This opinion is subject to administrative correction before final disposition.




                               Before
                  TANG, LAWRENCE, and STEPHENS
                      Appellate Military Judges

                        _________________________

                          UNITED STATES
                              Appellee

                                     v.

                      Guillermo CABRERA
               Lance Corporal (E-3), U.S. Marine Corps
                             Appellant

                             No. 201800327

                           Decided: 12 May 2020

    Appeal from the United States Navy-Marine Corps Trial Judiciary

                            Military Judges:
                      Brian E. Kasprzyk (mistrial)
                     John L. Ferriter (arraignment)
                       Mark D. Sameit (motions)
                     Matthew J. Kent (motions, trial)

 Sentence adjudged 8 March 2018 by a general court-martial convened
 at Marine Corps Air Station Miramar, California, consisting of officer
 and enlisted members. Sentence approved by the convening authority:
 reduction to E-1, confinement for seven years, forfeiture of all pay and
 allowances, and a dishonorable discharge.

                             For Appellant:
                      Catherine M. Cherkasky, Esq.
                     Captain Nicholas S. Mote, USMC

                              For Appellee:
                 Lieutenant George R. Lewis, JAGC, USN
                  Lieutenant Kimberly Rios, JAGC, USN
               United States v. Cabrera, NMCCA No. 201800327
                             Opinion of the Court

   Senior Judge TANG delivered the opinion of the Court, in which
   Judges LAWRENCE and STEPHENS joined.

                            _________________________

         This opinion does not serve as binding precedent, but
              may be cited as persuasive authority under
               NMCCA Rule of Appellate Procedure 30.2.

                            _________________________

TANG, Senior Judge:
    Appellant was convicted, contrary to his pleas, of two specifications of
Article 120, Uniform Code of Military Justice [UCMJ], 10 U.S.C. § 920 (2012).
Specification 1 alleged he committed a sexual act against the victim by bodily
harm; Specification 2 alleged he committed a sexual act against the victim
while he knew or reasonably should have known she was asleep. After
findings, the military judge merged both specifications into a single specifica-
tion. 1
   Appellant asserts two assignments of error [AOEs]: (1) the Government
was barred from trying Appellant after his first trial resulted in a mistrial;
and (2) Specification 1 of the Charge fails to state an offense. 2 We find no
prejudicial error and affirm.




   1    The Specification alleges Appellant did “commit a sexual act upon
[LCpl Romeo—a pseudonym we have adopted for the victim], to wit: penetration of
her vulva by the said Lance Corporal Cabrera’s penis, by causing bodily harm to her,
to wit: any offensive touching of the said [LCpl Romeo], however slight, including any
non-consensual sexual act and non-consensual sexual contact; and penetration of the
said [LCpl Romeo’s] vulva by the said Lance Corporal Cabrera’s penis, when he knew
or should reasonably have known that she was asleep.” Appellate Exhibit LXIV.
   2 This AOE is raised pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.
1982). As originally drafted, Specification 1 alleged Appellant caused bodily harm by
“any non-consensual sexual act or non-consensual sexual contact.” The military judge
amended the disjunctive “or” to a conjunctive “and” and also instructed the members
on the judicially-created element of lack of consent by LCpl Romeo. We have
considered this AOE and find it to be without merit. See United States v. Matias, 25
M.J. 356, 363 (C.M.A. 1987), cert. denied, 485 U.S. 968 (1988).




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             United States v. Cabrera, NMCCA No. 201800327
                           Opinion of the Court

                             I. BACKGROUND

   Appellant and Lance Corporal [LCpl] Romeo were close friends and first-
term Marines assigned to the same unit in Camp Pendleton. They spent time
together after work and on the weekends. They would eat together, watch
movies together, and drink together, often in Appellant’s barracks room.
LCpl Romeo had slept in Appellant’s barracks room once, leaving in the
middle of the night. Theirs was a close, but platonic, relationship.
    On 14 January 2017, LCpl Romeo and Appellant were in the barracks
socializing. LCpl Romeo inadvertently locked herself out of her room. When
Marines invited Appellant and LCpl Romeo to go out to clubs in downtown
San Diego, LCpl Romeo was initially reluctant to go. Nevertheless, Appellant
urged her to go, and said that he would not go unless she went, so she
relented and went out with the group.
    The group of Marines went to several bars and clubs. Appellant and
LCpl Romeo drank heavily, as did others. LCpl Romeo experienced an alcohol
induced blackout and was not able to recall many of the events of that night.
Sometime in the early morning hours of 15 January 2017, the group returned
to Camp Pendleton.
    The last thing LCpl Romeo remembered from that night was smoking a
cigarette outside of one bar discussing whether the group should go to
another one. The next morning, she awoke in Appellant’s bed with a pillow
over her face. Her pants were down. Appellant was penetrating her vulva
with his penis, withdrew, and then penetrated her anus with his penis. She
panicked and froze, then fell asleep or lost consciousness. She next awoke in
the light of morning. Her pants, which had been down, were up, and there
was no longer a pillow over her face. Appellant was lying on the floor of the
room, apparently asleep, with his arm over his face.
   LCpl Romeo woke Appellant and demanded he tell her where her cell
phone was; then she took her phone and drove back to her barracks, which
were a short distance away. While sitting in her car, she called the base
sexual assault hotline and requested assignment of a victim advocate.
    By the time she found the barracks duty Marine to help her get into her
room, she found Appellant waiting for her near her door. She ignored him.
From the time LCpl Romeo left Appellant’s room and throughout the next
several days, she received several text messages and calls from him. Again,
she ignored him. She went to the hospital later that day and submitted to a
sexual assault forensic exam [SAFE]. Special agents of the Naval Criminal
Investigative Service [NCIS] interviewed her a few days later when she
elected to make her sexual assault report unrestricted.



                                     3
                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

    During her NCIS interview, with her victims’ legal counsel [VLC] present,
the special agent asked LCpl Romeo to consider whether she would permit
him to forensically search her cell phone to recover the text messages and call
logs from the morning of the assault. The Special Agent warned LCpl Romeo
that he could only conduct a full extraction of the cell phone; he could not
simply extract the messages from Appellant or the messages from a particu-
lar time frame. Days later, LCpl Romeo informed the Special Agents she
would not consent to a search of her cell phone. Inexplicably, the agents did
not immediately seek LCpl Romeo’s permission to take screenshots of the
pertinent text messages from LCpl Romeo’s phone, which would permit
retention of crucial evidence without a full phone extraction. Nor did they
ever discuss the content of the messages, even though they had repeatedly
emphasized the importance of building a timeline of the events of 14-15
January 2017.
    A few days after her interview, LCpl Romeo participated in a controlled
call with Appellant. He denied that he had sex with her that night. When
NCIS Special Agents interviewed Appellant the day after the controlled call,
he persisted in denying any sexual contact with LCpl Romeo. He claimed she
slept in his bed and he slept on the floor. He claimed that LCpl Romeo awoke
early in the morning, said she was going to smoke, then left. Because she was
still drunk, Appellant explained, he was worried about her. He called and
texted her and tried to find her because he was concerned for her safety.
    The Special Agents left the room to take a break. When they returned,
they told Appellant that LCpl Romeo had a sexual assault examination. They
also told him the kit had been analyzed and showed unknown male DNA.
They asked him what he would say if the kit revealed this was his semen.
Appellant stated he would be “shocked” and, if that were the case, he must
have blacked out and not remembered the sex act. 3 Then he asked what
consequences he might face and whether he could refuse to provide his DNA
for comparison. When the Special Agents told him he could not refuse, he
relented and said, “Yeah, I did it.” 4 He admitted that he knew LCpl Romeo
was asleep, but he pulled her pants down and penetrated her vagina anyway,
stopping only when she moved in her sleep. Forensic analysis of the SAFE kit
revealed that Appellant’s DNA was, in fact, found on LCpl Romeo’s genitalia
and anus.



   3   Prosecution Exhibit [Pros. Ex.] 13 at 52; Pros. Ex. 12 at 09:57:43 AM.
   4   Pros. Ex. 13 at 53; Pros. Ex. 12 at 10:02:30 AM.




                                            4
                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

    In an attempt to recover the text messages Appellant sent on the morning
of the assault, the Government pursued a few courses of action. They
requested and received a command authorization to seize and search
Appellant’s cell phone, but they could not conduct a forensic analysis. They
sent a subpoena to Appellant’s cellular service provider but could only obtain
details of phone calls and could not obtain details or content of any text
messages. The Government did not pursue these same investigative methods
for LCpl Romeo’s phone or cell phone records. They had offered her the
opportunity to consent to search and when she refused, they did not ask
whether she would consent to a less invasive review of her phone.
    Not satisfied with this gap in the Government’s evidence, the trial counsel
Captain Westman later re-approached LCpl Romeo, again seeking the text
messages. LCpl Romeo answered that she did not have the messages, and the
trial counsel made no further inquiries. The trial counsel understood that
LCpl Romeo “didn’t have [the text messages] on her phone anymore for
whatever reason,” which the trial counsel assumed meant “she had a differ-
ent phone or something.” 5 Trial counsel merely accepted that LCpl Romeo
was unable to provide the text messages “for some specific reason other than
because she just wasn’t willing to provide them.” 6 But the trial counsel never
determined what that “specific reason” might have been. She simply left the
matter unresolved.
    This unresolved matter reared its head during LCpl Romeo’s testimony at
trial, when the details surrounding her phone led to a Defense objection that
revealed the trial counsel had failed to disclose statements she was constitu-
tionally required to disclose. As the trial counsel apparently predicted, the
civilian defense counsel cross-examined LCpl Romeo and established that she
had refused to provide her cell phone to NCIS Special Agents for search. On
re-direct examination, seeking to elicit a more palatable reason why LCpl
Romeo refused the Special Agent’s request, the trial counsel asked a leading
question to which the military judge sustained a Defense objection. According
to the trial counsel, she was intending to ask whether LCpl Romeo could not
provide the messages because she had a different phone or because her




   5   Original Record [Orig. Rec.] at 668. This is a verbatim transcript of the first
trial, which ended in a mistrial.
   6   Id. at 669.




                                          5
                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

“phone had deleted messages,” though the trial counsel did not actually know
the reason because she had never asked. 7
    In response, LCpl Romeo answered, to the stated surprise of the trial
counsel, that her Apple iPhone automatically deleted text message conversa-
tions after a certain period of time, without user intervention. She said, “I
had had a problem with the . . . phone . . . after a certain amount of time, it’ll
delete the text messages, it’ll delete the phone records, I don’t have any
control over that; it’s just something that my phone does automatically.” 8
    Skeptical of this response, the civilian defense counsel requested an Arti-
cle 39(a), UCMJ, hearing to challenge the trial counsel’s conduct. He alleged
the trial counsel’s failure to disclose this statement by LCpl Romeo—
assuming it had been made to the trial counsel pre-trial—constituted a
violation of the Government’s obligations pursuant to Giglio v. United States 9
to disclose impeachment information. The trial counsel said she had never
heard LCpl Romeo make this claim before, as she had never demanded a
clear answer why LCpl Romeo could not provide the messages. Although the
trial counsel had asked a leading question, she said she was not trying to
suggest a specific response because she did not know the answer.
     In the course of trying to discern whether LCpl Romeo had previously
made this seemingly incredible claim to the trial counsel, and whether trial
counsel then failed to disclose it, the civilian defense counsel and military
judge learned of several discovery violations. In addition, while litigating this
discovery violation, the military judge came to believe that the trial counsel
made deliberately evasive or inconsistent statements 10 to him about her
conversations with LCpl Romeo leading up to trial. After accepting written
filings and hearing oral argument over the course of two days, the military
judge declared a mistrial. The propriety of the judge’s action in declaring a
mistrial—and whether the Defense consented to it—are key issues in this
appeal.
   After the mistrial, the convening authority ordered a second trial. The
Defense moved to dismiss the charges on the basis of double jeopardy,




   7   Id. at 679.
   8   Id. at 661.
   9   405 U.S. 150 (1972).
   10   See Orig. Rec. at 798-800.




                                        6
               United States v. Cabrera, NMCCA No. 201800327
                             Opinion of the Court

arguing the Defense had not consented to a mistrial, which they argued was
not manifestly necessary. The military judge denied this motion, and the
members convicted Appellant of sexual assault.
   Further facts necessary to resolve this AOE are included below.

                                  II. DISCUSSION

A. The Military Judge’s Ruling
   The military judge issued a written ruling ordering a mistrial and outlin-
ing findings of fact and conclusions of law. 11 The military judge found that
the trial counsel had committed four different discovery violations.

   1. Incomplete response relating to Government contact with LCpl Romeo
    The Defense requested to interview LCpl Romeo before trial. She refused.
In response, the Defense requested discovery from the Government indicating
the date and general topic discussed during any meeting between the trial
counsel and LCpl Romeo. The civilian defense counsel amplified his request
with an email explaining why he requested the information and, perhaps
sensing the trial counsel might lack experience, providing examples 12 of the
types of statements that would be considered discoverable under Giglio v.
United States. He emphasized his concern that, having no access to interview
LCpl Romeo, it was doubly important that the Government disclose any of
her inconsistent statements and new substantive statements. In the email
response, the trial counsel provided only the dates of interviews, stated that
LCpl Romeo now remembered going out to the bars about an hour later than
she previously stated, and indicated that the Government had complied with
and would continue to fully comply with its discovery obligations.



   11 Appellate Exhibit [App. Ex.] LXI at 635-53. This exhibit contains all appellate
exhibits submitted during the first trial that resulted in a mistrial.
   12 “For example, LCpl [Romeo] reports to the [sexual assault forensic examiner]
that she has no memory from the bar until she feels sex occurring while there is a
pillow over her face. If she now remembers bits and pieces of that time that she
previously did not remember, that should be disclosed.” The civilian defense counsel
delineated two other hypothetical examples then concluded “[t]hese are just three of
many examples I can think of and are without regard to whether the inconsistency is
understandable or directly beneficial to the Defense in your opinion. If her interviews
with [trial counsel] reveal no information inconsistent with her prior statements,
please confirm such.” App. Ex. LXI at 593.




                                          7
                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

    During trial, just before cross-examination, the civilian defense counsel
asked the trial counsel, “[H]ave there been any additional interviews of LCpl
[Romeo], or are there any additional disclosures since my email over the
weekend?” 13 The trial counsel said, “No.” 14 Later events revealed this was not
correct—the trial counsel not only had a substantive discussion with LCpl
Romeo, but LCpl Romeo provided an inconsistent statement the trial counsel
failed to disclose. The trial counsel stated she did not disclose this additional
interaction with LCpl Romeo because she thought the civilian defense
counsel only sought disclosure of the times the trial counsel “met with [LCpl
Romeo] to talk about testimony, substantive things, to go through her
testimony.” 15
    The military judge ruled that the trial counsel’s terse response to the
Defense written discovery request was “at a minimum, incomplete and at
worst, misleading.” 16 The military judge explained that the trial counsel
should have fully complied with the request or, if she did not believe such
information was subject to discovery, she should have so stated. Instead, she
“provided incomplete information regarding both the . . . pretrial interaction
with [LCpl Romeo] and Giglio information.” 17
   The military judge found, considering those actions:
         when viewed in light of the arguments made in court, the court
         is left with the inescapable conclusion that [the trial counsel]
         was either unaware of the state of the evidence in the custody
         of the government, does not fully understand the discovery re-
         quirements of a prosecutor, was actively trying to play discov-
         er[y] games, or some combination of the above. Regardless of
         the reason, the information requested was Giglio material that
         should have been disclosed. 18




   13   Id. at 628 (Affidavit of Civilian Defense Counsel).
   14 Trial counsel did state that LCpl Romeo had been present when trial counsel
interviewed her mother over the weekend.
   15   Orig. Rec. at 808.
   16   App. Ex. LXI at 649.
   17   Id. at 649-50.
   18   Id. at 650.




                                             8
                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

   2. Failure to disclose LCpl Romeo’s inconsistent statement
    Although the trial had come to a halt over the issue of LCpl Romeo’s cell
phone and text messages, it was a different statement that the military judge
found to be the most egregious discovery violation. As detailed above, the
civilian defense counsel requested a list of all of the dates the trial counsel
met with LCpl Romeo. In between direct and cross-examination, the civilian
defense counsel asked the trial counsel whether there had been any addition-
al interviews since the discovery response. The trial counsel stated that
LCpl Romeo was present when the trial counsel interviewed her mother but
that she had not interviewed LCpl Romeo.
    However, the trial counsel failed to disclose the fact that she also inter-
viewed LCpl Romeo on the morning of trial. The trial counsel sought to
clarify LCpl Romeo’s recollection of two key points—her body positioning and
the state of her clothes during the assault and after the assault when she
first awoke. At trial, LCpl Romeo testified that when she awoke during the
sexual assault she was on her back and that when she awoke after the
assault, she was on her stomach. The detail about waking up on her stomach
was new.
    In its written motion, the Defense pointed out this new detail: “During the
direct examination of LCpl [Romeo], Trial Counsel elicited the witness to
testify that when she awoke ‘on the second time’ she awoke on her stomach.
Trial Counsel had not previously disclosed this information which was not
revealed in the NCIS interview to Defense.” 19
   The Government responded, “[A]pproximately ten minutes before trial,
LCpl [Romeo] stated to Trial Counsel for the first time that she woke up
twice during the alleged assault, once on her back and once on her stom-
ach.” 20 The Government conceded that “[i]n her NCIS interview, LCpl
[Romeo] had only described waking up on her back.” 21
    During oral argument, the Government conceded it should have disclosed
this statement pursuant to Giglio v. United States. The trial counsel ex-
plained that she believed at first that LCpl Romeo had made an inconsistent
statement, but then she checked her notes (which were incorrect) and came to



   19   Id. at 562.
   20   Id. at 603.
   21   Id. at 612.




                                       9
                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

believe that this was not an inconsistent statement. She stated that her notes
were incorrect because she recorded the special agent’s question, not LCpl
Romeo’s response, but mistook this notation to represent LCpl Romeo’s
answer.
    Consistent with the Government’s concession, the military judge found
this constituted a discovery violation.

   3. Mishandling non-privileged communications as privileged
    The weekend before trial, the trial counsel gave notice she intended to
present evidence in presentencing that LCpl Romeo had experienced suicidal
ideations. In response, the Defense requested any non-privileged materials
relating to LCpl Romeo’s mental state and any evidence of trauma. The trial
counsel responded, “I can request non-privileged records related to [LCpl
Romeo’s mental health treatment] currently in possession of the Government
and will provide whatever I find to the defense as soon as possible.” 22 The
trial counsel did not provide any responsive documents.
    Then, during voir dire of the members, one member indicated that he
knew LCpl Romeo because she was temporarily assigned to his unit. As the
command sergeant major, he received email updates on LCpl Romeo’s well-
being, as reported by her chain of command, none of whom were mental
health treatment providers. Although he knew she was seeing “counselors” in
relation to a past suicidal ideation, the emails he described were command-
generated updates based on leaders’ interactions with LCpl Romeo. 23
    This member was excused from further service on the panel. Following
this member’s excusal, consistent with his earlier request, the civilian
defense counsel asked the trial counsel to request the emails. The trial
counsel contacted the excused member, who provided the emails. After her
legal assistant received the emails, the trial counsel elected to treat the
emails as though they were privileged. The trial counsel did not read them
but instead forwarded them to LCpl Romeo’s VLC.
    The military judge only learned the Government had the emails after the
civilian defense counsel brought up the issue on the record. The civilian
defense counsel noted that he had asked the trial counsel to find and disclose
the emails the excused member had discussed, and the trial counsel indicated



   22   Id. at 593.
   23   Orig. Rec. at 420.




                                       10
                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

that she would do so. 24 The trial counsel responded that “[w]e have since
gotten emails from [the excused member], and the VLC is reviewing them
because of what they might potentially contain.” 25 She also stated she sent
the emails to the VLC first because they “directly concern[ed] his client[ ],”
and “because [the emails] had to deal with such a sensitive subject matter,”
so she thought it “would be something that he would be interested in see-
ing.” 26 During questioning of the trial counsel, the military judge established
that the trial counsel had entrusted the VLC to make the discovery determi-
nation on her behalf and to decide whether emails sent by LCpl Romeo’s
chain of command to other members of her chain of command were privi-
leged.
    The military judge ruled that the trial counsel “failed to exercise due dili-
gence” in this matter. 27 The Defense had requested the information, it was
subject to discovery under Rule for Courts-Martial [R.C.M.] 701 absent a
claim of privilege, and the trial counsel stated she would provide it, but then
she failed to do so and instead submitted it to the victim’s legal counsel
“because of a generalized concern regarding privilege.” 28 The military judge
held that, because the information was a routine chain of command update
on LCpl Romeo’s wellbeing, “it is highly unlikely that the contents of these
routine emails would qualify . . . as privileged material under” Military Rule
of Evidence 513. 29

   4. Failure to disclose note to VLC during LCpl Romeo’s testimony
    During the Defense cross-examination of LCpl Romeo, or immediately
after, the trial counsel belatedly sought to ascertain the reason why LCpl
Romeo could not provide the text messages from Appellant. She passed a note
to LCpl Romeo’s VLC, sitting in the gallery, asking, “She no longer has that
phone, correct? When TC talked about texts, calls with her, she was willing to
provide but didn’t have.” 30 The VLC responded, “I can’t recall but either new


   24   See id. at 794.
   25   Id. at 837.
   26   Id. at 838.
   27   App. Ex. LXI at 650.
   28   Id.
   29   Id.
   30   Id. at 547, 559.




                                       11
                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

phone or messages were already deleted.” 31 Based on this response, the trial
counsel asked LCpl Romeo the leading question detailed above.
    The military judge did not know of the existence of this note exchange
until trial counsel cited it in defense of her contention that LCpl Romeo had
never told her why she no longer had the text messages. 32 At that point, the
military judge sua sponte challenged the propriety of the trial counsel
consulting VLC during LCpl Romeo’s testimony. As it pertained to discovery,
he ruled that the note contained material discoverable under Giglio v. United
States “because it bears directly on the impeachment of” LCpl Romeo. 33 The
military judge interpreted the note as suggesting that the trial counsel
already knew “of at least one possible innocuous explanation as to why the
government [did] not have the text messages from the accused” other than
the one that had been disclosed to the defense. 34 And the note contained “two
additional explanations” made by LCpl Romeo’s agent on her behalf, neither
of which had been disclosed to the defense. 35
   In light of the trial counsel’s earlier incomplete disclosures relating to her
meetings with LCpl Romeo and the timing of the note, the military judge held
the failure to disclose the note’s contents constituted a discovery violation.
The military judge found the note was “effectively an investigative step by
the government to shore up a potential hole in their case—at the very time
defense counsel [was] making it.” 36 He added:
            While it is not hard to understand how a victim and her
         lawyer may be more inclined to cooperate with the government,
         that does not mean the government should be able to exploit
         that relationship during trial to ambush the defense with pre-
         viously undisclosed factual assertions designed to rehabilitate
         the victim’s credibility.




   31   Id. at 558.
   32  The civilian defense counsel and the military judge both questioned the credi-
bility of the trial counsel’s claim that she had no advance notice of LCpl Romeo’s
statement about why she no longer had the text messages.
   33   App. Ex. LXI at 648.
   34   Id.
   35   Id.
   36   Id.




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                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

   5. Conclusion that mistrial was justified
   Before granting the mistrial, on the record, the military judge stated that
the undisclosed discovery could have changed the Defense strategy during
motions practice and at trial. After properly citing the cases and rules
pertinent to discovery, discovery violations, and mistrials, the military judge
explained:
             The court does not understand how [the trial counsel] could
         think to notify defense counsel in her email response [the
         weekend before trial] about an hours’ disparity in [LCpl Ro-
         meo’s] recollection as to when they leave to go out drinking on
         the night in question, but did not think to inform defense coun-
         sel about [LCpl Romeo’s] disclosure the morning before taking
         the stand that she now recalls waking up twice and once on her
         stomach.
             This is especially disturbing in light of a) how obviously
         well-rehearsed [LCpl Romeo’s] direct testimony was and b) how
         [the trial counsel] was able to work that newly disclosed infor-
         mation into her direct examination.
             The cumulative nature and piecemeal manner in which the
         discovery violations by the government came to light in this
         case would undermine confidence in any verdict because any
         remedy short of mistrial would necessarily require the accused
         and the court to rely on the detailed trial counsel to understand
         and comply with their discovery obligations. 37
    He then weighed the feasibility and sufficiency of several possible reme-
dies for discovery violations, as listed in Rule for Courts-Martial 701(g)(3). He
rejected the Defense-requested remedy of dismissal with prejudice, which
would “amount to a windfall for the accused.” 38 He concluded that Appellant
could “still receive a fair trial should the convening authority” decide to
pursue one. 39
   He further rejected remedies less drastic than a mistrial as insufficient.
He did not believe it would be sufficient to merely order the Government to



   37   Id. at 647.
   38   Id. at 651.
   39   Id.




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                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

permit proper discovery or to grant a continuance because “the violations
[were] all at least in part a result of detailed trial counsel failing to fully
understand or appreciate her discovery responsibilities.” 40 He could not
disallow presentation of the withheld evidence, as such evidence was im-
peachment evidence that would benefit the Defense; nor could he strike
LCpl Romeo’s entire testimony because the result would be the same as
dismissal with prejudice. Recognizing that a mistrial is a “drastic remedy,” he
ruled such remedy was the “order [that was] just under the circumstances”
under Rule for Courts-Martial 701(g)(3)(D). 41

B. Double Jeopardy after a Mistrial
    After a mistrial is declared, under Rule for Courts-Martial 915(c)(2), fur-
ther proceedings are permitted “except when the mistrial was declared after
jeopardy attached and before findings, and the declaration was: (A) [a]n
abuse of discretion and without the consent of the defense; or (B) [t]he direct
result of intentional prosecutorial misconduct designed to necessitate a
mistrial.” 42 Neither party argues the Government acted deliberately to
necessitate a mistrial. Both parties agree the mistrial was declared after
jeopardy attached and before findings. Therefore, Appellant’s second trial
could proceed unless the mistrial was an abuse of discretion and was without
the consent of the Defense.

    1. Dismissal with prejudice was not appropriate
   On appeal, Appellant argues the military judge “abused his discretion in
declaring a mistrial instead of dismissing the case with prejudice.” 43 Arguing
that his “first trial was polluted with discovery violations that materially




   40   Id.
   41   Id. at 652.
   42 This rule is consistent with the Supreme Court’s holding in United States v.
Dinitz, 424 U.S. 600 (1976), in which the Court recognized that an appellant “may
nonetheless desire ‘to go to the first jury and, perhaps, end the dispute then and
there with an acquittal’ ” even though grounds exist to justify granting a mistrial. Id.
at 608 (quoting United States v. Jorn, 400 U.S. 470, 484-85 (1971) (plurality
opinion)).
   43   Appellant’s Brief of 12 Jun 2019 at 21 (emphasis added).




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                   United States v. Cabrera, NMCCA No. 201800327
                                 Opinion of the Court

altered the nature of the case,” he then argues that “[d]ismissal would have
been the most appropriate remedy in this case.” 44
    Dismissal is a “drastic remedy” that is only “appropriate when an accused
would be prejudiced or no useful purpose would be served by continuing the
proceedings.” 45 Dismissal is a remedy of last resort that is not appropriate if
“an error can be rendered harmless” by other corrective action. 46 In United
States v. Stellato, the Court of Appeals for the Armed Forces reversed the
ruling of the service court of criminal appeals and reinstated the military
judge’s ruling dismissing charges with prejudice based on “continual and
egregious” discovery violations. 47 The violations present in Stellato were of a
far greater magnitude and severity than those present in this case. 48
   By the grant of a mistrial Appellant claims he was prejudiced in four
ways in his second trial. We disagree with each of his contentions.
    First, he argues he was prejudiced by revealing his strategy during the
first trial. However, in his written ruling granting a mistrial, the military
judge found that the civilian defense counsel had already revealed his
strategy through pretrial communications and requests. The strategy—
involving a motive to fabricate, drunken consent, and mistake of fact—would
necessarily be revealed through pretrial motions, proposed voir dire, and in
the Defense’s request for instructions regardless of whether there had been
one trial or two. 49




    44   Id. at 21, 26 (emphasis added).
    45   United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).
    46United States v. Stellato, 74 M.J. 473, 488 (C.A.A.F. 2015) (quoting Gore, 60
M.J. at 187).
    47   Id. at 482.
    48  As an initial point of contrast, in Stellato, the “trial counsel . . . affirmatively
and specifically declined to examine the contents of the box [of evidence] despite [an]
. . . explicit offer for him to do so” and after he was told that the box contained notes,
journals, and correspondence between a child victim and her mother containing the
victim’s statements describing the allegations against Major Stellato—including one
note described as a recantation. To make matters worse, the trial counsel deliberate-
ly rejected the invitation to inspect the contents of the box in order to avoid having to
disclose exculpatory evidence to the defense. Id. at 477-78, 486.
    49   See App. Ex. LXI at 526-34.




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                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

    Second, he argues the members panel in the second trial was confused by
references to the first trial. Our review of the record reveals no such confu-
sion. During examination of LCpl Romeo, when necessary, the parties
referred to a “previous hearing.” 50 No member questioned the nature of this
hearing.
    Third, Appellant argues that because the new trial counsel “were in direct
communication with the previous trial counsel,” the “taint” of the original
discovery violations was not mitigated. 51 However, this is no indication that
any discovery violations occurred in the course of the second trial. The first
trial counsel’s communications with VLC, via email and text message, were
disclosed and were the subject of additional litigation. Furthermore, the
military judge ordered the new trial counsel to take “aggressive remedial
actions” to ensure no further discovery violations occurred, including by
reviewing the prior trial counsel’s file. 52 The new trial counsel acknowledged
this admonishment and, absent evidence suggesting otherwise, we presume
he did so.
    Fourth, Appellant argues that he was prejudiced by the mistrial because
he elected to release his civilian defense counsel before the second trial
because he could not afford to pay them. Appellant was expecting a child and
decided he would prioritize saving for the baby. The military judge conducted
an extensive colloquy with Appellant before permitting the civilian defense
counsel to withdraw. He confirmed that Appellant knowingly and voluntarily
desired to release his civilian counsel, he had not been pressured to do so, and
he believed it was in his best interests. The military judge informed Appel-
lant that the counsel would be ethically obligated to represent Appellant,
even if he could not pay them, and the military judge would compel them to
do so if Appellant desired. 53 Nevertheless, Appellant unequivocally stated
that it was his own preference to release his civilian counsel. Although he
stated he was satisfied to proceed to trial with his two detailed defense
counsel, at the urging of the military judge, the senior defense counsel was
additionally appointed to the case.



   50   Record at 301.
   51   Appellant’s Brief at 28.
   52   Record at 95.
   53 The military judge noted that any debts owed could be the subject of later

negotiation or settlement but that he would nonetheless order the civilian defense
counsel to represent Appellant if he so desired.




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                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

    We find that Appellant was not entitled to the drastic remedy of dismissal
with prejudice, and his second trial was not prejudiced by the fact that his
first trial ended in a mistrial. Therefore, we do not consider whether dismis-
sal would have been a remedy preferable to Appellant. Rather, we consider
whether there was manifest necessity to grant a mistrial and whether
Appellant consented.

   2. The military judge did not abuse his discretion in finding the Defense
consented to a mistrial
    The Defense made inconsistent statements about whether they consented
to a mistrial. The Defense filed a written “Motion to Dismiss with Prejudice
or Grant Other Appropriate Relief . . .” in which it asked for, in alternative to
dismissal with prejudice, a mistrial. 54
    As oral argument progressed and it appeared likely that the military
judge would grant a mistrial, the Defense focused their arguments on why
dismissal with prejudice was the only adequate remedy. When directly asked
to state the Defense position on a mistrial, the civilian defense counsel stated
equivocally, “[W]e believe a mistrial not to be appropriate,” but that it would
be “more appropriate than continuing with this trial, with this trial team, or
anyone associated with this trial team.” 55
    When directly asked whether the Defense would object to a mistrial, the
civilian defense counsel said, “I do,” and noted that any “lack of objection has
preconditions” requesting that the military judge impose “certain measures”
to “attempt to remedy the prejudice that’s created with the mistrial.” 56 He
also stated, “[I]f the Court can figure out a way that a mistrial eliminates and
alleviates those issues, then we’re in agreement” and that “we would object to
a mistrial on just its face without protective measures.” 57
    Instead of a mistrial, the civilian defense counsel requested to continue
the trial, with the members then impaneled, but subject to conditions that
included: a continuance; disqualifying the trial counsel and all others from
her office; prohibiting newly assigned trial counsel from communicating with
the trial counsel and learning the Defense strategy; setting a “new motion’s


   54   App. Ex. LXI at 554.
   55   Orig. Rec. at 855.
   56   Id. at 857.
   57   Id. at 857-58.




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                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

[sic] date to relitigate certain motions”; permitting Defense to “do a new
opening statement,” and to “re-open cross-examination” of LCpl Romeo. 58 The
military judge noted that this requested remedy was, in all but name and a
new panel, a mistrial. We agree.
   In his written ruling, the military judge stated the mistrial was granted
“over the objection of the accused.” 59 When the charges were re-referred and
the parties litigated the Defense motion to dismiss charges on the grounds of
Double Jeopardy, the military judge for the second trial concluded that the
Defense’s stated opposition was merely to gain tactical advantage and that
the Defense had in fact consented to the mistrial.
   Given the Defense’s conflicting statements and their strident arguments
that the Government’s actions justified dismissal with prejudice, the second
military judge’s finding that the Defense consented to the mistrial does not
constitute an abuse of discretion. However, even if the Defense had not
consented to the mistrial, there was manifest necessity to grant a mistrial
even over Defense objection.

   3. There was manifest necessity to grant the mistrial
    A mistrial is one of the possible remedies for a discovery violation. 60
“[M]istrials are disfavored.” 61 A “military judge may, as a matter of discre-
tion, declare a mistrial when such action is manifestly necessary in the
interest of justice because of circumstances arising during the proceedings
which cast substantial doubt upon the fairness of the proceedings.” 62
   A military judge has “considerable latitude” in determining whether to
grant a mistrial. 63 It is a matter of “sound discretion,” which we will not



   58   Id. at 867-68.
   59   App. Ex. LXI at 653.
   60 See R.C.M. 701(g)(3), which permits a military judge to “(A) Order the party to
permit discovery; (B) Grant a continuance; (C) Prohibit the party from introducing
evidence, calling a witness, or raising a defense not disclosed; and (D) Enter such
other order as is just under the circumstances”—which could include granting a
mistrial.
   61  United States v. Commisso, 76 M.J. 315, 318 (C.A.A.F. 2017) (citing United
States v. Diaz, 59 M.J. 79, 90 (C.A.A.F. 2003)).
   62   R.C.M. 915(a).
   63   United States v. Seward, 49 M.J. 369, 371 (C.A.A.F. 1998).




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                 United States v. Cabrera, NMCCA No. 201800327
                               Opinion of the Court

disturb in the absence of a clear abuse of that discretion. 64 A military judge
abuses his discretion “when [the military judge’s] findings of fact are clearly
erroneous, the court’s decision is influenced by an erroneous view of the law,
or the military judge’s decision on the issue at hand is outside the range of
choices reasonably arising from the applicable facts and the law.” 65
    The Defense arguments in support of dismissal—articulated at trial and
on appeal—all establish the manifest necessity of a mistrial in this case. The
military judge encapsulated the evidence presented in his findings of fact.
Those findings are supported by the record, are not clearly erroneous, and
Appellant does not dispute them. The military judge recited the applicable
principles of law, and his decision was reasonable. In addition to the reasons
cited in his ruling, he also articulated the importance of the withheld
discovery to the Defense case.
    The Defense articulated the importance of LCpl Romeo’s statement that
she woke up on her stomach. 66 Based on all prior statements of which the
Defense was aware, LCpl Romeo described how she had woken up, (only) on
her back, with a pillow on her face. The Defense anticipated that the Gov-
ernment would argue Appellant put a pillow over the victim’s face so that she
could not identify her assailant. The Defense viewed the pillow as a “real bad
fact” 67 that severely undercut Appellant’s defense, which was that two friends
engaged in a regrettable experience of drunken sex that neither remembered
but during which Appellant reasonably believed LCpl Romeo consented.
Then, Appellant falsely confessed, which the Defense argued was supported
by the fact that he had gotten the facts wrong and only confessed to the




   64   United States v. Rosser, 6 M.J. 267, 270, (C.M.A. 1979)
   65 Stellato, 74 at 480 (alteration in original) (quoting United States v. Miller, 66
M.J. 306, 307 (C.A.A.F. 2008)).
   66  The Government’s written motion inconsistently described two versions: 1) that
LCpl Romeo woke up once on her back while she was being assaulted and then again
on her stomach when Appellant was sleeping; and 2) that LCpl Romeo stated she
awoke twice while she was being assaulted, once on her back and the second time on
her stomach. See App. Ex. LXI at 602, 612. Both renditions were inconsistent with
LCpl Romeo’s NCIS interview; the second rendition was inconsistent with her
testimony at the first trial. The trial counsel stated that LCpl Romeo told her the
first version, not the second, and that her written filing was “absolutely poorly
worded.” Orig. Rec. at 806.
   67Id.   at 774.




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                  United States v. Cabrera, NMCCA No. 201800327
                                Opinion of the Court

version of events LCpl Romeo relayed to him in the pretext phone call. The
Defense argued that knowing LCpl Romeo awoke on her stomach, face down,
would allow them to argue Appellant never put a pillow over her face.
Rather, they could argue that her face was on the pillow because she had
been sleeping on her stomach and she was “confusing a pillow [on her face]
for being on her stomach.” 68 The civilian defense counsel then described how
he curtailed potential aspects of the Defense strategy because of this “bad
fact,” and he could present a different strategy altogether after having
learned of this disclosure.
    Based on this impact on the Defense strategy and the reasons cited by the
military judge, we find that it was manifestly necessary to grant a mistrial.
In this case, granting a mistrial was “within the range of remedies available
to the military judge,” and the military judge did not abuse his discretion in
granting a mistrial. 69 Had the first trial proceeded to findings, the Govern-
ment’s discovery violations would have “cast substantial doubt upon the
fairness of the proceedings.” 70
   Because there was manifestly necessary for the military judge to grant a
mistrial, the Government was permitted to re-refer the charges and try
Appellant at a second court-martial, even if the mistrial had been granted
over his objection.
    We believe it is worth reiterating the words of our superior court from
United States v. Stellato, describing the Government’s discovery obligations
as follows:
         Discovery in the military justice system, which is broader than
         in federal civilian criminal proceedings, “is designed to elimi-
         nate pretrial gamesmanship, reduce the amount of pretrial mo-
         tions practice, and reduce the potential for surprise and delay
         at trial.” This Court has held that trial counsel’s “obligation
         under Article 46,” UCMJ, includes removing “obstacles to de-
         fense access to information” and providing “such other assis-




   68   Id. at 763.
   69   Id. at 491.
   70   R.C.M. 915(a).




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               United States v. Cabrera, NMCCA No. 201800327
                             Opinion of the Court

        tance as may be needed to ensure that the defense has an equal
        opportunity to obtain evidence. 71

                                III. CONCLUSION

    After careful consideration of the record and briefs of appellate counsel,
we have determined that the findings and sentence are correct in law and
fact and that no error materially prejudicial to Appellant’s substantial rights
occurred. Arts. 59, 66, UCMJ.
   The findings and sentence are AFFIRMED.
   Judges LAWRENCE and STEPHENS concur.


                                  FOR THE COURT:




                                  RODGER A. DREW, JR.
                                  Clerk of Court




   71 Stellato, 74 M.J. at 481 (C.A.A.F. 2015) (emphasis added) (citations omitted)
(quoting United States v. Jackson, 59 M.J. 330, 333 (C.A.A.F. 2004); United States v.
Williams, 50 M.J. 436, 442 (C.A.A.F. 1999)).




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