United States v. Staff Sergeant ROBERT BALES

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
Before
TOZZI, 1 SCHASBERGER, and BURTON
Appellate Military Judges
UNITED STATES, Appellee
v.
Staff Sergeant ROBERT BALES
United States Army, Appellant
ARMY 20130743
Headquarters, I Corps
Jeffery R. Nance, Military Judge
Colonel William R. Martin, Staff Judge Advocate
For Appellant: Mr. Aaron B. Maduff, Esquire (argued); Major Christopher D.
Coleman, JA; Mr. John N. Maher, Esquire; Mr. John D. Carr, Esquire; Mr. Aaron B.
Maduff, Esquire (on brief and reply brief).
For Appellee: Captain Austin L. Fenwick, JA (argued); Colonel Mark H. Sydenham,
JA; Lieutenant Colonel A.G. Courie III, JA; Captain Tara O’Brien Goble, JA;
Major Anne C. Hsieh, JA (on brief); Major Michael Korte, JA.
27 September 2017
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MEMORANDUM OPINION
-----------------------------------
This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.
BURTON, Judge:
In the early morning hours of 11 March 2012, appellant walked off his
military outpost, Village Stability Platform (VSP) Belambay in Kandahar Province,
Afghanistan, and entered two Afghan villages nearby where he shot twenty-two
Afghan civilians in their homes, murdering sixteen of them and wounding six.
Appellant now seeks a sentence rehearing alleging the prosecution failed to disclose
evidence related to his case, the court failed to investigate a military judge’s
disclosure of protected information, and an unreasonable multiplication of charges
for sentencing. We disagree and affirm the findings and sentence.
A military judge sitting as a general court-martial, convicted appellant,
pursuant to his pleas, of sixteen specifications of premediated murder, six
1
Senior Judge Tozzi took final action while on active duty.
BALES—ARMY 20130743
specifications of attempted murder, one specification of violating a lawful general
order, one specification of wrongfully using a Schedule II controlled substance, four
specifications of intentional infliction of grievous bodily harm, one specification of
assault with a dangerous weapon, one specification of assault consummated by
battery, 2 and one specification of wrongfully burning bodies, in violation of
Articles 80, 92, 112a, 118, 128 and 134, Uniform Code of Military Justice, 10 U.S.C
§§ 880, 912a, 918, 928, 934 (2012) [hereinafter UCMJ]. A panel sentenced
appellant to a dishonorable discharge, confinement for life without the possibility of
parole, forfeiture of all pay and allowances and reduction to the grade of E-1. The
convening authority deferred the reduction in rank and the adjudged forfeitures until
action. The remainder of the sentence was approved. The automatic forfeitures of
all pay and allowance required by Article 58b, UCMJ, were further waived at action
for a period of six months with direction that these funds be paid for the benefit of
appellant’s wife and children. Appellant was credited with 527 days of pretrial
confinement credit.
We review this case under Article 66, UCMJ, and conclude one of appellant’s
assigned errors merits discussion but no relief. Similarly, we considered those
matters personally raised by appellant pursuant to United States v. Grostefon, 12
M.J. 431 (C.M.A. 1982), one of which also warrants discussion but no relief.
BACKGROUND
Appellant was deployed to Afghanistan and was stationed at VSP Belambay.
In the early morning hours of 11 March 2012, appellant left VSP Belambay and
travelled to the village of Alikozai. Appellant was armed with his M4 rifle, H&K 9
millimeter pistol, advance combat helmet with night vision device, one full
magazine containing thirty 5.56mm rounds for his M4 and one magazine containing
fifteen 9mm rounds for his H&K pistol. While in Alikozai, appellant killed four
people by shooting them at close range, which included two elderly men, one elderly
woman and one child. Appellant also assaulted six people, which included one
woman and four children.
When appellant ran low on ammunition, he returned to VSP Belambay to
obtain additional ammunition. Appellant left VSP Belambay for a second time, this
time armed with his M4 rifle, 9mm H&K pistol, M320 grenade launcher with
accompanying ammunition belt, night vision device and ammunition for all of his
weapons. Walking south, appellant entered the village of Naja Bien. While in Naja
Bien, appellant entered a home where a family was sleeping. Appellant pulled a man
from the home to an adjacent courtyard, where he killed the man in front of his
family by shooting him at close range. Appellant then entered another home where a
different family was sleeping. With the fire selector switch on his M4 set for three-
2
In February 2012, appellant assaulted an Afghan truck driver in front of several
junior enlisted soldiers.
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round bursts, he shot ten people in the head at close range, which included three
women and six children. Appellant then grabbed a kerosene-filled lantern from the
floor, emptied the contents onto the bodies of the individuals he had just murdered,
lit a match and set the bodies on fire. As he was leaving, appellant shot an elderly
woman in the chest and head at close range with his 9mm. The woman did not die
from being shot so appellant crushed her skull with his boot, stomping with so much
force that her face and head were mutilated.
As appellant was returning to VSP Belambay, he was met by three soldiers.
The soldiers seized appellant’s M4 rifle, M320 grenade launcher, H&K 9mm pistol,
numerous magazines and ammunition for those three weapons as well as appellant’s
helmet, night vision device, and a large piece of blue decorative fabric that appellant
had taken from one of the homes and was wearing on his back. Appellant’s clothes
were soaked in blood.
Appellant was escorted to the Operations Center, were he was guarded by two
soldiers until special agents from the Criminal Investigation Command (CID)
arrived. While being guarded, appellant made several statements to include: “I
thought I was doing the right thing,” “I’m sorry that I let you guys down,” “My
count is twenty,” “It’s bad, it’s really bad,” and “We should have hit them harder.”
When CID arrived, the special agents seized appellant’s computer, clothing,
weapons, and ammunition. They also discovered and seized anabolic steroids that
appellant had hidden under the boardwalk outside of his room.
LAW AND DISCUSSION
A. Alleged Due Process and Discovery Violations
On appeal, appellant claims he is entitled to a new sentencing hearing
because, inter alia, the government violated his due process and discovery rights and
committed fraud upon the court-martial. Appellant’s claims are largely based on his
post-trial discovery of “undisclosed evidence” that is not properly before this court.
Specifically, appellant moved this court to attach as an appellate exhibit a
declaration from a defense consultant, who was retained post-trial, which
purportedly “linked” several government witnesses to improvised explosive device
(IED) events both before and after the charged offenses. Although offered in the
form of a sworn declaration, the information contained in the declaration and
accompanying enclosure was of uncertain origin, authenticity, reliability, and
classification. Moreover, appellant’s assertion that the information in the
declaration was known to the government prior to trial was made without supporting
evidence. Accordingly, after our initial consideration and subsequent
reconsideration, we denied appellant’s request to attach the declaration to the
appellate record. Therefore, any claim of relief based on this “undisclosed
evidence” is unfounded.
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The Due Process Clause of the Fifth Amendment requires the prosecution to
disclose evidence that is material and favorable to the defense. Brady v. Maryland,
373 U.S. 83, 87 (1963). Evidence is said to be material “‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Kyles v. Whitley, 514 U.S. 419, 433-434
(1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). This is an
affirmative duty to disclose and requires no triggering action by the defense.
Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing United States v. Agurs, 427
U.S. 97, 107 (1976)). The “duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case, including the police” has long
been a recognized duty of trial counsel. Kyles, 514 U.S. at 437. In order to have “a
true Brady violation[, t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must have
ensued.” Strickler, 527 U.S. at 281-82. Courts have a responsibility to consider the
impact of undisclosed evidence dynamically, in light of the rest of the trial record.
United States v. Pettiford, 627 F.3d 1223, 1229 (D.C. Cir. 2010) (citing Agurs, 427
U.S. at 112). “Once a Brady violation is established, courts need not test for
harmlessness.” United States v. Behenna, 71 M.J. 228, 238 (C.A.A.F. 2012) (citing
Kyles, 514 U.S. at 435-36).
In addition, “Article 46, UCMJ, provides the trial counsel, defense counsel,
and the court-martial with ‘equal opportunity to obtain witnesses and other evidence
in accordance with’ the rules prescribed by the President.” United States v. Stellato,
74 M.J. 473, 481 (C.A.A.F. 2015) (quoting Article 46, UCMJ). The procedural rules
as prescribed by the President explain the trial counsel’s unique obligations in
furtherance of this statutory mandate by Congress. In this case, there are two
pertinent provisions. First, Rule for Courts-Martial [hereinafter R.C.M.] 701(a)(6)
states: “[t]he trial counsel shall, as soon as practicable, disclose to the defense the
existence of evidence known to the trial counsel which reasonably tends to [n]egate”
or “[r]educe” the guilt or punishment of the accused. Second, R.C.M. 701(a)(2)(A)
provides the trial counsel shall permit the defense to inspect certain items “which
are within the possession, custody, or control of military authorities, and which are
material to the preparation of the defense . . . .”
The former provision “is limited to information ‘known to the trial
counsel[,]’” but does not require materiality or a triggering request by the defense.
United States v. Shorts, 76 M.J. 523, 530-31 (Army Ct. Crim. App. 2017) (quoting
R.C.M. 701(a)(6)). Conversely, the latter provision is not limited to information
known to the trial counsel, but requires materiality and an express request to trigger
the government’s obligation because “[w]ithout the request, a trial counsel might be
uncertain in many cases as to the extent of the duty to obtain matters not in the trial
counsel’s immediate possession.” R.C.M. 701 analysis at A21-34. As we have
stated before, the distinction between the two provisions is significant, because
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“whether the trial counsel exercised reasonable diligence in response to the request
will depend on the specificity of the request.” Shorts, 76 M.J. at 530.
Limiting our consideration to the record properly before us and with the above
legal framework in mind, we review de novo appellant’s remaining claims related to
his initial discovery request and the “rumors” concerning a government witness. See
United States v. Roberts, 59 M.J. 323, 326 (C.A.A.F. 2004) (distinguishing between
the deference ordinarily given to discovery ruling by a military judge and the de
novo review of purely legal questions like a “military judge’s determination of
materiality”).
1. Appellant’s Initial Discovery Request
In this case, the scope of appellant’s pretrial discovery requests included the
following:
2. Any books, papers, emails . . . computer files . . . which
are in the possession, custody, or control of military or
U.S. and Afghani [sic] authorities, and which are material
to the preparation of the defense . . . .
....
[6.]d. All material, emails, documents, etc[.] . . .
related to updates regarding the progress of this case
provided to any person, organization, Government entity
(military or civilian) or any foreign military or civilian
person or organization. . . . This request is on-going.
....
24. Disclosure of all evidence affecting the credibility of
any and all witnesses, potential witnesses, complainants,
victims, and persons deceased (“these persons”) who were
in any way involved with the instant case and/or any
charged or uncharged related offenses, including but not
limited to:
a. . . . all Afghan or intelligence files or data lists
....
b. Any information of any prior and/or subsequent
propensity on the part of any witness and/or alleged victim
to be an aggressor, to incite aggressive behavior, and or
any other pertinent trait of character of any witness and/or
alleged victim. M.R.E. 404(a)(2) and (a)(3).
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The government’s response to appellant’s discovery request included Bates-
stamped and indexed files delivered to the defense in excess of 36,000 pages.
Additionally, the government provided broad discovery of classified evidence, which
included several hundred pages of documents in indexed form, as well as DVDs with
copies of entire folders from the Special Operations Task Force-Secret share portal,
the Coalition Task Force (CTF) Arctic Wolves share portal, and the CTF Arrowhead
share portal.
Defense counsel filed a motion to compel discovery in which they
acknowledged that they “cannot provide the exact information that it seeks, nor can
the Defense tell the Government of the location of such evidence.” At a subsequent
hearing, defense counsel stated: “Sir, since the original filing of the defense
discovery request back in January, of course most of these things have in fact taken
care of themselves.” (emphasis added). Defense counsel raised a few outstanding
discovery issues but none of the remaining issues related to biometric data or
derogatory information for any of the government’s witnesses. Therefore, regarding
the discovery of evidence under R.C.M. 701(a)(2), appellant’s initial request for
information about the character of the victims and government witnesses appears to
have been satisfied or abandoned.
2. Appellant’s Request for Character Evidence Related to a Government Witness
The government filed a motion in limine that sought to limit defense counsel’s
references to unsubstantiated allegations regarding the victims, to include arguments
that one of the government witnesses had ties to the Taliban. Specifically, the
government wanted to exclude from evidence the unverified claim that BN’s
biometric data appeared to match the biometric data of a former Coalition Forces
detainee. In a subsequent motions hearing, defense counsel represented to the
military judge that while they intended “to portray the general atmosphere” in which
appellant committed the offenses, they did not intend to offer evidence “as to the
innocence of the victims as a whole group.” Instead, defense counsel’s request for
character evidence was limited to the rumors pertaining to BN, as articulated in the
following discussion:
ATC1: Yes, Your Honor. There was innuendo and
rumor potentially that there had been an investigation
related to this one witness. That led to our initial filing of
the motion. We have subsequently, pursuant to a request
from the defense, we had asked before as well, re-inquired
of the Department of State to see if there is any document,
any investigation, any paperwork whatsoever to a negative
response -- in other words, they responded that they have
no such investigation, they have no documentation
whatsoever to that effect. We replied on 16 August, last
Friday, to the defense to that effect. So there is nothing to
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provide. Obviously we understand Brady and the
requirements thereof. We have nothing to give the
defense because we have inquired and ----
MJ: And there is none?
ATC1: As far as we know based on our inquires ----
MJ: As long as the [S]tate [D]epartment is telling
you the truth?
ATC1: Yes, Your Honor, and we certainly believe
that they are.
MJ: So do I.
CDC: Your Honor, I guess then the defense, we’ll
submit that for a discovery request. I’d still like to know
what the rumor was, what the information is, where this
came up. We had no idea of this issue at all until they
moved to exclude it. So I’d just like to know what is
going on at all.
MJ: Okay. Well, get with them and find out. The
other side of this though, Defense, is -- I mean, even if the
information does exist, and it is, you know, potentially
Brady material, it seems to me that it relates to the
defense’s [sic].
CDC: Your Honor, the defense’s position would be
that that depends what the witness testifies to on the stand.
So for instance, if the witness was in fact detained by
[C]oalition [F]orces in [sic] found to be a member of the
insurgency and the witness testifies on the stand that he is
not and never has been a member of that and goes on
about it, then it becomes relevant as something besides the
defense.
MJ: Well, is this witness testifying?
ATC1: He is, Your Honor.
MJ: Okay. Is somebody going to ask him that
question?
ATC1: We don’t intend to, Your Honor.
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CDC: I’m not going to ask him, but I have no idea,
as the government has pointed out, what he’s actually
planning to say on the stand.
MJ: Back to that. Okay. Well, you all get together
and talk about this ----
CDC: Okay.
MJ: ---- and if we need to talk about it further, we
can talk about it further. But it seems to me that, you
know, the trial counsel has done their due diligence and
they’ve received the response from the [S]tate
[D]epartment that there is no such investigation. Now,
they can tell you where they heard this rumor from, you
know, and you all can run that to the ground if you want to
and see if there’s anything there that needs to be. But I
don’t think the discovery rules, nor Brady, require the
government to hold a congressional investigation into the
[S]tate [D]epartment’s assertion that there was no such
investigation to make sure that, under oath, somebody
from the [S]tate [D]epartment says that there was no such
investigation. I think they’ve done, in other words, what
they are required under the law to do to determine if
there’s any investigation into this individual such that
there may be Brady material to provide to the defense.
CDC: Yes, Your Honor.
MJ: All right. So you all get together and figure
out where the rumor came from and if there’s anything
that grows out of that that I need to hear about and decide
on, let me know and I will.
ATC1: Yes, Your Honor.
MJ: Otherwise, I’m going to mark this as resolved;
not requiring a ruling from me at this point, that’s what
resolved stands for.
Here, the record of trial demonstrates the government’s prior knowledge of
the claimed “undisclosed evidence” was limited to unsubstantiated rumors. The
government’s efforts to substantiate the rumors left them uncorroborated.
Consistent with our holding in Shorts, “to comply with Brady, a trial counsel must
search his or her own file, and the files of related criminal and administrative
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investigations. However, consistent with our superior court’s interpretation of the
issue, we require a trial counsel only exercise due diligence.” 76 M.J. at 532 (citing
United States v. Simmons, 38 M.J. 276 (C.A.A.F. 1993)). We find trial counsel
exercised the diligence due under Brady and as required under R.C.M. 701(a).
Furthermore, we presume any concerns defense counsel had at the time of trial were
resolved or abandoned as no further action was taken on the record pertaining to BN.
Appellant has failed to show on appeal that the government’s efforts to discover
information related to BN or any other witness were either insufficient or
disingenuous.
3. Immateriality of the “Undisclosed Evidence”
Notwithstanding the apparent satisfaction or abandonment of appellant’s
evidentiary requests, we specifically note the lack of materiality concerning the
allegedly “undisclosed evidence” pertaining to BN (and the other witnesses and
victims). Even assuming the information pertaining to these witnesses was
discovered and disclosed to appellant before trial, we see no scenario for the use of
such evidence for impeachment during the presentencing phase of trial based on the
witnesses’ testimony. 3 This is particularly true where, as in this case, appellant has
disclaimed any lawful justification for his use of deadly force in the following
stipulation of fact:
Specifically, the Accused did not honestly believe that any
of his victims intended to immediately kill him or inflict
grievous bodily harm against him, and it was objectively
unreasonable to believe that any of his victims from the
night of 11 March 2012 posed an immediate threat when
he attacked them while they were peacefully in their
homes, mostly asleep, all unarmed, and while the Accused
was heavily armed with multiple lethal firearms. The
Accused agrees that most of his victims were women,
children, and old men, not military-age males. The
Accused agrees that he had no intelligence that any of his
victims were members of the insurgency or enemy
combatants. He did not have any information that the
homes where he committed the massacres housed any
members of the insurgency or enemy combatants.
3
At trial, defense counsel conceded the information they believed about BN would
not be relevant unless BN was questioned and denied any involvement with IEDs or
the Taliban. BN testified about the appearance of his brother after he was murdered
and the impact of his brother’s death on his family. BN was not questioned by the
defense.
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....
The Accused specifically waives the defense of defense of
others. The Accused understands that defense of others
may be a complete defense to the offenses of Charges I, II,
and III in this case, and recognizes that this defense does
not apply to him. Specifically, the Accused did not have a
reasonable belief that death or grievous bodily harm was
about to be inflicted on him or his fellow Soldiers at VSP
Belambay. The Accused did not have a reasonable belief
that death or grievous bodily harm was about to be
inflicted on any person defended, and did not actually
believe that the force he used was necessary to protect any
person. The Accused’s victims, resting or sleeping in
their own homes, posed no threat whatsoever to the
personnel on VSP Belambay or any other Coalition Forces
in Afghanistan at the time of the Accused’s murders.
....
The Accused specifically waives the defense of obedience
to orders. The Accused was not acting under any order
from any person of authority to commit any of the acts
that form the basis for the charges in this case. He did not
believe that he was acting pursuant to any lawful order or
authority.
(emphasis added). There was no information the government possessed that was not
disclosed to appellant. Even assuming, arguendo, there was, the evidence appellant
suggests was immaterial. Therefore, we find no basis for granting appellant’s
requested relief.
B. Government’s Sentencing Argument
Relying on the same “undisclosed evidence,” appellant alleges the government
committed fraud upon the defense and the court-martial panel during presentencing
argument by referring to the witnesses and victims as “innocent” or “farmers.” 4 At
trial, defense counsel made no objections to the government’s use of either
reference. However, on appeal, appellant specifically alleges as fraudulent the
following argument by the government:
4
In argument spanning nineteen pages in the trial transcript, the government referred
to innocent people approximately six times and made two references to farming.
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Most of the people in Alikozai, like the people who live at
the two homes you see in front of you, are farmers making
a living growing crops, typically of grape or wheat,
oftentimes on someone else’s property.
....
While [appellant] continues his walk home, just a
thousand meters away at FOB Zangabad, [appellant’s]
victims from the village of Alikozai have arrived, having
been brought there by the heroic efforts of [F, son of MN]
. . . . [F, son of NM,] brings with him five of those six
injured from Alikozai; [including] . . . [R, son of S,] shot
through both legs, a bullet still lodged in one of them . . . .
As Dr. Hawks and his medics were frantic in saving
innocent lives rather than take them, [appellant] continues
his leisurely walk home.
In general, “‘[d]eviation from a legal rule is error unless the rule has been
waived.’” United States v. Ahern, 76 M.J. 194, 197 (C.A.A.F. 2017) (quoting United
States v. Girouard, 70 M.J. 5, 10 (C.A.A.F. 2011)). As our superior court has
explained, “[while an appellate court] reviews forfeited issues for plain error,
[appellate courts] do not review waived issues because a valid waiver leaves no error
to correct on appeal.” Id. (internal citation omitted). “‘Whereas forfeiture is the
failure to make a timely assertion of a right, waiver is the intentional relinquishment
or abandonment of a known right.’” Id. (quoting United States v. Gladue, 67 M.J.
311, 313 (C.A.A.F. 2009)). “‘Whether a particular right is waivable; whether the
defendant must participate personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant’s choice must be particularly
informed or voluntary, all depend on the right at stake.’” Id. (quoting United States
v. Olano, 507 U.S. 725, 733 (1993)). Ultimately, whether an appellant has waived
an issue is a question of law we review de novo. Id. (citing United States v.
Rosenthal, 62 M.J. 261, 262 (C.A.A.F. 2005)).
Pursuant to Article 36(a), UCMJ, Congress delegated to the President the
authority to prescribe procedural and evidentiary rules for courts-martial. Under the
applicable procedural rules, the President has prescribed that the “[f]ailure to object
to improper argument before the military judge begins to instruct the members on
findings shall constitute waiver of an objection.” R.C.M. 919(c) (emphasis added).
Similar to the procedural rule at issue in Ahern, “[t]his is not a case where the rule
uses the word ‘waiver’ but actually means ‘forfeiture.’” 76 M.J. at 197 (citing as an
example R.C.M. 920(f), which equates the failure to object to panel instructions with
“waiver of the objection in the absence of plain error”). Therefore, as a matter of
law, appellant is not entitled to the three-part review for plain error. Instead,
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appellant is entitled to a review of the validity of his waiver. 5 See id. (contrasting
the review applicable to forfeited issues and waived issues).
In this case, appellant failed to object to a single reference of “innocent
people” or “farmers” during argument. Accordingly, this issue is waived and there
is no legal error to correct on appeal. Moreover, there is no cause for us to exercise
our discretionary authority to address this issue notwithstanding appellant’s waiver.
Even assuming appellant preserved this issue for appellate review, we find neither
error in nor prejudice from trial counsel’s argument. In its full context, trial
counsel’s reference to “innocent people” or “farmers”, “did not manipulate or
misstate the evidence.” Darden v. Wainwright, 477 U.S. 168, 182 (1986). In fact,
the innocent people referred to were in their homes asleep when they were attacked
by appellant.
C. Appellant’s Alleged Use of Lariam
At his guilty plea, appellant waived the defense of voluntary intoxication. On
appeal, however, appellant personally avers the government failed to provide him
with information that he had been prescribed an anti-malaria medication called
Lariam, also known by its chemical component name mefloquine hydrochloride. To
support this claim, appellant submitted an affidavit from a noncommissioned officer
who believed appellant was prescribed Lariam. Appellant also provided an affidavit
from Dr. Remington Nevin, a medical expert retained by appellant in 2017, who
similarly believed appellant was exposed to Lariam during his deployment to Iraq in
2003-2004. Appellant concedes his medical records are void of any information
about him being prescribed Lariam. Instead, appellant’s medical records indicate he
was prescribed a different anti-malaria medication, doxycycline hyclate, on
4 October 2011 and the prescription was last refilled on 11 April 2012.
Based on these facts, appellant makes a two-fold assumption. First, he
surmises that since a full bottle of doxycycline was collected among his personal
effects after the charged offenses, he could not have been taking doxycycline.
Second, he assumes he must have been taking Lariam as an alternative anti-malarial
medication. However, appellate did not submit an affidavit claiming he ingested
Lariam, nor did he provide an affidavit from any person that saw him take Lariam.
5
Although this court can review issues waived at trial pursuant to its Article 66(c),
UCMJ, authority, “[w]aiver at the trial level continues to preclude an appellant from
raising the issue before either” this court or our superior court. United States v.
Chin, 75 M.J. 220, 223 (C.A.A.F. 2016) (citing Gladue, 67 M.J. at 313-14). Based
on the facts in this case, we see no need to engage in a lengthy discussion or grant
relief for these waived issues.
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In response to the government’s pretrial motion to compel reciprocal
discovery, appellant admitted he was not aware of any medical records suggesting he
was prescribed Lariam. In response, the government filed a subsequent motion to
preclude evidence that appellant ingested Lariam. At the hearing on this motion, the
military judge stated, “my understanding of that is that the defense doesn’t intend to
offer any evidence about that drug [Lariam] at all. That was my understanding of
the defense’s response.” The defense responded, “That’s correct, Your Honor.”
To resolve this issue raised on appeal, appellant requests a fact-finding
hearing pursuant to United States v. DuBay, 17 U.S.C.M.A. 147, 37 C.M.R. 411(1967). Under the circumstances of this case, however, we see no need to order a
DuBay hearing. Appellant’s factual allegations—even if true—would not result in
relief. United States v. Ginn, 47 M.J. 236, 248 (C.A.A.F. 1997). Furthermore, the
affidavits of the noncommissioned officer and Dr. Nevin “[do] not set forth specific
facts but consist instead of speculative [and] conclusory observations . . . .” Id.Moreover, “the appellate filings and the record as a whole ‘compellingly
demonstrate’ the improbability of [appellant’s claims].” Id. Applying the first,
second, and fourth Ginn principles to appellant’s submission, we reject appellant’s
claim that he was likely exposed to Lariam. Even assuming appellant was prescribed
Lariam, there would still be no evidence he actually took it and was under its
influence during the commission of his crimes.
CONCLUSION
On reconsideration of the entire record, the findings of guilty and the sentence
are AFFIRMED.
Senior Judge TOZZI and Judge SCHASBERGER concur.
FOR THE COURT:
FOR THE COURT:
JOHN P. TAITT
JOHNClerk
Acting P. TAITT
of Court
Acting Clerk of Court
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