UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                             Before
                                 TOZZI, HERRING, and BURTON
                                    Appellate Military Judges

                                UNITED STATES, Appellee
                                            v.
                          First Lieutenant CLINT A. LORANCE
                              United States Army, Appellant

                                         ARMY 20130679

                               Headquarters, Fort Bragg
                         Kirsten V. Brunson, Military Judge
    Colonel John N. Ohlweiler, Staff Judge Advocate (pretrial and recommendation)
        Lieutenant Colonel Dean L. Whitford, Staff Judge Advocate (addendum)

For Appellant: Lieutenant Colonel Jonathan F. Potter, JA; Captain Payum Doroodian,
JA; John N. Maher, Esq.; John D. Carr, Esq. (on brief); Captain Scott Martin, JA;
John N. Maher, Esq.; John D. Carr, Esq. (on reply brief); Lieutenant Colonel
Jonathan F. Potter, JA; John N. Maher, Esq.; John D. Carr, Esq. (Petition for New
Trial); Lieutenant Colonel Jonathan F. Potter, JA; Captain Payum Doroodian, JA;
John N. Maher, Esq.; John D. Carr, Esq. (reply brief on Petition for New Trial)

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Captain Samuel E. Landes, JA (on brief); 1 Colonel Mark H. Sydenham, JA;
Lieutenant Colonel A.G. Courie III, JA; Captain Samuel E. Landes, JA (on reply brief);
Colonel Mark H. Sydenham, JA; Major Daniel D. Derner, JA; Captain Samuel E.
Landes, JA (brief and reply brief in response to Petition for New Trial).


                                            27 June 2017
                            ---------------------------------------------------
                            MEMORANDUM OPINION AND ACTION
                                  ON PETITION FOR NEW TRIAL
                            ---------------------------------------------------

    This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

HERRING, Judge:

      An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of attempted murder, murder, wrongfully communicating a

1
 The government’s brief in response to appellant’s assignment of errors, as well as
appellant’s reply brief, were revised and resubmitted to this court.
LORANCE—ARMY 20130679

threat, reckless endangerment, soliciting a false statement, and obstructing justice in
violation of Articles 80, 118, and 134 Uniform Code of Military Justice, 10 U.S.C.
§§ 880, 918, 934 (2012) [hereinafter UCMJ]. The panel sentenced appellant to a
dismissal, confinement for twenty years, and forfeiture of all pay and allowances.
The convening authority approved only nineteen years confinement but otherwise
approved the sentence as adjudged.

       We review this case under Article 66, UCMJ. Appellant assigns six errors,
only two of which—alleging discovery violations and ineffective assistance of
counsel—merit discussion, but no relief. We have considered matters personally
asserted by appellant under United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982);
and find that they lack merit.

                                  BACKGROUND

       In 2012, appellant and members of 4th Brigade Combat Team (BCT), 82nd
Airborne Division were deployed to Afghanistan. During this time, the Chairman of
the Joint Chiefs of Staff’s Standing Rules of Engagement (SROE) were in effect.
The SROE permitted soldiers to use force in defense of themselves or others upon
the commission of a hostile act or the demonstration of imminent hostile intent.
There were no declared hostile forces, and thus no authority to engage any person
upon sight.

       In June 2012, First Platoon of the BCT was situated at an outpost named
Strong Point Payenzai, located near the village of Sarenzai in the Zharay district of
Kandahar province. First Platoon had recently lost their platoon leader to injury
from an improvised explosive device (IED), and had suffered other casualties in the
months prior. Appellant, who had spent the deployment as the squadron liaison
officer (LNO) at the brigade tactical operations center (TOC), was assigned to take
over as the platoon leader.

       On 30 June 2012, appellant, in his new role, was leading the platoon back to
Strong Point Payenzai from the Troop TOC at Strong Point Ghariban. As they
approached the Entry Control Point (ECP), appellant encountered an Afghan villager
with a young child. The villager was asking to move some concertina wire on the
road leading to Strong Point Payenzai that was impeding his ability to work on his
farm. Appellant told the villager that if he touched the concertina wire, he and his
family would be killed. Appellant conveyed the seriousness of his message by
pulling back the charging handle of his weapon and pointing the weapon at the
young child. Appellant ended the encounter by instructing the villager to come to
his shura, a meeting, and to bring twenty people.


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LORANCE—ARMY 20130679

       The next day, appellant ordered two of his soldiers to go up into one of the
towers and shoot harassing fire in the general direction of villagers. Appellant told
the soldiers he was doing this in order to provoke the villagers’ attendance at the
upcoming shura. Hearing the shots, the Troop TOC radioed Strong Point Payenzai
for a report. Appellant instructed a noncommissioned officer to respond by falsely
reporting the Strong Point was receiving fire.

       On 2 July 2012, a mission brief was held for the platoon and their
accompanying Afghanistan National Army (ANA) element before they left to go on a
patrol. In this briefing, it was announced that motorcycles were now authorized to
be engaged on sight, although the testimony was somewhat inconsistent with at least
one soldier recalling this coming from the ANA while others identified appellant as
the source of this new information. Appellant had posted a sign in the platoon
headquarters prior to the patrol stating that no motorcycles would be permitted in the
area of operations. As the platoon, with the ANA element in the lead, moved out
they encountered a number of villagers near the ECP complaining about the shots
from the day prior. Appellant told the villagers that they could discuss it at the
upcoming shura. Appellant told the villagers to leave and then began counting down
from five. The platoon began its patrol.

       Not long into the patrol, Private First Class (PFC) Skelton, the Company
Intelligence Support Team (COIST) member attached to the platoon headquarters
element, called out to appellant that he observed a motorcycle with three passengers.
PFC Skelton did not report any hostile actions, but simply that he spotted a
motorcycle with three passengers in his field of view. Appellant did not ask whether
the motorcycle passengers were presenting any threat. Appellant ordered PFC
Skelton to engage the motorcycle. PFC Skelton complied and fired his weapon, but
missed. At trial, PFC Skelton testified that he would not have fired upon the
motorcycle or its passengers on his own, because “there was no reason to shoot at
that moment in time that presented a clear, definitive hostile intent and hostile act.”

       Apparently in response to the impact of PFC Skelton’s rounds, the motorcycle
stopped, the male passengers dismounted and began walking in the direction of the
ANA unit. The ANA soldiers did not open fire, but rather gesticulated to the men,
who then headed back to their motorcycle. As the three men returned to the
motorcycle, appellant, over his portable radio, ordered the platoon’s gun truck to
engage the men. Private E-2 (PV2) Shiloh, the gunner on the 240 machine gun in the
gun truck that had overwatch of the patrol, had continuous observation of the victims
from after the first set of shots by PFC Skelton. Upon receiving appellant’s order,
Private Shiloh fired his weapon, killing two of the riders and wounding the third.
The third victim ran away into the village. Prior to the engagement, the victims had

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LORANCE—ARMY 20130679

no observable weapons or radios, and were not displaying any hostility toward U.S.
or Afghan forces. According to PV2 Shiloh, the only reason he engaged the men was
because he was ordered to do so by appellant. Following the engagement, the two
deceased victims were on the ground, and the motorcycle was standing up, kickstand
still down. Upon learning that the motorcycle was still standing, Appellant ordered
PV2 Shiloh to engage and disable the motorcycle. PV2 Shiloh refused this order,
noting that a young boy was nearby.

       Shortly after this engagement, helicopter support came on station. The
aircraft crew received a request to locate the third motorcycle rider last seen running
into the village. While on station, the pilot took aerial photographs of the two
deceased victims and the motorcycle. Sergeant First Class (SFC) Ayres, the platoon
sergeant, linked up with appellant to find out what happened, as he had heard the
shots moments before. Appellant told SFC Ayres that the aircraft had spotted the
men on the motorcycle with weapons before his troops engaged.

       Appellant ordered two soldiers, PFC Wingo and PFC Leon, to conduct a
Battle Damage Assessment (BDA) of the deceased victims. BDAs normally entailed
taking photographs, obtaining biometric data, and testing for any explosive residue
on the bodies. Private First Class Skelton was the soldier trained and equipped to
conduct a BDA and was also responsible for briefing the TOC afterwards. Even
though PFC Skelton was standing right next to appellant, appellant had PFC Wingo
and PFC Leon conduct the BDA, neither of whom had the training or equipment to
properly perform the task. When PFC Skelton reminded appellant that he was
supposed to do the BDA, appellant told PFC Skelton not to because he wouldn’t like
what he saw.

       After the two soldiers conducted a cursory inspection of the victims, appellant
told the gathered villagers to take the bodies. The soldiers did not find any
weapons, explosives or communications gear on the bodies. Appellant then told the
radio transmission operator (RTO) to report over the radio that a BDA could not be
done because the bodies were removed before the platoon could get to them. When
the RTO did not make this report, appellant took over the radio and made this report
to Captain (CPT) Swanson, the Troop Commander.

       After the mission, and back at Strong Point Payenzai, appellant told PFC
Skelton not to include the BDA information in his upcoming brief to the TOC.
Private First Class Skelton went to the TOC at Strong Point Ghariban to deliver his
intelligence brief on the patrol. Upon arriving, he informed the COIST platoon
leader that he needed to speak with CPT Swanson. PFC Skelton told CPT Swanson
what happened on the patrol and that he believed they may have civilian casualties.

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LORANCE—ARMY 20130679

Shortly thereafter, appellant was relieved of his duties pending an investigation into
the events.

                               LAW AND ANALYSIS

                               A. Discovery Violations

       “Article 46, UCMJ, provides the trial counsel, defense counsel, and the court-
martial with ‘equal opportunity to obtain witnesses and other evidence in accordance
with’ the rules prescribed by the President.” United States v. Stellato, 74 M.J. 473,
481 (C.A.A.F. 2015) (quoting Article UCMJ art. 46). The Rules for Courts-Martial
elucidate the trial counsel’s unique obligations in furtherance of Article 46’s
mandate. In this case, the two pertinent provisions are: that the “trial counsel shall,
as soon as practicable, disclose to the defense the existence of evidence known to
the trial counsel which reasonably tends to negate…or reduce” the guilt or
punishment of the accused; and that the trial counsel shall permit the defense to
inspect certain items “which are within the possession, custody, or control of
military authorities, and which are material to the preparation of the defense.” Rule
for Courts-Martial [hereinafter R.C.M.] 701(a)(6), R.C.M. 701(a)(2)(A). The former
provision requires no triggering action on behalf of the defense, while the later
provision requires a request from the defense to trigger the trial counsel’s
obligation, for “[w]ithout the request, a trial counsel might be uncertain in many
cases as to the extent of the duty to obtain matters not in the trial counsel’s
immediate possession.” R.C.M. 701 analysis at A21-34. As we have stated before,
the distinction between the two provisions is significant, because “whether the trial
counsel exercised reasonable diligence in response to the request will depend on the
specificity of the request.” United States v. Shorts, 76 M.J. 523, 530 (Army Ct.
Crim. App. 24 Jan. 2017).

         R.C.M. 701(a)(6) is based on Brady v. Maryland and its progeny, which in
turn, is derived from the Due Process Clause of the Fifth Amendment. See generally
Brady v. Maryland, 373 U.S. 83 (1963). Brady requires the prosecution to disclose
evidence that is material and favorable to the defense. Id. at 87. This is an
affirmative duty to disclose and requires no triggering action by the defense.
Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing United States v. Agurs, 427
U.S. 97, 107 (1976)). Evidence is said to be material “if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-434
(1995). The “duty to learn of any favorable evidence known to the others acting on
the government’s behalf in the case, including the police” has long been a
recognized duty of trial counsel. Id. at 437. In order to have a “true Brady violation
“. . . the evidence at issue must be favorable to the accused, either because it is

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LORANCE—ARMY 20130679

exculpatory, or because it is impeaching; that evidence must have been suppressed
by the State, either willfully or inadvertently; and prejudice must have ensued.”
Strickler, 527 U.S. at 281-82. Courts have a responsibility to consider the impact of
undisclosed evidence dynamically, in light of the rest of the trial record. United
States v. Pettiford, 627 F.3d 1223, 1229 (D.C. Cir. 2010) (citing Agurs, 427 U.S. at
112). “Once a Brady violation is established, courts need not test for harmlessness.”
United States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012) (citing Kyles, 514 U.S.
at 435-36).

       With the above framework in mind, we now work through appellant’s
contention that the government violated its discovery obligations. Appellant asserts
that the discovery request from detailed counsel was a specific request for
information and not just a general request. Appellant’s own brief here on appeal, as
well as the actions of appellant pre-trial belie that assertion.

       There is nothing in the record that supports any inference that the defense was
unsatisfied with the government’s response to its discovery request, such as a motion
to compel. Nor is there anything that supports a finding that the defense
contemplated a search of specific intelligence databases. Rather, the language of the
discovery request reflects the typical boilerplate request for discovery, although it
included the language “deceased persons.” We therefore treat this as a general
request for discovery and find that the exercise of reasonable diligence in response
to this request did not include searching intelligence databases. While we have long
held that the rules of military discovery are generous, we decline to now require trial
counsel to seek out and search into the abyss of the intelligence community for the
potential existence of unspecified information.

       In addressing Brady, we first consider whether the information presented by
appellant regarding the identities and associations of the victims was favorable to
appellant. Even assuming we accept appellant’s information concerning the victims
as true, 2 we come to three conclusions.

2
  This court strains to accept the information presented in the video presentation
(Def. App. Ex. K) at face value given that many asserted facts contained therein are
not supported by trial testimony and, in fact, are directly contradicted by trial
testimony. We specifically point to the purported signs that restricted motorcycles
from the area. While there was testimony that such a sign was posted by appellant in
the unit TOC, there was no testimony that any signs were posted in the area of Route
Chilliwack, where the shootings occurred. The exhibit also asserts that air assets
were on station before the shooting of the three men. The trial testimony of the pilot
of the aircraft and the soldiers on the ground all have the aircraft arriving on scene
after the engagement at the center of this trial. Appellant’s video presentation was
more an attempt at persuasive argument rather than a helpful presentation of data and
link analysis of information obtained from intelligence databases.

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LORANCE—ARMY 20130679

       First, with respect to the two deceased victims, the older victim, identified by
witnesses at trial as the village elder, knew someone who was linked to hostile
action against U.S. forces. The younger victim was biometrically linked to an IED
incident that occurred prior to 2 July 2012. Second, the surviving victim was
allegedly involved in hostile action against U.S. forces after he was wounded and his
two compatriots were killed by U.S. forces on 2 July 2012. Third, and perhaps most
importantly, appellant was not aware of any of this information at the time he
ordered his soldiers to engage.

       The testimony of PFC Skelton, who first observed the motorcycle, paints a
clear picture of what happened. He identified the motorcycle and three passengers,
and reported that information to appellant. PFC Skelton did not report any hostile
actions. Appellant did not ask whether the motorcycle passengers were presenting
any threat; he simply ordered PFC Skelton to engage. PFC Skelton testified that he
would not have fired upon the motorcycle or its passengers on his own, because
“there was no reason to shoot at that moment in time that presented a clear,
definitive hostile intent and hostile act.”

       The testimony of PV2 Shiloh, the 240 gunner, supports that these men posed
no discernable harm. The motorcycle was parked and the three men were returning
to the motorcycle at the direction of the ANA element at the time he opened fire.
According to PV2 Shiloh, he engaged the three men based solely on the order from
the appellant.

       In considering any nondisclosure dynamically, as we are required to do, the
evidence presented by the government on the murders and attempted murder was
overwhelming. Appellant had no indications that the victims posed any threat at the
time he ordered the shootings. Assuming arguendo, that the information was found
and turned over to appellant before trial, we can see no scenario for the admissibility
of such evidence during the trial. As stated previously, the negative information
about the surviving victim was derived from actions he took after his two compatriots
were shot and killed on appellant’s orders. The actions of the surviving victim after
the shootings would have no relevance on what appellant knew at the time he ordered
the shootings. In fact, it is the more likely scenario that the government would have
been able to capitalize on this aggravating evidence in presentencing by
demonstrating why the SROE exist, and the direct impact on U.S. forces when the
local population believe they are being indiscriminately killed. The same is true for
the deceased victims. That the village elder knew someone associated with a hostile
act cannot be used to infer that he posed a threat at that date and time. Similarly, if
the other deceased victim was “linked” to a hostile act on a prior date, that is not
sufficient to bring him in to the category of individuals that can be lawfully targeted
under the SROE.

       The rules of discovery “are themselves grounded on the fundamental concept
of relevance.” United States v. Graner, 69 M.J. 104, 107 (C.A.A.F. 2010). “None
                                          7
LORANCE—ARMY 20130679

but facts having rational probative value are admissible.” (quoting 1 John Henry
Wigmore, Evidence in Trials at Common Law 655 (Peter Tillers rev. 1983)). The
aforementioned information simply has no tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Military Rules of Evidence
[hereinafter Mil. R. Evid.] 401. This is particularly true in this incident as the
appellant had no knowledge of this information at the time he made the decision to
engage.

        Since we do not find that the discovered information was favorable to
appellant, we need not address the nondisclosure or prejudice prongs. Consistent
with our holding in Shorts, “to comply with Brady, a trial counsel must search his
or her own file, and the files of related criminal and administrative investigations.
However, consistent with our superior court’s interpretation of the issue, we require
a trial counsel only exercise due diligence.” 76 M.J. at 532 (citing United States v.
Simmons, 38 M.J. 276 (C.A.A.F. 1993)). Here, we find trial counsel exercised the
diligence due under Brady and as required under defense counsel’s discovery
request.

                        B. Ineffective Assistance of Counsel

       To prevail on an ineffective assistance of counsel claim, which we review de
novo, an appellant must show: that counsel’s performance fell below an objective
standard of reasonableness; and that “counsel’s deficient performance gives rise to a
‘reasonable probability’ that the result of the proceeding would have been different
without counsel’s unprofessional errors.” United States v. Akbar, 74 M.J. 364, 371
(C.A.A.F. 2015) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). We
are also mindful that in evaluating the first Strickland prong, we “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. As to our evaluation of the
second Strickland prong, we must determine whether, absent counsel’s errors, there
is a reasonable probability the factfinder would have had a reasonable doubt as to
appellant’s guilt. Id. at 695.

             A court need not determine whether counsel’s
             performance was deficient before examining the prejudice
             suffered by the defense as a result of the alleged
             deficiencies. The object of an ineffectiveness claim is not
             to grade counsel’s performance. If it is easier to dispose
             of an ineffectiveness claim on the ground of lack of
             sufficient prejudice, which we expect will often be so, that
             course should be followed.

      Id. at 697.

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LORANCE—ARMY 20130679

       Even though appellant primarily focuses his claim against civilian defense
counsel, for purposes of ineffective assistance of counsel claims, “the performance
of defense counsel is measured by the combined efforts of the defense team as a
whole.” United States v. McConnell, 55 M.J. 479, 481 (C.A.A.F. 2001) (citing
United States v. Boone, 42 M.J. 308, 313 (C.A.A.F. 1995)). Therefore, we consider
appellant’s claims in light of the defense team’s performance as a unit. We also
consider every claim by appellant balanced against the complete record before us,
including the “experience, and abilities of trial defense counsel; the pretrial
proceedings; the investigative efforts of the defense team; the selection of the court
members; the trial strategy; the performance of counsel during the trial; the
sentencing case; and the posttrial proceedings.” United States v. Murphy, 50 M.J. 4,
8 (C.A.A.F. 1998).

       The record reflects that appellant was fully advised of his rights, the evidence
against him, and that he substantively communicated with his defense team
regularly. He was routinely consulted for his opinion on trial strategy, and was
intimately involved with the decision making of his defense team. The trial strategy
adopted by the defense, with the endorsement of appellant, was that these were
combat related shootings and not orders to murder. To that end, the defense team
competently pursued this theory at every stage of the proceedings. The defense team
worked to portray the appellant as a “by the book” officer trying to bring discipline
back to a unit that had gotten lax under its prior platoon leader. They also attempted
to explain his actions as those of an aggressive young officer trying to protect his
men from further harm. The defense questioned numerous government witnesses to
expound on the frequent use of motorcycles by hostile elements in this area of
operations. Given the overwhelming evidence against appellant, it is difficult to
conceive of any other viable defense. 3

3
  Appellant’s affidavit asserts civilian defense counsel was persistently unprepared,
did not keep in contact with appellant before trial, and did not consult with appellant
on, amongst other things, evidence, the pros and cons of offering a plea, the relative
strength of the government’s evidence, overall strategy and presentencing. This
affidavit makes no mention of the efforts of appellant’s military defense counsel.
Civilian defense counsel and appellant’s military defense counsel submitted
affidavits painting a much different picture and, read together, show a defense team
that kept appellant involved in each stage of his court-martial, both before and after
trial. One area of agreement concerns the overall defense theme that this was a
combat case, not a murder case. Under the circumstances of this case, we see no
need to order a fact-finding hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967). First, even if we accept appellant’s claims
at face value, he has failed to show how he was prejudiced by the stated deficiencies
of his defense counsel. The government presented overwhelming evidence of

                                                                   ( continued . . .)
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LORANCE—ARMY 20130679

       Even had the defense team located biometric evidence pertaining to the
victims, and it was somehow introduced into evidence, there is no reasonable
probability that the result of the proceeding would have been different. On the
contrary, had this evidence been presented at trial, it is likely the panel members
would have considered it an aggravating factor. The fact that the surviving victim
was linked to hostile action against U.S. forces only after his compatriots were
killed illustrates that appellant’s actions directly resulted in a significant adverse
impact on the mission of the command. This is also supported by detailed defense
counsel’s affidavit when he discussed his rationale for being unable to make a site
visit. That is, after the village elder was killed in this incident, the area became so
kinetic that U.S. forces withdrew from there altogether.

                                    CONCLUSION

      The Petition for a New Trial is DENIED. 4 The findings of guilty and the
sentence are AFFIRMED.

      Senior Judge TOZZI and Judge BURTON concur.

                                         FOR THE COURT:



                                         JOHN P. TAITT
                                         Chief Deputy Clerk of Court



(. . . continued)
appellant’s guilt and appellant has not shown how a different approach by defense
counsel during preparation for or at trial would have resulted in a different outcome.
See United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Second, appellant’s
focus on the performance of his civilian defense counsel to the exclusion of the
efforts of his detailed defense counsel ignores our examination of the overall efforts
of the defense team. In this respect, appellant’s affidavit is conclusory as to his
defense team’s supposed ineffectiveness in that it doesn’t address the many
contributions and efforts of his military defense counsel in the overall effort at trial.
Id.
4
  We note this court granted appellant’s request for expedited consideration of his
petition for a new trial on 13 November 2015. The basis for this petition was the
same information that forms the basis for the appellant’s discovery assignment of
error. The parties continued to submit filings on this issue and we did not receive
the last filing, appellant’s revised reply brief, until 21 November 2016. Thus the
delay in addressing appellant’s petition for a new trial.
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