          UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS


                                           UNITED STATES

                                                     v.

                                 Captain BENJAMIN J. MOORE
                                     United States Air Force

                                               ACM 38773

                                           7 September 2016

         Sentence adjudged 14 November 2014 by GCM convened at Columbus Air
         Force Base, Mississippi. Military Judge: Joshua E. Kastenberg (sitting
         alone).

         Approved Sentence: Dismissal, restriction to limits of Columbus Air Force
         Base, Mississippi, for 60 days, and a reprimand.

         Appellate Counsel for Appellant: Major Lauren A. Shure.

         Appellate Counsel for the United States: Major Jeremy D. Gehman and
         Gerald R. Bruce, Esquire.

                                                  Before

                           MAYBERRY, SPERANZA, and JOHNSON
                                Appellate Military Judges

                                     OPINION OF THE COURT

          This opinion is issued as an unpublished opinion and, as such, does not serve as precedent
                              under AFCCA Rule of Practice and Procedure 18.4.



SPERANZA, Judge:

       A military judge sitting as a general court-martial convicted Appellant, contrary to
his pleas, of two specifications of assault consummated by a battery for punching and
kicking his wife, CW, in November 2012 and pushing her against a wall and onto the floor
in March 2014; conduct unbecoming an officer and gentleman for wrongfully creating and
sending pornographic or sexually explicit videos on divers occasions; and three
specifications of committing adultery with another woman, CR. Articles 128, 133, and
134, UCMJ, 10 U.S.C. §§ 928, 933, 934. The military judge acquitted Appellant of three
other specifications alleging assault consummated by a battery against CW. The military
judge sentenced Appellant to a dismissal, restriction to the limits of Columbus Air Force
Base for 60 days, and a reprimand.1 The convening authority approved the sentence as
adjudged.

       On appeal, Appellant requests the two assault specifications of which he was
convicted be set aside because the Government failed to disclose certain material favorable
to the Defense and was unable to show how such nondisclosure was harmless beyond a
reasonable doubt. We disagree and affirm.

                                                   Background

       CW and Appellant began their tempestuous marriage in April 2011. That fall,
Appellant was selected for a 365-day deployment to Afghanistan. During temporary duty
for pre-deployment training in the summer of 2012, Appellant met CR and began a sexual
relationship with her. Appellant continued to communicate with CR after the training.

       CW claimed Appellant threw her to the ground in the summer of 2012 when she
and Appellant returned from driving CW’s daughter to her biological father’s home. CW
asserted Appellant assaulted her again in November 2012 when he punched and kicked her
during a confrontation inside their bathroom.

       Appellant departed the United States for his deployment at the end of December
2012, but not before having sexual intercourse with CR near Baltimore, Maryland. During
his deployment, Appellant and CR created and exchanged sexually explicit
communications that included videos Appellant recorded in military facilities while
wearing his duty uniform. Appellant redeployed to the United States near the middle of
December 2013. Before returning home to his family in Alabama, Appellant once again
had sexual intercourse with CR.

       CW claimed Appellant assaulted her in her parent’s basement after an altercation
during a Christmas dinner in December 2013. CW also accused Appellant of pushing her
against the wall and onto the floor of their home in March 2014 while he was trying to
retrieve his phone from CW after she stated she was going to call CR.

       Appellant testified during findings. Appellant acknowledged each of the assault
allegations, but testified that he acted substantially in self-defense. Appellant admitted to
having sexual intercourse with CR. Appellant also admitted to creating sexually explicit
videos and exchanging sexually explicit material with CR.


1
 After findings, the military judge found the adultery specifications to be unreasonably multiplied for the purposes of
sentencing and merged those specifications accordingly.


                                                          2                                               ACM 38773
       Additional facts necessary to resolve the assignment of error are included below.

                       Failure by the Government to Disclose Information

       In its initial discovery request, the Defense requested discovery of medical and
mental health records, specifically CW’s medical records related to treatment for any
injuries, CW’s prescription records from 1 January 2012 to the request date, CW’s mental
health records, and the curriculum vitae of any provider who treated CW.

       The Government, with CW’s consent, obtained sealed copies of CW’s medical and
prescription records, civilian mental health records, and military family health records. In
a records request sent to providers dated 17 September 2014, trial counsel maintained that
the requested records were “relevant and material because charges [had] been preferred
against [Appellant] for multiple offenses under the UCMJ.” Trial counsel further explained
in the request that “[c]harges include assault consummated by a battery against
[Appellant’s] spouse, [CW], and adultery.” The Government did not review any of the
records nor did the Government provide any of the information to the Defense.

       The Defense filed a second discovery request in which it renewed its specific request
for CW’s medical records, prescription records, mental health records, and provider
information. In this second discovery request, the Defense also requested any marriage
counseling and Family Advocacy records. The Defense further requested that any withheld
material be identified for in camera review by the military judge.

       In its response, the Government informed the Defense that CW asserted privilege
over the requested records, including medical and prescription records, and would not
release the records without an in camera review by the military judge. The Government
agreed that an in camera review was appropriate and recommended the Defense file a
motion accordingly. The Government indicated it could make the records available to the
military judge, if ordered to do so.

       The Defense moved to compel production of CW’s mental health records, medical
records, prescription records, and marriage records for an in camera review in accordance
with Mil. R. Evid. 513. The Defense argued that an in camera review of the aforementioned
records was constitutionally required to provide Appellant “the best possible defense.” In
its motion, the Defense indicated that it was aware, through evidence and witness
interviews, of the following: CW would often drink heavily; CW had a prescription for
anti-anxiety medication; CW appeared to others to be emotionally and physically unstable;
CW threatened to commit suicide while holding a knife at or near the time of one of the
alleged assaults; CW sought marriage counseling in order to improve her marriage to
Appellant; and CW’s work with her horses caused bruising on her body. The Defense
concluded its motion by requesting the military judge (1) “[o]rder the Government to
produce any and all known mental health records, medical records, prescription records,


                                             3                                    ACM 38773
family advocacy records and marriage counseling records of [CW]; (2) “[o]rder an in
camera review of those records to determine whether or not some or all of them should be
released because it is constitutionally required;” and (3) “[r]elease to the Defense those
records deemed relevant.”

         The Defense’s motion to compel was addressed by the military judge and the parties
at trial after pleas.2 The Government did not file a response and agreed with the Defense
that an in camera review of all of the records was appropriate. The Government confirmed
that no member of the trial team had reviewed any of the requested records and that CW
consented to the military judge’s in camera review. No additional evidence or argument
was presented to the military judge,3 who agreed to conduct the in camera review.

         The next morning, the military judge stated that he reviewed CW’s medical and
mental health records. He announced that he considered Appellant’s constitutional
confrontation rights under the Sixth Amendment, explaining that “[i]nformation contained
in . . . mental health or medical records becomes constitutionally required inter alia when
the information contradicts a person’s testimony or contains evidence of malfeasance
towards the accused for a reason to fabricate or as a witness testifies through the discovery
of prior inconsistent statements.” The military judge verbally informed the parties that his
in camera review of the medical and mental health records provided by the Government
revealed “no such evidence exist[ed] in the records at [that] time.” Even after being
provided most of the records by the Government4 and conducting his in camera review, the
military judge acknowledged, based on the trial counsel’s assurance, “that the Government
is not in possession of these records[.]” The military judge assured the parties that he
would release “such records at the time that the records become relevant[.]” The military
judge issued a written ruling substantially reiterating his previous findings and analysis.5

       At trial, CW testified about her relationship with Appellant and being assaulted as
alleged in the specifications. With respect to the November 2012 allegation, CW testified
that she threatened and physically confronted Appellant in the shower and that Appellant
responded by punching her several times. CW maintained Appellant continued to kick her
while she was on the ground. Approximately 11 days later, CW photographed the injuries
she sustained during this assault after a friend noticed the bruising and convinced her to do
so.


2
  Prior to trial, the Government obtained sealed copies of CW’s medical records, family advocacy records, and portions
of CW’s civilian mental health records. On 11 November 2014, the military judge ordered production of Appellant’s
and CW’s civilian marriage counseling records. These civilian marriage counseling records were produced and
marked as Appellate Exhibit III-D.
3
  The Defense enjoyed the expert assistance of a forensic psychologist.
4
  All of the records, except those ordered to be produced by the military judge in Appellate Exhibit III-D, were obtained
by the Government in advance of trial.
5
  The military judge’s written ruling, Appellate Exhibit VII, although dated 13 November 2014, was “ordered” on 18
November 2014 and provided to the court reporter after trial.


                                                           4                                               ACM 38773
        CW discovered Appellant’s relationship with CR in March 2014 after seeing a
photograph of CR on Appellant’s phone. CW testified that Appellant finally admitted to
his relationship with CR and eventually gave CW permission to call CR on Appellant’s
phone. CW recounted Appellant forcibly trying to take the phone back from her. She
described Appellant grabbing her and slamming her into the toilet and wall. CW added
that Appellant shoved her onto the floor after she gave Appellant his phone. She explained
that Appellant left the home to talk to his commander and that she eventually followed him
to the squadron. CW detailed her meeting with Appellant’s commander, including how
she showed the commander her injuries. She also identified the photographs investigators
took of those injuries.

       Before cross-examining CW, the Defense consulted with its expert in forensic
psychology. During cross-examination, defense counsel presented evidence regarding
CW’s work with horses and the risks associated with such work. Defense counsel
confronted CW with her Article 32 testimony; her failure to seek proper medical attention;
her failure to report any of her allegations before March 2014; her actions towards
Appellant before, during, and after the allegations; her suicidal threats and altercation the
night before the March 2014 assault; her biases; and her motives to fabricate or minimize
her role in the altercations.

        Prior to the Government’s redirect examination of CW, defense counsel asked if the
military judge would reconsider his decision not to disclose material from CW’s medical
and mental health records. The military judge stated that he would review the records and
compare them with his trial notes. After completion of CW’s testimony, the military judge
once again reviewed the records over a recess and released three redacted pages from CW’s
Family Advocacy records to the parties under a protective order. The military judge noted
that “this is an ongoing process and the court may release further documents as it deems
required to do so constitutionally.”

      In addition to the testimony of CW, the Government presented the photographs
documenting the injuries CW claimed she sustained as a result of the November 2012 and
March 2014 assaults; testimony of witnesses who observed the injuries near the time of the
November 2012 and March 2014 assaults; CW’s prior consistent statements describing the
November 2012 assault; a letter written by Appellant to CW on 30 April 2014, in which
Appellant apologized, in general terms, for hurting CW and causing her pain; and
Appellant’s admission to his commander that he had hit CW once in self-defense.

       Through cross-examination of Government witnesses, defense counsel presented
substantial evidence regarding CW’s work with horses, the physical risk involved with
such work, as well as injuries CW sustained while working with her horses. Defense
counsel also elicited evidence that following the November 2012 assault, CW sent
Appellant’s commander a text message that stated, “We are safe.”



                                              5                                    ACM 38773
        In its case, the Defense presented evidence of Appellant’s character for
peacefulness, as well as CW’s character for aggressiveness. The Defense offered
testimony describing CW’s use of alcohol and medication during the March 2014 assault.
Appellant also testified. After generally denying assaulting CW, Appellant addressed each
of the five assault allegations.

       With respect to the November 2012 assault in the bathroom, Appellant corroborated
portions of CW’s testimony but described CW as the aggressor. Appellant claimed that he
“ended up” in a “sort of grapple” after CW kneed him in the groin. Appellant described
grabbing CW to keep her from hitting him. Appellant explained that CW tripped and fell
but continued to hit and kick him. Appellant admitted to punching CW with a closed fist
approximately three times in order to get her to stop hitting and kicking him.

       Like the November 2012 assault, Appellant’s testimony regarding the March 2014
assault corroborated much of CW’s testimony; however, Appellant described another
“grapple” ensuing during which CW stumbled, fell, and hit her knee on the toilet while
Appellant tried to retrieve his phone. Appellant admitted that he was “agitated” and
“afraid” after giving his phone to CW, but he denied shoving or pushing CW.

       During his testimony, Appellant described CW’s behavior when she would drink
and take her medication. Appellant provided substantial testimony about the physical risks
to which CW was exposed while caring for horses and the injuries CW had sustained, or
could sustain, while performing such work.

       Trial counsel asked the military judge to again review CW’s records before the
Government cross-examined Appellant.6 During cross-examination, Appellant confirmed
that he punched CW with a closed fist three times in November 2012. Appellant also
confirmed that a bruise depicted in one of the Prosecution Exhibit 1 photographs resulted
from the November 2012 incident. Appellant confirmed he was agitated when CW had his
phone in March 2014. Appellant also acknowledged that CW did not threaten him or
attempt to hit or strike him in any way before he followed her to retrieve his phone.
Appellant repeated his observations of CW when she drank while on her medication. He
also recounted her alcohol consumption and suicidal gesture the night prior to the March
2014 assault.

      In their testimony, CW and Appellant both acknowledged that they attended joint
counseling sessions. The records confirmed Appellant’s participation in some Family
Advocacy and civilian marriage counseling sessions. The evidence also presented CW’s
and Appellant’s expressed desires to separate, leave, or divorce at different times
throughout the marriage.


6
    The military judge did not release additional portions of the records.


                                                             6                  ACM 38773
       In its argument, the Defense attacked the credibility of CW, highlighting the various
methods of impeachment used to confront CW. The Defense identified what it termed a
“pattern of abuse” by CW towards Appellant and argued Appellant acted reasonably in
self-defense under the circumstances, or, with respect to the March 2014 assault, was
engaged in a “mutual scuffle.” Defense counsel also argued that a real possibility existed
that the injuries depicted in the photographs were caused by CW’s horses, not Appellant.
Defense counsel invited the military judge to weigh the credibility of CW and Appellant,
emphasizing Appellant’s willingness to admit to having sexual intercourse with CR,
sending the sexually explicit material, and hitting CW once.

        CW did not testify during sentencing proceedings. No other requests for disclosure
of the records were made.

        Appellant now argues that the Government should have disclosed portions of CW’s
medical records “where she reported feeling safe at home and unthreatened in her personal
relationship, along with records indicating inconsistent statements, motives to fabricate,
bias, and information concerning her mental health and prescriptions that could [a]ffect her
memory and recollection.”

       Article 46, UCMJ, 10 U.S.C. § 846(a), provides that “[t]he counsel for the
Government, the counsel for the accused, and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance with such regulations as
the President may prescribe.” This statutory provision “is implemented in [Rule for
Courts-Martial (R.C.M.)] 701 which details the liberal discovery practice in courts-
martial.” United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004). R.C.M. 701
establishes “the rights and corresponding obligations of the parties to a court-martial.” Id.

       R.C.M. 701(a)(2)(A) requires the Government, upon defense request, to allow
inspection of any tangible objects, such as papers and documents, that “are within the
possession, custody, or control of military authorities, and which are material to the
preparation of the defense . . . .” Likewise, R.C.M. 701(a)(2)(B) entitles the Defense, upon
request, to inspect the following:

              [a]ny results or reports of physical or mental examinations . . .
              which are within the possession, custody, or control of military
              authorities, the existence of which is known or by the exercise
              of due diligence may become known to the trial counsel, and
              which are material to the preparation of the defense . . . .

        Regardless of whether trial defense counsel has made a request, trial counsel is
required to disclose known evidence that “reasonably tends to” negate or reduce the degree
of guilt of the accused or reduce the punishment that the accused may receive if convicted.
See R.C.M. 701(a)(6); see also United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999)


                                             7                                     ACM 38773
(noting that R.C.M. 701(a)(6) implements the disclosure requirements of Brady v.
Maryland, 373 U.S. 83, 87 (1963)). Evidence that could be used at trial to impeach
witnesses is subject to discovery under these provisions.7 See United States v. Watson, 31
M.J. 49, 54 (C.M.A. 1990) (citing Giglio v. United States, 405 U.S. 150 (1972)).

        Discovery practice under Article 46, UCMJ, and R.C.M. 701 is intended to
“promote full discovery . . . and to eliminate ‘gamesmanship’ from the discovery process”
and is “quite liberal . . . . [p]roviding broad discovery at an early stage reduces pretrial
motions practice and surprise and delay at trial.” Manual for Courts-Martial, United
States, app. 21 at A21-33 (2012 ed.). “The military rules pertaining to discovery focus on
equal access to evidence to aid the preparation of the defense and enhance the orderly
administration of military justice.” Roberts, 59 M.J. at 325. Therefore, military discovery
practice is not focused solely upon evidence known to be admissible at trial. See United
States v. Stone, 40 M.J. 420, 422 (C.M.A. 1994) (citing United States v. Lloyd, 992 F.2d
348, 351 (D.C. Cir. 1993)). “The parties to a court-martial should evaluate pretrial
discovery and disclosure issues in light of this liberal mandate.” Roberts, 59 M.J. at 325.

       R.C.M. 703 governs the production of witnesses and evidence. This rule gives the
prosecution and the defense “equal opportunity to obtain witnesses and evidence, including
the benefit of compulsory process.” R.C.M. 703(a). In general, “each party is entitled to
the production of evidence which is relevant and necessary.” R.C.M. 703(f).

       However, pursuant to Mil. R. Evid. 513 and R.C.M. 701(f), the confidential
communications between a patient and psychotherapist are generally protected from
disclosure. Several enumerated exceptions to this privilege exist, but only Mil. R. Evid.
513(d)(8), which authorized disclosure when “constitutionally required,” applies to the
present case.8

        If the Government fails to disclose discoverable evidence, the error is tested on
appeal for prejudice, which is assessed “in light of the evidence in the entire record.”
United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)). As a general matter, when an
appellant has demonstrated error with respect to nondisclosure, the appellant will be
entitled to relief only if there is a reasonable probability that there would have been a
different result at trial if the evidence had been disclosed. Roberts, 59 M.J. at 326-27 (citing
United States v. Bagley, 473 U.S. 667, 683 (1985)). When an appellant has demonstrated
that the Government failed to disclose discoverable evidence with respect to a specific

7
   In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court “rejected any . . . distinction between
impeachment evidence and exculpatory evidence.” In accordance with Bagley, our superior court specifically held
that “impeachment evidence . . . can obviously be material evidence at a criminal trial.” United States v. Watson, 31
M.J. 49, 54-55 (C.A.A.F. 1990). Impeachment “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.” Id. at 54 (quoting
Bagley, 473 U.S. at 682).
8
  In 2015, Mil. R. Evid. 513 was amended, eliminating the “constitutionally required” exception.


                                                          8                                               ACM 38773
request or as a result of prosecutorial misconduct, the appellant will be entitled to relief
unless the Government can show that nondisclosure was harmless beyond a reasonable
doubt. See id. at 327.

       R.C.M. 701(g) places responsibility for regulating discovery on the military judge.
We review a military judge’s ruling on a discovery request for abuse of discretion. Roberts,
59 M.J. at 326. “The military judge’s determination of materiality in this respect is a
question of law that we review de novo.” Id.

      The issue raised in this case illustrates an all too common problem at the trial level
in which the parties and the military judge cloud the rules and standards governing
discovery, production, and privilege.9 However, we need not decide whether the military
judge abused his discretion under the particular facts of this case. See United States v.
Morris, 52 M.J. 193, 198 (C.A.A.F. 1999).

        Under the standards set forth in Roberts and the cases cited therein, we may resolve
a discovery issue without determining whether there has been a discovery violation if the
court concludes that the alleged error would not have been prejudicial. United States v.
Santos, 59 M.J. 317, 321 (C.A.A.F. 2004). Accordingly, we assume without deciding: (1)
that the information identified by Appellant and contained within the records was material
to the preparation of the defense and should have been disclosed in response to the
discovery requests; and (2) that failure to do so should be tested for prejudice on appeal
under the harmless beyond a reasonable doubt standard. See id.

       With respect to the two assault convictions at issue in this case, the Government
presented evidence to corroborate CW’s mostly consistent testimony regarding the
November 2012 and March 2014 assaults. For example, the military judge, as the
factfinder, was able to consider photographs and other testimony that supported CW’s
assertions at trial. Importantly, Appellant provided compelling evidence of his guilt to
these two specifications. He testified that he punched CW with a closed fist at least three
times and acknowledged CW was left with marks on her body as a result of that incident.
Appellant also testified to being agitated with CW and “grappling” with her in order to
retrieve his phone, even though she had not threatened him in any manner. Such evidence
undermined the Defense’s theory of self-defense as applied to these two specifications.

       Moreover, information within the undisclosed records pertaining to CW’s drinking,
medication use, failure to report abuse, feelings of safety, suicidal thoughts, and exposure
to injuries likely caused by horses is largely cumulative of other information already
available to Appellant at trial. In view of Appellant’s knowledge of CW based upon his
relationship with her, as reflected in his testimony at trial, as well as his presentation of this

9
 See Eric Carpenter, Simplifying Discovery and Production: Using Easy Frameworks to Evaluate the 2009 Term of
Cases, 2011 Army Law. 31 (emphasizing a “simple but critical point in discovery analysis: precision matters”).


                                                      9                                           ACM 38773
information to the factfinder through cross-examination and other evidence, the additional
value of such information was minimal. See Santos, 59 M.J. at 322.

       That CW may have provided inconsistent statements, harbored some bias towards
Appellant, or may have been motivated to fabricate the allegations or minimize her role in
the assaults, was already known to the Defense at trial, as reflected in its presentation of
evidence, including Appellant’s own testimony. Defense counsel confronted CW and
effectively impeached her testimony at trial. The military judge, as factfinder, was well
aware of the matters impacting CW’s credibility. The military judge ostensibly weighed
Appellant’s and CW’s credibility when finding Appellant not guilty of the other three
assault specifications.10 Additional, marginally relevant impeachment evidence “would
not have had a significant impact on the military judge’s adjudication of the findings.” See
id.

       “The review of discovery violations involves case-specific considerations.” Id. In
another case, undisclosed information “that cast[s] doubt on the credibility of a witness
might have greater value.” See id. In this case, however, in light of the minimal additional
probative value and utility of the specific, undisclosed information identified by Appellant,
and in light of all the evidence presented in the record, we are satisfied that the
nondisclosure was harmless beyond a reasonable doubt. See id.

                                                    Conclusion

       The findings and sentence are correct in law and fact, and no error materially
prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and 66(c), UCMJ,
10 U.S.C. §§ 859(a), 866(c). Accordingly, the findings and sentence are AFFIRMED.



                  FOR THE COURT



                  LEAH M. CALAHAN
                  Clerk of the Court




10
  See Appellant’s 5 February 2015 Petition for Clemency (“When taken as a whole, it is clear [CW] is not the most
credible person. This is clearly illustrated by the military judge’s findings of not guilty on three of the five assault
specifications against Capt Moore.”).


                                                          10                                               ACM 38773
