UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                      Before
                      CAMPANELLA, SALUSSOLIA, and FLEMING
                             Appellate Military Judges

                            UNITED STATES, Appellee
                                        v.
                     Staff Sergeant MICHAEL C. GLEASON
                          United States Army, Appellant

                                  ARMY 20150379

                             Headquarters, Fort Hood
                    Rebecca K. Connally, Military Judge (trial)
                    Jacob D. Bashore, Military Judge (DuBay)
                    Colonel Ian G. Corey, Staff Judge Advocate


For Appellant: Captain Michael A. Gold, JA; James S. Trieschmann, Esquire (on
brief).

For Appellee: Colonel Tania M. Martin, JA; Lieutenant Colonel Eric K. Stafford, JA;
Major Cormac M. Smith, JA; Captain Cassandra M. Resposo, JA (on brief).


                                     30 April 2018

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                              SUMMARY DISPOSITION
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SALUSSOLIA, Judge:

       In this case we hold the nondisclosure of Family Advocacy Program (FAP)
records did not constitute a discovery violation because appellant’s discovery
request did not identify the proper office or the actual information desired with
sufficient specificity, trial counsel exercised due diligence based on the limited
information provided, and the items ultimately disclosed after the trial were not
material.

        An officer panel sitting as a general court-martial convicted appellant,
contrary to his pleas, of six specifications of assault consummated by battery, two
specifications of aggravated assault, adultery, and interfering with an emergency
call, in violation of Articles 128 and 134, Uniform Code of Military Justice, 10
U.S.C. §§ 928, 934 (2012) [hereinafter UCMJ]. The convening authority approved
the adjudged sentence of a dishonorable discharge, confinement for seven years, and
reduction to the grade of E-1.
GLEASON—ARMY 20150379

       This case is before the court for review under Article 66, UCMJ. Appellant
raises six assignments of error, two of which merit discussion, and one of which
merits relief. We have also reviewed the matters personally raised by appellant
pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and find they are
without merit.

                               LAW AND ANALYSIS

                               A. The DuBay Hearing

       On 7 September 2017 this court returned appellant’s record of trial to The
Judge Advocate General for a hearing pursuant to United States v. DuBay, 17
U.S.C.M.A. 147, 37 C.M.R. 411 (1967). United States v. Gleason, ARMY 20150379
(Army Ct. Crim. App. 7 Sep. 2017) (order). On 12 December 2017, the DuBay
hearing concluded. The military judge made findings of fact and conclusions of law
with respect to appellant’s claim that the government failed to disclose evidence that
was potentially exculpatory for appellant and would potentially impeach the victim
related to Specifications 11 and 12 of Charge II. (App. Ex. XXXIV). We hereby
adopt his findings of fact and conclusions of law. We agree with the military judge
that the government complied with R.C.M. 701(a)(2) because while defense counsel
submitted a request more specific than a general discovery request, it lacked the
specificity to put the government on notice that particular types of records and
documents existed and directed the government to look in the wrong place by
providing phone numbers to the wrong component of the FAP. The government did
not violate Brady v. Maryland, 373 U.S. 83 (1963) because the government did not
withhold favorable or material evidence. In sum, appellant’s asserted error is
without merit given that appellant did not identify the proper office or the actual
information desired with sufficient specificity, trial counsel exercised due diligence,
and the items ultimately disclosed were not material.

                B. Factual Insufficiency of the Adultery Specification

       The government charged appellant with committing adultery, which requires
proof that: 1) the accused wrongfully had sexual intercourse with a certain person;
2) at the time, the accused or the other person was married to someone else, and 3)
under the circumstances, the conduct of the accused was to the prejudice of good
order and discipline in the armed forces or was of a nature to bring discredit upon
the armed forces. Manual for Courts Martial, United States (2012 ed.), pt. IV, ¶ 62.

      During opening statements, defense counsel conceded:

             [T]here are two things that are true. [Private First Class
             (PFC) TA] was punched by [appellant]. He was; we’re not
             denying that. He admitted it because he did it. . . . And

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GLEASON—ARMY 20150379

             also the last Specification, that before his divorce was
             final, he had committed adultery, he had had sex with his
             girlfriend.

       However, the only evidence of adultery introduced by the government was
PFC JW’s affirmative response to trial counsel’s question, “[a]nd was the
relationship sexual in nature?”

      The military judge properly instructed the panel that the first element of
Specification 2 of Charge III was that appellant “wrongfully had sexual intercourse
with [PFC JW]” and that “[s]exual intercourse is defined as any penetration,
however slight, of the female sex organ by the penis.” Trial counsel’s closing
argument with respect to this specification was that PFC JW “also suffered at the
hand of [appellant] while she was in a relationship with him, and [appellant]
admitted to you that he was in a relationship with [PFC JW who] told you that he
was married, that she was married, and that their relationship was sexual in nature.”
Even trial counsel’s argument did not claim a required element had been met.

       Therefore, while defense counsel conceded that appellant committed adultery
during his opening statement, the government did not elicit any evidence of sexual
intercourse as required for an adultery conviction. Private First Class JW testified
only that her relationship with appellant was “of a sexual nature.” She did not
indicate what she meant by this phrase. Defense counsel’s opening statements are
not evidence, see United States v. Clifton, 15 M.J. 26 (C.M.A. 1983), and thus
cannot be the sole basis for a conviction. As a result, appellant’s conviction of
Specification 2 of Charge III cannot stand.

                                   CONCLUSION

        The finding of guilty to Specification 2 of Charge III is SET ASIDE. The
remaining findings of guilty are AFFIRMED. We are able to reassess the sentence
on the basis of the error noted and do so after conducting a thorough analysis of the
totality of circumstances presented by appellant’s case and in accordance with the
principles articulated by our superior court in United States v. Winckelmann, 73 M.J.
11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J. 305 (C.M.A. 1986).

      In evaluating the Winckelmann factors, we find no significant change in the
penalty landscape. Additionally, the remaining offenses capture the gravamen of
appellant’s misconduct. Finally, based on our experience, we are familiar with the
remaining offenses so that we may reliably determine what sentence would have
been imposed at trial. We are confident that based on the entire record and
appellant’s course of conduct, the panel would have imposed a sentence of at least
that which was adjudged.



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GLEASON—ARMY 20150379

       Reassessing the sentence based on the noted error and the remaining findings
of guilty, we AFFIRM the sentence as adjudged. We find this reassessed sentence is
not only purged of any error but is also appropriate. All rights, privileges, and
property, of which appellant has been deprived by virtue of that portion of the
findings set aside by our decision, are ordered restored

      Senior Judge CAMPANELLA and Judge FLEMING concur.

                                      FOR
                                      FOR THE
                                          THE COURT:
                                              COURT:




                                      MALCOLM H.
                                      MALCOLM     H. SQUIRES,
                                                     SQUIRES, JR.
                                                              JR.
                                      Clerk of Court
                                      Clerk of Court




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