                          UNITED STATES, Appellee

                                        v.

                Shapour MEGHDADI, Private First Class
                         U.S. Army, Appellant

                                  No. 04-0042

                          Crim. App. No. 20000029

       United States Court of Appeals for the Armed Forces

                       Argued October 13, 2004

                       Decided February 11, 2005

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

                                    Counsel

For Appellant: Captain Jeremy W. Robinson (argued); Captain
Lonnie J. McAllister II, Captain Kathleen D. Schmidt, Lieutenant
Colonel Mark Tellitocci, and Major Sean S. Park (on brief);
Colonel Mark Cremin, Colonel Robert D. Teetsel, and Captain
Charlie A. Kuhfahl.

For Appellee: Captain Abraham F. Carpio (argued); Colonel
Steven T. Salata, Lieutenant Colonel Mark L. Johnson, and Major
Natalie A. Kolb (on brief).

Military Judges: Nancy A. Higgins and Jeffrey D. Smith




     THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Meghdadi, No. 04-0042/AR


     Judge CRAWFORD delivered the opinion of the Court.

     Before a general court-martial on January 4-7, 2000, and

contrary to his pleas, Appellant was convicted of conspiring to

distribute cocaine, twice distributing cocaine, and using

cocaine, in violation of Articles 81 and 112a, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. §§ 881 and 912a (2000).     The

offenses all occurred at Fort Lewis, Washington, in July and

August 1999.   On September 27, 2000, prior to authentication of

the record of trial, and prior to the convening authority’s

action, Appellant requested a post-trial session under Article

39(a), UCMJ, 10 U.S.C. § 839(a) (2000), seeking inquiry into

alleged witness misconduct, or, alternatively, a mistrial or a

new trial.   Lieutenant Colonel (LTC) Smith heard the evidence at

the post-trial session and denied the motion.   The military

judge who presided at trial (LTC Higgins) had been reassigned.

After this hearing, on May 3, 2001, the convening authority

approved the sentence of a bad-conduct discharge, three years’

confinement, total forfeitures, and reduction to the lowest

enlisted grade.

   On October 17, 2002, Appellant filed a joint “Brief on

Behalf of Appellant and Petition for New Trial” with the Army

Court of Criminal Appeals.   The joint brief was rejected on

procedural grounds and Appellant did not file a separate

petition for new trial until August 20, 2003.   On September 23,


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United States v. Meghdadi, No. 04-0042/AR


2003, the Court of Criminal Appeals affirmed the findings and

sentence and denied Appellant’s petition for new trial in a

short-form opinion.   United States v. Meghdadi, ARMY 20000029

(A. Ct. Crim. App. Sept. 23, 2003).    We granted review of the

first issue and specified issues two and three:

     I.    WHETHER THE ARMY COURT OF CRIMINAL APPEALS ERRED
           WHEN IT DENIED APPELLANT’S REQUEST FOR A NEW
           TRIAL BASED ON NEWLY DISCOVERED EVIDENCE AND
           FRAUD ON THE TRIAL COURT?

     II.   WHETHER APPELLANT’S FAILURE TO FILE THE PETITION
           FOR NEW TRIAL WITHIN THE TWO-YEAR PERIOD
           ESTABLISHED BY ARTICLE 73 DEPRIVED THE ARMY COURT
           OF CRIMINAL APPEALS OF JURISDICTION TO CONSIDER
           THE PETITION?

     III. WHETHER THE MILITARY JUDGE ERRED WHEN HE DENIED
          APPELLANT’S MOTION FOR A POST-TRIAL ARTICLE 39(A)
          SESSION TO CONSIDER WHETHER APPELLANT SHOULD BE
          GRANTED A NEW TRIAL IN LIGHT OF CLAIMS OF NEWLY
          DISCOVERED EVIDENCE AND FRAUD ON THE COURT?

   For the reasons set forth below, we conclude that the

military judge erred in denying Appellant’s motion for a post-

trial session pursuant to Article 39(a), UCMJ, 10 U.S.C.

§ 839(a) (2000), to consider whether a new trial should be

granted.   Accordingly, we need not reach Issues I and II.

                               FACTS

     Appellant’s convictions for conspiring to distribute

cocaine and twice distributing cocaine rested almost entirely on

the testimony of Investigator Pereira (Pereira) of the Fort

Lewis, Washington, Criminal Investigation Command (CID), and



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United States v. Meghdadi, No. 04-0042/AR


Specialist Polanco (Polanco), an informant for the CID, who was

recruited by Pereira shortly after Pereira arrested Polanco for

drug offenses.   At Appellant’s trial, Pereira testified that in

July 1999 he gave Polanco money to buy cocaine from Appellant.

After Appellant showed Polanco a baggie containing a white

powder, they went into a bathroom to avoid detection by casual

observers.   Polanco emerged without the money and with a baggie

containing cocaine.   Polanco corroborated Pereira’s testimony.

Additionally, Pereira was the only witness to the conspiracy and

the August 1999 off-post cocaine distribution at the home of

another soldier.   Appellant’s fingerprints were not found on the

drug baggie allegedly purchased from him by Polanco, and the

drug baggie allegedly purchased by Pereira was not tested for

prints.   In order for the members to have convicted Appellant of

the crimes with which he was charged, they must have believed

Polanco and, especially, Pereira.    Pereira’s credibility was key

even when questioned by the members.   The central theme of the

defense was that Pereira and Polanco had lied.   Specifically,

the defense theory was that:   (1) Pereira wanted to “make”

numerous drug cases in order to advance his career; (2) Pereira

had procured Polanco’s assistance by promising Polanco

assistance in his case, including that he would not go to jail

if he helped CID; and (3) Polanco had “set up” Appellant (and

others, by implication) so that CID agents would keep their


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United States v. Meghdadi, No. 04-0042/AR


promises.   The findings establish that the members did not find

the defense theory sufficiently compelling to dissuade them from

determining, beyond a reasonable doubt, that Appellant was

guilty.

     About three months after Appellant’s trial, consistent with

his pleas made pursuant to a pretrial agreement, Polanco was

convicted of two specifications of wrongfully distributing

cocaine and one specification of wrongfully selling Prozac.    He

was sentenced to a bad-conduct discharge, reduction to E-1, and

a fine of $500.   His sentence did not include confinement.    In

that case, Polanco’s defense counsel asked the military judge to

find that he had been granted immunity by the actions and

promises of Pereira and other CID operatives.   During the

hearing on that motion, the defense introduced a surreptitiously

recorded audiotape of a conversation, purportedly occurring

between Polanco and Pereira, after Polanco had been terminated

as a CID confidential source.   Only Polanco and his defense

counsel knew of the recording prior to Polanco’s trial.

     After Appellant’s defense counsel had obtained a copy of

Polanco’s record of trial, he made a “Motion For Post-Trial

39(a) Session,” for the “purpose of examining an allegation of

misconduct by . . . Investigator (INV) Luis Pereira.”   This

motion requested several remedies, including “a new trial, based

on newly discovered evidence and fraud on the court,” and


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United States v. Meghdadi, No. 04-0042/AR


advanced a detailed factual exposition with supporting exhibits.

Appellant claimed that Pereira lied at Appellant’s trial by

testifying that:    (1) he had not promised Polanco that Polanco

would not go to jail if he helped CID; (2) he had not told

Polanco that CID would assist him with his case if Polanco went

to work for CID; and (3) he had not met with Polanco after

Polanco had been terminated as a “registered source.”   The

audiotape contains passages pertinent, in varying degrees, to

all three claims.   Appellant contends that had the tape been

played at his trial, Pereira’s credibility would have been so

damaged that, when coupled with the inference that Polanco was

implicating as many people as possible in order to get CID’s

help in reducing his own charges, the results of Appellant’s

trial would have been different.

     During Appellant’s trial, there was little evidence to

corroborate Pereira’s and Polanco’s testimony implicating

Appellant, and Pereira had made arguably evasive replies to

several questions on cross-examination.   Further, Pereira had

admitted that he had not searched Polanco before the “controlled

buy” Polanco made from Appellant, arguably supporting

Appellant’s suggestion that Polanco may have brought the

“purchased” drugs with him.   In acknowledging this failure,

Pereira explained that because both Polanco and Appellant were

present together when he arrived, such a search would have been


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United States v. Meghdadi, No. 04-0042/AR


impracticable.   Although others were allegedly present at the

second sale, only Pereira testified to the details of that

transaction, which also yielded the only evidence of the

conspiracy of which Appellant was convicted.   Although Pereira

testified that he was wearing a “wire” during this second

transaction, no recording was made due to an equipment

malfunction.   Pereira testified that Appellant understood the

important details of the conversation conducted in Spanish and

English, notwithstanding that Appellant is Iranian and,

according to the testimony of his sister and a coworker, speaks

no Spanish.

     As noted, LTC Smith had not observed either Polanco or

Pereira testify at trial.   After considering the written

submissions of the parties and reading a translated,

unauthenticated transcript of the audiotape, LTC Smith denied

the defense motion for a post-trial Article 39(a) session, for a

mistrial, for a new trial, and to set aside two of the findings

of guilty.

                               DISCUSSION

     We agree with the Government’s assertion that “[m]ilitary

service courts use their fact-finding powers to examine and

contrast the testimony at trial with other post-trial

submissions on motions for new trial.”   Appellee’s Final Brief

at 9 (citing United States v. Brooks, 49 M.J. 64, 68 (C.A.A.F.


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United States v. Meghdadi, No. 04-0042/AR


1998); United States v. Bacon, 12 M.J. 489, 492 (C.M.A. 1982)).

Because the Court of Criminal Appeals elected summary

affirmation, we lack the benefit of that court’s fact-finding

and rationale as to whether the military judge properly denied

Appellant’s request for a post-trial Article 39(a) session.

Within the constraints of Article 67, UCMJ, 10 U.S.C. § 867

(2000), and consistent with our precedent, United States v.

Siroky, 44 M.J. 394, 399 (C.A.A.F. 1996), we will pierce the

intermediate level of appellate review and examine the military

judge’s ruling directly.

     Rule for Courts-Martial (R.C.M.) 905(h) addresses written

motions in general and provides, in part:      “[u]pon request,

either party is entitled to an Article 39(a) session to present

oral argument or have an evidentiary hearing concerning the

disposition of written motions.”       R.C.M. 1102(b)(2) and (d),

specifically addressing post-trial Article 39(a) sessions,

contain no similar language.

     In United States v. Scaff, 29 M.J. 60 (C.M.A. 1989), we

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):

          If evidence is discovered after trial which would
     constitute grounds for a new trial under RCM 1210(f),
     this might be considered a "matter which arises after
     trial and which substantially affects the legal
     sufficiency of any findings of guilty or the sentence"


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United States v. Meghdadi, No. 04-0042/AR


     within the meaning of RCM 1102(b)(2). However, even if
     the drafters of the Manual did not intend such an
     interpretation of this Rule, we still are persuaded
     that Article 39(a) of the Code empowers the military
     judge to convene a post-trial session to consider
     newly discovered evidence and to take whatever
     remedial action is appropriate.

29 M.J. at 65-66 (footnote omitted).

     We have long recognized that petitions for a new trial “are

generally disfavored,” United States v. Williams, 37 M.J. 352,

356 (C.M.A. 1993), and that “granting a petition for a new trial

in the military rests ‘within the [sound] discretion of the

authority considering . . . [that] petition.’” United States v.

Bacon, 12 M.J. 489, 492 (C.M.A. 1982) (quoting United States v.

Lebron, 46 C.M.R. 1062, 1066 (A.F.C.M.R. 1973)).   “This Court

has opined that requests for a new trial, and thus rehearings

and reopenings of trial proceedings, are generally disfavored.

Relief is granted only if a manifest injustice would result

absent a new trial, rehearing, or reopening based on proffered

newly discovered evidence.”   Williams, 37 M.J. at 356.

     Although we have not directly addressed the standard to be

applied in examining a military judge’s denial of a request for

a post-trial Article 39(a) session, we have held that “[w]hen an

appellant requests the convening authority to order a post-trial

Article 39(a) session, it is a matter for the convening

authority's sound discretion whether to grant the request,”

United States v. Ruiz, 49 M.J. 340, 348 (C.A.A.F. 1998), and


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United States v. Meghdadi, No. 04-0042/AR


that “[w]e review a military judge’s ruling on a petition for a

new trial for abuse of that discretion.”    United States v.

Humphreys, 57 M.J. 83, 96 (C.A.A.F. 2002).

     In denying a petition for a new trial, a military judge

abuses his discretion “if the findings of fact upon which he

predicates his ruling are not supported by evidence of record;

if incorrect legal principles were used by him in deciding this

motion; or if his application of the correct legal principles to

the facts of a particular case is clearly unreasonable.”    United

States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993).    While this

standard is not facially applicable to the military judge’s

denial of Appellant’s request for an Article 39(a) session, the

fact that the request was made in the context of a motion for

new trial compels our consideration of this analytical framework

in assessing the military judge’s factual and legal conclusions.

     In denying Appellant’s motion, the military judge

misapprehended the purpose of the Article 39(a) session, made

factual findings that are not supported by the record, applied

an erroneous legal standard, misperceived the evidentiary value

of the audiotape, and made no record of any weighing of the new

evidence against the evidence at trial, either on the merits or

in sentencing.   Further, on an issue related entirely to witness

credibility, the military judge declined the opportunity

personally to hear the testimony of witnesses and, in the


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United States v. Meghdadi, No. 04-0042/AR


process, denied counsel the opportunity to develop that

testimony in an adversarial forum.   Viewing these circumstances

in the aggregate, we conclude that the military judge’s reasons

and ruling were clearly untenable and that they constitute a

prejudicial abuse of discretion.

     A.   Purpose of the Requested Post-Trial Session Under
          Article 39(a), UCMJ

     After making factual findings, the military judge denied

the relief requested by Appellant:

          A post-trial Article 39(a) session to examine
     defense counsel’s allegations of misconduct by INV
     Periera is not warranted. Other mechanisms, such as a
     commander’s inquiry pursuant to R.C.M. 303 or an [Army
     Regulation] 15-6 investigation, are the proper means
     of conducting any such inquiry.

     Despite Appellant’s citation to R.C.M. 1102 and 1210 in his

motion, the military judge failed to recognize that the primary

purpose of the requested inquiry into witness misconduct was to

examine Appellant’s request for a mistrial or new trial, rather

than to establish a basis for correction or discipline of the

witnesses themselves.   This failure was compounded by his

erroneous view of both the facts and the rules of evidence.

     B.   The Military Judge’s Findings

     Appellant disagrees with three aspects of the military

judge’s ruling:   his conclusion that the defense could have

discovered the tape through due diligence; his conclusion that

the voice attributed to Pereira on Polanco’s tape did not tell


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United States v. Meghdadi, No. 04-0042/AR


Polanco that Polanco’s work for CID would help Polanco’s case;

and his conclusion that the remarks of Pereira on the tape could

not be construed as an admission that Pereira had promised

Polanco that he would not go to jail if he helped CID.   For the

reasons discussed below, we agree with Appellant.

     First, the evidence does not support the military judge’s

finding that Appellant’s defense counsel did not exercise due

diligence in ascertaining the existence of the audiotape.      The

tape was made covertly by Polanco and delivered to Polanco’s

defense counsel, who secreted the tape until Polanco’s trial so

as to provide maximum effectiveness in impeaching Pereira during

those proceedings.   At Polanco’s trial, Government counsel were

surprised by the existence of the tape.   As noted in the defense

request for reconsideration, the issue of diligence was not even

contested by the Government in its opposition to Appellant’s

post-trial motion.   In view of the military judge’s lack of

familiarity with the witnesses, his declination to observe their

demeanor, and the Government’s apparent concession of the issue,

there is little but conjecture to support the military judge’s

finding that “merely asking Polanco if he had any corroborating

evidence concerning his allegations against Periera would have

led to the discovery of the audiotape prior to Meghdadi’s court-

martial.”




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United States v. Meghdadi, No. 04-0042/AR


     Second, the voice attributed to Pereira in the transcript

of the audiotape says to Polanco:     “You contributed for the CID

to get so many drug dealers on the installation.    If everybody

see whatever you have done good before the incident, all this

will help you.”   Nonetheless, the military judge found that

“[n]owhere . . . does Pereira promise Polanco . . . that helping

CID will help Polanco’s case.”   This finding appears

hypertechnical.   The question is not whether the military judge

believed a promise had been made, but whether a rational trier

of fact could have found the newly discovered evidence of such a

promise “sufficiently believable to make a more favorable result

probable.”   Brooks, 49 M.J. at 69.    Regardless of whether the

military judge did more than merely rely on the absence of the

word “promise” from Pereira’s statement, he erred by concluding

that a rational trier of fact, after hearing this evidence

tested in an adversarial setting, could not have found that such

a promise had been made.

     As to whether Pereira had promised Polanco that Polanco

would not go to jail, the military judge again applied an

incomplete, if not incorrect, standard.    Finding that the

audiotape did not expressly contain such a promise, the military

judge failed to consider whether, together with Polanco’s

testimony, Pereira’s in-court denials, and other potential

inconsistencies by Pereira, the audiotape (a portion of the


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United States v. Meghdadi, No. 04-0042/AR


transcript of which is quoted below) could convince a rational

trier of fact that such a promise had indeed been made:

     POLANCO: I’m going to do everything right, and my
          woman is going to do everything okay. I don’t
          want my mother to die.

     PEREIRA: The truth is, I’m going to back up off my
          word.
                        [Tape inaudible]

     PEREIRA: You contributed for the CID to get so many
          drug dealers on the installation. If everybody
          see whatever you have done good before the
          incident, all this will help you.

     POLANCO: I hope so.    You always told me that I would
          not go to jail.

     PEREIRA: Like I told the woman, you can say whatever
          you want, but you’re not going to f*** with me.
          If you come and say all those things, who do you
          think they’re going to believe, you or me? You
          mentioned about your mother, and I’m worried
          because I have my mother also, and I don’t want
          anything to happen, but everything is going to
          get fine.

     POLANCO: If none of you go and testify on my behalf,
          even the General is going to find out about me.
          I am begging you for my mother.

     PEREIRA: I will do the impossible to show or talk on
          your behalf based upon whatever you have done for
          me.

     Although not binding, the ruling of LTC Higgins, the

military judge in the courts-martial of both Polanco and

Appellant, who twice heard Polanco and Pereira testify and heard

the inflection and tone of voice used on the tape itself (noting

that the tape used a combination of Spanish and English), is



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United States v. Meghdadi, No. 04-0042/AR


informative.   LTC Smith summarized LTC Higgins’s denial of

Polanco’s motion for a finding of immunity by saying “[t]he

military judge did not find that INV Pereira and other CID

agents promised Polanco he would not go to jail.”   However, what

LTC Higgins actually said, in referring to Pereira and other CID

Drug Suppression Team members, was:

     [t]hey made promises and secured the cooperation of a
     registered source who performed on his end of the
     bargain and they immediately began back pedaling when
     they realized that the assures [sic] they had given
     might be beyond their ability to comply with. They
     further minimized their involvement in making these
     assurances in their testimony before the court, and
     that is to put it charitably.

     While LTC Higgins’s determination of credibility is not

dispositive, it certainly serves to underscore the necessity for

a meaningful fact-finding inquiry and a detailed application of

correct legal standards.

     C.   Evidentiary Value of the Audiotape

     The military judge erroneously concluded that the audiotape

would not be admissible.   The military judge assumed that the

taped conversation would be offered only under Military Rule of

Evidence (M.R.E.) 608(b) and would be inadmissible as “extrinsic

evidence.”   This conclusion inexplicably excludes both M.R.E.

608(c) and 613, neither of which requires the prior statement to

have been probative of truthfulness and neither of which




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United States v. Meghdadi, No. 04-0042/AR


prohibits introduction of qualifying extrinsic evidence under

these facts.

     M.R.E. 608(c) permits introduction of evidence, extrinsic

or otherwise, tending to establish bias, prejudice, or motive to

misrepresent on the part of a witness:

     Bias, prejudice, or any motive to misrepresent may be
     shown to impeach the witness either by examination of
     the witness or by evidence otherwise adduced.

The tape recording, taken together with other evidence in this

case, is relevant to a fact-finder’s determination of whether

Pereira and Polanco had motives to misrepresent:   Pereira, for

professional gain and to prevent discovery of his arguably

unauthorized investigational techniques; and Polanco, to stay

out of jail and secure CID’s help with his case.

     As to M.R.E. 613(b), the military judge concluded that

“defense counsel would have been stuck with the answers INV

Periera provided at Meghdadi’s court-martial, the very situation

that actually occurred.”   This conclusion would be correct if

Pereira and Polanco admitted making their prior statements.       If

they denied making the statements, or equivocated, M.R.E. 613

permits the extrinsic evidence of these statements.   See, e.g.,

United States v. Ureta, 44 M.J. 290, 298 (C.A.A.F. 1996);

United States v. Button, 34 M.J. 139, 140 (C.M.A. 1992).     We

hold that Appellant has firmly established the potential




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United States v. Meghdadi, No. 04-0042/AR


impeachment value of the newly discovered statements and that

their value was not considered by the military judge.

     D.   Consideration of R.C.M. 1210(f)(3)

     The military judge’s ruling fails adequately to address

Appellant’s claim that the fraud on the court allegedly

perpetrated by Pereira “had a substantial contributing effect on

. . . the sentence adjudged.”   R.C.M. 1210(f)(3).   By denying a

post-trial session at which Pereira could be confronted with

evidence of the audiotape by Appellant’s counsel, and by instead

relying on a translated, unauthenticated transcript, the

military judge denied himself the opportunity for meaningful

assessment of whether Peirera’s trial testimony comprised

perjury and, if so, whether the effect of the perjury

substantially contributed to the sentence.     See United States v.

Hester, 26 M.J. 299, 299 (C.M.A. 1988)(“[W]e conclude that

perjured testimony from the two witnesses . . . . constituted a

fraud on the court . . . .”); United States v. Bourchier, 5

C.M.A. 15, 17 C.M.R. 15 (1954)(accused did not establish “proved

perjury”).   This failure is particularly salient in view of

Appellant’s complaint that he was sentenced far more harshly

than Polanco; the fact that Pereira’s credibility was questioned

during his testimony for the Government, the defense, and the

court; and the fact that Pereira was the Government’s only

sentencing witness.   Under such circumstances, evidence adverse


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United States v. Meghdadi, No. 04-0042/AR


to Pereira’s credibility deserved to be weighed against the

evidence at trial before the military judge concluded, sub

silentio, that the “fraud” did not have “a substantial

contributing effect on . . . the sentence adjudged.”

                           CONCLUSION

     Called upon to examine a close question of credibility and

presented with an audiotaped conversation, largely in Spanish,

filled with innuendo, implication, and conversational nuance, a

military judge who had not presided at either trial declined

even to hear the witnesses testify, much less allow counsel to

develop that testimony.

     The military judge would have done well to follow the

guidance of the military judge in Scaff, who noted:

          The purpose of my granting [the] request for a
     post-trial 39(a) session was to prevent a possible
     miscarriage of justice by providing for the securing
     of apparently extremely significant evidence at the
     earliest possible time. This session, I felt, would
     not only preserve the evidence, while still relatively
     fresh in the witness’ memory, compared with the state
     of her memory at some future . . . hearing [pursuant
     to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 41
     (1967),] ordered by an Appellate Court, but would, in
     all likelihood, result in less cost to the Government.

29 M.J. at 62 (citation omitted).

     We express no opinion on the question of whether Appellant

is entitled to a new trial; however, we are satisfied that,

given the evidentiary posture in which the request was

presented, the failure to afford Appellant a forum in which to


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United States v. Meghdadi, No. 04-0042/AR


make his case was error that materially prejudiced Appellant’s

substantial trial rights.

     The decision of the Army Court of Criminal Appeals is

reversed and the record of trial is returned to The Judge

Advocate General for action not inconsistent with this opinion,

to include a post-trial Article 39(a) session to consider

Appellant’s request for a new trial.




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