                       UNITED STATES, Appellee

                                     v.

            Jonathan A. CAMPBELL, Airman First Class
                    U.S. Air Force, Appellant

                               No. 01-0467

                         Crim. App. No. 33647

___________________________________________________________

     United States Court of Appeals for the Armed Forces

                       Argued January 23, 2002

                        Decided August 6, 2002

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

                                  Counsel

For Appellant: Captain Patrick J. Dolan (argued);
   Lieutenant Colonel Beverly B. Knott (on brief).

For Appellee: Captain Adam Oler (argued); Colonel Anthony
   P. Dattilo and Major Lance B. Sigmon (on brief); Major
   Bryan T. Wheeler.


Military Judge:      Howard P. Sweeney

   THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Campbell, No. 01-0467/AF


     Judge BAKER delivered the opinion of the Court.

     Appellant was tried at Elmendorf Air Force Base,

Alaska, by a general court-martial composed of officer and

enlisted members.    Contrary to his pleas, he was convicted

of using marijuana on divers occasions, in violation of

Article 112a, Uniform Code of Military Justice (UCMJ), 10

USC § 912a.   The adjudged sentence provided for a bad-

conduct discharge and no other punishment.       The sentence

was approved by the convening authority.

                     Procedural Background

     After the convening authority took action, appellant

filed a congressional complaint with a Member of the United

States Senate alleging prosecutorial misconduct in his

case.   Specifically, appellant alleged that trial counsel

coerced perjured testimony from the witnesses against him

by threatening that they were “going to jail for a long

time if they don’t testify against [him] and say what they

want them to say.”   Before submission of appellant’s case

to the Court of Criminal Appeals, appellate defense counsel

obtained signed but unsworn letters from three individuals

whose courts-martial arose out of the same factual

circumstances as appellant’s.       A letter from Richard

Wisniewski stated:




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United States v. Campbell, No. 01-0467/AF


     I told Elmendorf Legal Office, Capt Reese that I never
     witnessed John Campbell use any drugs. Capt Reese
     told me “that wasn’t good enough.” That I could
     remember more and if I didn’t then I was not
     cooperating with him and my Pre-Trial Agreement would
     be taken from me. With my P.T.A. at steak [sic]. I
     had to state in John Campbells [sic] Art. 32 hearing
     that I physically witnessed Campbell smoke marijuana
     4-6 times. . . . I was told many times by the
     Elmendorf Legal Office Staff what I had to say, in
     order to keep my Pre-Trial Agreement. I find this not
     only wrong, but I had to betray a friend in fear of
     going to prison for 10 or more years. Nothing can
     change the fact I had to lie.

A letter from Stephen Hicks stated:

     I know that the prosecution in these cases
     persuaded the soldiers involved to lie under
     oath. . . . I myself was instructed to lie in
     the cases of “U.S. vs. Campbell” and “U.S. vs.
     Leavitt.” . . . [T]he prosecution told me that
     I could lose my pretrial agreement if I did not
     tell them what they wanted to hear regarding the
     case of “U.S. vs. Campbell”. . . . I fully
     cooperated and told the truth, but I never
     received any recommendations toward a lesser
     sentence . . . .

Lastly, a letter from Josh Leavitt stated:

     On several occasions, I was asked to speak to the
     prosecution in U.S. vs Johnathan Campbell. In this
     discussion (interrceaction) [sic], I was badgered into
     a concrete line of testimony. I testified in his
     trial that they wanted me to “twist the truth.” . . .
     I informed the prosecutors that a lot of the things in
     [my first statement] were inaccurate, but once again I
     was instructed to stick with it so it wouldn’t seem
     like I was lying or making any of it up.

Of the three individuals submitting letters, only Leavitt

testified at appellant’s trial.




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United States v. Campbell, No. 01-0467/AF


      Appellate defense counsel subsequently requested from

the Air Force Legal Services Agency a copy of the

“Committee on Ethics and Standards Investigation Report of

Prosecutorial Misconduct, U.S. v. Campbell.”

Alternatively, “at a minimum,” he asked for copies of

statements made by witnesses and subjects of this inquiry.

The Government denied this request without confirmation as

to whether such a report or statements existed.1           On April

10, 2000, appellate defense counsel filed a motion in the

Court of Criminal Appeals requesting that the court compel

production of the report.       That court denied the request on

April 27, 2000, finding that

      (1)   The appellant failed to establish
            jurisdiction of this Court over the
            appellant’s case.

      (2)   The appellant’s motion is premature. Before
            this court can judge the merits of the
            appellant’s motion, there must be some
            assignment of error or allegation against
            which the relevance of the petition may be
            judged.




1
 At oral argument, government counsel stated that to this day, he is
still not aware whether an inquiry into appellant’s allegations was
conducted. In contrast, appellant’s brief states, “Appellant in the
case at bar actually knows that relevant evidence concerning his appeal
exists and is in the possession of the government.” Final Brief in
Support of Petition Granted at 8. Appellate defense counsel tempered
this statement at oral argument, conceding that absent some definitive
statement from the Government, counsel could not, in fact, confirm the
existence of a report.


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United States v. Campbell, No. 01-0467/AF


     On June 30, 2000, appellate defense counsel filed

assignments of error with the Court of Criminal Appeals and

subsequently, on July 19, 2000, filed in this Court a

petition for extraordinary relief in the nature of a writ

of mandamus to compel the Government to provide the

requested report or, alternatively, to provide for in

camera judicial review of the report.    Appellant cited

United States v. Huberty, 53 MJ 369 (2000), as authority.

     On October 19, 2000, after considering appellant’s

petition for extraordinary relief and the Government’s

answer, this Court ordered the case returned to the Court

of Criminal Appeals for “reconsideration of its denial of

petitioner’s motion for discovery in light of United States

v. Huberty, 53 MJ 369 (2000).”    United States v. Campbell,

54 MJ 349 (2000)(summary disposition).

     On March 13, 2001, the Court of Criminal Appeals

affirmed the findings and sentence in an unpublished

opinion during its review of the merits of the case under

Article 66, UCMJ, 10 USC § 866.   With respect to

appellant’s Huberty claim, the court stated:

     We find no evidence of prosecutorial misconduct.
     The record of trial is so clear, we also see no
     need for us to grant the appellant’s motion for
     discovery or to review the ethics investigation




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United States v. Campbell, No. 01-0467/AF


      in camera.[2] Our decision on this matter is made
      easy by the fact that aside from the rhetoric,
      SrA Leavitt’s declaration does not state that he
      lied about the appellant’s use of marijuana in
      his written statements or during his testimony at
      trial. Therefore, if indeed any prosecutorial
      misconduct occurred during the prosecution of
      related cases, it did not involve the appellant.

Unpub. op. at 3. The court also indicated that it

reconsidered appellant’s motion pursuant to our order of

October 19, 2000.     Having done so, it nonetheless concluded

that the motion should be denied.           Id. at 1.

      We subsequently granted review of the following issue:

                                       I

      WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
      IN PERSISTING TO REFUSE TO GRANT APPELLANT’S MOTION
      FOR DISCOVERY, EVEN AFTER THE COURT OF APPEALS FOR THE
      ARMED FORCES ORDERED THE COURT OF CRIMINAL APPEALS TO
      RECONSIDER ITS PRIOR REFUSAL TO DO SO IN LIGHT OF
      UNITED STATES V. HUBERTY, 53 MJ 369 (2000).

In addition, we asked the parties to brief the following

issue raised in appellant’s petition for a new trial:

                                       II

      WHETHER THIS HONORABLE COURT SHOULD ORDER AN IN CAMERA
      REVIEW OF RELEVANT EVIDENCE WHICH COULD ESTABLISH
      APPELLANT’S ENTITLEMENT TO A NEW TRIAL.

      For the reasons stated below, we return the record of

trial to the Judge Advocate General of the Air Force for

remand to the Court of Criminal Appeals for further review.


2
 Air Force TJAG Policy Number 2, Professional Responsibility, paragraph
8b, distinguishes an “inquiry” into possible ethics violations from an
“ethical investigation” conducted by most licensing authorities.


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United States v. Campbell, No. 01-0467/AF


Given our disposition of this case, appellant’s petition

for new trial is denied.

                                 Discussion

         Appellant argues that he has made a threshold showing

that there was a pattern of prosecutorial misconduct in his

and other related cases.          He further contends that the

Government inquired into these allegations, and that such

inquiry “is potentially relevant” to his appeal.            Final

Brief in Support of Petition Granted at 5.            Appellant

argues that, as a matter of legal policy, while in camera

review could be performed by this Court, the court below,

or a military judge on remand for a DuBay3 proceeding, in

the future, such issues might best be addressed in a

process similar to that governing collateral attacks on the

sentence in federal civilian courts pursuant to 28 USC

§ 2255.       Appellant notes that in this case, he seeks in

camera review by any appropriate judicial body, so long as

such review is expeditious.            Moreover, appellant contends

that in Huberty, this Court resolved the legal question

presented and that pursuant to this Court’s order of

October 19, 2000, in camera judicial review by the Court of

Criminal Appeals should proceed post haste.



3
    17 USCMA 147, 37 CMR 411 (1967).


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United States v. Campbell, No. 01-0467/AF


     The Government contends that to the extent Huberty is

read to establish a right to and a mechanism for appellate

discovery, such right goes beyond the plain text and

legislative intent of the Uniform Code of Military Justice,

as well as federal case law.   The Government argues that

there is no authority for appellate discovery by either

this Court or the Courts of Criminal Appeals found within

Article 66, supra, or Articles 67 and 73, UCMJ, 10 USC

§§ 867 and 873; therefore, such authority does not exist.

In this regard, the Government notes that Article 67(a)(2)

states this Court “shall review the record in . . . all

cases reviewed by a Court of Criminal Appeals . . .,” and

such record, it contends, necessarily is limited to the

record of the court-martial alone.   (Emphasis added.)

     Finally, the Government argues that even if

appellant’s allegations were true, he would not be entitled

to a new trial.   Of the three unsworn statements proffered

by appellant as a predicate for further discovery, only

Leavitt’s is from a person who testified at appellant’s

trial.   Leavitt’s statement does not assert that he lied at

appellant’s court-martial, only that prosecutors pressured

him into a particular line of testimony.    According to

Leavitt, “I testified in his trial that they wanted me to

twist the truth.”   As a result, the Government concludes,


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United States v. Campbell, No. 01-0467/AF


the question of prosecutorial pressure was explored at

trial before the members and does not warrant further

review.

     Both appellant and the Government agree with the

following proposition in the Government’s brief:

       A system through which the military appellate courts
     address post-trial issues such as unlawful command
     influence and prosecutorial misconduct is already well
     established within the military judicial process. See
     [United States v.] DuBay, [17 USCMA 147,] 37 CMR 411
     [(1967).] Military appellate courts return cases to
     the trial level when it becomes necessary to develop
     facts not contained within the record of trial, and
     where affidavits do not suffice. Id. at 413; United
     States v. Ginn, 47 MJ 236 (1997).

Final Brief on Petition for Grant of Review and Petition

for New Trial at 9.   However, the parties disagree as to

whether a DuBay hearing should be the exclusive mechanism

for resolution of post-trial discovery issues, as well as

the threshold for invoking such a process.

                          Discussion

     In Huberty, the accused claimed he had hearsay

information that a government expert’s credentials had been

suspended, removed, or limited at the time of trial.    Using

a Freedom of Information Act request for such credentialing

information, the accused sought to ascertain from the

Office of the Air Force Surgeon General whether any adverse

actions had been taken against the expert.   That request



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United States v. Campbell, No. 01-0467/AF


was denied.   He subsequently sought an order from the Court

of Criminal Appeals for in camera review by that court of

the expert’s records.   The Court of Criminal Appeals denied

this request, noting that “appellant offers no information

that connects the alleged credentialing action against the

medical care provider with the testimony that the medical

provider provided at his trial.”     Huberty, 53 MJ at 370-71.

After an appeal was made to this Court, we ordered

production of the records “so that an in camera inspection

may be made to determine whether information is contained

therein that would reasonably support a petition by

appellant for a new trial.”   Id.

     What this Court addressed in Huberty was an anomaly

between military courts and civilian courts previously

noted in DuBay.   “Normally, collateral issues of this type

would, on remand in the civil courts, be settled in a

hearing before the trial judge.     The court-martial

structure, . . . however, is such that this cannot be

accomplished.”    DuBay, supra at 149 n.2, 37 CMR at 413 n.2.

Huberty did not establish, per se, a structure to address

this anomaly, nor did it establish a threshold standard for

obtaining a post-trial evidentiary hearing where discovery

might be necessary.




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United States v. Campbell, No. 01-0467/AF


     When faced with a post-trial dispute over discovery

relevant to an appeal, an appellate court needs to conduct

an analysis similar to that used in United States v. Lewis,

42 MJ 1 (1995), for claims of ineffective assistance of

counsel.   First, it must determine whether the appellant

met his threshold burden of demonstrating that some measure

of appellate inquiry is warranted.   In addressing this

question, the court should consider, among other things:

     (1)   whether the defense has made a colorable showing
           that the evidence or information exists;

     (2)   whether or not the evidence or information sought
           was previously discoverable with due diligence;

     (3)   whether the putative information is relevant to
           appellant’s asserted claim or defense; and

     (4)   whether there is a reasonable probability that
           the result of the proceeding would have been
           different if the putative information had been
           disclosed.

     Second, if the court decides inquiry is warranted, it

must determine what method of review should be used.   As a

general matter, “[a] Court of Criminal Appeals has

discretion . . . to determine how additional evidence, when

required, will be obtained, e.g., by affidavits,

interrogatories, or a factfinding hearing.”   Id. at 6.

Such determinations are necessarily contextual and not

generally conducive to a single solution.   However, we

recognize that a Court of Criminal Appeals may conclude in


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United States v. Campbell, No. 01-0467/AF


some instances, such as where there is the need to discover

particular facts, that a DuBay evidentiary hearing may be

necessary.   In determining whether a DuBay hearing is

warranted to resolve a factual matter, the Courts of

Criminal Appeals should be guided by the standard

enunciated in Ginn.

     In Ginn, we held that "a hearing need not be ordered

if an appellate court can conclude that ‘the motion and the

files and records of the case . . . conclusively show that

[an appellant] is entitled to no relief.’"     47 MJ at 244

(quoting United States v. Giardino, 797 F.2d 30, 32 (1st

Cir. 1986))(emphasis added).   Expounding upon this

standard, we adopted the general rule followed by the

federal civilian courts that a hearing is unnecessary when

the post-trial claim “(1) is inadequate on its face, or (2)

although facially adequate is conclusively refuted as to

the alleged facts by the files and records of the case,”

i.e., “they state conclusions instead of facts, contradict

the record, or are ‘inherently incredible.’”    Id. (quoting

United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993)).

     In this case, neither party contests that appellant

seeks the information at issue as part of his direct appeal

of his court-martial conviction pending before this Court.

The Government argues that the information, if it exists,


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United States v. Campbell, No. 01-0467/AF


is not relevant to and, in any event, would not change the

outcome of appellant’s appeal.    Thus, the question is not

one of appellate authority to review the putative report in

camera, but whether appellant has done enough to establish

the relevance of the information sought to his allegation

of prosecutorial misconduct to warrant such appellate

review.

     We conclude in this case that we need not reach a

conclusion as to the applicability of the Ginn standard.

Appellant’s case reflects the specific facts and

circumstances of the prior proceedings.    First of all, it

was argued under a Huberty rubric.    As noted above, Huberty

is an exercise of appellate authority to examine

allegations and facts relevant to an appeal; however, it

did not establish a legal regime nor set parameters for

addressing issues of appellate review of post-trial

disputes over discovery relevant to an appeal.    Second, a

majority of this Court anticipated, but did not necessarily

direct, that the order of October 19, 2000, would result in

a determination by the lower court whether the purported

report of an inquiry existed and, if so, whether its

contents suggested the need for further review of

appellant’s allegation of prosecutorial misconduct.    Under

the particular facts of this case, including the extensive


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United States v. Campbell, No. 01-0467/AF


appellate history involved, we conclude that the interests

of justice are better served by again remanding to the

Court of Criminal Appeals to determine with certainty

whether a report exists, and if it does, to determine in

camera whether it is relevant to appellant’s appeal and

whether further inquiry is warranted.     Otherwise, appellate

courts should limit Huberty’s reach to its facts and apply

the Lewis framework as elaborated above.

                           Decision

     The decision of the United States Air Force Court of

Criminal Appeals is set aside.     The record of trial is

returned to the Judge Advocate General of the Air Force for

remand to the Court of Criminal Appeals.     The Court of

Criminal Appeals shall determine whether the report

appellant seeks exists.   If such report exists, the court

shall order it produced and issue any protective orders

necessary to protect its confidentiality.     The court shall

then review the report, attach it to the record, and

determine its relevance to appellant’s assignments of

error.   If an additional factual inquiry is necessary, that

court shall first order a DuBay hearing.     If relevant

information is disclosed, the court will reconsider

appellant’s claim of prosecutorial misconduct pursuant to




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United States v. Campbell, No. 01-0467/AF


Article 66.   Thereafter, the provisions of Article 67 shall

apply.




                              15
United States v. Campbell, No. 01-0467/AF


    SULLIVAN, Senior Judge (concurring in the result):

    Appellant requested that the Court of Criminal Appeals order

the Government to produce for defense review a copy of an

investigation of prosecutorial misconduct at his court-martial.

I would remand this case to the Court of Criminal Appeals to

consider this request in light of this Court’s decision in United

States v. Ginn, 47 MJ 236 (1997).    Neither United States v.

Huberty, 53 MJ 369 (2000), nor United States v. Lewis, 42 MJ 1

(1995), provides a comprehensive approach or framework in which

to resolve post-trial requests for discovery.    While United

States v. Ginn particularly addresses requests for post-trial

fact-finding hearings, it can be readily used for resolving other

requests for post-trial discovery.
