United States v. Webb

UNITED STATES, Appellant
v.
Demond WEBB, Staff Sergeant
U.S. Air Force, Appellee
No. 07-5003
CCA Misc. Dkt. No. 2007-01
United States Court of Appeals for the Armed Forces
Argued December 10, 2007
Decided March 3, 2008
STUCKY, J., delivered the opinion of the Court, in which EFFRON,
C.J., and BAKER, ERDMANN, and RYAN, JJ., joined.
Counsel
For Appellant: Major Donna S. Rueppell (argued); Colonel Gerald
R. Bruce and Major Matthew S. Ward (on brief).
For Appellee: Captain Timothy M. Cox (argued); Lieutenant
Colonel Mark R. Strickland (on brief).
Military Judge: Nancy J. Paul
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Webb, No. 07-5003/AF
Judge STUCKY delivered the opinion of the Court.
The Judge Advocate General of the Air Force certified two
issues to this Court under Article 67(a)(2), Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 867(a)(2) (2000). The
certification asks this Court to determine whether, before
authentication of the record, the military judge had authority
to order a new trial for a discovery violation and whether the
military judge abused her discretion exercising that authority
in this case. We find that the military judge had the authority
to order a new trial and that she did not abuse her discretion
in doing so.
I.
Appellee consented to a urinalysis after being involved in
a fuel spill mishap at his duty section. After consenting to
provide a urine specimen for testing, Appellee reported to the
testing site. Technical Sergeant (TSgt) Andrew Herring, the
assigned observer, directly witnessed Appellee provide a
specimen. Appellee’s urine tested positive for a metabolite of
cocaine. The Government charged Appellee with a single use of
cocaine based on the results of the urinalysis. Article 112a,
UCMJ, 10 U.S.C. § 912a (2000).
On May 4, 2006, Appellee’s defense counsel requested
discovery of any evidence that would affect a witness’s
credibility, including prior disciplinary actions under Article
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15, UCMJ, 10 U.S.C. § 815 (2000). In late September or early
October 2006, trial counsel interviewed TSgt Herring. TSgt
Herring told the trial counsel that he had been punished under
Article 15, UCMJ. Trial counsel did not ask the basis for the
Article 15, UCMJ, nor did he disclose the existence of the
Article 15, UCMJ, to defense counsel.
On November 28, 2006, only seven days before trial was to
begin, the trial counsel directed the Noncommissioned Officer in
Charge (NCOIC) of the Military Justice Section to request any
derogatory data regarding the witnesses from the Air Force
Personnel Center. The NCOIC did so the same day, but neither he
nor trial counsel followed up on the request.
Appellee’s court-martial began on December 5, 2006.
Appellee pled not guilty and denied using cocaine. To establish
part of the chain of custody of the urine specimen, the
Government offered a stipulation of expected testimony from TSgt
Herring, the person who observed Appellee provide the urine
specimen. Ultimately, a general court-martial, consisting of
members, convicted Appellee of using cocaine and, on December 7,
2006, sentenced him to a bad-conduct discharge, confinement for
three months, forfeiture of all pay and allowances, and
reduction to E-1.
On December 13, 2006, the NCOIC received a response to the
derogatory data request, showing that TSgt Herring had been
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punished for making a false official statement, making a false
claim, and larceny. Under installation regulations, TSgt
Herring’s disciplinary history would have disqualified him from
acting as a urinalysis observer. TSgt Herring had not disclosed
his prior Article 15, UCMJ, punishment on any of the many
occasions he acted as an observer, even after signing briefing
sheets acknowledging his understanding that such would
disqualify him. Trial counsel disclosed the Article 15, UCMJ,
to the defense counsel the following day.
On January 5, 2007, before the military judge authenticated
the record of trial, Appellee moved for a post-trial hearing,
Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2000), and a new trial,
arguing that the Government violated his due process rights by
failing to disclose TSgt Herring’s nonjudicial punishment.
Appellee asserted that he could have used this evidence to
impeach TSgt Herring’s credibility, and the Government’s failure
to disclose the prior punishment prevented him from presenting a
full defense in this “naked” urinalysis case.1
The military judge granted Appellee’s motion for the post-
trial hearing and for a new trial. The Government appealed
under Article 62, UCMJ, 10 U.S.C. § 862 (2000). United States
v. Webb, Misc. Dkt. No. 2007-01 (A.F. Ct. Crim. App. May 10,
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2007). At the Air Force Court of Criminal Appeals, the
Government challenged both the authority of the military judge
to order a new trial and her ultimate decision to grant a new
trial. Id. at 3. The Government claimed that Rule for Courts-
Martial (R.C.M.) 1210(a) permits a new trial only after the
convening authority approves findings and sentence. Id.Relying on United States v. Meghdadi, 60 M.J. 438 (C.A.A.F.
2005), the Air Force Court held that the military judge had
authority to consider the request for a new trial. Id. The
court also found the military judge did not abuse her discretion
in ordering a new trial. Id. at 4. After the Air Force Court
denied a Motion for Reconsideration and Reconsideration En Banc,
the Judge Advocate General of the Air Force certified the issues
to this Court on July 17, 2007.
II.
The Government argues that the military judge had no
authority to order a new trial under the plain language of
Article 73, UCMJ, 10 U.S.C. § 873 (2000), and R.C.M. 1210.
Article 73, UCMJ, reads:
At any time within two years after approval by
the convening authority of a court-martial
sentence, the accused may petition the Judge
Advocate General for a new trial on the grounds
of newly discovered evidence or fraud on the
1
A court-martial for drug use based solely on positive results
of a urinalysis test, without any other evidence of illegal drug
use, has become known as a “naked” urinalysis case.
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court. If the accused’s case is pending before a
Court of Criminal Appeals or before the Court of
Appeals for the Armed Forces, the Judge Advocate
General shall refer the petition to the
appropriate court for action. Otherwise the
Judge Advocate General shall act upon the
petition.
R.C.M 1210(a) mirrors the language of the statute and provides
implementing guidance. The Government asserts that the language
of the statute limits new trial petitions to a specific period
-- the two years after the convening authority’s action.
According to the Government, a petition was not authorized in
this case because the convening authority has not acted, and the
military judge had no authority to order one.
We faced an analogous situation in United States v. Scaff,
29 M.J. 60 (C.M.A. 1989). Therein, we noted that Article 39(a),
UCMJ, authorized military judges “to take such action after
trial and before authenticating the record as may be required in
the interest of justice.” Id. at 65 (citing United States v.
Griffith, 27 M.J. 42 (C.M.A. 1988) (holding that the military
judge could grant a motion for a finding of not guilty after
conclusion of trial if he concluded the evidence was legally
insufficient); United States v. Brickey, 16 M.J. 258 (C.M.A.
1983); United States v. Witherspoon, 16 M.J. 252 (C.M.A. 1983)).
“[U]ntil the military judge authenticates the record of trial,
he may conduct a post-trial session to consider newly discovered
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evidence and, in proper cases, may set aside findings of guilty
and the sentence.” Id.The Government argues that the language from Scaff is
dictum, and that we have not held that a military judge has the
authority to order a new trial under Article 73, UCMJ. We agree
that a military judge does not have authority under Article 73,
UCMJ, to order a new trial. But that is not what happened in
this case. The military judge ordered a new trial under her
Article 39(a), UCMJ, authority to resolve matters that arise
after trial that “substantially affect the legal sufficiency of
any findings of guilty,” R.C.M. 1102(b)(2), based on the post-
trial discovery of the trial counsel’s failure to provide the
defense with evidence that could have been used to impeach TSgt
Herring. Her actions were consistent with the language in both
Scaff and Meghdadi. In Meghdadi, for example, this Court held
that a military judge erred in denying a request for a post-
trial Article 39(a), UCMJ, session to consider whether to order
a new trial. 60 M.J. at 439. In doing so, this Court found
that Scaff had “removed any substantive distinction between a
military judge’s authority to consider post-trial issues under
R.C.M. 1102(b)(2) and R.C.M. 1210(f).” Id. at 441. If it was
impossible for the military judge in Meghdadi to order a new
trial, we would not have held he erred by refusing to hold an
Article 39(a), UCMJ, session to consider doing so. See id.7
United States v. Webb, No. 07-5003/AF
We confirm our conclusion in Scaff. Prior to
authentication, a military judge has authority under Article
39(a), UCMJ, “to convene a post-trial session to consider newly
discovered evidence and to take whatever remedial action is
appropriate.” Scaff, 29 M.J. at 66.
III.
Having concluded that the military judge had the authority
to order a new trial as a remedial action under Article 39(a),
UCMJ, and R.C.M. 1102(b)(2), we must determine whether she
abused her discretion in doing so. We hold that she did not.
The Due Process Clause of the Fifth Amendment guarantees
that “criminal defendants be afforded a meaningful opportunity
to present a complete defense.” California v. Trombetta, 467
U.S. 479, 485 (1984) (holding the Due Process Clause of the
Fourteenth Amendment requires criminal prosecutions to comply
with notions of fundamental fairness); United States v. Mahoney,
58 M.J. 346, 349 (C.A.A.F. 2003). That guarantee requires the
prosecution to disclose to the defense “evidence favorable to an
accused . . . where the evidence is material either to guilt or
to punishment.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The
Supreme Court has defined “favorable evidence” to include
“Impeachment evidence . . . that, if disclosed and used
effectively, it may make the difference between conviction and
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acquittal.” United States v. Bagley, 473 U.S. 667, 676 (1985)
(citations omitted).
However, like other forms of exculpatory evidence,
impeachment evidence is “material” to guilt or
punishment “only if there is a reasonable probability
that, had the evidence been disclosed to the defense,
the result of the proceeding would have been
different.” Id. at 682. Under the “reasonable
probability” standard of materiality, “[t]he question
is not whether the defendant would more likely than
not have received a different verdict with the
evidence, but whether in its absence he received a
fair trial.” Kyles[ v. Whitley], 514 U.S. [419, 434
(1995)]. Therefore, “[a] ‘reasonable probability’ of
a different result is . . . shown when the
government’s evidentiary suppression ‘undermines
confidence in the outcome of the trial.’” Id.(quoting Bagley, 473 U.S. at 678). Failing to
disclose such evidence is a due process violation
“irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87.
Mahoney, 58 M.J. at 349. In cases such as this, where the
defense requested any undisclosed impeachment evidence, this
Court requires the government to show that nondisclosure is
harmless beyond a reasonable doubt. United States v. Roberts,
59 M.J. 323, 327 (C.A.A.F. 2004).
In military practice, the “trial counsel, the defense
counsel, and the court-martial shall have equal opportunity to
obtain witnesses and other evidence in accordance with such
regulations as the President may prescribe.” Article 46, UCMJ,
10 U.S.C. § 846 (2000). Subject to exceptions not applicable to
this case and, upon request of the defense, the trial counsel
must permit the defense to inspect any documents within the
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custody, or control of military authorities that are “material
to the preparation of the defense.” R.C.M. 701(a)(2)(A). Thus,
an accused’s right to discovery is not limited to evidence that
would be known to be admissible at trial. It includes materials
that would assist the defense in formulating a defense strategy.
See Roberts, 59 M.J. at 325.
We review the military judge’s decision to order a new
trial for an abuse of discretion. United States v. Johnson, 61
M.J. 195, 199 (C.A.A.F. 2005) (citing United States v.
Humpherys, 57 M.J. 83, 96 (C.A.A.F. 2002)). A military judge
abuses her discretion when her findings of fact are clearly
erroneous, the court’s decision is influenced by an erroneous
view of the law, or the military judge’s decision on the issue
at hand is outside the range of choices reasonably arising from
the applicable facts and the law. See United States v. Gore, 60
M.J. 178, 187 (C.A.A.F. 2004) (citing United States v. Sullivan,
42 M.J. 360, 363 (C.A.A.F. 1995); United States v. Wallace, 964
F.2d 1214, 1217 n.3 (D.C. Cir. 1992)).
To convict of wrongful use of cocaine under Article 112a,
UCMJ, the Government must prove the accused used that controlled
substance and that the use was wrongful. Manual for Courts-
Martial, United States (MCM) pt. IV, para. 37.b.(2) (2005 ed.).
“Knowledge of the presence of the controlled substance is a
required component of [wrongful] use.” Id. at para. 37.c.(10).
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When there is evidence that the accused’s body contained a
controlled substance, the factfinder may infer that the accused
used the substance knowingly. Id. If the evidence that the
accused’s body contains a controlled substance is based solely
upon a urinalysis, the court must be convinced the urine
specimen that was tested was the accused’s. Fungible evidence,
such as urine specimens, generally “‘becomes admissible and
material through a showing of continuous custody which preserves
the evidence in an unaltered state.’” United States v.
Gonzales, 37 M.J. 456, 457 (C.M.A. 1993) (quoting United States
v. Nault, 4 M.J. 318, 319 (C.M.A. 1978)).
Evidence that the observer, a link in the chain of custody,
had been punished for dishonesty may have raised serious
questions in the minds of the court members concerning the
identity of the urine tested and whether it was unaltered when
it was tested. This point may have borne extra weight with the
members in light of the Government’s own express prohibition on
having such persons serve as observers. Alone or in conjunction
with Appellee’s denial of use, this evidence may have raised
reasonable doubt in the members’ minds as to Appellee’s guilt.
See, e.g., United States v. Sztuka, 43 M.J. 261 (C.A.A.F. 1995)
(concluding new evidence that the appellant’s husband may have
spiked her food with marijuana was a sufficient basis to require
a new trial). Furthermore, the possession of this evidence may
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have altered Appellee’s trial strategy -- he may not have
testified.
Under all the circumstances of this case, we cannot fault
the military judge for concluding that it was probable that had
the prosecution provided the nonjudicial punishment to the
defense, it would have produced a substantially more favorable
result for Appellee -- in other words, it undermined confidence
in the outcome of the trial. In this case, the Government’s
failure to disclose exculpatory evidence that Appellee
specifically asked the Government to disclose was not harmless
beyond a reasonable doubt. Roberts, 59 M.J. at 327. We hold
that the military judge did not abuse her discretion in ordering
a new trial. Her decision to grant a new trial was well within
the range of choices from the applicable facts and law, and her
use of guidance found in Article 73, UCMJ, and R.C.M. 1210(f),
to make her decision to order a new trial under Article 39(a),
UCMJ, was not an erroneous application of the law.
IV.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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