On Thursday (sorry for the delayed reporting, but both Zack and I were out of town), CAAF affirmed an Article 120 conviction in United States v. Coleman, __ M.J. __, No. 13-0007/AR (C.A.A.F. May 9, 2013).  Judge Stucky wrote for the majority.  Chief Judge Baker concurred in the result.  More on the disagreement between the chief judge and the rest of the court below.

The government violated its discovery obligations in the case, failing to let the defense know that the SJA had agreed to recommend that the CA reduce the setnence of Coleman’s co-actor in exchange for his testimony against Coleman.  The question that CAAF confronted was whether that error was harmless.  Yes, held CAAF.  Because the information was responsive to a specific defense discovery request, the harmless beyond a reasonable doubt test applies.  All five judges agreed that the discovery violation was harmless even under that elevated standard.

The majority’s decision was based, in part, on a prior consistent statement that the co-actor made before the SJA made his offer.  That prior consistent statement, the majority reasoned, would have substantially undercut the impeachment value of the SJA’s offer, since it was made before any resulting motive to fabricate arose.

Chief Judge Baker wrote separately, arguing that the majority shouldn’t have considered the prior consistent statement.  While the prior consistent statement was in the record as an appellate exhibit, it was never offered on the merits.  He reasoned, “I would not rely on evidence that was not admitted, and potentially not admissible, in determining whether the failure to disclose was harmless beyond a reasonable doubt.”  He argued, “[I]t seems speculative, if not unfair, for this Court to now incorporate this prior statement into its harmless error analysis.”

As often happens in CAAF opinions, the majority didn’t engage with the separate opinion’s reasoning.  So I will.  A harmless error determination for a discovery violation is necessarily counter-factual.  The majority’s approach of considering how the trial would have likely developed had the government complied with its discovery obligations strikes me as sound reasoning.

Audio of this week’s oral arguments at CAAF is available at the following links:

• United States v. Coleman, No. 13-0006/AR
• United States v. Medina, No. 13-5002/CG

CAAF will hear oral argument in United States v. Coleman, No. 13-0007/AR, on Tuesday, March 12, 2013, at 9:30 a.m. The court granted review of the following issue:

Whether the military judge erred in failing to grant a defense motion for mistrial based on the trial counsel’s failure to disclose that appellant’s co-accused testified against him in exchange for the staff judge advocate’s recommendation that his sentence be reduced by twelve months.

In 2010 the Appellant, an E-4 in the Army, was convicted contrary to his pleas by a general court-martial composed of members with enlisted representation of rape and adultery, in violation of Articles 120 and 134, UCMJ. He was sentenced to confinement for ten years, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved only five of the ten years of confinement.

The case began – as so many do – during a night of drinking. The Appellant and a co-accused [PFC Pilago] eventually had a sexual encounter with the female victim, [D.D.]. “At trial, the Appellant faced alternative theories of criminal liability for his conduct towards D.D. The prosecution argued that D.D. was either too incapacitated to consent to sexual intercourse or that appellant forced D.D. to engage in sexual intercourse ‘by using strength and power sufficient that she could not avoid or escape the sexual contact.’” App. Br. at 3.

The day before the Appellant’s court-martial, PFC Pilago was convicted, contrary to his pleas, of forcible sodomy and adultery for his actions with D.D. PFC Pilago was sentenced to confinement for 42 months and a dishonorable discharge. He was then called as a prosecution witness in the Appellant’s court-martial, where he confirmed that during the assault of D.D. he told the Appellant that “she said stop,” but that the Appellant told him “just to keep going.”

However, “immediately prior to calling PFC Pilago to the witness stand, defense counsel specifically asked government counsel if there was a deal in place with PFC Pilago. The trial counsel responded ‘No, there’s nothing in writing.’ The military judge noted that he found trial counsel’s response ‘troubling.’” App. Br. at 5 (citations to record omitted). After the Appellant was convicted, the trial defense counsel learned that PFC Pilago testified in exchange for the staff judge advocate’s recommendation that the convening authority reduce his sentence by 12 months.

A post-trial 39(a) session was conducted, and the military judge concluded that the trial counsel had failed to disclose the agreement between PFC Pilago and the convening authority, and that the agreement was “favorable and material to the defense trial preparation and should have been disclosed.” App. Br. at 9. However, the military judge found that this error was harmless beyond a reasonable doubt, and he denied a defense motion for a mistrial.

Among the considerations was an incriminating statement PFC Pilago gave to criminal investigators shortly after the assault. That statement was consistent with his testimony at the Appellant’s trial. Additionally, the trial defense counsel actually called PFC Pilago as a defense witness to testify that D.D. was not incapacitated and that he and the Appellant had engaged in consensual sexual contact with her earlier that evening. Finally, the trial defense counsel did not impeach PFC Pilago on any grounds. Considering these factors, and particularly that PFC Pilago’s statement to criminal investigators was consistent with his trial testimony for the prosecution, the ACCA found:

If the requisite disclosure had been made by the government and the trial defense counsel had chosen to impeach PFC Pilago by asking him if he was providing his in-court testimony in exchange for the clemency agreement, we have no doubt the government would have been successful in introducing PFC Pilago’s prior consistent statement under Mil. R. Evid 801(d)(1)(B). The statement was consistent with PFC Pilago’s in-court testimony and was made more than nine months prior to PFC Pilago’s conviction and his agreement with the SJA. Furthermore, if admitted under Mil. R. Evid 801(d)(1)(B), the detailed incriminating written statement would have constituted substantive evidence that could have been used against appellant to further corroborate DD’s allegations against appellant.

Having been presented with no plausible scenario in which we believe appellant ultimately would have been benefited by the use of the agreement to attack the credibility of PFC Pilago, we agree that the government met its burden of showing that the failure to disclose the agreement was harmless beyond a reasonable doubt.

United States v. Coleman, No. ARMY 20100417, slip op. at 7-8 (A.Ct.Crim.App. Jul. 9, 2012) (mem. op.) (citations omitted).

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CAAF granted review of three cases today.

First, there’s this grant in an Army case, the facts of which strike me as rather Behenna-esque:

WHETHER THE MILITARY JUDGE ERRED IN FAILING TO GRANT A DEFENSE MOTION FOR MISTRIAL BASED ON THE TRIAL COUNSEL’S FAILURE TO DISCLOSE THAT APPELLANT’S CO-ACCUSED TESTIFIED AGAINST HIM IN EXCHANGE FOR THE STAFF JUDGE ADVOCATE’S RECOMMENDATION THAT HIS SENTENCE BE REDUCED BY TWELVE MONTHS.

United States v. Coleman, __ M.J. __, No. 13-0007/AR (C.A.A.F. Nov. 5, 2012).  ACCA affirmed in this unpublished opinion.

CAAF also granted review of another Army case and ordered briefing in what looks like a trailer to the grant in United States v. Castellano, __ M.J. __, No. 12-0684/MC (C.A.A.F. Oct. 17, 2012), which we discussed here (see also previous discussion of the same issue here):

WHETHER THE MILITARY JUDGE ERRED BY FAILING TO INSTRUCT THE MEMBERS TO MAKE FINDINGS ON THE FACTORS IDENTIFIED IN UNITED STATES v. MARCUM, 60 M.J. 198 (C.A.A.F. 2004).

United States v. Williams, __ M.J. __, No. 12-0331/AR (C.A.A.F. Nov. 5, 2012).  ACCA affirmed in this unpublished opinion, which doesn’t discuss the granted issue.

Finally, CAAF granted review but ordered that no briefs be filed in this Air Force case, which looks like a Tearman/Porter/Horton trailer:

WHETHER THE ERRONEOUS ADMISSION OF THE COVER MEMORANDUM AND THE SPECIMEN CUSTODY DOCUMENT’S CERTIFICATION OF APPELLANT’S DRUG TESTING REPORT WAS HARMLESS BEYOND A REASONABLE DOUBT.

United States v. Burton, __ M.J. __, No. 10-0685/AF (C.A.A.F. Nov. 5, 2012).  AFCCA affirmed in this unpublished opinion.