UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                        Before
                            MULLIGAN, FEBBO, and WOLFE
                               Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                            Sergeant ERIC D. SHORTS
                           United States Army, Appellant

                                   ARMY 20140721

                             Headquarters, Fort Stewart
                         John T. Rothwell, Military Judge
                    Colonel Francisco A. Vila, Staff Judge Advocate

For Appellant: Colonel Mary J. Bradley, JA; Major Christopher D. Coleman, JA;
Captain Jennifer K. Beerman, JA (on brief).

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colonel A.G. Courie III,
JA; Major Michael E. Korte, JA; Captain Austin L. Fenwick, JA (on brief).


                                   24 January 2017

                              ----------------------------------
                               OPINION OF THE COURT
                              ----------------------------------

FEBBO, Judge:

       In this appeal we address whether the military judge erred in failing to grant a
mistrial because of a discovery violation. We find no discovery violation, because
another reserve unit, with an unclear relationship in the record to appellant’s unit,
conducted an administrative investigation into the sexual assault four years prior to
trial. That investigation was unknown to the trial counsel at the time of trial. We
further find the trial counsel exercised due diligence in his discovery obligations.
We do not find the military judge abused his discretion in denying the defense
request for mistrial after discovery of the administrative investigation during the
presentencing hearing. The military judge concluded, and we agree, the
investigation was not material evidence.

       A panel with enlisted representation, sitting as a general court-martial,
convicted appellant, contrary to his pleas, of aggravated sexual assault upon a
person who was substantially incapacitated and forcible sodomy in violation of
Articles 120 and 125 Uniform Code of Military Justice, 10 U.S.C. §§ 920, 925 (2006
SHORTS—ARMY 20140721

& Supp. IV 2011) [hereinafter UCMJ]. The convening authority approved the
adjudged sentence of a dishonorable discharge, confinement for five years, forfeiture
of all pay and allowances, and reduction to the grade of E-1. The convening
authority credited appellant with three days of pretrial confinement credit.

       This case is before the court for review pursuant to Article 66, UCMJ.
Appellant raises one assignment of error which merits discussion, but no relief. We
find the issues raised by appellant pursuant to United States v. Grostefon, 12 M.J.
431 (C.M.A. 1982) do not merit relief.

       After a report of sexual assault involving two members of a reserve unit
activated for training, two parallel investigations began. First, the Contra Costa
County Sheriff’s Department (CCCSD) and U.S. Army Criminal Investigative
Command (CID) 1 conducted a joint criminal investigation. A few days later, a
United States Army Reserve (USAR) unit began an informal administrative
investigation under Army Reg. 15-6 [hereinafter AR 15-6], Boards, Commissions,
and Committees: Procedures for Administrative Investigations and Boards of
Officers (1 Apr. 2016). 2 The administrative investigation was to look into the “facts
and circumstances surrounding” the alleged sexual assault, initially focusing on “any
command policy violations or leadership issues which may have contributed to this
unfortunate event.”

      The trial counsel could not locate the administrative investigation until after
the court-martial had returned findings. In pretrial discovery requests, the defense
requested production of an administrative investigation, but identified the wrong
appointing authority and investigating officer. The military judge denied the


1
  In November 2010, since the allegations involved felony offenses of aggravated
sexual assault, CID was “the sole agency within the U.S. Army responsible for the
criminal investigation.” See Army Reg. (AR) 190-2, Criminal Investigation
Activities, para. 1-6 (15 May 2009). The version of AR 15-6 in effect at the time of
the allegations (dated 2 October 2006) allowed for concurrent command
investigations as long as they did not “hinder or interfere” with an investigation
conducted by a “criminal investigative [agency].”
2
  We note that typically, parallel administrative investigations are not directed when
there is an ongoing criminal sexual assault investigation. In fact, subsequent
Department of Defense policy since appellant’s misconduct prohibits command-
directed investigations into allegations of sexual assault. See Dep’t of Defense
Instruction 5505.18, Investigation of Adult Sexual Assault in the Department of
Defense (25 Jan. 2013). See also, Dep’t of Defense Instruction 5505.03, Initiation
of Investigations by Defense Criminal Investigative Organizations (DCIO), para. 4b
(24 March 2011) (“[I]nvestigations initiated by the DCIOs have primacy over
collateral investigations conducted by commanders.”).

                                           2
SHORTS—ARMY 20140721

defense’s motion for a mistrial. As explained below, we do not direct any relief
because: 1) the trial counsel exercised due diligence in looking for the AR 15-6
investigation in response to the defense’s discovery request; 2) after being informed
of the trial counsel’s efforts, the defense counsel was satisfied that trial counsel
exercised due diligence and did not file a motion to compel; 3) the administrative
investigation was not material; and 4) appellant was not prejudiced by its late
discovery.

                                  BACKGROUND

       In 2010, appellant was assigned to the 489th Transportation Company
(Seaport Operations), 257th Battalion, a USAR unit. On the evening of 26 November
2010, during USAR training at Concord, California, appellant, Private First Class
(PFC) KS, and other USAR Soldiers went to bars and night clubs and consumed
alcohol. Private First Class KS consumed alcohol, became intoxicated, and spent the
night in appellant’s hotel room. On 27 November 2010, PFC KS reported to her unit
that appellant sexually assaulted her.

                     A. The Contra Costa County Investigation

        On 28 November 2010, the CCCSD in Concord, California, began an
investigation. On 29 November 2010, a CCCSD detective interviewed appellant. At
the conclusion of his interview, appellant wrote a hand-written letter addressed to
PFC KS in which he apologized for his conduct on the night of the assault. In the
letter, which the government introduced as evidence, appellant stated:

              . . . what happened that night in my room I can never see
             myself doing to anyone and that is not who I am and that
             is not what I stand for. I had way to [sic] much to drink
             that night and I made a very, very, very, stupid choice in
             actions. . . . What happened to you no one should have to
             go through that. At this point I wish I could go back and
             erase all this shit!! I know that you might not care at this
             point but this is going to kill me on the inside for the rest
             of my life. But make me a better choice maker in the
             future! I have never been in trouble or done anything like
             this before. I can’t finde [sic] the right words to say how
             sorry I am but I’m truely [sic] sorry about everything. I
             hope some day down the line however long it takes I hope
             you finde [sic] it in your heart to forgive me. Cause I
             totaley [sic] against motherfucker that do shit like this
             [sic] I sware [sic].




                                           3
SHORTS—ARMY 20140721

       In the course of the CCCSD/CID investigation, PFC KS underwent a sexual
assault forensic examination, and appellant provided a DNA sample. Forensic
testing revealed the presence of appellant’s DNA in PFC KS’s anus.

                         B. The Administrative Investigation

       On 3 December 2010, the Commander, 641st Regional Support Group (RSG),
USAR, appointed an investigating officer [hereinafter IO] to conduct an AR 15-6
investigation. It is unclear from the record why the 641st RSG conducted an
investigation. The IO, Lieutenant Colonel (LTC) Thomas, obtained written
statements from six soldiers, to include appellant and PFC KS. Despite his earlier
statements to CCCSD, appellant denied any sexual contact with PFC KS. Private
First Class KS told the investigating officer, as she would testify at trial, that she
had no memory of the alleged offense. The IO did not request or receive appellant’s
interview with CCCSD, hand-written letter to PFC KS, or the DNA evidence
results. 3

       Accordingly, based on appellant’s denial of any sexual contact, PFC KS’s
lack of memory, and the IO not collecting or consulting any physical or forensic
evidence, on 10 December 2010, the IO found the sexual assault “did not take place
on 27 November 2010.” On 8 January 2011, the 641st RSG Command Judge
Advocate (CJA) completed the legal review for the AR 15-6 investigation.

                                 C. Pretrial & Trial

       Based on the results of the CCCSD/CID investigation, two years later on 30
March 2013, the government preferred court-martial charges against appellant. The
CCCSD/CID investigation did not include or reference the administrative
investigation.

      On 28 June 2013, appellant’s defense counsel made a general request for
discovery under Rule for Courts-Martial [hereinafter R.C.M.] 701. Other than the
most general requests for “reports of investigation,” and witness statements in
possession of the government, the request did not include a specific request for the
administrative investigation in question.


3
  The appointment memo addressed to the IO indicated that CCCSD and CID were
conducting an investigation and provided the IO with the phone numbers for the
CCCSD detective and the CID Special Agents. The record contains no evidence
that the IO contacted CCCSD or CID. Rather, the IO stated, mistakenly, civilian
authorities had “dropped” the matter less than two weeks after appellant allegedly
committed the offense. In fact, the CCCSD/CID investigation would not be
completed for months and would find probable cause to believe appellant committed
the offenses.

                                          4
SHORTS—ARMY 20140721

       During a pretrial Article 39(a), UCMJ, hearing, the trial counsel, an active
duty judge advocate assigned to the 3d Infantry Division and Fort Stewart, Georgia,
raised several discovery issues to the military judge, including a newly received
defense request for “an investigation” by a “lieutenant colonel.” The trial counsel
stated he was unaware of any investigation.

       The defense counsel stated that after their initial request they had clarified
that they were seeking “an investigation” by “a Lieutenant Colonel Evans out of the
143rd ESC [Expeditionary Sustainment Command].” The defense admitted “it is not
the most specific of request” but stated the defense did not have any other
information. As discussed above, the administrative investigation actually
conducted was by a LTC Thomas, assigned out of the 641st RSG. Lieutenant
Colonel Evans is female while LTC Thomas is male.

       Upon further questioning by the military judge, the defense repeated they
were seeking an investigation, which they assumed was an AR 15-6 investigation, by
a “LTC Evans” from the “143rd.” The defense further explained the investigation
may have been a “command climate” investigation or an investigation into sexual
assault, but “sworn statements were taken.”

      At the end of the Article 39(a), UCMJ, hearing the trial counsel explained the
continued steps he intended to take to find the administrative investigation and
“LTC Evans.” The defense did not ask the court for any relief.

       After the hearing, the trial counsel contacted the judge advocate assigned to
the 143rd ESC. The judge advocate told the trial counsel that he did not believe his
unit conducted any investigation as described. However, he did relay to the trial
counsel that there had been a “LTC Evans” who was the legal advisor of the 143rd
ESC. The trial counsel contacted LTC Evans, who told the trial counsel she was
familiar with the CCCSD/CID investigation and had conducted the probable cause
opinion on the CID investigation. She told the trial counsel she did not believe there
was any administrative investigation.

       The trial counsel informed the defense of his efforts to find the administrative
investigation, to include tracking down and talking to LTC Evans. The trial counsel
provided the defense with the contact information of LTC Evans in case the defense
wanted to contact her directly with additional questions.

      The record is silent as to whether the defense counsel ever contacted LTC
Evans. The defense counsel would later tell the military judge they thought the trial
counsel’s efforts had “settled” the matter. Although the defense counsel filed
several pretrial motions—to include motions to compel discovery—the defense
appeared satisfied by the trial counsel’s efforts and did not file any motion or
request any relief from the military judge to obtain the investigation.


                                           5
SHORTS—ARMY 20140721

       During presentencing, the defense called several witnesses, including
Specialist (SPC) Williams and Sergeant First Class (SFC) Yeartie who made sworn
statements during the AR 15-6 investigation. Near the end of the defense case, some
of the witnesses approached the defense counsel and informed them they believed
PFC KS was not being truthful during her sentencing testimony. 4 During a comfort
break the defense counsel spoke to SFC Yeartie and learned there was in fact an
investigation and where it could be located.

      The military judge recessed the court-martial for two days to give the trial
counsel additional time to find the administrative investigation. The trial counsel
subsequently obtained the administrative investigation from the 641st RSG CJA,
who conducted the legal review in 2011. The defense counsel moved for a mistrial
pursuant to R.C.M. 915(a).

                      D. The Ruling on the Motion for Mistrial

       Sergeant First Class Yeartie testified at the motion for mistrial. She stated
she recalled an administrative investigation that was conducted by a male lieutenant
colonel.

        The military judge made findings of fact which we previously summarized.
The military judge concluded as a matter of law that the government “was at a
minimum negligent and certainly violated Brady, Article 46 and R.C.M. 701” but
that “the government has established that under the circumstances of this case that
its failure was harmless beyond a reasonable doubt.” See generally Brady v.
Maryland, 373 U.S. 83 (1963); United States v. Cano, 61 M.J. 74 (C.A.A.F. 2005).

       The military judge did not explain what action or omission of the trial counsel
constituted negligence and a violation of Brady, Article 46, UCMJ, or R.C.M. 701.
The military judge made no finding that the trial counsel engaged in gamesmanship,
intentionally withheld evidence favorable to the defense, or engaged in any other
misconduct other than the failure to disclose the AR 15-6 investigation “was at a
minimum negligent.” A review of the record likewise finds no evidence of
intentional withholding, willful ignorance, or gamesmanship. Once the prosecution
obtained a copy of the AR 15-6 investigation, they immediately provided a copy to
defense counsel and the court.

      Defense counsel argued the nondisclosed information was favorable to
appellant because the AR 15-6 could have been used to, among other things: (1)
impeach PFC KS; (2) develop further investigative leads such as locating e-mails


4
  The military judge found it “is not clear to the court which part of her sentencing
testimony those witnesses are referring to.”


                                           6
SHORTS—ARMY 20140721

exchanged among the command; (3) refresh the memory of witnesses; and (4)
interview the IO. 5 After a hearing on the defense motion for a mistrial, the military
judge made oral findings of fact and law and denied the motion for a mistrial.

                              LAW AND DISCUSSION

        In general, to preserve a discovery issue for appeal an appellant must first
raise and litigate the issue at trial. Thus, if a military judge denies a defense
discovery motion (e.g. a defense motion under R.C.M. 906(b)(7)), we review the
trial judge’s decision for an abuse of discretion. As a general proposition, an
appellant cannot request discovery and then wait to raise the issue to the appellate
court without first bringing it to the attention of the military judge. “[A] trial on the
merits, whether in a civil or criminal case, is the ‘main event,’ and not simply a
‘tryout on the road’ to appellate review.” Freytag v. Commissioner, 501 U.S. 868,
895 (1991) (Scalia, J. concurring) (quoting Wainwright v. Sykes, 433 U.S. 72, 90
(1977)).

       Stated differently, as an appellate court reviewing the record under Article
66(c), UCMJ, we review the decisions of the trial court. It is the military judge who
commits error (be it preserved or unpreserved, plain or invited)—not the trial
counsel. For example, suppose a defense counsel requests a particular piece of
information and the trial counsel responds that the information will not be turned
over. If the defense counsel does not file a motion to compel production, and the
issue is not brought to the military judge’s attention, we cannot say the military
judge erred. More broadly, if it is not litigated, the discovery issue will not be part
of the record of trial and will likely be beyond the scope of our review under Article
66(c), UCMJ.

       There are exceptions to this broad proposition, and we generally see them in
two forms. First, an appellant may allege his counsel at trial was deficient in his
discovery practice (i.e. ineffective assistance of counsel). Second, an appellant
generally asserts some type of misconduct or failure by the trial counsel. As
appellant has not stated a claim of ineffective assistance and our review of the
record finds no basis for an ineffective assistance of counsel claim, we focus only on
the latter.

       While we started with the proposition that the defense must litigate discovery
issues at trial in order to preserve the issue for appeal, there are exceptions. A
defense counsel may of course rely on a trial counsel’s representations without


5
  Appellant repeats these arguments on appeal. However, appellant does not explain
what leads could have been followed or developed or how that would have affected
the trial. Nor does appellant explain how interviewing the IO would have produced
any information favorable to the defense.

                                            7
SHORTS—ARMY 20140721

resorting to litigation, and open and equal discovery encourages resolving discovery
issues without litigation. If a trial counsel informs a defense counsel that there is no
responsive information to a request, the defense counsel may assume that the trial
counsel exercised due diligence before making that determination. This principle is
particularly true as R.C.M. 701 requires the prosecution “engage[] in ‘good faith
efforts’ to obtain [requested] material.” United States v. Williams, 50 M.J. 436, 441
(C.A.A.F. 1999); R.C.M. 701(a)(2). Likewise, no motion to compel is required to
ensure that a trial counsel discloses information that under the rules the government
is required to turn over as a matter of course.

       We start with these general thoughts because this case occupies the
intersection of the space between these discovery norms. Although we address the
military judge’s findings below in some depth, ultimately we find the trial counsel
exercised due diligence in performing his discovery obligations and therefore
disagree there was a violation of Brady, Article 46, UCMJ, or R.C.M. 701.

        Disclosure by the government generally falls into two categories: 1)
information the government must turn over without a request from the defense; and
2) information the government turns over or provides access to upon a defense
request. Compare R.C.M. 701(a)(1), (a)(3), (a)(4), (a)(6) with R.C.M 701(a)(2),
(a)(5).

       The distinction between the two types of disclosure is significant. If it falls
into the first category, the defense need not request it—they are always entitled to
the evidence. In the latter category, the government is responding to a defense
request. Thus, whether the trial counsel exercised reasonable diligence in response
to the request will depend on the specificity of the request.

        Consider a comparison: R.C.M 701(a)(6) requires the government to provide
to the defense all information which “reasonably tends to “negate[] or reduce[] the
degree of guilt or reduce[] punishment.” No defense request is required, disclosure
is mandatory, and there is no requirement for “materiality.” R.C.M. 701(a)(2), on
the other hand, requires the government to provide the defense access to anything
that is “material to the preparation of the defense.” That is, R.C.M. 701(a)(2)
incorporates a constitutional “materiality” requirement similar to Brady. However,
neither of these rules subsumes the other. R.C.M. 701(a)(6) is limited to
information “known to the trial counsel.” R.C.M. 701(a)(6) requires trial counsel to
turn over what he or she has but does not create an obligation to get information of
which the trial counsel is unaware. But see United States v. Jackson, 59 M.J. 330,
334 (C.A.A.F. 2004) (outlining the scope of a prosecutor’s duty as to matters not
within his or her personal knowledge). R.C.M. 701(a)(2) on the other hand is
triggered by a request by the defense. Thus, the rule balances two competing
interests: The rules require broad discovery over information known to the trial



                                           8
SHORTS—ARMY 20140721

counsel, but requires a defense request for information not known by the trial
counsel.

      In this case, the military judge held the government violated both Brady and
R.C.M. 701. He held the trial counsel was required to find and turn over the
administrative investigation both independently of the defense request, and in
accordance with the defense request. Accordingly, we will address them separately.

                                A. Brady v. Maryland

       The Due Process Clause of the Fifth Amendment requires the prosecution to
disclose evidence that is material and favorable to the defense. Brady, 373 U.S. at
87. This requirement exists whether there is a general request or no request at all.
United States v. Agurs, 427 U.S. 97, 107 (1976). Under due process discovery and
disclosure requirements, the Supreme Court has “rejected any . . . distinction
between impeachment evidence and exculpatory evidence.” United States v.
Eshalomi, 23 M.J. 12, 23 (C.M.A. 1986) (quoting United States v. Bagley, 473 U.S.
667, 676 (1985)). “[W]hen an appellant has demonstrated error with respect to
nondisclosure, the appellant will be entitled to relief only if there is a reasonable
probability that there would have been a different result at trial had the evidence
been disclosed.” United States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004).

       The military judge found that the government violated Brady, but that this
error was harmless. This analysis was incorrect as a matter of law. Every Brady
violation is per se not harmless. As our superior court explained in United States v.
Behenna, 71 M.J. 228 (C.A.A.F. 2012):

             Pursuant to Brady, the Government violates an accused’s
             “right to due process if it withholds evidence that is
             favorable to the defense and material to the defendant’s
             guilt or punishment.” Smith v. Cain, [565 U.S. 73, 75]
             (2012). Evidence is favorable if it is exculpatory,
             substantive evidence or evidence capable of impeaching
             the government’s case. United States v. Orena, 145 F.3d
             551, 557 (2d Cir. 1998) (citing United States v. Bagley,
             473 U.S. 667, 676 (1985)). Evidence is material when
             “there is a reasonable probability that, had the evidence
             been disclosed, the result of the proceeding would have
             been different.” Smith, [565 U.S. at 75]. To be material,
             the evidence must have made the “likelihood of a different
             result . . . great enough to ‘undermine[] confidence in the
             outcome of the trial.’” Id. (alteration in original) (citation
             omitted). Once a Brady violation is established, courts



                                           9
SHORTS—ARMY 20140721

             need not test for harmlessness. Kyles v. Whitley, 514 U.S.
             419, 435-36 (1995).

Behenna, 71 M.J. at 237-38 (internal and parallel citation omitted).

       Here, the military judge found that the government violated Brady. However,
because the administrative investigation was cumulative and “disclosure would not
have affected the outcome of trial” (i.e. not material) the error was harmless beyond
a reasonable doubt. But, if the evidence is not material—no Brady violation can
occur. If the evidence is irrelevant, cumulative with other evidence, or otherwise
would not have caused “the result of the proceeding to be different” the government
does not violate Brady. Although the term is often used loosely by practitioners, all
“Brady” evidence is by definition material.

       Setting aside the materiality of the administrative investigation, we also
disagree that the government was required to find and turn over the administrative
investigation as a matter of constitutional obligations under the facts of this case.
We limit our discussion here to that which is constitutionally required, leaving for
later an analysis under the broader discovery provisions contained in the Rules for
Courts-Martial. 6

       The Brady rule is not an evidentiary rule that grants broad discovery powers
to a defendant, because there “is no general constitutional right to discovery in a
criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559 (1977); Downs v. Hoyt,
232 F.3d 1031, 1037 (9th Cir. 2000)(“Brady does not require a prosecutor to turn
over files reflecting leads and ongoing investigations where no exonerating or
impeaching evidence has turned up.”).

       The question here, as we see it, is where, and how hard, must the trial counsel
look for evidence in order to avoid violating Brady? Again, practitioners often use
the term “Brady evidence” loosely. We often see in records, for example,


6
  Brady sets the constitutional floor of government discovery requirements. The
Rules for Courts-Martial provide for much broader government disclosure. United
States v. Santos, 59 M.J. 317, 321 (C.A.A.F. 2004); United States v. Kinney, 56 M.J.
156 (C.A.A.F. 2001) (“One of the hallmarks of the military justice system is that it
provides an accused with a broader right of discovery than required by the
Constitution.”) (internal citations omitted). Good military practice often
incorporates “open-file” discovery. Nothing in this discussion about constitutional
minimums should be interpreted as abrogating requirements imposed by the rules or
suggesting discovery should be limited to only that which is required. For example,
it is beyond dispute that the President’s implementation of Article 46, UCMJ,
through R.C.M. 701, provides for broad discovery in the pretrial phase.


                                          10
SHORTS—ARMY 20140721

practitioners referring to subpoenaing “Brady evidence” from civilians where the
evidence is not in the actual or constructive control of the prosecution.

       We answer the question as follows: to comply with Brady, a trial counsel must
search his or her own file, and the files of related criminal and administrative
investigations. However, consistent with our superior court’s interpretation of the
issue, we require a trial counsel only exercise due diligence. See United States v.
Simmons, 38 M.J 276 (C.A.A.F. 1993); United States v. Mahoney, 58 M.J. 346
(C.A.A.F. 2003).

                                  B. Where to Look?

       So, where must a trial counsel look for Brady evidence? Clearly, a trial
counsel must search his or her own file. However, “[d]iscovery is not limited to
matters within the scope of the trial counsel’s personal knowledge.” Jackson, 59
M.J. at 334. The trial counsel must also “reveal information that it had in its
possession or knowledge 7 —whether actual or constructive.” United States v.
Stellato, 74 M.J. 473, 487 (quoting United States v. Beers, 189 F.3d 1297, 1304
(10th Cir. 1999) (emphasis added). A ‘box of evidence,’ for example, offered to the
prosecution by a government witness for inspection, cataloging, and voluntary
seizure is under the constructive control of the prosecution. Stellato, 74 M.J. at 487.

        However, for Brady purposes, information under the control of the
“prosecution” is not the same as information under the control of the entire
government. Interpreting Brady, the U.S. Supreme Court held an “individual
prosecutor has a duty to learn of any favorable evidence known to the others acting
on the government’s behalf in the case, including the police.” Kyles, 514 U.S. at
437 (emphasis added). See also United States v. Mahoney, 58 M.J. 346, 348
(C.A.A.F. 2003) (“The individual prosecutor has a duty to learn of any favorable
evidence known to others acting on the Government’s behalf.”) (quoting Stricker v.
Greene, 527 U.S. 263, 281 (1999)). In general, the courts interpreting this rule
require a search of a trial counsel’s own files, the investigative files of federal law
enforcement, and—if the facts demonstrate they are in the constructive control of the
trial counsel—state law enforcement and other agencies. Stellato, 74 M.J. at 486.

       “It is well settled that there is no ‘affirmative duty upon the government to
take action to discover information which it does not possess.’” United States v.
Tierney, 947 F.2d 854, 864 (8th Cir. 1991) (quoting United States v. Beaver, 524


7
  Although not raised by the facts of this case, we emphasize this analysis is not
limited to statements that are reduced to a writing and includes information the trial
counsel learns through oral communications with witnesses. See Stellato, 74 M.J. at
487.


                                          11
SHORTS—ARMY 20140721

F.2d 963, 966 (5th Cir. 1975)); United States v. Kraemer, 810 F.2d 173, 178 (8th
Cir. 1987) (explaining that the prosecution is not required “to search out exculpatory
evidence for the defendant”). It is also constitutionally well-established that the
burden is on the prosecutor to produce exculpatory materials within its control; the
burden is not on the defendant to first point out that such materials exist. See Kyles,
514 U.S. at 437.

       Turning to the question at hand, we find that a trial counsel’s duties under
Brady extend to military administrative investigations that are related to the case.
The “parameters of the review that must be undertaken outside of the prosecutor’s
own files” will depend on the specific relationship of the government entity to the
prosecution. Williams, 50 M.J at 441. “A prosecutor may have a duty to search files
maintained by other ‘governmental agencies closely aligned with the prosecution’
when there is ‘some reasonable prospect or notice of finding exculpatory evidence.’”
United States v. Padilla, 2011 U.S. Dist. LEXIS 31091, *7 (quoting United States v.
Brooks, 966 F.2d 1500, 1503, 296 U.S. App. D.C. 219 (D.C. Cir. 1992)). However,
based on the facts in this case, we determine the trial counsel did not have actual or
constructive knowledge or control of the administrative investigation at issue here,
or “some reasonable prospect or notice of finding exculpatory evidence.” Put
differently, there was no evidence introduced that the trial counsel knew, or through
the exercise of due diligence, should have known the investigation existed. We
reach this conclusion for several reasons.

       First, the record contains no evidence that supports an inference that the trial
counsel had actual knowledge of, or control over, an administrative investigation
completed by the 641st RSG. The administrative investigation was completed by a
reserve component unit almost four years before trial. As the military judge
specifically noted, the record of trial does not explain the relationship between
appellant’s unit and the 641st RSG, or even why the 641st conducted an
investigation. By regulation, at the time of the allegations, CID was the Army
“sole” agency responsible for felony criminal investigations. The CCCSD/CID
investigation does not mention the administrative investigation.

        Additionally, we have no evidence in the record that would explain why the
trial counsel should have known that the 641st RSG conducted an administrative
investigation in 2010. The defense counsel asked the trial counsel to find an
administrative investigation, conducted by the 143rd ESC and a LTC Evans.
However, such an investigation did not exist. The trial counsel tracked down the
143rd ESC, found LTC Evans, and reported the results of that contact to appellant’s
defense counsel.

       Moreover, the defense counsel did not provide to the trial counsel any
explanation why they believed there had been an administrative investigation, at
least on the record. For example, the defense did not explain they knew there was


                                           12
SHORTS—ARMY 20140721

an investigation because appellant had made a sworn statement to a male lieutenant
colonel investigating officer. Had they provided additional information to the trial
counsel, the trial counsel may have been able to find the investigation. Nothing in
the record imputes knowledge or constructive knowledge of the investigation to the
trial counsel or suggests the trial counsel did not exercise due diligence. Although
the AR 15-6 IO interviewed PFC KS, the military judge found the trial counsel was
unaware of the investigation, which included the IO’s interview of PFC KS. Only
under a strict liability test (i.e., there was an investigation ergo the trial counsel
erred) could we find fault with the trial counsel.

       Alternatively, we also cannot find a Brady violation based on the defense
counsel’s access to information necessary to identify the allegedly exculpatory
evidence in the case. “Certainly, Brady does not require the government to conduct
discovery on behalf of the defendant.” United States v. Baker, 1 F.3d 596, 598 (7th
Cir. 1993); see also United States v. Flores, 540 F.2d 432, 437 (9th Cir. 1976)
(noting that government has no duty to fish through public records equally
accessible to defense to collate information). As our superior court has stated:

             The purpose of Brady is to assure that the accused will not
             be denied access to exculpatory evidence known to the
             government but unknown to him. Irrespective of whether
             the statement here was exculpatory evidence under Brady,
             a question we do not reach, there is no Brady violation
             when the accused or his counsel knows before trial about
             the allegedly exculpatory information and makes no effort
             to obtain its production.

United States v. Lucas, 5 M.J. 167 (C.M.A. 1978). In other words, when the trial
counsel ensures access of government records to the defense, the trial counsel has
complied with Brady. See UCMJ art. 46. “The State has no obligation to point the
defense toward potentially exculpatory evidence when that evidence is either in the
possession of the defendant or can be discovered by exercising due diligence.”
Rector v. Johnson, 120 F.3d 551, 558-59 (5th Cir. 1997); Pippin v. Dretke, 434 F.3d
782 (5th Cir. 2005); United States v. Payne, 63 F.3d 1200, 1208 (2nd Cir. 1995);
United States v. Bermudez, 526 F.2d 89, 100 (2d Cir. 1975).

                   C. Article 46, Uniform Code of Military Justice

       We briefly address the military judge’s finding that the government violated
Article 46. “Article 46, UCMJ, provides the trial counsel, defense counsel, and the
court-martial with the “equal opportunity to obtain witnesses and other evidence in
accordance with” the rules prescribed by the President. UCMJ art. 46, 10 U.S.C. §
846 (2012); Stellato, 74 M.J. at 481. Article 46, UCMJ, contains a grant of authority
to the President to prescribe rules of discovery that are “broader than in federal


                                          13
SHORTS—ARMY 20140721

civilian criminal proceedings, [and] is designed to eliminate pretrial gamesmanship,
reduce the amount of pretrial motions practice, and reduce the potential for surprise
and delay at trial.” United States v. Jackson, 59 M.J. 330, 333 (C.A.A.F. 2004)
(internal citations and quotation marks omitted). The President has sought to
provide equal access to evidence at trial by prescribing rules that provide for
discovery pretrial.

        One reading of the military judge’s ruling is that he found a violation of
Article 46 separate from his finding that the government violated its discovery
obligations under R.C.M. 701. Alternatively, the military judge’s ruling could be
interpreted as finding that because he found the trial counsel violated R.C.M. 701,
and R.C.M. 701 is a rule promulgated by the President pursuant to Article 46, the
trial counsel also violated Article 46, UCMJ. We believe the latter interpretation is
correct as we can find no right to discovery in Article 46, UMCJ, that has not been
incorporated into R.C.M. 701. Or, put differently, one cannot violate the disclosure
provisions of Article 46, UCMJ, without also violating R.C.M. 701. Accordingly,
we will focus our analysis on the military judge’s ruling that the trial counsel
violated R.C.M. 701.

                          D. Rule for Courts-Martial 701

        Disclosures in the military are governed by R.C.M. 701, “which sets forth
specific requirements with respect to ‘evidence favorable to the defense’ . . .”
United States v. Williams, 50 M.J. 436, 440 (C.A.A.F. 1999). In making a ruling
that the trial counsel had violated R.C.M. 701, the only provision referred to by the
trial judge was R.C.M. 701(a)(2), which provides that “[a]fter service of charges,
upon request of the defense, the Government shall permit the defense to inspect . . .
books, papers, documents . . . which are within the control of military authorities,
and which are material to the preparation of the defense.” As an initial matter, as
discussed above, to the extent that the military judge found the administrative
investigation not to be “material” when he found its absence to be harmless beyond a
reasonable doubt, such a finding would result in no violation of R.C.M. 701(a)(2)
(requiring materiality).

       However, again setting aside whether the administrative investigation was
material, it is not clear how the trial counsel did not comply with the rule. R.C.M
701(a)(2) addresses information in the control of military authorities, when
requested by the defense. Here, the defense requested an administrative
investigation conducted by a LTC Evans of the 143rd ESC. It is undisputed that no
such investigation existed. A request for information under R.C.M. 701(a)(2) must
be specific enough that the trial counsel, through the exercise of due diligence,
knows where to look (or where to provide the defense access). We cannot find the
trial counsel erred under R.C.M. 701(a)(2) when he: 1) failed to produce something
that was not requested; 2) had no knowledge whatsoever of its existence; and 3)


                                         14
SHORTS—ARMY 20140721

exercised due diligence in responding to the defense request he did receive. A trial
counsel does not violate R.C.M. 701(a)(2) when he looks for information in the
exact place the defense requested. In fact, in a colloquy with the military judge, the
defense counsel described his belief that the trial counsel’s efforts in locating the
administrative investigation had “settled” the matter.

        Moreover, it appears by not filing a motion to compel, appellant was satisfied
at the time the trial counsel exercised reasonable diligence and forfeited any
complaint he might have had with the trial counsel’s efforts to find the
administrative investigation. 8 See generally United States v. Avery, 52 M.J. 496,
498 (C.A.A.F. 2000) (an accused may affirmatively waive the government’s
nondisclosure in discovery). R.C.M. 906(b)(7) specifically provides for the defense
to file a motion to compel discovery, and R.C.M. 701(g)(3) specifically provides for
the military judge to grant relief. If the defense finds the trial counsel’s efforts in
meeting a defense request for evidence fall short, the remedy is to raise the matter to
the military judge so that it can be addressed. See Stellato, 74 M.J. at 482, n.8
(noting where the military judge issued orders “on at least six occasions compelling
discovery of witnesses or documents” before dismissing the case). Absent an
incorrect or misleading response, intentional ignorance of evidence favorable to the
defense, or gamesmanship by a trial counsel, if a defense counsel is satisfied by the
trial counsel’s due diligence in response to a discovery request, they cannot later
complain of the trial counsel’s efforts because it turns out their satisfaction was
misplaced. At least in circumstances where the defense has identified the evidence
requested, it is the defense counsel who is best positioned to know if the trial
counsel’s response to a discovery request satisfies the impetus of the request.

       Consider that appellant himself made a statement as part of the administrative
investigation. That statement contradicted both his statement to CCCSD, the DNA
evidence, and the defense theory of the case at trial. A pretrial motion to compel, if
successful, would have lead the trial counsel to find appellant’s statement; possibly
resulting in additional charges and at least potentially complicating the defense
strategy.

      In United States v. Roberts, 59 M.J. 323 (C.A.A.F. 2004), our superior court
addressed directly what happens when the trial counsel does not produce evidence
requested by the defense. Appellant cites Roberts for the proposition that the
government’s failure to produce defense requested material evidence must be tested




8
  This analysis does not apply to information that the government is required to
disclose without a defense request or circumstances where the defense counsel
justifiably relied on the accuracy of the trial counsel’s representations.


                                          15
SHORTS—ARMY 20140721

to determine whether it is harmless beyond a reasonable doubt. 9 However, Roberts
involves a case where: 1) the defense requested specific information; 2) the
information requested was material; 3) the government possessed the information but
told the defense that they refused to turn it over; 4) the defense filed a motion to
compel; and 5) the military judge denied the defense motion. The Court of Appeals
for the Armed Forces (CAAF) found the military judge erred. CAAF tested for
constitutional error, as there was a constitutional violation when the government
refused to turn over material and favorable evidence in possession of the
government. Here, by contrast, there was no pretrial litigation involving discovery
of the administrative investigation. 10 We do not interpret Roberts as standing for the
proposition that we test for constitutional error regardless of the trial counsel’s
reasonable efforts, regardless of whether the defense preserved the issue by filing a
motion to compel, and regardless of the specificity or materiality of the information
in question. We do not test for constitutional error for discovery violations unless
the violation was constitutional.

       Accordingly, we do not find a violation of R.C.M. 701. 11 Although we do not
find a discovery violation, we nonetheless address if the military judge abused his
discretion in denying a mistrial and address prejudice as it relates to the AR 15-6
investigation.

                             E. Materiality & Prejudice

       Mistrials are to be used only “under urgent circumstances, and for plain and
obvious reasons.” United States v. Trigueros, 69 M.J. 604, 608 (Army Ct. Crim.
App. 2010) (internal citations omitted). R.C.M. 915(a) vests a military judge with
the discretion to declare a mistrial when “manifestly necessary in the interest of
justice because of circumstances arising during the proceedings which cast
substantial doubt upon the fairness of the proceedings.” Accordingly, appellate
courts “will not reverse a military judge’s determination on a mistrial absent clear
evidence of an abuse of discretion.” United States v. Ashby, 68 M.J. 108, 122


9
 We note that by applying a “harmless beyond a reasonable doubt” standard, the
Roberts court seemed to apply a stricter standard than the U.S. Supreme Court has
held applicable for Brady violations.
10
  Under appellant’s view of Roberts, every non-disclosure of information requested
by the defense, regardless of materiality, would be tested for constitutional error on
appeal. This view discourages resolving matters early (and at the trial level).
11
  We note a specific article of the UCMJ provides an avenue of relief when new
evidence is discovered after trial. See UCMJ art. 73. Had the administrative
investigation been material or exculpatory, the defense would have an avenue for
relief even in circumstances where discovery did not reveal the item prior to trial.

                                          16
SHORTS—ARMY 20140721

(C.A.A.F. 2009) (internal citations omitted). “The abuse of discretion standard is a
strict one, calling for more than a mere difference of opinion.” Stellato, 74 M.J. at
480. Military judges abuse their discretion when their “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.” Id. (quoting United States
v. Miller, 66 M.J. 306, 307 (C.A.A.F. 2008)).

       Appellant asserts the military judge erred by not fully addressing the ways the
defense counsel could have used the AR 15-6 investigation. Namely, had the
defense known of the existence of the AR 15-6 investigation, they could have
developed additional investigative leads to include obtaining e-mails exchanged by
the command, refreshed the memories of witnesses, and had an opportunity to
interview the IO.

       At the hearing on the motion for mistrial, the defense counsel argued these
points to the military judge. The military judge was not required to explicitly
address every point argued by the defense and government counsel. Neither at trial
nor on appeal did the defense elaborate how they could have used the administrative
investigation. Thus, for example, while the defense claims they could have used the
administrative investigation to interview the IO, the defense makes no assertion that
the IO would have disclosed anything useful. Similarly, we have no description on
appeal as to what leads might have been followed and what information they would
have revealed.

       The administrative investigation was not material to the defense. Material
evidence must have made the “likelihood of a different result . . . great enough to
‘undermine[ ] confidence in the outcome of the trial.’” Behenna, 71 M.J. at 238
(quoting Smith v. Cain, 565 U.S. at 75 (alteration in original)). Even if the
administrative investigation was disclosed prior to trial, the investigation and IO’s
testimony would have had little probative value. The IO’s poorly informed
conclusion that there was no sexual assault was inadmissible. The IO investigated
the allegations for approximately seven days and obtained six statements. Without
speaking to a medical professional, the IO concluded that PFC KS had a drinking
problem and “display[ed] inappropriate behavior toward male soldiers,” and the
command should refer her to a program “to evaluate her social, emotional, and
family” issues. Although the appointment memorandum included the contact
information for CCCSD and CID, there is no indication that he contacted CCCSD
and CID before concluding that the case was “dropped” by civilian authorities. At
the time the IO completed the investigation, the CCCSD had not completed their
investigation. The administrative investigation did not include appellant’s statement
to CCCSD, his hand-written letter to PFC KS, or the DNA test results.




                                          17
SHORTS—ARMY 20140721

        The administrative investigation did not contain exculpatory evidence and had
limited impeachment value. There was little difference between the information in
the AR 15-6 investigation and that same information as it was presented at trial. 12
See Behenna, 71 M.J. at 238 (citing United States v. Gonzalez, 62 M.J. 303, 307
(C.A.A.F. 2006)) (“The overlapping nature of the evidence [presented at trial]
undercuts an argument that the failure to disclose pursuant to Brady was
prejudicial.”). The military judge, reviewing the totality of the record, found that
the “bulk of the evidence presented by the government of what occurred inside the
[appellant’s] hotel room was provided from evidence and sources other than PFC
[KS].” The appellant provided an audio taped statement to a CCCSD detective and
provided DNA evidence. The government admitted appellant’s “apology letter” to
PFC KS. Private First Class KS provided little testimony on what occurred in the
hotel room. Her testimony at trial was primarily from the morning after, when she
was awakened by appellant. Similarly, in the administrative investigation, PFC KS
stated she did not remember anything that happened after going to the bar or club.
The AR 15-6 investigation contained statements from several witnesses who testified
at trial. Among other findings, the military judge also found PFC KS was
impeached with prior inconsistent statements that she made during two Article 32,
UCMJ, investigations.

       The administrative investigation did not materially contradict evidence
presented at trial. See Agurs, 427 U.S. at 114 (no Brady violation when the alleged
Brady material did not contradict any evidence already admitted and was similar to
other evidence in the record). Even when considering all of the government’s
interrelated discovery obligations, the military judge found that the government’s
failure to locate and provide the defense the AR 15-6 investigation would not have
affected the outcome of the trial and was harmless beyond a reasonable doubt.

       Because we agree with the military judge that the government’s failure to
disclose the AR 15-6 investigation before trial pursuant to R.C.M. 701 was harmless
beyond a reasonable doubt, we also conclude the military judge did not abuse his
discretion in denying appellant’s motion for a mistrial under R.C.M. 915.




12
  The one exception was the statement by appellant. In his sworn statement to the
IO, appellant denied any sexual contact with the victim and gave a detailed version
of events where he depicted himself as innocent. This assertion completely
contradicted the statement he had just made as part of the CCCSD/CID investigation.
However, the absence of this statement in no way prejudiced appellant at trial.

                                         18
SHORTS—ARMY 20140721

                              CONCLUSION

    The findings of guilty and the sentence are AFFIRMED.

    Senior Judge MULLIGAN and Judge WOLFE concur.

                                  FOR THE COURT:
                                 FOR THE COURT:



                                 JOHN P. TAITT
                                  JOHNClerk
                                 Acting  P. TAITT
                                             of Court
                                  Acting Clerk of Court




                                    19
