United States v. Behenna

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).
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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.
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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.
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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.
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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
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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.
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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
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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
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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
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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).
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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
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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
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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
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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
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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
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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):
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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