                                    IN THE CASE OF


                             UNITED STATES, Appellee

                                            v.

                             Javier SANTOS, Sergeant
                               U.S. Army, Appellant

                                      No. 03-0093
                             Crim. App. No. 9900559

       United States Court of Appeals for the Armed Forces

                             Argued October 21, 2003

                             Decided March 23, 2004

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


                                         Counsel

For Appellant: Captain Michael L. Kanabrocki (argued); Colonel
    Robert D. Teetsel, Lieutenant Colonel Mark Tellitocci, and
    Major Sean S. Park (on brief); Lieutenant Colonel E. Allen
    Chandler, Jr., Major Jeanette K. Stone, and Captain Linda A.
    Chapman.

For Appellee: Captain Timothy Litka (argued); Colonel Lauren B.
    Leeker, Lieutenant Colonel Margaret B. Baines, and Major
    Theresa A. Gallagher (on brief).


Military Judges:        R. J. Hough and S. R. Henley


        THIS   OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Santos, No. 03-0093/AR


    Judge EFFRON delivered the opinion of the Court.

    At a general court-martial composed of a military judge

sitting alone, Appellant was convicted, pursuant to mixed pleas,

of one specification of violation of a lawful order, two

specifications of assault consummated by a battery, five

specifications of aggravated assault, one specification of

communicating a threat, one specification of indecent assault,

and one specification of kidnapping, in violation of Articles

92, 128, and 134, Uniform Code of Military Justice [hereinafter

UCMJ], 10 U.S.C. §§ 892, 928 and 934 (2000).   He was sentenced

to a dishonorable discharge, confinement for 10 years, total

forfeitures, and reduction to Private E-1.   The convening

authority approved these results and provided Appellant with 181

days of pretrial confinement credit against the sentence.    The

Court of Criminal Appeals affirmed in an unpublished summary

opinion.

     On Appellant’s petition, we granted review of the following

issue:

           WHETHER THE ARMY COURT OF CRIMINAL APPEALS
           ERRED IN RULING THAT THE GOVERNMENT DID NOT
           VIOLATE PETITIONER'S DUE PROCESS RIGHTS
           UNDER BRADY v. MARYLAND, THE CONFRONTATION
           CLAUSE OF THE SIXTH AMENDMENT TO THE
           CONSTITUTION, AND ARTICLE 46 OF THE UCMJ BY
           FAILING TO DISCLOSE EXCULPATORY, FAVORABLE
           AND MATERIAL EVIDENCE TO THE DEFENSE WHICH
           IT KNEW ABOUT OR SHOULD HAVE KNOWN ABOUT
           WHERE THE PROSECUTION WITHHELD CRITICAL
           IMPEACHMENT EVIDENCE THAT WOULD HAVE PROVEN


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United States v. Santos, No. 03-0093/AR


             THAT [Ms. AM] NOT ONLY COMMITTED PERJURY AT
             TRIAL, BUT THAT SHE ALSO HAD STRONG BIASES,
             PREJUDICES, AND MOTIVES TO FABRICATE THE
             CHARGE AGAINST PETITIONER.

        For the reasons set forth below, we hold that any error

with respect to discovery was not prejudicial, and therefore

affirm.



                              I. BACKGROUND

                         A.    FACTUAL SETTING

1.   Testimony at the Article 32 hearing

        The granted issue concerns the charge that Appellant

committed an indecent assault against Ms. AM.      At a pretrial

investigation hearing under Article 32, UCMJ, 10 U.S.C. § 832

(2000), testimony by Ms. AM included the following matters.        She

dated Appellant at various times in 1997, and she was with

Appellant at her mother’s house on a night in the late summer.

When he sought to engage in sexual intercourse with her, she

rebuffed him.    Despite her repeated requests that he stop, he

performed an act of oral sodomy on her.       He then pulled down his

pants, lay on top of her, touched his penis to her vagina, and

attempted to penetrate her while she pleaded with Appellant to

stop.    When he did not respond, she pinched him, and she was

able to extricate herself from the situation.      Based upon this




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United States v. Santos, No. 03-0093/AR


information, an indecent assault charge was added to the

original charges against Appellant.

2.   Defense discovery requests

      Defense counsel’s initial discovery request, submitted to

the trial counsel on February 19, 1999, included the following:

           Any known evidence tending to diminish [the]
           credibility of any witness including . . .
           evidence of other character, conduct, or
           bias bearing on witness credibility under
           M.R.E. 608 . . . Specifically[,] information
           pertaining to . . . Ms. [AM] . . . . The
           defense also requests any other evidence in
           the possession of the government favorable
           to the accused, or tends [sic] to negate the
           guilt of the accused of an offense charged,
           or reduce the punishment for an offense
           charged.

      On April 7, 1999, defense counsel submitted a supplemental

discovery request to obtain:

           Any and all statements made by [Ms. AM].
           Specifically[,] all sworn statements made by
           [Ms. AM] to CID [the Army Criminal
           Investigations Command (CID)] concerning the
           investigation into the death of PFC Chaffin
           [sic].

During the CID investigation noted in the discovery request, the

CID agents at one point treated Appellant as a suspect in the

death of Private First Class (PFC) Jason Chafin.   Eventually,

however, charges were brought against two other service members,

and Appellant was not charged in connection with the death of

PFC Chafin.




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United States v. Santos, No. 03-0093/AR




3.   The Government’s response to the discovery requests

      The Government, in response to the foregoing requests,

provided defense counsel with two documents.   The first

document, a report by the Colorado Springs Police Department,

contained a detective’s summary of an interview with Ms. AM on

February 3, 1998.   According to the summary, Ms. AM stated that

when she met Appellant in early 1997, they were only friends,

and she did not consider herself to be his girlfriend.      They

fell out of touch, but he started contacting her again towards

the end of the summer.   The summary primarily addressed events

on August 29, 1997, the evening that PFC Chafin disappeared.

During the interview, Ms. AM denied seeing Appellant or his

friends that evening.    When she returned home after the

interview, Ms. AM called the investigator to state that she

remembered more details.   Specifically, she recalled that she

saw Appellant and his friend, Specialist (SPC) Neal Johnson, on

August 29, 1997, when they came to a friend’s apartment that

evening at approximately seven o’clock, but that they left no

longer than five minutes later.

      The second document, a sworn statement given by Ms. AM to

the CID on February 9, 1999, concerned the allegation that

Appellant had indecently assaulted her in the summer of 1997.

In the statement, Ms. AM said that Appellant “often ask[ed her]


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United States v. Santos, No. 03-0093/AR


to marry him and to have sexual intercourse with him, which

[she] never did.”    With respect to the night in question, Ms. Am

stated that after Appellant arrived at her mother’s residence,

they went into Ms. AM’s bedroom.       Appellant kissed her and asked

to have sexual intercourse, to which she said no.      He pushed her

down, took off her pajama pants, pulled down his pants and

attempted penetration of her vagina.      When he did not respond to

her requests to stop, she pinched him so that she could

extricate herself.    She was able to do so, and the assault

ceased.   In her sworn statement, Ms. AM did not mention the act

of oral sodomy that had been discussed during her testimony at

the Article 32 hearing.

4.   Consideration of the indecent assault charge at trial

      At trial, Ms. AM testified that she did not consider their

relationship to be that of boyfriend and girlfriend.      Although

she kissed Appellant on occasion, she did not allow their

interaction to proceed further in terms of sexual contact.

Appellant repeatedly expressed his desire to marry her prior to

his pending deployment to Kuwait, and he sought to induce her to

marry him promising to leave his car with her if they wed.      She

testified that she told him that they should “just wait, wait

‘till he got back.”

      With respect to the indecent assault allegation, Ms. AM

testified that Appellant repeatedly attempted to engage her in


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United States v. Santos, No. 03-0093/AR


sexual contact, she eventually allowed him to remove her pajama

pants.   At that time, he performed an act of oral sodomy on her

without her consent.   The balance of her testimony provided a

description of the incident similar to her testimony at the

Article 32 hearing and her statement to the CID.      She added that

she first told the CID about the alleged indecent assault in

January 1998 during the CID’s investigation into PFC Chafin’s

disappearance.   According to Ms. AM, the CID agents asked her

about Appellant’s character, and she told them about the alleged

assault.

     During cross-examination, defense counsel relied upon both

of the documents obtained during discovery.      Defense counsel

first called her attention to the summary of her interview with

the Colorado Springs Police Department, which concerned the

disappearance of PFC Chafin.   Defense counsel noted that the

interview summary contained no claim by Ms. AM that she had been

sexually assaulted by Appellant.       Defense counsel suggested that

the summary contradicted her statement on direct examination

that she had reported the alleged indecent assault to

authorities investigating PFC Chafin’s disappearance.

     Defense counsel then used the second document, the sworn

statement given by Ms. AM to the CID, in an effort to impeach

her credibility.   Counsel contrasted her testimony at trial with

her earlier sworn statement.   At trial, she stated that


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United States v. Santos, No. 03-0093/AR


Appellant had performed an act of oral sodomy on her during the

evening in question, but the sworn statement did not mention

oral sodomy.

        During the defense case, Appellant testified on his own

behalf.    He stated that during his relationship with Ms. AM, he

did not engage in any sexual activity, including oral sodomy.

He further testified that although he did see Ms. AM during

Labor Day weekend in 1997, he was dating another individual

exclusively.    He added that his military duties during the

latter part of the summer had kept him away from the area while

his unit was performing field exercises.

        Appellant expressly disputed Ms. AM’s statement that he

wanted to marry her.    He testified that Ms. AM wanted to engage

in a sham marriage so that she could move out of her mother’s

home.    According to Appellant, Ms. AM attempted to persuade him

to marry her by telling him that he would receive extra

compensation as a married soldier.     She assured him that they

could live in separate rooms, he could still date other women,

and she would take care of his car while he was in Kuwait.

        Appellant also testified that during his deployment in

Kuwait, he received letters from Ms. AM.    He stated that the

letters, which were not produced at trial, contained an apology

from Ms. AM for not telling the truth when she told law

enforcement that Appellant was not present at her friend’s


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United States v. Santos, No. 03-0093/AR


apartment on the night that PFC Chafin was murdered.    According

to Appellant, she also stated that she wanted to have a

relationship with Appellant when he returned from Kuwait.

        During his closing argument on findings, trial counsel

portrayed Ms. AM as a reluctant witness, who had “no vendetta”

against Appellant.    The prosecution theme was that she had

simply provided information to law enforcement officials who

asked her about Appellant during their investigation of an

unrelated case, PFC Chafin’s disappearance.    Defense counsel’s

closing statement sought to portray Ms. AM as untruthful and

focused on the lengthy period of time that elapsed between the

alleged incident and her statements to law enforcement

authorities.    At the conclusion of the arguments, the military

judge deliberated, and entered findings that convicted Appellant

of a number of charges and acquitted him of others.    Appellant

was convicted of the charge that he indecently assaulted Ms. AM.

5.   Post-Trial Developments

        After the trial was concluded, Appellant asked the CID to

provide him with documents related to the investigation of his

case.    The CID response included a number of documents generated

in connection with the disappearance of PFC Chafin, a crime that

was not the subject of charges in the present case.    The

documents from the Chafin investigation had not been included in




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United States v. Santos, No. 03-0093/AR


the prosecution’s response to the defense discovery requests in

the present case.

     In this appeal, Appellant contends that six of the

documents that he received after the trial would have enabled

him to undermine the credibility of Ms. AM at trial.    Appellant

further contends that failure to provide those document’s during

discovery requires reversal of the indecent assault conviction.

We shall first summarize the legal standards applicable to

review of discovery issues, and then apply those standards to

the documents at issue in this appeal.



         II. DEFENSE DISCOVERY IN THE MILITARY JUSTICE SYSTEM

     The military justice system provides for broader discovery

than required by practice in federal civilian criminal trials.

See United States v. Williams, 50 M.J. 436, 439-40 (C.A.A.F.

1999).    Article 46, UCMJ, 10 U.S.C. § 846 (2000), mandates that

“[t]he trial counsel, the defense counsel, and the court-martial

shall have equal opportunity to obtain witnesses and other

evidence in accordance with such regulations as the President

may prescribe.”    The President has implemented Article 46 in

Rule for Courts-Martial 701 [hereinafter R.C.M.].

     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,


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United States v. Santos, No. 03-0093/AR


or control of military authorities, and which are material to

the preparation of the defense.”     Regardless of whether the

defense has made a request, the Government 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 Williams, 50 M.J. at 440 (noting that

R.C.M. 701(a)(6) implements the disclosure requirements of Brady

v. Maryland, 373 U.S. 83 (1963)).     Evidence that could be used

at trial to impeach witnesses is subject to discovery under

these provisions.   See United States v. Watson, 31 M.J. 49, 54

(C.M.A. 1990)(citing Giglio v. United States, 405 U.S. 150

(1972)).

     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.

When an appellant has demonstrated that the Government failed to

disclose discoverable evidence with respect to a specific

request or as a result of prosecutorial misconduct, the


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United States v. Santos, No. 03-0093/AR


appellant will be entitled to relief unless the Government can

show that nondisclosure was harmless beyond a reasonable doubt.

See United States v. Roberts, ___ M.J. ___ (C.A.A.F. 2004).



                          III. DISCUSSION

      Under the standards set forth in Roberts and the cases

cited therein, an appellate court 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.   For purposes of this appeal, we shall assume

without deciding: (1) that the documents at issue were material

to the preparation of the defense and should have been disclosed

in response to the discovery request; and (2) that failure to do

so should be tested for prejudice on appeal under the harmless

beyond a reasonable doubt standard.    The documents at issue were

generated by the CID during investigation of PFC Chafin’s

disappearance.   That investigation did not result in charges

against Appellant, either with respect to PFC Chafin’s

disappearance or with respect to his relationship with Ms. AM.

The documents do not directly address the allegation that

Appellant indecently assaulted Ms. AM.

      The first document cited by the defense is a redacted CID

report dated September 21, 1998, summarizing an interview of Ms.

AM.   According to the summary:


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United States v. Santos, No. 03-0093/AR


          [Ms. AM] was using [Appellant] for his
          vehicle but they did not have sexual
          relations. [Ms. AM] and [Appellant] talked
          about getting married so she could get out
          of her house and receive the extra money
          that spouses receive from the Army.

          [Ms. AM] would drive [Appellant’s] vehicle a
          lot . . . but never would have sex with
          [Appellant].

          [Ms. AM] mentioned [Appellant] has a lot . .
          . of money everytime [sic] they were around
          each other.


This document is largely cumulative of other information

available to Appellant at trial.    In view of Appellant’s

knowledge of his relationship with Ms. AM, as reflected in his

testimony at trial, as well as his ability to establish that she

had not made a timely report of the sexual assault allegations,

the additional value of this document was minimal.   To the

extent that the document addressed the issue of whether Ms. AM

or Appellant was telling the truth at trial as to who initiated

the discussion of marriage, the summary is ambiguous at best.

In any case, it is unlikely that the military judge, as fact-

finder, would have found it necessary to resolve this collateral

issue in the course of adjudicating the indecent assault charge

under the circumstances of this case, particularly where the

defense did not rely upon consent.

     The second set of documents includes five items regarding

Appellant’s whereabouts on the night PFC Chafin disappeared.


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United States v. Santos, No. 03-0093/AR


Two documents are redacted copies of CID reports, summarizing

interviews with Ms. AM.   Both indicate that Ms. AM had been at

the apartment of a friend that night, and that neither Appellant

nor his friend, SPC Johnson, had come to the apartment.   A third

document summarizes an agent’s re-interview of Ms. AM, after she

had acknowledged that Appellant had been at the apartment.     The

summary notes that in the third interview, Ms. AM said that

Appellant had told her to tell the CID that he had not been at

the apartment.   The summary contains the agent’s notation that

either Appellant or Ms. AM was not telling the truth, and it

contains a marginal notation, “Mention Reward.”   The other two

documents contain statements by SPC Johnson, who indicated that

he was with Appellant on the day in question and that they were

at the apartment for some period of time at some point.   The

statements are rambling and lacking in detail, reflecting the

impact of an apparently substantial quantity of alcoholic

beverages consumed by SPC Johnson during that day.

     The fact that Ms. AM had provided inconsistent statements

to law enforcement officials about the evening in question was

already known to the defense at trial, as reflected in other

information provided during discovery and Appellant’s own

testimony.   It is unlikely that the brief summaries and SPC

Johnson’s vague recollections would have enabled the military

judge -- had he been inclined to do so -- to sort out what


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United States v. Santos, No. 03-0093/AR


happened on the night PFC Chafin disappeared.   In any case, the

military judge, as fact-finder, was well aware that Ms. AM had

provided inconsistent information to law enforcement officials

on that matter.   Because that question had no more than a

remote, collateral connection to the alleged indecent assault,

the additional ambiguous information in the CID summaries and

SPC Jonson’s statements would not have had significant impact on

the military judge’s adjudication of the findings.

     The review of discovery violations involves case-specific

considerations.   In another case, undisclosed documents from an

unrelated investigation that cast doubt on the credibility of a

witness might have greater value.    In the present case, in light

of the minimal probative value and utility of the undisclosed

documents at issue, and in light of all the evidence presented

in the record, we hold that any error in not providing these

documents to Appellant during discovery was harmless beyond a

reasonable doubt.



                             DECISION

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




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United States v. Santos, No. 03-0093/AR


     CRAWFORD, Chief Judge (concurring in the result):

     See my separate opinion in United States v. Roberts,

___ M.J. ___ (C.A.A.F. 2004)(concurring in the result).
