                        UNITED STATES, Appellee

                                     v.

                   Carl L. KEY, Airman First Class
                      U.S. Air Force, Appellant

                               No. 04-0216
                          Crim. App. No. 34965

       United States Court of Appeals for the Armed Forces

                         Argued April 30, 2007

                         Decided June 22, 2007

STUCKY, J., delivered the opinion of the Court, in which BAKER
and ERDMANN, JJ., joined. RYAN, J., filed a separate opinion
concurring in part and dissenting in part and in the result, in
which EFFRON, C.J., joined.


                                  Counsel


For Appellant: Captain Griffin S. Dunham (argued); Major John
N. Page III (on brief); Lieutenant Colonel Mark R. Strickland.


For Appellee: Captain Jefferson E. McBride (argued); Colonel
Gerald R. Bruce and Major Matthew S. Ward (on brief).

Military Judges:    Rodger A. Drew Jr. and Jennifer A. Whittier
(DuBay hearing)


         THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION
United States v. Key, No. 04-0216/AF


     Judge STUCKY delivered the opinion of the Court.

     Officer and enlisted members convicted Appellant at a

general court-martial of the wrongful use of ecstasy, in

violation of Article 112a, Uniform Code of Military Justice

(UCMJ), 10 U.S.C. § 912a (2000), and sentenced him to a bad-

conduct discharge and reduction to the lowest enlisted grade.

Subsequently, Appellant’s trial defense counsel, Major Martin,

learned that the Air Force Office of Special Investigations

(AFOSI) paid an informant, Staff Sergeant (SSgt) L, after she

testified in four courts-martial, including Appellant’s.

Appellant requested post-trial discovery.      On March 10, 2005,

this Court returned Appellant’s case to the Judge Advocate

General of the Air Force for a post-trial hearing to determine

whether Appellant was entitled to a new trial.      United States v.

Key, 61 M.J. 52 (C.A.A.F. 2005).       After the post-trial hearing,

the United States Air Force Court of Criminal Appeals affirmed

the findings and sentence.   United States v. Key, No. ACM 34965

(f rev), 2006 CCA LEXIS 182, 2006 WL 2284811 (A.F. Ct. Crim.

App. Jul. 12, 2006) (unpublished).      We granted review to

consider whether the military judge erred at the post-trial

hearing by preventing Appellant’s trial defense counsel from

testifying.   We hold that the military judge erred, but the

error was not prejudicial.   Article 59(a), UCMJ, 10 U.S.C. §

859(a) (2000).


                                   2
United States v. Key, No. 04-0216/AF


                                   I.

     In April 2001, as part of a unit drug inspection, Appellant

provided a urine specimen for testing.   Testing of the specimen

confirmed Appellant had ingested 3,4-methylenedioxymethamphetamine,

a Schedule I controlled substance commonly known as ecstasy.

Appellant was charged with the wrongful use of that controlled

substance.   Article 112a, UCMJ.

     From his opening statement and continuing throughout the

trial, Major Martin challenged the reliability of the specimen

collection and drug testing process, and raised the defense of

innocent ingestion.   Appellant’s girlfriend eventually testified

that, after consuming a large quantity of whiskey, Appellant

became ill and complained of a headache.   She said that she

obtained what she thought was aspirin from a bar patron and gave

it to Appellant.

     To counter the unknowing ingestion defense, the Government

called Staff Sergeant (SSgt) L, who was working as an undercover

informant for the AFOSI.    She was one of three witnesses who

testified to Appellant’s nervous and agitated demeanor at the

specimen collection site.   SSgt L also testified that,

approximately three weeks before the unit was tested for drugs,

she had a telephone conversation with Appellant in which he

admitted having ecstasy and invited her to meet him at another

airman’s apartment to partake of the drug.   She decided not to


                                   3
United States v. Key, No. 04-0216/AF


meet with Appellant after her AFOSI handler told her they would

not be able to support her at that time.

     Major Martin vigorously cross-examined SSgt L, including

asking about any compensation she received from AFOSI:

          Q:   Did [AF]OSI ever just give you money so that
     you could go out and club hop?

          A:   Well, when you say give me money, you sound
     like as if they were paying me. They gave me money
     because I had to pay a babysitter, and also if I had
     to buy drinks for whoever was around, yes, I did get
     money for those things.

             Q:   Okay, on more than one occasion?

             A:   Yes, to assist with the investigation.

Major Martin also submitted documents indicating that AFOSI paid

SSgt L a total of $206.25.    Appellant was sentenced on October

24, 2001.    On April 2, 2002, well after SSgt L had completed her

testimony in four courts-martial (including this one), AFOSI

paid her $250.

     Several months after the trial ended, Major Martin, who was

then assigned as an attorney in a base legal office, learned

that the AFOSI had paid SSgt L money, in addition to

reimbursement expenses, for her work as a confidential

informant.    On direct appeal to the Air Force court, Appellant

asked for post-trial discovery “to determine if SSgt [L] was

paid for her testimony at . . . trial.”    After analyzing the

issue under the standards we established in United States v.



                                   4
United States v. Key, No. 04-0216/AF


Campbell, 57 M.J. 134, 138 (C.A.A.F. 2002), the court denied the

request for post-trial discovery and affirmed the findings and

sentence.   United States v. Key, No. ACM 34965, 2003 CCA LEXIS

260, 2003 WL 22495833 (A.F. Ct. Crim. App. Oct. 29, 2003)

(unpublished).   Appellant appealed.

     On November 2, 2004, this Court ordered the Government to

produce vouchers of all payments made by AFOSI to SSgt L,

pertinent regulations governing such payments, and affidavits

from the responsible AFOSI agent and SSgt L.   United States v.

Key, 60 M.J. 387, 387-88 (C.A.A.F. 2004).   SSgt L’s December 16,

2004, affidavit reads, in pertinent part, as follows:

     2.   At the beginning of the cases [AF]OSI asked me if
     I wanted to work for them and that they would pay me
     to do so. I said no. Somehow, getting money for
     doing the right thing didn’t feel right; it made me
     uncomfortable. As the case went along, I was given
     money on at least 3 different occasions. The first
     time I was given cash was to buy drinks at the bar and
     to get into the club; I ended up using the money for
     my first drug buy that was then immediately turned
     into the OSI. The second time I was given money to
     buy drugs, it was $80. The last time I was given
     money, it was to buy a large amount of drugs. That
     was when everyone was arrested.

     3.    During the time that I was working for [AF]OSI, I
     was informed by [AF]OSI, that I could get reimbursed
     for baby-sitting fees; I did not file for anything.
     It felt very uncomfortable to do so. When everyone
     was punished, I did receive a surprise from [AF]OSI,
     they gave me some money, and I signed for it. I
     wasn’t sure why, I was told it was for a job well
     done.




                                 5
United States v. Key, No. 04-0216/AF


     On March 10, 2005, this Court concluded that “it appears

that post-trial discovery would have produced information

relevant to whether Appellant should be granted a new trial and

that additional discovery is necessary.”       United States v. Key,

61 M.J. 52, 52 (C.A.A.F. 2005).    We returned the case to the Air

Force Judge Advocate General for a post-trial hearing to

determine whether Appellant was entitled to a new trial.       Id.

     SSgt L testified at the post-trial hearing that an AFOSI

agent, who had since retired, offered her money when she started

to work for AFOSI.   She reiterated her trial testimony that,

during the investigation, she received small sums of money for

gas, babysitting fees, and to pay for drinks.       She asserted

that, during a pretrial interview, she had advised the trial

defense counsel about the monies she had received from the

AFOSI.   She claimed she had not mentioned the offer of a

monetary reward because she had turned it down, did not think it

was relevant at the time, and the defense counsel had asked

about monetary payments, not offers.       One of the two AFOSI

agents who initially met with SSgt L testified that they did not

offer SSgt L any reward money at the initial meeting.

     At the hearing, Appellant’s counsel tried to call Major

Martin to the stand to testify.1       When questioned by the military


1
  Appellant was represented by different counsel at the post-
trial hearing.

                                   6
United States v. Key, No. 04-0216/AF


judge who presided over the post-trial hearing as to the

relevance of Major Martin’s testimony, Appellant’s counsel

claimed it was relevant because the purpose of the hearing was

to determine SSgt L’s credibility.   The military judge refused

to permit Major Martin to testify.

     Before the Air Force court, Appellant claimed the military

judge erred at the hearing and moved to submit an affidavit from

Major Martin specifying what his testimony would have been had

he been granted an opportunity to present it.   Major Martin’s

affidavit reads, in pertinent part, as follows:

     While I cannot recall exactly how I phrased the
     questions, or if I used the term “offer” or “offered”
     in the phrasing, I am certain that I thoroughly
     covered the issue of compensation with [SSgt L] during
     the interview. Although I can not recall the wording
     of the questions I posed on this issue, my questions
     were designed such that responsive answers would have
     elicited from [SSgt L] that the [AF]OSI had offered to
     pay her. I was very sensitive to determining whether
     and to what extent the [AF]OSI might be compensating
     [SSgt L] after considering the Government Counsel’s
     ambiguous verbal answer on the same point.

     The Air Force court granted Appellant’s motion to admit the

affidavit.   Upon considering the affidavit, the Air Force court

viewed the exclusion of Major Martin’s testimony as moot.

     The Air Force court then applied Rule for Courts-Martial

(R.C.M.) 1210(f) to determine whether Appellant was entitled to

a new trial.   The court concluded that SSgt L was aware of the

possibility of receiving an incentive payment prior to engaging



                                 7
United States v. Key, No. 04-0216/AF


in informant activities and before testifying at Appellant’s

trial, that Major Martin exercised due diligence in attempting

to seek this information, and that the information was relevant

to Appellant’s defense at trial to impeach SSgt L by

establishing a possible financial motive for her to testify

against Appellant.   Nevertheless, the court held that:

          In view of the overall solid evidence concerning
     the urinalysis testing, the demeanor evidence from
     witnesses other than SSgt L, and the relatively
     minimal impact the newly discovered evidence would
     have had in impeaching SSgt L’s testimony concerning
     the telephone conversations involving the appellant,
     the newly discovered evidence fails to meet the
     criteria set forth in R.C.M. 1210(f) and the precedent
     of our superior court. We therefore conclude that it
     is not probable, in light of all other pertinent
     evidence, that the newly discovered evidence would
     have produced a substantially more favorable result
     for the appellant. The appellant is not entitled to a
     new trial.

  Key, 2006 CCA LEXIS 182, at *15-*16, 2006 WL 2284811, at *5.

                                II.

     The granted issue is whether the military judge erred by

not allowing Major Martin to testify at the post-trial hearing.

Although the Air Force court did not explicitly so hold, it

granted Appellant’s motion to submit Major Martin’s affidavit

and considered it in determining whether Appellant was entitled

to a new trial.




                                 8
United States v. Key, No. 04-0216/AF


                               III.

     The post-trial hearing was ordered so that the military

judge could determine whether Appellant was entitled to a new

trial.   In this case, that necessarily included a determination

as to whether SSgt L withheld relevant information from the

defense that affected the outcome of Appellant’s trial.       The

defense claimed that SSgt L purposely withheld information that

AFOSI paid her for her testimony.     In her findings of fact, the

military judge found that the testimony as to when SSgt L was

first offered a reward was inconsistent, but basically

irrelevant because SSgt L did not expect payment and was not

paid until after all four trials:     “Based on the lack of

relevance of the proffered purpose for Maj Martin’s testimony to

the factual issues at the hearing, the likelihood of confusion,

and the concerns that would be raised by the trial defense

counsel testifying, the court denied the defense request to call

Maj Martin.”

     Major Martin’s testimony as to what transpired during that

interview was relevant to a determination of SSgt L’s

credibility and whether she purposely withheld impeachment

evidence from the defense.   The military judge failed to explain

why, or to whom, such testimony would be confusing -- that

testimony was supposed to assist the military judge and the

appellate courts in determining whether Appellant was entitled


                                 9
United States v. Key, No. 04-0216/AF


to a new trial.    The military judge’s apparent concern for the

attorney-client privilege was misplaced.     She failed to explain

how Major Martin’s pretrial interview of SSgt L involved matters

protected by the attorney-client privilege and, to the limited

extent necessary for resolution of this issue, whether Appellant

would have waived the privilege, if necessary.

        We hold that the military judge erred by refusing to permit

Major Martin to testify at the post-trial hearing.     By

considering only SSgt L’s testimony concerning the pretrial

interview, the military judge unduly restricted the ambit of the

post-trial hearing.

                                  IV.

        Having found error, we must determine whether the error was

prejudicial.    Article 59(a), UCMJ.    Accepting Major Martin’s

affidavit at face value does not significantly impeach SSgt L’s

testimony.    It is not at all clear that Major Martin would have

testified that he specifically asked SSgt L if the AFOSI had

offered to pay her, rather than whether or not she was being

paid.    The only evidence that SSgt L was offered a financial

incentive before she started to work as an informant comes from

SSgt L’s own testimony and affidavit.     She testified that she

turned the offer down and was surprised when AFOSI presented her

with an award after she had testified in four trials.       There is

no evidence to contradict her testimony on this matter.      That


                                  10
United States v. Key, No. 04-0216/AF


she had knowledge, without more, of the eventual possibility of

being paid for her work as an informant had limited impeachment

value, especially when it is not clear from his affidavit that

Major Martin’s questions were specific enough to elicit that she

had.

       In light of all the other pertinent evidence, (including

the testimony of other witnesses as to Appellant’s demeanor at

the collection site and the urinalysis evidence itself), we

conclude the military judge’s error in refusing to permit Major

Martin to testify at the post-trial hearing was harmless -- it

did not substantially influence the outcome of the case.      See

United States v. Clark, 62 M.J. 195, 200 (C.A.A.F. 2005).

                                 V.

       The decision of the United States Air Force Court of

Criminal Appeals is affirmed.




                                 11
United States v. Key, 04-0216/AF


RYAN, Judge, with whom EFFRON, Chief Judge, joins (concurring in

part, and dissenting in part and in the result):

     This Court ordered a post-trial hearing in accordance with

United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), to

develop a factual record for use in determining whether

Appellant was entitled to a new trial based on newly discovered

evidence.   United States v. Key, 61 M.J. 52 (C.A.A.F. 2005).

Appellant claimed that the evidence would show that a key

Government witness, Staff Sergeant (SSgt) L, received post-trial

incentive payments for her duties as an informant.   The DuBay

hearing judge acknowledged in her findings of fact that the

purpose of the hearing was “to determine the circumstances of a

post-trial award/incentive payment to determine whether the

appellant should receive a new trial.”

     To succeed on a motion for new trial, a defendant must

show, inter alia, that there is new evidence that was neither

known, nor capable of being known, by the defense at the time of

trial.   Rule for Courts-Martial (R.C.M.) 1210(f)(2)(B).

Appellant claims that he could not have known about the

incentive payments because SSgt L purposely withheld information

from trial defense counsel.    Because of this allegation, the

testimony of both trial defense counsel and SSgt L should have

been pivotal to the hearing.   Yet the DuBay hearing judge

neither permitted nor considered trial defense counsel’s
United States v. Key, 04-0216/AF


testimony, which would have contradicted the testimony of SSgt

L.

     I concur in that part of the majority opinion that

concludes the DuBay hearing judge erred by refusing to permit

Major (Maj) Martin, the trial defense counsel, to testify at the

post-trial hearing.    But I respectfully dissent from the

majority’s resolution of the case because I would remand the

case with orders for a new DuBay hearing.    Appellant received

neither the DuBay hearing that this Court ordered, nor full and

proper consideration of whether he is entitled to a new trial

under the standard set forth in R.C.M. 1210(f).

     The DuBay hearing findings of fact are problematic because

they rest upon the unquestioned credibility and unrebutted

testimony of SSgt L.   The lower court, in turn, erred by:   (1)

resolving factual conflicts between SSgt L’s testimony and

affidavit and the affidavit that it accepted from Maj Martin;

and (2) relying on the DuBay hearing judge’s findings of fact

regarding SSgt L’s credibility.    See United States v. Ginn, 47

M.J. 236, 243 (C.A.A.F. 1997) (“Article 66(c) does not authorize

a Court of Criminal Appeals to decide disputed questions of fact

pertaining to a post-trial claim, solely or in part on the basis

of conflicting affidavits submitted by the parties.”); see also

United States v. Murphy, 50 M.J. 4, 11 (C.A.A.F. 1998)

(rejecting a judgment of credibility based on “the questionable


                                   2
United States v. Key, 04-0216/AF


practice of resolving pure disputes of material fact by mere

affidavits”).    In light of these procedural errors, in my view

the lower court abused its discretion in reaching the ultimate

issue of whether Appellant was entitled to a new trial.

     Additionally, it is not at all clear to me that the newly

discovered evidence could not “probably produce a substantially

more favorable result for the accused.”   R.C.M. 1210(f)(2)(C).

While the lower court marshals other evidence of Appellant’s

guilt, much of it revolves around the urinalysis.   But, in this

case, the issue was not whether metabolites could be found in

Appellant’s urine, but how they got there.   Appellant’s defense

was innocent ingestion, and evidence in support of that defense

was presented.   The significance of SSgt L’s rebuttal testimony

about Appellant’s alleged phone call regarding drugs, and

putative phone message about drugs, cannot be discounted.    Nor

can one separate any motive SSgt L might have had to lie from

its impact on her credibility.

     Operating on incomplete information, the DuBay hearing

judge made specific findings that SSgt L was credible and that

any inconsistencies in her testimony, or failures to be

forthcoming to the defense, were not motivated by calumny.    The

lower court relied on SSgt L’s affidavit and her DuBay

testimony.   In doing so, the lower court further assumed that




                                   3
United States v. Key, 04-0216/AF


the DuBay hearing judge’s finding of fact regarding the genesis

of any inconsistencies in SSgt L’s testimony was correct.

     On this record, I cannot subscribe to the lower court’s

assertion that the probative value of evidence “is diminished by

virtue of [SSgt L’s] likely testimony that she refused the

initial offer of an incentive payment and that she was ‘shocked’

when the agents provided her additional cash at the termination

meeting.”    United States v. Key, No. ACM 34965, 2006 CCA LEXIS

182, at *15, 2006 WL 2284811, at *5 (A.F. Ct. Crim. App. July

12, 2006) (unpublished).   Appellant asserts that SSgt L did not

forthrightly respond to trial defense counsel’s questions

regarding incentive payments.   The probative value of this

information is diminished only if one accepts that SSgt L is

credible.    That there is an incomplete factual record on that

very issue is obvious.

     Given this vacuum, I am not prepared to say that evidence

that an informant was offered payment before trial, purportedly

rejected it, and then, paradoxically, accepted it after trial,

could not cast doubt upon her credibility, let alone her entire

testimony.   The members, if aware of SSgt L’s failure to

disclose the possibility of incentive payments could have

concluded that:   (1) she had a financial motive to testify

against Appellant in return for payments after his successful

conviction; and (2) she misled the defense counsel and could


                                   4
United States v. Key, 04-0216/AF


still be misleading them.   See, e.g., Banks v. Dretke, 540 U.S.

668, 698-703 (2004) (concluding that suppression of evidence of

the status of a prosecution witness as a paid informant is

relevant evidence that may require a new trial); Benn v.

Lambert, 283 F.3d 1040, 1054 (9th Cir. 2002) (stating that

information demonstrating that a government informant was

untrustworthy and deceptive for self-benefiting purpose severely

undermines the witness’ credibility and must be disclosed);

United States v. Levenite, 277 F.3d 454, 460-62 (4th Cir. 2002)

(reaffirming that paid informants are subjected to a higher

degree of scrutiny as to both weight and credibility, and if the

payment is contingent upon testimony at trial, it must be

subjected to an even higher degree of scrutiny); see also United

States v. Cobia, 53 M.J. 305, 310-11 (C.A.A.F. 2000) (discussing

impeachment by contradiction).

     In my view, Appellant is entitled to a new DuBay hearing

that addresses the circumstances of a post-trial award/incentive

payment, including evidence on the credibility of SSgt L, as the

factual predicate to a determination whether Appellant should

receive a new trial.




                                   5
