                       UNITED STATES, Appellee

                                    v.

                     Michael F. STELLATO, Major
                        U.S. Army, Appellant

                              No. 15-0315

                       Crim. App. No. 20140453

       United States Court of Appeals for the Armed Forces

                        Argued April 28, 2015

                       Decided August 20, 2015

OHLSON, J., delivered the opinion of the Court, in which
ERDMANN, C.J., and BAKER and RYAN, JJ., joined. STUCKY, J.,
filed a separate opinion concurring in the result.

                                 Counsel

For Appellant: Captain Robert H. Meek III (argued); Lieutenant
Colonel Jonathan F. Potter and Major Amy E. Nieman.

For Appellee: Captain Janae M. Lepir (argued); Colonel John P.
Carrell and Major A. G. Courie III.


Military Judge:   Timothy P. Hayes




       This opinion is subject to revision before final publication.
United States v. Stellato, No. 15-0315/AR

     Judge OHLSON delivered the opinion of the Court.*

     The accused1 was charged with sexually assaulting his young

daughter on various occasions over the course of a one-and-a-

half-year period.   More than a year after charges were

preferred, the military judge dismissed the charges with

prejudice because of discovery violations, finding that the

trial counsel’s failure to provide discovery was “continual and

egregious,” the trial counsel’s approach to discovery was

“recklessly cavalier,” and the trial counsel’s actions

constituted “an almost complete abdication of discovery duties.”

Following the Government’s appeal under Article 62, Uniform Code

of Military Justice (UCMJ), 10 U.S.C. § 862 (2012), the United

States Army Court of Criminal Appeals (CCA) vacated the military

judge’s ruling after holding that the military judge abused his

discretion in finding discovery violations and dismissing the

charges with prejudice.   United States v. Stellato, 74 M.J. 501

(A. Ct. Crim. App. 2014).   We granted review and now hold that

the military judge did not abuse his discretion.   We therefore

reverse the CCA’s decision and reinstate the military judge’s

decision.




*Former Chief Judge James E. Baker took final action in this
case prior to the expiration of his term on July 31, 2015.
1
  Because this is an interlocutory appeal, we will henceforth
refer to Appellant as “the accused” in this opinion.

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United States v. Stellato, No. 15-0315/AR

                           I. BACKGROUND

                       A. The Investigations

     The accused, a reservist recalled to active duty, was a

major assigned to the 348th Military Police Battalion, Fort

Bliss, during the times relevant to this case.     In May 2009, the

accused’s wife, Mrs. MS, made a complaint to the Allen County,

Indiana, Sheriff’s Department that the accused had molested

their daughter, Miss MS,2 between 2007 and 2009.    Miss MS was

between two and four years old during this period of time.      In a

series of e-mails with Mrs. MS dated between May and July 2009,

the accused denied the sexual assault allegations.    Mrs. MS

retained copies of these e-mails.

     While investigating the accusations, the Sheriff’s

Department seized a plastic banana from Mrs. MS’s home that was

allegedly used in the sexual assaults.     Also, Miss MS was

forensically interviewed, and she began to see counselors,

mental health providers, and medical providers.    Mental health

professionals also examined Mrs. MS.   One of these

professionals, Dr. Fred Krieg, evaluated both Mrs. MS and the

accused for child custody proceedings, took notes of the exam,

and wrote a report.   In his report, Dr. Krieg wrote that it was


2
  Both the wife and the daughter have the same initials, MS. To
differentiate between the two, we refer to the wife as “Mrs. MS”
and to the daughter as “Miss MS.” During the investigation into
the sexual molestation allegations, the accused and Mrs. MS
divorced.

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United States v. Stellato, No. 15-0315/AR

inconclusive “[w]hether Miss MS . . . was sexually abused or

not” by any person.   In regard to the accused, Dr. Krieg noted

that “there is no evidence at this point that [the Accused]

sexually abused his child.”

     In May 2012, Mrs. MS reported to the Army’s Criminal

Investigation Division (CID) at Fort Bliss that the accused had

sexually assaulted Miss MS over the course of several years.

During CID’s investigation, Miss MS asserted that Miss LRE (who

was approximately the same age as, and a friend of, Miss MS) was

present during the accused’s alleged sexual assaults and had

also been molested by the accused.   At the time of this May 2012

sexual assault report, the accused was deployed to Afghanistan.

     Because of these allegations, the accused was redeployed to

Fort Bliss in November 2012.   From the date of his redeployment

and throughout the pendency of the criminal investigation and

court-martial, the command placed the accused under

restrictions, which included being removed from a promotion

list, being prohibited from drinking alcohol, being required to

ask for permission to leave post, being required to sign in and

out from post, and being unable to buy a vehicle.   The accused

also was not permitted to contact his wife or daughter.   The

accused further was required to reside in the barracks with

enlisted members.




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United States v. Stellato, No. 15-0315/AR

     In December 2012, the CID investigators reported their

findings to the trial counsel in this case, Captain (CPT) K.

Daniel Jones.   On February 25, 2013, CPT Jones traveled to West

Virginia to meet with Mrs. MS and Miss MS to discuss the case.

During this meeting, Mrs. MS referred to evidence about the

sexual assault allegations which she kept in a box that was

sitting on the table in the kitchen where they met.      CPT Jones

later conceded that he was aware of this box in late February or

early March of 2013, but that he never examined its contents.

     Around February 9, 2013, Mrs. MS collected in a binder some

documents from the box that related to the allegations of

molestation.    She then placed the binder in the box.   Among

other items in the box were notes of conversations Mrs. MS had

with Miss MS about the allegations, journals that Mrs. MS kept

about the allegations, and correspondence between Mrs. MS and

the accused about the allegations.    The box also contained a

note on which Mrs. MS recorded a recantation by Miss MS.

                              B. The Charges

     On March 13, 2013, the Government preferred charges against

the accused alleging one specification of rape of a child, three

specifications of aggravated sexual contact with a child, one

specification of indecent liberties with a child, and one

specification of sodomy with a child, in violation of Articles

120 and 125, UCMJ, 10 U.S.C. §§ 920, 925 (2006 & Supp. I 2008)).



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United States v. Stellato, No. 15-0315/AR

All of the specifications alleged that the sexual misconduct

occurred on divers occasions.    Despite the nature and imprecise

dates of these allegations, the accused waived the Article 32,

UCMJ, investigation.   The case was referred to a general court-

martial in June 2013 and was initially scheduled for trial on

September 17, 2013.

                             C. Discovery

     At the time of the preferral of charges on March 13, 2013,

the Government provided the accused with some discovery,

including the Allen County Sheriff’s Department’s report, the

CID report, and the accused’s interrogations.   However, CPT

Jones “never disclosed to Defense that there was a ‘box’ of

evidence being held by Mrs. [MS].”

     Following preferral, the accused filed his first discovery

request on March 22, 2013, seeking exculpatory evidence,

impeachment evidence, evidence within the possession of the

Government material to the preparation of the defense, results

of physical and mental exams of Miss MS and Mrs. MS, all

previous statements by prosecution witnesses, and prior

statements by the accused.    This discovery request also sought

preservation of evidence.

     CPT Jones, in consultation with the former chief of justice

at Fort Bliss, decided not to respond to the accused’s first




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United States v. Stellato, No. 15-0315/AR

discovery request until closer to referral.3    However, in the

interim CPT Jones never told anyone, including Mrs. MS or the

state law enforcement agencies involved in the investigation, to

preserve evidence.    Moreover, CPT Jones did not inform Mrs. MS

about the discovery request.    Although CPT Jones already was

aware that Mrs. MS had possessed e-mails between Mrs. MS and the

accused that were responsive to the defense discovery request,

CPT Jones did not notify the defense of their existence and he

did not obtain them from Mrs. MS.

        However, CPT Jones did inform Mrs. MS that any evidence she

provided to him would have to be turned over to the accused, so

she should ask him questions ahead of time.    CPT Jones’s precise

testimony on this point was:    “[S]he wanted to provide stuff [to

me] and then have me make a judgment call on whether or not to

turn it over to defense.    And, I said I can’t do that,

everything I get will go to defense.”

        CPT Jones also testified that he later informed Mrs. MS

that the Government needed any evidence that was relevant to the

case.    However, he conceded that he did not define the term

“relevant” or attempt to secure the box of evidence for his own

review.    Further, he did not ask Mrs. MS about her journals or



3
  We note that during the discovery period before referral, CPT
Jones stated to the chief of client services that civilian
defense counsel was “defending rapists,” and he sent an e-mail
to civilian counsel stating that she was “defending the guilty.”

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United States v. Stellato, No. 15-0315/AR

inconsistent statements, and he did not ask about her mental

health treatment until she voluntarily disclosed it.   Mrs. MS

also later stated that she did not “believe” that CPT Jones had

asked her whether Miss MS had ever recanted her sexual abuse

allegations.   CPT Jones testified that he “did all that

discovery very early in this case and [he] did not . . . sit

down with Mrs. [MS] and talk about what she knew about this case

and the facts and that stuff in full. . . . [T]he plan was to do

that kind of the week before trial with her.”

     Prior to trial there was an “initial partial disclosure” to

the defense of some of the evidence from the box when Mrs. MS

scanned “select documents” in her possession and sent them to

CPT Jones on a thumb drive.   The thumb drive did not contain all

of the evidence in Mrs. MS’s possession, though this fact was

not disclosed to the defense until March 2014.   Upon receiving

the thumb drive, the Government printed documents that were on

it but then had to destroy the thumb drive because it had been

connected to a Government server.    A second thumb drive was sent

to CPT Jones, though it is unclear whether the second thumb

drive was a mirror image of the first.   What is clear from the

record is that “all of the evidence in the ‘box’ did not make

its way onto the thumb drive that was provided to defense in

documentary form.”




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United States v. Stellato, No. 15-0315/AR

     The Government provided Section III disclosures4 on June 24,

2013, and its first written response to the accused’s discovery

request on July 9, 2013.   In responding to one discovery

request, CPT Jones added the disclaimer that while all writings

used to prepare witnesses for trial were provided, “Defense may

want to ask again.”5

     Approximately one month before the September 17, 2013,

trial, the accused sought a continuance specifically noting:

(1) the Government’s delay in appointing a forensic expert; (2)

the need to depose Miss LRE about exculpatory statements; and

(3) a pending motion to compel discovery.   The Government

opposed the motion.    The military judge granted a continuance

and rescheduled the trial for December 10, 2013.   In granting



4
  Besides the discovery obligations under Rule for Courts-Martial
(R.C.M.) 701, the Government has disclosure obligations under
Military Rule of Evidence (M.R.E.) 301 to M.R.E. 321. Some
military trial practitioners refer to these disclosure
obligations as Section III disclosures, which require trial
counsel to give the defense notice of “(1) the grant of immunity
or leniency to a prosecution witness, (2) the accused’s written
or oral statements relevant to the case (known to the trial
counsel and within the control of the armed forces), (3) all
evidence seized from the accused that the prosecution intends to
offer into evidence at trial, and (4) all evidence of a prior
identification of the accused at a lineup or other
identification process that it intends to offer at trial.”
Faculty, The Judge Advocate General’s School, U.S. Army, The Art
of Trial Advocacy: The Art of Military Criminal Discovery
Practice -- Rules and Realities for Trial and Defense Counsel,
Army Law., Feb. 1999, at 37, 39 (footnotes omitted).
5
  We note that parties to a court-martial do not need to repeat
discovery requests because there is a continuing duty to
disclose. R.C.M. 701(d).

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United States v. Stellato, No. 15-0315/AR

the accused the continuance, the military judge warned the

Government that its decision to “take a hard stand on discovery

. . . invite[d] disaster at trial.”    (Ellipsis in original.)

     In conjunction with the continuance request, the accused

needed the military judge’s intervention in order to obtain two

important pieces of discovery evidence.   First, the accused

sought the plastic banana6 that was alleged to have been used in

the sexual assaults of Miss MS.    The Government initially

asserted that it had produced all evidence from the Sheriff’s

Department’s evidence locker and that the accused was not

entitled to lost evidence such as the banana.   However, after

the military judge ordered the Government to conduct a search,

the banana was recovered from the Sheriff’s Department and

tested for DNA.   These tests revealed Miss MS’s DNA and an

unidentified male’s DNA, but not the accused’s DNA.

     Second, the accused sought to depose Miss LRE.    The

Government opposed this request, asserting that Miss LRE was

“not relevant to the charges before the Court,” and that Miss

LRE’s inability to “hardly remember” the events was not

exculpatory.   The Government further noted that Miss LRE would


6
  In December 2012 or January 2013, CPT Jones learned of the
existence of the plastic banana that the Allen County Sheriff’s
Department had seized in the course of their investigation.
However, he testified that he believed the Sheriff’s Department
had destroyed it. CPT Jones did not disclose to the defense the
discussion he had with the Sheriff’s Department about the
banana.

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United States v. Stellato, No. 15-0315/AR

be available for trial but that her legal guardian would not

allow her to testify or speak with investigators if she was

under threat of subpoena.   The military judge denied the

defense’s deposition request.   However, “to satisfy defense’s

discovery concerns,” the military judge ordered the Government

to inform Miss LRE’s parents that her presence would be required

at trial if she did not submit to an interview.    After the

military judge’s order, on November 1, 2013, Miss LRE was

subjected to a forensic interview in which she contradicted Miss

MS’s allegations.   Specifically, Miss LRE denied (1) being

molested by the accused, and (2) having witnessed the accused

molest Miss MS.   The accused did not receive a copy of this

interview until December 5, 2013.

     On November 26, 2013, the accused moved to compel

production of witnesses and for a second continuance based on

incomplete discovery.   The military judge granted the motion to

compel witnesses but denied the motion for a continuance.      The

judge also ordered the Government to comply with new discovery

deadlines.

     Also on November 26, the accused received documents from

the West Virginia family court.    The military judge had ordered

the Government to produce these documents from the family court

proceedings on September 17, 2013.     Upon obtaining these family

court documents, the accused learned of additional witnesses



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United States v. Stellato, No. 15-0315/AR

involved in the state custody proceedings who were relevant to

his defense -- the guardian ad litem and the psychologist, Dr.

Krieg.   The accused then moved to compel production of these

witnesses on December 4, 2013.    The Government opposed the

motion on the basis that the accused delayed requesting the

witnesses until eight days after learning about them.

     On the eve of the December 10 trial, the military judge

granted a second continuance because of the Government’s failure

to produce two defense witnesses.      The accused’s trial was

rescheduled for March 18, 2014.    After the military judge had

rescheduled the trial for the second time, CPT Jones and his

wife went to dinner with Mrs. MS and Miss MS after they had

traveled to the December 2014 court-martial site.     Mrs. MS later

gave CPT Jones a baby gift to celebrate the upcoming birth of

his child.

     CPT Jones deployed to Afghanistan and no longer served as

trial counsel for the accused’s case after the December 2013

continuance.   The new trial counsel, CPT BH, disclosed to the

defense on March 5, 2014, that Mrs. MS had informed the

Government that Miss MS had recanted an unspecified allegation

immediately after making it.   Mrs. MS had contemporaneously

recorded the recantation on a handwritten note, and this note

was provided to the accused on March 10, 2014.     This note had

been in the box of evidence which was created and retained by



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United States v. Stellato, No. 15-0315/AR

Mrs. MS and which the Government did not examine or disclose the

existence of prior to the third scheduled trial date.

        The afternoon before trial on March 17, the military judge

held a conference under R.C.M. 802.    During the conference the

accused requested a third continuance because:    (1) the accused

recently had learned that Mrs. MS kept journals about the case,

but those journals could not be immediately provided to the

defense because the Government did not instruct Mrs. MS to bring

them to the trial site; (2) the Government had just produced at

the conference copies of e-mails between the accused and his

wife despite the fact that they had been requested a full year

prior in March 2013; and (3) the Government had just disclosed,

for the first time, the existence of the box of evidence to the

military judge and the defense.    The military judge granted the

motion for a continuance and rescheduled the trial for July 8,

2014.

        The box of evidence was produced after the third

continuance.    However, after this continuance Dr. Krieg, a

defense witness who interviewed the family for the custody

proceedings, passed away from cancer.    The Government had been

in contact with Dr. Krieg and knew that he was scheduled for

surgery in February 2014.    Once the parties learned about the

gravity of his condition, it was too late to depose Dr. Krieg.




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United States v. Stellato, No. 15-0315/AR

Therefore, although Dr. Krieg’s report was available, Dr.

Krieg’s notes and his testimony were not.

                           D. Dismissal

     Based on the events outlined above, the accused moved to

dismiss the case on prosecutorial misconduct grounds.   The

military judge did not resolve the prosecutorial misconduct

issue directly but instead examined whether trial counsel’s

discovery violations warranted dismissal of the charges.    In

doing so, the military judge found “continual and egregious

discovery” violations by CPT Jones.   After considering “all

possible remedies in this case” and the requirement “to craft

the least drastic sanction,” the military judge dismissed the

case with prejudice based on “the nature, magnitude, and

consistency of the discovery violations” in the case.

                           E. The Appeal

     Following the military judge’s ruling, the Government filed

an Article 62, UCMJ, appeal.   The CCA adopted the military

judge’s findings of fact, but determined that the military judge

committed an abuse of discretion by (1) relying on an erroneous

view of discovery law and (2) dismissing the charges with

prejudice.   As a result, the CCA vacated the military judge’s

ruling.

     The accused petitioned for review in this Court, and we

granted review on these two issues:



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United States v. Stellato, No. 15-0315/AR

     I. WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED AS
     A MATTER OF LAW IN CONCLUDING THERE WAS NO DISCOVERY
     VIOLATION AND REVERSING THE MILITARY JUDGE’S REMEDY OF
     DISMISSAL.

     II. WHETHER THE ARMY COURT OF CRIMINAL APPEALS APPLIED
     AN ERRONEOUS VIEW OF THE LAW IN REQUIRING THE MILITARY
     JUDGE TO FIND “WILLFUL IGNORANCE, WILLFUL SUPPRESSION,
     OR OTHER MISCONDUCT” AS A CONDITION PRECEDENT FOR
     DISMISSAL WITH PREJUDICE FOR DISCOVERY VIOLATIONS.

United States v. Stellato, __ M.J. __ (C.A.A.F. 2015).     For the

reasons cited below, we conclude that the military judge did not

abuse his discretion in finding discovery violations and in

dismissing this case with prejudice.   We therefore reverse the

CCA’s decision.

                       II. STANDARD OF REVIEW

     Although the granted issues ask whether the CCA erred in

reversing the military judge’s decision, we review the military

judge’s rulings directly in an Article 62, UCMJ, appeal.     United

States v. Buford, 74 M.J. 98, 100 (C.A.A.F. 2015).    Our review

of a military judge’s discovery rulings is for an abuse of

discretion.   See United States v. Jones, 69 M.J. 294, 298

(C.A.A.F. 2011); United States v. Roberts, 59 M.J. 323, 326

(C.A.A.F. 2004).   We also apply an abuse of discretion standard

when reviewing a military judge’s remedy for discovery

violations.   See United States v. Trimper, 28 M.J. 460, 461-62

(C.M.A. 1989).    “The abuse of discretion standard calls for more

than a mere difference of opinion.”    United States v. Wicks,

73 M.J. 93, 98 (C.A.A.F. 2014) (citation omitted) (internal


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United States v. Stellato, No. 15-0315/AR

quotation marks omitted).   Instead, an abuse of discretion

occurs “when [the military judge’s] findings of fact are clearly

erroneous, the court’s decision is influenced by an erroneous

view of the law, or the military judge’s decision on the issue

at hand is outside the range of choices reasonably arising from

the applicable facts and the law.”    United States v. Miller,

66 M.J. 306, 307 (C.A.A.F. 2008).

                            III. ANALYSIS

     In deciding this case, we must evaluate two decisions by

the military judge:   (1) the determination that trial counsel

committed discovery violations; and (2) the determination that

dismissal with prejudice was an appropriate remedy in this case.

See Buford, 74 M.J. at 100 (reviewing military judge decision

directly in Article 62, UCMJ, appeal).      We will address each

point below.

                        A. Discovery Violations

     1. The Law

     Article 46, UCMJ, provides the trial counsel, defense

counsel, and the court-martial with the “equal opportunity to

obtain witnesses and other evidence in accordance with” the

rules prescribed by the President.    Article 46, UCMJ, 10 U.S.C.

§ 846 (2012).   “Discovery in the military justice system, which

is broader than in federal civilian criminal proceedings, is

designed to eliminate pretrial gamesmanship, reduce the amount



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United States v. Stellato, No. 15-0315/AR

of pretrial motions practice, and reduce the potential for

surprise and delay at trial.”   United States v. Jackson, 59 M.J.

330, 333 (C.A.A.F. 2004) (citation omitted) (internal quotation

marks omitted).   This Court has held that trial counsel’s

“obligation under Article 46,” UCMJ, includes removing

“obstacles to defense access to information” and providing “such

other assistance as may be needed to ensure that the defense has

an equal opportunity to obtain evidence.”    United States v.

Williams, 50 M.J. 436, 442 (C.A.A.F. 1999).

     The Rules for Courts-Martial further define a trial

counsel’s obligations under Article 46, UCMJ.    See United States

v. Pomarleau, 57 M.J. 351, 359 & n.9 (C.A.A.F. 2002).      Three

provisions are of particular relevance to this case.     First,

“[e]ach party shall have . . . equal opportunity to interview

witnesses and inspect evidence.”     R.C.M. 701(e).   Second, “trial

counsel shall, as soon as practicable, disclose to the defense

the existence of [exculpatory] evidence known to the trial

counsel.”   R.C.M. 701(a)(6);7 see United States v. Garlick,

61 M.J. 346, 349-50 (C.A.A.F. 2005).    Third, the Government must



7
  R.C.M. 701(a)(6) “implements the Supreme Court’s decision
in Brady v. Maryland, 373 U.S. 83, 87 (1963).” Williams,
50 M.J. at 440. Under Brady, “the Government violates an
accused’s ‘right to due process if it withholds evidence
that is favorable to the defense and material to the
defendant’s guilt or punishment.’” United States v.
Behenna, 71 M.J. 228, 237-38 (C.A.A.F. 2012) (quoting Smith
v. Cain, 132 S. Ct. 627, 630, (2012)).

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United States v. Stellato, No. 15-0315/AR

permit the defense to inspect “[a]ny books, papers, documents,

photographs, tangible objects, . . . or copies of portions

thereof, which are within the possession, custody, or control of

military authorities, and which are material to the preparation

of the defense.”   R.C.M. 701(a)(2)(A).    These discovery rules

“ensure compliance with the equal-access-to-evidence mandate in

Article 46.”   Williams, 50 M.J. at 440.    In doing so, the rules

“aid the preparation of the defense and enhance the orderly

administration of military justice.”   Roberts, 59 M.J. at 325.

We further note that “[t]he parties to a court-martial should

evaluate pretrial discovery and disclosure issues in light of

this liberal mandate.”   Id.

     In addition to these discovery rules, the actions of

military counsel are governed by the Army Rules of Professional

Conduct.   These rules state, in relevant part, “A lawyer shall

not” (1) “unlawfully obstruct another party’s access to evidence

or unlawfully alter, destroy, or conceal a document or other

material having potential evidentiary value,” (2) “counsel or

assist another person to do any such act,” or (3) “fail to make

reasonably diligent effort to comply with a legally proper

discovery request by an opposing party.”    Dep’t of the Army,

Reg. 27-26, Legal Services, Rules of Professional Conduct for

Lawyers, R. 3.4(a), (d) (May 1, 1992); cf. American Bar

Association Model Rule of Professional Conduct 3.4 (2014 ed.).



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When contrasting the mandates of these discovery and ethics

rules with the actions of the trial counsel in this case, we are

deeply troubled by the amount of gamesmanship that was employed,

the number of pretrial motions that were required to be filed by

the defense and resolved by the military judge, and the

continual surprises and delays that permeated this case.

        2. The Military Judge’s Findings

        The military judge concluded that the Government committed

“continual and egregious” discovery violations in the instant

case.    This conclusion was based on extensive findings of fact.

The CCA determined that these findings were not clearly

erroneous, and it adopted them.    By finding no clear error, the

CCA was bound by the military judge’s fact-finding and “could

not find its own facts or substitute its own interpretation of

the facts” in this Article 62, UCMJ, appeal.    United States v.

Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).     We similarly are

“bound by the facts as found by the military judge unless those

facts are clearly erroneous.”    Id.

        In reaching his conclusions in this case, the military

judge made the following findings of fact.    First, a year had

passed from the time the defense made its first discovery

request until the time the Government finally sought to fully

comply with its discovery obligations.     Second, the Government

failed to disclose the existence of the box of evidence in Mrs.



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United States v. Stellato, No. 15-0315/AR

MS’s possession, failed to secure the box, and failed to ensure

that the box’s relevant contents were provided to the defense.

Although the Government did provide to the defense copies of

documents contained on the thumb drives created by Mrs. MS,

there was “no way of ascertaining if the printed documents

comprise[d] everything that was stored on the thumb

drives. . . . [Moreover], all of the evidence in the ‘box’ did

not make its way onto the thumb drive that was provided to

defense in documentary form.”   Third, trial counsel never

instructed law enforcement agencies or Mrs. MS to preserve

evidence after the defense specifically sought preservation of

evidence.   Fourth, despite the accused’s discovery request,

trial counsel never asked Mrs. MS about whether she had received

mental health treatment.   He only learned that she had received

such treatment when she voluntarily disclosed that fact to him.

Fifth, the Government did not permit the defense to inspect the

banana or the box of evidence despite exercising control over

them, or having the ability to do so.   Sixth, the Government did

not disclose, “as soon as practicable,” favorable evidence to

the accused.   Seventh, the Government delayed producing the

following exculpatory evidence:    (1) the plastic banana that did

not have the accused’s DNA on it; (2) the e-mails between the

accused and Mrs. MS in which the accused proclaimed his

innocence; and (3) Dr. Krieg and Miss LRE, who clearly were



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material witnesses.   In regard to the last point, the military

judge noted that Miss LRE denied Miss MS’s assertion about

witnessing some of the alleged offenses, but the Government

fought the accused’s attempt to produce her.

     Based on these findings of fact, the military judge

determined that trial counsel had committed “continual and

egregious” discovery violations and reached the following

conclusions.   First, the Government violated R.C.M. 701(a)(6)(A)

by failing to disclose or secure the box which contained

exculpatory evidence.   Second, the Government violated R.C.M.

701(a)(2)(A) by not allowing the accused to inspect documents

and objects in its control, such as the banana and the box of

evidence.   Third, the Government’s “recklessly cavalier approach

to discovery” resulted in “several critical failures to produce

exculpatory evidence” until court intervention.8   Fourth, the

Government “systematically ignored” its obligations under R.C.M.

701 by leaving disclosure to the whims of interested parties,

refusing to make eyewitnesses available for interview, and

failing to respond to basic discovery requests to preserve

evidence or determine if mental health records existed.




8
  The military judge noted that he had to issue orders on at
least six occasions compelling discovery of witnesses or
documents.

                                21
United States v. Stellato, No. 15-0315/AR

     3. Discussion

     Consistent with the holding of the CCA, we conclude that

the military judge’s findings of fact were not clearly

erroneous.    Accordingly, we are bound by them in the course of

our analysis.    Cossio, 64 M.J. at 256.    In terms of the military

judge’s findings of discovery violations, we address each of

them separately below.

             a. Mrs. MS’s Mental Health Records

     The military judge concluded that the Government failed to

respond to the accused’s discovery request pertaining to the

existence of mental health records.      The CCA found no error in

this finding, and the Government has not challenged this

determination before us.    We therefore accept the military

judge’s finding that the Government violated the accused’s

discovery rights when it did not investigate the existence of

Mrs. MS’s mental health records following the accused’s

discovery request.

             b. Preserve Evidence

     The military judge found that the Government failed to take

the necessary steps in response to a defense request to preserve

evidence.    The CCA, however, disagreed with this finding, noting

that most of the evidence was not in the Government’s possession

and that the military judge failed to make a bad-faith finding.




                                    22
United States v. Stellato, No. 15-0315/AR

     In analyzing this issue, we first note that the R.C.M. does

not provide any explicit requirement for the Government to

preserve evidence upon the defense’s request.     However, the

R.C.M. does require that the defense have “equal opportunity to

. . . inspect evidence.”   R.C.M. 701(e).    Further, the UCMJ also

requires that the defense “have equal opportunity to obtain

witnesses and other evidence.”   Article 46, UCMJ.    This Court

has interpreted this requirement to mean that the “Government

has a duty to use good faith and due diligence to preserve and

protect evidence and make it available to an accused.”     United

States v. Kern, 22 M.J. 49, 51 (C.M.A. 1986).

     In the instant case, we conclude that the record supports

the military judge’s finding that trial counsel did not exercise

due diligence in preserving or protecting evidence.     The

accused’s discovery request specifically stated, “The government

is requested to preserve and produce [a series of] physical

evidence for subsequent examination/use by the defense . . . .”

And yet, CPT Jones did not seek to preserve any evidence from

its key Government witness, Mrs. MS, or from the civilian law

enforcement agency that investigated some of the molestation

allegations against the accused.      This failure occurred despite

(1) the accused’s discovery request to preserve, (2) CPT Jones’s

knowledge that these entities might have items of potential

evidentiary value, and (3) CPT Jones’s access to this evidence.



                                 23
United States v. Stellato, No. 15-0315/AR

The fact that CPT Jones did not make an effort to preserve any

evidence refutes the notion that he exercised due diligence in

this regard.   We also note that the Government destroyed a thumb

drive that contained evidence on it without satisfactorily

demonstrating that the documents printed from the thumb drive

comprised everything on that drive.   We therefore conclude that

the military judge reasonably determined that CPT Jones’s

inaction with respect to the preservation request, as well as

the Government’s destruction of the thumb drive under the

particular circumstances present here, constituted a failure to

respond to the accused’s discovery request to preserve evidence.

     In reaching this conclusion, we are not creating any new

affirmative Government obligation to preserve evidence.     Rather,

we are merely applying the existing discovery rules.   The duty

to preserve includes:   (1) evidence that has an apparent

exculpatory value and that has no comparable substitute, see

United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015)

(citing California v. Trombetta, 467 U.S. 479, 489 (1984));

(2) evidence that is of such central importance to the defense

that it is essential to a fair trial, see R.C.M. 703(f)(2); and

(3) statements of witnesses testifying at trial, see United

States v. Muwwakkil, 74 M.J. 187 (C.A.A.F. 2015).   In sum, we

find no abuse of discretion in the military judge’s finding of a




                                24
United States v. Stellato, No. 15-0315/AR

discovery violation based on the Government’s failure to attempt

to preserve evidence.

           c. Miss LRE

     The military judge next found that the “Government refused

to produce a material witness and alleged victim, [Miss LRE].”

The CCA criticized this finding because “the government was

going to produce Ms. [LRE] for trial in response” to the defense

request.   Although the military judge’s finding is not entirely

precise, we conclude he did not abuse his discretion in finding

a discovery violation with respect to Miss LRE.

     The record demonstrates that the defense requested to

depose Miss LRE prior to trial because she “hardly remember[ed]”

Miss MS and she never disclosed any abuse to her parents.

However, instead of facilitating any discovery from Miss LRE,

the Government opposed the defense request.   Although the

military judge denied the accused’s deposition request, he

sought to address the accused’s “discovery concerns” by ordering

a forensic interview of Miss LRE because he properly recognized

that the accused had a discovery interest in Miss LRE.   See

United States v. Irwin, 30 M.J. 87, 92 (C.M.A. 1990) (noting in

child molestation case that defense is entitled to an equal

opportunity to interview witness).    Indeed, as noted above, the

R.C.M. grants an accused an “equal opportunity to interview

witnesses.”   R.C.M. 701(e).   Therefore, the accused in the



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United States v. Stellato, No. 15-0315/AR

instant case should have been provided with the opportunity to

try to interview Miss LRE.

     We recognize that the Government did not conceal Miss

LRE to prevent her from being interviewed, see United

States v. Killebrew, 9 M.J. 154, 161 (C.M.A. 1980), or

impose conditions on attempts to interview Miss LRE such as

requiring a third party to be present during the defense

interview.   See United States v. Enloe, 15 C.M.A. 256, 262,

35 C.M.R. 228, 234 (1965).   Instead, the Government denied

access to Miss LRE and took the untenable position that

Miss LRE was not “part of the charged offenses” despite

Miss MS’s allegation that Miss LRE was present for some of

the abuse.   We therefore find that the military judge did

not abuse his discretion in finding that the Government’s

position with respect to Miss LRE constituted a discovery

violation because it violated R.C.M. 701(e):   “No party may

unreasonably impede the access of another party to a

witness or evidence.”9


9
  This conclusion should not be construed to be a finding that
the Government commits a discovery violation if diligent and
good-faith efforts do not lead to a witness submitting to an
interview. We recognize that “a potential witness at a criminal
trial cannot normally be required to submit to a pretrial
interview for either side.” United States v. Alston, 33 M.J.
370, 373 (C.M.A. 1991); United States v. Morris, 24 M.J. 93, 95
(C.M.A. 1987). Rather, we merely conclude that the Government
cannot impede access to a witness, and the military judge’s
decision as to Miss LRE was not an abuse of discretion under the
circumstances of this case.

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United States v. Stellato, No. 15-0315/AR

          d. The Plastic Banana

     The military judge found that the plastic banana should

have been disclosed under R.C.M. 701(a)(2)(A) because the

Government demonstrated that it could exercise control over this

particular piece of evidence when trial counsel ultimately

seized it from the Sheriff’s Department.    As noted above, R.C.M.

701(a)(2)(A) requires the Government to permit the defense to

inspect, upon request, “tangible objects” which are “within the

possession, custody, or control of military authorities.”

Nevertheless, the CCA determined that there was no discovery

violation under this R.C.M. because the Sheriff’s Department,

not the military, was in possession of the banana.

     Generally speaking, we agree with the proposition that an

object held by a state law enforcement agency is ordinarily not

in the possession, custody, or control of military authorities.

See United States v. Poulin, 592 F. Supp. 2d 137, 142-43 (D. Me.

2008) (citing cases in declaring that “local law enforcement

offices” are not included in “government” for purposes of the

federal civilian criminal discovery rule, Fed. R. Crim. P. 16).

However, a trial counsel cannot avoid R.C.M. 701(a)(2)(A)

through “‘the simple expedient of leaving relevant evidence to

repose in the hands of another agency while utilizing his access

to it in preparing his case for trial.’”    United States v.

Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998) (quoting United



                                  27
United States v. Stellato, No. 15-0315/AR

States v. Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997)).

Article III courts have identified a number of scenarios in

which evidence not in the physical possession of the prosecution

team is still within its possession, custody, or control.     These

include instances when:   (1) the prosecution has both knowledge

of and access to the object;10 (2) the prosecution has the legal

right to obtain the evidence;11 (3) the evidence resides in

another agency but was part of a joint investigation;12 and (4)

the prosecution inherits a case from a local sheriff’s office

and the object remains in the possession of the local law

enforcement.13

     Although the facts of the instant case may not fit neatly

within any of the circumstances outlined in the above case law,

we conclude that the military judge did not clearly err in

finding that the Government exercised control over the banana

despite the banana’s physical presence in the Sheriff’s

Department.   In reaching this conclusion, we note that trial

counsel had access to other evidence held by the Department.

For example, the Government was able to obtain the Sheriff’s

Department’s report about their investigation into sexual abuse


10
   See United States v. Bryan, 868 F.2d 1032, 1037 (9th Cir.
1989); United States v. Libby, 429 F. Supp. 2d 1, 7 n.11 (D.D.C.
2006).
11
   United States v. Stein, 488 F. Supp. 2d 350, 363 (S.D.N.Y.
2007).
12
   See, e.g., Bryan, 868 F.2d at 1036.
13
   See Poulin, 592 F. Supp. 2d at 143.

                                28
United States v. Stellato, No. 15-0315/AR

allegations involving the accused, as well as copies of the

Sheriff’s Department’s interview of Miss MS.   Also, as the

military judge found, once the Government was ordered to perform

a search, trial counsel was readily able to gain possession of

the banana from the Sheriff’s Department.   Therefore, we find

that the military judge did not abuse his discretion in

concluding that the Government violated R.C.M. 701(a)(2)(A) by

failing to comply in a timely manner with the defense discovery

request to inspect the banana.14

          e. The Box

     The military judge also found a discovery violation based

on the Government’s untimely disclosure and production of the

box of evidence.   This box contained exculpatory material,

including a note about Miss MS’s recantation of certain

allegations and e-mails in which the accused denied the

allegations of molestation.   However, the CCA found no discovery

violation because the Government (1) disclosed the evidence in

its possession that had come from the box and (2) had no duty to



14
  We also note that the Government failed to produce the banana,
despite the accused’s specific request for it, until ordered to
do so by the military judge. Although the banana was held by
the Sheriff’s Department, the military judge found that the
Government exercised control over the banana. As a result, this
failure to produce evidence that tended to be exculpatory
violated R.C.M. 701(a)(6). Cf. Kyles v. Whitley, 514 U.S. 419,
433-34, 437-40 (1995) (noting that prosecution must disclose
evidence requested by a defendant even if it is held by police
investigators).

                                   29
United States v. Stellato, No. 15-0315/AR

seek out other exculpatory evidence which was contained in the

box.   We disagree with the CCA’s analysis.

       The accused’s March 2013 discovery request generally sought

the production of tangible objects within the Government’s

possession, custody, or control and specifically sought the

production of “[a]ll reports, documents and writings,

statements, information, and evidence, obtained or gathered by

each individual, military or civilian, relating to the

allegations.”   Under the R.C.M., the Government has a duty

(1) to permit inspection of “tangible objects . . . within the

possession, custody, or control of military authorities,” R.C.M.

701(a)(2)(A), and (2) to disclose, “as soon as practicable,” the

existence of evidence “known to the trial counsel” which

“reasonably tends to” be exculpatory.     R.C.M. 701(a)(6).   We

find that CPT Jones’s handling of the box of evidence violated

both of these rules.

       As noted above, the Government need not physically possess

an object for it to be within the possession, custody, or

control of military authorities.      Here, the military judge

determined that, for the purposes of R.C.M. 701, the box of

evidence was within the Government’s control from early 2013.

The military judge primarily based this determination on the

fact that the Government was able to easily obtain the box of

evidence once it chose to do so in March 2014.     This finding is



                                 30
United States v. Stellato, No. 15-0315/AR

not clearly erroneous.   CPT Jones conceded that he knew of the

box’s existence no later than March 2013.    Further, CPT Jones

conceded that Mrs. MS wanted to provide him with evidence in the

case so that he could make the “judgment call” about whether to

turn it over to the defense, but he declined her offer.

Therefore, as the military judge found, the record reflects not

only that the Government was able to possess the box simply by

asking for it, but that trial counsel also affirmatively and

specifically declined to examine the contents of the box despite

Mrs. MS’s explicit offer for him to do so.   Under these

circumstances, the box and its contents were required to be

disclosed in a timely manner in response to the defense

discovery request under R.C.M. 701(a)(2)(A).

     In its opinion, the CCA determined that the Government did

not commit a discovery violation because trial counsel

ultimately provided to the defense all of the evidence from the

box that was in its possession.    However, this determination by

the CCA contradicts the military judge’s factual finding that

there was “no way of ascertaining if the printed documents

[provided to the accused] comprised everything that was stored

on the thumb drives.”    It also ignores the fact that the

Government’s duty under R.C.M. 701 encompassed more than

producing what was in its physical possession, but also what was

in its control.   Accordingly, we do not agree with the CCA on



                                  31
United States v. Stellato, No. 15-0315/AR

this point, and we find that the military judge did not abuse

his discretion in finding that the Government had a duty to

disclose and permit inspection of the box of evidence under

R.C.M. 701(a)(2)(A).

     With respect to the military judge’s R.C.M. 701(a)(6)

ruling, we likewise find no abuse of discretion.   Under R.C.M.

701(a)(6), trial counsel are required to review certain files,

documents, or evidence for exculpatory information.   See

Williams, 50 M.J. at 440-41.   For example, trial counsel must

review their own case files and must also exercise due diligence

and good faith in learning about any evidence favorable to the

defense “known to the others acting on the government’s behalf

in the case, including the police.”   Id. at 441 (quoting Kyles

v. Whitley, 514 U.S. 419, 437 (1995)).

     In regard to the latter point, a trial counsel’s duty to

search beyond his or her own prosecution files is generally

limited to:

     (1) the files of law enforcement authorities that have
     participated in the investigation of the subject
     matter of the charged offenses; (2) investigative
     files in a related case maintained by an entity
     closely aligned with the prosecution; and (3) other
     files, as designated in a defense discovery request,
     that involved a specified type of information within a
     specified entity.

Id. (citations omitted) (internal quotation marks omitted).

However, this list is not exhaustive because trial counsel’s

duty to search beyond his own files “will depend in any


                                32
United States v. Stellato, No. 15-0315/AR

particular case on the relationship of the other governmental

entity to the prosecution and the nature of the defense

discovery request.”   Id.

     Under the circumstances of the instant case, we find that

the military judge did not err in determining that trial counsel

had a duty under R.C.M. 701(a)(6) to search, and to disclose the

existence of, the box of evidence compiled by Mrs. MS.    In

reaching this conclusion, we recognize that Mrs. MS is not a

“governmental entity,” and that she did not serve as a

government agent.   Rather, she was merely a civilian witness in

the Government’s military prosecution of the accused.

Additionally, as the CCA noted, we recognize that the federal

courts in interpreting Brady v. Maryland, 373 U.S. 83 (1963),

have imposed no duty on prosecutors to search for or obtain

exculpatory evidence that is in the possession of cooperating

witnesses.   See United States v. Graham, 484 F.3d 413, 417 (6th

Cir. 2007); United States v. Josleyn, 206 F.3d 144, 154 (1st

Cir. 2000); United States v. Meregildo, 920 F. Supp. 2d 434,

444-45 (S.D.N.Y. 2013).     Moreover, R.C.M. 701(a)(6) generally

does not place on the Government the duty to search for

exculpatory evidence held by people or entities not under the

control of the Government, such as a witness.

     Nevertheless, despite Mrs. MS’s status as a Government

witness and not a Government agent, our inquiry into the box’s



                                  33
United States v. Stellato, No. 15-0315/AR

discoverability does not end there.   Specifically, we note that

the trial counsel in this case had actual knowledge of the

existence of this box of evidence prior to the preferral of the

charges.   Indeed, the box was in the same room with him and

within his view during the February 2013 meeting with Mrs. MS.

And yet, instead of searching that box of evidence or taking

possession of it, CPT Jones cautioned Mrs. MS about giving him

any evidence because “everything I get will go to defense.”    We

find that CPT Jones’s pretrial knowledge of the existence of the

box of evidence, his ability to review material contained in it,

and his admonition to Mrs. MS distinguishes this case from

others in which information held by a cooperating witness was

not disclosed to the defense.   See Graham, 484 F.3d at 417-18

(finding government did not have control over cooperating

witness’s documents where they were not produced until the midst

of trial); Josleyn, 206 F.3d at 153-54 (finding government not

responsible for information held by cooperating witness where

government was “the victim[]” of the cooperating third party’s

withholding of information).

     Under these circumstances and pursuant to the provisions of

R.C.M. 701(a)(6), CPT Jones had a duty “as soon as practicable”

to disclose to the defense the existence of the box of evidence

if the contents of that box “reasonably” tended to be




                                34
United States v. Stellato, No. 15-0315/AR

exculpatory.15   See R.C.M. 701(a)(6); cf. United States v. Beers,

189 F.3d 1297, 1304 (10th Cir. 1999) (noting that under Brady,

the prosecution must reveal information that it had in its

possession or knowledge -- whether actual or constructive);

United States v. Perdomo, 929 F.2d 967, 970 (3d Cir. 1991) (“It

is well accepted that a prosecutor’s lack of knowledge does not

render information unknown for Brady purposes,” such as “where

the prosecution has not sought out information readily available

to it.”).   In sum, a trial counsel cannot avoid discovery

obligations by remaining willfully ignorant of evidence that

reasonably tends to be exculpatory, even if that evidence is in

the hands of a Government witness instead of the Government.

Cf. Kyles, 514 U.S. at 437; United States v. Morris, 80 F.3d

1151, 1169 (7th Cir. 1996) (finding it “improper for a

prosecutor’s office to remain ignorant about certain aspects of

a case or to compartmentalize information so that only

investigating officers, and not the prosecutors themselves,

would be aware of it”); Josleyn, 206 F.3d at 153 n.8 (noting in

refusing to attribute material to the Government that was in the

possession of a private entity that there was “no claim that the



15
  The question of whether the contents of the box of evidence
reasonably tended to be exculpatory is clear-cut. The box
included such items as e-mails between the accused and Mrs. MS
about the sexual abuse allegations, notes by Mrs. MS about what
Miss MS had said about the alleged sexual abuse incidents, and a
note memorializing a recantation by Miss MS.

                                 35
United States v. Stellato, No. 15-0315/AR

government was willfully blind to exculpatory evidence”); United

States v. Brooks, 966 F.2d 1500, 1502 (D.C. Cir. 1992); United

States v. Osorio, 929 F.2d 753, 761 (1st Cir. 1991); Meregildo,

920 F. Supp. 2d at 445 (“The Government cannot avoid its Brady

obligations by being willfully blind to the information in front

of it.”); United States v. Quinn, 537 F. Supp. 2d 99, 110

(D.D.C. 2008) (“[T]he government cannot shield itself from its

Brady obligations by willful ignorance or failure to

investigate.”); United States v. Burnside, 824 F. Supp. 1215,

1256 (N.D. Ill. 1993) (noting that government counsel cannot

assert the “ostrich” defense, i.e., claim “ignorance of the

facts -- ignorance prompted by the government lawyers closing

their eyes to facts which should have prompted them to

investigate”).   This prohibition against willful ignorance has

special force in the military justice system, which mandates

that an accused be afforded the “equal opportunity” to inspect

evidence.   Article 46, UCMJ; R.C.M. 701(e).16

     By effectively remaining willfully ignorant as to the

contents of the box and by not disclosing its existence to the

defense, CPT Jones did not disclose exculpatory evidence “as



16
  We further note that if trial counsel had simply engaged in
reasonable diligence in preparing the Government’s case, he
would have examined the contents of this box that consisted of a
compendium of information relevant to the charges, and upon
doing so he would have incurred the responsibility to turn over
to the defense responsive material and exculpatory information.

                                36
United States v. Stellato, No. 15-0315/AR

soon as practicable.”   Instead, as the military judge found,

“the disclosure was approximately a year after it was discovered

by CPT Jones and almost exactly a year after it was requested by

Defense, and after two continuances on the eve of trial.”

Therefore, we conclude that there was no abuse of discretion in

the military judge’s determination that the Government’s failure

to disclose the existence of the box and its contents, which

included the exculpatory e-mails and the recantation note,

constituted a violation of R.C.M. 701(a)(6).   See Burnside,

824 F. Supp. at 1258 (“It should never be the law that by

maintaining ignorance, [trial counsel] can fulfill the

government’s [Brady] obligation when the facts known not only

warrant disclosure but should prompt further investigation.”).

Having found no abuse of discretion in this regard, we next turn

our attention to the military judge’s decision to dismiss the

accused’s case with prejudice.

                  B. Remedy for Discovery Violations

     1. The Law

     “[M]ilitary courts possess the . . . authority to impose

sanctions for noncompliance with discovery requirements . . . .”

Pomarleau, 57 M.J. at 360.   “In the military justice system, RCM

701(g)(3) governs the sanctioning of [Rule 701] discovery

violations” and “provides the military judge with a number of

options to remedy such violations.”   Id. at 361-62; United



                                 37
United States v. Stellato, No. 15-0315/AR

States v. Murphy, 33 M.J. 323, 328 (C.M.A. 1991).   These

sanctions are:

     (A) Order the party to permit discovery;

     (B) Grant a continuance;

     (C) Prohibit the party from introducing evidence,
     calling a witness, or raising a defense not disclosed;
     and

     (D) Enter such other order as is just under the
     circumstances.

R.C.M. 701(g)(3).   Here, the military judge did not select one

of the specifically defined sanctions (order for discovery,

continuance, or exclusion of evidence), but instead decided to

fashion an order “as is just under the circumstances.”   See

R.C.M. 701(g)(3).   “Where a remedy must be fashioned for a

violation of a discovery mandate, the facts of each case must be

individually evaluated.”   United States v. Dancy, 38 M.J. 1, 6

(C.M.A. 1993).

     We previously have determined in other contexts that a

military judge did not abuse his or her discretion in dismissing

a case with prejudice.   United States v. Dooley, 61 M.J. 258,

262-63 (C.A.A.F. 2005) (speedy trial); United States v. Gore,

60 M.J. 178, 187-89 (C.A.A.F. 2004) (unlawful command

influence); see also United States v. Bowser, __ M.J. __

(C.A.A.F. 2015) (summary disposition) (refusal to produce trial

counsel’s witness interview notes for in camera inspection).     We

now conclude that dismissal with prejudice may also be an


                                38
United States v. Stellato, No. 15-0315/AR

appropriate remedy for a discovery violation under R.C.M.

701(g)(3)(D).   Cf. United States v. Peveto, 881 F.2d 844, 861–63

(10th Cir. 1989) (reviewing whether trial court abused its

discretion in failing to dismiss indictment for discovery

violation under Fed. R. Crim. P. 16(d)(2));17 United States v.

Chestang, 849 F.2d 528, 532-33 (11th Cir. 1988) (same); United

States v. Jacobs, 855 F.2d 652, 655 (9th Cir. 1988) (noting

trial court may dismiss an indictment for a discovery violation

under its supervisory power).   Despite this conclusion, we

emphasize that “dismissal is a drastic remedy and courts must

look to see whether alternative remedies are available.”    Gore,

60 M.J. at 187.   We also underscore that if “an error can be

rendered harmless, dismissal is not an appropriate remedy.”     Id.

Nevertheless, dismissal of charges may be appropriate if a

military judge determines that the effects of the Government’s

discovery violations have prejudiced the accused and no lesser

sanction will remedy this prejudice.   Id.   Thus, having decided

that dismissal with prejudice is “within the range of remedies

available,” id. at 189, we next examine whether the imposition

of this remedy was appropriate in this particular case.

     However, before we analyze the military judge’s decision to



17
  The R.C.M. 701(g)(3) sanctions provision is based on Fed. R.
Crim. P. 16(d)(2). See Manual for Courts-Martial, United
States, Analysis of the Rules for Courts-Martial, app. 21 at
A21-35 (2012 ed.).

                                39
United States v. Stellato, No. 15-0315/AR

dismiss the charges with prejudice, we first turn our attention

to the CCA’s contention that such a dismissal is not authorized

unless a military judge makes a finding that “trial counsel

engaged in willful misconduct.”18     To be sure, bad faith

certainly may be an important and central factor for a military

judge to consider in determining whether it is appropriate to

dismiss a case with prejudice.   Cf. United States v. Golyansky,

291 F.3d 1245, 1249 (10th Cir. 2002) (listing these factors for

a trial court to consider in selecting a sanction for the

government’s discovery violation:     (1) the reasons for the

government’s actions, including whether it acted intentionally

or in bad faith; (2) the degree of prejudice; and (3) whether a

less severe sanction will remedy the prejudice); United States

v. Davis, 244 F.3d 666, 670-71 (8th Cir. 2001) (same); Osorio,

929 F.2d at 762 Pomarleau, 57 M.J. at 361 (noting that

willfulness of violation should be considered in determining

whether to exclude defense evidence for a discovery violation);

Trimper, 28 M.J. at 469 (noting that trial counsel’s “cunning”

scheme to ambush would provide stronger ground for discovery

sanction of excluding evidence).      But cf. Gov’t of the Virgin

Islands v. Fahie, 419 F.3d 249, 254-55 (3d Cir. 2005) (holding


18
  Although the military judge made no finding that trial counsel
engaged in willful misconduct, our review of the record causes
us to have grave concerns about the conduct of CPT Jones. At a
minimum it appears that his handling of his discovery
obligations in this case was grossly negligent.

                                 40
United States v. Stellato, No. 15-0315/AR

that dismissal with prejudice for Brady violation is appropriate

only if there is willful misconduct by the government and

prejudice); United States v. Amaya, 750 F.3d 721, 727 (8th Cir.

2014) (noting that dismissal of an indictment generally requires

a showing of “flagrant misconduct and substantial prejudice”).

However, as the above summary of our case law regarding

dismissal with prejudice demonstrates, a finding of willful

misconduct is not required in order for a military judge to

dismiss a case with prejudice.    See Dooley, 61 M.J. at 262-63;

Gore, 60 M.J. at 187.    With this clarification, we now examine

whether the military judge in this case abused his discretion in

imposing this remedy.

     2. Discussion

     The military judge determined that dismissal with prejudice

was appropriate because of “the nature, magnitude, and

consistency of the discovery violations.”    In making this

determination, the military judge found that the accused was

prejudiced by the discovery violations in three ways.    First,

the discovery violations delayed the Government’s production --

and thus delayed the accused’s receipt -- of exculpatory

evidence in the form of e-mails, the recantation note, and Miss

LRE’s statements.    Second, the continuances19 needed to remedy



19
  The military judge determined that the three trial
continuances, including the two on the eve of trial, were

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United States v. Stellato, No. 15-0315/AR

the Government’s multiple discovery violations prevented the

accused from calling a key witness, Dr. Krieg, who passed away

before trial could begin, but who was available on the

previously scheduled trial dates.     Third, the continuances

“significantly prejudiced” the accused by:      (1) interfering with

his career progression; (2) preventing him from communicating

with his family to resolve custody issues; and (3) placing him

under “extreme and unwarranted restrictions.”     The military

judge concluded by noting that “[t]he almost complete abdication

of discovery duties” “call[ed] into serious question whether the

Accused [could] ever receive a fair trial” where evidence was

lost, unaccounted for, or left in the hands of an interested

party.

       “Prejudice may take many forms. . . .”    Dooley, 61 M.J. at

264.   In the speedy trial context, we have noted that prejudice

can include “any detrimental effect on [the accused’s] trial

preparation,” “any impact on the right to a fair trial,” and

“any restrictions or burdens on [the accused’s] liberty.”       Id.

In the unlawful command influence context, we have noted that

there was prejudice where the convening authority’s influence

deprived the accused of a witness.    See Gore, 60 M.J. at 188.

For prepreferral delay cases, we have noted that there was

prejudice where there was loss of a witness, loss of a witness’s



“directly attributable to the government’s failure to fulfill

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United States v. Stellato, No. 15-0315/AR

testimony, or loss of physical evidence.    United States v. Reed,

41 M.J. 449, 452 (C.A.A.F. 1995).

     In cases involving discovery violations, Article III courts

have held that the proper inquiry is whether there was “injury

to [an accused’s] right to a fair trial.”    United States v.

Garrett, 238 F.3d 293, 299 (5th Cir. 2000); United States v.

Valentine, 984 F.2d 906, 910 (8th Cir. 1993) (noting that

discovery sanctions are warranted where violations prejudice the

defendant’s substantive rights).     In making this determination,

these courts have examined:   (1) whether the delayed disclosure

hampered or foreclosed a strategic option, United States v.

Mathur, 624 F.3d 498, 506 (1st Cir. 2010) (belated Brady

disclosure); (2) whether the belated disclosure hampered the

ability to prepare a defense, United States v. Warren, 454 F.3d

752, 760 (7th Cir. 2006) (noting that belated discovery

disclosure did not interfere with ability to prepare a defense),

and Golyansky, 291 F.3d 1245, 1250 (10th Cir. 2002) (“To support

a finding of prejudice, the court must determine that the

[discovery disclosure] delay impacted the defendant’s ability to

prepare or present its case.”); (3) whether the delay

substantially influenced the fact-finder, United States v. De La

Rosa, 196 F.3d 712, 716 (7th Cir. 1999); and (4) whether the

nondisclosure would have allowed the defense to rebut evidence



its discovery obligations.”

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United States v. Stellato, No. 15-0315/AR

more effectively, United States v. Accetturo, 966 F.2d 631, 636

(11th Cir. 1992).   See also Discovery and Access to Evidence, 44

Geo. L.J. Ann. Rev. Crim. Proc. 405, 431 n. 1189 (2015) (citing

cases where prejudice was found).

     As can be seen then, pursuant to this case law, prejudice

can arise from discovery violations when those violations

interfere with an accused’s ability to mount a defense.   We

conclude that these cases are grounded in sound reasoning, and

we adopt this approach in the court-martial context.

     Based on this holding, we conclude that the military judge

did not err in finding prejudice from the discovery violations

in this case.   First, these discovery violations “resulted in

the inability of the Defense to call a key witness, Dr. Krieg.”

No one disputes that Dr. Krieg’s inability to testify was

prejudicial to the defense.   In fact, at oral argument the

Government conceded as much by stating, “There is prejudice to

appellant with the loss of Dr. Krieg.   Clearly there is.”

Second, the military judge specifically determined that the

continuing discovery violations resulted in lost evidence,

unaccounted for evidence, and evidence left in the hands of an

interested party.   These circumstances deprived the accused of

evidence, indicating that his ability to mount a defense was

compromised, and as the military judge noted, “call[ed] into

serious question whether the Accused [could] ever receive a fair



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United States v. Stellato, No. 15-0315/AR

trial.”   We therefore conclude there was no error in the

military judge’s finding of prejudice.

     To complete our review of the military judge’s decision to

dismiss with prejudice, we finally examine whether he

appropriately considered lesser, alternative remedies.

     The military judge considered “all possible remedies” to

determine the appropriate sanction for the discovery violations,

correctly noting that he was required “to craft the least

drastic remedy” to obtain the desired result.   In the course of

considering these alternative remedies, the military judge made

the following observations.   First, “[t]he remedy of continuance

[was] exhausted” because such continuances “only serv[ed] to

help the Government perfect its case and frustrat[e] the

Accused’s ability to have his day in court.”    Second, affording

the accused an opportunity to have an Article 32, UCMJ,

investigation despite his previous waiver of that right only

extended the length of the case and gave “the Government

additional opportunities to right its wrongs, when it [had]

already been given multiple opportunities to do so.”    Third, the

removal of CPT Jones from the case would have been an empty

gesture because a new trial counsel already had replaced him.

Fourth, the exclusion of the evidence at issue would not remedy

the discovery violations because that evidence was largely

exculpatory in nature.   Fifth, the exclusion of Mrs. MS’s



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United States v. Stellato, No. 15-0315/AR

testimony would not remedy the violations because her actions in

regard to the sexual abuse allegations were “likely [to provide]

fertile grounds for cross-examination” by the defense.    Sixth,

dismissal without prejudice only gave the Government the

opportunity to “reset and perfect its case” and did not

adequately remedy the prejudice already suffered by the accused.

     After considering and rejecting these alternative remedies

for the discovery violations, the military judge also examined

“other factors” in determining the appropriate remedy to impose

in this case.   Specifically, the military judge concluded that

the Government’s decision to “leav[e] disclosure to the whims of

interested parties or law enforcement agencies, [to] refus[e] to

make a key eyewitness available for interview, and [to] fail[]

to respond to the most basic discovery requests” unless ordered

by the court to do so demonstrated that the Government had

“systematically ignored” discovery obligations.

     In its decision in this case, the CCA faulted the military

judge for not considering two alternative remedies:   (1)

granting relief under Article 13, UCMJ, to remedy the prejudice

from unwarranted restrictions placed on the accused, and (2)

forcing the Government to enter into a stipulation of fact or

expected testimony to remedy the prejudice stemming from the

death of Dr. Krieg.   However, we note that these remedies could

not reverse all of the prejudice found by the military judge.



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United States v. Stellato, No. 15-0315/AR

Further, the CCA’s proposed remedy for the absence of Dr. Krieg

fails to acknowledge the military judge’s implicit finding that

a stipulation would not have been as effective for the defense

as his live testimony.   Cf. United States v. Carpenter, 1 M.J.

384, 386 (C.M.A. 1976) (noting that compelled stipulation of

testimony was not an adequate substitute under facts of the

case).   Moreover, we note that the military judge indicated that

the accused was irreversibly prejudiced because evidence had

“already been lost, unaccounted for, or left to the devices of

an interested party.”    The CCA’s proposed remedies do not

address this problem.    Accordingly, we find no error in the

military judge’s conclusion that no remedy short of dismissal

with prejudice was appropriate in this case.

                           IV. CONCLUSION

     Under the specific circumstances of this case, we conclude

that dismissal with prejudice was within the range of remedies

available to the military judge, and that the military judge did

not abuse his discretion in determining that trial counsel

committed a series of discovery violations, that these discovery

violations prejudiced the accused, and that no remedy short of

dismissal with prejudice would adequately address this

prejudice.

     We further conclude that the conduct of trial counsel in

this case was deeply troubling.    Full and timely compliance with



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United States v. Stellato, No. 15-0315/AR

discovery obligations is the lifeblood of a fair trial.

Accordingly, parties to courts-martial are admonished to fulfill

their discovery obligations with the utmost diligence.

     We heartily endorse the principle that “[a] trial counsel

is not simply an advocate but is responsible to see that the

accused is accorded procedural justice.”    Dep’t of the Army,

Reg. 27-26, Legal Services, Rules of Professional Conduct for

Lawyers, R. 3.8 Comment (May 1, 1992).    And as eloquently stated

by Justice Sutherland eighty years ago, we note that:

     The [prosecutor] is the representative not of an
     ordinary party to a controversy, but of a sovereignty
     whose obligation to govern impartially is as
     compelling as its obligation to govern at all; and
     whose interest, therefore, in a criminal prosecution
     is not that it shall win a case, but that justice
     shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935).

                            V. DECISION

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The decision of the military judge is

reinstated.




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United States v. Stellato, No. 15-0315/AR


        STUCKY, Judge (concurring in the result):

        I concur that the trial counsel violated his discovery

obligations with regard to the box and its contents, and that

Appellant was prejudiced by the violations.    I am concerned,

however, with the approach taken by the majority with regard to

the banana.    I believe that the military judge’s determination

that the banana was within the possession, custody, or control

of the Government was clearly erroneous:    it was in the

possession, custody, and control of the sheriff and his staff,

not “military authorities.”    Rule for Courts-Martial (R.C.M.)

701(a)(2)(A).

        The majority opinion begins its analysis of the banana by

citing dicta from several cases, the holdings of which do not

support the propositions attributed to them or which are taken

out of context.    The majority opinion cites United States v.

Marshall, 132 F.3d 63, 69 (D.C. Cir. 1998), and United States v.

Brazel, 102 F.3d 1120, 1150 (11th Cir. 1997), for the

proposition that a trial counsel cannot avoid disclosure

obligations under R.C.M. 701(a)(2)(A) by leaving the evidence in

the hands of another agency while using it to prepare his own

case.    United States v. Stellato, __ M.J. __, __ (27-28)

(C.A.A.F. 2015).    Not only is the statement a dictum -- in those

cases the courts held that the United States did not violate

Fed. R. Crim. P. 16 by failing to provide the defense with
United States v. Stellato, No. 15-0315/AR


materials in the hands of a local police department or court

because the materials were neither possessed nor controlled by

the government -- but a dictum that is not applicable to

Appellant’s case.   There is no evidence or allegation that the

trial counsel used the banana to prepare his case.

     The majority then lists four “scenarios in which evidence

not in the physical possession of the prosecution team is still

within its possession, custody, or control.”1      Id. at __ (28).

Scenario (1) -- “the prosecution had knowledge of and access to

the object” -- and scenario (3) -- “the evidence resides in

another agency but was part of a joint investigation” -- are

based on United States v. Bryan, 868 F.2d 1032, 1036-37 (9th

Cir. 1989).   In that case, the Ninth Circuit held that the

accused, who was charged after a nationwide IRS investigation of

his activities, was entitled to discovery of documents and

witness statements both within and outside the District of

Oregon.   Id. at 1033, 1036.   The materials had been developed as

part of a nationwide federal investigation and were all in the

hands of the federal government.       This is not Appellant’s case.

     Scenario (2) -- “the prosecution has the legal right to

obtain the evidence” -- is based on one sentence in an opinion


1
  Of course, it matters not whether the item is within the
possession, custody, or control of the prosecution team. The
issue is whether it is in possession, custody, or control of
“military authorities.” See R.C.M. 701(a)(2)(A).

                                   2
United States v. Stellato, No. 15-0315/AR


of a federal district court, without any citation to authority,

which concerns the legal right of the government to obtain

materials from an accused based on a deferred prosecution

agreement.    United States v. Stein, 488 F. Supp. 2d 350, 363

(S.D.N.Y. 2007).   This is not Appellant’s case.

     Scenario 4 -- “the prosecution inherits a case from a local

sheriff’s office and the object remains in the possession of the

local law enforcement” -- is based on United States v. Poulin,

592 F. Supp. 2d 137, 142-43 (D. Me. 2008), a federal district

court case.    There, the federal government inherited a sheriff’s

investigation and gained such control over a state “apparatus”

that contained “a searchable collection of recordings of

telephone conversations” that “the state agency’s own use of the

system [was] largely at the Government’s direction.”   Id. at

142-43.   The federal government clearly controlled the

“apparatus.”   This is not Appellant’s case.

     A close examination of the cited cases shows that they

cannot support the four broad scenarios stated by the majority

to be the “case law” of the “Article III courts,” and certainly

cannot support the proposition relevant to the issue in this

case -- whether possession of the banana by a local law

enforcement agency constitutes constructive possession by

“military authorities.”   Rather, the consistent position of

Article III precedent at the federal circuit court level is that


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United States v. Stellato, No. 15-0315/AR


“the government’s possession, custody, or control” does not

encompass objects possessed and controlled by an agency of a

state or local government.   See United States v. Sarras, 575

F.3d 1191, 1215 (11th Cir. 2009) (federal government had no duty

to turn over computers and camera in possession and control of

owners or medical records in possession and control of county

agency); United States v. Chavez-Vernaza, 844 F.2d 1368, 1374-75

(9th Cir. 1987) (“[T]he federal government had no duty to obtain

from state officials documents of which it was aware but over

which it had no actual control.” (discussing United States v.

Gatto, 763 F.2d 1040, 1047-49 (9th Cir. 1985))); Thor v. United

States, 574 F.2d 215, 220-21 (5th Cir. 1978) (address book in

state police control not within “possession, custody or control

of the government”); see also United States v. Matthews, 20 F.3d

538, 550 (2d Cir. 1994) (citing Thor approvingly).

     The majority recognizes, in somewhat of an understatement,

that “the facts of the instant case may not fit neatly within

any of the circumstances outlined in the above case law.”

Stellato, __ M.J. at __ (28).    Nevertheless, it then asserts

that because the trial counsel had access to other evidence held

by the Sheriff’s Department, and was eventually able to obtain

the banana, the military judge did not abuse his discretion in

finding a discovery violation.   The fact that the trial counsel

had access to other evidence held by the Sheriff’s Department or


                                  4
United States v. Stellato, No. 15-0315/AR


was later able to obtain the banana does not change the

discovery calculus.   Military authorities did not have

possession, custody, or control over the banana and, therefore,

did not commit a discovery violation by failing to provide it to

the defense.




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