                              IN THE CASE OF


                         UNITED STATES, Appellee

                                     v.

              Ronald C. ROBERTS, Senior Master Sergeant
                      U.S. Air Force, Appellant

                                No. 03-0109

                          Crim. App. No. 34236


        United States Court of Appeals for the Armed Forces

                         Argued October 7, 2003

                         Decided March 23, 2004

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

                                  Counsel

For Appellant: Captain David P. Bennett (argued); Colonel
Beverly B. Knott, Major Terry L. McElyea, and Major Kyle R.
Jacobson (on brief).

Appellee: Major Shannon J. Kennedy    (argued); Colonel LeEllen
Coacher and Major Jennifer R. Rider (on brief).

Military Judge:     Michael B. McShane


This opinion is subject to editorial correction before final publication.
United States v. Roberts, No. 03-0109/AF


      Judge ERDMANN delivered the opinion of the Court.

      Appellant Senior Master Sergeant Ronald C. Roberts was

convicted in a contested general court-martial of altering a

public record, removing a public record, drafting and printing a

false Air Force form and making a false statement, all in

violation of Article 134, Uniform Code of Military Justice

[UCMJ] 10 U.S.C. § 934 (2000).        The offenses related to the

falsification of Roberts’ 1998 annual review, known as an

Enlisted Performance Report (EPR).         Roberts was sentenced to 12

months’ confinement and reduction to the lowest enlisted grade.

The convening authority approved the confinement but lessened

the grade reduction to senior airman.

      Prior to Roberts’ court-martial, the defense submitted a

motion requesting that the court compel the Government to

disclose derogatory data regarding its witnesses, including the

lead investigator, Air Force Office of Special Investigations

(AFOSI) Special Agent (SA) “M.”        The military judge reviewed in

camera a record of an internal investigation on SA M and denied

the motion.

      On appeal to the Air Force Court of Criminal Appeals,

Roberts argued, inter alia, that the military judge’s denial of

discovery regarding SA M was erroneous because the information

withheld related to SA M’s veracity and therefore could have

been used to impeach him.       The Air Force Court of Criminal



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United States v. Roberts, No. 03-0109/AF


Appeals affirmed the findings and sentence in an unpublished

opinion.

      We granted review of the following issue:

            WHETHER THE MILITARY JUDGE, AFTER CONDUCTING
            AN IN CAMERA REVIEW, ERRED BY NOT DISCLOSING
            TO THE DEFENSE THAT SPECIAL AGENT [M] HAD
            PREVIOUSLY MADE A FALSE OFFICIAL STATEMENT.


      We hold that although the military judge erred in not

ordering the disclosure of the investigative file, the

nondisclosure was harmless beyond a reasonable doubt and we

therefore affirm the lower court decision.

                                    FACTS

      The charges in this case arose out of the circumstances

surrounding Roberts’ 1998 EPR.        Roberts’ wing commander declined

to sign the original EPR that was prepared for his signature due

to his concerns over a prior substantiated sexual harassment

complaint against Roberts by a subordinate.        He instead directed

his vice commander to sign the EPR.         According to testimony at

trial, this lower level endorsement virtually guaranteed that

Roberts would not receive a promotion to chief master sergeant.

The vice commander signed Roberts’ EPR.

      Roberts was subsequently selected for promotion to chief

master sergeant, which resulted in a complaint being filed with

the Inspector General (IG).       The IG investigation revealed




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United States v. Roberts, No. 03-0109/AF


multiple inconsistent copies of Roberts’ 1998 EPR on file, which

led to a criminal investigation.

      In the course of the investigation by AFOSI, the true EPR

signed by Roberts’ vice commander was never found.   However, two

different falsified versions of the EPR were uncovered.    One

version was purportedly signed by Roberts’ wing commander, while

the other version was purportedly signed by Roberts’ vice

commander.    The version with the vice commander’s purported

signature contained glowing language that the vice commander

testified he would not have approved, including a bullet which

stated Roberts displayed “unmatched initiative, professionalism,

and personal concern of [sic] subordinates.”

      During an interview with defense counsel prior to trial,

the lead AFOSI agent, SA M, revealed that he had previously been

disciplined, but declined to provide any details.    Defense

counsel subsequently requested that the Government provide the

defense with copies of all disciplinary actions taken against SA

M.   A Government attorney-adviser at AFOSI replied in a

memorandum that he had reviewed records including those

maintained on SA M, and found no information that had to be

disclosed.    The attorney-adviser further stated that his review

of the SA M investigation “did not reveal that SA [M] lied or

falsely testified about the matter.”




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United States v. Roberts, No. 03-0109/AF


      Defense counsel then made a motion to compel discovery

pursuant to, inter alia, Rule for Courts-Martial 701 [R.C.M.],

which asked for all derogatory data against all prospective

Government witnesses, and in the alternative, for an in camera

review of that information.       The motion specifically referenced

the disciplinary action against SA M.

      The military judge reviewed the records concerning the

investigation of SA M in camera.           The information provided to

the military judge revealed that approximately three years

before Roberts’ court-martial, while SA M was at a training

course, he had sexual intercourse with another married AFOSI

member.

      The AFOSI investigative report of that incident contains a

summary of an interview with SA M on February 13, 1997, in which

he reportedly was given a rights advisement, and initially

stated, “This is bullshit.       There is no improper relationship,”

before he stopped talking.       SA M was subsequently given

testimonial immunity and admitted to the intercourse with the

married AFOSI member in a sworn statement.          He was not

criminally charged, but he did receive an Unfavorable

Information File.

      After reviewing the file provided by the prosecution,

including the summarized report of the February 13 interview,

the military judge denied the defense motion, stating, “I have



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United States v. Roberts, No. 03-0109/AF


concluded that that file does not contain any information . . .

which would be proper impeachment matters for the defense to

have knowledge of and to use in their case.”

                                    DISCUSSION

      Roberts argues that the military judge erred in refusing to

order disclosure of information which showed that SA M made a

false official statement.       He claims he was entitled to the

information under R.C.M. 701 and under Brady v. Maryland, 373

U.S. 83 (1963).1     Our review of discovery/disclosure issues

utilizes a two-step analysis:        first, we determine whether the

information or evidence at issue was subject to disclosure or

discovery; second, if there was nondisclosure of such

information, we test the effect of that nondisclosure on the

appellant’s trial.

      Nondisclosure of information pertaining to disciplinary
      action against SA M.

      The right of an accused to obtain favorable evidence is

established in Article 46, UCMJ, 10 U.S.C. § 846 (2000).       This

statute is implemented in R.C.M. 701 which details the liberal

discovery practice in courts-martial.       Rule for Courts-Martial

701 sets forth the rights and corresponding obligations of the

parties to a court-martial.       Of particular importance in this


1
  Because we find that the military judge erred by not compelling
disclosure pursuant to R.C.M. 701(a)(2)(A) we do not address any
separate entitlement Roberts may have had to this information
under Brady v. Maryland, 373 U.S. 83 (1963).

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United States v. Roberts, No. 03-0109/AF


case are the Government’s duties concerning disclosure of

information requested by the defense which is “material to the

preparation of the defense . . . ."        R.C.M. 701(a)(2)(A).

      Discovery practice under Article 46 and R.C.M. 701

“promote[s] full discovery . . . eliminates ‘gamesmanship’ from

the discovery process” and is “quite liberal . . . .       Providing

broad discovery at an early stage reduces pretrial motions

practice and surprise and delay at trial.”       Manual for Courts-

Martial, United States (2002 ed.), Analysis of Rules for Courts-

Martial A21-32.     The military rules pertaining to discovery

focus on equal access to evidence to aid the preparation of the

defense and enhance the orderly administration of military

justice.   To this end, the discovery practice is not focused

solely upon evidence known to be admissible at trial.       See

United States v. Stone, 40 M.J. 420, 422 (C.M.A. 1994)(citing

United States v. Lloyd, 992 F.2d 348, 351 (D.C. Cir. 1993)).

The parties to a court-martial should evaluate pretrial

discovery and disclosure issues in light of this liberal

mandate.

      Roberts made a proper request to compel discovery of

information and the Government declined disclosure.       Thereafter,

at Roberts’ request, the matter was submitted to the military

judge to review in camera, pursuant to R.C.M. 701.       Under such

circumstances, the military judge may review the information ex



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United States v. Roberts, No. 03-0109/AF


parte, in camera, and may order “that the discovery or

inspection be denied, restricted, or deferred, or make such

other order as is appropriate.”        R.C.M. 701(g)(2).

      An appellate court reviews a military judge’s decision on a

request for discovery for abuse of discretion.       United States v.

Morris, 52 M.J. 193, 198 (C.A.A.F. 1999).        A military judge

abuses his discretion when his findings of fact are clearly

erroneous, when he is incorrect about the applicable law, or

when he improperly applies the law.        In this case, we are not

dealing with any factual determinations.       We are reviewing the

military judge’s determination whether this requested evidence

was “material to the preparation of the defense” for purposes of

the Government’s obligation to disclose under R.C.M.

701(a)(2)(A).    The military judge’s determination of materiality

in this respect is a question of law that we review de novo.

Id.

      Information about SA M’s denial of misconduct to which he

subsequently confessed, whether or not it constituted proof of a

false official statement, was probative of his truthfulness and

could have been used in preparation of the defense to determine

whether SA M could be impeached under Military Rule of Evidence

608(b) [M.R.E.].     Under M.R.E. 608(b), specific instances of the

conduct of a witness, if probative of truthfulness or

untruthfulness, may in the discretion of the military judge be



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United States v. Roberts, No. 03-0109/AF


inquired into on cross-examination of the witness.          In this

context however, the question is not whether the military judge

would or would not have permitted the cross-examination under

M.R.E. 608(b), but whether the information was material to the

defense’s preparation for trial.           See R.C.M. 701(a)(2)(A).   In

light of the Government’s incorrect statement that the records

of the SA M investigation “did not reveal that SA [M] lied or

falsely testified about the matter”, the defense was left with

no basis upon which to believe SA M’s veracity could be

attacked.

      The defense had a right to this information because it was

relevant to SA M’s credibility and was therefore material to the

preparation of the defense for purposes of the Government’s

obligation to disclose under R.C.M. 701(a)(2)(A).          In addition,

the military judge improperly limited the scope of discovery

when he apparently focused on admissibility, ruling that the

“file does not contain any information . . . which would be

proper impeachment matters for the defense . . . to have

knowledge of and to use in their case.”           (Emphasis added).   We

hold that the military judge erred as a matter of law when he

denied the defense motion to compel discovery.




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United States v. Roberts, No. 03-0109/AF


      Effect of Erroneous Nondisclosure.

      Having determined that the information should have been

disclosed during discovery, we now turn to the second phase of

our analysis.     In this context, an appellate court reviews the

materiality of the erroneously withheld information in terms of

the impact that information would have had on the results of the

trial proceedings.     Both phases of this analysis involve a

determination of “materiality” but they are two distinct

inquiries.    The first inquiry at the trial level is whether the

information would be “material to the defense” in the

preparation of their case and the second inquiry, at the

appellate level, determines the materiality of the withheld

information to the results of the trial.

      This Court has adopted two appellate tests for determining

materiality with respect to the erroneous nondisclosure of

discoverable evidence.      United States v. Hart, 29 M.J. 407, 410

(C.M.A. 1990).2




2
  Since Hart, this Court has issued a number of decisions that
deal with the materiality of undisclosed, discoverable evidence.
United States v. Mahoney, 58 M.J. 346, 349 (C.A.A.F. 2003);
United States v. Morris, 52 M.J. 193, 197-98 (C.A.A.F. 1999);
United States v. Stone, 40 M.J. 420, 422-23 (C.M.A. 1994);
United States v. Green, 37 M.J. 88, 89-90 (C.M.A. 1993); United
States v. Watson, 31 M.J. 49, 54-55 (C.M.A. 1990). As these
cases have sometimes used different terminology in stating the
applicable tests, we take this opportunity to clarify the
respective tests and burdens.

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United States v. Roberts, No. 03-0109/AF


      The first test applies to those cases in which the defense

either did not make a discovery request or made only a general

request for discovery.      Once the appellant demonstrates wrongful

nondisclosure under those circumstances, the appellant will be

entitled to relief only by showing that there is a “reasonable

probability” of a different result at trial if the evidence had

been disclosed.     United States v. Bagley, 473 U.S. 667, 682

(1985); Hart, 29 M.J. at 410; see also Strickler v. Greene, 527

U.S. 263, 290 (1999).

      The second test is unique to our military practice and

reflects the broad nature of discovery rights granted the

military accused under Article 46.         Where an appellant

demonstrates that the Government failed to disclose discoverable

evidence in response to a specific request or as a result of

prosecutorial misconduct, the appellant will be entitled to

relief unless the Government can show that nondisclosure was

harmless beyond a reasonable doubt.        Hart, 29 M.J. at 410.

     Roberts made a specific request for information about

disciplinary actions involving SA M.        The requested information

existed and the Government declined to disclose it.        The request

was reviewed by the military judge who erroneously denied the

motion to compel disclosure.       We will therefore use the




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United States v. Roberts, No. 03-0109/AF


“harmless beyond a reasonable doubt” standard in determining
                                             3
whether Roberts is entitled to relief.

      The circumstantial evidence of Roberts' guilt was

overwhelming.    Handwriting analyses showed that the signatures

on both of the questioned EPRs had been traced.        Roberts’ vice

commander testified that the signature found on the EPR

purportedly signed by him was not his, and that he would not

have approved the laudatory language in two of the six bullets

under the “Rater’s Rater” section.         Roberts had a motive to

fabricate his EPR, in order to get a promotion that he knew

would otherwise have been denied him.        His fingerprint was found

on one of the versions of the 1998 EPR next to the wing

commander’s falsified signature.

      Analysis of Roberts’ fingerprints showed evidence that the

upper layer of skin on his hands had been deliberately altered.

An altered copy of Roberts’ 1997 EPR with a false signature was




3
  Although the military judge in this case conducted an in camera
review of the disputed evidence under R.C.M. 701(g)(2), we
review that ruling as a matter of law, giving no deference to
that ruling under our de novo standard of review. Similarly,
the appellate standard of review for assessing the impact of
improper nondisclosure is not deferential because we are not
reviewing any trial level decision. Our appellate assessment of
impact is no different regardless of whether the discovery issue
was ruled on by the military judge under R.C.M. 701(g)(2) or
whether it arose from a Government decision to withhold certain
evidence that was not discovered until after trial.

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United States v. Roberts, No. 03-0109/AF


found in his office desk.       It is well accepted that

circumstantial evidence is sufficient to sustain a finding of

guilt.   R.C.M. 918(c); see generally United States v. Lewis, 51

M.J. 376, 380 (C.A.A.F. 1999); United States v. Caballero, 37

M.J. 422, 425 (C.M.A. 1993).

      Moreover, SA M, although an important witness, was far from

the linchpin of the Government’s case.       He provided foundational

testimony for the prosecution exhibits of the various EPR

documents and media files.       He also testified about his role in

securing Roberts’ fingerprints and in obtaining handwriting

analyses of the signatures on the questioned EPRs and about his

interview of Roberts.      Nine other witnesses testified to

Roberts’ motive to forge the EPR, his access to the EPR at the

critical periods, and the substantial evidence that the

documents were in fact forged.

      In light of the evidence in the entire record, we are

satisfied that the nondisclosure was harmless beyond a

reasonable doubt.

                                  DECISION

     The decision of the United States Air Force Court of

Criminal Appeals is therefore affirmed.




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United States v. Roberts, No. 03-0109/AF

     CRAWFORD, Chief Judge (concurring in the result):

     This case is yet another example of the majority

selectively refusing to follow Supreme Court precedent and

fashioning a different standard for the military without a

showing of military necessity.   While I agree with the result in

this case, I would apply the Supreme Court’s “reasonable

probability” standard to the issue of wrongful nondisclosure as

this Court did only last term in United States v. Mahoney, 58

M.J. 346 (C.A.A.F. 2003).   Also following the Supreme Court, I

would apply the “reasonable doubt” standard where there has been

perjured testimony.   United States v. Bagley, 473 U.S. 667, 679-

80 (1985).   By abandoning Supreme Court precedent in the present

case, the majority is inconsistent not only with this Court’s

rulings as well as the Supreme Court’s, but it also undercuts

the soundness of its adjudication.   While the end result may not

change, the rationale employed by the majority will only serve

to “undermine[] public confidence in the stability, and

predictability of military justice.”   United States v. Kahmann,

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

result).

     Over the years, the courts have sought to ensure that the

accused’s right to a fair trial is not imperiled by the

nondisclosure of evidence to the defense.   Accordingly, the

Supreme Court’s standard of review for wrongful nondisclosure
United States v. Roberts, No. 03-0109/AF

cases has evolved.    See, e.g., Strickler v. Greene, 527 U.S. 263

(1999); Kyles v. Whitley, 514 U.S. 419, 437 (1995); United

States v. Bagley, 473 U.S. 667, 682 (1985); United States v.

Agurs, 427 U.S. 97, 103 (1976).       In Agurs, the Supreme Court

applied a “strict standard of materiality not just because [such

cases] involve prosecutorial misconduct, but more importantly

because they involve a corruption of a truth-seeking function of

the trial process.”    Agurs, 427 U.S. at 104.     But, when there is

“no reason to question the veracity” of the verdict, then the

Agurs materiality test would not apply.      Id.   Our Court likewise

has developed various tests to decide the issue of wrongful

nondisclosure.   See, e.g., United States v. Hart, 29 M.J. 407,

410 (C.M.A. 1990)(applying a beyond a reasonable doubt

standard); United States v. Eshalomi, 23 M.J. 12, 24 (C.M.A.

1986)(indicating that “we need not face [the Bagley] issue now

because, even under the [Bagley] reasonable-probability test,

reversal is required in this case”).

     This evolution of the standard of review for wrongful

nondisclosure stems from the question of which party bears the

burden of proof.   Addressing this question in conjunction with

standard of review, the Court stated in Strickler, 527 U.S. at

290 (citation omitted), that the issue is “whether the favorable

evidence could reasonably be taken to put the whole case in such

a different light as to undermine confidence in the verdict.”


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United States v. Roberts, No. 03-0109/AF

The burden is on the defense to show, first, that there has been

non-disclosure; second, whether the evidence was material; and,

third, whether “there [was] a reasonable probability that the

jury would have returned a different verdict[.]”   Id. at 296.

See also Banks v. Dretke, ___ U.S. ___ (2004).    If the defense

meets the “reasonable probability” standard, it generally would

not be possible for the Government to prove beyond a reasonable

doubt that the failure to disclose had no impact on the verdict.

     Notwithstanding the burden of proof, the appropriate

standard of review remains “reasonable probability” of a

different verdict.   In keeping with this approach, this Court
                                                                     Formatted: Underline
recently reiterated in Mahoney, as noted supra, that the

“reasonable probability” test determines whether there has been

wrongful nondisclosure of exculpatory evidence.    In so doing, we

opined:

          The constitutional guarantee of due process
     requires that “criminal defendants be afforded a
     meaningful opportunity to present a complete defense.”
     California v. Trombetta, 467 U.S. 479, 485 (1984).
     Accordingly, the prosecution must 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)]. “Favorable” evidence under Brady includes
     “impeachment evidence . . . that, if disclosed and
     used effectively, . . . may make the difference
     between conviction and 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,


                                 3
United States v. Roberts, No. 03-0109/AF

     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, 514 U.S. at 434. 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).

Id. at 349.    As demonstrated through our citations in Mahoney,

this approach is consistent with the Constitution and Supreme

Court precedent.   Indeed, Bagley established a single standard

of review, whether there is no request, a general request, or a

specific request for the nondisclosed evidence.   Bagley, 473

U.S. at 682.

     The “materiality” issue as applied by the majority and

found in Rule for Courts-Martial 701(a)(2)(A) [hereinafter

R.C.M.] is similar to the language employed in Brady v.

Maryland, 373 U.S. 83 (1963), and its progeny:

          We find the Strickland formulation of the Agurs
          test for materiality sufficiently flexible to
          cover the “no request,” “general request,” and
          “specific request” cases of prosecutorial failure
          to disclose evidence favorable to the accused:
          The evidence is material 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. A
          “reasonable probability” is a probability
          sufficient to undermine confidence in the
          outcome.




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United States v. Roberts, No. 03-0109/AF

Bagley, 473 U.S. at 682.   The materiality standard mentioned in

R.C.M. 701 and the Supreme Court decisions does not require the

demonstration by a preponderance of the evidence that the

disclosure would have resulted in the defendant’s acquittal.

     Bagley’s touchstone of materiality is a “reasonable
     probability” of a different result, and the adjective
     is important. The 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, understood as a
     trial resulting in a verdict worthy of confidence.

Kyles, 514 U.S. at 434.    It is not a “sufficiency of the

evidence test.”   As the Court noted, a Bagley error could

not be treated as harmless because “a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different,” Bagley, 473 U.S. at 682, necessarily entails

the conclusion that the suppression must have “had

substantial and injurious effect or influence in

determining the jury’s verdict.”       Brecht v. Abrahamson, 507

U.S. 619, 623 (1993)(quoting Kotteakos v. United States,

328 U.S. 750, 776 (1946)).

     We should follow Supreme Court precedent which sets forth a

bright line rule for nondisclosure and closely approximates the

result this Court seeks to achieve today.       The “reasonable

probability” rule ensures the rights of defendants and protects

the interests of the Government.       It is a predictable and


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United States v. Roberts, No. 03-0109/AF

consistent rule rather than one that depends on predilections of

the appellate courts in the future.   When the categories

mentioned by the majority have to be further defined, I fear the

end result will be further selective application of Supreme

Court precedent in the future.

     Because the result in this case is the same regardless of

which standard is applied, I concur in the result reached by the

majority.




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