United States v. Behenna , 2012 CAAF LEXIS 736 ( 2012 )


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  •                          UNITED STATES, Appellee
    v.
    Michael C. BEHENNA, First Lieutenant
    U.S. Army, Appellant
    No. 12-0030
    Crim. App. No. 20090234
    United States Court of Appeals for the Armed Forces
    Argued April 23, 2012
    Decided July 5, 2012
    STUCKY, J., delivered the opinion of the Court, in which BAKER,
    C.J., and RYAN, J., joined. EFFRON, S.J., filed a dissenting
    opinion, in which ERDMANN, J., joined.
    Counsel
    For Appellant: Jack B. Zimmermann, Esq. (argued); Captain E.
    Patrick Gilman, Kyle R. Sampson, Esq., Megan E. Smith, Esq., and
    Terri R. Zimmermann, Esq. (on brief).
    For Appellee: Captain Stephen E. Latino, (argued); Major Amber
    J. Roach (on brief); Major Ellen S. Jennings.
    Amicus Curiae for Appellant: Philip D. Cave, Esq. (supervising
    attorney), Colleen Campbell (law student), Alexandra Stupple
    (law student), and Ryan Williams (law student) – for National
    Institute of Military Justice.
    Amicus Curiae for Appellant: Donald G. Rehkopf Jr., Esq. – for
    National Association of Criminal Defense Lawyers.
    Military Judge:    Theodore E. Dixon
    THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
    United States v. Behenna, No. 12-0030/AR
    Judge STUCKY delivered the opinion of the Court.
    We granted review in this case to determine whether the
    military judge provided complete and accurate self-defense
    instructions, and whether the Government failed to disclose
    favorable and material information to Appellant’s prejudice.    We
    hold that, although the military judge’s instruction on
    escalation was erroneous, it was harmless beyond a reasonable
    doubt because escalation was not in issue.    Moreover, contrary
    to Appellant’s arguments, withdrawal also was not in issue.    We
    further hold that, even assuming that the information Appellant
    asserts the Government failed to disclose was favorable, it was
    immaterial in regard to findings and sentencing because the
    evidence substantially overlapped with other evidence presented
    by other defense experts, Appellant was not entitled to an
    escalation instruction, and the members clearly rejected the
    Government’s theory of premeditated murder.   We, therefore,
    affirm the judgment of the United States Army Court of Criminal
    Appeals (CCA).
    I.
    A.
    Contrary to Appellant’s pleas, a general court-martial with
    members found Appellant guilty of unpremeditated murder and
    assault in violation of Articles 118 and 128, Uniform Code of
    Military Justice (UCMJ), 
    10 U.S.C. §§ 918
    , 928 (2006).
    2
    United States v. Behenna, No. 12-0030/AR
    Appellant was sentenced to a dismissal, twenty-five years of
    confinement, and forfeiture of all pay and allowances.     The
    convening authority reduced the amount of confinement to twenty
    years but otherwise approved the sentence as adjudged.     The CCA
    affirmed the findings of guilty and the sentence as approved by
    the convening authority.    United States v. Behenna, 
    70 M.J. 521
    ,
    534 (A. Ct. Crim. App. 2011).
    B.
    In September 2007, Appellant was assigned to Bayji, Iraq,
    an area north of Baghdad.   His platoon’s area of operation was
    Albu Toma.   During his deployment, Appellant learned of
    information linking Ali Mansur, the deceased in this case, to a
    group in Albu Toma, who were believed to be responsible for
    attacks on Coalition Forces.    Appellant also learned from human
    intelligence reports that Mansur would stand on the police
    station west of Albu Toma overlooking Salaam Village and inform
    insurgents of Coalition Forces’ activities.
    Before April 21, 2008, Appellant had given out his cell
    phone number to locals so that they could contact him with
    issues.   Someone named Ali called Appellant and warned him to
    avoid Albu Toma or else harm would come to his platoon.
    Appellant also learned from a source that Mansur had spoken of
    an improvised explosive device being planted along a roadway
    used by Appellant’s platoon.
    3
    United States v. Behenna, No. 12-0030/AR
    On April 21, Appellant’s platoon was patrolling Salaam
    Village and detained two individuals.   On the return trip to
    base, an explosive device was detonated near the vehicles.
    Appellant saw several individuals in his platoon injured or
    killed by the blast.   A draft intelligence information report
    issued on April 27 stated that Mansur was likely a member of the
    group that was operating out of Salaam Village.   After the
    report was issued, Mansur was apprehended for interrogation, but
    shortly after questioning was finished, Mansur was to be
    returned to Albu Toma.
    Appellant read the report of Mansur’s interrogation and
    only found information regarding Mansur’s job and background and
    his relation to an RPK.1   Appellant asked that Mansur be
    reinterrogated based on his belief that Mansur had information
    on insurgents operating out of Salaam Village, who Appellant
    believed were responsible for the April 21 attack.   Appellant
    did not participate in the second interrogation, and although
    Mansur provided information willingly, the interrogator told
    Appellant that Mansur was being deceptive.
    1
    This acronym was not defined in the record, but it likely
    refers to a Russian light machine gun, Ruchnoy (also spelled
    “Ruchnoi”) Pulemyot Kalashnikova. See J. R. Potts, RPK (Ruchnoi
    Pulemyot Kalashnikova) Light Machine Gun, Military Factory (Feb.
    16, 2012), http://www.militaryfactory.com/smallarms/detail.asp?
    smallarms_id=144.
    4
    United States v. Behenna, No. 12-0030/AR
    After the second interrogation, Appellant was ordered to
    return Mansur to Albu Toma.   Appellant continued to believe that
    Mansur had information regarding the April 21 attack and the
    group operating out of Salaam Village; he further believed those
    questions had not been asked and answered.   On the day that
    Mansur was to be released, Appellant went with an interpreter,
    Mr. Tarik Abdallah Silah (referred to by the parties as Harry),
    to retrieve Mansur from his cell.    Appellant told Mansur, “I’m
    going to talk to you later on today.   There is [sic] three
    pieces of information that I want from you . . . . If I don’t
    get that information today, you will die today.”   Appellant
    admitted the scare tactic was unauthorized but claimed his
    intent was only to frighten Mansur into providing information.
    Appellant’s platoon returned a different detainee before
    passing through Albu Toma without releasing Mansur.    Appellant
    ordered his platoon to take the desert route back to base,
    because he wanted “to talk to Ali in a remote, secure location.”
    On the desert route, Appellant saw a culvert; he ordered the
    platoon to stop, because he believed this was an appropriate
    location to speak with Mansur.   Appellant told Harry to follow
    him as Appellant retrieved Mansur from Sergeant Warner’s truck.
    Appellant asked Warner if he had a thermite grenade.   Warner did
    not at that time, and Appellant did not order him to find one.
    5
    United States v. Behenna, No. 12-0030/AR
    Appellant, Harry, and Mansur immediately started walking
    towards the culvert.   In the meantime, Warner found a thermite
    grenade and caught up with the group at the culvert.   Upon
    reaching the culvert, Appellant saw there was a second culvert
    and led the group there.   Outside the second culvert, Appellant
    told Mansur he wanted the information he had asked about earlier
    that day.    Mansur responded that he did not know anything.
    Appellant then moved Mansur into the culvert and cut off
    his shirt and told Warner to cut off his pants and underwear.
    Appellant then attempted to remove the zip ties that bound
    Mansur’s hands, but Harry eventually had to remove them for
    Appellant.   Appellant ordered Mansur, who was then naked and
    unbound, to sit on a rock or piece of concrete inside the
    culvert.    Mansur continued to claim ignorance, so Appellant
    pointed a loaded pistol at him to frighten him into providing
    the information.
    C.
    By this time, it was dark and dusty outside, visibility was
    low, and Warner was using night vision goggles.   As soon as
    Appellant pulled out his pistol, Harry stepped outside the
    culvert because he was afraid of the ricochet.    Harry testified
    that from his vantage point he could make out the figure of a
    person but could not distinguish Mansur’s arms and hands.      Once
    Harry was outside the culvert, Appellant again asked for the
    6
    United States v. Behenna, No. 12-0030/AR
    information and stated that if Mansur did not tell him what he
    wanted to hear that he would die.      Mansur said something, and
    Harry looked at Appellant to translate, and then two shots were
    fired.    Harry testified that everything happened quickly, that
    he was surprised by the gunshots, and that he did not see
    exactly what happened before the shots were fired.     He did not
    know what happened to cause Appellant to shoot Mansur.
    Warner was approximately thirty-five to fifty meters away
    when he heard the first pistol shot.     From his original angle,
    Warner could not see inside the culvert; so, he moved to a
    better position.    He saw the muzzle flash from the second shot.
    Warner ultimately identified Appellant as the individual who
    fired the pistol shots that killed Mansur.     When Warner reached
    the culvert, Appellant told him to “[t]hrow it.”     Warner asked,
    “[t]hrow what” and Appellant said “[d]on’t be stupid.”     Warner
    tossed the thermite grenade in the direction of Mr. Mansur’s
    body.    Appellant then told Warner to take care of the clothes.2
    Appellant’s testimony was mostly consistent with that of
    the other witnesses, although he did elaborate on what occurred
    before he fired his pistol.    He testified that he pointed his
    pistol at Mr. Mansur and told him that “[t]his [was his] last
    2
    Appellant testified later in the trial that immediately after
    firing the shots he did not say anything. It is unclear from
    the context of the question and answer if Appellant was refuting
    7
    United States v. Behenna, No. 12-0030/AR
    chance to tell the information or [he would] die.”      Appellant
    testified he heard Mr. Mansur say something in Arabic that was
    different than his previous responses, so he looked over to
    Harry for interpretation.
    While looking at Harry, Appellant testified that he heard a
    piece of concrete hit over his left shoulder.      He turned towards
    Mansur and saw him reaching for the pistol; the distance between
    them was only two or three feet.       He took a step or two to his
    left, towards the entrance of the culvert, to create distance
    between him and Mansur, and then fired two shots into Mansur.
    Mansur was shot once in the head and once in the chest; the
    order of the shots was a contested issue.      Behenna, 70 M.J. at
    524.   Appellant stated that everything happened fast and that he
    fired the shots because he “was scared [Mansur] was going to
    take [his] weapon.”    Appellant insisted throughout his testimony
    that he never intended to kill Mansur; he just wanted to scare
    him for information.
    Upon returning to base, Appellant took Warner on a walk and
    asked him if he was “cool.”   Warner indicated he was.     Harry
    later asked Appellant why he had shot Mansur, and Harry
    testified that Appellant said “‘Ali Mansur planted explosives
    twice on a specific road and the explosive that went off in the
    Warner’s claim. It is clear, however, that an incendiary
    grenade was set off near Mansur’s body.
    8
    United States v. Behenna, No. 12-0030/AR
    Salaam Village, he had a hand into this too.   He was part of
    this operation.’”
    D.
    During trial, the defense provided unrebutted testimony
    from two experts in the field of forensics.    Dr. Radelat, a
    medical doctor, testified that in his expert opinion that Mansur
    was standing when he was shot.   He testified that Mansur’s chest
    wound had entered under his right arm between the fourth and
    fifth rib in a horizontal path indicating that the pistol was
    level with Mansur’s wound and that Mansur’s right arm was not in
    the flight path of the bullet.
    Dr. Radelat theorized that the chest wound was inflicted
    first, because the photographs appeared to show Mansur clutching
    a chest wound with blood running over his hand.   He bolstered
    this analysis by noting that the head wound would have been so
    devastating that, had it been inflicted first, Mansur would not
    have been capable of reacting to the chest wound.    Dr. Radelat
    admitted that the horizontal wound could have been caused if
    Mansur had been falling at the same angle the gun was pointed,
    although he suggested this scenario defied reason.
    The defense also called Mr. Bevel, an expert in scene
    reconstruction.   Mr. Bevel theorized that the chest wound was
    inflicted first and that Mansur was standing when shot.   He
    concluded that Mansur was standing when shot because of the
    9
    United States v. Behenna, No. 12-0030/AR
    level trajectory of the wound.   He also bolstered that opinion
    based on the fact that it appeared Mansur had clutched the chest
    wound and the manner in which the blood ran over Mansur’s hand.
    He acknowledged that given the wound’s location on Mansur’s
    chest that his right arm had to be out of the flight path of the
    bullet, which, at the very least, meant his arm was not hanging
    straight down.
    He noted that the head wound also had a horizontal
    trajectory, which could be consistent with Mansur standing, so
    long as the second shot was fired as Mansur slumped towards the
    ground.   Mr. Bevel also testified that the nature of the blood
    trail indicated that Mansur likely was not falling backwards.
    Under Government cross-examination, Mr. Bevel admitted that
    other scenarios could reasonably explain the horizontal wound
    trajectories to the chest and head and how Mansur’s right arm
    avoided the flight pattern of the bullet.   Facts necessary to
    resolve the alleged violation under Brady v. Maryland, 
    373 U.S. 83
     (1963), are included below.
    II.
    The first issue is whether the members were improperly
    instructed about how Appellant could lose and regain the right
    to act in self-defense.   Although we find the instruction on
    escalation was erroneous, the error was harmless beyond a
    reasonable doubt.   Appellant was not entitled to such an
    10
    United States v. Behenna, No. 12-0030/AR
    instruction at all, as there was no evidence raising the issue
    of escalation.   Moreover, contrary to Appellant’s arguments,
    withdrawal was not in issue either, for the same reason.
    A.
    An allegation that the members were improperly instructed
    is an issue we review de novo.   United States v. Ober, 
    66 M.J. 393
    , 405 (C.A.A.F. 2008).    In regard to form, a military judge
    has wide discretion in choosing the instructions to give but has
    a duty to provide an accurate, complete, and intelligible
    statement of the law.   See United States v. Wolford, 
    62 M.J. 418
    , 419 (C.A.A.F. 2006) (recognizing that instructions must be
    correct and complete); see also United States v. Medina, 
    69 M.J. 462
    , 465 (C.A.A.F. 2011) (noting that an instruction must be
    clear and correct).   In reviewing the propriety of an
    instruction, appellate courts must read each instruction in the
    context of the entire charge and determine whether the
    instruction completed its purpose.    See Jones v. United States,
    
    527 U.S. 373
    , 391 (1999).
    In regard to substance, the instructional issues in this
    case involve self-defense.   The standard for self-defense is set
    out in Rule for Court-Martial (R.C.M.) 916(e)(1), which provides
    that if an individual apprehends on reasonable grounds that
    grievous bodily harm or death is about to be wrongfully
    inflicted to his or her person, then the individual may use such
    11
    United States v. Behenna, No. 12-0030/AR
    force as is appropriate for the circumstances, including deadly
    force.   See United States v. Lewis, 
    65 M.J. 85
    , 88 (C.A.A.F.
    2007) (recognizing that R.C.M. 916 generally restates the well-
    settled law of self-defense).
    The right to act in self-defense, however, is not absolute.
    Initial aggressors and those involved in mutual combat lose the
    right to act in self-defense.   See R.C.M. 916(e)(4).     However,
    an initial aggressor or a mutual combatant regains the right to
    act in self-defense if the other party escalates the degree of
    force, or if the initial aggressor or the mutual combatant
    withdraws in good faith and communicates that intent to
    withdraw.   See Lewis, 65 M.J. at 88; R.C.M. 916(e)(4).    With
    these principles in mind, we turn our attention to the
    instructions in this case.
    B.
    The military judge provided a facially correct instruction
    on self-defense.3   Appellant’s claim of error is in regard to the
    3
    The propriety of giving the initial self-defense instruction
    has not been challenged; it is provided here for context.
    For self-defense to exist the accused must have
    had a reasonable apprehension that death or grievous
    bodily harm was about to be inflicted on himself and
    he must have actually believed that the force he used
    was necessary to prevent death or grievous bodily
    harm. In other words, self-defense has two parts:
    first the accused must have had a reasonable belief
    that death or grievous bodily harm was about to be
    inflicted upon himself. The test here is whether
    12
    United States v. Behenna, No. 12-0030/AR
    following instruction on losing and regaining the right to act
    in self-defense:
    Now there exists evidence in this case that the
    accused may have been assaulting Ali Mansur
    immediately prior to the shooting by pointing a loaded
    weapon at him. A person who without provocation or
    other legal justification or excuse assaults another
    person is not entitled to self-defense unless the
    person being assaulted escalates the level of force
    beyond that which was originally used. The burden of
    proof on this issue is on the prosecution. If you are
    convinced beyond a reasonable doubt that the accused,
    without provocation or other legal justification or
    excuse, assaulted Ali Mansur then you have found that
    the accused gave up the right to self-defense.
    However, if you have a reasonable doubt that the
    accused assaulted Ali Mansur, was provoked by Ali
    Mansur, or had some other legal justification or
    excuse, and you are not convinced beyond a reasonable
    doubt that Ali Mansur did not escalate the level of
    force, then you must conclude that the accused had the
    under the same facts and circumstances present in this
    case, an ordinary, prudent adult person, faced with
    the same situation would have believed that there were
    grounds to fear immediate death or serious bodily
    harm; second, the accused must have actually believed
    that the amount of force he used was required to
    protect against death or serious bodily harm.
    To determine the accused’s actual belief as to
    the amount of force which was necessary you must look
    at it -- you must look at the situation through the
    eyes of the accused. In addition to the circumstances
    known to the accused at the time, the accused age,
    intelligence, and mental condition are all important
    factors to consider in determining the accused’s
    actual belief about the amount of force required to
    protect himself. As long as the accused actually
    believed that the amount of force he used was
    necessary to protect himself against death or grievous
    bodily harm, the fact that the accused may have used
    excessive force does not matter.
    13
    United States v. Behenna, No. 12-0030/AR
    right to self-defense, and then you must determine if
    the accused actually did act in self-defense.
    Emphasis added.
    This instruction is erroneous for two reasons.     First, the
    military judge provided no guidance on how to evaluate an offer-
    type assault, which occurs, for instance, when an individual
    points a loaded pistol at another person without lawful
    justification or authorization.    We recognize that the military
    judge had previously instructed the members on an assault
    consummated by a battery, but those instructions did not include
    guidance on how to evaluate the offer-type assault that preceded
    the killing of Mansur.   See Manual for Courts-Martial, United
    States (MCM) pt. IV, ¶ 54.c.(1)(b) (2012 ed.).     Thus, the
    members were never instructed that for Appellant to have
    assaulted Mansur by pointing the pistol at him, Mansur had to
    reasonably apprehend immediate bodily harm.    See MCM pt. IV,
    ¶ 54.c.(1)(b)(ii).   The two varieties of assault are
    sufficiently different that, even when the instructions are
    viewed holistically, the first portion of the instruction was
    incomplete.   See United States v. Marbury, 
    56 M.J. 12
    , 17
    (C.A.A.F. 2001) (holding the critical issue in offer-type
    assaults is whether the victim reasonably apprehended imminent
    bodily harm as compared to assaults consummated by a battery in
    which the critical issue is actual bodily harm).
    14
    United States v. Behenna, No. 12-0030/AR
    More importantly, the second emphasized portion of the
    instruction is an erroneous statement of law.   Specifically, the
    military judge linked the lawful use of force with the issue of
    escalation with the conjunction “and.”   (“However, if you have a
    reasonable doubt that the accused assaulted Ali Mansur, was
    provoked by Ali Mansur, or had some other legal justification or
    excuse, and you are not convinced beyond a reasonable doubt that
    Ali Mansur did not escalate the level of force, then you must
    conclude that the accused had the right to self-defense . . . .”
    (emphasis added)).   This is an inaccurate statement of law
    because Appellant would have had the right to self-defense if
    his original use of force had been lawful -- it was provoked,
    justified, or otherwise excusable (i.e., Appellant was not an
    initial aggressor) -- or if Mr. Mansur had escalated the level
    of force.   See Lewis, 65 M.J. at 88–89; R.C.M. 916(e)(1),(4).
    Having found that the instruction was erroneous, we must test
    for prejudice.
    C.
    When instructional errors have constitutional implications,
    as instructions involving self-defense do, then the error is
    tested for prejudice under a “harmless beyond a reasonable
    doubt” standard.   Lewis, 65 M.J. at 87 (citation and quotation
    marks omitted).    Only when the reviewing authority is convinced
    beyond a reasonable doubt that the error did not contribute to
    15
    United States v. Behenna, No. 12-0030/AR
    the defendant’s conviction or sentence is a constitutional error
    harmless.   Id. (citations omitted).
    Generally, a superfluous, exculpatory instruction that does
    not shift the burden of proof is harmless, even if the
    instruction is otherwise erroneous.    See United States v.
    Thomas, 
    34 F.3d 44
    , 48 (2d Cir. 1994) (providing a potentially
    erroneous self-defense instruction could not have been
    prejudicial to the defendants because “their need to defend
    themselves arose out of their own armed aggression”); Melchior
    v. Jago, 
    723 F.2d 486
    , 493 (6th Cir. 1983) (even if instruction
    was erroneous it was harmless beyond a reasonable doubt where
    “there was insufficient evidence to submit the issue of self-
    defense to the jury in the first instance”).
    As discussed further below, Appellant lost the right to act
    in self-defense as a matter of law; therefore, any instruction
    on losing and regaining the right to self-defense was
    superfluous.   Our case law makes clear that a military judge is
    only required to instruct when there is some evidence in the
    record, without regard to credibility, that the members could
    rely upon if they choose.   United States v. Schumacher, 
    70 M.J. 387
    , 389 (C.A.A.F. 2011) (citing Lewis, 65 M.J. at 87).   In
    other words, a military judge must instruct on a defense when,
    viewing the evidence in the light most favorable to the defense,
    a rational member could have found in the favor of the accused
    16
    United States v. Behenna, No. 12-0030/AR
    in regard to that defense.   See id. (quoting Mathews v. United
    States, 
    485 U.S. 58
    , 63 (1988)).      This is a legal question that
    is reviewed de novo.    See id. at 389-990.
    D.
    We begin by noting that Appellant was not in an active
    battlefield situation, that Mansur was not then actively engaged
    in hostile action against the United States or its allies, and
    that there were no other military exigencies in play.
    Appellant’s counsel at oral argument conceded that Appellant was
    not seeking a special privilege based on Appellant’s status as a
    soldier or presence on the battlefield.     After careful
    consideration, we agree that the events that transpired in the
    culvert do not implicate the unique aspects of military service
    in a manner that requires us to apply other than basic criminal
    law concepts.   Thus, we evaluate this situation by applying the
    fundamental concepts of self-defense as imbedded in this Court’s
    case law and the MCM.
    As discussed earlier, if Appellant was the initial
    aggressor -- i.e., the one that provoked or brought about the
    situation that resulted in the necessity to kill another4 -- then
    4
    See United States v. Cardwell, 
    15 M.J. 124
    , 126 (C.M.A. 1983)
    (discussing an initial aggressor as one who starts an affray);
    see also United States v. Branch, 
    91 F.3d 699
    , 717 (5th Cir.
    1996) (citing several cases for the same proposition), rev’d on
    other grounds and remanded, Castillo v. United States, 
    530 U.S. 120
     (2000).
    17
    United States v. Behenna, No. 12-0030/AR
    he lost his right to self-defense, unless the deceased, Mansur,
    either escalated the level of force or Appellant withdrew and
    communicated that withdrawal in good faith.   See Lewis, 65 M.J.
    at 88–89; R.C.M. 916(e)(1),(4).
    Even when viewed in the most favorable light, Appellant’s
    own testimony about the events that transpired in the culvert
    demonstrate that he was the initial aggressor because he brought
    about the situation that resulted in his killing of Mansur.
    Appellant deviated from his assigned duty to return Mansur to
    his home, without authority, to take him to a remote culvert in
    the desert, far from any active hostilities for further
    unauthorized interrogation.
    More importantly, Appellant then stripped the detainee
    naked and forced him to sit on a rock while Appellant, in full
    combat attire with a loaded pistol, interrogated him.   Appellant
    also told Mansur, as he had on other occasions that day, that he
    was going to die unless he provided specific information.   Cf.
    MCM pt. IV, ¶ 54.c.(1)(c)(iii) (“Thus, if Doe points a pistol at
    Roe and says, ‘If you don’t hand over your watch, I will shoot
    you.’ Doe has committed an assault upon Roe.”).
    Although we are mindful that Mansur was a detainee, it is
    evident that Appellant’s use of force in the culvert before the
    shooting -- the critical moment in reviewing this issue -- was
    18
    United States v. Behenna, No. 12-0030/AR
    unauthorized and excessive.5   Cf. United States v. Archer, 
    486 F.2d 670
    , 676-77 (2d Cir. 1973) (“It would be unthinkable, for
    example, to permit government agents to instigate robberies and
    beatings merely to gather evidence to convict other members of a
    gang of hoodlums.”).   Even accepting the facts as Appellant
    described them on direct examination, there is no evidence on
    which a rational member could rely to conclude that Appellant
    was not the initial aggressor.   The next question is whether a
    rational member could have found that Appellant regained the
    right to act in self-defense as a result of either Mansur’s
    escalating the conflict or Appellant’s withdrawing in good
    faith.
    Under our case law, Mansur could not have escalated the
    level of force in this situation,6 as Appellant had already
    5
    Appellant relied on a number of 
    42 U.S.C. § 1983
     civil rights
    cases in his brief. These cases are generally inapplicable to
    the issue before us, because the protection of civil liberties
    of American citizens, which Mansur was not, varies greatly from
    the principles underlying criminal law and the justification for
    using deadly force. However, we note that even § 1983 cases
    recognize that if an officer points a weapon at an individual
    who poses no threat, then it is so clearly an excessive use of
    force that the officer is not entitled to qualified immunity.
    Cf. Baird v. Renbarger, 
    576 F.3d 340
    , 346-47 (7th Cir. 2009)
    (holding an officer was not entitled to qualified immunity when
    he pointed his gun at individuals because the people targeted
    and the crime investigated did not suggest even a hint of
    danger).
    6
    We are not deciding what, if any, right Mansur, a detainee of
    the United States Armed Forces, had to defend himself. We are
    determining Appellant’s right to act in self-defense under well-
    settled criminal law concepts and in light of his actions.
    19
    United States v. Behenna, No. 12-0030/AR
    introduced deadly force.   See United States v. Stanley, 
    71 M.J. 60
    , 63 (C.A.A.F. 2012); see also Armstrong v. Bertrand, 
    336 F.3d 620
    , 623, 625–26 (7th Cir. 2003) (holding that an armed gunman
    did not regain the right to self-defense even though the victim
    threatened to kill the gunman and lunged for his gun); Wayne R.
    LaFave, Substantive Criminal Law §10.4(e) (2d ed. 2003) (noting
    that a nondeadly aggressor is one who uses “only his fists or
    some nondeadly weapon”).   Even assuming for a moment that Mansur
    could have escalated the level of force, we conclude that a
    naked and unarmed individual in the desert does not escalate the
    level of force when he throws a piece of concrete at an initial
    aggressor in full battle attire, armed with a loaded pistol, and
    lunges for the pistol.   See Armstrong, 
    336 F.3d at 623, 625-26
    .
    This is especially so when the initial aggressor “had every
    opportunity to withdraw from the confrontation and there was no
    evidence he either attempted or was unable to do so.”   See
    Behenna, 70 M.J. at 532-33; see also R.C.M. 916(e)(4) Discussion
    (“Failure to retreat . . . does not deprive the accused of the
    right to self-defense[, but] [t]he availability of avenues of
    retreat is one factor which may be considered in addressing . .
    . that the force used was necessary for self-protection).
    Furthermore, nothing in Appellant’s testimony indicated
    that he clearly manifested an intent to withdraw or that Mr.
    Mansur prevented Appellant from withdrawing.   See United States
    20
    United States v. Behenna, No. 12-0030/AR
    v. O’Neal, 
    16 C.M.A. 33
    , 37, 
    36 C.M.R. 189
    , 193 (1966) (“His
    testimony contains no suggestion of a word or act that could
    reasonably be interpreted by the others as indicating he wanted
    to end the fight.”).   As the CCA found, there was no evidence
    that Mansur made contact with Appellant’s weapon, that Appellant
    indicated a desire to withdraw, or that Appellant made a good-
    faith effort to withdraw.   Behenna, 70 M.J. at 532-33.    Rather,
    Appellant took one or two steps towards the entrance of the
    culvert where the vast desert, Warner, and the rest of his
    platoon were waiting, before he shot Mansur twice.    See id. at
    523.   Even accepting the facts as Appellant described them on
    direct examination, no rational member could have found either
    that Mansur escalated the situation or that Appellant withdrew
    in good faith.
    Contrary to the dissent’s suggestion, we have not decided
    any factual matters that should have been before the members.
    There is no factual issue for the members to resolve until
    “there is some evidence upon which members could reasonably rely
    [upon] to find that each element of the defense has been
    established.”    Schumacher, 70 M.J. at 389-90.   Importantly, the
    issue in this case is not whether there was some evidence of
    self-defense.    Rather, our holding is that any evidence of self-
    defense was overcome by other events, namely the unrebutted
    evidence that Appellant was an initial aggressor and the dearth
    21
    United States v. Behenna, No. 12-0030/AR
    of evidence of escalation by Mansur or good faith withdrawal by
    Appellant -- matters thoroughly discussed above.7
    Ultimately, even if we assume that Mansur lunged for
    Appellant’s pistol and Appellant feared that Mansur would use
    the pistol if he was able to seize it, because Appellant was the
    initial aggressor, and because there was no evidence to support
    a finding of escalation or withdrawal, a rational member could
    have come to no other conclusion than that Appellant lost the
    right to act in self-defense and did not regain it.8   See Branch,
    
    91 F.3d at 712
     (“The district court is not required to put the
    case to the jury on a basis that essentially indulges and even
    encourages speculations.” (quotation marks and citation
    omitted)).   As such, withdrawal was not in issue and the
    erroneous instruction on escalation was superfluous.   As we
    noted earlier, superfluous, exculpatory instructions that do not
    impermissibly shift burdens are generally harmless beyond a
    7
    The record is devoid of any evidence that Mansur used or had
    access to any means or force that could have caused Appellant’s
    death or grievous bodily harm. Indeed, the evidence suggests
    just the opposite. See Behenna, 70 M.J. at 532 (noting that
    there is no evidence that Mansur, who was naked and unarmed,
    made contact with Appellant’s pistol).
    8
    Despite giving the instruction, the military judge ultimately
    reached a similar conclusion in resolving the alleged Brady
    violation. (“In applying the law to the facts of this case, the
    members could come to no reasonable conclusion other than 1LT
    Behenna did not have the right to self-defense. Accordingly . .
    . any evidence as to self-defense did not have, nor would any
    additional evidence as to self-defense have, made a difference
    in the Court’s determinations.”).
    22
    United States v. Behenna, No. 12-0030/AR
    reasonable doubt, even if the instructions are otherwise
    erroneous.   Nothing in these facts suggests that we should
    deviate from that conclusion.   For this reason, Appellant is not
    entitled to relief.
    III.
    The second issue is whether the Government failed to
    disclose favorable information to Appellant’s detriment in
    violation of Brady.   Even if we assume error in this regard, the
    error was harmless beyond a reasonable doubt both in regard to
    findings and sentence.
    A.
    The Government received a discovery request from defense
    counsel on August 28, 2008, requesting that the Government
    provide defense counsel with all exculpatory evidence.    The
    Government gave notice that it had retained Dr. Herbert
    MacDonell as an expert consultant, whose opinion up to trial was
    favorable for the Government.   The Government ultimately rested
    its case without calling Dr. MacDonell.    On Wednesday, February
    25, 2009, defense put on the testimony of Dr. Radelat and Mr.
    Bevel.   During cross-examination by trial counsel, both defense
    experts admitted that alternative explanations existed for the
    forensic evidence.
    Dr. MacDonell, with the consent of the parties, sat in the
    gallery while the other experts testified.   On Wednesday night,
    23
    United States v. Behenna, No. 12-0030/AR
    after court was recessed and after the defense experts had
    testified, Dr. MacDonell, in the presence of all three
    Government trial counsel, demonstrated a scenario:
    I asked if he [the aid to the demonstration] could
    stand in front of me and I put a finger in his ribs
    and said “Bang, now drop.” And he went down to his
    knees and as he went by the finger I said, “Bang.” I
    said, “Now that seems to me to be the only logical
    thing.” I admit it is extremely unlikely, but
    sometimes things that happen that are statistically
    improbable do happen [sic].
    Dr. MacDonell also testified that he ended his discussions with
    trial counsel by stating that “anything is possible,” because
    “[y]ou can’t be certain of a theory like that.   A scenario can
    be presented, but if it is consistent with the facts it can be
    believed, but it may not be the only explanation.”
    On Thursday, Dr. MacDonell heard Appellant’s testimony,
    which was consistent with the theory he presented Wednesday.
    This caused Dr. MacDonell to believe that Appellant was telling
    the truth.   During the post-trial Article 39(a), Brady hearing,
    Dr. MacDonell testified that after hearing Appellant’s testimony
    he only spoke with another Government witness about how
    Appellant’s description of events was exactly how he had
    theorized it might have occurred.    In an affidavit submitted
    after the Article 39(a) session, however, Dr. MacDonell averred
    that he also told the prosecutors on Thursday that “although the
    scenario I had presented to them the day before [Wednesday] was
    24
    United States v. Behenna, No. 12-0030/AR
    unlikely, it still was the only theory I could develop that was
    consistent with the physical evidence.    It was also exactly the
    way Lt. Behenna had described the events.”
    Regardless of the discrepancy, as Dr. MacDonell left for
    his return flight on Thursday, he told defense counsel he would
    have been a great witness for them.    When asked to elaborate,
    Dr. MacDonell said he thought it would have been inappropriate
    to explain further given his relation to the Government in this
    case.    In light of Dr. MacDonell’s odd statement on Thursday,
    defense counsel asked the prosecutors before trial began on
    Friday morning if it was in possession of any exculpatory
    information.    The prosecutors stated that they were unaware of
    any exculpatory information.    Later that day, the members
    returned a finding of guilty to assault and unpremeditated
    murder.
    At approximately 4 p.m. on Friday, Dr. MacDonell sent an e-
    mail to the prosecutors, in which he stated that “I feel that
    [my opinion] is quite important as possible exculpatory evidence
    so I hope that, in the interest of justice, you informed
    [defense counsel] of my findings. It certainly appears like
    Brady material to me.”     One of the prosecutors discovered the e-
    mail late Friday night and forwarded the e-mail to defense
    counsel with a note that stated “I am not sure that I believe
    that Mr. MacDonell’s new opinion is exculpatory, but I wanted to
    25
    United States v. Behenna, No. 12-0030/AR
    send it to you in an abundance of caution.”    Defense counsel
    moved for a mistrial on the basis of a Brady violation.
    B.
    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, 
    132 S. Ct. 627
    , 630 (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, 
    132 S. Ct. at 630
    .   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 need not test for
    harmlessness.   Kyles v. Whitley, 
    514 U.S. 419
    , 435-36 (1995).9
    9
    The Fifth Circuit, in Kyles v. Whitley, noted that Brady claims
    are subject to harmless error review. See 
    5 F.3d 806
    , 818 (5th
    Cir. 1993). The Supreme Court, in reviewing that assertion,
    stated that “contrary to the assumption made by the Court of
    Appeals, 
    5 F.3d at 818
    , once a reviewing court applying Bagley
    [materiality] has found constitutional error there is no need
    for further harmless-error review.” Kyles, 
    514 U.S. at 435
    .
    This makes sense; if there is a reasonable probability that the
    26
    United States v. Behenna, No. 12-0030/AR
    C.
    We do not need to determine who learned of what information
    when.    Even if we assume the evidence was favorable and not
    properly disclosed, the evidence was ultimately immaterial both
    as substantive and impeachment evidence.    Dr. MacDonell’s
    testimony, at most, would have made Appellant’s version of
    events more likely, that is, that Appellant shot Mansur as he
    stood and reached for Appellant’s pistol.    In turn, whether
    Mansur remained seated or stood when he was shot was only
    relevant to two issues:    premeditation and self-defense.
    The result in this case -- Appellant was convicted of
    unpremeditated murder -- negates any argument that this evidence
    could have affected the outcome on the issue of premeditation,
    as the members clearly rejected the Government’s theory of the
    case -- a premeditated, execution-style killing -- when they
    returned a verdict that Appellant was guilty of unpremeditated
    murder.    In regard to self-defense, Dr. MacDonell’s testimony
    could not have independently established the factual predicate
    for a self-defense theory; rather, it would have only bolstered
    Appellant’s version of events.    Assuming the truth of
    evidence would have changed the result at trial, then, by
    definition, the failure to disclose cannot be harmless. There
    is no need to conduct a redundant test. See United States v.
    Meek, 
    44 M.J. 1
    , 5 n.2 (C.A.A.F. 1996) (noting that to the
    extent that the harmless error test is incorporated into another
    27
    United States v. Behenna, No. 12-0030/AR
    Appellant’s version of what transpired in the culvert, he had
    lost the right to act in self-defense as a matter of law.   See
    supra Part II.D.
    Moreover, Dr. MacDonell’s testimony did not differ greatly
    from either of the defense experts’ testimony.   The two defense
    experts essentially testified that the most logical theory was
    that Mansur stood as he was shot, with his right arm out of the
    way, as if he were reaching for something, but they agreed this
    was not the only theory that could explain the forensic
    evidence.    Dr. MacDonell would have agreed that the defense
    theory was the most, maybe only, logical outcome, but that one
    “can’t be a certain of a theory like that,” because “anything is
    possible,”   The difference between Dr. MacDonell’s opinion and
    the other experts’ opinions was negligible.   See United States
    v. Gonzalez, 
    62 M.J. 303
    , 307 (C.A.A.F. 2006) (noting that the
    overlapping nature of the evidence undercuts an argument that
    the failure to disclose pursuant to Brady was prejudicial); see
    also United States v. Agurs, 
    427 U.S. 97
    , 114 (1976) (noting
    that the alleged Brady material did not contradict any evidence
    already admitted and was similar to other evidence in the record
    in holding that there was no Brady violation).
    element of the test, then the harmless error test may be
    unnecessary).
    28
    United States v. Behenna, No. 12-0030/AR
    Although there may be value in a Government expert’s
    testimony that the defense theory is more convincing than the
    Government’s theory of the case, it is significantly less so
    when, as in this case, the Government expert did not testify on
    behalf of the Government or recant testimony previously
    provided.   See United States v. Cooper, 
    654 F.3d 1104
    , 1120
    (10th Cir. 2011) (recognizing that the value of Brady evidence
    must be evaluated in light of the other evidence admitted at
    trial).    Dr. MacDonell’s testimony ultimately would not have
    added much to Appellant’s case, other than the novelty that it
    came from a nontestifying expert witness associated with the
    Government’s case.   Candidly, that novelty had little
    evidentiary value here in light of the similarity of Dr.
    MacDonell’s opinion with the other defense experts and the ease
    with which Dr. MacDonell’s opinion could have been impeached by
    his failure to provide a reasonably certain or consistent
    opinion.    For these reasons, our confidence in the results of
    trial -- both for findings and sentencing10 -- is not undermined
    10
    Appellant, despite knowing of Dr. MacDonell’s opinion prior to
    sentencing, did not ask for a continuance or take any steps to
    produce Dr. MacDonell on sentencing or otherwise make his
    testimony available at sentencing. This failure belongs to
    Appellant, not the Government. Appellant knew of the
    information with sufficient time to use the information on
    sentencing; thus, the evidence was timely disclosed in regard to
    sentencing. See DiSimone v. Phillips, 
    461 F.3d 181
    , 196-97 (2d
    Cir. 2006) (recognizing that there is no bright-line rule for
    when a disclosure is timely; rather, the question is whether the
    29
    United States v. Behenna, No. 12-0030/AR
    by the Government’s failure to disclose Dr. MacDonell’s
    testimony.
    IV.
    The judgment of the United States Army Court of Criminal
    Appeals is affirmed.
    evidence was disclosed in sufficient time for an accused to take
    advantage of the information, a determination necessarily
    dependent on the totality of the circumstances).
    30
    United States v. Behenna, No. 12-0030
    EFFRON, Senior Judge, with whom ERDMANN, Judge, joins
    (dissenting):
    Appellant served as a platoon leader in Iraq in 2008 in an
    area north of Baghdad and Tikrit.   The mission of Appellant’s
    unit included counterinsurgency operations and activities in the
    Albu Toma area in conjunction with Iraqi forces.   On April 21,
    2008, a hostile attack featuring an improvised explosive device
    (IED) killed two members of his platoon.   Based upon
    intelligence information, Appellant interrogated Ali Mansur, a
    person suspected of involvement in terrorist activities, on May
    5, 2008, and on May 16, 2008, in an effort to pinpoint
    responsibility for the terrorist attack.   Two different
    narratives emerged at trial concerning the May 16 interrogation.
    The prosecution, based upon witness testimony and forensic
    evidence, contended that Appellant murdered Ali Mansur, who was
    unarmed, unclothed, and defenseless.    The defense, based
    primarily on Appellant’s testimony, contended that Ali Mansur
    suddenly reached for Appellant’s weapon during the
    interrogation, and Appellant shot Ali Mansur in self-defense.
    At trial, the prosecution and the defense each brought to
    the members’ attention evidence in the record supporting their
    respective views.   The responsibility for determining what
    actually happened -- the crime of murder or justifiable self-
    defense -- rested with the members of the court-martial panel.
    United States v. Behenna, No. 12-0030
    The responsibility for ensuring that the members made this
    decision in accordance with the proper legal standards rested
    with the military judge.
    Following the close of the evidence, the military judge
    offered a variety of instructions regarding the matters at
    issue, including an instruction on self-defense.   The defense
    objected to the content of the self-defense instruction.    The
    military judge rejected the defense objection, and the members
    returned a verdict of guilty on the murder charge now under
    review.
    Before our Court, Appellant challenges the content of the
    instruction, and raises a related issue concerning the failure
    of the prosecution to provide timely disclosure of evidence
    favorable to the defense.   The majority rejects these challenges
    based upon the majority’s conclusion that any instructional
    error was harmless.   __ M.J. __ (22-23) (C.A.A.F. 2012).   For
    the reasons set forth below, I respectfully dissent.
    2
    United States v. Behenna, No. 12-0030
    I.   SELF-DEFENSE
    A. THE DECISIONAL PROCESS IN COURTS-MARTIAL
    1.   The separate responsibilities of the military judge and the
    court-martial panel
    In trials by court-martial, Congress has vested the
    responsibility for entering findings -- the decision as to
    whether a servicemember is guilty -- in the court-martial panel,
    which performs the function of a jury.    See Articles 25, 51, 52,
    Uniform Code of Military Justice (UCMJ), 
    10 U.S.C. §§ 825
    , 851,
    852 (2006).    To ensure that the panel reaches this determination
    in accordance with the law, and not on the basis of extraneous
    or other improper influences, the military judge instructs the
    panel on the applicable legal standards for reaching the
    decision on findings.    See Article 51(c), UCMJ, 
    10 U.S.C. § 851
    (c) (2006); Rule for Courts-Martial (R.C.M.) 920.
    2.   The requirement to instruct when self-defense is in issue
    Among the required instructions, the military judge must
    instruct the panel on any special defense “in issue,” including
    self-defense.    R.C.M. 920(e)(3); R.C.M. 916(e); United States v.
    Stanley, 
    71 M.J. 60
    , 62 (C.A.A.F. 2012) (citing United States v.
    McDonald, 
    57 M.J. 18
    , 20 (C.A.A.F. 2002)).     The military judge
    must treat self-defense as in issue when “‘some evidence,
    without regard to its source or credibility, has been admitted
    upon which members might rely if they chose.’”    Stanley, 
    71 M.J.
                                      3
    United States v. Behenna, No. 12-0030
    at 63 (quoting United States v. Lewis, 
    65 M.J. 85
    , 87 (C.A.A.F.
    2007)); see Dep’t of the Army, Pam. 27-9, Legal Services,
    Military Judges’ Benchbook para. 5-1.a. (Jan. 10, 2010)
    [hereinafter Military Judges’ Benchbook] (“The credibility of
    witnesses, including the accused, whose testimony raises a
    possible affirmative defense, is not a factor in determining
    whether an instruction is necessary.”).
    3.   Raising the issue of self-defense
    R.C.M. 916(e) sets forth the rules governing self-defense.
    Under R.C.M. 916(e)(1):
    It is a defense to a homicide . . . that the
    accused:
    (A) Apprehended, on reasonable grounds,
    that death or grievous bodily harm was about
    to be inflicted wrongfully on the accused;
    and
    (B) Believed that the force the accused
    used was necessary for protection against
    death or grievous bodily harm.
    If the record contains “some evidence” raising the issue of
    self-defense, the military judge must instruct the members of
    their responsibility to make the following determinations.
    First, the court-martial panel must decide whether the accused
    “had a reasonable belief that death or grievous bodily harm was
    about to be inflicted on (himself) . . . .”   Military Judges’
    Benchbook para. 5-2-1.    The Benchbook further states: “The test
    here is whether, under the same facts and circumstances
    4
    United States v. Behenna, No. 12-0030
    presented in this case, an ordinary, prudent adult person faced
    with the same situation would have believed that there were
    grounds to fear immediate death or serious bodily harm.”       
    Id.
    Second, the court-martial panel must decide whether the accused
    “actually believed that the amount of force (he)(she) used was
    required to protect against death or serious bodily harm.”      
    Id.
    In making that decision, the court-martial panel “must look at
    the situation through the eyes of the accused.”    
    Id.
       “In
    addition to the circumstances known to the accused at the time,”
    the court-martial panel must consider other factors pertinent to
    the case as identified by the military judge.   
    Id. 4
    .   The degree of force
    The military judge also must instruct the members on how to
    address the degree of force used by the accused:
    As long as the accused actually believed
    that the amount of force (he)(she) used was
    necessary to protect against death or
    grievous bodily harm, the fact that the
    accused may have used excessive force (or a
    different type of force than that used by
    the attacker) does not matter.
    Id.; see United States v. Acosta-Vargas, 
    13 C.M.A. 388
    , 393, 
    32 C.M.R. 388
    , 393 (1962).
    Depending on the circumstances, the military judge will
    instruct the members that:
    [t]he accused, under the pressure of a fast
    moving situation or immediate attack, is not
    required to pause at (his)(her) peril to
    5
    United States v. Behenna, No. 12-0030
    evaluate the degree of danger or the amount
    of force necessary to protect
    (himself)(herself). In deciding the issue
    of self-defense, you must give careful
    consideration to the violence and rapidity,
    if any, involved in the incident.
    Military Judges’ Benchbook para. 5-2-6.
    5.   Opportunity to retreat or seek help
    Depending on the circumstances, the military judge may be
    required to instruct the members to take into account whether
    the accused had an opportunity to withdraw safely or obtain the
    help of others.    See 
    id.
       The responsibility for deciding
    whether such factors, in light of the other circumstances,
    impact the issue of self-defense rests with the court-martial
    panel.   See 
    id. 6
    .   The effect on self-defense when the accused acts as an
    aggressor, engages in mutual combat, or provokes an attack
    Depending on the circumstances, an accused may lose the
    right to self-defense “if the accused was an aggressor, engaged
    in mutual combat, or provoked the attack.”    R.C.M. 916(e)(4).
    The military judge must provide appropriate tailored
    instructions to the court-martial panel if the evidence
    indicates that the accused may have engaged in such conduct.
    Lewis, 65 M.J. at 87-89; R.C.M. 920(e)(3).    Under the model
    instructions set forth in the Benchbook, if the evidence raises
    the issue of loss of self-defense by provocation, the military
    judge informs the panel that the right of self-defense is not
    6
    United States v. Behenna, No. 12-0030
    lost unless the provoking act “is clearly calculated and
    intended by the accused to lead to a fight (or deadly
    conflict)”.   Military Judges’ Benchbook para. 5-2-6.
    7.   Regaining the right of self-defense
    If there is evidence that the adversary of the accused
    “escalated the level of conflict” and placed the accused “in
    reasonable apprehension of immediate death or grievous bodily
    harm,” the accused regains the right of self-defense.   Id.; see
    Lewis, 65 M.J. at 88 (citing United States v. Cardwell, 
    15 M.J. 124
    , 126 (C.M.A. 1983)).   Under the model instructions, if the
    accused engages in a provoking act or mutual combat involving
    “force not likely to produce death or grievous bodily harm” and
    the adversary escalates the conflict so that the accused is
    placed “in reasonable apprehension of immediate death or
    grievous bodily harm,” the accused regains the right of self-
    defense.   Military Judges’ Benchbook para. 5-2-6.   As our Court
    noted in United States v. Moore, 
    15 C.M.A. 187
    , 198, 
    35 C.M.R. 159
    , 170 (1964):
    One whose acts provoke a situation wherein he has to
    defend himself, who does so without intending thereby
    to provoke a difficulty, or who does so without intent
    to use the provoked assault as a pretext for killing
    or injury, does not thereby forfeit his right of
    perfect self–defense.
    Because the underlying concept of self-defense involves
    protection and not aggression, the military judge is not
    7
    United States v. Behenna, No. 12-0030
    required to give an escalation instruction when the accused uses
    deadly force in the midst of a mutual affray to subdue an
    adversary.   See Stanley, 71 M.J. at 64 (concluding that the
    military judge was not obligated to give such an instruction sua
    sponte when four disaffected drug traffickers armed with loaded
    weapons engaged in mutual combat in a chaotic fast-moving
    situation, and the defense did not present a theory of
    escalation at trial or request an escalation instruction; and
    observing that the accused’s use of a loaded firearm to subdue
    an adversary in that situation constituted the use of deadly
    force under the particular circumstances of the case).   A
    display of a loaded weapon, however, does not per se constitute
    use of deadly force.   See id. at 63 n.3.
    8.   The burden of proof
    Where there is some evidence raising the right of self-
    defense and the related issues involving the opportunity to
    retreat and the loss of the right of self-defense, the
    prosecution bears the burden of proving that the accused did not
    have the right of self-defense.   Military Judges’ Benchbook
    para. 5-2-6.   The responsibility of making the determination
    that the accused had an opportunity to retreat, that the accused
    lost the right of self-defense, or that the accused did not
    regain the right of self-defense, rests with the court-martial
    panel.   See id.
    8
    United States v. Behenna, No. 12-0030
    B. DISCUSSION
    1.   Prelude to the shooting
    The parties generally agree on the predicate events.
    During Appellant’s military assignment to the theater of
    operations in Iraq, his unit engaged in combat activities
    against hostile forces and suffered losses as the result of
    terrorist activities in the battlefield environment.     Appellant
    sought to pinpoint responsibility for the attack.     Through
    intelligence channels, he received information pointing to Ali
    Mansur as a person who could provide information about the
    attack.   The initial interrogation, and a subsequent
    interrogation by other officials, did not produce useful
    information about the attack.    During the initial interrogation,
    on May 5, 2008, Appellant used his helmet to strike Ali Mansur
    on the back, an act that resulted in his conviction for assault.
    The validity of that conviction is not at issue in the present
    appeal.
    On May 16, 2008, after receiving orders to return Ali
    Mansur to his village, Appellant, who was accompanied by a
    noncommissioned officer (NCO) and an interpreter, decided on his
    own initiative to undertake a further interrogation of Ali
    Mansur en route in an isolated culvert.      He did so even though
    it involved a deviation from the order he had received to return
    Ali Mansur to his village.    Appellant did not have training or
    9
    United States v. Behenna, No. 12-0030
    responsibilities as an interrogator.     The interrogation
    techniques Appellant used included removing Ali Mansur’s
    clothing, ordering him to sit, pointing a loaded weapon at Ali
    Mansur, and threatening to kill him if he did not provide the
    requested information.      Appellant acknowledged that in doing so,
    he used unauthorized interrogation methods.
    2.     The two narratives
    At trial, two different versions emerged as to what next
    occurred on May 16, 2008.     The prosecution, relying primarily on
    the testimony of the interpreter, the NCO, and forensic
    evidence, sought to convince the court-martial panel that
    Appellant took Ali Mansur to the culvert in order to kill him,
    and that he did so.   Neither the interpreter nor the NCO had a
    complete view of the events that immediately preceded the
    shooting, and the prosecution relied on other evidence,
    primarily the testimony of the pathologist who performed the
    autopsy, in an effort to convince the members that Appellant had
    engaged in an execution-style shooting of a defenseless person.
    Appellant, in his testimony, acknowledged that he was not a
    trained interrogator, that he employed unauthorized
    interrogation techniques, and that he should not have done so.
    He stated that he used these techniques in an effort to extract
    information from Ali Mansur, and that he had no intent to kill
    him.   Appellant testified that during the interrogation, he
    10
    United States v. Behenna, No. 12-0030
    heard the sound of concrete hitting concrete over his shoulder.
    Appellant further testified that he saw Ali Mansur stand up from
    the sitting position and reach for Appellant’s weapon; and at
    that point, in self-defense, Appellant shot Ali Mansur.
    3.   The limited focus on the unauthorized interrogation
    techniques
    With respect to the unauthorized techniques in the culvert
    on May 16, 2008, the Government did not charge Appellant with
    criminal violation of a specific order or regulation,
    maltreatment of a detainee, simple assault, or assault with a
    dangerous weapon, see Articles 92, 93, 128, UCMJ, 
    10 U.S.C. §§ 892
    , 893, 928 (2006); nor did the Government ask the military
    judge to find that the interrogation techniques amounted to any
    of those offenses as a basis for addressing the issue of self-
    defense.
    The Government did not ask the military judge to conclude
    that the interrogation techniques constituted the use of deadly
    force for purposes of precluding Appellant from asserting the
    right of self-defense; nor did the Government ask the military
    judge to instruct the members on whether there was an
    opportunity to retreat or seek help from others.   The military
    judge did not conclude, as a matter of law or fact, that
    Appellant’s interrogation techniques constituted the use of
    deadly force or that Appellant’s conduct otherwise precluded a
    11
    United States v. Behenna, No. 12-0030
    self-defense instruction.   Instead, the military judge
    recognized that self-defense was in issue.   In that regard,
    there was “some evidence” in the record, primarily from
    Appellant’s testimony, that he used the interrogation techniques
    for purposes of extracting information, and not for purposes of
    using deadly force to kill Ali Mansur; that Ali Mansur rose from
    his sitting position and reached for Appellant’s weapon; and
    that, in a fast-moving scenario, and fearing that Ali Mansur
    might try to turn the pistol against him, Appellant shot Ali
    Mansur in self-defense.   In that context, providing the members
    with a self-defense instruction was necessary to ensure that the
    decision as to what actually transpired in the culvert would be
    properly made by the court-martial panel.
    4.   The instructions provided by the military judge
    The issue before us is whether the military judge, in the
    course of providing instructions on self-defense, correctly
    advised the members on how to address the issue of whether,
    based on their assessment of the facts, Appellant lost the right
    of self-defense.   In that regard, the granted issue does not
    call upon us to decide whether Appellant is, in fact, guilty of
    the act of murder.   The granted issue requires us to determine
    whether the court-martial panel received instructions from the
    military judge on the issue of self-defense that properly
    informed the members as to the determinations they would need to
    12
    United States v. Behenna, No. 12-0030
    make during the panel’s deliberations on the issue of guilt or
    innocence.
    The military judge sought to address the issue of
    provocation through the following instruction:
    Now there exists evidence in this case that the
    accused may have been assaulting Ali Mansur
    immediately prior to the shooting by pointing a loaded
    weapon at him. A person who without provocation or
    other legal justification or excuse assaults another
    person is not entitled to self-defense unless the
    person being assaulted escalates the level of force
    beyond that which was originally used. The burden of
    proof on this issue is on the prosecution. If you are
    convinced beyond a reasonable doubt that the accused,
    without provocation or other legal justification or
    excuse, assaulted Ali Mansur then you have found that
    the accused gave up the right to self-defense.
    However, if you have a reasonable doubt that the
    accused assaulted Ali Mansur, was provoked by Ali
    Mansur, or had some other legal justification or
    excuse, and you are not convinced beyond a reasonable
    doubt that Ali Mansur did not escalate the level of
    force, then you must conclude that the accused had the
    right to self-defense, and then you must determine if
    the accused actually did act in self-defense.
    The defense objected, arguing that Appellant’s conduct did not
    constitute the offense of assault.    The military judge overruled
    that objection.
    As noted in the majority opinion, the last sentence of the
    instruction is problematic.   It sets forth six different
    determinations for the members to make, employs two different
    tests for the members to apply, and includes a confusing double-
    negative.    The instruction asked the members to make the
    13
    United States v. Behenna, No. 12-0030
    following six determinations, with little or no guidance as to
    the critical standards applicable to each:
    1.   Did   Appellant assault Ali Mansur?
    2.   Was   Appellant provoked by Ali Mansur?
    3.   Did   Appellant have some legal justification or excuse?
    4.   Did   Ali Mansur escalate the level of force?
    5.   Did   Appellant have the right to self-defense?
    6.   Did   Appellant act in self-defense?
    The instruction contains two different tests -- no reasonable
    doubt and beyond a reasonable doubt -- without clear linkage to
    the separate determinations.    The confusing double-negative
    asked the members to determine whether “you are not convinced
    beyond a reasonable doubt that [Ali Mansur] did not escalate the
    level of force.”
    The record reflects the difficulty the members faced in
    comprehending and applying the instruction at issue.    Before the
    members closed to deliberate, one of the members asked how an
    assault with a weapon nullifies a self-defense argument.    In
    response, the military judge read for a second time the entire
    instruction on self-defense, without specifically addressing the
    member’s question.    In addition, one of the members asked for a
    printed copy of all of the instructions, a request that the
    military judge denied.
    The instruction failed to provide the panel with any
    guidance as to whether Appellant had the opportunity to withdraw
    or seek help; nor did it provide the panel with any guidance on
    14
    United States v. Behenna, No. 12-0030
    how to determine whether Appellant’s unauthorized interrogation:
    (1) constituted an assault as a matter of law; and (2) whether
    such conduct, if an assault, also constituted the use of deadly
    force for purposes of depriving Appellant of the right of self-
    defense.
    The ambiguous wording of the instruction created the
    potential for the members to interpret it as requiring the panel
    to conclude that self-defense would not apply unless the
    evidence demonstrated each of the following:    (1) an absence of
    assault; and (2) an escalation by the victim.   Such an
    interpretation -- fairly implied from the text of the
    instruction but an incorrect statement of the law -- created a
    fair risk of prejudice.   The instruction, compromising the right
    of Appellant to have the issue of self-defense decided by a
    properly instructed court-martial panel, constituted prejudicial
    error.   Article 59(a), UCMJ, 
    10 U.S.C. § 859
    (a) (2006).
    The majority opinion holds that any error was not
    prejudicial because no reasonable court-martial panel could have
    concluded that Appellant acted in self-defense.   __ M.J. at
    __ (23).   Under the majority view, Appellant did not have the
    right to defend himself, notwithstanding evidence that a person
    suspected of supporting the enemy rose up and reached for
    Appellant’s weapon during an interrogation.    The majority takes
    the position that Appellant, by virtue of conducting an
    15
    United States v. Behenna, No. 12-0030
    unauthorized interrogation that used improper techniques,
    including pointing a pistol at the suspect and using threatening
    words, did not have the right to defend himself when his life
    was threatened.   __ M.J. at __ (18-23).
    I respectfully disagree with the majority’s conclusion on
    the question of prejudice.   The evidence at trial established an
    issue of self-defense for resolution by the court-martial panel,
    not this Court.   The evidence at trial included testimony that:
    (1) the events occurred during an interrogation of a person
    suspected of aiding enemy forces; (2) the interrogation sought
    to obtain information for use in the combat theater of
    operations; (3) Appellant removed the suspect’s clothing,
    pointed a pistol at the suspect, and used threatening language
    for the purpose of obtaining useful information; and (4)
    Appellant had no intent to use deadly force against the suspect.
    Given the contested nature of this evidence at trial, the
    responsibility for deciding what occurred, and whether Appellant
    acted in self-defense, rested with a properly instructed court-
    martial panel.    See supra Part I.A.
    Under the majority’s approach, the panel should not have
    had the opportunity to consider factual issues raised by
    Appellant’s testimony, including whether the interrogation
    techniques amounted to the use of force likely to produce death
    or grievous bodily harm, whether Appellant intended to use the
    16
    United States v. Behenna, No. 12-0030
    interrogation techniques as a pretext for killing Ali Mansur, or
    whether Appellant reasonably apprehended that Ali Mansur rose up
    and reached for Appellant’s weapon for the purpose of killing
    Appellant.   These issues, however, were matters for resolution
    by a court-martial panel, not this Court.   See supra Part I.A.
    If the Government accuses a member of the armed forces of
    conducting an improper and abusive interrogation, the UCMJ
    provides ample authority to hold that person accountable in a
    court-martial.   See supra Part I.B.3.   Such accountability,
    however, does not require the servicemember to sacrifice the
    right of self-defense; nor does it deprive the servicemember of
    the right to have the panel decide whether, as a matter of fact,
    the circumstances justified the use of force to save the
    servicemember’s life from an attack by a person suspected of
    supporting the enemy.
    II.   DISCLOSURE OF EXCULPATORY EVIDENCE
    Issue II addresses the Government’s obligation to provide
    timely disclosure of exculpatory information to the defense.
    The information at issue had a direct bearing on Appellant’s
    view of the case -- that he acted in justifiable self-defense.
    The majority concludes that any failure by the Government to
    disclose exculpatory information to Appellant in a timely manner
    did not prejudice Appellant.   The majority relies primarily on
    the views set forth in the majority’s discussion of Issue I, in
    17
    United States v. Behenna, No. 12-0030
    which it concludes that any error with respect to the question
    of self-defense did not prejudice Appellant.    In the majority’s
    view, the question of self-defense had no decisional
    significance in the case, rendering harmless any error in the
    disclosure of exculpatory information.    I respectfully disagree.
    A. TRIAL PROCEEDINGS
    The prosecution retained at Government expense a highly
    respected authority in forensic evidence, Dr. Herbert MacDonell,
    as an expert consultant and possible expert witness.   During
    trial, the Government rested its case without calling Dr.
    MacDonell to testify, but continued to rely on him as an expert
    consultant during the presentation of the defense case,
    including the testimony of Appellant and the forensic experts
    called by the defense.
    On Wednesday, February 25, 2009, Dr. Paul Radelat and Mr.
    Tom Bevel testified as expert witnesses for the defense and
    offered their opinions on the forensic evidence.   They opined
    that the evidence indicated that Ali Mansur had been shot while
    standing, with the first shot to the chest and the second shot
    to the head.   That testimony had great significance for the
    defense, as it provided scientific support for the defense
    theory of the case.   In particular, that testimony tended to
    refute the Government’s theory that Appellant shot Ali Mansur
    while he was sitting, and it tended to support the defense
    18
    United States v. Behenna, No. 12-0030
    theory that Ali Mansur was in an upright position, moving
    towards Appellant’s weapon, when Appellant shot him in self-
    defense.
    Consistent with the standard practice for expert
    consultants and potential expert witnesses, Dr. MacDonell sat in
    the courtroom and listened to the testimony of the defense
    experts.   See M.R.E. 703.   After observing the testimony of the
    defense witnesses, Dr. MacDonell met with another Government
    consultant, Dr. Berg, and the three prosecutors to discuss
    strategy and possible rebuttal.
    The military judge later found that during this meeting,
    Dr. MacDonell “theorized and demonstrated that an unlikely but
    possible scenario, that was not inconsistent with the forensic
    evidence and the only logical explanation consistent with the
    testimony of Dr. Radelat and Mr. Bevel” was that Ali Mansur was
    shot first in the chest and second in the head.      The military
    judge also found that “[t]his theory was not inconsistent with
    the forensic evidence, but was inconsistent with all other
    evidence known to the Government counsel and Dr. MacDonell.”        At
    this point, Appellant had not yet taken the witness stand.
    On Thursday, February 26, 2009, Appellant testified that as
    Ali Mansur stood up and reached for his pistol, Appellant shot
    him twice.   Again, Dr. MacDonell was in the courtroom in his
    capacity as a Government expert.       After hearing Appellant’s
    19
    United States v. Behenna, No. 12-0030
    testimony, Dr. MacDonell told Dr. Berg, “That’s exactly what I
    told you yesterday.”   Late Thursday afternoon, the prosecution
    released Dr. MacDonell, who had requested permission to depart.
    As he left the courtroom, Dr. MacDonell approached the lead
    civilian defense counsel and said, “I would have made a great
    witness for you,” or words to that effect.   When asked what he
    meant by that, Dr. MacDonell responded that he couldn’t comment
    because he was hired by the Government.
    On Friday morning, February 27, 2009, the defense counsel
    approached the trial counsel, told her about the encounter with
    Dr. MacDonell, and asked her to explain what Dr. MacDonell meant
    by his remark.   The trial counsel said she did not know, and
    that she was unaware of any exculpatory information.   Neither
    party took any further action at that point, and the case
    proceeded to the announcement of findings Friday evening.
    In the evening, trial counsel received an e-mail sent by
    Dr. MacDonell earlier that afternoon, which included Dr.
    MacDonell’s observation that he was “concerned that I did not
    testify and have a chance to inform the court of the only
    logical explanation for this shooting,” namely that Ali Mansur
    was standing when shot. (Emphasis added.)    The trial counsel
    immediately forwarded it to the defense counsel on Friday night.
    The military judge also received a copy that night after the
    findings were announced.
    20
    United States v. Behenna, No. 12-0030
    On Saturday morning, February 28, 2009, the defense moved
    for a mistrial based upon the Government’s failure to disclose
    Dr. MacDonell’s opinion in a timely manner.   The military judge
    heard testimony on the motion from Dr. MacDonell and accepted an
    oral stipulation of fact as to the conversation between the
    defense counsel and the trial counsel.   Neither side offered
    additional testimony, but both the defense counsel and the trial
    counsel proffered their recollection of the events.    Ultimately,
    the military judge denied the motion for a mistrial.   He found
    that “[t]here is only one reasonable interpretation of Dr.
    MacDonell’s statement, in light of his area of expertise i.e.,
    that he would have testified that in his opinion the forensic
    evidence in some way favorably supported the Defense theory of
    the case.”   He also concluded that Dr. MacDonell’s statement to
    the defense that he would have made a good defense witness was
    sufficient notice that he possessed favorable information under
    both Brady v. Maryland, 
    373 U.S. 83
     (1963), and R.C.M. 701.
    The military judge, however, did not focus his inquiry on
    whether the trial counsel erred by not sooner exploring this
    issue with Dr. MacDonell.   Instead, the military judge expressed
    concern as to whether the defense counsel were ineffective, as a
    matter of law, in not conducting their own exploration of Dr.
    MacDonnell’s comment.   The military judge concluded that, even
    21
    United States v. Behenna, No. 12-0030
    if the defense team was deficient, there was no prejudice given
    the strong evidence supporting the murder conviction.
    B.    DISCUSSION
    An accused is entitled to “a meaningful opportunity to
    present a complete defense.”      California v. Trombetta, 
    467 U.S. 479
    , 485 (1984).   To aid the defense counsel in doing so, the
    government must disclose evidence that is material and favorable
    to the defense.    Brady, 
    373 U.S. at 87
    ; R.C.M. 701.       Before
    trial, the defense made a specific request for the disclosure of
    all exculpatory evidence.    In the present case, the Government
    bears the burden of proving, as a matter of law, that
    nondisclosure in response to a specific request is harmless
    beyond a reasonable doubt.       United States v. Webb, 
    66 M.J. 89
    ,
    92 (C.A.A.F. 2008).
    In view of the prosecution’s disclosure of Dr. MacDonell’s
    e-mail after the return of findings, the issue before us
    involves the timing of the disclosure.         Specifically, whether
    the disclosure to the defense on Friday night, after the return
    of findings, constituted timely disclosure in view of the
    prosecution’s awareness of Dr. MacDonell’s views prior to the
    return of findings.
    As noted by the United States Court of Appeals for the
    Second Circuit in Leka v. Portuondo, 
    257 F.3d 89
    , 100 (2d Cir.
    2001) (citations omitted):
    22
    United States v. Behenna, No. 12-0030
    It is not feasible or desirable to specify the extent
    or timing of disclosure Brady and its progeny require,
    except in terms of the sufficiency, under the
    circumstances, of the defense’s opportunity to use the
    evidence when disclosure is made. Thus disclosure
    prior to trial is not mandated. Indeed, Brady
    requires disclosure of information that the
    prosecution acquires during the trial itself, or even
    afterward.
    . . . At the same time, however, the longer the
    prosecution withholds information, . . . the less
    opportunity there is for use.
    The comments by Dr. MacDonell to the trial counsel on
    Wednesday afternoon placed trial counsel on notice that Dr.
    MacDonell held an opinion favorable to the defense that she had
    a duty to promptly disclose.   Irrespective of the duty on
    Wednesday afternoon, when the defense counsel approached the
    trial counsel and questioned her about Dr. MacDonell’s startling
    statement that he would have made a good defense witness, the
    trial counsel at that point had a duty to contact Dr. MacDonell,
    to inquire promptly into the meaning of that statement, and to
    disclose the information to the defense team as soon as
    possible.
    In denying the motion for a mistrial, the military judge
    concluded that even if the defense had sought to put Dr.
    MacDonell on the stand to offer his opinions, he would have
    ruled that testimony inadmissible.    The military judge set forth
    two reasons for that conclusion.     First, Dr. MacDonell’s opinion
    of the value of the forensic evidence never really changed.
    23
    United States v. Behenna, No. 12-0030
    Second, any “revised” opinion was not based on any reassessment
    of the evidence but merely reflected his evaluation of
    Appellant’s credibility.   The Court of Criminal Appeals held
    that the military judge would not have abused his discretion in
    precluding that testimony.   United States v. Behenna, 
    70 M.J. 521
    , 530 (A. Ct. Crim. App. 2011).     Even if the testimony had
    been admitted, the lower court concluded that the outcome of the
    trial would not have changed in view of the Government’s
    overwhelming evidence of guilt.    
    Id.
    The issue of whether Dr. MacDonell’s opinion was changed or
    revised has no bearing on the duty to disclose.    The information
    was favorable to the defense.   As noted by the military judge,
    the “only . . . reasonable interpretation of Dr. MacDonell’s
    statement . . . favorably supported the Defense theory of the
    case.”   The fact that Dr. MacDonell came to that view after
    considering the facts, data, and testimony presented during the
    court-martial underscores the importance of timely disclosure.
    See R.C.M. 703; United States v. Houser, 
    36 M.J. 392
    , 399
    (C.M.A. 1993).
    The record demonstrates that Dr. MacDonell’s potential
    testimony setting forth his expert views was not confined to a
    mere belief in the credibility of Appellant’s testimony.    He
    would have provided the court-martial panel with detailed,
    expert testimony, supplementing the information that had been
    24
    United States v. Behenna, No. 12-0030
    provided by the two defense experts, from the perspective of a
    Government-employed consultant of considerable reputation.    See
    United States v. Mustafa, 
    22 M.J. 165
    , 166 (C.M.A. 1986)
    (describing Dr. MacDonell as the “preeminent practitioner in the
    field”).
    The Government’s theory of the case, as articulated
    immediately prior to closing of the trial for deliberation on
    findings, underscores the prejudice to Appellant stemming from
    the failure to provide timely disclosure of Dr. MacDonell’s
    opinion.   The prosecution’s closing argument sought to assure
    the members that the testimony from the defense experts had
    little worth because they simply set forth possibilities instead
    of a definite opinion based upon the forensic evidence.    Had Dr.
    MacDonell been called to testify by the defense, it is
    reasonably foreseeable that he would have added further
    information from an important perspective, beyond the testimony
    of the defense experts, based upon his expertise in blood
    spatter analysis.
    III.   CONCLUSION
    A death occurred in the theater of operations.   A soldier
    has been convicted of murder.   Was it murder or self-defense?
    By law, the responsibility for making that factual determination
    rested with the court-martial panel, not with this Court.    The
    ambiguous, confusing, and incorrect instructions from the
    25
    United States v. Behenna, No. 12-0030
    military judge deprived Appellant of the right to have a panel
    of officers make that decision.    The military judge compounded
    that error by failing to take corrective action with respect to
    the Government’s failure to provide timely disclosure of
    exculpatory evidence.   This Court should reverse the decision of
    the Court of Criminal Appeals and authorize a rehearing.
    26