       This opinion is subject to revision before publication


         UNITED STATES COURT OF APPEALS
                   FOR THE   ARMED FORCES
                         _______________

                       UNITED STATES
                           Appellee
                                v.
                Stephan H. CLAXTON, Cadet
               United States Air Force, Appellant
                          No. 17-0148
                   Crim. App. No. 38188 (rem)
            Argued May 9, 2017—Decided July 6, 2017
 Military Judges: J. Wesley Moore (trial) and Natalie D. Richard-
                      son (DuBay hearing)
   For Appellant: Major Jarett Merk (argued); Colonel Jeffrey
   G. Palomino.
   For Appellee: Major Mary Ellen Payne (argued); Colonel
   Katherine E. Oler (on brief); Gerald R. Bruce, Esq.
   Judge STUCKY delivered the opinion of the Court, in
   which Judges RYAN, OHLSON, and SPARKS, joined.
   Chief Judge ERDMANN filed a separate dissenting
   opinion.
                   _______________

   Judge STUCKY delivered the opinion of the Court.

   We granted review to determine whether the Govern-
ment’s failure to disclose to the defense that a Government
witness was an informant, in violation of Brady v. Mary-
land, 373 U.S. 83 (1963), was harmless beyond a reasonable
doubt. 1 We hold that it was and therefore affirm the judg-
ment of the United States Air Force Court of Criminal Ap-
peals (CCA).
                         I. Background
  On March 16, 2012, Appellant, a cadet attending the
United States Air Force Academy (USAFA), was charged

   1 We originally granted review of an additional issue concern-
ing whether Appellant’s conviction must be set aside in light of
our decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016).
The order granting review of that issue was vacated on March 20,
2017.
              United States v. Claxton, No. 17-0148/AF
                       Opinion of the Court

with sexual offenses against two women: one incident was in
March and the other in November 2011. At Appellant’s trial,
Cadet Eric Thomas testified for the prosecution as to both
incidents.
   Cadet Thomas entered the USAFA in August 2009.
Within the year, he was placed on academic probation,
where he remained until his disenrollment. Although Cadet
Thomas evidently had contact with agents of the Air Force
Office of Special Investigations (AFOSI) as early as 2010, he
became a registered confidential informant (CI) by Decem-
ber 2011 and remained so until after trial.
    Before trial, Appellant’s defense counsel submitted a dis-
covery request to the prosecution, dated February 3, 2012,
demanding “[t]he names, addresses and phone numbers of
all confidential witnesses, including, but not limited to, un-
dercover AFOSI’s or Security Forces’ informants and/or
agents.” The prosecution responded, alleging, “Nothing
known at this time. Will be provided if/when available.”
    A general court-martial composed of officers convicted
Appellant, contrary to his pleas, of attempted abusive sexual
contact and assault of a female cadet (MI), wrongful sexual
contact with a former cadet (SW), and assaulting two male
cadets. 2 Articles 80, 120, 128, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 880, 920, 928 (2012). In June
2012, the court sentenced Appellant to a dismissal,
confinement for six months, and forfeiture of all pay and
allowances. The convening authority approved the adjudged
sentence.
    On December 1, 2013, the Colorado Springs Gazette pub-
lished an article in which then-former Cadet Thomas identi-
fied himself as having been a CI for the AFOSI. Sixteen days
later, the CCA affirmed the approved findings and sentence.
United States v. Claxton, No. ACM 38188, 2013 CCA LEXIS
1045, at *14, 2013 WL 6913102, at *4 (A.F. Ct. Crim. App.
Dec. 17, 2013) (unpublished).
   On February 14, 2014, based on what he termed “newly
discovered evidence” that Cadet Thomas was a CI, Appellant
petitioned the Judge Advocate General of the Air Force

   2   Appellant was acquitted of wrongful sexual contact with KA.



                                 2
              United States v. Claxton, No. 17-0148/AF
                       Opinion of the Court

(JAG) for a new trial under Article 73, UCMJ, 10 U.S.C.
§ 873 (2012). According to Appellant’s trial defense counsel,
they were never notified that Cadet Thomas was a CI.
    Appellant filed a petition for review at this Court on Feb-
ruary 18, 2014. On March 5, 2014, Appellant asked the JAG,
in accord with Article 73, UCMJ, 3 to forward his request for
new trial to this Court. Noting that Appellant’s request for a
new trial was filed with the JAG before he filed his petition
for review at this Court, government appellate counsel op-
posed the JAG’s referring the petition for new trial to this
Court, asserting that the case was not pending before us at
the time of filing. Appellate government counsel failed to
advise the JAG that, because Appellant’s time for filing an
appeal at this Court had not expired, the case was still pend-
ing before the CCA, and should be referred there. United
States v. Owen, 6 C.M.A. 466, 470, 20 C.M.R. 182, 186
(1955). The JAG denied the petition on May 21, 2014, de-
termining “that the proposed evidence does not constitute
newly discovered evidence justifying a new trial.” 4
    On September 15, 2014, this Court granted review of the
Brady issue, set aside the decision of the CCA, and returned
the case to the JAG for remand to an appropriate convening
authority to order a hearing pursuant to United States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). United States
v. Claxton, 73 M.J. 478 (C.A.A.F. 2014) (summary disposi-
tion). On March 17, 2015, after the DuBay hearing was com-
pleted, but before the DuBay judge issued her findings, ap-
pellate government counsel notified her and the defense that
another witness also “was likely a confidential informant.”
   The DuBay judge found that the Commandant of Cadets 5
and other senior USAFA leaders, including the staff judge

   3  Article 73, UCMJ, provides: “[i]f the accused’s case is pend-
ing before a Court of Criminal Appeals or before the Court of Ap-
peals for the Armed Forces, the Judge Advocate General shall re-
fer the petition to the appropriate court for action.”
   4  As both the JAG and his deputy had retired, and no re-
placements had yet been appointed, the petition was denied by
Major General Robert G. Kenny, USAFR, “Performing the Duties
of The Judge Advocate General.”
   5   General Richard Clark.



                                 3
              United States v. Claxton, No. 17-0148/AF
                       Opinion of the Court

advocate 6 and the chief of justice, 7 knew that Cadet Thomas
was a CI for the AFOSI. Furthermore, “an AFOSI agent told
former Cadet Thomas not to reveal this status during his
pretrial interviews with trial defense counsel.” United States
v. Claxton, No. ACM 38188 (rem), 2016 CCA LEXIS 649, at
*9, 2016 WL 6575036, at *3 (A.F. Ct. Crim. App. Oct. 31,
2016) (unpublished). The DuBay judge also found no evi-
dence Appellant ever asked the prosecution to disclose
whether any witnesses were confidential informants. This
finding was clearly erroneous. Apparently she was not famil-
iar with the previous filings supplementing the record at
this Court, which had included the pretrial defense discov-
ery request. 8
   The DuBay judge noted that the prosecution had given
the defense evidence that could be used to impeach Cadet
Thomas: a copy of his cadet personnel records, which includ-
ed the fact that he was on conduct probation; and his squad-
ron commander’s recommendation that he be disenrolled. 9
    While the DuBay judge never resolved whether the pros-
ecution violated the disclosure obligations of Brady, she
ruled that the failure to provide the material to the defense
was harmless beyond a reasonable doubt. She acknowledged
in her findings that the Government had notified her that
another witness at Appellant’s trial was an AFOSI CI, but
as the convening authority had not expanded the scope of
the hearing, concluded she could neither review nor consider
it.
   The CCA concluded that the prosecution violated Brady
as “the CI information was potentially fertile grounds for

   6   Colonel Paul M. Barzler.
   7   Captain Nicklaus Reed.
    8 It appears that the DuBay judge was only provided a PDF of
the trial transcript, not the entire record, and she was never pro-
vided a copy of the defense discovery request. Nevertheless, Appel-
lant’s civilian attorney made clear in his opening statement dur-
ing the DuBay hearing that the defense discovery request had
specifically demanded disclosure of the identity of any witness
who was a confidential informant.
   9  The DuBay judge incorrectly states that the records provided
to the defense were those of Appellant.



                                  4
            United States v. Claxton, No. 17-0148/AF
                     Opinion of the Court

impeachment and thus was discoverable.” Claxton, 2016
CCA LEXIS 649, at *25, 2016 WL 6575036, at *8.
           Proper disclosure of Cadet Thomas’ CI status
       would have also revealed that from the time Cadet
       Thomas initiated the contact in November 2011
       through the time he testified for the Government at
       Appellant’s trial in June 2012, both Cadet Thomas
       and AFOSI knew he was going to face disenroll-
       ment. Former Cadet Thomas hoped to avoid disen-
       rollment and its collateral consequences of having
       to pay back the cost of tuition through his work
       with AFOSI.
Id. at *12, 2016 WL 6575036, at *4.
    Although no DuBay hearing had been conducted concern-
ing the second informant, whose AFOSI CI file was not part
of the record, the CCA also attempted to assess the weight of
the CI’s testimony while still trying to mask the CI’s identi-
ty. See id. at *8, 2016 WL 6575036, at *3. The CCA conclud-
ed that the prosecution had violated Brady but that it was
harmless beyond a reasonable doubt. Id. at *25, 2016 WL
6575036, at *8. The CCA reversed one of Appellant’s assault
consummated by a battery convictions, concluding it was
uncorroborated, but otherwise affirmed the approved find-
ings and sentence. Id. at *4, 2016 WL 6575036, at *2.
                        II. Discussion
    “[T]he suppression by the prosecution of evidence favor-
able to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, ir-
respective of the good faith or bad faith of the prosecution.”
Brady, 373 U.S. at 87; see Rule for Courts-Martial (R.C.M.)
701(a)(6) (requiring disclosure of evidence known to trial
counsel that tends to negate guilt, reduce guilt, or reduce
sentence). The Supreme Court has extended Brady, holding
“that the duty to disclose such evidence is applicable even
though there has been no request by the accused, and that
the duty encompasses impeachment evidence as well as ex-
culpatory evidence.” Strickler v. Greene, 527 U.S. 263, 280
(1999) (citations omitted).
    In military practice, “[w]here an appellant demonstrates
that the Government failed to disclose discoverable evidence
in response to a specific request or as a result of prosecutori-


                               5
             United States v. Claxton, No. 17-0148/AF
                      Opinion of the Court

al misconduct, the appellant will be entitled to relief unless
the Government can show that nondisclosure was harmless
beyond a reasonable doubt.” United States v. Roberts, 59
M.J. 323, 327 (C.A.A.F. 2004) (concluding that shifting the
burden to the government “reflects the broad nature of dis-
covery rights granted the military accused under Article 46[,
UCMJ, 10 U.S.C. § 846 (2012)]”). “Failing to disclose re-
quested material favorable to the defense is not harmless
beyond a reasonable doubt if the undisclosed evidence might
have affected the outcome of the trial.” United States v.
Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013).
            A. Wrongful Sexual Contact—Cadet MI
    Cadet MI became ill after consuming alcoholic beverages
with other cadets (Appellant, Cadet Thomas, and Cadet RH)
and fell asleep on one of the beds in Appellant’s room, after
which Cadets Thomas and RH left the room. Cadet MI testi-
fied that she woke up when someone got into the bed behind
her. Based on his body size, she thought it was Appellant.
She further testified that the person behind her “grabbed
her hand, pulled it behind her back, and placed it on his pe-
nis.” Claxton, 2016 CCA LEXIS 649, at *26, 2016 WL
6575036, at *8. When she got up from the bed, Cadet MI saw
Appellant in the bed. After she left the room, she told Cadet
Thomas and Cadet RH what happened. She made a restrict-
ed report of the incident a few days later. 10
   Approximately a month later, Cadet RH showed Cadet
MI a text message he claimed was a copy of a message that

   10   Under DoD’s Sexual Assault Prevention and Response
        (SAPR) Policy, Service members and their adult military
        dependents have two reporting options - Restricted Report-
        ing and Unrestricted Reporting. Under Unrestricted Re-
        porting, both the command and law enforcement are noti-
        fied. With Restricted (Confidential) Reporting, the adult
        sexual assault victim can access healthcare, advocacy ser-
        vices, and legal services without the notification to com-
        mand or law enforcement. Military retiree, DoD civilian,
        and DoD contractor victims currently may use only Unre-
        stricted Reporting.
Sexual Assault Prevention and Response Office, Department of
Defense, Restricted Reporting, http://sapr.mil/index.php/25-
reporting-options (last visited July 6, 2017).



                                6
           United States v. Claxton, No. 17-0148/AF
                    Opinion of the Court

Appellant sent to his mother, in which Appellant acknowl-
edged having “‘inappropriately touched a female a while
back.’” Id. at *27, 2016 WL 6575036, at *9.
    Seven months later, while investigating another sexual
incident, AFOSI agents learned that Cadet MI had been as-
saulted and went to talk to her. A week later Cadet MI
changed the status of her sexual assault report from re-
stricted to unrestricted. Cadet MI testified under a grant of
immunity because she had consumed alcohol while in the
dorms and underage.
    Appellant was interviewed by AFOSI agents twice. The
first time, he denied touching Cadet MI. “Three days later,
… he admitted getting in bed with Cadet MI when she was
intoxicated, pulling down his pants and underwear, placing
her hand on his leg and then positioning himself so her hand
touched his penis for 10–15 seconds.” Id. at *26–27, 2016
WL 6575036, at *9.
 B. Specifications Alleging Attempted Abusive Sexual Con-
tact of SW and Assaults of SW, Cadet DB and Cadet Thomas
   Approximately seven months after the incident involving
Cadet MI, Cadet Thomas invited a former cadet, SW, to din-
ner with several other cadets. Id. at *29–30, 2016 WL
6575036, at *10. Over the course of the evening, SW con-
sumed several alcoholic drinks. Id. at *30, 2016 WL
6575036, at *10. She became so intoxicated that the cadets
had to carry her to the car and eventually from the car to
their dormitory. Id., 2016 WL 6575036, at *10. They put SW
in Cadet Thomas’s bed; his roommate was asleep. Id., 2016
WL 6575036, at *10. Two of the cadets, neither of whom was
an informant, who described themselves as friends of Appel-
lant, testified that when they put SW in the bed, “her clothes
were not in disarray.” Id., 2016 WL 6575036, at *10.
      The two cadets testified that Appellant was also in
      the room at this time but failed to leave with them
      when they went with former Cadet Thomas to find
      a mattress for him to use since Ms. SW was in his
      bed. Instead, Appellant closed and locked the door
      behind them. The two cadets described knocking
      loudly on the door. A few minutes later, Appellant
      opened the door and the two cadets saw the room
      was dark.



                              7
           United States v. Claxton, No. 17-0148/AF
                    Opinion of the Court

Id. at *31, 2016 WL 6575036, at *10.
    Appellant tried to shut the door, but Cadet DB pulled
him out of the room. Id. at *33–34, 2016 WL 6575036, at
*11. Appellant struck that cadet in the jaw. Cadet Thomas
intervened, separating the two, and Appellant left the area.
Id. at *34, 2016 WL 6575036, at *11.
      When the light was turned on, the two cadets saw
      Ms. SW’s shirt was now pushed up to her breasts
      and her pants were unbuttoned with her under-
      wear showing. The resulting commotion awoke
      former Cadet Thomas’ roommate, who also saw Ms.
      SW’s pants unbuttoned and her shirt pulled up. It
      also brought a third cadet into the room, and he al-
      so observed her pants unbuttoned and unzipped
      and her shirt pulled up.
Id. at *31, 2016 WL 6575036, at *10.
   Appellant rushed back into the room and struck Cadet
DB in the face again. Id. at *34, 2016 WL 6575036, at *11.
When Cadet Thomas tried to separate the two, Appellant
“grabbed him by the throat, hit him in the face and pushed
him down on the bed until several cadets forcibly separated
the two.” Id., 2016 WL 6575036, at *11.
   For this conduct, Appellant was convicted of assault con-
summated by a battery and attempted abusive sexual con-
tact of SW, and two specifications of assault consummated
by a battery for striking Cadet DB and striking and choking
Cadet Thomas.
          When Appellant was interviewed under rights
      advisement on 5 and 8 December 2011, he was
      asked about the events of 4 November 2011. He de-
      scribed drinking with Ms. SW and other cadets (in-
      cluding former Cadet Thomas) while off campus.
      He told investigators that he ended up extremely
      intoxicated and was unable to remember all the
      events that transpired after they returned to the
      Academy. He recalled being in former Cadet Thom-
      as’ dormitory room with former Cadet Thomas, two
      other cadets and Ms. SW, who was talking incoher-
      ently and who then passed out in former Cadet
      Thomas’ bed. As the male cadets started leaving,
      Appellant remembered one of them saying some-
      thing offensive that led him to respond and then
      lock the door before the cadet could re-enter the


                               8
           United States v. Claxton, No. 17-0148/AF
                    Opinion of the Court

      room. Appellant told investigators that he put his
      arm around Ms. SW and that he believed she was
      “passed out/incoherent” when he did so. He also
      “strongly believed it [i]s possible” he unbuttoned
      Ms. SW’s jeans but he was not certain since he
      could not recall doing so or seeing her pants in this
      condition.
Id. at *32, 2016 WL 6575036, at *10. He admitted striking
Cadets DB and Thomas but claimed he did so in self-
defense, and that he had been provoked by other cadets call-
ing him a rapist. Id. at *33, 2016 WL 6575036, at *11.
            C. The Testimony of the Informants
    With respect to the incident involving Cadet MI, neither
informant observed the alleged sexual contact nor testified
about it. Their testimony was limited to the circumstances
surrounding the offense—that Appellant was alone in the
room with Cadet MI and had sent a text to his mother about
the incident. In light of Appellant’s signed, sworn statement
to the AFOSI admitting his conduct, the admission of the
text message, and the testimony of Cadet MI, the failure to
disclose that two of the witnesses were confidential inform-
ants was harmless beyond a reasonable doubt. The inform-
ants’ testimony was relatively unimportant and was for the
most part cumulative with that of other witnesses. Fur-
thermore, the DuBay judge found that the defense had evi-
dence with which to impeach Cadet Thomas: that his future
as a cadet would be short and that testifying in a manner
“favorable to the prosecution could get him some leniency.”
   With regard to the incidents involving SW and the as-
saults on the cadets, Cadet Thomas was a primary witness.
His testimony, however, was corroborated by several other
eyewitnesses who were not informants and by Appellant’s
admission that he might have unbuttoned SW’s jeans.
   Although the prosecution did not disclose that the two
witnesses were confidential informants, there is no reasona-
ble likelihood that this evidence could have affected the
judgment of the trial court.
    We further conclude that there is no reasonable likeli-
hood that the disclosure of the two witnesses as confidential
informants would have affected Appellant’s sentence. Alt-



                               9
              United States v. Claxton, No. 17-0148/AF
                       Opinion of the Court

hough an appellant may present evidence in extenuation
and mitigation during sentencing, we discern no reason that
the status of two witnesses as confidential informants would
have led the members to conclude that there was a legal jus-
tification for Appellant’s misconduct or a reason to reduce
Appellant’s punishment.
                           III. Conclusion
    That being said, we cannot allow the gross governmental
misconduct which occurred in this case to escape unre-
marked. It is unclear from the record whether the trial
counsel11 were aware of Cadet Thomas’s status, but it was
their “‘duty to learn of any favorable evidence known to the
others acting on the government’s behalf …, including the
police’” and disclose it to the defense. Strickler, 527 U.S. at
281 (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)).
Here, there is no evidence of record that the trial counsel
made any attempt to inquire as to the status of government
witnesses as required by the defense discovery request.
    Of additional concern is the fact that responsible judge
advocates, including the staff judge advocate and the chief of
justice, knew that Cadet Thomas was a CI and either did not
inform the trial counsel or, if they did, did not ensure that
the trial counsel performed their duties under Brady. We do
not know whether these officers acted at the behest of
AFOSI, so that that agency could continue its undercover
activities, or for some other reason. In any event, it is pro-
foundly disturbing that officers of the court would engage in
such conduct. The fact that, under the applicable standard,
the Government has managed to salvage this conviction
cannot erase the blot on the Air Force legal system that such
conduct must cause. As Justice Sutherland wrote, in the
classic statement of prosecutorial responsibility:
             The [prosecutor] is the representative not of an
         ordinary party to a controversy, but of a sovereign-
         ty whose obligation to govern impartially is as
         compelling as its obligation to govern at all; and
         whose interest, therefore, in a criminal prosecution
         is not that it shall win a case, but that justice shall
         be done. As such, he is in a peculiar and very defi-

   11   Captains Adam D. Bentz and Paul G. Clawson.



                                   10
           United States v. Claxton, No. 17-0148/AF
                    Opinion of the Court

      nite sense the servant of the law, the twofold aim of
      which is that guilt shall not escape or innocence
      suffer. He may prosecute with earnestness and vig-
      or—indeed, he should do so. But, while he may
      strike hard blows, he is not at liberty to strike foul
      ones. It is as much his duty to refrain from improp-
      er methods calculated to produce a wrongful convic-
      tion as it is to use every legitimate means to bring
      about a just one.
Berger v. United States, 295 U.S. 78, 88 (1935).
                         IV. Judgment
   The judgment of the United States Air Force Court of
Criminal Appeals is affirmed.




                               11
        United States v. Claxton, No. 17-0148/AF


    Chief Judge ERDMANN, dissenting.
     Two of the government’s witnesses in this case had
been confidential informants for the Air Force Office of
Special Investigations and had informed on Claxton dur-
ing the investigative stage of the case. At trial, the gov-
ernment represented to the panel that the two witnesses
had been friends of Claxton but, because of their repug-
nance for what he was accused of, were willing to testify
against their former friend. During the entirety of the
trial, government counsel did not disclose to the court or
the defense that the two had been confidential inform-
ants. Had one of the confidential informants not “spilled
the beans” during a post-trial media interview, their sta-
tus may never have been publically known. Before this
court, the government concedes that a Brady v. Mary-
land, 373 U.S. 83 (1963), violation occurred and that the
standard for determining prejudice is whether the error
was harmless beyond a reasonable doubt. As I believe
that the Brady violation was not harmless beyond a rea-
sonable doubt, I respectfully dissent from the majority
opinion and would reverse the United States Air Force
Court of Criminal Appeals and return the case for a new
trial. 1
     The majority cites the correct standard for analyzing
prejudice resulting from a Brady violation where a spe-
cific discovery request has been made. See United States
v. Coleman, 72 M.J. 184, 187 (C.A.A.F. 2013) (“Failing to
disclose requested material favorable to the defense is
not harmless beyond a reasonable doubt if the undis-
closed evidence might have affected the outcome of the
trial.”). However, the majority then takes a somewhat
narrow view and fails to consider the entire scope of the
potential prejudice in this case.
     It is difficult to fault the majority’s analysis in which
they note that the testimony of the confidential inform-
ants was either “relatively unimportant” or “cumulative”
with the testimony of other witnesses or Claxton’s own
admissions. However, I believe there is a bigger picture
that the majority does not address. In nondisclosure cas-
es, we have considered the cumulative effect of the non-
disclosure rather than merely speculating as to what the

1 I concur with the majority’s comments regarding the Air
Force’s gross misconduct in the prosecution of this case.
        United States v. Claxton, No. 17-0148/AF
          Chief Judge ERDMANN, dissenting

result would have been without the confidential inform-
ants’ testimony. See United States v. Stellato, 74 M.J.
473, 490 (C.A.A.F. 2015). In conducting this assessment,
we have adopted the following analysis: (1) whether the
nondisclosure hampered or foreclosed a strategic option;
(2) whether the nondisclosure hampered the ability to
prepare or present its case; (3) whether the nondisclosure
substantially influenced the factfinder; and (4) whether
the nondisclosure would have allowed the defense to re-
but evidence more effectively. Id. (citations omitted).
This court “need not conclude that Appellant’s defense
would have succeeded. Instead the inquiry should focus
on whether the military judge’s ruling essentially de-
prived Appellant of [his] best defense that may have
tipped the credibility balance in Appellant’s favor.” Unit-
ed States v. Collier, 67 M.J. 347, 356 (C.A.A.F. 2009) (al-
teration in original) (internal quotation marks omitted)
(quoting United States v. Moss, 63 M.J. 233, 239
(C.A.A.F. 2006)). At the United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967), hearing, the defense
argued that “[h]ad [they] known the full picture about
[the confidential informants] [they] may have posited a
different theory about what happened that night and
why.”
    On appeal to this court, Claxton argues that the con-
fidential informants were not unbiased passive observers
to the three charged incidents, but were government
agents who played a role in creating the events leading
up to each of the three alleged sexual misconduct charg-
es. One or the other of the confidential informants was
responsible for planning the events that led up to each of
the incidents. Similarly, in each of the incidents, one or
the other of the confidential informants invited the al-
leged victims to go out with the group of cadets. It was
also one or both of the confidential informants that left
an inebriated female alone with an intoxicated Claxton
before each alleged offense. While this “set up” defense
was certainly not a “slam dunk,” it may have been the
best defense available to Claxton – had he known it was
available. See Collier, 67 M.J. at 356.
     The nondisclosure in this case also clearly hampered
a strategic option and the defense’s ability to prepare and
present its case. Stellato, 74 M.J. at 490. During the find-
ings arguments, trial counsel emphasized the credibility




                           2
        United States v. Claxton, No. 17-0148/AF
          Chief Judge ERDMANN, dissenting

of one of the confidential informants by arguing that he
resisted believing that his friend, Claxton, could commit
such offenses, but was ultimately swayed by the strength
of the evidence to believe the allegations were true. He
argued to the panel, “More and more they become to be
convinced, as you are convinced, that [the victim] is tell-
ing the truth.” Trial counsel also argued that one of the
confidential informants himself was credible because
“[he] received pretty significant punishment for underage
drinking inside the dorms. This immunity doesn’t make
[his] punishments go away. . . . It allows [him] to make
sure [he] tell[s] the truth.” However, that informant tes-
tified at the DuBay hearing that, despite his statements
to the contrary during the court-martial, he believed the
punishments would go away and that he would not be
disenrolled from the Air Force Academy because the in-
fractions were accrued during his duties as a confidential
informant.
     Despite the government knowing that two of the
witnesses were confidential informants, it deceptively
leveraged the defense and the panel’s ignorance of the in-
formants’ status to bolster the credibility of the victims
and witnesses. This information hampered Claxton’s
ability to prepare and present his case and, had it been
disclosed, would have allowed the defense to rebut the
government’s arguments more effectively. Stellato, 74
M.J. at 490.
     Due to the nondisclosure, the defense was denied the
ability to pursue a strategic option and present their best
defense. We have no way of knowing what the effect
would have been on the members had they been in-
formed that two principal government witnesses, who
had been involved in all the incidents, were government
agents. Certainly it would have had some effect on their
consideration of the government’s case. Had this nondis-
closure been discovered at trial, the military judge would
have had a variety of remedies available but, at the very
least, the defense would have been given sufficient time
to re-craft its defense strategy. See id. (“Prejudice can
arise from discovery violations when those violations in-
terfere with an accused’s ability to mount a defense.”).
Remanding this case for a new trial would simply
achieve that same result.




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        United States v. Claxton, No. 17-0148/AF
          Chief Judge ERDMANN, dissenting

     As there is sufficient evidence in the record to show
that the government’s flagrant Brady violation might
have affected the outcome of the court-martial, the non-
disclosure was not harmless beyond a reasonable doubt.
I would reverse the Air Force Court of Criminal Appeals
and remand the case for a new trial.




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