

   
   
   
   U.S. v. Williams



United States, Appellee
v.
Clifford WILLIAMS, Jr., Private First
Class
U.S. Army, Appellant
 
No. 98-0258
Crim.App. No. 9501893
 
United States Court of Appeals for
the Armed Forces
Argued December 1, 1998
Decided June 25, 1999
EFFRON, J., delivered the opinion
of the Court, in which COX, C.J., and SULLIVAN, CRAWFORD, and GIERKE, JJ.,
joined.

Counsel
For Appellant: Captain Thomas Jay
Barrett (argued); Colonel John T. Phelps, II, Lieutenant
Colonel Michael L. Walters, and Major Leslie A. Nepper (on brief);
Lieutenant Colonel Adele H. Odegard.
For Appellee: Captain Arthur J.
Coulter (argued); Colonel Russell S. Estey (on brief);
Captain Chris A. Wendelbo.
Military Judge: Debra L. Boudreau
 


THIS OPINION IS
SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.

EFFRON, Judge, delivered the
opinion of the Court.
A general court-martial composed of
officer and enlisted members convicted appellant, contrary to his pleas,
of aggravated assault (2 specifications) and false swearing (1 specification),
in violation of Articles 128 and 134, Uniform Code of Military Justice,
10 USC §§ 928 and 934, respectively. The aggravated assault offenses
concerned two separate incidents, one on July 2, 1995, and the other on
September 1 of the same year. Appellant was sentenced to a dishonorable
discharge, confinement for 9 years, total forfeitures, and reduction to
the grade of E-1. The convening authority approved the sentence as adjudged.
The Court of Criminal Appeals set aside and dismissed Additional Charge
II and its specification (false swearing), but affirmed the findings of
guilty with respect to the two specifications of aggravated assault. The
court, reassessing the sentence, reduced the period of confinement to 8
years, and affirmed the balance of the sentence. 47 MJ 621, 626 (1997).
On appellant's petition, we granted
review of the following issue:

WHETHER APPELLANT WAS DENIED A FAIR
TRIAL DUE TO THE GOVERNMENT'S FAILURE TO DISCLOSE EXCULPATORY EVIDENCE
REQUESTED DURING DISCOVERY, SPECIFICALLY, A KNIFE IN THE GOVERNMENT'S POSSESSION
AT THE TIME OF TRIAL, OWNED BY A CRITICAL WITNESS AGAINST APPELLANT, WHERE
SUCH KNIFE WAS IN ALL PROBABILITY THE WEAPON USED IN AN AGGRAVATED ASSAULT
OF WHICH APPELLANT NOW STANDS CONVICTED, AND WHERE THE FACT THAT THE KNIFE
WAS SEIZED AND POSSESSED BY THE GOVERNMENT WAS KNOWN BY THE WITNESS'S COMPANY
COMMANDER WHO AUTHORIZED THE SEIZURE OF THE KNIFE.

We hold that the Government did not violate
its disclosure obligations for the reasons set forth in this opinion.

I. Background
The conviction at issue involves the
following incident, as described by the Court of Criminal Appeals:



On 2 July 1995, Private First Class
(PFC) F was driving an automobile with appellant as a passenger. The driver
of another car, with Mr. B as passenger, made derogatory comments to appellant.
Ultimately, the cars stopped and a fight ensued. Mr. B and appellant were
lying chest-to-chest on the ground fighting when Mr. B felt several blows
in the back. After the fight was over, Mr. B returned to his friend's car
and discovered he was bleeding significantly from stab wounds in the back.



47 MJ at 624.

A. Pretrial disclosure and discovery
Appellant was notified of the pertinent
charge against him on September 11, 1995. Defense counsel served a discovery
request on trial counsel on September 20, 1995. Appellant's brief on the
granted issue focuses on the defense request for "[a]ny and all investigations
or possible prosecutions pending which could be brought against any witness
the government intends to call during the trial."
Trial counsel responded on October
11, 1995. With respect to the defense request for investigations and prosecutions
that "could be brought" against witnesses, trial counsel provided potential
impeachment information concerning two of the Government's witnesses to
the September 1 incident, but did not identify any investigations or prosecutions
that "could be brought" against witnesses to the July 2 incident. With
respect to the July 2 incident, trial counsel's response to a separate
question concerning "known evidence tending to diminish credibility of
witnesses" provided potential impeachment information concerning two government
witnesses, the victim and his companion, Mr. G.
In response to an additional question
concerning "potential witnesses the government intends to call at trial,"
trial counsel provided the name, location, and phone number for 25 persons,
including the witness involved in the granted issue -- appellant's female
companion, PFC F.

B. Trial Proceedings
At trial, the primary evidence against
appellant was presented through the testimony of Mr. B, the victim; the
physician who treated Mr. B; and PFC F, appellant's companion.
The victim described the verbal altercation
and the subsequent physical confrontation with appellant, but stated that
he did not see a knife during the incident and that he was unaware of suffering
any wounds until after the confrontation. The physician testified that
the wounds were from multiple "penetrating blunt injuries, most probably
a stab wound." He added that four of the wounds were "very deep," that
the victim suffered two punctured lungs, and that the wounds were "potentially
life threatening."
Appellant's companion at the time of
the incident, PFC F, who appeared as a prosecution witness, testified that
appellant stabbed the victim with a knife in the fight following the verbal
altercation.
The central theme of the defense case
was to portray PFC F as the guilty party. The defense theory was that PFC
F -- not appellant -- had stabbed the victim. Through cross-examination
and in closing argument, defense counsel emphasized that: (1) the victim
did not see a knife during the confrontation with appellant; (2) the victim,
in his initial statements to law enforcement authorities, said that he
had been stabbed by a female; and (3) PFC F had a motive to lie in her
testimony against appellant at the trial to cover up her own guilt as the
person who stabbed the victim.
The members were not persuaded and
returned findings of guilty on the aggravated assault and false-swearing
charges related to the July 2 incident, in addition to findings of guilty
as to a separate aggravated-assault offense.

C. Information developed after the
trial
After trial, defense counsel learned
of an unrelated tire-slashing incident in which PFC F had been questioned
by military law enforcement authorities about a month after the July 2
incident. Defense counsel's post-trial submission to the convening authority
under RCM 1105 and 1106, Manual for Courts-Martial, United States (1998
ed.), includes military police records describing an incident in which
Specialist (SPC) C had reported on August 5 that all four tires on his
car had been damaged.1
In a statement provided to a military police investigator, SPC C had said
that he did not know who had damaged his tires and that he had not been
in any recent altercations. In response to a question as to whether anyone
was "angry" with him, he had mentioned PFC F and stated that "she always
carries a knife." The investigator subsequently had developed additional
leads, including information pointing to another person, FMW J, as an individual
who had threatened to cut the tires on SPC C's vehicle.
After questioning PFC F and FMW J,
the investigator had filed a report noting: (1) Approximately 2 weeks before
the tire-slashing incident, PFC F and SPC C "were involved in a verbal
confrontation"; (2) both PFC F and FMW J provided statements denying involvement
in the incident; and (3) a "knife was found in the room of PFC [F] and
was taken as evidence." The military police had closed the property-damage
investigation without listing anyone as a subject after obtaining advice
from the judge advocate who subsequently served as trial counsel in the
present case.

D. Defense counsel's response
In his post-trial submission in this
case, defense counsel asked the convening authority to set aside the findings
and sentence or at least grant sentence relief based in part upon trial
counsel's failure to provide this information in response to appellant's
discovery request. The convening authority did not grant the requested
relief.
After appellant raised this matter
before the Court of Criminal Appeals, the Government filed an affidavit
in which trial counsel stated that he "did not knowingly withhold any information
from the defense." Trial counsel noted in his affidavit that, when he learned
of PFC F's involvement and determined that she would be a witness at trial,
he "informed the defense counsel and conducted a check of local military
justice files for any derogatory information." According to trial counsel's
affidavit, the property-damage incident "occurred a month or more prior
to" his knowledge of PFC F's involvement in appellant's case, and he "did
not remember" the incident with the tires "or any other reference" to PFC
F at the time he found that she was going to be a witness in the present
proceeding.
In this appeal, appellant does not
challenge the veracity of trial counsels affidavit. Appellants contention
is that trial counsel failed to fulfill his obligation to exercise due
diligence in responding to the defense discovery request for "any and all
investigations or possible prosecutions which could be brought against
any witness the government intends to call during the trial." Final Brief
at 8. In appellant's view, this request obligated trial counsel to review
the records maintained by PFC F's unit. Counsel argues:



The real question is whether files
related to a witness, specifically, local disciplinary files, are police
files for military discovery practices.



The answer to this question, according
to appellant, is that "[t]he local files should be considered police files
for purposes of military discovery practices." Appellant takes the position
that



[t]here is no comparison in civilian
practice, so the issue is one of first impression unique to the military
justice system. A military commander holds the unique status as a law enforcement
official as well as that of commander.



With respect to the type of records at
issue in the present appeal, appellant notes that



[t]he unit files maintained by the
commander contain adverse disciplinary information, non-judicial punishment
records, and other information about the individual. These files are maintained
to record a soldier's disciplinary and criminal background, and are often
used to determine whether a soldier should be administratively eliminated,
or in more serious cases, tried by court-martial.



Final Brief at 9.
Applying these principles to the present
case, appellant contends that trial counsel failed to exercise due diligence
because



the unit commander actually issued
the search authorization to search and seize evidence in PFC [F's] room.
Had the trial counsel reviewed the file or asked the commander about any
criminal actions involving the government's main witness, PFC [F], he would
have discovered the knife. This was not a minor witness; PFC [F] was the
key government witness concerning the stabbing. If the Army court had made
a proper factual finding that the unit disciplinary files are the functional
equivalent of police files, then applying the law, the court would have
determined that the trial counsel did not use due diligence to discover
and disclose the existence of the knife.



Final Brief at 9-10.
In short, the issue raised by appellant
is whether the prosecution is obligated to review unit disciplinary files
when the pertinent defense request for information concerning investigations
or prosecutions of government witnesses does not specifically request a
review of such files.2

II. Discussion
A. Discovery and disclosure in the
military justice system
The military justice system has been
a leader with respect to open discovery and disclosure of exculpatory information
to the defense. See Moyer, Procedural Rights of the Military
Accused: Advantages Over A Civilian Defendant, 51 Mil. L. Rev. 1,
11-14 (1971). As noted in the Drafters' Analysis accompanying
RCM 701, "[m]ilitary discovery practice has been quite liberal," with "broader
discovery than is required in Federal [civilian] practice." Manual, supra
at A21-31; see United States v. Hart, 29 MJ 407, 410 (CMA
1990).
The foundation for military discovery
practice is Article 46, UCMJ, 10 USC § 846, in which Congress mandated
that "[t]he trial counsel, the defense counsel, and the court-martial shall
have equal opportunity to obtain witnesses and other evidence in accordance
with such regulations as the President may prescribe." See United
States v. Enloe, 15 USCMA 256, 258-59, 35 CMR 228, 230-31 (1965). The
President has implemented Article 46 by setting forth specific discovery
and disclosure responsibilities in RCM 701.3
We have interpreted RCM 701 and related rules to ensure compliance with
the equal-access-to-evidence mandate in Article 46. See United
States v. Eshalomi, 23 MJ 12 (CMA 1986). We also have interpreted these
rules to ensure that discovery and disclosure procedures in the military
justice system, which are designed to be broader than in civilian life,
provide the accused, at a minimum, with the disclosure and discovery rights
available in federal civilian proceedings. See, e.g., United
States v. Walbert, 14 USCMA 34, 33 CMR 246 (1963) (applying the "Jencks
Act," 18 USC §3500, to military justice discovery practices).
RCM 701(a)(6), which sets forth specific
requirements with respect to "[e]vidence favorable to the defense,"
states:



The trial counsel shall, as soon
as practicable, disclose to the defense the existence of evidence known
to the trial counsel which reasonably tends to:
(A) Negate the guilt of the accused
of an offense charged;
(B) Reduce the degree of guilt of the
accused of an offense charged; or
(C) Reduce the punishment.



The foregoing provision implements the
Supreme Court's decision in Brady v. Maryland, 373 U.S. 83, 87 (1963)
(due process violated where prosecution withholds information requested
by defense that is material to the issue of guilt or sentence). See
Manual, supra at A21-32. As a general matter, evidence that could
be used to impeach a government witness is subject to discovery. See
United States v. Bagley, 473 U.S. 667, 678 (1985); United States
v. Green, 37 MJ 88, 89 (CMA 1993); United States v. Eshalomi,
supra.
If information is withheld impermissibly,
the test for prejudicial error is whether there "is a 'reasonable probability'
of a different result" had the suppressed evidence been disclosed to the
defense. Kyles v. Whitley, 514 U.S. 419, 434 (1995) (noting
that the defense need not demonstrate by a preponderance of the evidence
"the suppressed evidence would have resulted" in acquittal).
Assuming that the information is of
a type that is discoverable under RCM 701 and Brady, the threshold
question is whether the information at issue was located within the parameters
of the files that the prosecution must review for exculpatory material.4
Although the core files that must be
reviewed are readily ascertained, the outer parameters must be ascertained
on a case-by-case basis. The core files that must be reviewed include the
prosecutions files in the case at bar. See United States v.
Simmons, 38 MJ 376 (CMA 1993). Beyond those materials, the prosecution
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,
supra at 437 (emphasis added). In Simmons, a case dealing
with records of another military agency involved in the investigation of
the accused, we held that the prosecution "must exercise due diligence"
in reviewing the files of other government entities to determine whether
such files contain discoverable information. 38 MJ at 381.
With respect to law enforcement files,
we observed in Simmons that the prosecution is not required "to
search for the proverbial needle in a haystack," but need only review prosecution
"files and those police files readily available" to the prosecution. 38
MJ at 382 n.4. To the extent that relevant files are known to be under
the control of another governmental entity, the prosecution must make that
fact known to the defense and engage in "good faith efforts" to obtain
the material. See Standard 11-2.1(a), Commentary, American Bar Association,
Criminal Justice Discovery Standards 14 n.9 (3d ed. 1995).
The scope of the due-diligence requirement
with respect to governmental files beyond the prosecutors own files generally
is limited to: (1) the files of law enforcement authorities that have participated
in the investigation of the subject matter of the charged offenses, see,
e.g., United States v. Bryan, 868 F.2d 1032 (9th
Cir.), cert. denied, 493 U.S. 858 (1989); (2) investigative files
in a related case maintained by an entity "closely aligned with the" prosecution,
see, e.g., United States v. Hankins, 872 F.Supp. 170,
172 (D.N.J.), aff'd, 61 F.3d 897 (3d Cir.), cert.
denied, 516 U.S. 968 (1995); and (3) other files, as designated in
a defense discovery request, that involved a specified type of information
within a specified entity, see, e.g., United States v.
Veksler, 62 F.3d 544, 550 (3d Cir. 1995).
In short, the parameters of the review
that must be undertaken outside the prosecutors own files will depend
in any particular case on the relationship of the other governmental entity
to the prosecution and the nature of the defense discovery request.

B. The specific issue addressed by
appellant
In the present case, appellant contends
that trial counsel failed to disclose information covered by the defense
discovery request for "any and all investigations or possible prosecutions
which could be brought against any witness the government intends to call
during the trial." Final Brief at 8.5
The granted issue as framed by appellant does not fault trial counsel for
failing to disclose the details of the investigation concerning the unrelated
property-damage investigation, but addresses only the failure to disclose
"a knife." Although appellant claims that a knife taken from PFC F during
a separate property-damage investigation "was in all probability the weapon
used in an aggravated assault of which appellant now stands convicted,"
appellant has failed to provide evidentiary support for this assertion.
Even though appellant learned of the knife shortly after trial, appellant
made no effort to have it examined or tested to determine its relevance
to the present case. Appellant did not ask that the knife (or a photograph)
be made a part of the record in the present case or move for a post-trial
session or a new trial based upon newly discovered evidence. At this late
date, there is still no evidence before us to demonstrate that the knife
was even capable of causing the deep wounds inflicted upon the victim.6
If we were to assume, however, that
the defense discovery request should be interpreted to include the documents
concerning the unrelated property-damage investigation, it is not clear
from the defense brief why material held by the unit commander should fall
within the scope of trial counsel's due-diligence review under the circumstances
of the present case. The defense brief expressly describes the military
police "files that listed PFC [F] as a witness" as "unrelated" files that
"trial counsel had no duty to review." Final Brief at 8-9. If trial counsel
had no duty to review local military police files in an unrelated case,
the defense proposition -- that unit-commander files should be treated
as police files -- provides no basis for finding error in the present case,
where the unit commander's files at issue also concerned the same unrelated
case.

C. The policy question raised by appellant
Under appellants proposal, the prosecution
would be required to review the records of the unit to which a government
witness is assigned at the time of discovery, regardless whether the defense
specifies unit disciplinary information in the discovery request. Although
appellant asserts that this requirement should apply only to the unit to
which a witness is assigned at the time of discovery, such a limitation
is not realistic. Were we to extend the scope of trial counsel's due-diligence
responsibilities to include unit files concerning unrelated cases, it would
be difficult to find a principled basis for not extending it beyond a witness
current unit commander. Mobility is one of the primary characteristics
of modern military life. Servicemembers are subject to frequent transfers
for training and operational purposes. Although the information in the
present case apparently was possessed by the witness commander at the
time of the discovery request, the information might well have been in
the hands of a previous commander. Likewise, had the witness been transferred
after the discovery request was submitted, there is a reasonable likelihood
that such information would be in the hands of a later commander. Moreover,
it is also reasonably likely that disciplinary information about a servicemember
would be in the possession of other military entities, including higher
headquarters or centralized national records centers.
The resolution of this matter requires
us to determine how best to fulfill the mandate of Article 46 that the
defense counsel has an "equal opportunity to obtain witnesses and other
evidence." With respect to the files of a prosecutor or the files of an
investigative agency acting on the Government's behalf in the case at bar,
it is reasonable to place the burden on trial counsel to review those matters
without requiring a great deal of specificity in the defense discovery
request because these are the types of files that are subject to the direct
supervision or oversight by the prosecution. The Supreme Court emphasized
in Kyles v. Whitley, supra, that the 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." 514 U.S. at 437 (emphasis
added). As noted by the court below, "a prosecutor's duty is not to win
the case, but to ensure that justice is done." 47 MJ at 625.
The prosecutor's obligation under Article
46 is to remove obstacles to defense access to information and to provide
such other assistance as may be needed to ensure that the defense has an
equal opportunity to obtain evidence. These obligations, however, do not
relieve the defense of its responsibility to specify the scope of its discovery
request.
With respect to files not related to
the investigation of the matter that is the subject of the prosecution,
there is no readily identifiable standard as to how extensive a review
must be conducted by the prosecutor in the preparation of a case. The defense
need for such files is likely to vary significantly from case to case,
and the defense is likely to be in the best position to know what matters
outside the investigative files may be of significance. The Article 46
interest in equal opportunity of the defense to obtain such information
can be protected adequately be requiring the defense to provide a reasonable
degree of specificity as to the entities, the types of records, and the
types of information that are the subject of the request.
In summary, neither Article 46 nor
the Brady line of cases requires the prosecution to review records
that are not directly related to the investigation of the matter that is
the subject of the prosecution, absent a specific defense request
identifying the entity, the type of records, and type of information.7

III. Decision
The decision of the United States Army
Court of Criminal Appeals is affirmed.
FOOTNOTES:
1 The record
does not indicate how or when the defense learned of the property-damage
incident, showing only that "it was not discovered by the defense until
after the verdict had already been entered." The granted issue, as framed
by appellant, suggests that the pertinent information was held by PFC F's
unit commander.
2
Appellant has not challenged trial counsels statement that he did not
remember the earlier property-damage incident during the prosecution of
the present case, and appellant does not assert that trial counsels failure
to remember the earlier incident constituted legal error. Appellant's position
in the present appeal, which does not depend upon trial counsels relationship
with the prior incident, is that trial counsel should not have limited
his review to local police files and that due diligence required a review
of the records of PFC Fs unit.
3
Trial counsel, for example, is obligated to disclose numerous matters without
a defense request, including papers accompanying the charges; sworn or
signed statements in the possession of trial counsel; the names and addresses
of prosecution witnesses; and prior convictions of the accused that may
be offered on the merits. RCM 701(a)(1), (3), and (4). Additional information
regarding documents, tangible objects, and reports, and specified sentencing
information must be disclosed upon request. RCM 701(a)(2) and (5).
There is a continuing duty to disclose matter that is subject to discovery,
even after a party responds to a discovery request, if "a party discovers
additional evidence or material previously requested or required to be
produced." RCM 701(d). There are additional rules concerning disclosure
of particular types of evidence. E.g., Mil.R.Evid. 301(c)(2), Manual,
supra (immunity or leniency promised to a witness); Mil.R.Evid.
304(d)(1) (statements made by the accused); Mil.R.Evid. 311(d)(1)
(evidence seized from the accused); Mil.R.Evid. 321(c)(1) (evidence of
pretrial lineups of the accused). Moreover, in a general court-martial,
such as the present case, the accused has the opportunity to use the Article
32, UCMJ, 10 USC § 832, pretrial investigation to obtain
evidence, with extensive opportunity to confront and cross-examine witnesses
prior to trial.
4
The defense, in its discovery request, asked for "[a]ny and all evidence
in the possession of the government which may be exculpatory or otherwise
favorable to the accused." The Government responded by noting that a test
on a knife found in appellant's room "met with negative results." In the
present appeal, the issue is not whether the information about the unrelated
property-damage investigation was exculpatory, but whether trial counsel
was obligated to review the unit commander's files in which the information
was located.
5
The defense has not cited or relied upon a separate defense discovery request
for "[a]ccess to all personnel and medical records of all potential witnesses
to include the official military personnel file, officer record brief,
201 file, and unit ("SMIF") file of any potential witness . . . ." The
trial counsel responded, "These records are available to defense." Appellant
has not asserted that the government response to this request was deficient
as a matter of law or that the defense was otherwise inhibited in obtaining
personnel information pertaining to PFC F.
6
The test for relevance is whether evidence tends "to make the existence
of any fact more or less probable tha[n] it would be without the evidence."
Mil.R.Evid. 401; United States v. Carter, 47 MJ 395, 396 (1998).
The burden of persuasion--and, correspondingly, the "risk of nonpersuasion"--in
"establishing relevance ... and helpfulness falls on the proponent" of
the contested evidence. United States v. Berg, 44 MJ 79, 80 (1996).
Appellant failed to carry his burden.
7
The issue of when the prosecution properly may ask for a more particularized
showing of relevance is a separate matter that we need not address in this
opinion.

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