UNITED STATES, Appellee
v.
Jonathan A. CAMPBELL, Airman First Class
U.S. Air Force, Appellant
No. 01-0467
Crim. App. No. 33647
___________________________________________________________
United States Court of Appeals for the Armed Forces
Argued January 23, 2002
Decided August 6, 2002
BAKER, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., and GIERKE and EFFRON, JJ., joined. SULLIVAN,
S.J., filed an opinion concurring in the result.
Counsel
For Appellant: Captain Patrick J. Dolan (argued);
Lieutenant Colonel Beverly B. Knott (on brief).
For Appellee: Captain Adam Oler (argued); Colonel Anthony
P. Dattilo and Major Lance B. Sigmon (on brief); Major
Bryan T. Wheeler.
Military Judge: Howard P. Sweeney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION
United States v. Campbell, No. 01-0467/AF
Judge BAKER delivered the opinion of the Court.
Appellant was tried at Elmendorf Air Force Base,
Alaska, by a general court-martial composed of officer and
enlisted members. Contrary to his pleas, he was convicted
of using marijuana on divers occasions, in violation of
Article 112a, Uniform Code of Military Justice (UCMJ), 10
USC § 912a. The adjudged sentence provided for a bad-
conduct discharge and no other punishment. The sentence
was approved by the convening authority.
Procedural Background
After the convening authority took action, appellant
filed a congressional complaint with a Member of the United
States Senate alleging prosecutorial misconduct in his
case. Specifically, appellant alleged that trial counsel
coerced perjured testimony from the witnesses against him
by threatening that they were “going to jail for a long
time if they don’t testify against [him] and say what they
want them to say.” Before submission of appellant’s case
to the Court of Criminal Appeals, appellate defense counsel
obtained signed but unsworn letters from three individuals
whose courts-martial arose out of the same factual
circumstances as appellant’s. A letter from Richard
Wisniewski stated:
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United States v. Campbell, No. 01-0467/AF
I told Elmendorf Legal Office, Capt Reese that I never
witnessed John Campbell use any drugs. Capt Reese
told me “that wasn’t good enough.” That I could
remember more and if I didn’t then I was not
cooperating with him and my Pre-Trial Agreement would
be taken from me. With my P.T.A. at steak [sic]. I
had to state in John Campbells [sic] Art. 32 hearing
that I physically witnessed Campbell smoke marijuana
4-6 times. . . . I was told many times by the
Elmendorf Legal Office Staff what I had to say, in
order to keep my Pre-Trial Agreement. I find this not
only wrong, but I had to betray a friend in fear of
going to prison for 10 or more years. Nothing can
change the fact I had to lie.
A letter from Stephen Hicks stated:
I know that the prosecution in these cases
persuaded the soldiers involved to lie under
oath. . . . I myself was instructed to lie in
the cases of “U.S. vs. Campbell” and “U.S. vs.
Leavitt.” . . . [T]he prosecution told me that
I could lose my pretrial agreement if I did not
tell them what they wanted to hear regarding the
case of “U.S. vs. Campbell”. . . . I fully
cooperated and told the truth, but I never
received any recommendations toward a lesser
sentence . . . .
Lastly, a letter from Josh Leavitt stated:
On several occasions, I was asked to speak to the
prosecution in U.S. vs Johnathan Campbell. In this
discussion (interrceaction) [sic], I was badgered into
a concrete line of testimony. I testified in his
trial that they wanted me to “twist the truth.” . . .
I informed the prosecutors that a lot of the things in
[my first statement] were inaccurate, but once again I
was instructed to stick with it so it wouldn’t seem
like I was lying or making any of it up.
Of the three individuals submitting letters, only Leavitt
testified at appellant’s trial.
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United States v. Campbell, No. 01-0467/AF
Appellate defense counsel subsequently requested from
the Air Force Legal Services Agency a copy of the
“Committee on Ethics and Standards Investigation Report of
Prosecutorial Misconduct, U.S. v. Campbell.”
Alternatively, “at a minimum,” he asked for copies of
statements made by witnesses and subjects of this inquiry.
The Government denied this request without confirmation as
to whether such a report or statements existed.1 On April
10, 2000, appellate defense counsel filed a motion in the
Court of Criminal Appeals requesting that the court compel
production of the report. That court denied the request on
April 27, 2000, finding that
(1) The appellant failed to establish
jurisdiction of this Court over the
appellant’s case.
(2) The appellant’s motion is premature. Before
this court can judge the merits of the
appellant’s motion, there must be some
assignment of error or allegation against
which the relevance of the petition may be
judged.
1
At oral argument, government counsel stated that to this day, he is
still not aware whether an inquiry into appellant’s allegations was
conducted. In contrast, appellant’s brief states, “Appellant in the
case at bar actually knows that relevant evidence concerning his appeal
exists and is in the possession of the government.” Final Brief in
Support of Petition Granted at 8. Appellate defense counsel tempered
this statement at oral argument, conceding that absent some definitive
statement from the Government, counsel could not, in fact, confirm the
existence of a report.
4
United States v. Campbell, No. 01-0467/AF
On June 30, 2000, appellate defense counsel filed
assignments of error with the Court of Criminal Appeals and
subsequently, on July 19, 2000, filed in this Court a
petition for extraordinary relief in the nature of a writ
of mandamus to compel the Government to provide the
requested report or, alternatively, to provide for in
camera judicial review of the report. Appellant cited
United States v. Huberty, 53 MJ 369 (2000), as authority.
On October 19, 2000, after considering appellant’s
petition for extraordinary relief and the Government’s
answer, this Court ordered the case returned to the Court
of Criminal Appeals for “reconsideration of its denial of
petitioner’s motion for discovery in light of United States
v. Huberty, 53 MJ 369 (2000).” United States v. Campbell,
54 MJ 349 (2000)(summary disposition).
On March 13, 2001, the Court of Criminal Appeals
affirmed the findings and sentence in an unpublished
opinion during its review of the merits of the case under
Article 66, UCMJ, 10 USC § 866. With respect to
appellant’s Huberty claim, the court stated:
We find no evidence of prosecutorial misconduct.
The record of trial is so clear, we also see no
need for us to grant the appellant’s motion for
discovery or to review the ethics investigation
5
United States v. Campbell, No. 01-0467/AF
in camera.[2] Our decision on this matter is made
easy by the fact that aside from the rhetoric,
SrA Leavitt’s declaration does not state that he
lied about the appellant’s use of marijuana in
his written statements or during his testimony at
trial. Therefore, if indeed any prosecutorial
misconduct occurred during the prosecution of
related cases, it did not involve the appellant.
Unpub. op. at 3. The court also indicated that it
reconsidered appellant’s motion pursuant to our order of
October 19, 2000. Having done so, it nonetheless concluded
that the motion should be denied. Id. at 1.
We subsequently granted review of the following issue:
I
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
IN PERSISTING TO REFUSE TO GRANT APPELLANT’S MOTION
FOR DISCOVERY, EVEN AFTER THE COURT OF APPEALS FOR THE
ARMED FORCES ORDERED THE COURT OF CRIMINAL APPEALS TO
RECONSIDER ITS PRIOR REFUSAL TO DO SO IN LIGHT OF
UNITED STATES V. HUBERTY, 53 MJ 369 (2000).
In addition, we asked the parties to brief the following
issue raised in appellant’s petition for a new trial:
II
WHETHER THIS HONORABLE COURT SHOULD ORDER AN IN CAMERA
REVIEW OF RELEVANT EVIDENCE WHICH COULD ESTABLISH
APPELLANT’S ENTITLEMENT TO A NEW TRIAL.
For the reasons stated below, we return the record of
trial to the Judge Advocate General of the Air Force for
remand to the Court of Criminal Appeals for further review.
2
Air Force TJAG Policy Number 2, Professional Responsibility, paragraph
8b, distinguishes an “inquiry” into possible ethics violations from an
“ethical investigation” conducted by most licensing authorities.
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United States v. Campbell, No. 01-0467/AF
Given our disposition of this case, appellant’s petition
for new trial is denied.
Discussion
Appellant argues that he has made a threshold showing
that there was a pattern of prosecutorial misconduct in his
and other related cases. He further contends that the
Government inquired into these allegations, and that such
inquiry “is potentially relevant” to his appeal. Final
Brief in Support of Petition Granted at 5. Appellant
argues that, as a matter of legal policy, while in camera
review could be performed by this Court, the court below,
or a military judge on remand for a DuBay3 proceeding, in
the future, such issues might best be addressed in a
process similar to that governing collateral attacks on the
sentence in federal civilian courts pursuant to 28 USC
§ 2255. Appellant notes that in this case, he seeks in
camera review by any appropriate judicial body, so long as
such review is expeditious. Moreover, appellant contends
that in Huberty, this Court resolved the legal question
presented and that pursuant to this Court’s order of
October 19, 2000, in camera judicial review by the Court of
Criminal Appeals should proceed post haste.
3
17 USCMA 147, 37 CMR 411 (1967).
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United States v. Campbell, No. 01-0467/AF
The Government contends that to the extent Huberty is
read to establish a right to and a mechanism for appellate
discovery, such right goes beyond the plain text and
legislative intent of the Uniform Code of Military Justice,
as well as federal case law. The Government argues that
there is no authority for appellate discovery by either
this Court or the Courts of Criminal Appeals found within
Article 66, supra, or Articles 67 and 73, UCMJ, 10 USC
§§ 867 and 873; therefore, such authority does not exist.
In this regard, the Government notes that Article 67(a)(2)
states this Court “shall review the record in . . . all
cases reviewed by a Court of Criminal Appeals . . .,” and
such record, it contends, necessarily is limited to the
record of the court-martial alone. (Emphasis added.)
Finally, the Government argues that even if
appellant’s allegations were true, he would not be entitled
to a new trial. Of the three unsworn statements proffered
by appellant as a predicate for further discovery, only
Leavitt’s is from a person who testified at appellant’s
trial. Leavitt’s statement does not assert that he lied at
appellant’s court-martial, only that prosecutors pressured
him into a particular line of testimony. According to
Leavitt, “I testified in his trial that they wanted me to
twist the truth.” As a result, the Government concludes,
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United States v. Campbell, No. 01-0467/AF
the question of prosecutorial pressure was explored at
trial before the members and does not warrant further
review.
Both appellant and the Government agree with the
following proposition in the Government’s brief:
A system through which the military appellate courts
address post-trial issues such as unlawful command
influence and prosecutorial misconduct is already well
established within the military judicial process. See
[United States v.] DuBay, [17 USCMA 147,] 37 CMR 411
[(1967).] Military appellate courts return cases to
the trial level when it becomes necessary to develop
facts not contained within the record of trial, and
where affidavits do not suffice. Id. at 413; United
States v. Ginn, 47 MJ 236 (1997).
Final Brief on Petition for Grant of Review and Petition
for New Trial at 9. However, the parties disagree as to
whether a DuBay hearing should be the exclusive mechanism
for resolution of post-trial discovery issues, as well as
the threshold for invoking such a process.
Discussion
In Huberty, the accused claimed he had hearsay
information that a government expert’s credentials had been
suspended, removed, or limited at the time of trial. Using
a Freedom of Information Act request for such credentialing
information, the accused sought to ascertain from the
Office of the Air Force Surgeon General whether any adverse
actions had been taken against the expert. That request
9
United States v. Campbell, No. 01-0467/AF
was denied. He subsequently sought an order from the Court
of Criminal Appeals for in camera review by that court of
the expert’s records. The Court of Criminal Appeals denied
this request, noting that “appellant offers no information
that connects the alleged credentialing action against the
medical care provider with the testimony that the medical
provider provided at his trial.” Huberty, 53 MJ at 370-71.
After an appeal was made to this Court, we ordered
production of the records “so that an in camera inspection
may be made to determine whether information is contained
therein that would reasonably support a petition by
appellant for a new trial.” Id.
What this Court addressed in Huberty was an anomaly
between military courts and civilian courts previously
noted in DuBay. “Normally, collateral issues of this type
would, on remand in the civil courts, be settled in a
hearing before the trial judge. The court-martial
structure, . . . however, is such that this cannot be
accomplished.” DuBay, supra at 149 n.2, 37 CMR at 413 n.2.
Huberty did not establish, per se, a structure to address
this anomaly, nor did it establish a threshold standard for
obtaining a post-trial evidentiary hearing where discovery
might be necessary.
10
United States v. Campbell, No. 01-0467/AF
When faced with a post-trial dispute over discovery
relevant to an appeal, an appellate court needs to conduct
an analysis similar to that used in United States v. Lewis,
42 MJ 1 (1995), for claims of ineffective assistance of
counsel. First, it must determine whether the appellant
met his threshold burden of demonstrating that some measure
of appellate inquiry is warranted. In addressing this
question, the court should consider, among other things:
(1) whether the defense has made a colorable showing
that the evidence or information exists;
(2) whether or not the evidence or information sought
was previously discoverable with due diligence;
(3) whether the putative information is relevant to
appellant’s asserted claim or defense; and
(4) whether there is a reasonable probability that
the result of the proceeding would have been
different if the putative information had been
disclosed.
Second, if the court decides inquiry is warranted, it
must determine what method of review should be used. As a
general matter, “[a] Court of Criminal Appeals has
discretion . . . to determine how additional evidence, when
required, will be obtained, e.g., by affidavits,
interrogatories, or a factfinding hearing.” Id. at 6.
Such determinations are necessarily contextual and not
generally conducive to a single solution. However, we
recognize that a Court of Criminal Appeals may conclude in
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United States v. Campbell, No. 01-0467/AF
some instances, such as where there is the need to discover
particular facts, that a DuBay evidentiary hearing may be
necessary. In determining whether a DuBay hearing is
warranted to resolve a factual matter, the Courts of
Criminal Appeals should be guided by the standard
enunciated in Ginn.
In Ginn, we held that "a hearing need not be ordered
if an appellate court can conclude that ‘the motion and the
files and records of the case . . . conclusively show that
[an appellant] is entitled to no relief.’" 47 MJ at 244
(quoting United States v. Giardino, 797 F.2d 30, 32 (1st
Cir. 1986))(emphasis added). Expounding upon this
standard, we adopted the general rule followed by the
federal civilian courts that a hearing is unnecessary when
the post-trial claim “(1) is inadequate on its face, or (2)
although facially adequate is conclusively refuted as to
the alleged facts by the files and records of the case,”
i.e., “they state conclusions instead of facts, contradict
the record, or are ‘inherently incredible.’” Id. (quoting
United States v. McGill, 11 F.3d 223, 226 (1st Cir. 1993)).
In this case, neither party contests that appellant
seeks the information at issue as part of his direct appeal
of his court-martial conviction pending before this Court.
The Government argues that the information, if it exists,
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United States v. Campbell, No. 01-0467/AF
is not relevant to and, in any event, would not change the
outcome of appellant’s appeal. Thus, the question is not
one of appellate authority to review the putative report in
camera, but whether appellant has done enough to establish
the relevance of the information sought to his allegation
of prosecutorial misconduct to warrant such appellate
review.
We conclude in this case that we need not reach a
conclusion as to the applicability of the Ginn standard.
Appellant’s case reflects the specific facts and
circumstances of the prior proceedings. First of all, it
was argued under a Huberty rubric. As noted above, Huberty
is an exercise of appellate authority to examine
allegations and facts relevant to an appeal; however, it
did not establish a legal regime nor set parameters for
addressing issues of appellate review of post-trial
disputes over discovery relevant to an appeal. Second, a
majority of this Court anticipated, but did not necessarily
direct, that the order of October 19, 2000, would result in
a determination by the lower court whether the purported
report of an inquiry existed and, if so, whether its
contents suggested the need for further review of
appellant’s allegation of prosecutorial misconduct. Under
the particular facts of this case, including the extensive
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United States v. Campbell, No. 01-0467/AF
appellate history involved, we conclude that the interests
of justice are better served by again remanding to the
Court of Criminal Appeals to determine with certainty
whether a report exists, and if it does, to determine in
camera whether it is relevant to appellant’s appeal and
whether further inquiry is warranted. Otherwise, appellate
courts should limit Huberty’s reach to its facts and apply
the Lewis framework as elaborated above.
Decision
The decision of the United States Air Force Court of
Criminal Appeals is set aside. The record of trial is
returned to the Judge Advocate General of the Air Force for
remand to the Court of Criminal Appeals. The Court of
Criminal Appeals shall determine whether the report
appellant seeks exists. If such report exists, the court
shall order it produced and issue any protective orders
necessary to protect its confidentiality. The court shall
then review the report, attach it to the record, and
determine its relevance to appellant’s assignments of
error. If an additional factual inquiry is necessary, that
court shall first order a DuBay hearing. If relevant
information is disclosed, the court will reconsider
appellant’s claim of prosecutorial misconduct pursuant to
14
United States v. Campbell, No. 01-0467/AF
Article 66. Thereafter, the provisions of Article 67 shall
apply.
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United States v. Campbell, No. 01-0467/AF
SULLIVAN, Senior Judge (concurring in the result):
Appellant requested that the Court of Criminal Appeals order
the Government to produce for defense review a copy of an
investigation of prosecutorial misconduct at his court-martial.
I would remand this case to the Court of Criminal Appeals to
consider this request in light of this Court’s decision in United
States v. Ginn, 47 MJ 236 (1997). Neither United States v.
Huberty, 53 MJ 369 (2000), nor United States v. Lewis, 42 MJ 1
(1995), provides a comprehensive approach or framework in which
to resolve post-trial requests for discovery. While United
States v. Ginn particularly addresses requests for post-trial
fact-finding hearings, it can be readily used for resolving other
requests for post-trial discovery.