                        UNITED STATES, Appellant

                                         v.

                      Demond WEBB, Staff Sergeant
                        U.S. Air Force, Appellee

                                  No. 07-5003
                       CCA Misc. Dkt. No. 2007-01

       United States Court of Appeals for the Armed Forces

                        Argued December 10, 2007

                          Decided March 3, 2008

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


                                     Counsel


For Appellant: Major Donna S. Rueppell (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief).

For Appellee: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland (on brief).


Military Judge:    Nancy J. Paul


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Webb, No. 07-5003/AF


     Judge STUCKY delivered the opinion of the Court.

     The Judge Advocate General of the Air Force certified two

issues to this Court under Article 67(a)(2), Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000).    The

certification asks this Court to determine whether, before

authentication of the record, the military judge had authority

to order a new trial for a discovery violation and whether the

military judge abused her discretion exercising that authority

in this case.   We find that the military judge had the authority

to order a new trial and that she did not abuse her discretion

in doing so.

                                 I.

     Appellee consented to a urinalysis after being involved in

a fuel spill mishap at his duty section.   After consenting to

provide a urine specimen for testing, Appellee reported to the

testing site.   Technical Sergeant (TSgt) Andrew Herring, the

assigned observer, directly witnessed Appellee provide a

specimen.   Appellee’s urine tested positive for a metabolite of

cocaine.    The Government charged Appellee with a single use of

cocaine based on the results of the urinalysis.   Article 112a,

UCMJ, 10 U.S.C. § 912a (2000).

     On May 4, 2006, Appellee’s defense counsel requested

discovery of any evidence that would affect a witness’s

credibility, including prior disciplinary actions under Article


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15, UCMJ, 10 U.S.C. § 815 (2000).    In late September or early

October 2006, trial counsel interviewed TSgt Herring.   TSgt

Herring told the trial counsel that he had been punished under

Article 15, UCMJ.   Trial counsel did not ask the basis for the

Article 15, UCMJ, nor did he disclose the existence of the

Article 15, UCMJ, to defense counsel.

     On November 28, 2006, only seven days before trial was to

begin, the trial counsel directed the Noncommissioned Officer in

Charge (NCOIC) of the Military Justice Section to request any

derogatory data regarding the witnesses from the Air Force

Personnel Center.   The NCOIC did so the same day, but neither he

nor trial counsel followed up on the request.

     Appellee’s court-martial began on December 5, 2006.

Appellee pled not guilty and denied using cocaine.   To establish

part of the chain of custody of the urine specimen, the

Government offered a stipulation of expected testimony from TSgt

Herring, the person who observed Appellee provide the urine

specimen.   Ultimately, a general court-martial, consisting of

members, convicted Appellee of using cocaine and, on December 7,

2006, sentenced him to a bad-conduct discharge, confinement for

three months, forfeiture of all pay and allowances, and

reduction to E-1.

     On December 13, 2006, the NCOIC received a response to the

derogatory data request, showing that TSgt Herring had been


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punished for making a false official statement, making a false

claim, and larceny.   Under installation regulations, TSgt

Herring’s disciplinary history would have disqualified him from

acting as a urinalysis observer.       TSgt Herring had not disclosed

his prior Article 15, UCMJ, punishment on any of the many

occasions he acted as an observer, even after signing briefing

sheets acknowledging his understanding that such would

disqualify him.   Trial counsel disclosed the Article 15, UCMJ,

to the defense counsel the following day.

     On January 5, 2007, before the military judge authenticated

the record of trial, Appellee moved for a post-trial hearing,

Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), and a new trial,

arguing that the Government violated his due process rights by

failing to disclose TSgt Herring’s nonjudicial punishment.

Appellee asserted that he could have used this evidence to

impeach TSgt Herring’s credibility, and the Government’s failure

to disclose the prior punishment prevented him from presenting a

full defense in this “naked” urinalysis case.1

     The military judge granted Appellee’s motion for the post-

trial hearing and for a new trial.      The Government appealed

under Article 62, UCMJ, 10 U.S.C. § 862 (2000).      United States

v. Webb, Misc. Dkt. No. 2007-01 (A.F. Ct. Crim. App. May 10,




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United States v. Webb, No. 07-5003/AF


2007).   At the Air Force Court of Criminal Appeals, the

Government challenged both the authority of the military judge

to order a new trial and her ultimate decision to grant a new

trial.   Id. at 3.   The Government claimed that Rule for Courts-

Martial (R.C.M.) 1210(a) permits a new trial only after the

convening authority approves findings and sentence.    Id.

Relying on United States v. Meghdadi, 60 M.J. 438 (C.A.A.F.

2005), the Air Force Court held that the military judge had

authority to consider the request for a new trial.    Id.    The

court also found the military judge did not abuse her discretion

in ordering a new trial.   Id. at 4.    After the Air Force Court

denied a Motion for Reconsideration and Reconsideration En Banc,

the Judge Advocate General of the Air Force certified the issues

to this Court on July 17, 2007.

                                  II.

     The Government argues that the military judge had no

authority to order a new trial under the plain language of

Article 73, UCMJ, 10 U.S.C. § 873 (2000), and R.C.M. 1210.

Article 73, UCMJ, reads:

     At any time within two years after approval by
     the convening authority of a court-martial
     sentence, the accused may petition the Judge
     Advocate General for a new trial on the grounds
     of newly discovered evidence or fraud on the

1
  A court-martial for drug use based solely on positive results
of a urinalysis test, without any other evidence of illegal drug
use, has become known as a “naked” urinalysis case.

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United States v. Webb, No. 07-5003/AF


     court. If the accused’s case is pending before a
     Court of Criminal Appeals or before the Court of
     Appeals for the Armed Forces, the Judge Advocate
     General shall refer the petition to the
     appropriate court for action. Otherwise the
     Judge Advocate General shall act upon the
     petition.

R.C.M 1210(a) mirrors the language of the statute and provides

implementing guidance.   The Government asserts that the language

of the statute limits new trial petitions to a specific period

-- the two years after the convening authority’s action.

According to the Government, a petition was not authorized in

this case because the convening authority has not acted, and the

military judge had no authority to order one.

     We faced an analogous situation in United States v. Scaff,

29 M.J. 60 (C.M.A. 1989).   Therein, we noted that Article 39(a),

UCMJ, authorized military judges “to take such action after

trial and before authenticating the record as may be required in

the interest of justice.”   Id. at 65 (citing United States v.

Griffith, 27 M.J. 42 (C.M.A. 1988) (holding that the military

judge could grant a motion for a finding of not guilty after

conclusion of trial if he concluded the evidence was legally

insufficient); United States v. Brickey, 16 M.J. 258 (C.M.A.

1983); United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983)).

“[U]ntil the military judge authenticates the record of trial,

he may conduct a post-trial session to consider newly discovered




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United States v. Webb, No. 07-5003/AF


evidence and, in proper cases, may set aside findings of guilty

and the sentence.”    Id.

     The Government argues that the language from Scaff is

dictum, and that we have not held that a military judge has the

authority to order a new trial under Article 73, UCMJ.    We agree

that a military judge does not have authority under Article 73,

UCMJ, to order a new trial.   But that is not what happened in

this case.   The military judge ordered a new trial under her

Article 39(a), UCMJ, authority to resolve matters that arise

after trial that “substantially affect the legal sufficiency of

any findings of guilty,” R.C.M. 1102(b)(2), based on the post-

trial discovery of the trial counsel’s failure to provide the

defense with evidence that could have been used to impeach TSgt

Herring.   Her actions were consistent with the language in both

Scaff and Meghdadi.    In Meghdadi, for example, this Court held

that a military judge erred in denying a request for a post-

trial Article 39(a), UCMJ, session to consider whether to order

a new trial.   60 M.J. at 439.   In doing so, this Court found

that Scaff had “removed any substantive distinction between a

military judge’s authority to consider post-trial issues under

R.C.M. 1102(b)(2) and R.C.M. 1210(f).”   Id. at 441.    If it was

impossible for the military judge in Meghdadi to order a new

trial, we would not have held he erred by refusing to hold an

Article 39(a), UCMJ, session to consider doing so.     See id.


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United States v. Webb, No. 07-5003/AF


     We confirm our conclusion in Scaff.     Prior to

authentication, a military judge has authority under Article

39(a), UCMJ, “to convene a post-trial session to consider newly

discovered evidence and to take whatever remedial action is

appropriate.”   Scaff, 29 M.J. at 66.

                               III.

     Having concluded that the military judge had the authority

to order a new trial as a remedial action under Article 39(a),

UCMJ, and R.C.M. 1102(b)(2), we must determine whether she

abused her discretion in doing so.    We hold that she did not.

     The Due Process Clause of the Fifth Amendment guarantees

that “criminal defendants be afforded a meaningful opportunity

to present a complete defense.”   California v. Trombetta, 467

U.S. 479, 485 (1984) (holding the Due Process Clause of the

Fourteenth Amendment requires criminal prosecutions to comply

with notions of fundamental fairness); United States v. Mahoney,

58 M.J. 346, 349 (C.A.A.F. 2003).     That guarantee requires the

prosecution to disclose to the defense “evidence favorable to an

accused . . . where the evidence is material either to guilt or

to punishment.”   Brady v. Maryland, 373 U.S. 83, 87 (1963).      The

Supreme Court has defined “favorable evidence” to include

“Impeachment evidence . . . that, if disclosed and used

effectively, it may make the difference between conviction and




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United States v. Webb, No. 07-5003/AF


acquittal.”   United States v. Bagley, 473 U.S. 667, 676 (1985)

(citations omitted).

     However, like other forms of exculpatory evidence,
     impeachment evidence is “material” to guilt or
     punishment “only if there is a reasonable probability
     that, had the evidence been disclosed to the defense,
     the result of the proceeding would have been
     different.” Id. at 682. Under the “reasonable
     probability” standard of materiality, “[t]he question
     is not whether the defendant would more likely than
     not have received a different verdict with the
     evidence, but whether in its absence he received a
     fair trial.” Kyles[ v. Whitley], 514 U.S. [419, 434
     (1995)]. Therefore, “[a] ‘reasonable probability’ of
     a different result is . . . shown when the
     government’s evidentiary suppression ‘undermines
     confidence in the outcome of the trial.’” Id.
     (quoting Bagley, 473 U.S. at 678). Failing to
     disclose such evidence is a due process violation
     “irrespective of the good faith or bad faith of the
     prosecution.” Brady, 373 U.S. at 87.

Mahoney, 58 M.J. at 349.    In cases such as this, where the

defense requested any undisclosed impeachment evidence, this

Court requires the government to show that nondisclosure is

harmless beyond a reasonable doubt.   United States v. Roberts,

59 M.J. 323, 327 (C.A.A.F. 2004).

     In military practice, the “trial counsel, the defense

counsel, and the court-martial shall have equal opportunity to

obtain witnesses and other evidence in accordance with such

regulations as the President may prescribe.”   Article 46, UCMJ,

10 U.S.C. § 846 (2000).    Subject to exceptions not applicable to

this case and, upon request of the defense, the trial counsel

must permit the defense to inspect any documents within the


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United States v. Webb, No. 07-5003/AF


custody, or control of military authorities that are “material

to the preparation of the defense.”   R.C.M. 701(a)(2)(A).   Thus,

an accused’s right to discovery is not limited to evidence that

would be known to be admissible at trial.   It includes materials

that would assist the defense in formulating a defense strategy.

See Roberts, 59 M.J. at 325.

     We review the military judge’s decision to order a new

trial for an abuse of discretion.   United States v. Johnson, 61

M.J. 195, 199 (C.A.A.F. 2005) (citing United States v.

Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002)).    A military judge

abuses her discretion when her 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.   See United States v. Gore, 60

M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Sullivan,

42 M.J. 360, 363 (C.A.A.F. 1995); United States v. Wallace, 964

F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).

     To convict of wrongful use of cocaine under Article 112a,

UCMJ, the Government must prove the accused used that controlled

substance and that the use was wrongful.    Manual for Courts-

Martial, United States (MCM) pt. IV, para. 37.b.(2) (2005 ed.).

“Knowledge of the presence of the controlled substance is a

required component of [wrongful] use.”   Id. at para. 37.c.(10).


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United States v. Webb, No. 07-5003/AF


When there is evidence that the accused’s body contained a

controlled substance, the factfinder may infer that the accused

used the substance knowingly.   Id.   If the evidence that the

accused’s body contains a controlled substance is based solely

upon a urinalysis, the court must be convinced the urine

specimen that was tested was the accused’s.   Fungible evidence,

such as urine specimens, generally “‘becomes admissible and

material through a showing of continuous custody which preserves

the evidence in an unaltered state.’”   United States v.

Gonzales, 37 M.J. 456, 457 (C.M.A. 1993) (quoting United States

v. Nault, 4 M.J. 318, 319 (C.M.A. 1978)).

     Evidence that the observer, a link in the chain of custody,

had been punished for dishonesty may have raised serious

questions in the minds of the court members concerning the

identity of the urine tested and whether it was unaltered when

it was tested.   This point may have borne extra weight with the

members in light of the Government’s own express prohibition on

having such persons serve as observers.   Alone or in conjunction

with Appellee’s denial of use, this evidence may have raised

reasonable doubt in the members’ minds as to Appellee’s guilt.

See, e.g., United States v. Sztuka, 43 M.J. 261 (C.A.A.F. 1995)

(concluding new evidence that the appellant’s husband may have

spiked her food with marijuana was a sufficient basis to require

a new trial).    Furthermore, the possession of this evidence may


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have altered Appellee’s trial strategy -- he may not have

testified.

     Under all the circumstances of this case, we cannot fault

the military judge for concluding that it was probable that had

the prosecution provided the nonjudicial punishment to the

defense, it would have produced a substantially more favorable

result for Appellee -- in other words, it undermined confidence

in the outcome of the trial.    In this case, the Government’s

failure to disclose exculpatory evidence that Appellee

specifically asked the Government to disclose was not harmless

beyond a reasonable doubt.   Roberts, 59 M.J. at 327.    We hold

that the military judge did not abuse her discretion in ordering

a new trial.   Her decision to grant a new trial was well within

the range of choices from the applicable facts and law, and her

use of guidance found in Article 73, UCMJ, and R.C.M. 1210(f),

to make her decision to order a new trial under Article 39(a),

UCMJ, was not an erroneous application of the law.

                                 IV.

     The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




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