UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                                               Before the Court Sitting En Banc
                                                                  Appellate Military Judges

                                                          UNITED STATES, Appellee
                                                                       v.
                                                        Private E1 KEITH R. HAWKINS
                                                         United States Army, Appellant

                                                                     ARMY 20120070

               Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell
                                 Timothy Grammel, Military Judge
                    Lieutenant Colonel Jeff A. Bovarnick, Staff Judge Advocate


For Appellant: Lieutenant Colonel Imogene M. Jamison, JA; Major Jacob D.
Bashore, JA; Lieutenant Colonel Katherine A. Lehmann, JA (on brief); Colonel
Kevin Boyle, JA; Major Vincent T. Shuler, JA; Lieutenant Colonel Katherine A.
Lehmann, JA (on brief in response to specified issues).

For Appellee: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Catherine L. Brantley, JA; Captain T. Campbell Warner, JA (on brief and on
brief in response to specified issues).

                                                                       18 April 2014

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

CAMPANELLA, Judge:

       A military judge sitting as a general court-martial convicted appellant,
pursuant to his pleas, of failing to obey a lawful general regulation by possessing
synthetic cannabinoids and wrongfully manufacturing methamphetamine, in
violation of Articles 92 and 112a, Uniform Code of Military Justice, 10 U.S.C.
§§ 892 and 912a [hereinafter UCMJ]. The military judge sentenced appellant to a
bad-conduct discharge, confinement for ten months, and forfeiture of all pay and
allowances. The convening authority approved only so much of the sentence as
provided for a bad-conduct discharge and confinement for nine months. 1 The
                                                            
1
  The convening authority deferred automatic and adjudged forfeitures until action.
At action, the convening authority waived the automatic forfeitures for a period of
six months. The pretrial agreement limited the maximum period of confinement to
fifteen months. The record contains no explanation of the one-month reduction in
confinement provided by the convening authority in his action.
HAWKINS — ARMY 20120070

convening authority credited appellant with forty-four days against the sentence to
confinement.

       This case is before us for review pursuant to Article 66, UCMJ. Appellant
raises one assignment of error, claiming the Article 112a, UCMJ, charge and its
specification of manufacturing methamphetamine should be dismissed. Appellant
asserts the government possessed exculpatory information that indicated the
substance produced was not actually methamphetamine. Appellant further asserts
the government’s failure to disclose this information is a constitutional due process
violation. We find this matter warrants discussion and relief.

                                                               BACKGROUND

       Appellant lived on-post at Fort Campbell, Kentucky. He shared his two-
bedroom quarters with another soldier, Private First Class (PFC) BB, and that
soldier’s wife, TS. 2

       On 25 September 2011, PFC BB asked appellant to purchase pseudoephedrine
for him and his wife, expressly intending to use it to manufacture methamphetamine.
Knowing PFC BB’s intention, appellant purchased the pseudoephedrine and gave it
to PFC BB and TS.

      That same day, appellant became aware that PFC BB was manufacturing
methamphetamine inside appellant’s quarters when he smelled “chemicals”
emanating from the laundry room. When appellant checked to see what was causing
the odor, he found PFC BB and TS “making meth.” Appellant, surprised that PFC
BB was manufacturing methamphetamine inside his quarters, told PFC BB to
immediately stop and to leave the house by the next morning.

      The next morning, appellant observed that “everything [was] out of the
house,” but PFC BB and his wife had not left. Appellant and PFC BB then went to
physical training. Afterwards, PFC BB asked appellant again to buy him
pseudoephedrine. Again, knowing PFC BB’s purpose was to manufacture
methamphetamine, appellant bought PFC BB the pseudoephedrine. Appellant also
purchased synthetic cannabinoids that morning.

       Later that day, appellant reported PFC BB’s methamphetamine manufacturing
enterprise to his chain of command and gave his consent to search his quarters. A
search was conducted and a makeshift methamphetamine lab was found. The
dangerous materials from the lab were destroyed by local civilian law enforcement at
the request of Fort Campbell authorities. The remaining lab materials and chemicals

                                                            
2
  Private First Class BB and his wife were living in appellant’s quarters pending
approval of a Basic Housing Allowance request.  

                                                                   2
HAWKINS — ARMY 20120070

were seized by Army criminal investigators and sent to a laboratory for drug testing.
Synthetic cannabinoids were also seized from the home.

      The original charges preferred against appellant included, inter alia, Article
112a, UCMJ, wrongful manufacture of methamphetamine, as well as attempted
manufacture of methamphetamine, a violation of Article 80, UCMJ.

       Prior to the government receiving the drug test results from the laboratory,
appellant entered into a pretrial agreement with the government to plead guilty to the
wrongful manufacture of one gram of methamphetamine, and to an Article 92,
UCMJ, offense for failing to obey a lawful general regulation by possessing
synthetic cannabinoids. In exchange, the government agreed to limit appellant’s
sentence to confinement and to dismiss with prejudice all of the charges and
specifications to which appellant pleaded not guilty, including the attempted
manufacture of methamphetamine.

       As part of the pretrial agreement, appellant agreed to enter into a stipulation
of fact with the government. A civilian police seizure report attached as an
enclosure to the stipulation of fact indicated that 5.5 grams of methamphetamine had
been seized from appellant’s home.

       On 24 January 2012, consistent with the pretrial agreement, the providence
inquiry, and the stipulation of fact, the military judge accepted appellant’s pleas of
guilty and dismissed with prejudice the Article 80, UCMJ, charge and its
specification of attempted manufacture of methamphetamine.

       While in confinement, appellant encountered PFC BB, who had been tried
after appellant’s court-martial. Private First Class BB informed appellant that PFC
BB and his wife had apparently been unsuccessful in their attempts to actually create
methamphetamine in appellant’s quarters on 25 and 26 September 2011.
Accordingly, PFC BB only pleaded guilty to and was convicted of attempted
manufacture of methamphetamine.

      By the time appellant learned this information from PFC BB, the convening
authority had already taken action on appellant’s case.

       Appellant asks this court to consider materials outside his record of trial, but
within PFC BB’s record of trial, to determine whether the government possessed
exculpatory information or not. The materials from PFC BB’s record of trial
include: (1) an excerpt from PFC BB’s Article 32, UCMJ, pretrial investigation’s
non-verbatim summarized transcript; (2) PFC BB’s offer to plead guilty; (3) the
stipulation of fact from BB’s case; (4) PFC BB’s charge sheet; and (5) an excerpt
from PFC BB’s trial transcript.




                                           3
HAWKINS — ARMY 20120070

        Private First Class BB’s Article 32, UCMJ, investigation took place on
7 February 2012, fourteen days after appellant’s guilty plea and conviction. The
investigation transcript contains summarized testimony from an Army drug
suppression agent who testified that on the preceding Friday (3 February 2012),
Army criminal investigators received the chemical laboratory results for the
substances submitted for testing from the methamphetamine laboratory crime scene
at appellant’s home. In response to government questions about the government
laboratory results, the agent stated “no meth was revealed, just the precursors to
create meth such as Sudafed,” but on cross examination, the agent further stated “we
are still unsure of [sic] what [PFC BB] had at the scene was meth.” In PFC BB’s
case, the government stipulated that the unknown substance created was not, in fact,
methamphetamine.

       The actual laboratory results are not included in the materials submitted to
this court for review by appellant. Appellant submits that, to date, the government
has not provided him the actual results of the laboratory drug tests. Appellate
defense counsel has not asked this court to order such a disclosure. There is nothing
in appellant’s record of trial or appellate filings to suggest that appellant requested
discovery of such evidence before, during, or after his court-martial.

                              LAW AND DISCUSSION

       At the outset, we note this opinion addresses the government’s obligation to
disclose exculpatory information involving appellant’s case that is within its
possession post-trial but prior to action by the convening authority.

       This opinion does not address Rule for Courts-Martial [hereinafter R.C.M.]
1210 or Article 73, UCMJ, regarding appellant’s right to petition for a new trial
based on newly discovered evidence. Nor do we address R.C.M. 910(j) regarding
appellant’s waiver of objections to the factual basis upon which his plea of guilty
was made. To the extent that we consider information outside the record, we do so
for the purposes of analyzing the collateral matter of due process—not for legal
sufficiency purposes. See United States v. Roane, 43 M.J. 93, 99 (C.A.A.F. 1995);
United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993); United States v. Davenport,
9 M.J. 364, 367 (C.M.A. 1980); United States v. Peele, 46 M.J. 866, 868 (Army Ct.
Crim. App. 1997).

       Further, this opinion does not address R.C.M. 701(d) which places a time
limit on the discovery requirement stating, “[i]f, before or during the court-martial,
a party discovers additional evidence or material previously requested or required to
be produced . . . that party shall promptly notify the other party or the military judge
of the existence of the additional evidence or material.” R.C.M. 701(d) (emphasis
added).




                                           4
HAWKINS — ARMY 20120070

       In his assignment of error, appellant asserts the Article 112a, UCMJ, charge
and its specification should be dismissed based on a due process violation.
Specifically, appellant alleges: (1) before the convening authority took action, the
government possessed exculpatory information; (2) the government did not disclose
this information; and (3) this information indicated the substance produced in
appellant’s case was not methamphetamine.

       Appellant argues that although the exculpatory information, in the form of
negative laboratory results, came to light after his guilty plea, the Supreme Court’s
decision in Brady v. Maryland, 373 U.S. 83 (1963), nonetheless requires the
government to provide him with exculpatory information—even after the gavel has
fallen. Appellant asserts the government’s failure to disclose this information
deprived him of his right to constitutional due process and the post-trial clemency
rights afforded him under the UCMJ and Rules for Courts-Martial. Appellant further
asserts government counsel had an ethical obligation to provide the laboratory
results to the defense. Appellant claims the appropriate remedy in this case is
dismissal of the charge and its specification because the military judge previously
dismissed with prejudice the lesser included offense of attempt to manufacture
methamphetamine. In the alternative, appellant asks this court to affirm only the
offense of attempted manufacture of methamphetamine. We find under the facts of
this case, a Brady violation occurred in that the government, prior to convening
authority action, had in its possession exculpatory information material to guilt or
punishment that it did not disclose. As such, we provide relief in our decretal
paragraph.

                      Application of Brady in the Post-Trial Context

       The Due Process Clauses of the Fifth and Fourteenth Amendments impose
certain duties upon the government to ensure “that ‘justice shall be done’” in all
criminal prosecutions. United States v. Agurs, 427 U.S. 97, 111 (1976) (quoting
Berger v. United States, 295 U.S. 78, 88 (1935)). In Brady, the Supreme Court held
“the suppression by the prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or the bad faith of the prosecution.” 373 U.S. at 87.

       In subsequent cases, the Supreme Court provided guidance on judging Brady
claims. To establish that a Brady violation undermines a conviction, a convicted
defendant must make each of three showings: (1) the evidence at issue is “favorable
to the accused, either because it is exculpatory, or because it is impeaching;” (2) the
government suppressed the evidence, “either willfully or inadvertently;” and (3) the
information was material in that “prejudice . . . ensued.” Strickler v. Greene, 527
U.S. 263, 281 (1999); see also Banks v. Dretke, 540 U.S. 668, 691 (2004). A
successful Brady claim, by its nature, calls into question the underlying conviction
or sentence. Because it is a constitutional obligation, the Supreme Court later
instructed that Brady evidence must be disclosed regardless of whether the defendant

                                           5
HAWKINS — ARMY 20120070

makes a request for exculpatory evidence. Agurs, 427 U.S. at 107. With regard to
materiality, “evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.” United States v. Bagley, 473 U.S. 667, 682 (1985) (separate opinion
of Blackmun, J., joined by O’Connor, J.). A reasonable probability is defined as “a
probability sufficient to undermine confidence in the outcome.” Id.

      In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court explained:

             [A] showing of materiality does not require demonstration
             by a preponderance that disclosure of the suppressed
             evidence would have resulted ultimately in the defendant's
             acquittal . . . . Bagley’s touchstone of materiality is a
             “reasonable probability” of a different result, and the
             adjective is important. The question is not whether the
             defendant would more likely than not have received a
             different verdict with the evidence, but whether in its
             absence he received a fair trial, understood as a trial
             resulting in a verdict worthy of confidence. A “reasonable
             probability” of a different result is accordingly shown
             when     the    Government’s      evidentiary  suppression
             “undermines confidence in the outcome of the trial.”

Id. at 434 (citing Bagley, 473 U.S. at 678).

      The Supreme Court elaborated:

             [O]nce a reviewing court applying Bagley has found
             constitutional error there is no need for further harmless-
             error review. Assuming arguendo that a harmless-error
             enquiry were to apply, a Bagley error could not be treated
             as harmless, since a reasonable probability that, had the
             evidence been disclosed to the defense, the result of the
             proceeding would have been different, necessarily entails
             the conclusion that the suppression must have had
             substantial and injurious effect or influence in determining
             the . . . verdict.

Kyles, 514 U.S. at 435 (internal quotation marks and citations omitted).

      Under Brady and its progeny, it is firmly settled that a criminal defendant has
a constitutional right to obtain all material evidence—known to the government




                                           6
HAWKINS — ARMY 20120070

before and during trial—that is favorable to the defendant’s case. The Supreme
Court’s application of Brady in a post-trial context is less clear. 3

       Numerous federal and state courts have extended Brady in the post-conviction
context. 4 However, in 2009, the Supreme Court found the government does not have
a continuing Brady obligation post-conviction, and the Constitution does not require
states to turn over evidence post-conviction for DNA testing. District Attorney’s
Office for Third Judicial District v. Osborne, 557 U.S. 52 (2009). The Court
reasoned that Brady provides no support for such a constitutional right and that
“‘once a defendant has been afforded a fair trial and convicted . . . the presumption
of innocence disappears.’” Id. at 69 (quoting Herrera v. Collins, 506 U.S. 390, 399
(1993)). The convicted have “only a limited interest in post-conviction relief.”
Osborne, 557 U.S. at 69. However, here, we readily distinguish Osborne’s
applicability to the current scenario.

       Osborne dealt with a collateral attack—not a scenario where the conviction
was not yet final. Both the conviction and sentence had already been affirmed on
direct appeal in Osborne. Id. at 58. Furthermore, Osborne sought the opportunity to
access and test DNA evidence already in the possession of the government with the
hope of producing yet uncreated exculpatory results. While finding post-conviction
due process rights are “not parallel” to trial due process rights, the Supreme Court
did not unambiguously foreclose the possibility that Brady obligations may continue
through direct appeal. Id. at 69.

       Prior to Osborne, the Supreme Court signaled that a prosecutor’s Brady duties
may indeed survive the conclusion of trial. See Imbler v. Pachtman, 424 U.S. 409,
427 n.25 (1976) (observing that after a conviction, prosecutors are “bound by the
ethics of [their] office to inform the appropriate authority of after-acquired or other
information that casts doubt upon the correctness of the conviction”). As far back as
1915, the Supreme Court held that when a state grants a criminal defendant a right to
direct appeal, “the proceedings in the appellate tribunal are . . . part of the process
                                                            
3
 Brendan Max, The Duty to Disclose Exculpatory Evidence Discovered After Trial,
94 Ill. B.J. 138 (2006).
4
  High v. Head, 209 F.3d 1257 (11th Cir. 2000) (a state’s duty to disclose is
ongoing); Thomas v. Goldsmith, 979 F.2d 746 (9th Cir. 1992) (a state should turn
over exculpatory evidence relevant to a habeas corpus proceeding); Bowen v.
Maynard, 799 F.2d 593 (10th Cir. 1986) (the duty to disclose is ongoing and extends
to all stages of the judicial process); Curl v. Superior Court, 44 Cal. Rptr. 3d 320
(Cal. Ct. App. 2006); Duckett v. State, 918 So.2d 224 (Fla. 2005), cert. denied, 549
U.S. 846 (2006) (noting the existence of a continuing duty to disclose); State v.
Bennett, 81 P.3d 1 (Nev. 2003) (the state has an affirmative duty to disclose before
during and after defendant has been convicted); People v. Garcia, 22 Cal. Rptr. 2d
545 (Cal Ct. App. 1993) (the duty to disclose does not end when trial is over).       

                                                               7
HAWKINS — ARMY 20120070

of law under which he is held in custody by the state, and to be considered in
determining any question of alleged deprivation of his life or liberty contrary to the
Fourteenth Amendment.” Frank v. Mangum, 237 U.S. 309, 327 (1915); see also
Evitts v. Lucey, 469 U.S. 387, 393 (1985) (“[I]f a State has created appellate courts
as an integral part of the . . . system for finally adjudicating the guilt or innocence of
a defendant, . . . the procedures used in deciding appeals must comport with the
demands of the Due Process and Equal Protection Clauses of the Constitution.”)
(internal quotation marks and citations omitted).

      More recently, the United States Court of Appeals for the Seventh Circuit
observed that:

                             [A] defendant’s conviction is not final as a matter of law
                             until he exhausts the direct appeals afforded to him, and,
                             until that exhaustion, he is entitled to the full breadth of
                             due process available. See also Gonzalez v. Thaler, 132
                             S.Ct. 641, 645–46, 652–54 . . . (2012) (holding that “[f]or
                             petitioners who pursue direct review all the way to [the
                             Supreme Court], the judgment becomes final at the
                             conclusion of direct review—when this Court affirms a
                             conviction on the merits or denies a petition for certiorari
                             [and that] [f]or all other petitioners, the judgment becomes
                             final at the expiration of the time for seeking such
                             review—when the time for pursuing direct review in this
                             Court, or in state court, expires”); Skinner v. Switzer, 131
                             S.Ct. 1289, 1303 . . . (2011) (Thomas, J., dissenting)
                             (explaining that “[t]rial procedures are used to initially
                             convict a prisoner; appellate procedures review the
                             validity of that conviction before it becomes final; and
                             collateral review procedures permit challenge to the
                             conviction after it is final”) (emphasis added).

Fields v. Wharrie, 672 F.3d 505, 515 (2012).

       The Seventh Circuit further instructed that the government’s Brady
obligations “remain in full effect on direct appeal and in the event of retrial because
the defendant's conviction has not yet become final, and his right to due process
continues to demand judicial fairness.” Id. 5

                                                            
5
  See also Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) (“It is not feasible or
desirable to specify the extent or timing of disclosure Brady and its progeny require,
except in terms of the sufficiency, under the circumstances, of the defense's
opportunity to use the evidence when disclosure is made. Thus disclosure prior to
trial is not mandated. Indeed, Brady requires disclosure of information that the

                                                               8
HAWKINS — ARMY 20120070


                     Brady Application Post-Trial and Prior to Convening Authority Action

       Although a military member may have been convicted and sentenced at a
court-martial, the “direct appeal” process is not complete. “Direct appeal” in the
military continues at least through the respective Court of Criminal Appeals review.
An accused’s appeal to his or her respective Court of Criminal Appeals (“service
court”) in qualifying cases is a matter of right, whereas review by the Court of
Appeals for Armed Forces (CAAF) is discretionary in most cases. 6 See R.C.M.
1209.
       More significantly, however, even before a military case is reviewed by a
service court on direct appeal, it is first reviewed by the court-martial convening
authority (CA). Congress has provided servicemembers with a unique additional
right of review for convicted military personnel whereby the CA reviews each case,
pursuant to Article 60, UCMJ. This review is performed and action taken, in most
cases, with the advice of specifically assigned judge advocates pursuant to Articles 6
and 60(d), UCMJ.

        Article 60, UCMJ, also directs the CA to take action on the findings and
sentence of a court-martial only after consideration of any matters submitted by the
accused. The CA is empowered with the “sole discretion,” as a “matter of command
prerogative” after receiving a written recommendation from a staff judge advocate
officer, to “approve, disapprove, commute, or suspend the sentence in whole or in
part.” UCMJ art. 60. This review precedes an appeal by the accused to his or her
respective service’s court of criminal appeals pursuant to Article 66, UCMJ, and
their right to petition for review by the CAAF pursuant to Article 67, UCMJ.    
               
       The accused may submit any matter to the CA that may reasonably tend to
affect the CA’s decision whether to approve or disapprove any findings of guilty, the
sentence, or any portion thereof. R.C.M. 1105. Submissions may include new
                                                                                                                                                                                                
prosecution acquires during the trial itself, or even afterward.”) (emphasis added)
(internal citations omitted).  
6
 If the sentence, as approved by the convening authority, includes death, a bad-
conduct discharge, a dishonorable discharge, dismissal of an officer, or confinement
for one year or more, the case is reviewed by the Court of Criminal Appeals of that
military Service. Pursuant to Article 67(a), UCMJ, the Court of Appeals for the
Armed Forces shall review the record in: 1) all cases in which the sentence, as
affirmed by a Court of Criminal Appeals, extends to death; 2) all cases reviewed by
a Court of Criminal Appeals which the Judge Advocate General orders sent to the
Court of Appeals for the Armed Forces for review; and 3) all cases reviewed by a
Court of Criminal Appeals in which, upon petition of the accused and on good cause
shown, the Court of Appeals for the Armed Forces has granted a review.


                                                                                              9
HAWKINS — ARMY 20120070

evidence; clarification of matters presented at trial; allegations of errors affecting
the legality of the findings or sentence; portions or summaries of the record and
copies of documentary evidence offered or introduced at trial; matters in mitigation
which were not available for consideration at the court-martial; and clemency
recommendations by any member, the military judge, or any other person. R.C.M.
1105(b).

       Currently, the CA has wide discretion and may for any or no reason,
disapprove the findings, or may dismiss any offense, or change the finding of guilty
of any offense to one of a lesser included offense. The CA may also disapprove all,
or any part of, a legal sentence. The CA also has the power to reduce or suspend a
sentence, or change the punishment to one of a different nature. 7 Additionally, the
CA has the ability under R.C.M. 1107 to consider matters outside the record and to
order a rehearing should any issue arise that warrants further examination.

       Prior to taking final action pursuant to Article 60, UCMJ, the convening
authority must consider the results of trial, the recommendation of the Staff Judge
Advocate pursuant to R.C.M. 1106, and any post-trial clemency matters submitted
by the accused and his attorney.

       Given this case had not yet reached the convening authority when the
investigator offered testimony at PFC BB’s Article 32, UCMJ, hearing relating to
the purported negative drug laboratory test results, we find the government’s Brady
obligations with respect to those lab results applied in this setting. 8 We take issue
with the government’s failure to disclose “previously-produced forensic evidence,
the testing of which concededly could prove beyond any doubt that the defendant did
not commit the crime for which he was convicted . . . .” Harvey v. Horan, 285 F.3d
298, 317 (4th Cir. 2002) (Luttig, J., respecting the denial of rehearing en banc). It
would seem “the very same principle of elemental fairness that dictates pre-trial
production of all evidence dictates post-trial production” as well. Id.
       Here, the government had in its possession presumably exculpatory laboratory
results during the pendency of appellant’s R.C.M. 1105 and 1106 submission which

                                                            
7
   These provisions were in effect during the pendency of this case. It is subject to
change after 24 June 2014, when Congressional modification to CA power will take
effect.    See 10 U.S.C. § 860 (2012), amended by National Defense Authorization Act
for Fiscal Year 2014, Pub. L. No. 113-66 §1702(b), 127 Stat. 672, 955–58 (2013).  
 
8
   Brady and its progeny do not require “the prosecution to review records that are
not directly related to the investigation of the matter that is the subject of the
prosecution, absent a specific request indentifying the entity, the type of records,
and the type of information.”  United States v. Williams, 50 M.J. 436, 443 (C.A.A.F.
1999); see also United States v. Joseph, 996 F.2d 36 (3d Cir. 1993).
 

                                                               10
HAWKINS — ARMY 20120070

it did not provide to appellant or the CA. 9 This new information suggested appellant
may have been not guilty of a charge of which he was found guilty. This
exculpatory evidence, in the possession of the government before convening
authority action, should have been turned over to the defense to allow them the
opportunity to present it to the convening authority. 10

                                           Materiality of the Non-disclosed Information

      Having determined that the laboratory results should have been disclosed, we
now turn to materiality.

       In a case in which the defense either did not make a discovery request or
made only a general request for discovery, appellant will be entitled to relief only by
showing that there is a “reasonable probability” of a different result at trial if the
undisclosed evidence had been disclosed. Bagley, 473 U.S. at 682  (opinion of
Blackmun, J., joined by O’Connor, J.); Hart, 29 M.J. at 410; see also Cone v. Bell,
556 U.S. 449 (2009) ; Strickler, 527 U.S. at 290. It simply is not sufficient,
therefore, to claim that “there is a reasonable possibility that . . . testimony might
have produced a different result . . . .” Strickler, 527 U.S. at 291. Appellant’s
burden is to “establish a reasonable probability of a different result.” Id.

      While the investigator’s testimony is not dispositive as to what was
manufactured that day in appellant’s laundry room—that is not the question we must
address. 11 The question is whether, in the absence of the withheld laboratory results,
the appellant received a fair trial “worthy of confidence” in the outcome. Kyles, 514
                                                            
9
  We note that we must presume, although we are unable to confirm, the laboratory
results were exculpatory because the government still has not disclosed the results.
10
  Given that the actual laboratory results are the property of the United States
government, there is no way the defense counsel could have obtained the lab results
without the intervention and assistance of the government.
11
   This case involves exculpatory information versus impeachment evidence. Under
Brady, failure to disclose impeachment evidence is viewed with no less significance
than a failure to disclose exculpatory evidence; however, there is a distinction
between exculpatory information and impeachment information in practical
application of the materiality analysis. Exculpatory evidence primarily includes
evidence which tends to directly negate an element of the charged offense by its very
nature. In this case, if true, the objective scientific information could make the trial
result a factual impossibility in that the substance produced was not
methamphetamine. In contrast, impeachment evidence consists of evidence which
tends to impeach or contradict a government witness. In those cases, it would be
more difficult to prove materiality.
 

                                                                11
HAWKINS — ARMY 20120070

U.S. at 434. We, therefore, ask if appellant had known of the laboratory results and
been able to present them to the convening authority, would they have brought into
question the factual underpinning of a charge of which appellant was found guilty.
Again, the standard is one of whether the facts are called into question, not whether
that question can be refuted.

      If appellant had knowledge of the information prior to CA action, appellant
could have requested the CA consider that information and approve only a
conviction for an attempt to manufacture methamphetamine. Not disclosing the
information in a timely fashion deprived appellant of that opportunity.

       Given that the factual predicates for the Article 112a, UCMJ, charge and
specification in PFC BB’s case and appellant’s case are the same, we find there is a
reasonable probability of a different result had the information been disclosed and
presented. Specifically, there is a reasonable probability that the CA would have
approved only an attempt to manufacture methamphetamine in appellant’s case just
as he did in appellant’s co-actor’s case. 12

                                                               Remedy

      Having found that a Brady violation occurred before action, we must
determine the appropriate remedy. We could return the case to the convening
authority or authorize a fact finding hearing. Out of judicial economy and consistent
with appellant’s requested relief, however, we will affirm only the offense of
attempt to manufacture methamphetamine. See UCMJ art. 79. That is not only what

                                                            
12
   The dissent asserts that in any race to the courthouse, certain risks are taken and
that discovery of exculpatory evidence may be one of these risks. United States v.
Hawkins,      M.J.    , slip op. at    (Army Ct. Crim. App.       Apr. 2014) (Krauss,
J., dissenting). This is certainly true in a mature judicial system and is a legitimate
tactical decision made by an accused with the advice of his attorney. However, one
of those assumed risks should not be a deprivation of the process that is still due.

It would be a mistake to read the majority opinion as suggesting appellant is getting
the benefit of his bargain pretrial and then getting a second bite at the bargain post-
trial. Instead, in this case we examine the government’s obligations to ensure fair
process throughout the court-martial—which of necessity includes the government’s
duties through action by the CA. These duties include the government’s obligation
to ensure material evidence of guilt or innocence is brought to the attention of trial
participants. If the CA has authority to disapprove a finding of guilty post-trial as
he does under the law applicable to this case, he should have matters material to
such a determination prior to taking action—regardless of whatever tactical
calculation the accused and his counsel may have made.


                                                                 12
HAWKINS — ARMY 20120070

the appellant requests, but also the very best result with respect to findings he could
have hoped for if the case were returned for further disposition. 13

       While the military judge dismissed with prejudice the separately charged
Article 80, UCMJ, lesser included offense of attempted manufacture of
methamphetamine, we find this had no effect on the remaining greater charge of
which appellant was convicted. This court still has the authority to sustain a finding
of guilty as to the lesser included offense. UCMJ arts. 59(b), 79. The dismissal of
the lesser included offense merely effectuated R.C.M. 307(c)(4) which states that in
no case should both an offense and a lesser included offense thereof be separately
charged. Under the present circumstances, dismissal of the explicitly charged lesser
included offense does not preclude our full and complete review of the greater
offense or prevent this court from entering a finding of guilty to the lesser crime of
attempt.

                                                               CONCLUSION

       Upon consideration of the entire record and the submissions by the parties the
court affirms only so much of the finding of guilty of the Specification of Charge III
as finds that appellant did:

                             at or near Fort Campbell, Kentucky, between on or about
                             25 September 2011 and 26 September 2011, attempt to
                             wrongfully manufacture 1 gram of methamphetamine, in
                             violation of Article 80, UCMJ.

The remaining findings of guilty are AFFIRMED.

       Based on the foregoing, we are able to reassess the sentence on the basis of
the error noted and do so after conducting a thorough analysis of the totality of the
circumstances presented by appellant’s case and in accordance with the principles
articulated by our superior court in  United States v. Winckelmann, 73 M.J. 11, 15-16
(C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).
        
                                                            
13
   Looking at the context of the entire record regarding the attempt to manufacture
methamphetamine, in accordance with United States v. Redlinski, 58 M.J. 117, 119
(C.A.A.F. 2003), we find the accused was aware of the elements, both explicitly and
inferentially. Here, appellant admitted to purchasing pseudoephedrine knowing PFC
BB intended to manufacture methamphetamines. Appellant also admitted he
specifically intended to manufacture methamphetamines. Under these
circumstances, the record objectively reflects appellant understood his actions went
beyond preparatory steps and were a direct movement toward the commission of the
intended offense. Thus, an adequate factual predicate for the offense of attempted
manufacture was established in this case.  

                                                                   13
HAWKINS — ARMY 20120070

      In evaluating the Winckelmann factors, we first find no dramatic change in the
penalty landscape or exposure. Appellant’s maximum punishment for attempt was
the same as that for the underlying offense of manufacturing methamphetamine. See
Manual for Courts-Martial, United States (2012 ed.) pt. IV, ¶ 4(e). We note
appellant pleaded guilty in a judge alone court-martial. The nature of the remaining
offenses captures the gravamen of the original charges and the significant
circumstances surrounding appellant’s conduct remain admissible and relevant to the
remaining offenses. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial.

       After reassessing the sentence and the entire record, we AFFIRM the
approved sentence. We find this purges the error in accordance with Sales and
Winckelmann, and is also appropriate under Article 66(c), UCMJ. All rights,
privileges, and property, of which appellant has been deprived by virtue of that
portion of the findings set aside by this decision are ordered restored.

     Chief Judge PEDE, Senior Judge KERN, Senior Judge COOK, Senior Judge
LIND, Judge ALDYKIEWICZ, Judge HAIGHT, Judge MARTIN, and Judge
BORGERDING concur.


KRAUSS, Judge, dissenting:

       I agree that Brady disclosure requirements apply post-trial through the
completion of direct appeal that ends with the Supreme Court. See Imbler v.
Pachtman, 424 U.S. 409, 427 n.25 (1976); Fields v. Wharrie, 672 F.3d 505, 514-515
(7th Cir. 2012); Leka v. Portuondo 257 F.3d 89, 100 (2d Cir. 2001); United States v.
Behenna, 71 M.J. 228, 246 (C.A.A.F. 2012) (Effron, J. dissenting). Whether a
broader obligation to disclose under Article 46, Uniform Code of Military Justice
[hereinafter UCMJ] UCMJ and Rule for Courts-Martial [hereinafter R.C.M.] 701
extends beyond the end of trial is another question. See United States v. Lofton, 69
M.J. 386, 390 (C.A.A.F. 2011); United States v. Simmons, 38 M.J. 376, 381-82
(C.M.A. 1993) (distinguishing government obligations under R.C.M. 701 and Brady
v. Maryland, 373 U.S. 83 (1963)); Simmons, 38 M.J. at 383 (Gierke, J. concurring);
see also United States v. Campbell, 57 M.J. 134 (C.A.A.F. 2002) (discussing
parameters of appellate discovery). What we can say is that when an accused pleads
guilty without the benefit of full discovery he takes certain risks that bear certain
consequences, not the least of which is the risk that he and his lawyer may have
failed to appraise the quality of the government’s evidence against them. See
McMann v. Richardson, 397 U.S. 759, 770 (1970); Brady v. United States, 397 U.S.
742, 756-57 (1970); see also United States v. King, 30 M.J. 59, 68-69 (C.M.A. 1990)
(McMann applicable to direct appeals). Secondly, where an accused fails to request
discovery of the specific material in question and does nothing to discover that
material himself, where that material is reasonably discoverable by a reasonably


                                         14
HAWKINS — ARMY 20120070

diligent defense counsel, he is in no position to complain about what might
otherwise constitute a “Brady violation.” See Simmons, 38 M.J. at 382 (citing
United States v. Wilson, 901 F.2d 378 (4th Cir. 1990)); United States v. Hicks, 848
F.2d 1 (1st Cir. 1988); Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. 1984); United
States v. LeRoy, 687 F.2d 610, 618-19 (2d Cir. 1982), cert. denied, 459 U.S. 1174
(1983); Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), cert. denied, 396
U.S. 960 (1969); see also United States v. Garlick, 61 M.J. 346, 351 (C.A.A.F.
2005).

       Because here the appellant decided to plead guilty without the benefit of full
discovery, failed to request discovery of the type of material at issue, and failed to
discover the material himself despite the fact that such evidence was readily
discoverable, the question is not whether and how he obtains relief for any
ostensible Brady violation but whether his defense counsel was ineffective. See
Tollett v. Henderson, 411 U.S. 258 (1973); McMann, 397 U.S. 759; Simmons, 38
M.J. at 382 n.3; United States v. Moussaoui, 591 F.3d 263, 278-81, 285-90 (4th Cir.
2010) (applying Brady v. United States, 397 U.S. 742, and McMann, 397 U.S. 759,
on direct appeal relative to a Brady v. Maryland, 373 U.S. 83, issue); see also
United States v. Brozzo, 58 M.J. 284 (C.A.A.F. 2003) (summ. disp.) (setting aside
Air Force Court decision, United States v. Brozzo, 57 M.J. 564 (A.F. Ct. Crim. App.
2002), and remanding to Air Force Court for consideration of an ineffective
assistance of counsel issue under asserted Brady violation circumstances); United
States v. Brozzo, 60 M.J. 310 (C.A.A.F. 2004) (summ. disp.) (reversing the
subsequent Air Force Court decision, United States v. Brozzo, ACM 34542, 2003 WL
22047904 (A.F. Ct. Crim. App. 26 Aug. 2003), that held no ineffective assistance of
counsel, in light of a government concession of a prejudicial discovery violation,
referring to United States v. Jackson, 59 M.J. 330 (C.A.A.F. 2004), which ultimately
relied on R.C.M. 701 in its holding).

       Appellant bears the risk of regretting his plea of guilty by discovering, after
sentence is announced, that he and his lawyer may have jumped the gun a bit in
presuming that the substance seized by the police is what the government says it is
absent scientific test results being complete. The fact that he is now in possession
of summarized hearsay testimony of a police investigator from his co-conspirator’s
(PFC BB’s) Article 32, UCMJ, investigation that is ultimately ambiguous as to the
supposed nature of the substance at issue is not a substantial basis to question the
plea. See United States v. Stokes, 65 M.J. 651 (Army Ct. Crim. App. 2007); United
States v. Kelly, 32 M.J. 813 (N.M.C.M.R. 1991). 14
                                                            
14
  It is unclear whether or to what extent the majority relies on the stipulation of fact
in Private First Class BB’s case in deciding that the government in this case violated
the Brady rule. I find no authority, and the majority cites no authority, for the
proposition that a stipulated fact in one case is relevant and available to establish the
existence of the same fact in a related but separately adjudicated case. See Jacobs v.
Scott, 513 U.S. 1067 (1995) (Stevens, J. dissenting) (citing United States v. Powers,

                                                               15
HAWKINS — ARMY 20120070


       There is no doubt that if the United States were in possession of such
information before or at the time of appellant’s plea and failed to disclose it, we
would be in a significantly different situation. See, e.g., Garlick, 61 M.J. 346;
Simmons, 38 M.J. 376. It would certainly be the case if appellant had requested
discovery of such information and was willing to wait until its production before
entering a plea. See Garlick, 61 M.J. 346. However, appellant fails to establish a
R.C.M. 701 violation, let alone a Brady violation, prior to or at the time of his guilty
plea. He does not assert that with this information his plea would have been
different. He neither asserts nor does the record reveal any affirmative
misrepresentation by the United States, coercion to plead guilty, or infirmity of
appellant, at the time of his plea, to do so providently. Therefore, there is no
substantial basis to question that plea. See Tollett, 411 U.S. 258; McMann; 397 U.S.
759; Moussaoui, 591 F.3d 263; Garlick, 61 M.J. 346.

       The majority apparently blurs obligations under R.C.M. 701 and Brady and
thereby invites the perverse results that follow: an accused who enjoys no relief for
a Brady violation before his guilty plea now enjoys complete relief for a Brady
violation occurring after acceptance of his provident plea. See United States v. Ruiz,
536 U.S. 622 (2002); 15 United States v. Conroy, 567 F.3d 174, 178-79 (5th Cir.
2009); see also Moussaoui, 591 F.3d at 278-81; McCann v. Mangialardi, 337 F.3d
782, 787-88 (7th Cir. 2003). The majority does not hold that the higher disclosure
obligations of Article 46, UCMJ, and R.C.M. 701 apply post-conviction. See, e.g.,
United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004); Simmons, 38 M.J. 376.
There is good reason for this: R.C.M. 701(d) imposes a continuing duty to disclose
before or during the court-martial and is based on the federal rule of discovery and
American Bar Association standards relative to discovery before and during trial.
R.C.M. 701(d); R.C.M. 701(d) analysis at A21-34.

       Nor does the majority rely on this court’s authority under Article 66, UCMJ,
to rectify an injustice that warrants correction. See generally United States v.
Nerad, 69 M.J. 138 (C.A.A.F. 2010). Instead, it seems to rely more on a notion like
that of “military due process,” a concept recently cashiered by our superior court.
United States v. Vazquez, 72 M.J. 13, 19 (C.A.A.F. 2013). As here discussed, under
circumstances such as those present in this case, an appellant’s Constitutional rights
                                                                                                                                                                                                
467 F.2d 1089, 1097 (7th Cir. 1972) (Stevens, J. dissenting) (lamenting the ability of
the United States to take inconsistent positions in related cases)).
15
  It is also important to note that the majority opinion fails to recognize that
Supreme Court precedent certainly precludes advance of any Brady violation claim
relative to a guilty plea based on nondisclosure of material impeachment evidence.
United States v. Ruiz, 536 U.S. 622, 629 (2002); see also Moussaoui, 591 F.3d at
286.   
 

                                                                                             16
HAWKINS — ARMY 20120070

to the fairness and integrity of his convictions and sentence are enforced through the
Sixth Amendment guarantee of the effective assistance of counsel, not the Fifth
Amendment Due Process Clause. See Moussaoui, 591 F.3d at 279 (citing Blackledge
v. Perry, 417 U.S. 21, 29-30 (1974)), 285-90; Stokes, 65 M.J. at 656-57. 16

       Absent action by Congress or the President to define post-conviction
discovery rules for the military justice system, we are left with the responsibility to
enforce the Brady line of cases as fully defined by the common law. As referenced
above, this line of cases is not so forgiving of defense counsel’s failures or the
ramifications of tactical decisions made by counsel or choices made by an appellant
before and during a guilty plea. In addition, the Brady rule should not be applied
where a reasonably diligent defense counsel could have readily obtained the
evidence that was not otherwise disclosed. See Cobb v. Thaler, 682 F.3d 364, 378-
79 (5th Cir. 2012); Spirko v. Mitchell, 368 F.3d 603, 610-11 (6th Cir. 2004); Boss v.
Pierce, 263 F.3d 734, 740-41 (7th Cir. 2001); Barnes v. Thompson, 58 F.3d 971,
975-76 (4th Cir. 1995).

       Applying the law that we have to the question of whether the United States
denied appellant a fair opportunity for clemency or corrective action from the
convening authority in this case, because it failed to disclose favorable information
discovered after trial, appellant loses. 17 To the extent the Brady rule applies after
acceptance of a provident guilty plea, where an appellant fails to specifically request
discovery of such material and fails to obtain and exploit the matter himself when it
is readily available for discovery, he surrenders opportunity to fix blame on the
United States for what might otherwise warrant relief. See Wilson, 901 F.2d 378;
Garlick, 61 M.J. 346; Simmons, 38 M.J. 378.

      It is plain from this record that a reasonably diligent defense counsel could
have readily obtained the information about which appellant now complains.
                                                            
16
  And so much the better, a guilty plea relieves the United States of its burden to
prove an accused guilty at a fair trial, ensuring the accuracy of the plea through the
Sixth Amendment rather than the Fifth, under circumstances such as these, enforces
the responsible and prompt litigation and resolution of such matters at the trial level,
and before action, rather than rewarding happenstance discovery upon post
conviction review, while respecting a soldier’s choice to plead guilty after
consultation with his counsel. This is increasingly important as Congress limits the
discovery purpose of the Article 32, UCMJ, investigation and the authority and
discretion of the convening authority to effectively address issues like those in this
case.
17
       See District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S.
52, 69-70 (2009) (Supreme Court relying on post-trial discovery processes of
individual jurisdictions, on direct appeal, to resolve this sort of problem.).


                                                               17
HAWKINS — ARMY 20120070

Indeed, appellant’s trial defense counsel followed and made reference to PFC BB’s
case in his R.C.M. 1105 matters submitted to the convening authority. This fact is
enough to establish that appellant’s defense counsel could have readily discovered
PFC BB’s plea of attempt rather than manufacture of methamphetamine and the
reasons for it. 18 See, e.g., Westley v. Johnson, 83 F.3d 714, 725-26 (5th Cir. 1996)
(no Brady violation where transcript of co-defendant’s case containing favorable
information for defense was readily available) and cases cited above relevant to
readily discoverable evidence and Brady. Private First Class BB was tried by the
same office on charges referred by the same convening authority at the same
installation within a few months of appellant’s own trial and two weeks prior to
submission of appellant’s R.C.M. 1105 matters. Appellant offers no explanation as
to why he limited reference to PFC BB’s sentence rather than the full facts of PFC
BB’s case. It appears from the record and the affidavit of appellant’s counsel that
they both simply presumed the substance was methamphetamine without thinking
much further about it (there was apparently at least a field test that showed positive
for methamphetamine), as appellant now presumes it was not methamphetamine
based on the related proceedings discussed.

       Of course, when the United States accuses a soldier of manufacturing a
contraband substance, they will likely submit that substance for testing by an
accredited laboratory before subjecting that soldier to a potential criminal conviction
and deprivation of liberty. The defense can request such testing. The soldier can
also plead not guilty and force the government to prove his guilt.

       It makes sense that the government might forgo the expense and time of
testing that substance, if the accused soldier insisted he could enter a provident plea
without the need for any such confirmation. It also makes sense that that soldier’s
defense counsel might reasonably rely on his client’s insistence despite counsel’s
advice that laboratory testing might reveal otherwise and as long as the soldier
understood the risk he was taking by pleading guilty prior to full discovery. The law
requires we presume defense counsel did just that. See generally United States v.
Perez, 64 M.J. 239, 243 (C.A.A.F. 2006). More problematic for defense counsel is
that neither the record of trial, allied papers or appellate filings suggest he made any
                                                            
18
  The majority assumes the existence of an exculpatory laboratory report and its
contents though there is no such report in the record of either this case or the case of
appellant’s co-conspirator. In a case like this, where there is, at best, the possible
existence of conflicting evidence on the subject of the nature of an alleged
contraband substance, rather than evidence of actual innocence, for example, the
relief provided by the majority is rather extraordinary. Appellant admitted, under
oath and after being advised of his rights to trial, that the substance produced was
methamphetamine. He did this after receipt of a police report stating that the
substance seized was methamphetamine. Presuming the existence of a report of
scientific evidence, whose contents and accuracy are untested because of appellant’s
guilty plea, is frail basis to disapprove an otherwise reliable finding of guilty.

                                                               18
HAWKINS — ARMY 20120070

discovery request let alone request for the type of information at issue. But
appellant does not assert that his defense counsel was deficient in his advice or in
failing to present matter to the convening authority that might have obtained some
corrective action.

       Because appellant fails to make a cognizable Brady violation claim and
because he makes no claim of ineffective assistance of counsel, and the record is
insufficient by itself to establish ineffective assistance, I cannot join the majority
opinion.



                                         FOR
                                        FOR   THE
                                            THE    COURT:
                                                COURT:




                                        ANTHONY O. POTTINGER
                                         ANTHONY
                                        Acting           O. POTTINGER.
                                               Clerk of Court
                                         Acting Clerk of Court




                                           19
