United States v. Stellato, — M.J. —, 2015 WL 4991663 (C.A.A.F. Aug. 20, 2015).

Defendant was charged with sexually assaulting his daughter.  The military judge dismissed the charges with prejudice as a remedy for the prosecutor’s continuing and numerous discovery violations.  The United States Army Court of Criminal Appeals reversed the military judge’s decision, and defendant appealed.  The United States Court of Appeals for the Armed Forces concluded, inter alia, that the military judge did not abuse his discretion in finding that the prosecutor committed a series of discovery violations.  In reaching its conclusion, the court observed that “‘[d]iscovery in the military justice system[] … is broader than in federal civilian criminal proceedings’” and the prosecutor’s obligations under military law “includes removing ‘obstacles to defense access to information’” and ensuring that “‘the defense has an equal opportunity obtain evidence.’”  First, the court noted that the government conceded that the prosecutor should have investigated whether the victim’s mother had any mental health records following defendant’s discovery request.  Second, the court determined that the record supported the military judge’s finding that the prosecutor failed to exercise due diligence in preserving evidence, notwithstanding the fact that the evidence at issue was in the possession of state civilian law enforcement agencies and the child-victim’s mother.  The court reasoned that that the prosecutor was aware that third parties might have relevant evidence, he had access to the evidence, and he did not tell anyone to preserve evidence even after defendant’s discovery request sought preservation of evidence.  Third, the court found that the military judge did not abuse its discretion in finding that the government violated the rule that prohibits a party from “‘unreasonably imped[ing] the access of another party to a witness’” by denying access to a material witness—a friend of the child-victim and another alleged victim of defendant—in response to defendant’s pretrial request to depose that witness.  Fourth, the court determined that the military judge did not abuse its discretion in finding that the government violated its disclosure obligation by failing to make available to the defense (until ordered by the military judge) a plastic banana alleged to have been used in the sexual assaults. Even though the plastic banana had been seized and held by the civilian sheriff’s department, the court concluded that the military judge did not clearly err in finding that it was “‘within the possession, custody, or control of military authorities’” because the prosecutor had access to other evidence held by that sheriff’s department and, after the government was ordered to conduct a search, the prosecutor “was readily able to gain possession” of the object.  Fifth, the court concluded that the military judge did not abuse its discretion in finding that the government had a duty to examine and disclose the existence of a box of evidence that was in the possession of the victim’s mother.  In reaching this conclusion, the court recognized that federal courts interpreting a prosecutor’s Brady obligation have not imposed a duty to search for exculpatory evidence in the possession of non-government cooperating witnesses, and the military law’s counterpart to Brady also generally does not require the government to search for exculpatory evidence held by witnesses.  However, the court found this case distinguishable from other cases involving evidence in the possession of cooperating witnesses because:  (1) the prosecutor “had actual knowledge of the existence of this” evidence “prior to the preferral of the charges”; (2) he “affirmatively and specifically declined to examine” the box after the witness offered to give it to him; and (3) the government “was able to easily obtain the box of evidence after it chose to do so.”  The court noted that the prosecutor “cannot avoid discovery obligations by remaining willfully ignorant of evidence that reasonably tends to be exculpatory.”  For these and other reasons, the court reversed the intermediate appellate court and reinstated the decision of the military judge.