CAAF will hear oral argument in the interlocutory Army case of United States v. Stellato, No. 15-0315/AR (CAAFlog case page), on Tuesday, April 28, 2015. In a published decision issued in November (discussed here), a three-judge panel of the Army CCA granted a Government interlocutory appeal of a military judge’s order that dismissed a child sexual assault case with prejudice as a remedy for Government discovery violations. The CCA found that “the military judge abused his discretion by dismissing the charges and specifications with prejudice,” and that “he clearly misjudged the scope and magnitude of the discovery issues in this case.” Slip op. at  21. The CCA also found that “the trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.” Slip op. at 17.

CAAF subsequently granted the accused’s petition for review of two issues:

I. Whether the Army Court of Criminal Appeals erred as a matter of law in concluding there was no discovery violation and reversing the military judge’s remedy of dismissal.

II. Whether the Army Court of Criminal Appeals applied an erroneous view of the law in requiring the military judge to find “willful ignorance, willful suppression, or other misconduct” as a condition precedent for dismissal with prejudice for discovery violations.

The accused, a mobilized reservist, is charged with various acts of alleged sexual molestation of his biological daughter, MS, from 2007 through 2009, when MS was between the ages of two and five years old. The asserted discovery violations in the case involve various items, but chief among them is a collection of materials assembled and held by a women who is the wife of the accused and the alleged victim’s mother. According to the military judge’s findings (that were adopted by the Army CCA), the materials were:

what witnesses described as a “box” of evidence relating to this case. Mrs. MS [the mother] had compiled this evidence over several years since the allegations were first made and kept it in a large, color-coded binder several inches thick. She kept this binder in a green plastic file box, which she kept on the kitchen table in her home. Mrs. MS and MS [the child] live in Morgantown, West Virginia.

Slip op. at 3. Among those materials was a note documenting a recantation by the alleged victim. Slip op. at 7. The military judge also found that Government counsel became aware of the materials in February or March 2013, when counsel visited the family in West Virginia. But Government agents did not secure the materials. Charges were preferred in March 2013, the accused was arraigned in September 2013, and trial was scheduled. But the defense requested multiple continuances for discovery-related issues. One such request was litigated on March 17, 2014, and was requested for three reasons:

First, the government had informed the defense that Mrs. MS had at least two journals that she kept with details of the case that she was using to prepare for trial that had not been and would not be provided to the defense because Mrs. MS did not bring them to trial but brought only selected scanned pages. Mrs. MS confirmed that no one ever asked her or told her to bring the journals or the “box” or binder of evidence to Fort Bliss.

Second, the government had just provided in the R.C.M. 802 conference, witnessed by the military judge, emails between the accused and Mrs. MS in which the accused made statements directly contradicting the allegations as well as Mrs. MS’s statements that the accused had never denied the allegations. The defense had specifically requested these emails in its initial discovery request on 22 March 2013. Mrs. MS stated that she had previously provided the emails, but later acknowledged that she had inadvertently not provided the emails to the government prior to March 2014.

Third, the government revealed to the defense and the military judge in the R.C.M. 802 conference that there was a “box” of information in the possession of Mrs. MS that had not been provided to the government, let alone disclosed to the defense, and would not be available for trial as it was still in West Virginia. This was the first time the “box” had been disclosed to the defense or the military judge, despite the defense receiving some of its contents in piecemeal discovery after being scanned by a friend of Mrs. MS and forwarded on a thumb drive to the government. The military judge granted the defense’s request for continuance, and the trial was docketed for a fourth time for 8 July 2014.

Slip op. at 7. Ultimately, the materials (or, at least, what was left of them in the spring of 2014) were disclosed to the defense. However, the military judge dismissed the case with prejudice, concluding that because of:

the nature, magnitude, and consistency of the discovery violations in this case, this is the very rare case where dismissal is an appropriate remedy.” Further, due to the “material prejudice and denial of due process already inflicted on the Accused,” to include the delayed disclosure of certain pieces of evidence, the loss of a defense witness due to his untimely demise, and the length of time from preferral to the scheduled court-martial, “the only appropriate remedy left in this case is dismissal with prejudice.”

Gov’t Br. at 14. The Government appealed and the CCA reversed.

The CCA’s opinion found that Government counsel complied with the discovery obligations, finding error in the military judge’s conclusion to the contrary.

We conclude that the military judge relied on an erroneous view of the law. The trial counsel disclosed what he knew, as required under R.C.M. 701(a)(6). Brady and R.C.M. 701(a)(6) require due diligence, but we find no support for the proposition that the trial counsel must seek exculpatory evidence outside of the government’s control or possession.

Slip op. at 17. The court also made a crucial distinction between Government agents and cooperating witnesses:

[T]he record does not reflect, and the military judge did not find, that Mrs. MS or MS were effectively government agents. In our view, nothing in this case gives us reason to merge the prosecuting sovereign United States and a cooperating witness and treat the two as one. Given the facts, MS and Mrs. MS cooperated with the trial counsel, but did not become agents of the trial counsel.

Thus, the “box,” and the evidence within it such as the note documenting the recantation and the emails, were outside the possession and knowledge of the government. The trial counsel did not have a duty to search a “box” belonging to third party cooperating witnesses for exculpatory information. The military judge abused his discretion to the extent that he believed that the trial counsel had such a duty.

Slip op. at 19 (emphases added). Finally, the court found that “without a finding of willful ignorance, willful suppression, or other misconduct from the military judge, we cannot conclude that dismissal with prejudice is a reasonable remedy.” Slip op. at 22.

CAAF’s will now review whether there was a discovery violation and, if so, how severe that violation must be before dismissal with prejudice is an appropriate remedy.

Because this is an interlocutory appeal, the only briefs are the ones filed in connection with the petition for review by CAAF. See CAAF R. 19(a)(7)(A). These briefs do not directly address the first issue, instead presenting a question of whether the CCA engaged in improper fact-finding. But the Government’s brief does put an interesting gloss on some of the facts. In particular, it asserts that:

Prior to trial, a number of additional discovery issues were brought to the government’s attention. On March 5, 2014 Mrs. MS informed the government that she possessed a napkin which had a potential recantation from the victim on it. The government immediately notified appellant, and then provided a copy of the napkin to appellant on March 7, 2014.

On March 14, 2014, Mrs. MS informed the government that she had a number of journals. The government immediately informed appellant, obtained and disclosed those journals on March 16-17, 2014.

Also on March 14, 2014, the government learned from another witness that Mrs. MS had recently been receiving therapy. The government again immediately informed appellant, and obtained the records on March 17, 2014.

On March 17, 2014, Mrs. MS provided a number of printed emails between her and appellant, which were immediately disclosed to appellant’s counsel. Mrs. MS mistakenly believed that she had already provided those to the government.

Around this time, Mrs. MS also made clear to the government that she had a box or a binder of information related to the case (hereinafter “box”) . The government informed appellant, which prompted him to request a fourth continuance on March 17, 2014.

Gov’t Br. at 11-12. I’ve always been uncomfortable with the use of the term “the Government” when “Government agents” or “counsel for the Government” are clearly more appropriate descriptors. In this case, the use of the term in the Government’s brief implies that no Government actor was aware of the materials held by the mother prior to March 2014. However, the military judge made clear findings to the contrary. The CCA’s opinion states that:

The military judge found CPT KJ became aware of the “box” of evidence in late February or early March 2013 after he visited MS and Mrs. MS with CPT FC. Mrs. MS testified that she referred to this evidence and showed the binder to CPT KJ while in her kitchen. At that point, CPT FC was in the basement entertaining MS. Captain KJ cautioned Mrs. MS that any evidence that she provided to him would have to be turned over to the defense, so if she had questions she should “ask ahead of time.” Mrs. MS testified that she did not take that statement to mean that she should not provide the evidence to the government, but that she should be aware it would be disclosed to the defense.

Slip op. at 3. As a military judge’s findings of fact are given great deference on appeal, Government counsel may face a very hostile bench on this point during next week’s oral argument.

Yet the Government’s brief does present a rather coherent view of the scope of the discovery issue in this case

With regard to the “box,” this court was clear in [United States v. Williams, 50 M.J. 436 (C.A.A.F. 1999)] that the outer parameters of the government’s obligation under R.C.M. 701(a) (6) “must be ascertained on a case-by-case basis.” As the Army court pointed out, testing the nondisclosure for prejudice is complicated in this case because the appellant has yet to go to trial. Furthermore, appellant is now in possession of all of the exculpatory information contained within the “box.” Ultimately, appellant would like this Court to adopt a standard much more expansive than that expressed in Williams, namely, that the government is required to search for exculpatory information from cooperating government witnesses. Not only would this be an unworkable standard, it would also be a far departure from the other federal courts that have examined this similar issue.

Gov’t Br. at 25.

Or, perhaps, not:

The Army Court’s opinion consistently ignores the sound reasoning underlying the military judge’s findings of fact: that though the defense made specific discovery requests, the government did not act on them for over a year, and thus not only was specific evidence lost or destroyed, it would be impossible to determine how much and what additional evidence has been lost, destroyed, or corrupted. Despite such a clear finding from the military judge, the Army Court erroneously substituted its own facts for the military judge’s–that the defense had eventually received everything it had asked for. Such a substitution of judgment and contrary finding are prohibited under the plain language of Article 62.

Accused’s Br. at 22.

Ultimately, it’s hard to get a clear picture of the scope of the discovery issues – what evidence exists, what evidence was preserved, what evidence was requested, what evidence was produced, and what evidence is lost – from the briefs alone. CAAF is going to have to sort this out to determine whether there is an unresolved discovery issue.

Assuming CAAF finds that there was a discovery violation, the second issue questions the appropriate remedy. The military judge’s ruling dismissing the case with prejudice – forever foreclosing a federal trial on these serious allegations – was certainly a dramatic remedy. The best argument in the accused’s brief to affirm that remedy is little more than a recitation of the military judge’s findings:

The military judge determined that “the legal norm violated by the prosecutor and determine[d] if its violation actually impacted on a substantial right of the accused.” (App. Ex. XLIX, p. 8, citing United States v. Hasting, 461 U.S. 499 (1983)). The military judge further found the “government’s failure to provide discovery” to be “continual and egregious” and described the government’s approach to discovery as “recklessly cavalier” and “an almost complete abdication of discovery duties.” (App. Ex. XLIX, p. 9).

Accused’s Br. at 30-31. The Government’s best argument is that there is no actual prejudice to the accused:

Even in cases where discovery violations are discovered post-trial, this Court still tests for prejudice. In this case, there is no prejudice because, with respect to the specific items cited by the military judge, appellant is now in possession of all of that evidence. This is also not a case where appellant was forced to go to trial without the potentially exculpatory information he now possesses. With regard to Dr. Krieg, the delay, and the personal and professional effects of this prosecution upon appellant, the Army court put those items properly into context.

Gov’t Br. at 31.

I think the Government is right to highlight that any discovery violation must be tested for prejudice. But as with the question of whether there even was a discovery violation in this case, the question of whether the accused is actually prejudiced (and whether dismissal with prejudice is an appropriate remedy) is a difficult one.

Case Links:
ACCA opinion (__ M.J. ___)
Blog post: Analysis of ACCA’s opinion
Accused’s brief
Government’s brief
• Blog post: Argument preview

11 Responses to “Argument Preview: United States v. Stellato, No. 15-0315/AR”

  1. k fischer says:

    1. Who thinks it’s ethical for a prosecuting attorney who represents the United States to advise the parent of a minor alleged victim that any evidence she provides the Government will be disclosed to the defense after being shown a binder of potentially relevant evidence?  If you do, then please explain why.
     2.  For those who have practiced military defense pre 2007, has anyone noticed a paradigm shift in the way AFOSI, CID, AND NCIS have investigated sexual assault?  If so, do you think they investigate the veracity of the complaining witnesses’ stories more or less thoroughly?

  2. Lieber says:

    I don’t think anyone, prosecution or defense, disagrees that CID et al are near useless on getting anything important from vics, inculpatory or exculpatory.  The only think they know how to do is get confessions.

  3. Former DC says:

    I am curious if CAAF will view this case with an eye toward the current investigation of claims that VLC’s have been counseling alleged victims to destroy evidence.  The two would seem to be related.  I would expect a question or two on that issue, and suspect that the opinion, whomever wins, will probably contain an explicit statement that the Court did not reach that issue.
    @k fischer:  Agree completely.  There are some state bars who have held that a prosecutor making a similar statement, advising witnesses that they need not speak with the defense, is unethical conduct because it obstructs fair access to the evidence.  In fairness to those on the trial side, I will say that I once saw a senior trial counsel issue specific and public orders to his attorneys never to imply in any way that a witness or victim should withhold anything from anyone in the case.  That was one man, true, but its a start.

  4. stewie says:

    CID is just…the worst.  I don’t see any paradigm shifts, I just see what I’ve always seen on both sides of the aisle, CID agents do a poor job of interviewing or investigating in a way that helps either side, they stop doing their job the moment you give an opine which leaves the TC (and DC) forced to continue the investigation on basic things.  Heck, we could fix about 20 percent of all of our concerns on both sides about sexual assault in the military JUST by making CID competent.

  5. Charlie Gittins says:

    When I represented Captain Stewart, after he was read his rights he terminated the interview and we together prepared a detailed fact-laden sworn statement that detailed the nature of the consensual sexual acts, what she said to him, what she did to participate and his past sexual history with the complaining witness and provided it to NCIS (a female case agent).  The CW failed to disclose most of the information to NCIS that explained the past sexual history and none of the details of the conversations or changing of sexual positions.  Any competent investigator would have gone back and re-interviewed the CW to ascertain whether she agreed with the facts.  Not our female NCIS Barney Fife.  She didn’t think the statement was in any way relevant to her investigation and stated so under oath when I crossed her about the statement, 5 pages, signed by Captain Stewart etc.  That was in 2009, so not that long ago.

  6. Tami a/k/a Princess Leia says:

    Kind of hard to argue no prejudice when “Government counsel” became aware of the box early on in the case, but did nothing to secure it, and the Government counsel dragging their heels on providing discovery, and dragging heels for over a year, and having a key defense witness die.
    I can agree the Government doesn’t have an obligation to seek out exculpatory evidence from a cooperating witness, but I think that once the Government becomes aware that the cooperating witness has exculpatory evidence, the Government has an obligation to secure it all.  Had they done so when they were in WV, there wouldn’t be this problem.

  7. RKincaid3 (RK3PO) says:

    Yep…there is a grand-canyan-sized difference between a prosecutor having no duty to seek out relevant and/or exculpatory evidence and a prosecutor ignoring a box of relevant evidence of which they are aware–exculpatory or not–and then doubling down on that ignorance by telling the holder of said relevant evidence not to give it to said prosecutor lest he turn it over to the defense.
    Frankly, dismissal of this case is the least of the government’s problems…loss of certification and probably even disbarment are (or should be) on the table under these facts–not only of the wayward TC, but of that misguided youth’s supervisors–depending upon what they knew and when they knew it and what they did to remedy it (or conceal it by arguing–poorly–via appeal that there is nothing wrong here.

  8. Neutron73 says:

    Evidence is evidence.  If the government knew about it, they should have secured it and turned it over.  Not that hard at all.  But in the current military justice system, where some believe “win at all costs” is the pathway to promotion and better duties, the facts of this case are not surprising.

  9. Grey says:

    Even if the prosecution did not possess the evidence, don’t they have an obligation to disclose its existence to the defense, who can in turn request that a subpoena be issued?
    A civilian prosecutor would probably be required to at least disclose the existence of the evidence, even if it wasn’t in the possession of the state.  The defense could then issue a subpoena to the third party to get the evidence.  The civilian case law that suggest that the prosecution does not need to procure evidence from third parties comes from a context where the defense has subpoena power.  Also, the courts probably did not anticipate a scenario where the state would become aware of pertinent evidence and yet not come into possession of the evidence (the state would of course want to gather inculpatory as well as exculpatory evidence because the state is concerned with the truth, not just a conviction, right?).

  10. k fischer says:

    1.  I would think that a Trial Counsel refusing to review existing evidence because it could have to be turned over to the defense is closer to being unethical than ethical.    This seems closely analogous to Mike Nifong’s conduct in the prosecution of Reid Seligmann whose attorneys attempted to share with Mr. Nifong pre-indictment video, receipts, cell phone records, and witness statements that would prove that he was not at the fraternity house when Crystal Magnum claims she was raped. 

    Though state guidelines forbid prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused,” Nifong refused to meet with defense attorneys, who claimed to possess cellphone records, receipts, photographs, and witness testimony showing that Seligmann was not present at the time of the alleged rape. 

    It would be nice if the Army amended AR 27-26 to include guildelines regarding a TC’s pursuit of evidence that mirror NC’s guildelines.  I noticed that the Air Force Standard 3-3.11 prohibits the practice the way NC does.  Good job AF!
    2.  I have noticed more of a tendency to not pursue evidence that might contradict an alleged vic’s statement if at all possible since 2009.  If you don’t investigate the veracity of a complaining witness’s statement, then that really cuts down on the false allegation rate, so then it is merely unfounded for insufficient evidence, and nobody knows what that means, right?  My experience is quite similar to Charlie Gittens in Stewart.  In fact, the past two rape cases, I wrote CID a letter requesting they take certain actions.  They took none.  I recently encountered the same phenomenon with the local police department.  But, with such a small sample size, it is possible that I am just dealing with two investigators that pull an ostrich when you try to prove your client’s innocence.

  11. RKincaid3 (RK3PO) says:

    Is anyone surprised that in this toxic political and military leadership climate that getting ALL evidence involving sex assaults is NOT really that important to anyone but the defense.  Indeed, having all the facts might interfere with getting a particular politically satisfying result at a trial, might it not?