United States v. Sigrah

This opinion is subject to revision before publication

UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________

UNITED STATES
Appellee
v.
Leeroy M. SIGRAH, Private
United States Army, Appellant
No. 21-0325
Crim. App. No. 20190556
Argued May 24, 2022—August 30, 2022
Military Judges: Matthew A. Calarco (arraignment)
and Jacqueline Tubbs (trial)
For Appellant: Captain David D. Hamstra (argued); Colonel
Michael C. Friess, Lieutenant Colonel Dale C. McFeatters,
and Major Christian E. DeLuke (on brief); Captain Andrew
R. Britt.
For Appellee: Captain Rene Tristan C. De Vega (argued);
Colonel Christopher B. Burgess, Lieutenant Colonel Craig J.
Schapira, and Captain Melissa A. Eisenberg (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge MAGGS, Judge
HARDY, and Senior Judge EFFRON joined. Chief Judge
OHLSON filed a separate concurring opinion, in which
Judge MAGGS joined. Judge MAGGS filed a separate
concurring opinion, in which Judge HARDY joined.
_______________

Judge SPARKS delivered the opinion of the Court.
Contrary to his pleas, Appellant was convicted at a
general court-martial by a panel of officer and enlisted
members of sexual assault, in violation of Article 120,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920
(2018). The adjudged and approved sentence provided for a
reduction to pay grade E-1, twelve years of confinement,
forfeiture of all pay and allowances, and a dishonorable
discharge. On appeal to the United States Army Court of
Criminal Appeals, Appellant challenged his conviction by
arguing that the military judge abused her discretion in
denying his motions to strike the testimony of Government
 United States v. Sigrah, No. 21-0325/AR
Opinion of the Court

witnesses under Rule for Courts-Martial (R.C.M.) 914. United
States v. Sigrah, No. ARMY 20190556, 2021 CCA LEXIS 279,
at *10, 2021 WL 2385270, at *3 (A. Ct. Crim. App. June 9,
2021) (unpublished). R.C.M. 914 requires the government to
make available to the defense, after a witness has testified,
any statement possessed by the United States that the
witness has made. In its opinion, the lower court agreed that
the military judge erred in her application of R.C.M. 914. Id.
at *13–17, 2021 WL 2385270, at *4–5. However, after
conducting a review of the R.C.M. 914 violation for prejudice,
the lower court determined that the error did not
substantially influence the findings. Id. at *24, 2021 WL
2385270, at *7. We granted review to determine whether
Appellant was prejudiced by the military judge’s erroneous
R.C.M. 914 ruling.1 After review of the record, we conclude
that the military judge’s error in not striking the relevant
testimony pursuant to R.C.M. 914 had a substantial influence
on the findings. Consequently, the lower court’s decision is
reversed and the findings and sentence are set aside.
I. Background
In its opinion below, the lower court set out the relevant
facts and procedural background for resolution of the granted
issue:
In February 2018, the victim, a female Specialist
(SPC) in the U.S. Army, spent the evening
socializing and consuming alcohol with friends.
Following a farewell party, she went to a male
friend’s, SPC D’s, barracks room. Once at SPC D’s
barracks room, she continued socializing and
consuming alcohol with SPC D and two other male
soldiers, appellant and SPC B, both of whom she
knew. After consuming around seven shots of alcohol
at the farewell party and another two beers at SPC
D’s barracks room, the victim felt very intoxicated
and went to sleep alone in SPC D’s bed, fully clothed.
Her next memory was waking up with her legs
spread, her pants and underwear partially removed,

1 We granted review of the following issue:
Whether the military judge’s denial of Appellant’s
R.C.M. 914 motions materially prejudiced
Appellant’s substantial rights.

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Opinion of the Court

and with a person on top of her. She testified the
person on top of her was appellant, based in part on
seeing his silhouette and hearing his voice. After
pushing appellant off of her, she left SPC D’s room
and returned to her own room. Once back in her
room, the victim cried herself to sleep. The next
morning, she woke up with pain in her vaginal area,
consistent with sexual intercourse.
Later that day, appellant began sending
messages to the victim. In his opening message, he
wrote, “I fucked up. U have all the reasons in this
world to hate. I'm very sorry. I really am. u don’t
have to reply. I just wanna say how sorry and stupid
I am.” (emojis omitted). In another message,
appellant wrote, “I feel guilty as fuck.” Despite the
sheer volume of messages sent to the victim,
nowhere did appellant admit to the victim the
specifics of what happened in SPC D’s bedroom. The
victim did not recall being penetrated. Specialist D,
however, testified at trial that appellant stated to
him that he pulled down the victim’s pants and had
sex with her.
....
Initially, the victim did not want to report the
incident, but chose to do so approximately a week
later after talking with friends and upon realizing it
was not something she could simply let go. Following
the report, Army Criminal Investigation Command
(CID) began an investigation. As part of the
investigation, CID Special Agent (SA) M, with the
assistance of SA P, interviewed the victim,
appellant, SPC D, and SPC B. All of the interviews
were video recorded and temporarily stored on a CID
server. At the relevant time in February 2018, the
Fort Campbell CID interview rooms were configured
in a manner such that the video-recording feature
automatically began whenever someone entered an
interview room. In order to record the audio of an
interview, however, the interviewing CID agent had
to affirmatively press a button to engage the audio
recording feature. As SA M testified, “[T]he only
button that we have to click is an audio button. So
we have the option to turn the audio on and off in
the interview rooms, but the video is always
recording.”

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Opinion of the Court

Video recordings of interviews—and the audio
recordings of interviews, if the button was pressed—
were automatically stored on a CID server with
limited storage space. Unless a CID agent accessed
the server and affirmatively preserved a specific
recording, the recordings were automatically
overwritten when the server’s storage capacity was
reached. According to SA M, it was CID policy at the
time to preserve only subject interviews on a
physical disc. Depending on the storage capacity of
the CID server, non-subject witness interviews
would be overwritten approximately thirty to forty-
five days after the interview.
In this case, only appellant’s CID interview—
video and audio—was preserved on a physical disc.
The interviews of the victim and SPCs D and B were
not affirmatively preserved by CID and, as such,
were eventually automatically overwritten. These
three recordings contained both audio and video
because the audio button was engaged prior to
entering the interview rooms. Indeed, SA M
testified, “My practice is I always turn the audio on
. . .”. The victim and SPCs D and B did, however,
provide written sworn statements to CID during
their interviews, all of which were preserved and
disclosed to the defense. The victim wrote a seven-
page sworn statement; SPC D wrote a five-page
sworn statement; and SPC B wrote a four-page
sworn statement. In addition to appellant, SPC D
was advised of his Article 31(b), UCMJ, rights prior
to his interview and waived his rights.
Notwithstanding the rights advisement, SPC D’s
interview was not affirmatively preserved.
According to SA M, SPC D was issued a rights
advisement based on guidance SA M received from
his supervisors. At the time, however, CID believed
appellant was the “suspect subject.” Special Agent M
testified that the issuance of Article 31(b), UCMJ,
rights was not the “threshold that determines if a
recording is going to be burned to a disc or not.”
....
Following the victim’s direct examination,
defense counsel moved to strike her testimony under
R.C.M. 914 because the government failed to
preserve her recorded interview. In support of the
motion, defense counsel called SAs M and P, whose
testimony is summarized above. The government

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Opinion of the Court

offered no evidence, relying solely on argument.
Trial counsel acknowledged the victim’s recorded
interview contained statements and that the
government could not produce those statements due
to the recording being automatically overwritten.
Trial counsel argued that despite the loss of the
statements, there was no showing of bad faith on the
part of CID and that the defense had access to the
victim’s sworn statement. During the same Article
39(a), UCMJ, hearing, the defense indicated it would
be making the same motion, supported with the
same evidence, with respect to the testimony of
SPCs D and B. The government maintained its
argument concerning the absence of bad faith and
the availability of sworn statements as to SPCs D
and B. The military judge orally denied defense
counsel’s R.C.M. 914 motions for all three witnesses
and stated she would supplement the record with
written findings of fact and conclusions of law.
Following a correction of the record ordered
pursuant to R.C.M. 1112(d), the court received the
military judge’s written R.C.M. 914 ruling. In her
ruling, the military judge found that the recorded
interviews of the victim and SPCs D and B were
“technically . . . recorded statement[s]” that were
“deleted/overwritten prior to preferral of charges.”
However, she concluded there was “no violation of
R.C.M. 914 or the Jencks Act.” She also found there
“was no evidence presented that law enforcement
acted in bad faith or in a negligent manner.” The
military judge further concluded that all three
witnesses provided “comprehensive, thorough and
detailed” sworn statements and that the statements
“constitute[d] an adequate substitute for the deleted
video recordings.”
Id. at *2–9, 2021 WL 2385270, at *1–3 (alterations 2, 3, 5, 6,
and 7 in original) (footnote omitted).
On appeal, the lower court concluded that the military
judge erred in her application of R.C.M. 914, as the recorded
interviews of the victim and SPCs D and B constituted
statements. The court further concluded the good faith loss
doctrine did not excuse the Government’s failure to provide
the statements because the recordings were lost due to the

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Opinion of the Court

Government’s negligence.2 Id. at *13–17, 2021 WL 2385270,
at *4–5. Turning to Appellant’s claim that he was prejudiced
by the military judge’s error, the lower court recognized
tension in this Court’s framework for addressing prejudice
under R.C.M. 914. Id. at *19, 2021 WL 2385270, at *6. The
lower court interpreted this Court’s decision in United States
v. Clark, 79 M.J. 449, 455 (C.A.A.F. 2020), as “explicitly”
applying both the United States v. Kohlbek, 78 M.J. 326, 333
(C.A.A.F. 2019), and Rosenberg v. United States, 360 U.S. 367,
371 (1959), frameworks for determining prejudice under
R.C.M. 914. 2021 CCA LEXIS 279, at *21, 2021 WL 2385270,
at *7. In the instant case, the lower court found prejudice
under the Kohlbek framework, but no prejudice under the
Rosenberg framework. Id. at *22–24, 2021 WL 2385270, at *7.
Ultimately, the lower court determined that Rosenberg was
the appropriate framework for addressing prejudice for
R.C.M. 914 error. Id. at *22–23, 2021 WL 2385270, at *7.
Accordingly, the lower court concluded that the military
judge’s R.C.M. 914 error did not substantially influence the
findings. Id. at *24, 2021 WL 2385270, at *7.
II. Discussion
R.C.M. 914(a) states:
After a witness other than the accused has testified
on direct examination, the military judge, on motion
of a party who did not call the witness, shall order
the party who called the witness to produce, for
examination and use by the moving party, any
statement of the witness that relates to the subject
matter concerning which the witness has testified,
and that is:

2 The granted issue does not limit this Court’s authority to
review whether the military judge abused her discretion by denying
the R.C.M. 914 motions. However, the Government concedes that
the military judge erred in finding that the lost interviews did not
violate R.C.M. 914, and that the Government showed sufficient
culpability to preclude the good faith loss doctrine. Because we
accept the Government’s concessions, this opinion only addresses
the granted issue of whether Appellant was prejudiced by the
R.C.M. 914 error.

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Opinion of the Court

(1) In the case of a witness called by the trial
counsel, in the possession of the United States;
or
(2) In the case of a witness called by the defense, in
the possession of the accused or defense counsel.
The Jencks Act requires a district court judge, upon
motion by the defendant, to order the government to disclose
prior “statement[s]” of its witnesses that are “relate[d] to the
subject matter” of their testimony after each witness testifies
on direct examination. 18 U.S.C. § 3500(b). “In 1984, the
President promulgated R.C.M. 914, and this rule ‘tracks the
language of the Jencks Act, but it also includes disclosure of
prior statements by defense witnesses other than the
accused.’ ” United States v. Muwwakkil, 74 M.J. 187, 190
(C.A.A.F. 2015) (citation omitted). “Given the similarities in
language and purpose between R.C.M. 914 and the Jencks
Act, we [have] conclude[ed] that our Jencks Act case law and
that of the Supreme Court informs our analysis of R.C.M. 914
issues.” Id. at 191.
At the trial level, if the government, as the opposing party,
fails to produce a qualifying statement, R.C.M. 914(e)
provides the military judge with two remedies for the
government’s failure to deliver the qualifying statement: (1)
“order that the testimony of the witness be disregarded by the
trier of fact” or (2) “declare a mistrial if required in the
interest of justice.” However, when, as here, the military
judge errs in denying a R.C.M. 914 motion, we must
determine whether this error prejudiced Appellant. See
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2018). The test for
prejudice is “based on the nature of the right violated.” Clark,
79 M.J. at 454 (internal quotation marks omitted) (quoting
United States v. Tovarchavez, 78 M.J. 458, 465 (C.A.A.F.
2019)). The prejudice standard that we apply depends on
whether the defect amounts to a constitutional error or a
nonconstitutional error. Id. Our review for prejudice is de
novo. Id. at 455.
In Clark, we stated that generally a R.C.M. 914 violation
will not rise to a constitutional error. Id. at 454. Here, as in
Clark, given that the victim, SPCs D and B, and the CID
agents all testified and were subject to cross-examination,
Appellant was not denied his constitutional right to confront

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Opinion of the Court

the witnesses against him. The R.C.M. 914 error therefore
infringed a procedural right rather than a fundamental
constitutional right.
When there is a preserved nonconstitutional error in the
application of R.C.M. 914, we must determine if the error had
a substantial influence on the findings. Id. at 455 (citing
Kohlbek, 78 M.J. at 333). “In conducting the prejudice
analysis, this Court weighs: (1) the strength of the
Government’s case, (2) the strength of the defense case, (3)
the materiality of the evidence in question, and (4) the quality
of the evidence in question.” Id. (citations omitted) (internal
quotation marks omitted).
In Clark, we applied the Kohlbek framework and
determined that the record contained sufficient evidence for
us to conclude that the appellant was not prejudiced by the
erroneous R.C.M. 914 trial ruling. Id. For further support, we
stated that “[a]dditionally, in Rosenberg v. United States, the
Supreme Court noted that a failure to produce may be held
harmless if the defense otherwise had access to the same
information.” Id. (citation omitted). We reasoned in Clark
that although the appellant did not have the “ ‘very same
information’ ” that would have been available had the
government not lost a portion of the appellant’s recorded CID
interview, he nevertheless suffered no prejudice because trial
defense counsel possessed “sufficient information to cross-
examine” the CID agents. Id.
In the instant case, the Government argues that the
military judge’s erroneous R.C.M. 914 ruling did not
materially prejudice Appellant’s substantial rights because
Appellant possessed “ ‘substantially the same information’ ”
—the witnesses’ written sworn statements—as he would have
garnered from their recorded interviews. The Government
asserts “that the predicate question to determining prejudice
related to an R.C.M. 914 violation is whether an appellant
possess[es] an adequate substitute for the lost statement?” If
so, the Government contends that the error is harmless and
the prejudice analysis ends. If not, then the Government
argues that appellate courts should apply the Kohlbek
framework to determine whether the appellant was
prejudiced.

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Opinion of the Court

Appellant argues that the Kohlbek framework provides
the initial prejudice analysis for preserved nonconstitutional
R.C.M. 914 error. Appellant contends that if the Kohlbek test
shows an appellant’s substantial rights were materially
prejudiced—as the lower court found—the R.C.M. 914
prejudice analysis ends and the Rosenberg framework does
not apply.
In Clark, reference to Rosenberg was not intended to
create a separate prejudice test for R.C.M. 914 violations.
Instead, in Clark, we cited Rosenberg as additional support
for our Kohlbek prejudice analysis. This type of additional
support is permitted for R.C.M. 914 violations. Muwwakkil,
74 M.J. at 191. We reiterate today that the Kohlbek
framework is the appropriate prejudice analysis for preserved
nonconstitutional R.C.M. 914 error.
Applying the Kohlbek framework, we determine (1) that if
the military judge had applied the correct remedy and
stricken the testimonies of the victim, SPC D and SPC B, the
Government would have had a very weak case; (2) that
without these testimonies, Appellant would have had a strong
case; (3) that the testimonies were material; and (4) that the
testimonies were of high quality. Unlike in Clark, had the
testimony of the victim and SPCs D and B been struck at trial
based on R.C.M. 914, there would have been no independently
admissible evidence to prove Appellant’s guilt. Considering
the other evidence admitted did not establish Appellant’s
guilt, the testimony of these three witnesses played a major
role in the prosecution of Appellant. The Government
concedes this point, noting that “[t]here is no doubt that this
Court could find material prejudice if it accepts Appellant’s
invitation to proceed directly from a finding of error to a
Kohlbek prejudice analysis.”3 We agree. After review of the
record, we conclude that the military judge’s error in not
striking the victim and SPCs D and B testimony pursuant to

3 As indicated above, the lower court also observed, “An exclusive
application of the Kohlbek[] standard would easily result in a
finding of prejudice to appellant.” Sigrah, 2021 CCA LEXIS 279, at
*22, 2021 WL 2385270, at *7.

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Opinion of the Court

R.C.M. 914 had a substantial influence on the findings.
Accordingly, we reverse.
III. Decision
The decision of the United States Army Court of Criminal
Appeals is reversed, and the findings and sentence are set
aside. The record is returned to the Judge Advocate General
of the Army. A rehearing may be authorized.

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Chief Judge OHLSON, with whom Judge MAGGS joins,
concurring.
I join the Court’s opinion in full. I am writing separately
just to briefly underscore that this is a rule-driven result
rather than a constitutionally required result. Therefore,
although the current language of Rule for Courts-Martial 914
has compelled us to conclude that the military judge in this
case erred in not striking the testimony of the Government
witnesses, nothing in our opinion should be construed as
precluding the President from amending this language in the
future.
 United States v. Sigrah, No. 21-0325/AR

Judge MAGGS, with whom Judge HARDY joins,
concurring.
The Court holds that if a military judge makes a proce-
dural error in failing to strike testimony as required by Rule
for Courts-Martial (R.C.M.) 914(e), an appellate court must
test the error for prejudice using the factors identified in
United States v. Kohlbek, 78 M.J. 326 (C.A.A.F. 2019). Apply-
ing the Kohlbek factors in this case, the Court further holds
that the Appellant suffered material prejudice to his substan-
tial rights. The Court therefore sets aside the findings and
sentence in this case. I fully concur in the Court’s opinion.
I write separately to identify and discuss what I perceive
to be the ultimate cause of the present litigation. Put simply,
R.C.M. 914 is ill-suited for handling cases in which the gov-
ernment calls witnesses at trial but cannot provide the wit-
nesses’ prior statements to the defense because those prior
statements have been lost. Despite inventive judicial efforts
to address this issue, and to some extent because of these ef-
forts, confusion and disagreement will likely persist if mili-
tary judges are expected to continue to apply R.C.M. 914 to
cases involving lost records, unless the text of R.C.M. 914 is
revised to address the problem of lost records explicitly. 1
I. R.C.M 914(a)(1) and (e) and Lost Statements
R.C.M. 914(a)(1) states an important rule that furthers
the defense’s ability to confront witnesses who testify for the
government. 2 After the government has called a witness to
testify on direct examination, the defense may ask the
military judge to order the government “to produce, for
examination and use by the [defense], any statement of the

1 In 2020, the Department of Defense proposed amendments to
R.C.M. 914(e) that would address lost records. See Dep’t of Defense,
Manual for Courts-Martial: Proposed Amendments Annex § 1(h)
(Feb. 11, 2020), https://www.regulations.gov/document/DOD-2020-
OS-0013-0001 (last visited Aug. 30, 2022) [hereinafter DoD Pro-
posed Amendments]. The President, however, has not yet acted on
these proposed amendments.
2 R.C.M. 914(a)(2) addresses statements made by witnesses
called on direct examination by the defense. I address only R.C.M.
914(a)(1) here because the issues in this case involve witnesses
called by the Government.
 United States v. Sigrah, No. 21-0325/AR
Judge Maggs, concurring

witness that relates to the subject matter concerning which
the witness has testified, and that is . . . in the possession of
the United States.” R.C.M. 914(a)(1). Having access to the
prior statements of a witness may aid the defense in calling
into question the accuracy or completeness of the witness’s
testimony.
The consequences are severe if the government chooses to
disobey a military judge’s order to produce a witness’s state-
ments. R.C.M. 914(e) provides that if the government “elects
not to comply with an order to deliver a statement to the [de-
fense], the military judge shall order that the testimony of the
witness be disregarded by the trier of fact . . . or . . . shall de-
clare a mistrial if required in the interest of justice.” Disre-
garding the entirety of an important witness’s testimony
might undermine the government’s case against the accused.
The texts of R.C.M. 914(a)(1) and (e), however, have an
important shortcoming. As written, these provisions are inapt
for addressing situations in which the government formerly
possessed a record of a witness’s prior statements but no
longer possesses any record of them at the time of trial. The
text of R.C.M. 914(a)(1) authorizes the military judge to order
the government to produce any statement that “is . . . in the
possession of the United States”; the rule says nothing about
statements that once were in the government’s possession but
are not currently in its possession. (Emphasis added.) Accord-
ingly, if the government has lost all records of a statement,
the text of R.C.M. 914(a) does not expressly authorize the mil-
itary judge to do anything. 3
The text of R.C.M. 914(e) has similar limitations. The text
expressly provides a remedy if the government “elects not to
comply with an order to deliver a statement to the [defense].”
(Emphasis added.) In cases in which the government has lost
statements, the military judge typically does not order the
government to produce the statements. There is thus no order
for the government to disobey. And even if the military judge

3 The amendments that the Department of Defense has pro-
posed would not alter R.C.M. 914(a) and therefore do not address
this issue. See DoD Proposed Amendments Annex § 1(h) (amending
only R.C.M. 914(e)).

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Judge Maggs, concurring

does order the government to produce a statement, if the gov-
ernment is not in possession of the statement, then the gov-
ernment cannot possibly comply. In such a situation, describ-
ing the government as electing not to comply with the order is
inaccurate because an election requires making a choice and
the government has no choice in the matter. 4
By pointing out these gaps in the texts of R.C.M. 914(a)(1)
and (e), I am not suggesting that, as a matter of policy, the
defense should have no remedy if the government loses its
records of prior statements of witnesses. On the contrary, as
explained above, having the prior statements of witnesses is
very important to the defense and in my view the R.C.M.
should provide the defense some form of relief if the govern-
ment, through its own fault, cannot provide them. All that I
am saying is that the current texts of R.C.M. 914(a)(1) and (e)
do not expressly provide the defense any recourse.
II. Disagreements in this Case
Two disagreements are central in this case. The ACCA
disagreed with the military judge about whether “the Govern-
ment violated R.C.M. 914.” United States v. Sigrah, No.
ARMY 20190556, 2021 CCA LEXIS 279, at *13, 2021 WL
2385270, at *4 (A. Ct. Crim. App. June 9, 2021) (unpublished).
And now this Court disagrees with the ACCA about the ap-
propriate framework for addressing prejudice for an R.C.M.
914 error. In my assessment, both of these disagreements ul-
timately stem from the difficulty of attempting to apply
R.C.M. 914(a)(1) and (e) to cases that involve lost records de-
spite a lack of textual support for doing so.
A. The ACCA’s Disagreement with the Military Judge
The military judge saw the Government’s lack of posses-
sion of the witnesses’ statements at the time of Appellant’s
motion as an obstacle to applying R.C.M. 914(a)(1). The mili-
tary judge reasoned:
Although technically a recorded statement of the
alleged victim, [Specialist D], and [Specialist B]

4 The Department of Defense has proposed a new provision,
R.C.M. 914(e)(2), to address situations in which a “party cannot
comply with [R.C.M. 914] because the statement is lost.” DoD Pro-
posed Amendments Annex § 1(h).

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Judge Maggs, concurring

existed at one time, and were “in the possession of
the United States” they were never downloaded onto
a DVD or other medium, and all recordings were
deleted/overwritten prior to preferral of charges in
this case.
The military judge then cited several cases holding that
R.C.M. 914 and its federal statutory counterpart, the Jencks
Act, 18 U.S.C. § 3500, apply only when a statement is in the
possession of the government. See, e.g., United States v. Na-
ranjo, 634 F.3d 1198, 1212 (11th Cir. 2011) (concluding that
no Jencks Act violation occurred because the district court
found that the government was not in possession of a report).
The ACCA, in contrast, concluded that R.C.M. 914 did ap-
ply and that the Government violated R.C.M. 914 by not pro-
ducing the witnesses’ statements. Sigrah, 2021 CCA LEXIS
279, at *13–14, 2021 WL 2385270, at *4. Unlike the military
judge, the ACCA did not focus on whether the statements
were “in . . . the possession of the United States” at the time
of Appellant’s motion. Instead, the ACCA reasoned: “Here, be-
cause qualifying statements were created, demanded, and not
produced, the Government violated R.C.M. 914.” Id. at *13,
2021 WL 2385270, at *4.
Although the military judge’s decision rested on the text
of R.C.M. 914(a)(1), the ACCA’s decision is consistent with
this Court’s ruling in United States v. Muwwakkil, 74 M.J.
187 (C.A.A.F. 2015). In Muwwakkil, this Court rejected the
government’s argument that R.C.M. 914(a)(1) could not apply
to lost statements because such statements were not “in the
possession of the Government.” Id. at 192. Relying more on
the purpose of R.C.M. 914(a)(1) than its specific wording, this
Court explained: “[The Government’s] reading of R.C.M. 914
would effectively render the rule meaningless. The Govern-
ment would be able to avoid the consequences of R.C.M. 914’s
clear language and intent simply by failing to take adequate
steps to preserve statements.” Id.
If the parties had called the holding of Muwwakkil on this
point to the attention of the military judge, I see no reason to
doubt that she would have reached a different conclusion. But
in the absence of such briefing, I do not find it surprising that
a military judge would determine that a rule that expressly
applies only to a statement that “is . . . in the possession of

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 United States v. Sigrah, No. 21-0325/AR
Judge Maggs, concurring

the United States” does not apply to a statement that “is [not]
. . . in the possession of the United States.”
B. This Court’s Disagreement with the ACCA
The source of the disagreement between this Court and
the ACCA about the consequences of the military judge’s de-
cision not to strike the witnesses’ testimony under R.C.M.
914(e) is similar but requires some background to under-
stand. The text of R.C.M. 914(e) requires the military judge
to strike a witness’s testimony or declare a mistrial if the gov-
ernment elects not to comply with an order of production. This
provision contains no express exceptions.
This Court, however, has not strictly followed the text of
R.C.M. 914(e) in cases in which the government has lost pos-
session of a witness’s statement. On the contrary, in
Muwwakkil and prior cases, this Court recognized what it
candidly called “a judicially created good faith loss doctrine.”
74 M.J. at 193. The good faith loss doctrine “excuses the Gov-
ernment’s failure to produce ‘statements’ if the loss or de-
struction of evidence was in good faith.” Id. In other words,
although the text of R.C.M. 914(e) requires a military judge
to strike a witness’s testimony or declare a mistrial if the gov-
ernment does not produce a witness’s statements, our prece-
dent holds that a military judge cannot strike the testimony
or declare a mistrial if the government acted in good faith. 5

5 The Department of Defense would replace this judicially cre-
ated exception with one expressed in the text of the rule. Its pro-
posal would place the current text of R.C.M. 914(e) into a newly
created R.C.M. 914(e)(1) and then, in R.C.M. 914(e)(2), it would
state:
In the event that the other party cannot comply with
this rule because the statement is lost, and can prove,
by a preponderance of evidence, that the loss of the
witness statement under subsections (a), (b), or (c) of
this rule was not attributable to bad faith or gross
negligence, the military judge may exercise the sanc-
tions set forth in subsection (e)(1) of this rule if—
(A) evidence is of such central importance to an issue
that it is essential to a fair trial, and
(B) there is no adequate substitute for such evidence.

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 United States v. Sigrah, No. 21-0325/AR
Judge Maggs, concurring

In this case, the ACCA held that the judicially created
good faith doctrine did not apply. 6 Sigrah, 2021 CCA LEXIS
279, at *17, 2021 WL 2385270, at *5. But the ACCA believed
that this Court, in cases like United States v. Marsh, 21 M.J.
445 (C.M.A. 1986), and United States v. Clark, 79 M.J. 449
(C.A.A.F. 2020), has recognized a second judicially created
doctrine for R.C.M. 914 and Jencks Act cases—in the form of
a harmless error test—and that this second doctrine pre-
cluded relief in this case. For example, in Clark, this Court
stated that if the government is ordered to produce a state-
ment under R.C.M. 914(a)(1), the government’s “failure to
produce [the statement] may be held harmless if the defense
otherwise had access to the same information.” 79 M.J. at 455
(citing Rosenberg v. United States, 360 U.S. 360, 371 (1959)).
The ACCA interpreted this statement, along with statements
from similar cases from military and civilian courts, to mean
that when the government fails to produce a witness’s state-
ments, an appellant is only entitled to relief if the defense
counsel’s cross-examination of the witnesses was “signifi-
cantly encumbered.” Sigrah, 2021 CCA LEXIS 279, at *23,
2021 WL 2385270, at *7 (internal quotation marks omitted)
(citation omitted). The ACCA determined that was not the
case here.
Today, the Court holds that its statement about harmless
error in Clark was not intended to create a separate prejudice
doctrine for R.C.M. 914. Instead, the Court explains that in
Clark it merely discussed harmlessness as additional support
for its Kohlbek prejudice analysis. In this case, that analysis
leads to the conclusion that the military judge’s decision not
to strike the testimony of the witnesses was materially preju-
dicial and requires reversal.
Although the Court concludes that the ACCA misinter-
preted its precedent, the ACCA’s reasoning is perhaps not
surprising. This Court created one nontextual doctrine limit-
ing R.C.M. 914(e) in cases involving lost statements (i.e., the

DoD Proposed Amendments Annex § 1(h).
6 Although the military judge found that there was no evidence
of negligence, the ACCA held that this determination was clearly
erroneous. Sigrah, 2021 CCA LEXIS 279, at *17, 2021 WL 2385270,
at *5. This issue is not on appeal before this Court.

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 United States v. Sigrah, No. 21-0325/AR
Judge Maggs, concurring

good faith exception). Given that judicial creation and the am-
biguity of some of this Court’s past statements, the ACCA
cannot be much faulted for concluding that this Court had
created another nontextual doctrine that excused the govern-
ment from providing witness statements whenever the de-
fense otherwise had access to the same information. 7
III. Conclusion
Perhaps this Court’s interpretations of R.C.M. 914(a)(1)
and (e), although well-intentioned, have been misguided be-
cause they have focused on policy considerations rather than
the text of the rule. Maybe this Court should have left the
policy making to the Department of Defense and the Presi-
dent. But that is not the issue here because neither party has
asked us to overrule any precedent. Yet if the kind of litiga-
tion that occurred in this case is to be avoided, then R.C.M.
914 should be revised to address expressly what should hap-
pen in cases in which the government was in possession of
statements but then lost them. If R.C.M. 914(a) should apply
in any situations in which the government “is [not] . . . in pos-
session” of a statement, then R.C.M. 914(a) should identify
those situations explicitly. And if good faith, harmless error,
or other exceptions to R.C.M. 914(e) should exist, then R.C.M.
914(e) should identify such limitations explicitly. In the
meantime, efforts to fit the problem of lost statements into
the current text of R.C.M. 914(e) are likely to continue to gen-
erate the kinds of disagreements that we see in this case.

7 As the text of the Department of Defense proposal quoted
above shows, the Department of Defense would not excuse the strik-
ing of testimony merely because an adequate substitute exists for
lost statements. Instead, it would require a showing of both good
faith and the lack of an adequate substitute. DoD Proposed Amend-
ments Annex § 1(h).

7