United States v. Green

37 M.J. 88, 1993 CMA LEXIS 136, 1993 WL 224929

• Court: United States Court of Military Appeals
• Decided: May 13, 1993
• Docket: No. 66,422; CM 9000663
• Status: Published

Opinions

Opinion of the Court

COX, Judge:

Appellant stands convicted of conspiring to commit larceny, damaging private property, and four specifications of larceny, in violation of Articles 81, 109, and 121, Uniform Code of Military Justice, 10 USC §§ 881, 909, and 921, respectively.¹ The issue before this Court is:

WHETHER APPELLANT’S CONSTITUTIONAL RIGHT TO DUE PROCESS AND STATUTORY RIGHT TO EQUAL ACCESS TO EVIDENCE UNDER ARTICLE 46, UCMJ, 10 USC § 846, WAS VIOLATED WHEN, DESPITE A DEFENSE DISCOVERY REQUEST, THE GOVERNMENT FAILED TO DISCLOSE THAT A PROSECUTION WITNESS, SPECIAL AGENT JOHN SAVAGE, HAD RECEIVED NONJUDICIAL PUNISHMENT UNDER ARTICLE 15, UCMJ.

Prior to trial, appellant’s counsel made a request for discovery asking for, among other things; exculpatory evidence in possession of the Government, as well as its agents or informants, “that may be favorable to the” defendant “within the meaning of” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); information that may “exculpate the defendant through an indication of innocence or ... potential impeachment of” any government witness; and “[a]ny record of prior conviction, and/or nonjudicial punishment of’ any prosecution witness. (Emphasis added.) Regarding Special Agent Savage, who was listed as a prosecution witness but not specifically named in the request, the Government responded to the request without comment.

Subsequent to appellant’s trial, the defense learned that Special Agent Savage received nonjudicial punishment in November 1988 for violations of Article 91, UCMJ, 10 USC § 891, regarding fraternization; Article 132, UCMJ, 10 USC § 932, for filing a false travel voucher; and Article 121, UCMJ, 10 USC § 921, for larceny of 2 days’ leave by indicating a fraudulent departure date. The Government failed to disclose this information to the defense pri- or to trial.²

The prosecution’s “suppression ... of evidence favorable to an accused,” when requested, violates an accused’s due process right to a fair trial “where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. at 1197; United States v. Eshalomi, 23 MJ 12 (CMA 1986). This rule also applies to impeachment evidence. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972); United States v. Watson, 31 MJ 49, 54 (CMA 1990). In order for the Government’s failure to disclose evidence to amount “to a violation of due process, ... the withheld evidence must” meet the test for materiality as stated by the Supreme Court:

The evidence is material 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. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985); United States v. Watson, supra at 54.³ We must assess the possibility of a different outcome as a result of the prosecution’s failure to disclose evidence “in light of the totality of the circumstances.” 473 U.S. at 683, 105 S.Ct. at 3384.

We have considered that, in the military, there may be “a heavier burden on the Government” than that imposed upon civilian prosecutors “to sustain a conviction” when evidence has been withheld from an accused. United States v. Eshalomi, supra at 24. This heavier burden springs from the generous discovery principle announced in Article 46, UCMJ, 10 USC § 846. Id. Thus when we apply the “materiality” test, we give the benefit of any reasonable doubt to the military accused. If we have a “reasonable doubt” as to whether the result of the proceeding would have been different, we grant relief. United States v. Watson, supra at 55. If, however, we are satisfied that the outcome would not be affected by the new evidence, we would affirm.

At trial, Special Agent Savage testified about a search he and other agents conducted of appellant’s room. He identified items seized during the search which he had marked with his initials, and these items were introduced as prosecution exhibits. Special Agent Savage’s credibility was never an issue at trial, and his testimony was consistent with testimony of other prosecution witnesses. The evidence that was material .to appellant’s conviction was not Special Agent Savage’s testimony. The material witnesses were, rather, the ones to whom appellant had admitted the theft of several items, appellant’s conspirators, the victims, and Special Agent Hauser to whom appellant made a sworn statement admitting theft of a radar detector.

The Government’s nondisclosure was error; however, in light of the record, we conclude that there is no reasonable probability that the outcome of the trial would have been different had appellant known of Special Agent Savage’s nonjudicial punishment. The exculpatory evidence does not cast reasonable doubt on the validity of appellant’s conviction. Under the reasonable-probability test, the nondisclosure was harmless, so appellant was not denied due process.

The decision of the United States Army Court of Military Review on remand is affirmed.

Chief Judge SULLIVAN and Judges CRAWFORD and GIERKE concur.

1 . On February 28 and March 1 and 2, 1990, appellant was tried by general court-martial composed of officer members. Despite his pleas, he was convicted and sentenced to a bad-conduct discharge, confinement for 2 years, and total forfeitures. The convening authority approved the sentence, and on March 7, 1991, the Court of Military Review affirmed the findings and sentence without opinion.

We denied appellant’s original petition for review on June 10, 1991. 33 MJ 186. Upon petition for reconsideration of the denial, appellant raised for the first time the issue of the Government’s wrongful suppression of evidence requested by the defense in pretrial discovery. On August 19, 1991, we set aside the decision of the Court of Military Review and remanded the case for consideration of the Government’s failure to disclose. 34 MJ 14. On January 9, 1992, the Court of Military Review once again affirmed the findings and sentence in an unpublished opinion. On July 24, 1992, we granted review of the issue now before us. See 36 MJ 82 (Daily Journal, April 21, 1993).

2 . Trial counsel has a duty to "make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party." ABA Model Rules of Professional Conduct 3.4(d). This duty includes ensuring that all answers to discovery requests are correct. By responding without comment, trial counsel was in effect asserting that there was no record of prior convictions or nonjudicial punishment for a government witness not specifically listed in the request, Special Agent Savage, which was not the case.

3 . The Supreme Court reformulated the original test for materiality set forth in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), that distinguished three situations in which the accused might discover nondisclosed exculpatory evidence after trial. Following United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), and Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), the Supreme Court adopted the reasonable-probability test for materiality which is sufficiently flexible to cover the three possible categories in Agurs for prosecutorial failure to disclose. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). See United States v. Watson, 31 MJ 49, 54 (CMA 1990).