               U NITED S TATES AIR F ORCE
             C OURT OF C RIMINAL APPEALS
                          ________________________

                           Misc. Dkt. No. 2016-18
                          ________________________

                          Robert D. COOK
            Master Sergeant (E-7), U.S. Air Force, Petitioner
                                       v.
                             UNITED STATES
                               Respondent
                          ________________________

         Petition for a New Trial Pursuant to Article 73, UCMJ
                         Decided 28 February 2017
                          ________________________

Military Judge: Shelly W. Schools.
Approved sentence: Dishonorable discharge, confinement for 18
months, and reduction to E-1. Sentence adjudged 10 April 2015 by
GCM at MacDill Air Force Base, Florida.
For Petitioner: Brian A. Pristera, Esquire (argued), and Major Lauren
A. Shure, USAF.
For Respondent: Captain Tyler B. Musselman, USAF (argued), and
Gerald R. Bruce, Esquire.
Before MAYBERRY, SPERANZA, and JOHNSON, Appellate Military
Judges.
Judge SPERANZA delivered the opinion of the court, in which Senior
Judge MAYBERRY and Judge JOHNSON joined.
                          ________________________

    This is an unpublished opinion and, as such, does not serve as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

SPERANZA, Judge:
   A general court-martial composed of officer and enlisted members found
Petitioner guilty of sexual assault in violation of Article 120, Uniform Code of
                  Cook v. United States, Misc. Dkt. No. 2016-18


Military Justice (UCMJ), 10 U.S.C. § 920. The court-martial sentenced Peti-
tioner to a dishonorable discharge, confinement for 18 months, reduction to
E-1, and forfeiture of all pay and allowances. The military judge denied Peti-
tioner’s request for a new trial following a post-trial Article 39(a), UCMJ, 10
U.S.C. § 839(a), session, during which Petitioner argued the discovery of new
evidence demanded a new trial. The convening authority approved the find-
ings and the sentence with the exception of disapproving the adjudged forfei-
tures and granting Petitioner’s request for deferment and waiver of automat-
ic forfeitures.
    Petitioner filed a petition for a new trial with The Judge Advocate Gen-
eral (TJAG) of the United States Air Force pursuant to Article 73, UCMJ, 10
U.S.C. § 873. Accordingly, TJAG referred the petition for a new trial to this
court, where Petitioner’s appeal is pending. 1 Petitioner seeks a new trial
based on the discovery of new evidence and fraud on the court. After review-
ing the record before us, we grant the petition for a new trial.

                                  I. BACKGROUND
    Technical Sergeant (TSgt) LT, TSgt MH, and Mrs. AA went to a local bar
for a “ladies’ night” out. Petitioner was also at this bar with his girlfriend,
TSgt SB, who was an acquaintance of TSgt MH and Mrs. AA. Throughout the
night, the women danced and drank alcohol. Observations about TSgt LT’s
level of intoxication during the night varied.
    Near the end of the evening, Mrs. AA contacted her husband to pick her
and TSgt LT up from the bar and take them home. While waiting for her
husband to arrive, Mrs. AA walked with TSgt LT to Petitioner’s car. TSgt LT
got into the car but Mrs. AA then went back inside the bar. Petitioner drove
his car to an adjacent lot where TSgt LT alleged Petitioner sexually assaulted
her in the presence of TSgt SB, who was also in the car. During the sexual
act, TSgt LT told Petitioner, “Oh my God, this is happening,” and “Please
don’t, I’m not on birth control, my anniversary is coming up.”




1 Petitioner filed his petition and assignments of error on the same day. On appeal
and in the alternative, Petitioner argues trial defense counsel was ineffective in fail-
ing to locate, interview, and call the only witness who could impeach the complaining
witness on a critical issue for the merits and sentencing phases of trial, and this inef-
fective assistance prejudiced Petitioner by resulting in his conviction at trial. Accord-
ingly, we ordered Petitioner’s trial defense counsel, Major KM and Captain SL, to
submit affidavits or declarations responsive to Petitioner’s allegations.




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                 Cook v. United States, Misc. Dkt. No. 2016-18


    After TSgt LT’s friends returned to the parking lot and did not see Peti-
tioner’s car, they attempted to contact TSgt LT. After a short period of time,
Petitioner drove back to the bar and was met by an angry Mrs. AA. TSgt LT
exited the car on her own and told Mrs. AA that she was okay.
    Mrs. AA’s husband drove TSgt LT and Mrs. AA to TSgt LT’s home. Dur-
ing the car ride, according to Mrs. AA, TSgt LT at first appeared fine. She
was talking about what a fun night it was during the first 15 minutes or so,
but then she began crying and apologizing to Mrs. AA’s husband. When Mrs.
AA asked TSgt LT what was wrong and why she was crying, TSgt LT said, “I
think they raped me.” Mrs. AA asked TSgt LT what she was talking about
and if she was sure. Once they arrived at TSgt LT’s home, Mrs. AA asked
TSgt LT if she was lying. TSgt LT said “no.” Mrs. AA contacted the police.
    Local law enforcement arrived at TSgt LT’s home in the early morning
hours. TSgt LT provided a written statement and declined emergency medi-
cal care. A few hours after reporting the sexual assault, TSgt LT, accompa-
nied by her husband, underwent a sexual assault nurse examination (SANE)
that revealed redness in the area of her labia. TSgt LT said that she experi-
enced pain and apparent swelling near her elbow, which she injured at the
bar. The SANE report also noted C-section scarring; however, the SANE
yielded no other pertinent forensic evidence. 2
    Civilian detectives interviewed TSgt LT the next day. During that inter-
view, TSgt LT told detectives that she and her husband have their “issues”
but maintained “I would never, I would never cheat on him.” TSgt LT also
stated, “[T]hey’re saying I consented. If I consented, then I got nothing to, I’ve
got nothing . . . I’ve got nothing to stand on.”
    During their case preparation and investigation, trial defense counsel be-
came aware of rumors that TSgt LT had an extramarital affair with Mr. PS,
a former Air Force member, while they were performing temporary duty
(TDY). However, trial defense counsel was not able to positively identify or
locate Mr. PS, nor could they corroborate rumors of an affair after conducting
numerous witness interviews and searching military databases for Mr. PS
using multiple permutations of his name. 3


2An acid phosphatase test resulted in a presumptive positive for seminal fluid; how-
ever, further examination under a Woods lamp did not confirm the presence of semi-
nal fluid. The SANE nurse also collected TSgt LT’s underwear and shorts, as well as
oral/buccal, perineum, vaginal, and cervical swabs.
3 Trial defense counsel interviewed several witnesses regarding these rumors, includ-
ing TSgt LT, her husband, TSgt MH, and Staff Sergeant (SSgt) BH. TSgt LT denied
(Footnote continues on next page)


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                 Cook v. United States, Misc. Dkt. No. 2016-18


    Because TSgt SB—Petitioner’s girlfriend—was under investigation and
also facing court-martial charges arising out of the same incident, the conven-
ing authority declined to grant TSgt SB testimonial immunity in Petitioner’s
case. During the findings portion of Petitioner’s trial, TSgt LT testified that
she would not have consented to the alleged sexual act due to her sexual past,
her monogamous relationship with her husband, and the pain she experienc-
es during vaginal intercourse due to a medical condition. At sentencing, TSgt
LT testified about the impact Petitioner’s offense had on her relationship
with her husband.
    Three days after Petitioner’s trial, TSgt MH informed trial defense coun-
sel that she made contact with Mr. PS. Twelve days after Petitioner’s trial,
trial counsel sent Petitioner’s trial defense counsel an email stating the fol-
lowing:
       This morning we received the Defense witness list in US v
       [TSgt SB]. That list included a person the Government had
       never spoke with or heard of before. After speaking with him,
       he stated that back in 2006, while on TDY, he engaged in sexu-
       al intercourse with [TSgt LT]. I am providing you this infor-
       mation pursuant to Brady v. Maryland, and my continuing dis-
       covery obligation. If you have any questions, let me know. Here
       is his information- Mr. [PS], [. . .].
    Soon thereafter, TSgt LT signed a letter entitled “Victim Decision to De-
cline to Voluntarily Participate in the [general court-martial] against TSgt
SB.” The charges against TSgt SB were dismissed.
   Defense counsel obtained an affidavit from Mr. PS in which he admitted
he had consensual sexual intercourse with TSgt LT on one occasion in 2006
while they were TDY.
    Approximately one and a half months after Petitioner’s trial, the Defense
moved for a post-trial Article 39(a) session and, inter alia, a new trial. The
Government opposed the motion. The military judge granted the Defense’s
request for the post-trial session and held the session just over three months
after Petitioner’s trial. At the session, TSgt SB testified and described a con-


having a sexual relationship with Mr. PS or sexual encounters with anyone else dur-
ing past TDYs. TSgt LT’s husband denied knowledge of TSgt LT having an extramar-
ital affair. TSgt MH stated that she did not have contact information for Mr. PS and
surmised that Mr. PS would not be willing to admit to the alleged affair due to his
personal circumstances. SSgt BH indicated he knew Mr. PS, but did not have any
contact information since Mr. PS separated from the military.




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                 Cook v. United States, Misc. Dkt. No. 2016-18


sensual sexual encounter between Petitioner and TSgt LT. Mr. KM, a former
military member and supervisor of TSgt LT, also testified. Mr. KM recounted
a time when TSgt LT, after returning from TDY, told him that she was nerv-
ous during the TDY when her husband called because she was lying in bed
with Mr. PS and had to tell Mr. PS to be quiet. Mr. KM also described TSgt
LT explaining that she was staying late after work so she could meet Mr. PS
at the family camp on base.
    Mr. PS testified at the post-trial Article 39(a) as well. Mr. PS, contrary to
his affidavit, claimed he had a sexual relationship with TSgt LT that includ-
ed several instances of vaginal intercourse and oral sex. Mr. PS was also able
to describe certain scars or marks on TSgt LT’s stomach.
    The defense paralegal testified about the Defense’s efforts to locate Mr.
PS before trial. The military judge also received an affidavit from one of Peti-
tioner’s trial defense counsel that further described efforts taken to locate Mr.
PS. 4

    II. DISCUSSION—PETITION FOR A NEW TRIAL (ARTICLE 73, UCMJ)
   In order to prove its case, the Government had to prove the following ele-
ments beyond a reasonable doubt: one, that Petitioner committed a sexual act
upon TSgt LT, to wit: causing penetration of her vulva with his penis; and
two, that Petitioner did so when TSgt LT was incapable of consenting to the
sexual act due to impairment by an intoxicant, to wit: alcohol, a condition
that was known or reasonably should have been known by Petitioner.
   Nevertheless, the Government, in its findings case-in-chief, chose to pre-
sent evidence regarding whether TSgt LT would consent to the sexual act in
addition to whether she was capable of consenting to the sexual act, as
charged. Accordingly, the Government sponsored the following testimony
from TSgt LT on direct examination:
       Q. [TSgt LT], I want to take a step back. I want to talk about
       some of the reasons why you would not have consented to sexual
       intercourse that night. I want to start with your marriage. How
       long have you been married?


4The Government also called its case paralegal who testified about the Government’s
preparation for the post-trial 39(a) session, including its interviews and database
searches. The paralegal explained the relative ease with which the Government was
able to find Mr. PS’s personal contact information when this information was already
known to the Government after Petitioner’s trial.




                                         5
         Cook v. United States, Misc. Dkt. No. 2016-18


A. Going on 13 years.
Q. Thirteen years. And how did you meet your husband?
A. I was in high school. I was 15 with three friends at the fair.
Q. And I’m going to commit the cardinal sin of asking how old
are you now?
A. 30.
Q. So you’ve known him for 15 and been married for 13 years?
A. Correct.
Q. Is that correct?
A. That’s correct.
Q. [TSgt LT], have you had any other sexual partners?
A. I have not.
Q. Your husband is the only sexual partner you’ve ever had?
A. That’s correct.
Q. In June of 2014, how would you describe your marriage?
A. It was good. I mean we were—our goal was to get here to
Tampa. We were at Patrick for 7 years and loved Florida. We
wanted to come back to Florida and we got here and we had
just bought a brand-new home. We bought our first house. Ac-
tually things were really good. I mean, we’ve been married for
13 years, I’m not going to say we—he’s a man. He drives me
crazy, but it was as good as—it was good. Everything was—
Q. Now we heard yesterday, [TSgt LT], that you fabricated this
allegation in order to save your marriage. Is that true?
A. That’s not true.
Q. Tell the members how you know that that is untrue.
A. I love my husband with all my heart. He’s my soul mate
without him I wouldn’t be where I am today. Anything I’ve ever
needed he has been there for. I’ve had sexual issues myself and
he’s been there. Like I have medical issues and he has been
there through all of it. He’s been by my side. I couldn’t ask for
more supportive, more of a great father to my children. I have
absolutely no reason no desire for anybody but my husband.
He’s been the one that I wanted my entire life and he’s the one
I have.


                                6
                   Cook v. United States, Misc. Dkt. No. 2016-18


       ....
       Q. [TSgt LT], had you come home that night like you said you
       were wasted, had you come home wasted like you were, did you
       fear in June 2014 that as a result of being wasted, your hus-
       band would leave you?
       A. Being drunk?
       Q. Right.
       A. No.
       ....
       Q. Now I want to talk about one of the other reasons you would
       not have consented that evening. You said that your husband
       was your only sexual partner?
       A. That’s correct.
    The Government also directed TSgt LT’s testimony to a medical condition
she suffered by signaling, “I’m going to talk to you about the medical issue
that you have . . . .” TSgt LT then testified that ever since the birth of her
son, who was eight at the time of trial, she had a medical condition that made
sexual intercourse painful for her. Although she testified her husband was
“always” supportive, she said they had an ongoing concern about the ability
to have intercourse as “[i]t takes a lot for me to enjoy it and be able to have
intercourse with my husband.”
    After trial defense counsel attacked TSgt LT’s credibility on cross-
examination, the Government presented three witnesses, an officer and two
noncommissioned officers, who offered positive opinions of TSgt LT’s charac-
ter for truthfulness.
   After identifying the elements of the offense, the military judge instructed
the members in findings, as follows:
       “Consent” means a freely given agreement to the conduct at is-
       sue by a competent person. An expression of lack of consent
       through words or conduct means there is no consent. Lack of
       verbal or physical resistance or submission resulting from the
       use of force, threat of force, or placing another person in fear
       does not constitute consent. A current or previous dating or so-
       cial or sexual relationship by itself or the manner of dress of
       the person involved with the accused and the conduct at issue
       shall not constitute consent.
       The evidence has raised the issue of whether [TSgt LT] consent-
       ed to the sexual conduct elicited in the Specification of the

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         Cook v. United States, Misc. Dkt. No. 2016-18


Charge. All of the evidence concerning consent to sexual conduct
is relevant and must be considered in determining whether the
government has proven the elements of the offense beyond a rea-
sonable doubt. Stated another way, evidence the alleged victim
consented to the sexual conduct, either alone or in conjunction
with the other evidence in the case, may cause you to have a rea-
sonable doubt as to whether the government has proven every
element of the offense.
The evidence has also raised the issue of mistake on the part of
the accused concerning [TSgt LT’s] condition in relation to the
charged offense.
I advised you earlier that to find the accused guilty of the of-
fense, you must find beyond a reasonable doubt that the ac-
cused knew or reasonably should have known that [TSgt LT]
was incapable of consenting to the sexual conduct due to im-
pairment by an intoxicant. The accused is not guilty of the of-
fense of sexual assault if:
One, the accused did not know that [TSgt LT] was incapable of
consenting to the sexual conduct due to impairment by an in-
toxicant; and
Two, such belief on his part was reasonable.
To be reasonable, the belief must have been based on infor-
mation, or lack of it, which would indicate to a reasonable per-
son that [TSgt LT] was capable of consenting to the sexual con-
duct.
Additionally, the mistake cannot be based on a negligent fail-
ure to discover the true facts. Negligence is the absence of due
care. “Due care” is what a reasonably careful person would do
under the same or similar circumstances. You should consider
the accused’s age, education, and experience, along with the
other evidence on this issue.
The burden is on the prosecution to establish the accused’s
guilt. If you are convinced beyond a reasonable doubt that, at
the time of the charged offense, the accused did not mistakenly
believe that [TSgt LT] was capable of consenting to the sexual
conduct, the defense of mistake does not exist. Even if you con-
clude that the accused did mistakenly believe that [TSgt LT]
was capable of consenting to the sexual conduct, but you are
convinced beyond a reasonable doubt that, at the time of the



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                Cook v. United States, Misc. Dkt. No. 2016-18


       charged offense, the accused’s mistake was unreasonable, the
       defense of mistake does not exist.
       In weighing any discrepancy by a witness or between witness-
       es, you should consider whether it resulted from an innocent
       mistake or a deliberate lie. Taking all these matters into ac-
       count, you should then consider the probability of each witness’
       testimony and the inclination of the witness to tell the truth.
       The believability of each witness’ testimony should be your
       guide in evaluating testimony and not the number of witnesses
       called. (Emphasis added).
    Regarding the determination of TSgt LT’s credibility, the military judge
instructed:
       Evidence has been received as to personal opinions regarding
       [TSgt LT]’s character for truthfulness. Any such testimony,
       however, does not constitute an opinion by any witness as to
       whether a crime did or did not occur. This information consti-
       tutes those witnesses personal opinion of [TSgt LT]’s character
       for truthfulness generally. You may consider this evidence and
       give it whatever weight you believe it deserves, in determining
       [TSgt LT]’s believability.
       Only you, the member of the court, determine the credibility of
       the witnesses and what the facts are in this case. No witness,
       expert or otherwise, can testify that the alleged victim’s ac-
       count of what occurred is true or credible or that a witness be-
       lieves the alleged victim. To the extent that you believe that
       any witness stated that they believed the alleged victim or that
       a crime occurred, you may not consider this as evidence that a
       crime occurred or evidence of the alleged victim’s credibility.
    Throughout the Government’s findings argument, trial counsel emphati-
cally endorsed TSgt LT’s credibility by, in part, challenging the members to
quickly return a finding of not guilty if they did not believe TSgt LT and re-
peatedly asking questions such as, “Is she making this up?” and “Is she lying
the entire time?” Trial defense counsel maintained that TSgt LT consented to
sex with Petitioner but lied about it to prevent losing her husband or causing
further issues in her marriage. Even though the military judge did not in-
struct the members with respect to mistake of fact as to consent, the Defense
also advanced such a theory due to TSgt LT’s interactions and statements to
Petitioner about her not being on birth control. In closing, trial counsel ar-
gued the evidence did not support the conclusion that TSgt LT fabricated the
allegation in order to save her marriage.


                                      9
                 Cook v. United States, Misc. Dkt. No. 2016-18


   In sentencing, TSgt LT testified about her sexually monogamous relation-
ship with her husband and how the alleged sexual assault was an affront to
her marriage:
       For the past 15 years, I’ve been proud to say I’ve only ever been
       with one man and that man’s my husband. [Petitioner] has
       taken that from me. I can still say that I’ve chosen to be with
       only [one] man, my husband, but I feel I have lost a piece of
       myself.
    Petitioner argues that he is entitled to a new trial on two grounds: (1) due
to the discovery of new evidence showing TSgt LT engaged in an extramarital
affair; and (2) because TSgt LT committed a fraud upon the court by testify-
ing to the contrary. 5
    We review a petition for a new trial de novo, but “the evidence considered
at [a] post-trial session is, of course, relevant to our analysis.” See United
States v. Harris, 61 M.J. 391, 393 n.3 (C.A.A.F. 2005).
    “The determination of sufficient grounds for granting a petition for new
trial in the military rests ‘within the [sound] discretion of the authority con-
sidering . . . [that] petition.’” United States v. Bacon 12 M.J. 489, 492 (C.M.A.
1982). Accordingly, it is this court’s prerogative to weigh the testimony at tri-
al against the post-trial evidence to determine which is credible. Id. We are
also free to exercise our factfinding powers. See id. The only limit on our fact-
finding powers is that our “broad discretion must not be abused.” Id.; see also
United States v. Evans, 26 M.J. 550, 552 (A.C.M.R. 1988), aff’d, 27 M.J. 447
(C.M.A. 1988), cert. denied, 490 U.S. 1092 (1989) (“Our ability to weigh trial
testimony or exercise factfinding powers is limited solely in that our broad
discretion may not be abused.”).
    A Petitioner may petition for a new trial “on the grounds of newly discov-
ered evidence or fraud on the court.” Article 73, UCMJ, 10 U.S.C. § 873. Peti-
tions for a new trial do not proceed through the usual appellate chain. Id.; see
United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F. 1998). Instead, they are
submitted to TJAG, who acts on the petition unless the case is pending before
an appellate court, in which case he refers the petition to the appellate court
where the case is pending. Rules for Courts-Martial (R.C.M.) 1210(a), (e).
   A new trial shall not be granted on the grounds of newly discovered evi-
dence unless the petition shows that:


5A determination of whether TSgt LT committed a fraud upon the court is not neces-
sary given our findings with respect to the newly discovered evidence.




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                Cook v. United States, Misc. Dkt. No. 2016-18


       (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 dili-
       gence; and
       (C) The newly discovered evidence, if considered by a court-
       martial in the light of all other pertinent evidence, would prob-
       ably produce a substantially more favorable result for the ac-
       cused.
R.C.M. 1210(f)(2); see United States v. Luke, 69 M.J. 309 (C.A.A.F. 2011);
United States v. Johnson, 61 M.J. 195, 198–99 (C.A.A.F. 2005).
    “[R]equests for a new trial . . . are generally disfavored,” and are “granted
only if a manifest injustice would result absent a new trial . . . based on prof-
fered newly discovered evidence.” United States v. Hull, 70 M.J. 145, 152
(C.A.A.F. 2011) (quoting United States v Williams, 37 M.J. 352, 356 (C.M.A.
1993)).
    Trial defense counsel discovered the evidence of an extramarital affair be-
tween TSgt LT and Mr. PS after Petitioner’s trial and with the assistance of
the Government, whose representatives only came upon Mr. PS’s contact in-
formation after Petitioner’s conviction and during the pre-trial preparation
for TSgt SB’s prosecution. Prior to TSgt MH’s and the Government’s post-
trial disclosures, trial defense counsel only had mere rumors that TSgt LT
engaged in an extramarital affair nine years earlier.
    The fact that trial defense counsel was only aware of these rumors and
did not uncover any corroborating evidence was not due to a lack of due dili-
gence. TSgt LT denied having affairs or any such a relationship in the pre-
trial interview with trial defense counsel. Her husband confirmed as much in
his interview. Other witnesses who had contact information regarding Mr. PS
decided, for whatever reason, not to disclose its existence to trial defense
counsel prior to Petitioner’s trial. Moreover, the trial defense team was rea-
sonably diligent in its efforts to locate a former military member who may
have had an extramarital affair with the alleged victim of a sexual assault
nine years previously. Given the nature of the charged offense—sexual as-
sault when Petitioner knew or reasonably should have known TSgt LT was
incapable of consenting due to impairment by alcohol intoxication—and the
results of their interviews, trial defense counsel understandably focused on
discerning how impaired TSgt LT was at the time of the alleged sexual act.
Therefore, on the record before us, we find that trial defense counsel exer-
cised the requisite due diligence in their attempts to corroborate a rumor of
an old affair.



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                 Cook v. United States, Misc. Dkt. No. 2016-18


    We now turn to the third requirement for granting a new trial based on
newly discovered evidence. In Petitioner’s trial, the Government sought to
prove that TSgt LT would not have consented to the alleged sexual act be-
cause she never engaged in sexual relationships with anyone other than her
husband and her medical conditions cause even consensual vaginal inter-
course with her husband to be painful. Accordingly, in findings, TSgt LT’s
consent to the alleged sexual act, or lack thereof, became a material matter
for the members to consider when determining whether the Government had
proven the elements of the charged offense beyond a reasonable doubt. The
resolution of the issue of consent, like most of the material facts in Petition-
er’s trial, rested squarely upon the credibility of TSgt LT. See Williams, 37
M.J. at 358. “Thus, in the absence of physical evidence and direct corrobora-
tion testimony, factors affecting [TSgt LT’s credibility] were clearly of critical
importance.” Id.
    The record before us establishes that the newly found evidence regarding
TSgt LT’s extramarital sexual relationship with Mr. PS would probably pro-
duce a substantially more favorable result for Petitioner in findings and, at
the very least, sentencing. Moreover, evidence that TSgt LT engaged in an
extramarital affair with Mr. PS discloses noncumulative impeachment evi-
dence that is relevant not only to a material issue in the case, but the disposi-
tive issue in Petitioner’s case—TSgt LT’s credibility. Id. at 375. We also note
that this newly discovered evidence may not only show that TSgt LT did, in
fact, have an extramarital affair in direct contradiction to her previous
statements and testimony, 6 but that she may have been dishonest with detec-
tives and trial defense counsel during her interviews, and concealed the affair
from her husband, Government counsel, Government character witnesses,
and a court-martial panel. See id. at 359. Considering the entire record before
us, we conclude that this devastating evidence concerning TSgt LT’s credibil-
ity and the veracity of her testimony, if considered by Petitioner’s court-
martial in the light of all other pertinent evidence, would probably produce a
substantially more favorable result for Petitioner.




6 We have considered matters related to Mr. PS’s credibility, but find the proffered
evidence sufficiently believable to make a more favorable result probable for Peti-
tioner. United States v. Luke, 69 M.J. 309, 314 (C.A.A.F. 2011) (“The reviewing court
does not determine whether the proffered evidence is true; nor does it determine his-
torical facts. It merely decides if the evidence is sufficiently believable to make a
more favorable result probable.”).




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               Cook v. United States, Misc. Dkt. No. 2016-18


                            III. CONCLUSION
   The findings and the sentence are SET ASIDE. Petitioner’s petition for a
new trial is GRANTED. The record is returned to TJAG for action consistent
with this opinion.


                FOR THE COURT



                KURT J. BRUBAKER
                Clerk of the Court




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