                        UNITED STATES, Appellee

                                     v.

           Alvin N. CUENTO, Aviation Structural Mechanic
                            Second Class
                        U.S. Navy, Appellant

                               No. 03-0389

                        Crim. App. No. 200100281

       United States Court of Appeals for the Armed Forces


                      Argued April 21, 2004

                      Decided July 27, 2004


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

                                  Counsel

For Appellant: Lieutenant Rebecca S. Snyder, JAGC, USNR
(argued).

For Appellee: Lieutenant Frank L. Gatto, JAGC, USNR (argued);
Commander R. P. Taishoff, JAGC, USN (on brief); Lieutenant Ross
W. Weiland, JAGC, USNR.

Military Judge: C. R. Hunt




  THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Cuento, No. 03-0389/NA


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Before a general court-martial of officers and enlisted

members, pursuant to his pleas, Appellant was convicted of

assault consummated by battery on a child under the age of 16

years, in violation of Article 128, Uniform Code of Military

Justice [hereinafter UCMJ] 10 U.S.C. § 928 (2000).   Contrary to

his pleas, he was convicted of two specifications of indecent

acts with a child under the age of 16 years, in violation of

Article 134, UCMJ 10 U.S.C. § 934 (2000).   The convening

authority approved the court’s sentence of a dishonorable

discharge and four years’ confinement.    The Court of Criminal

Appeals affirmed the findings and sentence.1

     This Court granted review of the following issues:

                              I.

     WHETHER THE LOWER COURT ABUSED ITS DISCRETION BY
     FAILING TO ORDER A DUBAY HEARING TO ASSIST IT IN
     DETERMINING WHETHER THE PETITION FOR A NEW TRIAL
     SHOULD BE GRANTED AND A NEW TRIAL ORDERED WHERE THE
     TRIAL WAS A SWEARING CONTEST BETWEEN THE PARTIES AND
     THE COMPLAINING WITNESS RECANTED HER ALLEGATIONS ON
     FOUR OCCASIONS AFTER APPELLANT WAS TRIED.

                             II.

     WHETHER APPELLANT’S CONFESSION WAS INVOLUNTARY WHEN
     THE GOVERNMENT OBTAINED THE CONFESSION AFTER INFORMING
     APPELLANT THAT HE WOULD NOT BE REUNITED WITH HIS
     CHILDREN UNLESS HE ADMITTED THAT HE HAD SEXUALLY
     MOLESTED HIS DAUGHTER, AND WHERE APPELLANT CONFESSED

1
  United States v. Cuento , 58 M.J. 584 (N-M. Ct. Crim. App.
2003).

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United States v. Cuento, No. 03-0389/NA


       WITHIN DAYS OF A GOVERNMENT IMPOSED DEADLINE FOR
       ADMITTING HIS GUILT AFTER MAINTAINING HIS INNOCENCE
       FOR EIGHTEEN MONTHS.

                                III.

       WHETHER THE LOWER COURT ABUSED ITS DISCRETION WHEN IT
       REFUSED TO CONDUCT A PLAIN ERROR ANALYSIS AND FOUND
       THAT ANY POTENTIAL ERROR WAS HARMLESS BEYOND A
       REASONABLE DOUBT WHERE THE GOVERNMENT VIOLATED
       APPELLANT’S SIXTH AMENDMENT RIGHT TO CONSULT WITH
       COUNSEL BY ELICITING TESTIMONY THAT APPELLANT RECANTED
       HIS ADMISSION ONLY AFTER CONSULTING WITH AN ATTORNEY
       AND BY ARGUING TO THE MEMBERS THAT APPELLANT’S
       RECANTATION WAS FALSE BECAUSE IT WAS MOTIVATED BY
       APPELLANT’S CONSULTATION WITH AN ATTORNEY.

       For the reasons set forth below, we affirm the decision of

the Navy-Marine Court of Criminal Appeals with respect to Issues

II and III.    As to Issue I, we return the record to the court

below to order a fact-finding hearing pursuant to United States

v. DuBay,2 for the purpose of determining the credibility of J’s

post-trial recantation.

                              FACTS

       In August 1998, following J’s allegations that Appellant

had sexually assaulted her in October 1977, Appellant was

removed from the family home and twice interviewed by the San

Diego Police.    He told the police that, while play-wrestling

with J, he accidentally caught his hand in J’s underwear and

unintentionally penetrated her vagina with his finger.   In

September 1999, the local District Attorney declined prosecution


2
    17 C.M.A. 147, 37 C.M.R. 411 (1967).

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United States v. Cuento, No. 03-0389/NA


and the Navy Criminal Investigative Service (NCIS) assumed

control of the investigation.

     The California Child Protective Service, in coordination

with the Navy Family Advocacy Program, devised a “reunification

plan,” by which Appellant, after appropriate therapy, could

rejoin his family.   Part of the therapy was for Appellant to

admit to J’s allegations.   In fact, one of the rules of the

therapy group provided that any participant who did not “believe

that a molestation occurred” would not be allowed to complete

the course of therapy necessary to be reunited with his or her

family.   To this end, Appellant attended group counseling

sessions with Mr. Martin, a psychotherapist, from summer 1999 to

spring 2000, and in January and February 2000.   Appellant also

saw Dr. Barnes, a clinical psychologist, for individual

sessions.

     Although Appellant had never admitted to the police that

J’s allegations were true, sometime in February 2000, he told

Mr. Martin that he had done what J said he had done.   About a

week thereafter, at NCIS’s invitation, Appellant went to NCIS,

was advised of his rights, waived them, and gave the same

version of events he had given to civilian police; however, when

Special Agent (SA) Thomas pointedly expressed disbelief,

Appellant “broke down” and admitted that in October 1997, he had

twice put his finger in J’s vagina.   After confessing, Appellant


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United States v. Cuento, No. 03-0389/NA


expressed great relief and signed the written confession

admitted as Prosecution Exhibit 20.

      Also in late February 2000, on his eighth visit to Dr.

Barnes, Appellant admitted that J’s allegations were true.     At

their next meeting, Appellant offered no retraction or

contradiction, but on his tenth visit to Dr. Barnes, Appellant

said he had spoken with a lawyer, that he had been lying to Dr.

Barnes at the last two sessions, that he was afraid of going to

jail, and that he wanted to change his story.

                            DISCUSSION

A.   Voluntariness of Appellant’s Confession.

      Appellant argues that his confession to NCIS was

involuntary “because the government would not allow him to be

reunited with his children until they reached adulthood if he

did not admit his guilt before the termination of his second

group therapy cycle, which was to end only days after he

confessed.”   We disagree and find Appellant’s statement was both

voluntary and independent of his statement to Mr. Martin.

      Voluntariness of a confession is a question of law
      that an appellate court independently reviews, de
      novo. The necessary inquiry is whether the confession
      is the product of an essentially free and
      unconstrained choice by its maker. If, instead, the
      maker’s will was overborne and his capacity for self-
      determination was critically impaired, use of his
      confession would offend due process. 3

3
  United States v. Bubonics, 45 M.J. 93, 94-95 (C.A.A.F.
1996)(citations omitted).

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United States v. Cuento, No. 03-0389/NA



       “As this Court ruled in one of its earliest opinions, a

confession is not automatically inadmissible, even though it was

made after another confession which was clearly involuntary.

The prosecution must rebut the presumption that the later

confession was the result of the same influence which led to the

prior confession.”4

       When there are multiple admissions by an accused and the

voluntariness of a second or subsequent statement is challenged

on the grounds that it is tainted by an earlier, illegally

obtained statement, we have looked to the Supreme Court for

guidance:

            In Oregon v. Elstad the Supreme Court
       distinguished between two classes of "involuntary"
       statements and between the impact of each on a
       subsequent interrogation. Where a confession is
       obtained at a lawful interrogation that comes after an
       earlier interrogation in which a confession was
       obtained due to actual coercion, duress, or
       inducement, the subsequent confession is presumptively
       tainted as a product of the earlier one. On the other
       hand, where the earlier confession was "involuntary"
       only because the suspect had not been properly warned
       of his panoply of rights to silence and to counsel,
       the voluntariness of the second confession is
       determined by the totality of the circumstances. The
       earlier, unwarned statement is a factor in this total
       picture, but it does not presumptively taint the
       subsequent confession.5


4
  United States v. Spaulding, 29 M.J. 156, 160 (C.M.A.
1989)(citing United States v. Monge, 1 C.M.A. 95, 2 C.M.R. 1
(1952)).
5
    United States v. Phillips, 32 M.J. 76, 79 (C.M.A. 1991).

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United States v. Cuento, No. 03-0389/NA


     When a prior statement is actually coerced, the time that

passes between confessions, the change in place of

interrogations, and the change in identity of the interrogators

all bear on whether that coercion has carried over into the

second confession.

     Only those statements that are “actually coerced” require

application of the more stringent test generally described in

Military Rule of Evidence 304(b)(3) [hereinafter M.R.E.] , as

opposed to a showing of voluntariness by totality of the

circumstances.6

     While a so-called “cleansing statement” is a factor to

consider in evaluating the voluntariness of a confession made

following a prior, unwarned statement, this Court has held that

“[w]here there are successive statements, it is not a

precondition to the admission of a properly obtained statement,

that the accused be informed that a previous statement cannot be

used against him.”7   However, “[i]f there has been an earlier

unwarned statement, ‘the absence of a ‘cleansing’ warning before




6
  United States v. Benner, 57 M.J. 210 (C.A.A.F. 2002); United
States v. Steward, 31 M.J. 259, 264 (C.M.A. 1990)(citing
Spaulding, 29 M.J. at 156; United States v. Ravenel, 26 M.J. 344
(C.M.A. 1988)).
7
  United States v. Wimberly, 16 C.M.A. 3, 9, 36 C.M.R. 159, 165
(1966).



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United States v. Cuento, No. 03-0389/NA


the subsequent statement’ is one of the ‘circumstances to be

considered in determining voluntariness.’”8

        In determining whether Appellant’s NCIS statement was

voluntary, we will assume, arguendo, that his earlier statement

was produced by the coercive effect of the prerequisites placed

on Appellant’s reunification with his family by the California

Child Protective Service.     “Evidence that was obtained as a

result of an involuntary statement may be used when the evidence

would have been obtained even if the involuntary statement had

not been made.”9     “Even evidence challenged as “derivative” from

an involuntary statement is admissible ‘if the military judge

finds by a preponderance of the evidence that’ it ‘was not

obtained by use of the statement, or that the evidence would

have been obtained even if the statement had not been made.”10

        Evaluating voluntariness, attenuation, and inevitability of

Appellant’s NCIS statement, we give particular weight to the

following facts:

        At the time of his NCIS statement, Appellant was 37 years

old, with over 18 years of service in the Navy.     The NCIS

statement was made at the NCIS office, to which Appellant had


8
  United States v. Ford, 51 M.J. at 451 (quoting United States v.
Lichtenhan, 40 M.J. 466, 470 (C.M.A. 1994)).
9
     M.R.E. 304(b)(2).
10
     Spaulding, 29 M.J. at 162 (citing M.R.E. 304(b)(3)).

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United States v. Cuento, No. 03-0389/NA


been invited, but not ordered to appear.      Appellant was not in

custody.   Appellant’s statement to Mr. Martin was made at Mr.

Martin’s office, in the course of treatment in which Appellant

had been ordered to participate.       The NCIS statement was made

about seven days after Appellant’s first admission to Mr.

Martin, with significant time for cool reflection and

consultation with an attorney.

     When SA Nelson invited Appellant to come to NCIS, she

called him directly, rather than involving his command;

consequently, Appellant arrived at NCIS without escort.      Neither

SA Nelson nor SA Thomas participated in Appellant’s statement to

Mr. Martin, nor were the agents aware of the “reunification

plan.”   At NCIS, Appellant was oriented to his surroundings by

SA Nelson and SA Thomas, and told that he was there voluntarily

and could leave at any time.

     SA Nelson advised Appellant of his rights, but did not give

a “cleansing warning.”   Appellant indicated that he understood

his rights and initialed beside each on the rights waiver form.

At no time did Appellant ask for an attorney or indicate that he

wanted to leave or stop answering questions.      While the NCIS

agents made reference to Appellant’s statement to civilian

police (alleging an accidental touching), no mention was made of

Appellant’s prior admission to Mr. Martin.      No mention was made

of the Child Protective Service’s orders or conditions.


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United States v. Cuento, No. 03-0389/NA


     Before and during the interview, neither of the agents made

any promises, inducements, or threats.    Although the agents used

no unlawful coercion, when Appellant first told his story in

accidental terms, SA Thomas told Appellant that he did not

believe him.   Upon hearing this, Appellant confessed that he had

done what had been alleged.   Appellant chose to have SA Nelson

write his statement, rather than Appellant writing it himself.

     After rendering the confession, Appellant said he felt that

a huge burden had been lifted from his shoulders.   The statement

process was very brief, lasting approximately 90 minutes.

Appellant read, made changes to, initialed, swore to, and signed

the statement.

     Under the circumstances of this case, particularly the

intervening events between the first and second statements, the

Government has carried its burden of demonstrating that the

first statement did not taint the second statement, and that the

second was voluntary.   The trial judge did not err in admitting

the NCIS statement over defense objection.

B.   Comment on Appellant’s Right to Counsel.

     During the direct examination of Dr. Barnes, the trial

counsel engaged the witness as follows:

          Q: Okay. Now, when, if ever, did the accused
     actually recant his version?

          A: The following week, so two weeks after his
     initial disclosure of molest he came in a state of


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United States v. Cuento, No. 03-0389/NA


     agitation and told me that he wanted to again change
     his story.

          Q: Well, let’s talk in a little bit more detail
     about exactly what he told you on that date. What did
     he tell you?

          A. He told me several things, that he had met
     with his attorney and he was told that — let me back
     up.

          Q.   Okay.

          A. I’d like to strike that, if I could. It’s
     important to get the sequence of events. He told me
     that he had been lying to me for the previous two
     weeks and that he now wanted to set the record
     straight one more time, that he reverted to the
     allegation that the abuse to his daughter occurred in
     an accidental fashion, as he had reported to me for
     the first seven weeks of therapy.

     The trial counsel asked one more innocuous question of the

witness and concluded his direct examination.   We note that he

did not follow the witness’ reference to an attorney

consultation with additional questions.   However, in cross-

examination, the trial defense counsel immediately did.

          Q. . . . You said you met with him two weeks
     later and he went back to the story he had originally
     gave; that was the wrestling story, right?

          A.   That is correct.

          Q. And you mentioned he had met with his
     attorney?

          A.   Yes.

          Q.   Would that be me?

          A.   Yes, it would.



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United States v. Cuento, No. 03-0389/NA


            Q. Okay. And the first time you met with him
       was 28 February, right?

            A.   That’s correct.

       . . . .

            Q. Okay. Would it surprise you to know, sir,
       that Petty Officer Cuento did not meet with his
       attorney until after [March 13th]?

            A. It would only surprise me that I have the
       date wrong. When he met with me and revised his
       story, he had met with an attorney. It may have been
       you, sir, but he had met with an attorney, at least
       that’s what he reported to me at that time, and he
       started expressing fear that he would be placed in the
       brig. That was a new story to me on that day.

            Q. Do you know of any other attorney that he’s
       ever had?

            A.   I don’t know.

       During the trial counsel’s closing argument on findings, he

made the following comments:

            Members, you’ve heard from Dr. Barnes. He came
       in last Friday, and he gave you a real good glimpse as
       to exactly what was going on here. And if you bring
       in all the other evidence that you’ve heard, it makes
       perfect sense. You’ve got a man that comes into his
       office on the 28th of February, four days after he
       speaks with NCIS, on the 28th of February, and says,
       “I’m guilty.” Another week goes by, on the 6th of
       March or sometime around there, he comes back into the
       office and says, “Doc, I’d like to talk with you a
       little bit more about it. I’m guilty, and the reason
       that I’m telling you now is because the burden is so
       great.” An then another week goes by. He comes back
       in, and he says, “Well, now, I’ve spoken with my
       defense attorney; and now I’m – I don’t want to be
       guilty anymore. I’m going to recant. No longer am I
       going to say I did this.”11

11
     58 M.J. at 593.

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United States v. Cuento, No. 03-0389/NA



       We need not decide whether the court below conducted a

plain error analysis, as we conclude that even if the trial

counsel erred in his examination of Dr. Barnes or his argument

suggesting that Appellant recanted after having talked with his

lawyer, any error was harmless.    Because we also assume without

deciding that the alleged error was of constitutional dimension,

we conclude that any error was harmless beyond a reasonable

doubt.

       The members had an opportunity to hear and personally

observe each witness and we assume that the members applied

their "common sense and [their] knowledge of human nature and of

the ways of the world."12    The defense did not object to Dr.

Barnes’ statement or to trial counsel’s argument.    In this

context, we have no difficulty concluding that if there was

error, it was harmless beyond a reasonable doubt.

       C.   The Court of Criminal Appeals’ Failure to Order a Fact-

finding Hearing under United States v. DuBay.13

       For the reasons set forth below, we return the record of

trial to the Navy-Marine Court of Criminal Appeals to order a

DuBay hearing in which a military judge will determine the

credibility of J’s recantation of her trial testimony.     The


12
     United States v. Rivera, 54 M.J. 489, 491 (C.A.A.F. 2001).
13
     17 C.M.A. 147, 37 C.M.R. 411 (1967).

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United States v. Cuento, No. 03-0389/NA


record of those proceedings will then be evaluated by the Court

of Criminal Appeals in determining whether to grant Appellant’s

petition for new trial.

            On 10 January 2001, Mr. Douglas Brown, a civilian
       attorney representing the appellant during post-trial
       review, placed a telephone call to J. During a two-
       minute conversation, Mr. Brown asked J if she had told
       the truth or lied at trial when she testified that she
       had been molested by her father. She said that she
       had lied and would be willing to write a statement and
       speak to Mr. Brown’s investigator. On 16 January
       2001, J and her mother met with investigator Suzanne
       McDaniel. In the course of a 90-minute interview,
       most of which was transcribed verbatim, J recanted her
       trial testimony and stated that she had lied at trial
       in accusing her father of molesting her. She also
       signed an affidavit to that effect.14

       Article 73, UCMJ,15 permits an accused to petition for a new

trial within two years of the convening authority’s action.

Rule for Courts-Martial 1210(f) [hereinafter R.C.M.] provides as

follows:

       (f) Grounds for new trial.
                 (1) In general. A new trial may be granted
       only on grounds of newly discovered evidence or fraud
       on   the court-martial.
            (2) Newly discovered evidence. A new trial shall
       not be granted on the grounds of newly discovered
       evidence unless the petition shows that:
            (A) The evidence was discovered after the trial;
                 (B) The evidence is not such that it would
       have been discovered by the petitioner at the time of
       trial in the exercise of due diligence; and
                 (C) The newly discovered evidence, if
       considered by a court-martial in the light of all


14
     58 M.J. at 587-88.
15
     10 U.S.C. § 873 (2000).

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United States v. Cuento, No. 03-0389/NA


       other pertinent evidence, would probably produce a
       substantially more favorable result for the accused.

       In United States v. Rios,16 this Court discussed the Manual

for Courts-Martial, United States (1998 ed.) new trial

provisions:

            Petitions for new trial based on a witness’s
       recantation “are not viewed favorably in the law.”
       United States v. Giambra, 33 M.J. 331, 335 (C.M.A.
       1991). They should not be granted unless “[t]he court
       is reasonably well satisfied that the testimony given
       by a material witness is false.” Id., quoting Larrison
       v. United States, 24 F.2d 82, 87 (7th Cir. 1928).

            Recantations of trial testimony are viewed by
        federal courts with "extreme suspicion."

            Our standard of review on petitions for new trial
       is deferential. We review only for an abuse of
       discretion.

       In United States v. Brooks,17 we again explained the heavy

burden on petitioners and the critical role of appellate courts

in determining credibility:

            When presented with a petition for new trial, the
       reviewing court must make a credibility determination,
       insofar as it must determine whether the “newly
       discovered evidence, if considered by a court-martial
       in the light of all other pertinent evidence, would
       probably produce a substantially more favorable result
       for the accused.” RCM 1210(f)(2)(C). The reviewing
       court does not determine whether the proffered
       evidence is true; nor does it determine the historical
       acts. It merely decides if the evidence is


16
  48 M.J. 268 (C.A.A.F. 1998), cert. denied, 525 U.S. 1156
(1999)(noting the consistency between R.C.M. 1210 and Fed. R.
Crim. P. 33)(citations omitted).
17
     49 M.J. 64, 69 (C.A.A.F. 1998).

                                  15
United States v. Cuento, No. 03-0389/NA


       sufficiently believable to make a more favorable
       result probable.

       We find a Court of Criminal Appeals has abused its

discretion when we reach “a definite and firm conviction that

the court below committed a clear error of judgment in the

conclusion it reached upon weighing of the relevant factors.”18

This is a textbook standard and involves “more than a mere

difference of opinion.”19     After noting the standard with which

to measure Appellant’s petition for new trial and the

circumstances under which J recanted her testimony, and rather

than ordering a fact-finding hearing to assess J’s credibility,

the Court of Criminal Appeals assessed J’s credibility on the

strength of her post-trial affidavit.     The court found that

Appellant had “not met his burden of showing that J’s trial

testimony was false.”20     In so doing, the Court of Criminal

Appeals noted that Appellant’s case is not a simple “swearing

contest,” being instead a case in which the victim’s trial

testimony is corroborated by Appellant’s NCIS statement and his

admissions to counselors.     While those distinctions are

factually accurate as far as they go, they fail to account

adequately for Appellant’s repudiation of his prior statements,


18
  United States v. Houser, 36 M.J. 392, 397 (C.M.A.
1993)(citation omitted).
19
     United States v. McElhaney, 54 M.J. 120, 130 (C.A.A.F. 2000).




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United States v. Cuento, No. 03-0389/NA


his facially rational explanation for having made the

incriminating, but purportedly false statements, and the

potential effect that mutually corroborative denials by

Appellant and J may have at any future proceedings.

       “[W]hen the alleged perjurer is the prosecutrix herself,”

we remain “disinclined” to burden Appellant with mechanical

application of a rigorous standard.21      Under the unique

circumstances of this case, including the lack of any

corroborating physical evidence, that Appellant, both before and

during trial, recanted his NCIS statement and his admissions to

Dr. Barnes and Mr. Martin, and that J’s testimony was the only

other evidence against Appellant, we find that the weight of J’s

recantation cannot adequately be measured without a DuBay

hearing before a military judge at which J would testify under

oath and be subject to cross-examination.

                                DECISION

       The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is affirmed as to Issues II and III.      As to

Issue I, the decision of the court is reversed and returned to

the Judge Advocate General of the Navy for submission to a




20
     Cuento, 58 M.J. at 590.
21
     Giambra, 33 M.J. at 335.

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United States v. Cuento, No. 03-0389/NA


convening authority for a DuBay hearing.   Following that

hearing, the record should be returned to the Navy-Marine Corps

Court of Criminal Appeals for a determination of whether “[t]he

newly discovered evidence, if considered by a court-martial in

the light of all other pertinent evidence, would probably

produce a substantially more favorable result for the accused.”

See United States v. Brooks, 49 M.J. 64 (C.A.A.F. 1998).




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