Petition for Writ of Certiorari — Leon A. Brown, IV, Petitioner v. United States
Supreme Court briefApr 14, 2023
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Opinion in the United States Court of
Appeals for the Ninth Circuit
(September 20, 2022) . . . . . . . . . . App. 1
Appendix B Order Denying Petition for Habeas
Corpus in the United States District
Court for the Central District of
California
(June 29, 2021) . . . . . . . . . . . . . . . App. 9
Appendix C Judgment in the United States
District Court for the Central District
of California
(July 29, 2021) . . . . . . . . . . . . . . App. 43
Appendix D Order denying Petition for Panel
Rehearing and Rehearing En Banc in
the United States Court of Appeals for
the Ninth Circuit
(November 15, 2022) . . . . . . . . . . App. 44
Appendix E Exhibits . . . . . . . . . . . . . . . . . . . . App. 46
App. 1
APPENDIX A
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 21-55727
D.C. No. 2:19-cv-08507-MRW
[Filed September 20, 2022]
_________________________________
LEON A. BROWN IV,
)
Petitioner-Appellant,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
Respondent-Appellee.
)
________________________________ )
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael R. Wilner, Magistrate Judge, Presiding
Argued and Submitted August 3, 2022
Pasadena, California
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
App. 2
Before: SILER,** CALLAHAN, and H. THOMAS,
Circuit Judges.
While serving as a captain in the United States Air
Force, Leon Brown IV helped organize and lead a
violent gang in Minot, North Dakota. Military
prosecutors convened a general court-martial in 2014
and charged Brown with a litany of Uniform Code of
Military Justice violations. See 10 U.S.C. § 818. The
charges included pandering, “dishonorably organizing
individuals into a violent gang,” providing alcohol to
minors, distributing controlled substances (such as
heroin, marijuana, methamphetamine, and psychedelic
mushrooms), using controlled substances,
communicating threats to witnesses, prosecutors, and
other members of the armed forces, and sex crimes
against minor children. A military judge found Brown
guilty on many of those charges and acquitted him on
a few others, none of which is at issue here. The court
imposed a sentence of 25 years’ imprisonment.
Brown appealed (with limited success) to the Air
Force Court of Criminal Appeals and to the United
States Court of Appeals for the Armed Forces. See
United States v. Brown, No. ACM 38864, 2017 WL
3311205 (A.F. Ct. Crim. App. 2017); United States v.
Brown, 78 M.J. 162 (C.A.A.F. 2018). Then he petitioned
for a writ of habeas corpus in federal court. 28 U.S.C.
§ 2241. The district court denied his petition.
**
The Honorable Eugene E. Siler, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by
designation.
App. 3
I. STANDARD OF REVIEW
In habeas appeals from military courts the scope of
our review is “more narrow” than in habeas appeals
from civilian-court judgments. Burns v. Wilson, 346
U.S. 137, 139 (1953). We ask only two questions:
(1) whether the court-martial had jurisdiction over
Brown and (2) whether the court-martial “acted within
its lawful powers.” Broussard v. Patton, 466 F.2d 816,
818 (9th Cir. 1972) (quoting Sunday v. Madigan, 301
F.2d 871, 873 (9th Cir. 1962)).
II. ANALYSIS
The military courts fully and fairly considered
Brown’s habeas claims, and they acted well within
their lawful powers. See Burns, 346 U.S. at 142.
1. The military trial judge found Brown guilty of
sexually assaulting GB and FT, two underage girls,
and Brown now argues he’s actually innocent on both
counts, i.e., that he never had sexual relations with
either girl. But even if it were appropriate for us to
consider the post-trial declarations Brown submitted in
support of his habeas petition, those declarations fall
far short of what’s required for a successful actualinnocence claim. To prevail on an actual-innocence
claim, a petitioner must “affirmatively prove” it “is
more likely than not that no reasonable [trier of fact]
would have found [him] guilty beyond a reasonable
doubt.” Jones v. Taylor, 763 F.3d 1242, 1246–47 (9th
Cir. 2014) (citations omitted).
As the Air Force Court of Criminal Appeals
explained, testimony from at least four witnesses
supported Brown’s conviction for sexually assaulting
App. 4
GB. One witness testified to seeing Brown unclothed
and “on top of” GB at a house party. Another witness
saw Brown and GB “making out” at the same party; the
next morning she saw GB “laying in” Brown’s bed,
wearing nothing but a sheet. Yet another witness
recounted a conversation in which Brown admitted to
having sex with GB. And although GB did not
remember having sex with Brown, she testified to
getting “very, very, very intoxicated” at a house party
with Brown. She also remembered being in Brown’s
bedroom, picking her bra off the bedroom floor, and
spending time with Brown in his living room. The Air
Force Court of Criminal Appeals considered all this
testimony, considered a series of corroborating text
messages sent by Brown, and then found sufficient
evidence to support Brown’s conviction. Brown, 2017
WL 3311205, at *3.
The Air Force Court of Criminal Appeals also
carefully analyzed the evidence underlying Brown’s
conviction for sexually assaulting FT. The court
considered the relevant witness testimony, including
testimony from one witness who claimed she walked
into Brown’s bedroom and observed his having sex with
FT. Id. at *4–6. The court also considered the series of
incriminating statements made by Brown during his
period of pretrial detention; it quoted, for example, one
recording where Brown opined that FT “f***** like she
was older” than her age (fourteen). Id. at *5. After
weighing all this and more, the court again found
sufficient evidence to support Brown’s conviction. Id. at
*6.
App. 5
By any measure, the Air Force Court of Criminal
Appeals’ analysis amounted to a full and fair
consideration of Brown’s sexual-assault convictions.
Brown’s post-trial declarations—some of which were
filed by Brown’s victims—might have inspired a factual
dispute at trial, true enough, but by no means would
they more likely than not have precluded every
reasonable factfinder from voting to convict.
Reasonable factfinders could have relied on testimony
from the government’s trial witnesses and credited that
testimony over the post-trial declarations submitted in
support of Brown’s habeas petition.
2. Next, Brown says investigators violated his Sixth
Amendment right to counsel as set forth in Massiah v.
United States, 377 U.S. 201 (1964), by putting
recording devices in his place of pretrial detention and
by using jailhouse informants to elicit incriminating
statements from him. Brown’s Massiah claim, however,
is procedurally defaulted because he raised it for the
first time on collateral review; he never filed a
Massiah-based suppression motion before the military
trial judge, nor did he challenge the admissibility of his
jailhouse statements on direct appeal. See Davis v.
Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989). Even if
Brown’s Massiah claim was not procedurally defaulted,
and even if the Sixth Amendment right to counsel
applies in general court-martial proceedings, see
generally Middendorf v. Henry, 425 U.S. 25, 31–42
(1976); Daigle v. Warner, 490 F.2d 358, 364 (9th Cir.
1973), his claim fails on the merits. Sixth Amendment
rights do not attach until “adversary judicial criminal
proceedings” begin. McNeil v. Wisconsin, 501 U.S. 171,
175 (1991) (quoting United States v. Gouveia, 467 U.S.
App. 6
180, 188 (1984)). Here, the government stopped
recording Brown’s pretrial statements before adversary
judicial criminal proceedings began. See United States
v. Harvey, 37 M.J. 140, 142 (C.M.A. 1993).
3. Brown’s habeas petition also raises a series of
claims under Brady v. Maryland, 373 U.S. 83 (1963).
One of his claims concerns Airman Basic Derrick T.
Elliott, a government witness who testified at trial.
After trial, the government disclosed a 2012 incident
where police arrested Elliott for shoplifting and for
providing false information to police. The Air Force
Court of Criminal Appeals “quickly conclude[d]” the
government erred by failing to disclose Elliott’s arrest
but denied relief under Brady’s materiality element
because other evidence at trial amply exposed Elliott as
“a convicted drug distributor, convicted drug user, and
admitted self-serving liar.” Brown, 2017 WL 3311205,
at *15–16. The Air Force Court of Criminal Appeals
fully and fairly considered this claim, and its
conclusion—that any evidence of Elliott’s 2012 arrest
“would not have affected the outcome of [Brown’s] case”
because cross-examination effectively displayed
Elliott’s proclivity for lying and criminal activity, id. at
*16—is not a basis for habeas relief.
Brown also claims the government violated Brady
(1) by not disclosing its cooperation agreements with
Elliott, Jarrid Gable, and Ethan Telford and (2) by not
disclosing that Elliott, Gable, and Telford requested
clemency in exchange for their cooperation. We reject
this claim because Brown has not demonstrated how
any of this information could have reasonably affected
the outcome of his trial. To begin, it’s unclear how
App. 7
Elliott and Gable’s cooperation and clemency requests
would have affected the military judge’s decision to
convict Brown, especially since the government
corroborated much of its testimony by presenting
recordings where Brown admitted to many of the
UCMJ violations at issue. Telford’s cooperation
agreement and clemency request is even less relevant
because he never testified at trial; Brown’s attorney
would therefore have had no occasion to raise his
agreement or clemency request on cross-examination.
Brown’s brief also mentions a scattering of other
evidence allegedly withheld by the government—
including a list of photographs, various statements
made by witnesses and non-witnesses to military police
and military prosecutors, and information about a
witness’s criminal history—but Brown has not shown
“a reasonable probability that the suppressed evidence
would have produced a different verdict.” Strickler v.
Greene, 527 U.S. 263, 281 (1999).
4. Finally, Brown argues his trial counsel performed
ineffectively by not moving to suppress the audio
recordings made during his period of pretrial detention.
We disagree. Two elements comprise a successful
ineffective-assistance claim. The claimant must first
show that counsel “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed . . . by
the Sixth Amendment,” and then he must show
prejudice—in other words, he must “demonstrate ‘a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.’” Harrington v. Richter, 562
U.S. 86, 104 (2011) (quoting Strickland v. Washington,
App. 8
466 U.S. 668, 687, 694 (1984)). Brown’s claim fails both
elements. For the reasons explained above, it’s unlikely
that the military judge would have suppressed the
incriminating jailhouse recordings because even if the
Sixth Amendment applies in general court-martial
proceedings, Brown’s Sixth Amendment rights hadn’t
yet attached when the government recorded the
incriminating statements at issue. Trial counsel’s
failure to file a likely-unsuccessful suppression motion
did not “amount[] to incompetence under ‘prevailing
professional norms.’” Id. at 105 (citation omitted).
Furthermore, Brown has not shown his counsel’s
failure to file a suppression motion prejudiced him.
AFFIRMED. PETITION DENIED.
App. 9
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA
Case No. CV 19-8507 MRW
[Filed June 29, 2021]
_________________________________
LEON A. BROWN, IV,
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
Respondent.
)
________________________________ )
ORDER DENYING PETITION
FOR HABEAS CORPUS
28 U.S.C. § 2241
SUMMARY OF RULING
Petitioner Brown seeks civilian habeas corpus
review of his military court criminal conviction. The
Court concludes that Petitioner’s claims cannot lead to
relief, as they either were subject to full and fair review
by military appellate courts or are procedurally
defaulted. Alternatively, to the extent that Petitioner
is entitled to additional consideration of any issues in
App. 10
this Court, he fails to convincingly demonstrate a basis
for vacating his military conviction.
As a result, the Court denies the petition in its
entirety.
FACTS AND PROCEDURAL HISTORY
Military Trial Proceedings
Petitioner Brown formerly was an Air Force officer
assigned to a base in North Dakota. He was courtmartialed for organizing a type of gang with other Air
Force personnel and local residents near the base.
The case went to a military bench trial in December
2014. At trial, the military court heard testimony from,
among other witnesses, several teenage girls who
stated that Petitioner had sex with them and others
during alcohol- and drug-fuelled parties. The court also
heard multiple jail recordings in which Petitioner
talked with other Air Force personnel about having sex
with the girls and distributing drugs.
After the trial, the military judge convicted
Petitioner of various drug, child sexual assault, and
threat charges. (The military court acquitted Petitioner
of more serious rape and other charges.) The military
judge sentenced Petitioner to approximately 25 years
in custody.
Military Appellate Proceedings
On direct appeal, the U.S. Air Force Court of
Criminal Appeals (the intermediate-level appellate
court for convictions in this branch of the military)
App. 11
affirmed most of Petitioner’s convictions.1 In a lengthy,
reasoned decision, the appellate court rejected
Petitioner’s claims regarding the sufficiency of the
evidence, the effectiveness of his civilian and military
attorneys, and Brady / pretrial evidentiary issues.2
(The appellate court reversed a minor trespassing
conviction and corrected an issue about custody
credits.)
The U.S. Court of Appeals for the Armed Forces (the
highest-level military appellate body) remanded the
matter for consideration of Petitioner’s petition for a
new trial.3 On remand, the Air Force appellate court
denied Petitioner’s new trial request. In a second
reasoned decision, the court concluded that Petitioner’s
“new evidence” (essentially a post-trial declaration
from a non-testifying witness to the North Dakota
events) was insufficient to warrant relief.4 The Court of
1
Petitioner did not appeal some of his convictions, including those
involving drug and threat charges.
2
United States v. Brown, 2017 WL 3311205 (A.F. Ct. Crim. App.
2017) (the 2017 Decision).
3
United States v. Brown, 77 M.J. 197 (C.A.A.F. 2018). (The Air
Force appellate court later explained that it erred in concluding
that it lacked jurisdiction to consider a then-pending new trial
motion after Petitioner filed his petition for review of its
substantive appellate decision.)
4
Brown v. United States, 2018 WL 2130778 (A.F. Ct. Crim. App.
2019) (the 2018 Decision).
App. 12
Appeals for the Armed Forces subsequently denied
review without comment.5
Federal Habeas Proceedings
This federal action under 28 U.S.C. § 2241
followed.6 Petitioner filed a petition and lengthy
memorandum seeking review of eight claims. (Docket
# 21.) The government’s response: (a) sought dismissal
of several claims on procedural grounds; or (b) argued
that relief was not warranted on the merits of the
claims.7 (Docket # 22.) (The government is jointly
represented by a military attorney and a local civilian
AUSA.)
After filing his reply, Petitioner submitted
additional materials (plea and clemency request
materials for several military personnel) for this
5
United States v. Brown, 78 M.J. 162 (C.A.A.F. 2018).
6
Petitioner is currently housed at a civilian federal prison in
Lompoc in this judicial district. The parties agree that: (a) this
Court has jurisdiction over Petitioner’s claims under 28 U.S.C.
§ 2241; and (b) venue for this habeas action in this district is
proper. The parties also jointly consented to magistrate judge
jurisdiction under 28 U.S.C. § 636. (Docket # 19.)
7
Petitioner and the government submitted various excerpts of the
military court record: charging documents, portions of witness
testimony transcripts, interview reports, appellate pleadings, etc.
(Docket # 21 at 1-2; # 22 at 2-3.) The Court subsequently directed
the government to submit the transcripts of the entire courtmartial pursuant to Habeas Rule 5. (Docket # 36-37.) The Court
independently reviewed those transcripts and the other materials
submitted in this action. Nasby v. McDaniel, 853 F.3d 1049, 1053
(9th Cir. 2017).
App. 13
Court’s review. (Docket # 40, 46, 53.) The government
opposed those submissions for various reasons,
including a contention that the documents were
cumulative and irrelevant. (Docket # 42.)
STANDARD OF REVIEW
Military convictions in habeas proceedings in
civilian federal courts are subject to a specific and
unique standard: whether the defendant received full
and fair review of the conviction in military court.
Habeas review “is limited” and “available only to
guard against the military courts exceeding their
jurisdiction [ ] and to vindicate constitutional rights.”
Broussard v. Patton, 466 F.2d 816, 818 (9th Cir. 1972).
A district court’s inquiry is restricted to considering
“whether the military have given fair consideration to
each of the petitioner’s claims.” Id. (quoting Sunday v.
Madigan, 301 F.2d 871, 873 (9th Cir. 1962)); Gibbs v.
Thomas, 466 F. App’x 646 (9th Cir. 2012) (citing
Broussard, district court “properly denied habeas relief
because [military appellate courts] fully and fairly
considered” claims).
A federal court should not “re-examine and reweigh
each item of evidence”; “it is not the duty of the civil
courts simply to repeat [the] process” of direct appellate
review. Burns v. Wilson, 346 U.S. 137, 143-45 (1953);
Gurry v. Butera-Ortiz, 2012 WL 3276983 at *3 (N.D.
Cal. 2012) (same). Rather, federal courts “play a
supervisory role” over the military justice system that
is “even more limited than they play with respect to
state courts: Final judgments of the military courts are
App. 14
not subject to direct review” in federal court. Davis v.
Marsh, 876 F.2d 1446, 1449 (9th Cir. 1989).
In assessing the adequacy of military appellate
review, federal court relief is appropriate only where:
(1) the asserted error is of substantial
constitutional dimension, (2) the issue is one of
law rather than disputed fact, (3) no military
considerations warrant a different treatment of
constitutional claims, and (4) the military courts
failed to give adequate consideration to the
issues involved or failed to apply proper legal
standards.
Thomas v. U.S. Disciplinary Barracks, 625 F.3d 667,
670-71 (10th Cir. 2010). The last factor is “the most
important.”8 Id. at 671.
A prerequisite to civilian habeas review is the
presentation of claims in the military justice system.
“Military prisoners must exhaust military remedies
before seeking relief in federal court.” Davis, 876 F.2d
at 1449. A military convict’s constitutional claims “are
waived when not raised on direct appeal in the military
8
Consistent with civilian federal habeas review of state convictions
under 28 U.S.C. § 2254, this Court “looks through” the silent
decisions of the Court of Appeals for the Armed Forces and will
review the substantive 2017 and 2018 Decisions of the Air Force
Court of Criminal Appeals under this standard. Ylst v.
Nunnemaker, 501 U.S. 797, 803-04 (1991).
Also, given the relative paucity of civilian review of military
convictions in this circuit, federal courts regularly cite to decisions
from the Tenth Circuit, a court with considerable expertise in
analyzing these types of cases.
App. 15
courts” in the absence of a showing of cause and
prejudice for the failures to exhaust. Narula v.
Yakabisin, 650 F. App’x 337, 338 (9th Cir. 2016);
Tillery v. Shartie, 778 F. App’x 426, 428 (9th Cir. 2019)
(same).
***
Under the Uniform Code of Military Justice, a
military prisoner may not move for a new trial based
on newly-discovered evidence more than two years
after the end of proceedings. Denedo v. United States,
66 M.J. 114, 121 (C.A.A.F. 2008). However, military
courts “have the jurisdiction to entertain coram nobis
petitions to consider allegations that an earlier
judgment of conviction was flawed in a fundamental
respect.” United States v. Denedo, 556 U.S. 904, 917
(2009) (affirming C.A.A.F. decision). Coram nobis relief
may encompass a situation in which new evidence that
could not have been discovered earlier establishes error
“of the most fundamental character.” Chapman v.
United States, 75 M.J. 598, 601 (A.F. Ct. Crim. App.
2016) (quoting Denedo, 66 M.J. at 126).
ANALYSIS OF CLAIMS9
Ground Seven – Brady Violations
Petitioner alleges two subclaims that military
prosecutors improperly withheld impeachment
evidence in violation of Brady v. Maryland, 373 U.S. 83
9
The Court declines to address Petitioner’s claims in the
somewhat illogical order that he presented them in his petition.
Rather, it takes up Petitioner’s substantive (and mostly exhausted)
claims first.
App. 16
(1963). Petitioner presented the first subclaim
(involving Airman Elliott) on direct appeal. The second
subclaim (involving clemency materials for Airmen
Elliott, Gable, and Telford) was never reviewed by a
military court; Petitioner first presented documents
regarding this contention in federal court during
habeas proceedings.
Facts and Decision Below
First Subclaim
Airman Elliott testified at the court-martial.10 His
direct examination covered approximately 14 pages of
the trial transcript. (Docket # 37; Tr. 645-59.) Elliott
was, along with several other incarcerated military
personnel, heard talking at great length with
Petitioner in pretrial jail recordings that the
prosecution played and introduced into evidence at
trial.
In his short trial testimony, Elliott acknowledged
that he spent time with Petitioner in the community.
Elliott testified that he saw Petitioner use drugs and
discussed drug trafficking with him. Elliott briefly
testified about Petitioner’s sexual involvement with
young women, but noted – favorably for the defense, at
the time – that Petitioner had not discussed that with
him. (Tr. 650.) Elliott testified that Petitioner admitted
to Elliott that he ran a prostitution ring. (Petitioner
10
The appellate decisions used initials to identify adult military
witnesses and Petitioner’s defense lawyers. There is no basis to use
pseudonyms in this matter in civilian proceedings. However, the
Court will use initials for the underage witnesses discussed below.
App. 17
was acquitted of these charges.) On direct and crossexamination, Elliott admitted that he had been
criminally convicted of serious drug charges, received
a bad conduct discharge, and had already served the
majority of his lengthy prison sentence.
After Petitioner’s conviction, his lawyers learned
that the prosecution possessed information regarding
an additional arrest of Elliott. Elliott had been arrested
several years earlier for shoplifting at a local Walmart
and giving a false date of birth to the police. The local
charges were ultimately dismissed. The prosecution did
not disclose this information to the defense before trial.
(2017 Decision at *14.)
***
On direct appeal, Petitioner contended that the
prosecution’s failure to produce information about the
Walmart shoplifting incident violated Brady. The Air
Force appellate court found no reversible error. The
appellate decision expressly cited Brady, military law,
and military decisions that “provide a military accused
statutory discovery rights that are greater than those
afforded by the Constitution.” (Id.) The appellate court
“quickly conclude[d]” that the material regarding
Elliott’s Walmart arrest should have been disclosed to
the defense. (Id. at *15.) (The government conceded
this on appeal, too.)
The court then evaluated “the effect of this
nondisclosure on [Petitioner’s] trial.” (Id.) The court
quoted the portions of Elliott’s trial testimony in which
he was impeached regarding his serious drug offenses.
The appellate court noted Elliott’s admission of his own
App. 18
criminal conduct and his acknowledgement that he lied
to investigators looking into Petitioner’s conduct. The
court also stated that Elliott and others involved in the
jailhouse recordings discussed the possibility of getting
a reduced sentence, which potentially undermined his
testimony and statements.
The appellate court concluded that the information
about Elliott’s arrest was cumulative and immaterial.
The appellate decision stated that Elliott’s “credibility
was directly challenged and his motives to fabricate
revealed” during trial in a manner that “would have
been self-evident to the military judge.” (Id. at 16.) As
a result, the court determined that the potential
additional impeachment regarding the Walmart
theft/false birthday allegation “would not have affected
the outcome” of Petitioner’s case. Citing another
military court decision, the opinion stated that the
prosecutor’s conduct in failing to produce this material
“certainly violated Brady,” but did not require reversal
of the conviction. Rather, the court concluded that the
prosecutor’s failure to disclose the information to
Petitioner before trial “was harmless beyond a
reasonable doubt.” (Id. (quotation omitted).)
Second Subclaim
In his second Brady claim, Petitioner contends that
the prosecution failed to disclose impeachment
material regarding several military personnel.
Airman Gable testified briefly at trial. (Tr. 503-11
(direct examination).) Gable stated that Petitioner
admitted to him that Petitioner had sex with girls and
used drugs. Gable acknowledged his criminal
App. 19
conviction and his discharge from the Air Force during
his testimony.
Airman Telford did not testify at trial. However,
Gable and Telford were among the group of inmates
heard on the trial recordings in which Petitioner
admitted criminal conduct while in custody.
***
After the conclusion of briefing in this postappellate civilian habeas action, Petitioner filed a set of
materials regarding these men. The items (Elliott’s
plea agreement, clemency requests for Gable and
Telford, and related items) suggest that these
individuals cooperated with the prosecution in
exchange for, or in the hopes of receiving, a lesser
prison sentence.
Petitioner never presented these materials to a
military court for consideration. Petitioner claims he
recently received the materials through post-trial
Freedom of Information Act requests. He contends that
the failure of the prosecution to disclose the items
violated Brady.
Relevant Federal Law
A prosecutor has a constitutional obligation to
provide exculpatory evidence to the defense when that
evidence is “material” to the defense and in the
possession of the government. Brady, 373 U.S. at 87;
Giglio v. United States, 405 U.S. 150, 154-55 (1972)
(requiring disclosure of impeachment information). The
government is obligated to turn over “all material
information casting a shadow on a government
App. 20
witness’s credibility,” whether substantive or for
impeachment purposes. United States v. Bernal-Obeso,
989 F.2d 331, 334 (9th Cir. 1993) (emphasis in
original).
Favorable evidence is material if there is a
reasonable probability that the result of the proceeding
would have been different had the evidence been
disclosed to the defense. United States v. Bagley, 473
U.S. 667, 682 (1985). Put another way:
The question is not whether the defendant
would more likely than not have received a
different verdict with the evidence, but whether
in its absence he received a fair trial, understood
as a trial resulting in a verdict worthy of
confidence. A “reasonable probability” of a
different result is accordingly shown when the
government’s evidentiary suppression
“undermines confidence in the outcome of the
trial.”
Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citations
omitted); Sanders v. Cullen, 873 F.3d 778, 802 (9th Cir.
2017).
The “mere possibility that undisclosed information
might have helped the defense, or might have affected
the outcome of the trial, is insufficient to establish
materiality” on habeas review. Cooper v. Brown, 510
F.3d 870, 925 (9th Cir. 2007). Further, evidence that is
“merely cumulative of other evidence that the defense
presented to impeach” a witness can be immaterial
under Brady. Williams v. Woodford, 384 F.3d 567, 599
App. 21
(9th Cir. 2002); Hooper v. Shinn, 985 F.3d 594, 618 (9th
Cir. 2021) (collecting cases).
Analysis
First Subclaim
The Court concludes that the military courts
accorded Petitioner full and fair review of his first
subclaim about Elliott’s Walmart arrest impeachment
information. Broussard, 466 F.2d at 818.
The 2017 Decision expressly laid out the Brady
analysis for this claim. The military appellate court
concluded that Petitioner failed to demonstrate the
materiality of the withheld material. The appellate
court was aware of (and listed) the disparaging
information about Elliott that was presented during his
trial testimony. Based on that, the court concluded that
additional questioning about the relatively minor
shoplifting / false age allegations would have been
cumulative to the previous challenges to the witness’s
credibility, and would have been immaterial to the
result of the case. (2017 Decision at *16.)
The military court clearly applied the proper
constitutional principles to Petitioner’s circumstance.
Thomas, 625 F.3d at 670-71. The court acknowledged
the exculpatory nature of the information about an
additional minor criminal charge. The court also stated
that the prosecution should have disclosed the
information, but failed to do so. Brady, 373 U.S. at 87;
Giglio, 405 U.S. at 154-55.
However, the court gave a detailed and reasonable
explanation as to why this additional information was
App. 22
not material to the outcome of the court-martial.
Bagley, 473 U.S. at 682; Kyles, 514 U.S. at 434;
Williams, 384 F.3d at 599; Hooper, 985 F.3d at 618. If
anything, the military court applied a materiality
standard (harmless error beyond a reasonable doubt v.
undermined confidence in verdict) that was more
favorable to Petitioner on appellate review.
Petitioner’s arguments regarding the alleged
significance of Elliott’s testimony are unconvincing.
(Docket # 21 at 58-62.) The military court’s full and fair
review of this claim precludes habeas corpus review.11
11
Petitioner contends that the appellate court ruled that the
prosecution violated Brady, and then inappropriately engaged in
harmless error analysis. (Docket # 21 at 28; # 29 at 32.) That
misreads the appellate decision in a couple of significant ways.
Fairly read, when the appellate court stated that the prosecution
“violated Brady,” that clearly was a shorthand reference to the
government’s withholding of exculpatory information. (2017
Decision at *16.) However, this was in the same sentence in which
the court engaged in the required materiality analysis. Seizing on
the court’s loose wording is insufficient to establish that
constitutional error occurred.
Similarly, Petitioner seriously misperceives the harmlessbeyond-a-reasonable-doubt consideration he received in military
court. Read in the clear context of the decision, the court obviously
analyzed the alleged materiality of the information and found
Petitioner’s claim to be without merit. That analysis survives
civilian constitutional review. Davis v. Ayala, 576 U.S. 257 (2015)
(harmless error evaluation under Chapman v. California, 386 U.S.
18, 22 (1967), is itself reviewed deferentially in federal habeas
proceedings).
App. 23
Second Subclaim
Petitioner never presented his second Brady
subclaim (withholding of materials regarding Elliott,
Gable, and Telford) to a military court. This subclaim
is therefore procedurally defaulted and unexhausted.12
Davis, 876 F.2d at 1449; Tillery, 778 F. App’x at 427. So
too are additional allegations about new evidence that
Petitioner attempted to shoehorn into his federal
petition. (Docket # 21 at 61-64.)
But even if the Court assumed (without deciding)
that it could consider Petitioner’s unexhausted
subclaim, he has not proved that the withheld items
establish a material Brady violation. First, the trial
court appears to have been well aware of the criminal
convictions of Elliott and Gable (the witnesses who
testified at trial) – that’s why they were in jail at the
same time as Petitioner. Petitioner does not explain
how additional information about the clemency
requests in those cases would have significantly
increased the trial court’s doubt about the veracity of
their trial testimony in a way that could have affected
the outcome of Petitioner’s case. Kyles, 514 U.S. at 434;
Hooper, 985 F.3d at 618.
12
The parties argue strenuously about whether this civilian court
may properly consider newly-obtained evidence such as
Petitioner’s impeachment offerings. However, it’s apparent that
Petitioner did not attempt to seek further military review of the
items by coram nobis. Denedo, 556 U.S. at 917. This suggests that
the items do not establish error “of the most fundamental
character,” which a military court does have authority to consider.
Chapman, 75 M.J. at 601.
App. 24
Second, there was no impeachment value to the
clemency request of Telford. He didn’t testify at trial,
so his veracity was not relevant to any issue in the
case. Giglio, 405 U.S. at 154-55.
Further, while the Court understands that these
three airmen participated in the custodial
conversations with Petitioner, issues regarding their
credibility were rendered immaterial by the
submissions of the recordings themselves. The
prosecution offered Petitioner’s statements on those
recordings against him, and did not rely (save for a
relatively insignificant amount of in-court testimony)
on the memory of the other inmates to get his
statements into evidence. Proof of their motivation to
cooperate with prosecutors against Petitioner pales in
comparison to his voluntary admissions regarding his
conduct. Any attack on the truthfulness of the nontestifying speakers was immaterial to the impact that
the recordings could have had on the verdicts. Cooper,
510 F.3d at 925. Were the Court to reach the merits of
Petitioner’s second subclaim, Petitioner still failed to
prove constitutional error that could lead to relief.
Ground Three – Ineffective Assistance of Counsel
Petitioner contends that his trial attorneys provided
ineffective assistance during his court-martial. At trial,
Petitioner was represented by an Air Force lawyer and
a civilian attorney who previously served in the Army
and whose law practice “focused on representation of
military personnel in defense of court-martials.”
(Docket # 1-8 at 1, 5.)
App. 25
On appeal and on habeas review, Petitioner
presented a copious list of alleged actions, failures to
act, and poor decisions attributable to these
attorneys.13 Quoting Petitioner’s brief, the claims
broadly challenge the lawyers’ performance for
allegedly “failing to object to hearsay, failing to locate
witnesses, and not investigating anything” regarding
Petitioner’s case. (Docket # 21 at 32.) Significantly,
Petitioner contends that the defense lawyers
unreasonably failed to move to suppress the custodial
recordings of Petitioner – a claim that Petitioner
asserts that the military appeals court “manifestly
refused to review.” (Docket # 29 at 24 n.2; # 21 at 18.)
Appellate Decision and Lawyer Declarations
The military appellate decision contained a lengthy
analysis of Petitioner’s claims of ineffective assistance.
(2017 Decision at *16-22.) The decision cited Strickland
v. Washington, 466 U.S. 668 (1984), for the
constitutional standard of “assessing the effectiveness
of counsel” in military proceedings. The court
enunciated that its evaluation was limited to whether
a lawyer’s performance fell “measurably below the
performance” ordinarily expected of attorneys, and
whether that ineffectiveness led to “a reasonable
probability” of a different result of the proceedings.
(2017 Decision at *17 (quotations omitted).) Citing
13
Petitioner’s current attorney oddly presented the bulk of these
arguments in the first claim (broadly alleging that Petitioner failed
to receive full and fair review of his allegations of error). (Docket
# 21 at 16-25.) The third claim – which also alleges ineffective
assistance – repeats many of these claims, but in far less detail.
(Id. at 32-35.)
App. 26
military precedent, the court acknowledged that it
would “not second-guess the strategic or tactical
decisions” that an attorney made at trial. (Id.)
Turning to the substance of Petitioner’s claims, the
appellate court noted that Petitioner “compile[d] a list”
of alleged inconsistencies and statements in the
testimony of seven witnesses that he contended his
trial lawyers failed to address on cross-examination.
(Id.) Petitioner also complained on appeal about the
lawyer’s failure to use his texts or additional custody
recordings at trial. (Id. at *19.)
The military court received lengthy declarations
from both of Petitioner’s trial lawyers. The appellate
decision noted the explanations of the trial lawyers
regarding what they described as “tactical decisions”
regarding the case presentation. (Id. at *18.) In their
declarations, the lawyers explained that they generally
sought to minimize questioning that would focus
attention on Petitioner’s sexual and drug-based
relationships with underage civilian girls. 14
Additionally, to the extent that other military
witnesses gave testimony that the lawyers perceived to
be favorable to the defense, the lawyers stated that
they did not seek to impeach those helpful witnesses
with their convictions or clemency requests. (Id. (citing
14
One of the lawyers stated that evidence showing that “an Air
Force officer [was] involved with any kind of alleged relationships
with underage girls, whether said relationships involved sex or
drugs, would not be held in high regard by court members or a
military judge.[ H]is dealings with these underage children would
be considered, in all respects, inexcusable” and “quite devastating
to him in this case.” (Docket # 1-8 at 2.)
App. 27
and summarizing lawyer declarations at Docket # 1-8
at 1-11).) Similarly, the lawyers explained that
presenting further texts and recordings of Petitioner’s
unfiltered statements would not have been beneficial to
him at court-martial.15 (Id. at *19-20.)
In the declarations, the lawyers specifically
explained the decision not to seek suppression of the
jail recordings: they concluded that they couldn’t.
Based on their review of the materials, the lawyers
declared that “there was no good faith argument that
Capt. Brown was being interrogated about charged
offenses” after invoking his right to counsel. Further,
the lawyers stated that Petitioner “voluntarily initiated
the conversation about his alleged crimes” with the
other inmates, which also negated the ability to
suppress the recordings.” (Docket # 1-8 at 8; 2017
Decision at *19.)
In an additional section of the decision, the
appellate court summarized Petitioner’s allegations
that the defense lawyers failed to properly investigate
the case. The court noted claims that the lawyers failed
to obtain further potential impeachment material
regarding witnesses and photos of his apartment. (2017
Decision at *21.) The lawyers again stated that they
would have been unlikely to use this material to avoid
15
After listening to the full recordings, the lawyers declared that
Petitioner’s custodial comments “went way beyond bravado.”
Rather, Petitioner “randomly used organized gang and racial
terminology; he used negative comments towards witnesses,
members of his command, and the prosecution team” that were
“extremely damaging to his case.” (Docket # 1-8 at 3-4.)
App. 28
emphasizing other aspects of Petitioner’s misconduct
(supplying drugs to minors, etc.). (Id.)
***
The appellate court concluded that the trial lawyers
were not constitutionally ineffective. The court found
“no reason to second-guess the sound decisions” of the
trial lawyers regarding the questioning of witnesses.”
(Id. at *19.) The military appeals court did not find that
the lawyers acted unreasonably in trying to “prevent
more evidence about [Petitioner’s] sordid relationships
with teenage girls from being offered against him” at
court-martial. (Id.) The court concluded that Petitioner
“failed to show that [the lawyer’s] strategic evidentiary
decisions fell measurably below the performance
ordinarily expected of fallible lawyers.” (Id.) The
appellate decision also briefly addressed Petitioner’s
complaint about his lawyers’ decision not to move to
suppress the inculpatory recordings. The court
concluded that the lawyers “reasonably determined”
that there was no “good faith claim that [Petitioner’s]
Sixth Amendment right to counsel had been violated.”
(Id.)
As to prejudice under Strickland, the appellate
court found none. The court stated there was “no
reasonable probability that there would have been a
different result” at trial had the lawyers acted in the
ways that Petitioner claimed. (Id. at *20.) The
appellate panel noted that Petitioner was acquitted of
several serious offenses (suggesting that his lawyers
provided a vigorous defense). Additionally, much of the
impeachment or exculpatory evidence that Petitioner
described (and for which he claims his lawyers
App. 29
allegedly provided deficient performance by failing to
obtain): was minimal; was unlikely to “have changed
the military judge’s ruling” in the trial court; or related
to witnesses whose credibility “was thoroughly
examined” at trial. (Id.)
Relevant Federal Law
To establish ineffective assistance under Strickland,
“a defendant must show both deficient performance by
counsel and prejudice.” Knowles v. Mirzayance, 556
U.S. 111, 122 (2009). “Failure to satisfy either prong of
the Strickland test obviates the need to consider the
other.” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).
Deficient performance is defined as representation
that falls below an objective standard of
reasonableness. Strickland, 466 U.S. at 688. A trial
lawyer is “strongly presumed to have rendered
adequate assistance,” and should not have a reviewing
court “second-guess counsel’s assistance.” Cullen v.
Pinholster, 563 U.S. 170, 189 (2011). Put another way,
courts are not supposed to engage in “Monday morning
quarterbacking” of a lawyer’s strategic decisions. Ayala
v. Chappell, 829 F.3d 1081, 1102 (9th Cir. 2016).
A lawyer is best positioned to make “[n]umerous
choices affecting conduct of the trial, including the
objections to make, the witnesses to call, and the
arguments to advance.” Gonzalez v. United States, 553
U.S. 242, 249-50 (2008). Consequently, an attorney’s
“tactical decisions at trial, such as refraining from
cross-examining a particular witness or from asking a
particular line of questions, are given great deference
and must [ ] meet only objectively reasonable
App. 30
standards.” Dows v. Wood, 211 F.3d 480, 487 (9th Cir.
2000). This deference includes how “thorough and
vigorous” the attorney’s examination of a witness was.
Id.
A defense lawyer has a duty to conduct a reasonable
investigation before trial. Atwood v. Ryan, 870 F.3d
1033, 1057 (9th Cir. 2017). “A lawyer who fails
adequately to investigate [a case] renders deficient
performance.” Reynoso v. Giurbino, 462 F.3d 1099,
1112 (9th Cir. 2006) (citation omitted); Howard v.
Clark, 608 F.3d 563, 570-71 (9th Cir. 2010) (failure to
interview “star witness” in case was deficient
performance). However, when a lawyer has a reason to
be believe that “pursuing certain investigations would
be fruitless or even harmful,” the “failure to pursue
those investigations may not later be challenged as
unreasonable”; a trial decision made after adequate
investigation is “virtually unchallengeable.” Strickland,
466 U.S. at 690-91.
As to prejudice, a challenger must demonstrate that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Padilla v. Kentucky, 599
U.S. 356, 366 (2010) (quotation omitted). It is a
prisoner’s burden to demonstrate that the result of the
proceedings would have been different but for the
attorney’s purported errors. Strickland, 466 U.S. at
694. Speculation that a defendant might have suffered
prejudice “is plainly insufficient to establish prejudice.”
Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th Cir.
2008).
***
App. 31
“Surmounting Strickland’s high bar is never an easy
task.” Padilla, 559 U.S. at 371. The standard of
ineffective assistance established in Strickland “is a
general one, so the range of reasonable applications is
substantial.” Pinholster, 563 U.S. at 196. On appellate
review, a reviewing court’s analysis “must consider the
totality of the evidence before the judge or jury.”
Strickland, 466 U.S. at 696; Sanchez v. Davis, 994 F.3d
1129, 1140 (9th Cir. 2021) (same).
In the analogous context of habeas review of state
convictions under AEDPA, a federal court is obliged to
review the state court’s application of Strickland
deferentially. The Supreme Court has repeatedly
stated that the standards created by Strickland and
habeas review are both “highly deferential”; when the
two apply in tandem, “review is doubly so.” Harrington
v. Richter, 562 U.S. 86, 105 (2011); Knowles, 556 U.S.
at 123, 129 (same); Yarborough v. Gentry, 540 U.S. 1,
4 (2003) (same).
Analysis
The Court cannot conclude that the military
appellate court failed to give Petitioner full and fair
consideration of his many allegations of ineffective
assistance. Thomas, 625 F.3d at 670-71.
The 2017 Decision correctly stated the federal
constitutional principles of Strickland and its progeny.
The court then devoted a considerable portion of its
written opinion to a detailed analysis of the claims. The
appellate court helpfully laid out Petitioner’s many
claims in an orderly manner based on the nature of his
allegations. The written decision reflects the appellate
App. 32
court’s knowledge of the testimony and tangible
evidence received at trial. It also demonstrated a
familiarity with the sworn declarations of the trial
lawyers in which they explained their litigation
decisions. For these claims, the military reviewing
court considered whether the lawyers provided
deficient performance (conclusion: no) or prejudiced
Petitioner at trial (again, no).
Petitioner does not persuasively demonstrate that
the military court’s review of his ineffective assistance
claims failed to meet the full-and-fair standard. The
lengthy decision did not unreasonably apply the
general standard under Strickland. Pinholster, 563
U.S. at 196. Yes, as Petitioner suggests, it does appear
that the military court deferred to the statements of
the defense lawyers about their strategic decisions
regarding witness questioning, additional investigation
of impeachment evidence for the victims / collaborators,
the decision not to seek suppression of the recordings,
and Petitioner’s other claims. But Petitioner fails to
explain how that means that the court “blindly
accepted a false version” of the facts as he sees them.
(Docket # 21 at 19.) Rather, the military court was
constitutionally required not to second-guess the
lawyers’ reasonable assertions regarding the case, but
to give healthy deference to their articulated
App. 33
decisions.16 Ayala, 829 F.3d at 1102; Gonzalez, 553 U.S.
at 249-50.
The bulk of Petitioner’s ineffective assistance claims
consists of quite speculative, hindsight assertions about
how the strength of the prosecution’s case might have
been diminished had the matter been defended
differently. Gonzalez, 515 F.3d at 1016. That, in turn,
would require this Court to reweigh and reevaluate the
trial evidence (particularly the inculpatory testimony
of the girls at parties). This district court is prohibited
from doing so. Burns, 346 U.S. at 143-45. Moreover, as
the 2017 Decision emphasized, the proof of Petitioner’s
misconduct as recorded in his jailhouse statements
renders any alleged deficient performance by the
experienced trial attorneys immaterial and unlikely to
have caused any prejudice. Strickland, 466 U.S. at 696;
Sanchez, 994 F.3d at 1140. Habeas relief is not
warranted on Petitioner’s retrospective compilation of
claims of ineffective assistance.
Ground Five – Improper Custodial Questioning
Petitioner contends that the appellate court failed
to fully and fairly consider whether the prosecution’s
decision to record Petitioner’s jailhouse conversations
violated the Sixth Amendment.
16
Petitioner’s statement that the appellate court “was required by
law to review Petitioner’s Sixth Amendment violation claim de
novo” – supported by citations to military decisions – advances no
understandable argument on constitutional review to this civilian
district court.
App. 34
However, the government correctly and
convincingly notes that this claim is procedurally
defaulted from civilian review. (Docket # 22 at 50-51.)
Petitioner did not seek suppression of the recordings at
his court-martial for the reasons stated in his lawyers’
post-trial declarations. Further, Petitioner failed to
raise this issue on direct appeal – save for the
derivative argument that his attorneys were ineffective
for not pursuing or preserving the claim at trial.17
Notably, in his reply submission, Petitioner did not
address the question of procedural default of this claim
in any forceful way. (Docket # 29 at 8.) He also made no
attempt to demonstrate cause or prejudice regarding
the default (save for a circular claim that Petitioner
should not be deemed to have waived this argument
because he is entitled to “attack [ ] the military court’s
legal evaluation” of his claims of constitutional error).
Id. The claim is procedurally defaulted and waived in
this Court. Davis, 876 F.2d at 1449; Tillery, 778
F. App’x at 427.
17
As above, Petitioner argues that the appellate court “was
required to conduct an analysis de novo” of this claim. (Docket # 21
at 40 (citing United States v. Kosek, 41 M.J. 60 (Ct. Mil. App.
1994) (corrected citation).) However, Petitioner’s circumstance is
easily distinguishable. In Kosek, the defendant did bring a
successful motion to suppress post-arrest statements. The
prosecution was then allowed to seek appellate review of the
suppression ruling. While the Court of Military Appeals stated
that review of the claim was de novo, it never suggested that
review was sua sponte – that is, initiated by the Court itself,
without the litigant properly preserving and asserting the claim.
App. 35
Ground Eight – Confrontation Clause / Hearsay
Claims
Petitioner broadly complains that the court-martial
improperly considered out-of-court statements from
testifying and non-testifying witnesses FT, WK, and
KH in violation of his Sixth Amendment right to
confrontation. (Docket # 22 at 31, 64.)
The government correctly observes that these
claims are defaulted, as Petitioner did not exhaust
them on appellate review. Davis, 876 F.2d at 1449;
Tillery, 778 F. App’x at 427. Petitioner has not
demonstrated that he adequately preserved these
claims for habeas review.
Moreover, were the Court to reach their
merits, Petitioner’s explanations of his claims are far
too conclusory and frivolous to lead to relief. The
contention that FT and WK “did not testify at trial”
after having “made testimonial hearsay statements to
the police” is not, as Petitioner asserts, itself a
constitutional violation; Petitioner fails to explain
how it plausibly could be. (Docket # 21 at 31, 64.)
Additionally, as the government notes, Petitioner’s
briefing in this Court does not coherently explain
what statements he believes were improperly
admitted at trial or how they impacted his
conviction.18 Finally, Petitioner offers no response to
18
“Judges are not like pigs, hunting for truffles buried in briefs” or
other materials. Christian Legal Soc. Chapter of Univ. of Calif. v.
Wu, 626 F.3d 483, 488 (9th Cir. 2010) (citation omitted). It is not
the Court’s responsibility to “comb the record” on behalf of a party
to search for relevant information in support of a lawyer’s
App. 36
the government’s cogent observation that the extent of
WK’s out-of-court statement was in furtherance of the
alleged conspiracy (regardless of the formal verdict on
the conspiracy charge), and was not testimonial under
a plain reading of Crawford v. Washington, 541 U.S.
36, 53-54 (2004), or Davis v. Washington, 547 U.S. 813
(2006). (Docket # 22 at 57.) Habeas relief is not
warranted on these ill-pled and ill-conceived assertions.
Ground Four – Ambiguous Findings
The Court summarily denies Petitioner’s fourth
claim that “ambiguity” in the decisions at the courtmartial or appellate court level can possibly lead to
habeas relief. (Docket # 21 at 35-40.) Petitioner cites to
no civilian court ruling establishing that the perceived
lack of clarity in a judicial decision violates the U.S.
Constitution. It is his obligation on habeas review to
demonstrate that the military courts committed an
error “of substantial constitutional dimension.”
Thomas, 625 F.3d at 670-71. Petitioner failed to do so.19
assertion. Carmen v. San Francisco Unified School Dist., 237 F.3d
1026, 1029 (9th Cir. 2001).
19
In any event, the Court can’t make heads or tails of Petitioner’s
contention that the appellate court’s description of his acquittals
caused the review of his convictions to be materially unfair. And
Petitioner’s lawyer provides no meaningful explanation as to how
any alleged error in the military courts could possibly have
violated double jeopardy. (Docket # 21 at 39.)
App. 37
Grounds Two and Six – Actual Innocence / New
Evidence
In two claims (Two and Six), Petitioner contends
that he is actually innocent of the charges of sexually
assaulting GB and FT. (Docket # 21 at 29, 52.) The gist
of these claims is that the military courts improperly
credited the trial testimony of witnesses regarding
Petitioner’s sexual misconduct over post-trial
declarations obtained from the girls. (Docket # 8-32 at
8 (GB), 13 (FT).)
***
As an initial matter, the Court easily concludes that
Petitioner received full and fair review on direct appeal
of the constitutional sufficiency of the evidence
supporting these convictions. Broussard, 466 F.2d at
818; Gibbs, 466 F. App’x 646. The 2017 Decision
contained a lengthy recitation and analysis of the
evidence of Petitioner’s guilt on these charges. (2017
Decision at *3-6.) The court noted that the convictions
variously rested on the boastful admissions of
Petitioner and percipient testimony from attendees at
his parties. The appellate court specifically observed
that the trial judge likely rejected some of the
testimony of a key witness (KW) at trial. (Id. at *6.)
But the reviewing court found no support for
Petitioner’s claims that this “necessarily render[ed]
KW’s entire testimony unbelievable.” (Id.) That’s full
and fair consideration, especially based on the
appellate court’s correct legal statement that it was
constitutionally required to review the evidence in the
light most favorable to the prosecution. (Id. at *2 (citing
military progeny of Jackson v. Virginia, 443 U.S. 307,
App. 38
318-19 (1979) (relevant constitutional issue for a
reviewing court is “whether after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt”
(emphasis in original))).)
To the extent that Petitioner claims that new
evidence must lead to habeas relief, he falls far short of
carrying his high legal burden. Petitioner contends that
he is entitled to consideration of this claim (and
perhaps others) under Schlup v. Delo, 513 U.S. 298,
327 (1995).20 That ruling allows consideration of a
credible claim of actual innocence based on newlydiscovered evidence or a change in law through an
equitable “gateway.” Significantly, the standard of
proof required to demonstrate a claim of actual
innocence on habeas review and to get through that
gateway is extremely high. A prisoner must
20
The Schlup analysis is typically employed to allow consideration
of other substantive constitutional claims that a defendant has
defaulted. As the government points out, the Supreme Court has
never definitively stated that a defendant has the right to pursue
a “freestanding” claim of actual innocence. McQuiggin, 569 U.S. at
392; District Attorney’s Office for Third Judicial District v.
Osborne, 557 U.S. 52, 71 (2009) (whether federal constitutional
right to be released upon proof of “actual innocence” exists is “an
open question”).
Assuming that a cognizable claim of actual innocence exists
under the Constitution, “the threshold showing for such an
assumed right would necessarily be extraordinarily high.” Ayala
v. Chappell, 829 F.3d 1081, 1116 (9th Cir. 2016). To prove actual
innocence, a prisoner must “go beyond demonstrating doubt about
his guilt, and must affirmatively prove that he is probably
innocent.” Gimenez v. Ochoa, 821 F.3d 1136, 1145 (9th Cir. 2016).
App. 39
demonstrate that, “in light of the new evidence, no
juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013) (quotation omitted).
A claim of new evidence sufficient to establish actual
innocence therefore runs up against “a high threshold
that is rarely met.” Lee v. Lampert, 653 F.3d 929, 945
(9th Cir. 2011) (Kozinski, C.J., concurring); McQuiggin,
569 U.S. at 386 (“tenable actual-innocence gateway
pleas are rare”).
Regardless of the standard to be applied, the posttrial declarations of the young women are insufficient
to establish Petitioner’s actual innocence. The 2017
declarations of GB and FT (obtained years after
Petitioner’s conviction and initial appeal) purport to
refute that either of them had sexual contact with
Petitioner. (Docket # 8-32 at 8, 13.) GB’s declaration
goes further by opining that several of the trial
witnesses who testified that they saw her having sex
with Petitioner are liars. (Id. at 8 (testimony of KW “is
false”; KH “is a compulsive liar”).)
Yet, at best, all Petitioner can suggest is that there
might be a factual / credibility dispute for the finder of
fact to have made at trial. That’s far from proving that
no reasonable juror or judge would have convicted
Petitioner at trial. McQuiggin, 569 U.S. at 386. And, as
the military appellate court stated when it rejected a
different exculpatory declaration from another of
Petitioner’s victims (2018 Decision at *3), a reviewing
court may properly decline to find that such lateracquired evidence can propel a defendant through the
App. 40
Schlup gateway or demonstrate actual innocence.21 See,
e.g., Jones v. Taylor, 763 F.3d 1242, 1250 (9th Cir.
2014) (“we cannot say that every juror would credit [the
victim’s] recantation testimony over her trial
testimony” years after events); United States v. Quiroz,
706 F. App’x 423, 424 (9th Cir. 2017) (“alleged
recantation” of witness was not “reliable evidence that
would undermine the jury’s finding of guilt”).
The after-the-fact declarations that Petitioner
obtained from the two young women do not meet the
standard – be it “high,” “extraordinarily high,” or “rare”
to meet – necessary to conclude that Petitioner has
shown that he is actually innocent of the sexual assault
claims. Lee, 653 F.3d at 945; McQuiggin, 569 U.S. at
386; Ayala, 829 F.3d at 1116. The Court denies habeas
relief on these claims.
Ground One – Denial of Full and Fair Review
Finally, the Court declines to entertain or grant
relief on Petitioner’s omnibus first claim. Ground One
of the petition does not identify a discrete
constitutional error for which Petitioner seeks civilian
habeas review. Rather, in a rambling 18-page section
of the supporting memorandum (Docket # 21 at 11-29),
Petitioner catalogues a series of claims regarding the
21
Indeed, the military appellate court appears to have been aware
of some of the additional material that Petitioner developed after
his conviction regarding additional impeachment of witnesses and
the layout of his apartment. (2017 Decision at *21-22.) The court
found that evidence to be immaterial to Petitioner’s ineffective
assistance claims. That further undercuts Petitioner’s contentions
that this evidence is such important proof of his alleged innocence.
App. 41
Air Force appellate court decisions that, he contends,
demonstrated that the court “did not provide a full and
fair review” of Petitioner’s convictions. (Id. at 29.)
As noted above, federal civilian review is limited to
claims of error of constitutional magnitude in military
proceedings. Broussard, 466 F.2d at 818. In this section,
though, Petitioner seeks this Court’s detailed
reconsideration of the credibility of witnesses and the
reweighing of evidence. This Court is without jurisdiction
to delve that deeply into the military case file.22 Burns,
346 U.S. at 143-45; Davis, 876 F.2d at 1449.
22
Further hindering Petitioner’s request are additional grievous
overstatements of the record in that his lawyer made this section
of his brief. Petitioner contends that, in evaluating his motion for
a new trial, the Air Force appellate court “mentions that Petitioner
was guilty of ‘notorious drug activities.’” (Docket # 21 at 25.) No, it
didn’t. The only place that this phrase occurs in the decision is
when, in evaluating a post-conviction declaration from a witness,
the court explained that “Petitioner bragged about his extensive,
notorious drug activities” with other witnesses and on audio
recordings. (2018 Decision at *3). Similarly, Petitioner falsely
asserts that the appellate decision stated that he was convicted of
“conspiring to pander” and “engaging in prostitution.” (Docket # 21
at 25.) Wrong – the appellate court accurately noted Petitioner’s
acquittal on these charges. (2018 Decision at *1 n.3)
More outrageously, Petitioner flatly states that the
government “conceded that their jailhouse recordings were not
reliable evidence” at the trial. (Docket # 21 at 16.) In a case heavily
reliant on this recorded evidence, that’s an amazing assertion to
make. It’s also a wild misstatement of the prosecutor’s comment in
post-trial proceedings. What the prosecutor actually said – in
joining a request of Petitioner’s trial lawyer to dismiss one
specification (military charge) – was that “the audio disagrees”
with the testimony of trial witnesses.” (Tr. 684.) That’s a far cry
from Petitioner’s formulation in his federal brief, and materially
undermines his lawyer’s attacks on the judicial process below.
App. 42
CONCLUSION
For the reasons stated above, the Court denies
habeas corpus relief in this action.
Dated: June 29, 2021
/s/ Michael R. Wilner
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE
App. 43
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF
CALIFORNIA
Case No. CV 19-8507 MRW
[Filed June 29, 2021]
_________________________________
LEON A. BROWN, IV,
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
Respondent.
)
________________________________ )
JUDGMENT
IT IS ADJUDGED that the petition is denied and
this action is dismissed with prejudice.
Dated: June 29, 2021
/s/ Michael R. Wilner
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE
App. 44
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 21-55727
D.C. No. 2:19-cv-08507-MRW
Central District of California, Los Angeles
[Filed November 15, 2022]
_________________________________
LEON A. BROWN IV,
)
Petitioner-Appellant,
)
)
v.
)
)
UNITED STATES OF AMERICA, )
Respondent-Appellee.
)
________________________________ )
ORDER
Before: SILER,* CALLAHAN, and H.A. THOMAS,
Circuit Judges.
The panel has voted to deny the petition for panel
rehearing. Judge Siler recommends the denial of the
petition for rehearing and Judge Callahan and Judge
H.A. Thomas vote to deny the petition for rehearing en
banc. The full court has been advised of the petition for
*
The Honorable Eugene E. Siler, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by
designation.
App. 45
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for panel rehearing and the petition for
rehearing en banc are denied.
App. 46
APPENDIX E
Exhibit 32
DECLARATION OF:
Winona Emelia Keplin
I Winona E. Keplin, do hereby make the following
declaration under penalty of perjury pursuant to 28
U.S.C. § 1746:
This statement is for the United States Court of
Appeals of the Armed Forces, in the case of United
States vs Captain Leon Brown IV. Captain Brown was
wrongfully convicted of pandering, in which the Air
Force alleged that I was being forced to work as a
prostitute for him. He was also accused by Kelsie
Wallace of drugging me while prostituting my body to
“unknown man”. It makes no sense to me that nobody
ever tried to ask me if this was true or not, and nobody
asked me to testify. Had I known about these false
accusations, I would have made the truth known that
these allegations are lies. I was never drugged or sold
for prostitution, and I never witnessed any such acts
committed or encouraged by Captain Brown. If I really
am a victim of prostitution, then my version of the
truth on these matters needs to be considered.
Finally, I am an eye-witness to the accounts regarding
the only interaction between Captain Brown and FT. It
is a fact that FT did tell everybody, including Captain
Brown, that she was 17 years old. They did not engage
in any sexual activity, nor were they ever alone
App. 47
together. I can personally attest to these facts. Again,
I do not understand why nobody attempted to contact
me before his Court Martial back in December of 2014,
or during the investigation.
I respectfully ask for your court to please consider my
eyewitness accounts as stated above.
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on: October 7, 2017
/s/ Winona E. Keplin
Winona E. Keplin
App. 48
Second Declaration of:
Winona Emelia Keplin
I, Winona Keplin, do hereby make the following
declaration under penalty of perjury pursuant to
28 U.S.C. § 1746:
I feel very discontent with your court’s decision to
reject my first declaration. Your military justice system
accused me of being a prostitute for Captain Leon
Brown IV, and you also believed he was drugging me
while doing so. Yet nobody ever tried to ask me if that
was true or not, and nobody asked me to testify at his
trial. This makes no sense. If I really am a victim of
prostitution then why is your court ignoring my right
to be heard? I strongly feel that my citizen rights are
being violated, as your Air Force has propagated false
sexual rumors about me which are not true. It is
unethical and mendacious to intentionally ignore the
truth.
I WAS NOT DRUGGED OR SOLD FOR
PROSTITUTION! My right as a citizen needs to be
heard.
Furthermore, I did witness the only interaction
between Captain Brown and FT. She told me and
everybody that she was 17, they did not have sex, and
they were not alone together. Why disregard truth?
Just because a witness did not say anything bad about
Captain Brown does not justify for them to be ignored.
I ask for your court to please consider my eye-witness
accounts.
App. 49
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on: 9/12, 2017
(date)
/s/ Winona Keplin
Winona Keplin
App. 50
Declaration
I, GB, 11/11/1996 do hereby make the following
declaration under penalty of perjury pursuant to 28
U.S.C SS1746:
I want to submit this letter to the court because I have
a right to be heard and the truth needs to finally be
clear. An acquaintance of mine Nona recently told me
what happened to Captain Leon Brown and how the
Air Force twisted my words from his December 2014
trial.
I’m going to say this very clear in plain English:
Captain Brown and I did not have sex the night of that
party October 2012! Had Captain Brown’s attorney
actually ask me this during his trial I would have
replied NO. I told OSI during multiple interviews that
nothing sexual happened between us back then so I
assumed this issue was put to rest.
My testimony should have been obvious for you to
understand that nobody was in the room with me all
night or in the morning. Kelsey Wallace did not barge
in to any room I was staying in, I can tell you for a fact.
That statement of hers is false. I do remember spilling
drinks on myself all through the night so I cleaned
myself in the master bathroom and changed shirts
before laying down “alone”. Obviously my bra had to be
off to clean myself off and not feel sticky from spilling
drinks. I thought my testimony clarified that no one
was with me or else you should have plainly asked me.
Finally I want to make clear that me and Kendra
Hoeger are not friends. I have known her since I was 5
years old and she is a compulsive liar. I do remember
App. 51
being asked at the trial if Kendra came into the room
with me the next morning and I specifically said, NO.
Nobody was in the room with me and I was wearing all
my clothes nothing sexual happened to me all night. I
said I was perfectly fine. If these are my own words
that I testify to then you have no right to change my
version of events. That I said what happened to me: I
was never naked in bed with anybody! I did not get
pregnant, have any abortions, or take any pills. Had I
been asked this I would have told you NO. I hope this
letter final sets the truth clear.
I declare under penalty and perjury that the foregoing
is true and correct.
Executed on July 31, 2017
/s/ GB
GB
App. 52
Declaration of Breanna Quarne
I, Breanna Quarne, do hereby make the following
declaration under penalty of perjury pursuant to 28
U.S.C. § 1746:
This statement is to put the facts that I personally
witnessed on record. I have known Captain Leon
Brown IV since early 2013. We shared the same
apartment with Winona Keplin in the later months of
2013. Winona and I were the only two women who
occupied that residence.
I learned about the accusations surrounding Leon’s
Court Martial from his family in 2016. I also read the
written statement that Kelsie Wallace gave to OSI
from 2014. Kelsie said that Leon was drugging me then
selling my body to random men for prostitution; that
statement is complete fallacy. I never saw any girls
who were being drugged or prostituted; Kelsie’s
statement is a blatant lie. Kelsie never even lived at
that apartment with us.
I was with Leon for Halloween, October 2013 when
Kelsie uninvitedly came over with FT. They were both
loud and very annoying, I did not want them over. FT
was trying to flirt with every guy in the house,
including Leon who was my boyfriend at that time. I
was pretty angry so I told Leon “either they leave or I
leave”. As a result, Nona helped Leon usher them out
the door to avoid any further conflicts. I do specifically
remember that FT claimed to be 17 years old. Notably,
Leon was not alone with anybody except for me that
night. I was with Leon all night.
App. 53
OSI had an extremely hostile overtone towards me
while Leon was confined by the Air Force in 2014. They
were trying to scare me into making claims against
Leon by threatening that “I would be in a lot of trouble
too if I did not help them”, or words similar to that
effect. That is the reason why I did not want to
participate with anything back then. I make this
statement now because justice was not done correctly.
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on: 8-17-18, 2017
(date)
Breanna Quarne
/s/ Breanna Quarne
App. 54
Declaration of Valorie Mattson
I, Valorie Nicole Mattson, do hereby make the following
declaration under penalty of perjury pursuant to 28
U.S.C. ss 1746:
I know Captain Leon Brown IV from Minot, North
Dakota. I first met Leon at his previous residence at
1303 35th Ave SE during the “Project X” party on
October 13-14, 2012. I remember being at Leon’s house
on that night with other friends of mine including GB,
Kelsie Wallace, Kendra Hoeger, and Christopher
Mascho. I was at that party all day/ night until it was
shut down by the Minot Police Department.
I had interactions with Leon and GB during that night
and have personal knowledge of their later formed
relationship. I was interviewed by OSI agents on April
17, 2013 at the school that GB and I attended, Minot
High School Central Campus Plus. I told OSI (and am
now telling you) that GB and Leon did not engage in
any sexual activity that night in October 2012. I know
this to be a fact because I had observed both of them
throughout the entire night, they were not alone
together. Towards the end of the night, GB had
occupied the upstairs master bedroom by herself, while
Leon was in the living room with me and other friends.
Nobody had entered the room that GB was in. I had
also told OSI that GB and Leon were not in any
relationship together until sometime in late- December
2012.
I was not aware of any court martial against Captain
Brown during his trial in 2014. Nobody had tried to
contact me to become a witness.
App. 55
I declare under penalty of perjury that the foregoing is
true and correct.
Executed on 7-9-18
DATE
/s/ Valorie Mattson
Valorie Mattson
App. 56
Declaration of FT
I, FT (January 14, 1999), do hereby make the following
declaration under penalty of perjury pursuant to 28
U.S.C. § 1746:
I want to help make things right by submitting this
letter to the military courts, and to correct any past
mistakes that were made. I remember back in early
2014 that Kelsie Wallace was angry with Captain Leon
Brown IV for a reason unknown to me. She asked me
if I would help her cause problems for him with the
military. I was 15 years old at that time and I did not
fully understand the seriousness of Kelsie’s other
allegations against him, or the later consequences that
came afterwards. I chose not to testify at the trial
because it was at that point in time I realized this had
gone too far, and I wanted no part of it. I was young at
that time and did not truely understand the
seriousness of what was said.
I wish to answer the following 3 questions for the
record:
1. Yes, I told Leon that I was 17 years old when we
met.
2. Nothing sexual ever happened between us.
3. There was never any pregnancy or abortion.
I declare under penalty of perjury that the foregoing is
true and correct.
App. 57
Executed on: October 9th, 2017
(DATE)
/s/ FT
FT
App. 58
Exhibit 22
ARTICLE 39(a) SESSION
MJ: Please be seated. This Article 39(a) Session is
called to order.
TC: This court-martial is convened by Special Order
A-10, Headquarters, Eighth Air Force, dated 26
December 2013; copies of which have been furnished to
the military judge, counsel, and the accused and which
will now be inserted at this point in the record.
The charges have been properly referred to this
court for trial. The first charge was served on the
accused on 6 January 2014. The additional charge was
served on the accused on 22 January 2014.
The prosecution is ready to proceed in the case
of the United States versus Senior Airman Derrick T.
Elliott.
The accused and the following persons detailed
to this court are present:
Colonel Grant L. Kratz, Military Judge
(MJ);
Major Timothy Ward, Trial Counsel (TC);
Captain John Kalis, Trial Counsel (TC);
and
Captain Christopher Sanders, Defense
Counsel (DC).
XXXXXXXX has been detailed reporter for
this court and has been previously sworn.
App. 59
TC: All members of the prosecution have been
detailed to this court-martial by Colonel Robert Booth,
5th Bomb Wing Staff Judge Advocate.
Major Ward has been qualified and certified
under Article 27(b) and sworn under Article 42(a),
Uniform Code of Military Justice. Captain Kalis is
uncertified. No member of the prosecution has acted in
any manner which might tend to disqualify us in this
court-martial.
MJ: Let me make sure that I understand. You are
qualified, but not certified; and therefore not sworn. Is
that right?
TC: That is correct, sir.
MJ: Very well; if you could stand and raise your
right hand.
***
[p. 87]
-
. . . steroids into their thighs. Airman Elliott had full
knowledge of the wrongfulness of what he was doing,
and yet chose to take Airman XXXXXX down a path
that would ultimately ruin the career of the now
Airman Basic XXXXXX.
TC: There was a fourth life that Airman Elliott tore
a path of destruction through; XXXXXX, his coconspirator in distributing marijuana. The text
messages between the two of them tell the story,
coordinating all the details of weighing, bagging,
pricing, and selling marijuana; and all of it goes right
back to the inventory of product, the bricks of pot
stashed underneath the mattress.
App. 60
These are the aggravating facts and
circumstances of this case. This is not a buddy distro
case. This is not a simple use and possession case. This
is no fewer than five different drugs, four lives torn
apart, and a bona fide drug-dealing operation. If there
were ever a drug case that calls out for a dishonorable
discharge, this is it.
The second main point about why a dishonorable
discharge with four years of confinement is appropriate
is that all of our principles of sentencing point to it.
When Shylock demanded his pound of flesh from The
Merchant of Venice, Shakespeare used it as an
opportunity to underscore the importance of grace and
mercy. This case, however, is that rare case when the
court should not extend grace and mercy, but should
rather express the full measure of the Air Force’s and
society’s outrage for what Airman Elliott has done. The
price tag of industrial-scale marijuana distribution, of
steroid use, of ruining the lives, not only of a fellow
Airman, but also of a child; that price tag is
dishonorable discharge. It is the message the Air Force
sends to its members and the public about how
seriously we take these offenses.
But, if we simply kick Airman Elliott out of the
front gate and back into society, we are being horribly
irresponsible. The Air Force owes society more than
that. We have a responsibility to turn Airman Elliott
into a decent, trustworthy person, if that is even
possible. It took Airman Elliott time to become the kind
of criminal he is today. He’s been engaged in other
criminal behavior for years. Before anything he is being
sentenced for today, he was a petty shoplifter. In 2012,
App. 61
he pled guilty to stealing from Wal-Mart in Minot. He
also lied to the sheriff’s department about his birth, his
driver’s license, and even the spelling of his own name.
But, did he learn from those mistakes? No. After
pleading guilty to stealing, he went on to other, more
serious crimes.
Today, he’s pleading guilty again. He’s saying
that he’s sorry for what he has done and he is taking
responsibility for his actions. Do not mistake this for
humility or for honor. This is a calculating criminal
who got caught. With a mountain of evidence against
him, he’s made a plea deal with the government to cut
his losses. That is his motivation for admitting his
crimes.
The kind of profound, fundamental change he
needs to undergo will almost certainly take longer than
just a few months. To have any chance to succeed at
rehabilitation, Airman Elliott needs to spend four years
in confinement.
Given his pattern of escalating wrongdoing from
shoplifting to drug dealing, and the variety of people he
has harmed along the way, the Air Force also owes it to
the rest of society to keep him behind bars for four
years where he cannot do anymore damage.
In his unsworn statement Airman Elliott talked
a great deal about how he has done reflection and
contemplation, and he wants to have time in his life to
have focus and discipline developed. Indeed, he does
need time to reflect. He does need time to develop focus
and discipline, and he needs that time to happen in
confinement for four years.
App. 62
This sends an unmistakable message to Airmen,
all Airmen, and to Airman Elliott, specifically, that his
actions are beyond the realm of any acceptable
behavior. There is a general message of deterrence that
Airmen on this base need to see as well. Even with
thousands of dollars of marijuana and $600 in cash onhand, crime does not pay. A dishonorable discharge and
four years of confinement sends that message.
But to truly underscore the connection between
crime and punishment and send the deterrent message
that other Airmen, and indeed Airman Elliott himself
needs to see, there must also be the message that
comes from total forfeitures of pay and allowances, and
a reduction to E-1. That sends . . .
***
[p. 97]
[The court-martial opened and was called to order
at 1830, 14 February 2014. The parties were present.
The members were absent.]
MJ: Please be seated. The court is called to order.
TC: All parties present when the court closed are
again present.
MJ: Accused and counsel, please rise.
SENTENCE
MJ: Senior Airman Derrick T. Elliott, this
court-martial sentences you:
App. 63
To be reduced to the grade E-1;
To forfeit all pay and allowances;
To be confined for 32 months; and
To be discharged from the service with
a bad-conduct discharge.
MJ: Please be seated.
[The accused and the defense counsel did as
directed.]
MJ: Trial Counsel, please hand me the quantum
portion of the pretrial agreement. That is Appellate III.
TC: I am handing Appellate Exhibit III to the
military judge.
MJ: Appellate Exhibit III states “As consideration
for the offer of the accused to plead guilty as set forth
in the Offer for Pretrial Agreement, dated 14 January
2014, the Convening Authority will undertake that: He
approve no confinement, if confinement is adjudged in
excess of 36 months.” “There are no restrictions on his
ability to approve other forms of punishment that may
be adjudged.”
This is the original Appendix A submitted with the
Offer for Pretrial Agreement.
MJ: Senior Airman Elliott, have I correctly stated
the sentencing agreement that you have with the
Convening Authority?
ACC: Yes, sir.
MJ: Do counsel for both sides agree?
***
App. 64
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS EIGHTH AIR FORCE (AFGSC)
BARKSDALE AIR FORCE BASE, LOUISIANA
[SEAL]
JAN 14 2014
MEMORANDUM FOR AIRMAN FIRST CLASS
DERRICK T. ELLIOTT
FROM:
8 AF/CC
345 Davis Ave W
Barksdale AFB LA 71110
SUBJECT: Grant of Testimonial Immunity and
Order to Testify
1. An ongoing investigation revealed that you have
knowledge of offenses allegedly committed by Captain
Leon A. Brown, 91 MW, Minot AFB ND. The offenses
in question alleged against Capt Brown include use,
possession and distribution of illegal drugs and illegal
activities involving minors. These offenses appear to be
in violation of Articles 112a, 120b, 133, and 134 of the
Uniform Code of Military Justice (UCMJ).
2. By authority vested in me in my capacity as a
general court-martial convening authority, by Rule for
Court-Martial 704(c)(1), Manual for Courts-Martial, I
hereby grant you testimonial immunity and order you
to answer any questions posed to you by investigators
and counsel pertaining to any offenses alleged against
the military member identified above, and to testify at
any proceeding held pursuant to the UCMJ (10 U.S.C.
§ 801, et seq.), concerning any offenses alleged against
the military member identified above. This grant of
immunity takes effect on the day you receive a copy of
App. 65
it. You will acknowledge receipt of this grant of
immunity.
3. Under this immunity, your testimony and
statements, as well as information directly or indirectly
derived therefrom, may not be used against you in a
later trial by court-martial. However, this immunity
does not bar the use of your testimony, your
statements, or information derived from them, in
prosecuting you for perjury, giving a false statement, or
otherwise failing to comply with this order to testify.
/s/ Scott A. Vander Hamm
SCOTT A. VANDER HAMM
Major General, USAF
Commander
App. 66
Place: Minot AFB, North Dakota
Date: 14 January 2014
____________________________________
UNITED STATES
)
)
v.
)
)
SrA Derrick T. Elliot, XXXXXXXX
)
5th Maintenance Squadron (AFGSC) )
Minot AFB, ND
)
___________________________________ )
APPENDIX A TO OFFER FOR
PRETRIAL AGREEMENT
1. As consideration for the offer of the accused to plead
guilty as set forth in the Offer for Pretrial Agreement
dated 14 January 2014, the Convening Authority will
undertake that:
He will approve no confinement, if confinement
is adjudged, in excess of thirty-six (36) months.
There are no restrictions on his ability to
approve other forms of punishment that may be
adjudged.
2. This is the original Appendix A submitted with the
Offer for Pretrial Agreement.
/s/ Derrick Elliot
DERRICK T. ELLIOT, SrA USAF
Accused
14 Jan 14
Date
I certify I advised SrA Elliot of the effect of the
foregoing and that the above signature is his voluntary
signature to Appendix A.
App. 67
/s/ Christopher L. Sanders
14 Jan 14
CHRISTOPHER L. SANDERS, Capt, USAF Date
Defense Counsel
App. 68
I recommend acceptance (rejection) of this Appendix A.
XXXXXXXXXXX
XXXXXXXXXXX
XXXXXXXXXXX __________
XXXXXXXXXXX Col, USAF
Staff Judge Advocate
24 Jan 14
Date
The foregoing Appendix A is approved/disapproved in
conjunction with the Pretrial Agreement, dated 14
January 2014.
/s/ Scott A. Vander Hamm
25 Jan 14
SCOTT A. VANDER HAMM, Maj Gen, USAF Date
Commander
App. 69
DEPARTMENT OF THE AIR FORCE
AIR FORCE OFFICE OF SPECIAL
INVESTIGATIONS
[SEAL]
24 Jan 14
MEMORANDUM FOR AREA DEFENSE COUNSEL
FROM:
AFOSI Det 813
475 Summit Drive, Suite 217
Minot AFB, ND, 58705
SUBJECT: SrA Derrick
Cooperation
Elliott
Investigative
1. On 15 Jan 14, SrA Derrick Elliott provided both oral
and written statements, which corroborated
information in aid of an active sexual assault and
narcotics investigation.
2. SrA Elliott provided his statements voluntarily.
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXX SA, USAF
AFOSI, Detachment 813
Eyes of the Eagle
App. 70
DEPARTMENT OF THE AIR FORCE
USAF JUDICIARY, AREA DEFENSE COUNSEL
(AFLOA)
MINOT AIR FORCE BASE,
NORTH DAKOTA 58705
[SEAL]
8 May 2014
MEMORANDUM FOR CONVENING AUTHORITY
FROM:
AFLO/ADC (Capt Sanders)
SUBJECT: Request for Clemency – AB Derrick T.
Elliott
1. The Defense respectfully requests that you consider
this letter and the letter submitted by AB Elliott when
deciding whether to grant clemency in AB Elliott’s
case.
2. On 13 February 2014, AB Elliott plead guilty at a
general court-martial to possessing and distributing
some amount of marijuana; use and possession of
nandrolone decanoate; possession of methandienone,
stanzolo, and testosterone enanthate; and conspiracy
to commit an offense. He was sentenced to reduction to
E-1, forfeiture of all pay and allowances, confinement
for 32 months, and a bad conduct discharge.
3. AB Elliott understands that what he did was
criminal and that he deserves to be punished; he only
asks that you grant him leniency with his confinement
time. Prior to and following his court-martial, AB Elliot
has assisted the Air Force Office of Special
Investigations (OSI) with an investigation against a
military officer. AB Elliott voluntarily provided both
App. 71
oral and written statements and has been completely
corporative with the investigators. It is worth noting
that AB Elliott voluntary came forward with the
information, OSI did not approach him nor did they
know that he was a potential witness.
4. AB Elliot requests that you shorten his time in
confinement from 32 to 24 months. This will ensure
that AB Elliott can provide support, both physically
and financially for his child. Two years is still a
significant sentence that provides appropriate
punishment for the crimes.
5. For these reasons, I respectfully request that you
grant AB Elliot’s request for clemency. If you have any
questions please call me at DSN (b)(6), (b)(7). Thank
you for your time.
Very Respectfully,
/s/ Christopher L. Sander
CHRISTOPHER L. SANDER, Capt, USAF
Defense Counsel
Attachment:
Clemency Request of AB Derrick T. Elliott
App. 72
1 May 2014
MEMORANDUM FOR CONVENING AUTHORITY
FROM: AB DERRICK T. ELLIOTT
SUBJECT: Clemency Request
1. Sir, I am writing this clemency letter hoping that
you will grant me leniency by reducing my sentence
from 32 months to 24 months confinement
2. Sir, I take full responsibility for what I did. I’m
currently serving my punishment for my mistakes.
Being in confinement and being under investigation for
10 months while I continued to go to work every day
was a very difficult time in my life, but I maintained a
positive attitude in everything I did and didn’t get in
any other trouble during that time. I definitely learned
my lesson. I can assure you nothing like this will
happen in the future.
3. I think I deserve the leniency because my girlfriend
and I are expecting our first child in October. It is
already hard on her now and I can’t even imagine how
hard it will be for her trying to support herself and our
child on her own, Before I got sentenced and while I
have been in confinement I have helped the Air Force
by giving OSI information about another case which I
will be testifying in. Before I joined the Air Force I had
never gotten in any trouble. I already have a few jobs
lined up for when I get out to support my family.
4. As I said before, I regret what happened and I
learned my lesson, nothing like this will ever happen
again.
App. 73
5. Thank you for your time and consideration.
Respectfully Submitted,
/s/ Derrick T. Elliott
DERRICK T. ELLIOTT, AB, USAF
App. 74
ACTION OF THE CONVENING AUTHORITY:
DEPARTMENT OF THE AIR FORCE,
HEADQUARTERS EIGHTH AIR FORCE (AIR FORCE
GLOBAL STRIKE COMMAND), Barksdale Air Force
Base, Louisiana 71110, dated 30 May 2014
In the case of AIRMAN FIRST CLASS JARRID R.
GABLE, (b)(6), (b)(7)United States Air Force, 219th
Security Forces Squadron, only so much of the sentence
as provides for a bad-conduct discharge, confinement
for 6 months and reduction to E-1 is approved and,
except for the bad-conduct discharge, will be executed.
The Air Force Corrections System is designated for the
purpose of confinement and the confinement will be
served therein or elsewhere as directed by
Headquarters Air Force Security Forces Center,
Corrections Division. Unless competent authority
otherwise directs, upon completion of the sentence to
confinement, AIRMAN BASIC GABLE will be required
under Article 76a, UCMJ, to take leave pending
completion of appellate review.
/s/ Scott A. Vander Hamm
SCOTT A. VANDER HAMM
Major General, USAF
Commander
App. 75
DEPARTMENT OF THE AIR FORCE
OFFICE OF THE AREA DEFENSE COUNSEL
(AFLOA)
GRAND FORKS AIR FORCE BASE,
NORTH DAKOTA
[SEAL]
27 May 2014
MEMORANDUM FOR THE
AUTHORITY THROUGH 5 BW/JA
CONVENING
FROM:
AFLOA/ADC
(b)(6), (b)(7)(C)
SUBJECT: Clemency Matters – United States v. A1C
Jarrid R. Gable
1. The Defense respectfully requests that you grant
A1C Gable clemency by not approving the sentenced
hard labor without confinement. On 1 February 2014,
A1C Gable was found guilty of sexual assault, abusive
sexual contact and attempted sexual assault. The panel
of officers and enlisted sentenced A1C Gable to
reduction to E-1, hard labor without confinement for
three months, six months confinement and a bad
conduct discharge.
2. Our Military Justice system included this unique
process of clemency to ensure that the “commander’s
prerogative” remains intact. You have the opportunity
to right wrongs and set things straight. AB Gable has
been convicted and must now register as a sex offender,
likely for the rest of his life. AB Gable faces limitations
on employment as well as where he can live. The
imposition of hard labor without confinement will only
prevent AB Gable from starting the hard road back to
App. 76
being rehabilitated into society. Because AB Gable’s
sentence includes automatic forfeitures, AB Gable
would be forced to perform this hard labor without
confinement, without pay. This would be an enormous
detriment to him being able to move forward following
this conviction. AB Gable is ready to become a
productive member of society again but the hard labor
confinement would dramatically reduce his ability to do
so.
3. For the reasons stated above, I respectfully request
that you grant AB Gable’s request for clemency. The
sentence of reduction to E-1, six months confinement
and a bad conduct discharge have already addressed
the misconduct of this case. Not approving the hard
labor without confinement would allow AB Gable the
opportunity to start his new life following confinement.
Thank you for considering his clemency request.
/s/ Valerie J. Newman
VALERIE J. NEWMAN, Capt, USAF
Defense Counsel
2 Attachments:
1. AB Gable’s Clemency Request. dated 20 May 2014,
2 pages
2. Character letters, various dates, 6 pages
App. 77
MEMORANDUM FOR CONVENING AUTHORITY
FROM: AB JARRID R. GABLE
SUBJECT: Clemency Request
1. Sir, I am writing this clemency letter hoping that
you will grant me leniency by reducing my punishment
to exclude the imposition of hard labor without
confinement.
2. I am asking for your mercy because even though I
have been convicted of very serious offenses, I am not
a horrible person. Before I joined the Air Force, I was
never in trouble. I was a well behaved student in
school, made good grades and kept my mom happy. I
grew up on an Indian Reservation and saw first-hand
the dangers of alcohol and crime. I wanted so badly to
make a good life for myself. I wanted to make my
family proud and create a new and better life for
myself. For all these reasons, I joined the North Dakota
Air Guard.
3. I know that when I am released from confinement I’ll
face many obstacles to making myself a productive
member of society. I’ll have to register as a sex offender
for the rest of my life. That’s going to affect me greatly
in the future. It will be hard for me to get a job and will
even affect where I can live. My parents are still
struggling with dealing with my conviction, but I know
that I will need to step-up and make a life for myself.
I feel really bad for putting my family through this
because they love me so much and have done so much
for me.
App. 78
4. Sir, I want nothing more than to move on forward.
Right now, I will be required to perform hard labor
without confinement for three months after my release
from confinement. I am worried that this duty will
further drain my family’s resources as it will prevent
me from getting a job and making my own way. I do not
want to rely on my family for money. Additionally, I am
concerned that this duty will drain the resources of my
Guard unit. My First Sergeant recently visited me and
conveyed that the unit did not want me to have to
fulfill this part of my punishment. When I joined, I
wanted to help my state and my country. I hate to
think of myself as causing more work for the honorable
Airmen in my unit.
5. I have done everything I could to be a model
prisoner. I even assisted OSI with an investigation of
another inmate: I wrote a statement and have agreed
to be a witness at court.
6. I have had a lot of time to think about what I will do
when I get out of confinement. I am confident that I
can become a productive person and contribute to my
community. I do not want my convictions to define me
but I worry that if I receive the hard labor without
confinement I will hit a major road block before I can
even start my recovery. Thank you for your time and
consideration.
Respectfully submitted,
/s/ Jarrid R. Gable
JARRID R. GABLE, AB, USAF
App. 79
Attachment 13
DEPARTMENT OF THE AIR FORCE
HEADQUARTERS 5TH BOMB WING (AFGSC)
MINOT AIR FORCE BASE NORTH DAKOTA
[SEAL]
MEMO RAN D U M
AUTHORITIES
19 September 2014
FOR
ALL
R E V I EWI N G
FROM: 5BW/JA (Cap (b)(6), (b)(7)(C)
SUBJECT: Clemency Matters – US v. AB Ethan
Telford
1. This memorandum is being provided at the request
of AB Telford’s ADC, Capt Mooney, to substantiate
assistance given by AB Telford to the government.
2. While AB Telford was in the Minot AFB confinement
facility, he participated in various conversations with
another service member, who is currently in pretrial
confinement. The other service member made various
admissions to AB Telford about wrongdoing committed
by the other service member. AB Telford cooperated
with the government by making statements to OSI to
document the admissions of the other service member.
AB Telford will also cooperate with JA trial counsel by
testifying at the trial of the other service member. AB
Telford’s willingness to testify voluntarily aids the
government by negating the necessity to subpoena AB
Telford and compel his testimony.
App. 80
(b)(6), (b)(7)(C) XXXXX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
(b)(6), (b)(7)(C) Capt, USAF
Chief, Military Justice
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