martial. The SJA attached an affidavit from the trial counsel
(TC) summarizing SSG Bram’s interview. According to the SJA, SSG Bram did not
reveal exculpatory information related to appellant and there was no Brady
violation. The SJA summarized the information from the affidavit:

             PVT Bram acknowledged his possession of the AK-47 and
             indicated several others knew of the location of the
             weapon. While PVT Bram disputed PVT Winfield’s
             recollection of how the squad came into possession of the
             weapon, there is no dispute that PVT Bram admitted
             having the weapon. PVT Bram further admitted that it
             was widely known that the weapon was located in his
             vehicle and the weapon was intended for unlawful use
             against Afghan civilians.

       Based on the evidence presented at trial, the SJA recommended that the CA
not order a post-trial session. Appellant disagreed with the SJA’s conclusions and
recommendations. According to appellant, the government purposefully planned the
timing of SPC Wagnon and SSG Bram’s trials to preclude them from testifying for
appellant. Appellant pointed out that SPC Wagnon was not available to the defense
before trial because he was represented by counsel. Appellant’s counsel stated that
they asked for SPC Wagnon to be immunized and the request was denied. Appellant
disputed the content of the TC affidavit of SSG Bram’s interview. Appellant stated
that all of the TC’s notes from the interview should have been turned over and
demanded that the notes from SSG Bram’s interview be given to appellant’s defense
team.

       On 26 November 2013, the CA approved initial action in appellant’s case.
The CA did not complete a separate document denying appellant’s request for a
post-trial session. However, by approving the initial action, the CA by implication
denied appellant’s request for a post-trial session.




                                         27
GIBBS—ARMY 20110998

      We ordered a DuBay hearing, among other reasons, to determine the
testimony of both SPC Wagnon and SSG Bram. 15

        At the DuBay hearing, SPC Wagnon testified about the circumstances at Kari
Kheyl, corroborating the details of appellant’s testimony that the shooting was a
lawful engagement. According to SPC Wagnon, the Afghan male had a weapon. He
testified CPL Morlock only arrived after the shooting. Specialist Wagnon denied
having any discussions with appellant or CPL Morlock about killing anyone or using
an AK-47 as a drop weapon. He asserted he never saw an AK-47 at the unit before
the shooting. In SPC Wagnon’s opinion, CPL Morlock was “cocky and arrogant and
wanted to be the cool guy and would say or do anything to fit in.” Lastly he stated
that while in confinement at Fort Lewis, SPC Winfield stated that when SPC
Winfield was in Kandahar he overheard CPL Quintal, PFC JS, and CPL Morlock say
they would “pin everything” on appellant to help themselves.

       At the DuBay hearing, SSG Bram testified that while he was aware and had
seen a contraband AK-47 in his Stryker for use as a potential drop weapon, he never
had a meeting with appellant, CPL Quintal, and SPC Winfield to transfer the AK-47
from appellant’s squad to his Stryker. He asserted that he did not put the weapon in
his Stryker, and that CPL Quintal told him that CPL Morlock had placed it there. He
also testified that when he came back from leave in late February 2010 the AK-47
was no longer in his Stryker and he never saw it again. CPL Morlock told him the
AK-47 had been used in a murder at Kari Kheyl and CPL Morlock told him “[SPC]
Wagnon had come up after the incident at Kari Kheyl.”

2. The CA Did Not Abuse His Discretion When He Denied Appellant’s Request for a
                              Post-Trial Hearing

        Post-trial sessions may be directed by the military judge or CA for the
“purpose of inquiring into, and when appropriate, resolving any matter that arises
after trial and that substantially affects the legal sufficiency of any findings of guilty
or the sentence.” R.C.M. 1102(b)(2). A military judge may direct a post-trial
session any time prior to authenticating the record, after which the convening
authority may direct a post-trial session prior to taking initial action. R.C.M.
1102(d). “When an appellant requests the [CA] to order a post-trial Article 39(a)
session, it is a matter for the [CA’s] sound discretion whether to grant the request.”
United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998). “We review a [CA’s]
decision not to grant a post-trial hearing for an abuse of discretion.” United States
v. Lofton, 69 M.J. 386, 391 (C.A.A.F. 2011) (citing Ruiz, 49 M.J. at 348).


15
  Based on the DuBay, appellant and this court have the benefit of the testimony
appellant sought in a post-trial hearing from the CA.




                                           28
GIBBS—ARMY 20110998

       “The abuse of discretion standard is a strict one, calling for more than a mere
difference of opinion. The challenged action must be ‘arbitrary, fanciful, clearly
unreasonable,’ or ‘clearly erroneous.’” United States v. McElhaney, 54. M.J. 120,
130 (C.A.A.F. 2000) (citations omitted) (describing the abuse of discretion standard
of review within the context of a military judge’s ruling on the admissibility of
evidence); United States v. Travers, 25 M.J. 61, 62-63 (C.M.A. 1987) (describing
the abuse of discretion standard within the context of a military judge’s decision not
to close the trial to the public upon the motion of an accused).

       Appellant cites Lofton and Ruiz for the proposition that “[t]o determine
whether a convening authority abused his discretion, this court must determine
whether the factual assertions in support of a request for a post-trial hearing
proffered by defense counsel were ‘unsubstantiated’ or not.” We disagree. We do
not read Lofton, Ruiz, or the plain language of the rule to be so limiting. In Lofton
our superior court determined that a CA’s denial of a request for a post-trial Article
39(a) session, following a substantiated claim of a failure to follow Air Force policy
rules requiring witness sequestration, was an abuse of discretion. 69 M.J. at 391-92.
However, the CAAF’s holding in the case is composed of two independent clauses:

             Under all the circumstances, we conclude that the defense
             claim is not unsubstantiated, and the convening authority
             abused his discretion in not ordering a post-trial hearing to
             inquire into Ms. King’s allegations and its effect, if any,
             on [Lofton’s] court-martial.

Id. at 392. The CAAF never asserted a causal relationship between these two
independent clauses. While in its recitation of the legal standard in Lofton, the
CAAF reiterated it’s holding in Ruiz that “[a CA] is not ‘compelled’ to grant a post-
trial hearing ‘based merely on unsworn, unsubstantiated assertions[,]’” it never
asserted or held that a convening authority must grant a post-trial hearing based on a
substantiated assertion. 16 Id. at 391 (quoting Ruiz, 49 M.J. at 348.

       Indeed, the plain language of the rule uses the term “may” not “shall,”
granting the CA discretion. See R.C.M. 1102(d). “‘Discretion,’ by definition,
involves the idea of choice, of an exertion of the will, of a selection between


16
  Further, an analogous framework for determining when a post-trial evidentiary
hearing is required already exists, albeit within the context of appellate claims
requiring further fact-finding. See United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997). As the CAAF asserted with respect to DuBay hearings, “a post-trial
evidentiary hearing . . . is not required in any case simply because an affidavit is
submitted by an appellant.” Id. at 248.




                                           29
GIBBS—ARMY 20110998

competing considerations.” United States v. Glenn, 154 U.S. App. D.C. 61, 473 F.2d
191, 196 (D.C. Cir. 1972) (Robinson, J., dissenting) (citing Spalding v. Spalding,
355 Mich. 382, 94 N.W.2d 810, 811 (1959). Dicta in Ruiz also supports the
conclusion that, even with a substantiated claim, the CA still has a choice on
whether or not to order a post-trial Article 39(a) session, asserting: “The existence
of factual support for a post-trial Article 39(a) session might persuade the [CA] to
consider whether further inquiry is appropriate.” Ruiz, 49 M.J. at 348 (emphasis
added).

       Further, whether a defense counsel has provided factual support for the
defense’s claim is only one characteristic regarding whether a post-trial Article
39(a) session is appropriate within the rule’s purpose. Any evaluation of whether a
convening authority abused his discretion by failing to order a post-trial Article
39(a) session would have to consider the specific context of the purpose asserted in
R.C.M. 1102. In essence, the rule’s purpose is 1) an inquiry into or resolution of an
issue, 2) that arises after trial, and 3) that substantially affects the legal sufficiency
of any findings of guilty or the sentence.

       Here, the CA had the benefit of appellant’s 1105 matters, the SJA’s SJAR and
three addendums addressing the request for a post-trial session before taking initial
action. The CA also had the benefit of the record of trial that supported the guilty
findings and appellant’s sentence. Additionally, unlike Lofton, here we are dealing
with a request for a post-trial Article 39(a) session to take testimonial evidence from
two co-accuseds after trial. Unlike the evidence in Lofton showing a failure to
follow Air Force witness sequestration rules which was discovered after trial, the
existence of the co-accuseds was something that was known before trial, and their
testimony could have been pursued both through written requests for immunity and
through subsequent motions to the military judge based on R.C.M. 704(e). It was
not. Under such circumstances, a decision to deny a request for a post-trial Article
39(a) session cannot be said to have been “arbitrary, fanciful, clearly unreasonable,”
or “clearly erroneous.”

       Specialist Wagnon signed a statement that he swore was true. However, the
statement was self-serving and contained nothing more than a general denial of
wrongdoing, bolstering appellant’s own assertions that the shooting at Kari Kheyl
was a lawful engagement, and asserting CPL Morlock was a liar. First, at the time
of the CA’s decision, it is unclear what, if any, additional useful details would have
been inquired into during a post-trial Article 39(a) session in which SPC Wagnon
would have asserted the exact same thing. Second, the issue of presenting SPC
Wagnon’s testimony appears to have been an issue that would have been ripe at trial,
not something that arose after trial. Third, while SPC Wagnon’s statement asserted




                                            30
GIBBS—ARMY 20110998

Kari Kheyl was a lawful engagement, it would not have substantially affected either
the legal sufficiency for this specification or the sentence in light of the other
evidence presented at trial, to include PFC Willis’ testimony, 17 appellant’s admission
to SSG Stevens about the unlawful killing, the inconsistencies in appellant’s own
testimony, SSG Sprague’s testimony regarding the AK-47 having no round in the
chamber and being fully operational, and SPC Winfield’s Facebook messages to his
parents.

        With respect to SSG Bram, the CA had conflicting information. He had a
proffer from defense counsel regarding what SSG Bram would say if called to
testify. He also had a sworn affidavit from a TC contradicting this proffer. Staff
Sergeant Bram did not himself provide a written statement of any type for the CA’s
consideration. First, the defense’s proffer for SSG Bram appears to be the exact
type of request where a CA is “not compelled to grant a post-trial Article 39(a)
session based merely on unsworn, unsubstantiated assertions.” Ruiz, 49 M.J. at 348.
Second, as with SPC Wagnon, the issue of presenting SSG Bram’s testimony appears
to have been an issue that would have been ripe at trial, not something that arose
after trial. Third, the only substantiated information the CA had regarding SSG
Bram’s potential testimony was aptly summarized by the SJA. While SSG Bram
disputed SPC Winfield’s recollection of how the squad came into possession of the
weapon, he also admitted having the AK-47 in his Stryker, that the weapon was
intended to be used as a drop weapon after killing an unarmed Afghan, and the
weapon was no longer in his vehicle after the Kari Kheyl murder. This information
in the context of the trial would not have substantially affected either the legal
sufficiency for this specification or the sentence.

       We therefore determine the CA did not abuse his discretion when he decided
to deny granting a post-trial Article 39(a) session. While we determine there was no
error and thus no prejudice could have ensued, we further recognize that when we
ordered the DuBay hearing, this essentially mooted the request for the CA to direct a
post-trial session.




17
  Private First Class Willis’ testimony at trial directly contradicts both appellant’s
assertion at trial and SPC Wagnon’s assertion at the DuBay hearing that CPL
Morlock was not a part of the shooting at Kari Kheyl. Private First Class Willis not
only testified he saw CPL Morlock and SPC Wagnon at the entryway to the alley,
but testified he saw CPL Morlock “fire off a couple rounds because [CPL Morlock]
was the first one to notice contact, and then – it was him and Wagnon on that wall.”




                                          31
GIBBS—ARMY 20110998

         3. The Government Did Not Commit A Post-Trial Brady Violation

        Appellant avers the government committed a post-trial Brady violation when
it failed to disclose the contents of the interview prosecutors conducted with SSG
Bram after appellant’s trial. The government ultimately provided the defense with
an affidavit summarizing the interview. The defense objected to both the
summarized nature and content of the affidavit contending it did not contain and
mischaracterized SSG Bram’s actual statements. Based on a proffer from SSG
Bram’s attorney regarding the statements made in the interview, appellant
specifically requested the prosecution’s notes of the interview. The government
refused to provide the attorney interview notes. This all occurred prior to the CA
taking action in appellant’s case.

                 a. What the Government Learned in the Interview

       Evidence at the DuBay hearing established the government interviewed SSG
Bram approximately two months after appellant’s trial. Shortly thereafter, the
government trial team lost the notes taken contemporaneously with the interview.
However, one of the trial counsel sent an e-mail to the prosecution team the day of
the interview. Among other things, the e-mail summarized that SSG Bram was
aware that an AK-47 was hidden in his Stryker and he knew before the shooting at
La Muhamad Kalay that CPL Morlock and SPC Holmes were planning to commit
murder. The e-mail also stated that upon SSG Bram’s return from mid-tour leave
CPL Morlock told SSG Bram both that the Kari Kheyl shooting was a murder and
that SPC Wagnon did not show up to the crime scene at Kari Kheyl until after the
killing occurred.

               b. What Was Disclosed in the Trial Counsel Affidavit

       The affidavit provided to the defense prior to the convening authority taking
action in appellant’s case stated SSG Bram was aware an AK-47 was stored in his
vehicle for criminal activity and that at one point SSG Bram and CPL Quintal agreed
to use this weapon to murder the next Afghan that drove past their Stryker on a
motorcycle. It also asserted: “Further, [SSG Bram] stated that [SPC] Winfield’s
version of how [SSG Bram’s] squad came into possession of the AK-47 was
incorrect. The Government is unclear as to how the AK-47 ended up in [SSG]
Bram’s Stryker as both [CPL] Quintal and [SPC] Winfield have different accounts as
to what occurred.”

                         c. What Brady Requires Post-Trial

      The government violates Brady when they withhold favorable and material
information from the defense. United States v. Behenna, 71 M.J. 228, 237-38
(C.A.A.F. 2012). Withholding evidence requires the government suppress the



                                         32
GIBBS—ARMY 20110998

evidence “either willfully or inadvertently.” Strickler v. Greene, 527 U.S. 263, 282
(1999); see also Banks v. Dretke, 540 U.S. 668, 691 (2004). Evidence is favorable
if, among other things, it impeaches the government’s case. Behenna, 71 M.J. at
238. “Evidence is material when ‘there is a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would have been different.’”
Id. (quoting Smith v. Cain, 565 U.S. 73, 75 (2012) (further quotations omitted)). We
recently recognized that “[b]ecause ‘Brady evidence’ has the twin requirement that
the evidence be both favorable and material, a Brady violation is always
prejudicial.” United States v. Ellis, 77 M.J. 671, 675 (Army Ct. Crim. App. 27
March 2018), rev. denied, __ M.J __, 2018 CAAF LEXIS 334 (C.A.A.F. 18 Jun.
2018).

        In United States v. Hawkins, this court determined the government’s Brady
obligations continue post-trial until the CA takes initial action. 73 M.J. 605, 612
(Army Ct. Crim. App. 2014), rev. denied, 73 M.J. 448 (C.A.A.F. 2014). However,
the materiality of a post-trial Brady violation is not evaluated from the perspective
of the materiality of the evidence to the findings and sentence, but rather it’s
materiality to the post-trial proceedings. See Hawkins, 73 M.J. at 613. In Hawkins,
this court evaluated the materiality of the government’s failure to timely disclose
favorable evidence discovered post-trial from the perspective of an appellant’s
inability to use the information to request a remedy from the convening authority.
Id. at 613-14.

           d. Although the Evidence Was Favorable, It Was Not Material

       As a preliminary matter, SSG Bram’s testimony was favorable to appellant
with respect to two potential lines of impeachment. First, SSG Bram testified that
he was not present when the AK-47 was transferred to his vehicle and that CPL
Quintal informed him that CPL Morlock had put the weapon in the Stryker. This
testimony differed from SPC Winfield’s, CPL Quintal’s, and CPL Morlock’s
testimony at trial. Second, SSG Bram’s assertion that CPL Morlock informed him
“[SPC] Wagnon had come up after the incident at Kari Kheyl” potentially differed
from CPL Morlock’s testimony at trial. Under Hawkins the government had a duty
to disclose this favorable evidence to the defense upon discovery. As such, with or
without a defense request, the information should have been timely disclosed by the
government after the interview occurred.

       Admittedly, the first potential line of impeachment was generally provided to
the defense in the trial counsel’s affidavit. 18 Importantly, this disclosure occurred


18
  We also recognize that it is still unknown whether SSG Bram actually disclosed in
the interview that CPL Quintal told him CPL Morlock put the AK-47 in the Stryker.

                                                                       (continued . . .)


                                          33
GIBBS—ARMY 20110998

prior to the convening authority’s action such that the disclosure, albeit late, could
have negated any Brady claim. However, given the complexities involved in this
particular case, we determine this general disclosure was not enough and did not
contain the favorable information that CPL Quintal had stated it was CPL Morlock
who placed the AK-47 in the vehicle. 19 Further, the second line of impeachment
evidence was clearly known to the government and remained undisclosed.

      Despite the government’s failure to disclose these two lines of favorable
evidence, none of the testimony SSG Bram provided at the DuBay hearing was
material such that there was a reasonable probability of a different result with
respect to the convening authority’s initial action. Although aspects of SSG Bram’s
testimony were favorable to the defense, in the context of appellant’s trial SSG
Bram’s testimony on the whole had limited impeachment value and was actually
damaging.

        With respect to the first line of impeachment, the value of SSG Bram’s
testimony regarding how the AK-47 ended up in the bread box of his Stryker is
undermined by the fact that he did not actually know how the weapon ended up in
his Stryker and CPL Quintal’s, SPC Winfield’s, and CPL Morlock’s versions of
events already differed from each other. Corporal Quintal testified that after the La
Muhamad Kalay murder, appellant asked him for the keys to his Stryker and the next
day he found the AK-47 in his Stryker. In contrast, SPC Winfield testified that SPC
Corey Moore brought an AK-47 from the ANP IED site onto first squad’s Stryker
and later he, appellant, SSG Bram, and CPL Quintal all met to transfer the AK-47
from appellant’s Stryker to SSG Bram’s Stryker. Still differently, CPL Morlock
testified that it was appellant, not SPC Corey Moore, who acquired the AK-47 from
the ANP IED site and later he, appellant, SSG Bram and CPL Quintal transferred the
weapon from first squad to third squad’s vehicle.



(. . . continued)
Given the length of the five-hour interview and the content of the government’s
general disclosure in the affidavit, we determine SSG Bram did disclose more details
about the inconsistencies between CPL Quintal and SPC Winfield regarding who
placed the AK-47 in the Stryker.
19
   We make this determination bearing in mind that defense counsel specifically
attempted to obtain the information himself by flying to the Consolidated Naval Brig
at Miramar to interview SSG Bram, but was prevented by SSG Bram’s attorney from
conducting the interview. The defense ultimately requested the convening authority
grant a post-trial Article 39(a) for specifically determining the exact content of SSG
Bram’s post-trial testimony.




                                           34
GIBBS—ARMY 20110998

       Further, SSG Bram’s testimony that he was not present at any transfer of the
AK-47 to his vehicle was limited to impeaching SPC Winfield and CPL Morlock’s
testimony as substantive evidence that he, SSG Bram, was indeed not at any meeting
as they claimed. His testimony does not definitively state that a meeting never
occurred; just that if one did occur, he was not present. Staff Sergeant Bram’s
statement that CPL Quintal told him that CPL Morlock placed the AK-47 in the
Stryker was only admissible as a prior inconsistent statement to question the
veracity of CPL Quintal’s testimony. It was not admissible as substantive evidence
that CPL Morlock did indeed place the AK-47 in the vehicle. Frankly, it is not even
entirely inconsistent with CPL Quintal’s statement.

       Yet, exactly how the AK-47 came to reside in the bread box of SSG Bram’s
Stryker is an ancillary point. Even SSG Bram agreed that the AK-47 was stored in
his Stryker for use as a drop weapon. Defense counsel’s cross-examination for each
of the witnesses with respect to the AK-47 was properly focused on undermining any
testimony suggesting the AK-47 that was in the Stryker was the same AK-47 at Kari
Kheyl. In this respect, SSG Bram’s testimony was actually damaging to the defense
case. Staff Sergeant Bram confirmed that the AK-47 that had been in his vehicle
was no longer there when he returned from mid-tour leave in late February 2010,
just after the Kari Kheyl incident, and that he never saw the weapon after his return.
He further provided damning testimony that CPL Morlock told him during the
ongoing conspiracy that the AK-47 from the vehicle had been used in the murder at
Kari Kheyl. This statement was admissible as a prior consistent statement both to
refute recent fabrication and for its truth.

       This brings us to the second potential point of impeachment, SSG Bram’s
testimony at the DuBay hearing that CPL Morlock told him “[SPC] Wagnon had
come up after the incident at Kari Kheyl.” This statement is vague and could be
interpreted any number of ways. It could potentially be used as a prior inconsistent
statement to impeach CPL Morlock’s testimony that he, appellant, and SPC Wagnon
discussed killing the Afghan at Kari Kheyl before committing the murder together.
Under this interpretation the statement was admissible only for determining CPL
Morlock’s credibility. However, the statement could also be interpreted such that
SPC Wagnon “[came] up” just after appellant shot the Afghan. This interpretation
would actually be consistent with both CPL Morlock’s and appellant’s own version
of events as each in his testimony differed with respect to whether CPL Morlock was
there, not whether SPC Wagnon was there. We further note this is consistent with
PFC Willis’ testimony that “[SPC] Wagnon was behind [CPL Morlock]” when CPL
Morlock fired rounds. As a prior consistent statement, the government could have
used SSG Bram’s testimony as substantive evidence. Indeed, nothing, to include
SPC Wagnon’s testimony at the DuBay hearing, ever suggested that SPC Wagnon
was not there. Specialist Wagnon also stated he came into the compound after shots
were fired.




                                         35
GIBBS—ARMY 20110998

       None of this negates the Brechtian discord between appellant’s own tactical
proficiency gained through combat experience and his story of being lackadaisical
such that he was caught unaware while in the midst of what he claimed to be a
search of a known Taliban Commander’s compound. Indeed, in the broader context
of the trial as a whole, exactly how the AK-47 ended up in SSG Bram’s Stryker and
the possible contradiction by CPL Morlock that SPC Wagnon was not in the
compound at Kari Kheyl seem inconsequential facts amongst the other evidence
which established the AK-47 drop weapon that appellant retrieved at the ANP IED
site ended up next to the unarmed Afghan that appellant killed. This testimony does
not overcome the inconsistency between appellant’s story of the Taliban
Commander’s AK-47 jamming and SSG Sprague finding the weapon next to the
Afghan without a round in the chamber and fully functional.

       If it did nothing else, SSG Bram’s testimony at the DuBay hearing confirmed
that the platoon had within its possession an AK-47 that was specifically kept for
use as a drop weapon. That SSG Bram asserted this drop weapon just so happened
to disappear from his Stryker and the unit’s possession upon his return from leave,
just after Kari Kheyl, seems particularly damaging to appellant’s cause. This is even
without considering SSG Bram’s testimony about CPL Morlock’s admission that the
AK-47 was used to stage the murder at Kari Kheyl. This aspect of SSG Bram’s
testimony corroborates the damning text of SPC Winfield’s 2010 Valentine’s Day
message memorializing appellant’s relationship to both the conspiracy and weapon
approximately eight days prior to the murder.

       Thus, although the government failed to disclose favorable information to the
defense, the government did not commit a Brady violation as there is no reasonable
possibility SSG Bram’s testimony would have affected the convening authority’s
action effectively denying the post-trial hearing.

                   e. Specific Requests and United States v. Hart

      Appellant contends he made a specific request in his clemency materials for
the content of SSG Bram’s testimony and the trial counsel notes from the interview.
He asserts that because of this request the government must prove the non-disclosure
was harmless beyond a reasonable doubt under our superior court’s decision in
United States v. Hart, 29 M.J. 407 (C.M.A. 1990).

       First, we recognize “[t]he regulatory and statutory discovery rights of an
accused at court-martial are greater than the minimum prescribed by the
constitution.” Ellis, 77 M.J. at 677. However, unlike post-trial Brady violations,
this court has not yet had occasion to determine whether the requirements of Article
46, UCMJ, and the discovery obligations of the 700 series of the Rules for Courts-
Martial continue to apply post-trial. Our rationale for applying Brady in the military
post-trial context through initial action is certainly persuasive for similarly applying



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GIBBS—ARMY 20110998

these heightened statutory and regulatory requirements post-trial. 20 However, we are
also confronted with the regulatory title under which the president has implemented
the specific discovery requirements underpinning Hart: “CHAPTER VII. PRETRIAL
MATTERS.” See Yates v. United States, 135 S. Ct. 1074, 1083 (2015) (recognizing
while “headings are not commanding, they supply cues” with respect to a drafter’s
intent). We also recognize that while appellate discovery rights exist, they are
presently unmoored from any statutory or regulatory framework, relying exclusively
on case law. See United States v. Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002).
Regardless, a non-disclosure under any such continuing requirements that might
possibly exist would have no effect on the trial itself as the violation would have
occurred post-trial. Thus, any potential heightened scrutiny analysis would
necessarily require evaluating whether the information was harmless beyond a
reasonable doubt with respect to the convening authority’s action, rather than trial.

       Second, it would not matter that the defense made a specific request for the
prosecution’s notes of this interview if the defense was not entitled to the notes.
Ellis, 77 M.J. at 679 (“To provide relief to appellant we must first find that the
government was required to disclose the information under the Constitution, the
UCMJ, or the Manual for Courts Martial.”). Rule for Courts-Martial 701(f) clearly
states, “[n]othing in this rule shall be construed to require the disclosure of
information protected from disclosure by the Military Rules of Evidence [Mil. R.
Evid.]. Nothing in this rule shall require the disclosure or production of notes,
memoranda, or similar working papers prepared by counsel or counsel’s assistants
and representatives.” 21 Neither the Supreme Court nor the CAAF has decided
whether Brady requires a prosecutor to disclose work product. The Eleventh and
Ninth circuits have determined Brady does not require a prosecutor disclose
“opinion work product,” encompassing material that only contains an attorney’s
mental impressions or legal theories. See Williamson v. Moore, 221 F.3d 1177, 1182
(11th Cir. 2000); Morris v. Ylst, 447 F.3d 735, 742 (9th Cir. 2006).




20
  Although persuasive, we also recognize the CA’s powers under Article 60 on
which the rationale of Hawkins in part relies have been substantially eroded through
statutory change. 73 M.J. at 612; Compare UCMJ art. 60 (2006) with UCMJ art. 60
(2016).
21
  Article 46 and R.C.M. 701 do not require the open and reciprocal discovery of
attorney work product between the parties. For example, it would have been equally
objectionable and outside the discovery obligations under Article 46 for the
government to request defense counsel interview notes from an alibi witness or other
defense witness.




                                         37
GIBBS—ARMY 20110998

       However, if exculpatory information is contained in attorney work product,
the underlying exculpatory facts from the information must be disclosed to the
defense. See United States v. Kohring, 637 F.3d 895, 907 (9th Cir. 2011) (“‘[I]n
general, a prosecutor’s opinions and mental impressions of the case are not
discoverable under Brady[/Giglio] unless they contain underlying exculpatory
facts.’” (quoting Morris, 447 F.3d at 742 ) (alterations in original). Under such an
approach an affidavit that sufficiently contains the details of any statements made in
an interview would suffice. This approach makes sense to us, but has yet to be
decided in the military for pretrial discovery obligations, let alone decided in the
post-trial context.

       However, we need not decide either of these issues today as the government’s
failure to disclose the specific contents of SSG Bram’s post-trial statements was
harmless beyond a reasonable doubt for the exact same reasons the evidence in issue
was not material. The damning confirmations of SSG Bram’s testimony outweighed
the favorable nature of the limited impeachment he provided. We are convinced the
non-disclosure was harmless beyond a reasonable doubt, even more so, in light of
the context of the entire trial. As explained in our review of the factual sufficiency
of the case, appellant’s own admissions, the use of the AK-47 as a drop weapon,
explanations of stock-piling unauthorized weaponry, explanations for hoarding
severed fingers, and of the unfolding of each event destroyed his own credibility.
When we consider the procedural history of the defense not submitting a written
immunity request to the CA and not raising any potential immunity request with the
military judge, it is clear the issue of SSG Bram testifying was waived at trial. Any
post-trial non-disclosure was therefore harmless beyond a reasonable doubt.

       Lastly, assuming arguendo that Hart should be applied to post-trial non-
disclosure violations of specific requests and further assuming the error in this case
was not harmless beyond a reasonable doubt, the appropriate remedy would be to
return the record of trial to the convening authority for a review and action in light
of SSG Bram’s DuBay testimony.

4. Appellant Never Asked for a New Trial Pursuant to R.C.M. 1210 and Has Failed
                       to Meet the Statutory Requirements

      An accused may petition the Judge Advocate General for a new trial at “any
time within two years after approval by the convening authority of a court-martial
sentence . . . on the grounds of newly discovered evidence or fraud on the court.”
See UCMJ, art. 73. During oral argument, considerable time was spent discussing
whether or not this court should simply address appellant’s asserted errors as a
request for a new trial based upon newly discovered evidence. See R.C.M. 1210; see
also United States v. Thomas, NMCM 88 3996C, 1989 CMR LEXIS 1087
(N.M.C.M.R. 20 Dec. 1989) (“For our purposes in resolving the assignment of error
and request for new trial, we will consider the affidavits and brief submitted by the



                                          38
GIBBS—ARMY 20110998

appellant to constitute a petition for a new trial, despite the lack of compliance with
certain provisions of R.C.M. 1210(c).”). However, at no time did appellant actually
submit a petition requesting a new trial. See R.C.M. 1210(c).

        After careful consideration of the record of trial, to include appellant’s post-
trial submissions to the CA and the record from the DuBay hearing, we decline to
exercise our discretion to construe appellant’s assigned errors as a petition for a new
trial. This is especially true since appellant was not time barred under Article 73
when he filed his appeal with this court. Appellant was not precluded from both
raising his assigned errors and petitioning for a new trial based on the evidence
available to him at the time. As there was no actual request for a new trial, we hold
there is no remedy available pursuant to R.C.M. 1210. Even if we were to view
appellant’s assignments of error as such a request, the testimony provided by SPC
Wagnon and SSG Bram fails all three prongs required for relief.

                      a. Requirements for Granting a New Trial

      In order to grant a new trial based on newly discovered evidence a petitioner
must show that:

             (A) The evidence was discovered after the trial;

             (B) The evidence is not such that it would have been
             discovered by the petitioner at the time of trial in the
             exercise of due diligence; and

             (C) The newly discovered evidence, if considered by a
             court-martial in the light of all other pertinent evidence,
             would probably produce a substantially more favorable
             result for the accused.

R.C.M. 1210(f)(2).

        “[T]he reviewing court must make a credibility determination, insofar as it
must determine whether the ‘newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence, would probably produce a
substantially more favorable result for the accused.’” United States v. Luke, 69 M.J.
309, 314 (C.A.A.F. 2011) (quoting United States v. Brooks, 49 M.J. 64, 69 (C.A.A.F.
1998) (citation omitted)). “The reviewing court does not determine whether the
proffered evidence is true; nor does it determine historical facts. It merely decides
if the evidence is sufficiently believable to make a more favorable result probable.”
Id.




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GIBBS—ARMY 20110998

       The CAAF has emphasized that “requests for a new trial, and thus rehearings
and reopenings of trial proceedings, are generally disfavored,” and are “granted only
if a manifest injustice would result absent a new trial, rehearing, or reopening based
on proffered newly discovered evidence.” United States v. Williams, 37 M.J. 352,
356 (C.M.A. 1993) (citations omitted).

                 b. The Evidence Was Not “Discovered” After Trial

       There is a split among the federal courts of appeals regarding whether a co-
actor’s post-conviction statement, exculpating an appellant, that was previously
unavailable due to the co-actor’s invocation of his privilege against self-
incrimination is “newly discovered” evidence or merely “newly available.”
Compare United States v. Montilla-Rivera, 115 F.3d 1060 (1st Cir. 1997) with
United States v. Owen, 500 F.3d 83 (2d Cir. 2007). At the DuBay hearing, appellant
argued for adopting Montilla-Rivera to determine the evidence from SPC Wagnon
and SSG Bram was “newly discovered.” The government argued for adopting the
“decided majority” rule in Owen to determine the evidence was, at most, “newly
available.” There is no binding military or Supreme Court precedent that has
decided this issue.

        In Montilla-Rivera, the court concluded that testimony from a co-actor that
was unavailable due to the co-actor’s invocation of his privilege against self-
incrimination could be “newly discovered” if, in addition to meeting the other
requirements to petition for a new trial, the defendant showed that the evidence was
“unknown or unavailable” at the original trial. 115 F.3d at 106-66 (relying on Vega
Pelegrina v. United States, 601 F.2d 18, 21 (1st Cir. 1979) (“newly discovered”
language of Federal Rule of Criminal Procedure [Fed. R. Crim. P.] 33 encompasses
evidence that was “unavailable.”)) The Montilla-Rivera court reasoned this
approach was consistent with two other circuits’ treatment of unavailable witnesses
that were not co-defendants. See United States v. Garland, 991 F.2d 328, 335 (6th
Cir. 1993) (ordering new trial where “although the defense knew of [witness’s]
existence before and during the trial, [the witness] was not located until after the
trial.”); United States v. Ouimette, 798 F.2d 47, 51-52 (2d Cir. 1986) (ordering
hearing on new trial where a witness, while known of at trial, was unavailable after
police allegedly pressured him not to testify).

       In contrast, the Owen court concluded, “when a defendant is aware that his
codefendant could provide exculpatory testimony but is unable to obtain that
testimony because the codefendant invokes his privilege against self-incrimination
prior to and during trial, the codefendant’s post-conviction statement exculpating the
defendant is not ‘newly discovered evidence’ within the meaning of [Fed. R. Crim.
P.] 33” 500 F.3d. at 88 (citing United States v. Jasin, 280 F.3d 355, 368 (3d Cir.
2002); United States v. Metz, 652 F.2d 478, 480 (5th Cir. 1981); United States v.
Glover, 21 F.3d 133, 138 (6th Cir. 1994); United States v. Theodosopoulos, 48 F.3d



                                          40
GIBBS—ARMY 20110998

1438, 1448 (7th Cir. 1995); United States v. Reyes-Alvarado, 963 F.2d 1184, 1188
(9th Cir. 1992); United States v. Muldrow, 19 F.3d 1332, 1339 (10th Cir. 1994);
United States v. DiBernado, 880 F.2d 1216, 1224 (11th Cir. 1989)); See also United
States v. Griffin, 489 Fed. Appx. 679, 681 (4th Cir. 2012); United States v. Rodgers,
982 F.2d 1241, 1245 (8th Cir. 1993); United States v. Dale, 991 F.2d 819, 838-39
(D.C. Cir. 1993).

       The majority has declined to follow “the First Circuit’s approach because it is
inconsistent with the plain and unambiguous term ‘newly discovered evidence’
found in [Fed. R. Crim. P.] 33(b)(1).” Griffin, 489 Fed. Appx. at 681; See, e.g.,
Jasin, 280 F.3d at 368 (rejecting defendant’s argument that “newly available
evidence” is synonymous with “newly discovered evidence” for purposes of Fed. R.
Crim. P. 33 on the basis that such argument “cannot overcome the unambiguous
language of Rule 33, which contemplates granting of new trial on the ground of
‘newly discovered evidence’ but says nothing about newly available evidence”).
The Owen court held in accordance with the plain meaning of the term discover that
“[o]ne does not ‘discover’ evidence after trial that one was aware of prior to trial.
To hold otherwise stretches the meaning of the word ‘discover’ beyond its common
understanding.” 500 F.3d at 89-90 (citing Webster’s Third New Int’l Dictionary 647
(2002) for the definition of “discover” as “to make known (something secret, hidden,
unknown, or previously unnoticed)”).

       After reviewing both approaches, we choose to follow Owen. We conclude
that almost all of the evidence from SPC Wagnon and SSG Bram was not
“discovered after the trial” but merely became available after trial. The Owen rule is
the majority approach of federal courts and is also consistent with the plain and
unambiguous term of “newly discovered evidence” contained in Article 73, UCMJ.

       Here, the majority of SPC Wagnon’s testimony at the DuBay hearing revolved
around the incident at Kari Kheyl. By the time of appellant’s trial, the government
and defense counsel knew generally that SPC Wagnon would testify that the alleged
murder at Kari Kheyl was a “good shot” and was justified. This potential
exculpatory testimony was the reason SPC Wagnon attended appellant’s trial in his
dress uniform. Moreover, appellant cannot be said to have been unaware of SPC
Wagnon’s ability to provide exculpatory testimony. Importantly, the Owen court did
not rely on knowledge of the actual testimony, but on an awareness of the ability to
provide exculpatory testimony. See 500 F.3d at 91. Appellant was at Kari Kheyl
and well knew the role SPC Wagnon played in the shooting. Appellant knew what
happened and thus, appellant was at all times aware of SPC Wagnon’s ability to
provide potentially exculpatory information. He simply was unable to benefit from
the testimony because he did not seek to make it available until after the trial was
over. This directly parallels the circumstances of Owen, and we decline to find such
similar circumstances to constitute newly discovered evidence within the meaning of
Article 73, UCMJ.



                                         41
GIBBS—ARMY 20110998

       The only portion of SPC Wagnon’s testimony that appellant may not have
been aware of prior to trial that could have been “discovered” was also inadmissible
evidence. Specialist Wagnon’s testimony that SPC Winfield told him that SPC
Winfield overheard CPL Quintal, PFC JS, and CPL Morlock say they would “pin
everything” on appellant was hearsay within hearsay. While Mil. R. Evid. 803(3)
may have provided an exception for admitting the statement from SPC Winfield,
there is no similar exception that would allow SPC Wagnon to recount what SPC
Winfield told him. Even as a prior inconsistent statement, the defense would first
have to confront CPL Quintal, PFC JS, or CPL Morlock and then the evidence of the
prior inconsistent statement would be testimony from SPC Winfield who overheard
the comment, not SPC Wagnon. In this evidence and impeachment exercise, SPC
Wagnon is simply one step too far removed to have provided admissible evidence.

       This brings us to SSG Bram. Appellant was aware of the ability of SSG Bram
to provide impeachment testimony. Appellant knew whether or not he, himself, was
present for any averred meeting that SPC Winfield and CPL Morlock testified
occurred between themselves, appellant, CPL Quintal and SSG Bram. Even without
knowing whether SSG Bram had attended any such meeting, knowing the status of
his own attendance, appellant knew about the ability of SSG Bram’s testimony to
conflict with SPC Winfield and CPL Morlock’s version of events. The only portion
of SSG Bram’s testimony that appellant may have been unaware of prior to trial was
the particular statements CPL Morlock made to SSG Bram.

      Thus, in line with the majority rule in Owen, we find the only admissible
evidence “discovered” after trial was CPL Morlock’s statement to SSG Bram about
SPC Wagnon’s time of arrival after the Kari Kheyl shooting and CPL Morlock’s
admission that the AK-47 was used to stage the murder at Kari Kheyl. The rest of
SPC Wagnon’s and SSG Bram’s testimony is either inadmissible or merely became
available after appellant’s trial. Furthermore, even if we were to assume the
evidence from SPC Wagnon and SSG Bram was newly discovered, appellant’s
defense counsel did not exercise due diligence to discover the evidence at the time
of appellant’s trial.

  c. The Evidence Could Have Been Discovered at the Time of Trial, the Defense
                         Simply Chose Not to Pursue It

       The second requirement of R.C.M. 1210(f)(2) requires “[t]he evidence is not
such that it would have been discovered by the petitioner at the time of trial in the
exercise of due diligence.” A co-accused’s invocation of his Fifth Amendment right
against self-incrimination is not a per se bar to discovery of the co-accused’s
testimony. Indeed, R.C.M. 704(e) not only provides the CA with the ability to
immunize a co-accused, rendering such testimony discoverable, but provides a
mechanism for judicial review of the CA’s decision to deny a defense request for
immunity. Here, the defense chose not to avail themselves of either of these



                                         42
GIBBS—ARMY 20110998

options. Appellant’s defense counsel never submitted a written request for the CA
to immunize SPC Wagnon or SSG Bram. While we recognize this fact is highly
disputed by the defense, it is beyond dispute that appellant never sought remedy
from the military judge to make either the testimony of SPC Wagnon or SSG Bram
available at his trial. Instead, the defense opted for a reasonable trial strategy of
arguing the absence of evidence presented by the government’s failure to have these
witnesses testify. 22

     d. The Probability of a Substantially More Favorable Result for Appellant

       The final requirement to obtain relief under R.C.M. 1210(f)(2) is that “[t]he
newly discovered evidence, if considered by a court-martial in the light of all other
pertinent evidence, would probably produce a substantially more favorable result for
the accused.” This court does not have to determine if SPC Wagnon’s or SSG
Bram’s testimony is true. Instead, we must determine whether SPC Wagnon and
SSG Bram’s testimony is sufficiently believable to make a more favorable result
probable in the light of all other pertinent evidence at appellant’s trial. See Luke, 69
M.J. at 314; Brooks, 49 M.J. at 68.

      “[P]ost-trial attempts by co-actors to exonerate one or the other should be
viewed with extreme suspicion.” Brooks, 49 M.J. at 68 (quoting United States v.
Bacon, 12 M.J. 489, 492 (C.M.A. 1982)). If SPC Wagnon testified at trial, he would
have been cross-examined about his motive to fabricate. His testimony about Kari
Kheyl would have been weighed against that of CPL Morlock, testimony of the other
witnesses, and the other physical and circumstantial evidence presented at trial.
This evidence, included among other evidence, appellant’s admissions to other
witnesses about the murders, appellant obtaining and using the AK-47 as a drop
weapon, the substantial inconsistencies within appellant’s own testimony regarding


22
  On appeal, appellant has not assigned as error an allegation of ineffective
assistance of counsel. Based on our review of SSG Bram’s and SPC Wagnon’s
testimony at the DuBay hearing and our review of the record of trial, we do not find
any basis to overcome the strong presumption that counsel “have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgement.” See Strickland v. Washington, 466 U.S. 668, 690 (1984).
We recognize there is a wide chasm between failing to exercise due diligence to
discover evidence at trial and whether it is constitutionally deficient performance
not to attempt to discover that particular evidence at all. Indeed, sometimes it is a
more prudent strategy to argue an absence of evidence, rather than discover evidence
that may then be used to further the government’s cause. Additionally, during the
DuBay hearing, appellant told the military judge he thought his defense counsel was
diligent and he did not think his counsel was ineffective at trial.




                                          43
GIBBS—ARMY 20110998

appellant’s tactical combat experience and implausible actions while clearing a
Taliban Commander’s compound. In light of SSG Sprague’s credible testimony that
the AK-47 did not have a round in the chamber and was fully functional, and SPC
Winfield’s messages to his parents confirming appellant’s relationship to both the
AK-47 and conspiracy just prior to the murder, SPC Wagnon’s testimony regarding
Kari Kheyl is not sufficiently believable to make a more favorable result probable.
Specialist Wagnon’s other testimony regarding the conversation he had with SPC
Winfield would have been inadmissible.

       While portions of SSG Bram’s testimony were sufficiently believable, it does
not make a more favorable result probable. The testimony had limited impeachment
value and overall was damaging in appellant’s case. As previously discussed, SSG
Bram’s testimony would have provided limited impeachment evidence focused on
one piece of the timeframe of the AK-47’s whereabouts and one potential
inconsistent statement by CPL Morlock. His testimony also would confirm that the
AK-47 was stored in his Stryker for use as a drop weapon and it was no longer there
upon his return from leave. SSG Bram also would have provided the government
with a prior consistent statement to bolster CPL Morlock’s testimony that the AK-47
was specifically used at the Kari Kheyl shooting. This statement was made before
CPL Morlock would have had a motive to fabricate the allegations against appellant.

        Lastly, the evidence presented against appellant was overwhelming when
compared with the potential impeachment value of the evidence provided by SPC
Wagnon and SSG Bram. Considering all the other evidence presented at appellant’s
trial, evidence from SPC Wagnon and SSG Bram was unlikely to produce a
“substantially more favorable result for appellant.” R.C.M. 1210(f)(2)(C).

                                  CONCLUSION

      Upon consideration of the entire record, the findings of guilty and the
sentence are correct in law and fact and are AFFIRMED.

      Chief Judge BERGER and Senior Judge BURTON concur.


                                       FOR THE
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM
                                       MALCOLM H.  H. SQUIRES,
                                                      SQUIRES, JR.
                                                               JR.
                                       Clerk of Court
                                       Clerk of Court




                                         44
