behenna reply oral argument

8/8/2019 Behenna Reply Oral Argument

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Docket No. ARMY 20090234

IN THE

U NI TE D S TA TE S ARMY

COURT OF CRIMINAL APPEALS

UNITED STATES,

v

First LieutenantMICHAEL C. BEHENNA

U.S. Army,

Appellee

Appellant

REPLY BRIEF ON BEHALF OF APPELLANT

JACK B. ZIMMERMANN, LeadTERRI R. ZIMMERMANNKYLE R. SAMPSONCivilian Appellate Defense CounselZimmermann, Lavine, Zimmermann,

& Sampson, P.C.770 South Post Oak Lane, Suite 620Houston, Texas 77056(713) 552-0300(713) 552-0746 Fax

E. PATRICK GILMANCaptain, United States ArmyDetailed Appellate Defense CounselDefense Appellate Division901 North Stuart Street, Suite 340Arlington, VA 2220(703) 588-5289(703) 696-8100 Fax

0^

Attorneys for the Appellant,FIRST LIEUTENANT MICHAEL C. BEHENNA


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TABLE OF CONTENTSPage

TABLE OF CONTENTS iREPLY ISSUES 1ARGUMENT 2

REPLY TO BRIEF ON BEHALF O F AP PELLEE ONISSUES I, II, AND III (DISCOVERY VIOLATION) 2A. Lack of Factual Basis in the Record of Trial 2

B. The Government Misrepresents the Record 81. The Government Misrepresents the

Testimony of the Defense Experts(Dr. Radelat and Mr. Bevel) 8

2. The Government Misrepresents theTestimony of the GovernmentExpert (Dr. MacDonell) 12

3. The Government Misrepresentsthe Military Judge's Findings ofFact and the Finding at Issue isClearly Erroneous 13

C. Inaccurate, Conflicting, and ConclusoryStatements in the Government's Brief 15

D. The Government Completely Ignoredthe Legal Principle That Knowledge by aMember of the Prosecution Team IsImputed to the Prosecutor 18

E. Assertions That 1LT Behenna Told No Oneabout His Reason to Shoot until the Trial 19

F. The Bedrock Principle for Evaluating a BradyViolation Is Whether the Accused Receiveda Fair Trial, i.e., Is the Verdict"Worthy of Confidence?" 20

REPLY TO GOVERNMENT BRIEF ON ISSUEIV (IMPROPER TRIAL COUNSEL ARGUMENT) 22


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Page

A. The Government Misstates theFacts and the Law 22

B. There is No Evidence in the Record ofTrial Counsel's Thought Process 23

C. The Government Mischaracterizesthe Defense Expert Testimony 25

D. The Trial Counsel's MisleadingStatements were Improper 25

E. Prejudice 26REPLY TO GOVERNMENT BRIEF ON

ISSUE V (SELF-DEFENSE INSTRUCTION) 27A. Erroneous Limiting Instruction on Self-Defense... . 28

1. Requirement to find lack of escalation,even if no assault 28

2. No instruction on withdrawalfrom the conflict 2 9

B. Erroneous Instruction on Pointing thePistol as an Assault 291. The Military Judge's Instruction

Regarding Assault 292. No Evidence Regarding Unlawfulness 30

C. Prejudice 31REPLY TO G OV ER NM EN T B RI EF ON

ISSUE VII (MANSLAUGHTER INSTRUCTION) 32A. Requirements for Voluntary Manslaughter 33B. Inducement 33

C. Sudden Passion - Fear or Rage 34D. "Cooling Down." 34

(ii


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Page

E. Analysis of Applicable Case Law 35F. Prejudice 36

PRAYER 37

CERTIFICATE OF FILING AND SERVICE

in


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IN THE U NI TE D S TA TE S ARMYCOURT OF CRIMINAL APPEALS

UNITED STATES,Appe l l e e

v.

First LieutenantMICHAEL C. BEHENNAUnited States Army,

Appellant

R E P L Y BRIEFAPPELLANT

O N BEHALF O F

Docket No. A RM Y 2 00 90 234Tried at Fort Campbell,Kentucky, on 8 December 2008,22 January, 23-28 February, 2and 20 March 2009, before ageneral court-martial convenedby the Commander, Fort CampbellInstallation, Fort Campbell,Kentucky, Colonel TheodoreDixon, Military Judge,presiding.

TO THE HONORABLE, THE JUDGES OF THE UNITED STATESARMY COURT OF C RI MI NA L A P PE A LS

REPLY ISSUES

ISSUE I

T HE M IL IT AR Y J UD GE R EV ER SI BL Y ERRED BY DENYING THE MOTIONFOR MISTRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TOD IS CL OS E F AV OR AB LE I NF OR MA TI ON TO T HE D EFE NSE .

ISSUE II

THE MILITARY J U DG E R E VE R SI B LY ERRED B Y DE NY IN G T HE M OT IO NFOR NEW TRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TOD IS CL OS E F AV OR AB LE I NF OR MA TI ON TO T HE DE FE NS E.

ISSUE III

THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILINGTO D IS CL OS E F AV OR AB LE I NF OR MA TI ON TO THE DEFENSE.

ISSUE IV

THE TR IA L C OU NS EL COMMITTED REVERSIBLE ERROR B Y MAKINGF AL SE A SS ER TI ON S OF M AT ERI AL F AC T AND INTERJECTING HER

Panel No. 4


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PERSONAL OPINION OF THE EVIDENCE IN CLOSING FINALARGUMENT.

ISSUE V

TH E M IL IT ARY JUDGE R EVE RSI BLY ER RED BY G IV ING AN IMPROPERINSTRUCTION LIMITING 1LT BEHENNA' S RIGHT TO SELF-DEFENSE.

ISSUE VII1

THE MILITARY JUDGE REVERSIBLY ERRED BY FAILING TOINSTRUCT TH E MEMBERS SUA SPONTE ON THE LESSER INCLUDEDOFFENSE OF VOLUNTARY MANSLAUGHTER.

A R G U M E N T

REPLY TO BRIEF ON BEHALF OF APPELLEE2 ONI SSUES I. II. AND III (DISCOVERY VIOLAT ION)

A . La c k of F a c t u a l B a s i s in the Re co r d of Trial.

The p rim ary re as on t h a t th e Government ' s pos i t i on on t h e s ethree related I s s u e s la c k s m er i t is that the r e c o r d of trialcon ta in s no f a c tu a l suppor t from th e hea r ing on th e Motion fo rMis t r i a l fo r t h a t pos i t i on . The f a c t i s t h a t th e Government f a i l edto d isclose to the De f e n s e critical information - the Go v e r nm e n t ' sown expe r t w i t ne s s ' op in ion t h a t f l a t l y con t r ad i c t ed th ep ro secu t ion t heo ry and conf i rmed th e Defense t heo ry - and t h i swi thho ld ing v io l a t ed th e Cons t i t u t i ona l , s t a t u t o r y , and e t h i c a l

1 Issue VI (Suff iciency) i s not discussed in th i s Reply Br ie f , becauseth e d ec is io n o f whe the r th e ev idence a t trial conv inces th e j udges o f t h i sHonorable Cour t o f gu i l t beyond a r ea sonab l e doubt is one made by each i nd iv idua lj udge . Counse l r e l y on th e f a c t s and law s e t ou t in th e B r i e f on Beha l f o fAppe l l an t , h e r e i n a f t e r des i gna t ed "AB," pages 63 t o 64 .

2 For brev i ty , here ina f te r designated "Government Brie f" o r "GB."


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duties of the trial counsel. 1LT Behenna did not receive a fair

trial.

This is a brief summary of the relevant events at trial: the

lead defense counsel moved for a mistrial within an hour oflearning at his hotel of the email from the "Government's expertassistant"3 that he had given the prosecutors highly favorableinformation that had not been disclosed to the Defense. R. 1443,1446. The guilty verdicts had been returned late the night before,and the sentencing phase was set to begin shortly. R. 1438-39. The

military judge made it clear that he would not rule on the Motionfor Mistrial without conducting an evidentiary hearing:

CDC1: . . . Does the court believe that a hearing isnecessary or do you accept the proffers of the counsel asfact or do you want to hear from Dr. MacDonell orSergeant Macaulay or Dr. Berg?4 I mean, there seems to bea factual dispute here as to what - Dr. MacDonell saysthat he told them all this a nd d em on st ra te d it.

MJ: Well I can put it to you this way, Mr. Zimmermann,I'm not going to declare a mistrial without anevidentiary hearing.

R. 1457.

The Government was told to contact Dr. M ac Do ne ll a nd have him

ready to testify at an Article 39(a) session if either side called

3 Dr. Herbert MacDonell, a forensic scene reconstruction expert witha reputation as one of the nation's leading forensic experts, who was listed asa Government witness, but did not testify, although present at trial. See GB 15;Affidavit of Dr. MacDonell, Attachment to Motion for New Trial, AE XCIII,hereinafter "MacDonell Affidavit"; Dr. MacDonell's CV, Attachment to Motion forMistrial, AE LXXXII.

4 Dr. Eric Berg, a pathologist designated by the Government as anexpert in that field, and listed as a Government witness, who did not testify,although present at trial.


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him. R. 1457. Dr. MacDonell was then called as a witness on the

Motion by the Defense, and he testified under oath by telephone. R.1458-1482.

The Government had the burden of persuasion on the issue offailure to disclose favorable information. Un i t ed S t a t e s v . Webb,66 M.J. 89, 92 (C.A.A.F. 2008). At the conclusion of Dr.MacDonell's testimony, the Government was given an opportunity toput on evidence.

MJ: Anything else from the government?ATC1: No, Your Honor. Thank you.[The witness [Dr. MacDonell] was excused and thetelephone call was disconnected.]MJ: Does either side see any need for additionalwitnesses?

CDC1: Well, Judge, as long as we can have somestipulation that I, in fact, contacted the prosecutors atthe next session of court, and passed on that informationand I was told that there was no exculpatory evidence, Ineed to get in the record.MJ: Government, any disagreement with that?ATC1: No, Your Honor, it was yesterday morning, and wehad a discussion about it.

R. 1482.* * *

MJ: ... I may have mentioned that on the record, butformally, does the government wish to present anyadditional evidence?

ATC1: No, Your Honor.R. 1484.

The Defense then rested on the Motion. Id.


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The Government e l e c t e d t o call no wi t n e s s e s o r o f f e r anya f f i d av i t s , de sp i t e Dr. Berg and SGT McCauley be ing l o c a l a t F t .Campbel l . R. 1457, 1484. SGT McCauley is th e pa r a l e g a l who p layedth e p a r t o f th e deceased i n th e demons t r a t i on where Dr. MacDonel linformed th e p ro se cu to rs t h a t th e "on ly l o g i c a l exp l an a t i o n " o f th efo rens ic s and b u l l e t t r a j e c to r ie s d i s cove red on au topsy was t h a tth e first sho t was to th e r ib cage whi le A li Mansur was s t and ingw i t h his a rm outstretched an d the s e c o n d shot w as to his h e a d whilehe was f a l l i ng . R. 1464-65; MacDonell Af f i d av i t . A ll t h r e e trialcounse l were p re s en t in th e cour t room dur ing th e Ar t i c l e 39(a)session o n the M o t io n for Mistrial. R . 1 4 4 3 .

No one t e s t i f i e d excep t Dr. MacDonel l . R. 1484. There were nos t i p u l a t i o n s o f ex pe c te d t es timony . There was one o r a l s t i pu l a t i ono f f a c t en t e r ed . R. 1482 . The mi l i t a r y judge accep t ed th ea t t achment s to th e b r i e f s . 5 R. 1598, 1629. Tha t is t h e sum t o t a l o fth e ev i dence p resen t ed a t th e hea r i n g .

A fte r th e mi l i t a r y j udge even tua l l y den i ed th e Motion fo rM i s tr i a l, and Dr. MacDonell l e a rned o f th e mi l i t a r y j u dg e ' sF ind i ngs o f F ac t , D r. M acDonell c l a r i f i e d what he be l i e v e d was a

5 Attachments to Defense Tr i a l Br i e f in Suppor t of Ora l Motion fo rM i s t ri a l AE LXXXII: Reque s t For Discove ry , Dr. MacDone l l ' s In t e r im Fo r en s i cRepor t , Dr. MacDonel l ' s CV, Dr. MacDone l l ' s ema i l to l e ad trial c ou n se l, C ap ta inPo i r i e r . Attachments to Response to Def en se Mo tio n fo r a M is t r ia l AE LXXXIII:Approval o f Defense Exper t Tom Bevel , Defense Reques t fo r Scene Recons t ruc t ionExper t Tom Beve l wi th CV, Approva l o f Defense Expe r t Dr. Rade l a t , De fe n se R e q ue stfo r Fo ren s i c P ath olo gy E xp er t Dr. Rade l a t wi th CV, Government Reques t fo rAppoin tmen t o f Crime Scene Recons t ruc t i on Expe r t Dr. MacDonel l , GovernmentWitn e s s L i s t , CPT Poirier ema i l o f Governmen t W i tn e s s List, D r. MacDon e l l ' sIn te r im Fo ren s i c Repor t , CPT Po i r i e r ema i l o f In t e r im Repo r t to Defens e Counse l ,Dr. MacDonel l ' s ema i l to CPT Po i r i e r , Dr. MacDone l l ' s t e l e phon i c t e s t imony .


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misunderstanding of his telephonic testimony by means of a swornaffidavit. That affidavit was attached to a Motion for New Trial,and became a part of the record of trial. MacDonell Affidavit.

It should be noted that n on e of the three trial counsel evertestified to contradict the testimony of what Dr. MacDonell sworehappened at the Wednesday demonstration with SGT McCauley,witnessed by Dr. Berg, the three trial counsel, and others. Nor didany of them file an affidavit to controvert Dr. MacDonell'stestimony or his affidavit. Dr. Berg never testified or submittedan affidavit to contradict Dr. MacDonell's testimony and affidavitabout the demonstration on Wednesday, or that on Thursday Dr.MacDonell was sitting next to Dr. Berg in the courtroom and leanedover and told him after hearing 1LT Behenna's recollection of theshooting, "that's exactly what I told you yesterday." R. 1462. Nogovernment witness testified or submitted an affidavit tocontradict Dr. MacDonell's testimony and affidavit that he told theprosecuting group as he was leaving the courthouse to return to NewYork, "That was just exactly what I told you." Id .

Yet the Government states as fact to this Honorable Court that

at that Wednesday demonstration Dr. MacDonell maintained a "lack ofa definitive opinion," GB 27, that the military judge found thatDr. MacDonell had "shifting ideas and multiple opinions," GB 33,and informs this Court of the alleged (but factually unproven)mental state of the trial counsel both on Wednesday (at the


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demonstration), GB 16-17, and on Friday (when they told leaddefense counsel they had no exculpatory information), GB 18.

Furthermore, the practice of citing to the military judge's

Findings of Fact and Conclusions of Law as if they were evidenceintroduced in the trial court is disingenuous. See GB 15 n.98; 16n.104; 17 n.112; 21 n.136; 32 n.198; 35 n.213-14.6 Many of themilitary judge's Findings of Fact are unsupported by the record,and the Government cannot bootstrap a f a c tua l foundation for thearguments in its Brief by citing the military judge rather thanevidence in the record.

A party which fails to call witnesses under its control oroffer other evidence it would be expected to use to establish itsposition must be held to concede the point in question - such afailure gives rise to the presumption that the evidence "would beunfavorable to that party." United Sta te s v . Wilson , 322 F.3d 353,363 (5th Cir. 2003). The bottom line: the Government put on zeroevidence from witnesses in any form on the Motion for Mistrial orMotion for New Trial. There is no way it carried its burden ofproof on the Brady issue beyond a reasonable doubt.

6 To support its claims, the Government also repeatedly citesexclusively to other non-evidence such as its own briefs, other pleadings filed,and argument below. See, e.g., GB 17 n.112; 18 n.122; 27 n.167; 35 n.213; 65n.359.


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B. The Government Misrepresents the Record.1. The Government Misrepresents the Testimony of the Defense

Experts (Dr. Radelat and Mr. Bevel)The autopsy revealed two bullet wounds on Ali Mansur. Both

bullet trajectories were horizontal. One entry wound was to theright rib cage, under the right arm. The other entry wound was tothe right temple. R. 623-24.

Th e G ove rn me nt a ss er ts to this H on or ab le C ou rt that Dr. Paul

Radelat "testified that if he knew the specific positions of Mr.Mansur' s head and torso when he was shot, then he might change hisopinion as to whether or not Mr. Mansur was standing when he wasshot." GB 15. The Government further states that "Dr. Radelat also

conceded that it was not impossible for Mr. Mansur to be sittingand falling over as he was shot when comparing this to thetrajectory of the bullets through Mr. Mansur's body and head." Id .at 15-16. An actual review of the pages of the record of trial theGovernment cites reveals that Dr. Radelat was responding toquestions from the military judge regarding only the horizontalnature of the wounds on the deceased. R. 970-72. In response tohypotheticals the military judge posed dealing with the woundtrajectories, Dr. Radelat responded:

Q.[MJ] I guess the purpose of the questions are, you'rebasing your opinionswell, let me put it this way, isthere anything inconsistent with an individual who issitting, falling over, and the trajectory of the bulletsthrough the body and through the head as you understandthem?


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A. Well, the person would have to fall to the left tostart with, to expose his right side. He would have tobe, I suppose, at least at a 45 degree angle from thevertical.

Q. Well what I am asking you, sir, is there anythinginconsistent with that fact-pattern, with the evidence asyou understand it?A. I guess, Judge, the only (sic) that I can really sayis that it is a contorted scenario, which is notimpossible by the rules of physics, but I do think itkind of offends probability and maybe commonsense to someextent.

R. 972. This hypothetical scenario was based solely on the woundtrajectories without taking into account the other forensicevidence, such as the blood pattern and final resting place of thebody. The very next questions defense counsel asked of Dr. Radelatwere:

Q. [CDC1] Dr. Radelat, in the course of the materials thatyou reviewed, you reviewed the video taken at the scene?A. I did.

Q. And in there you were able to see the final restingposition of the body?A. Yes.

Q. And would that have an effect in answering the judge'squestion of if someone were seated and leaning backwardso that a pistol round would go and create a horizontal,which direction would you expect, if that happened, thatthe body would have fallen?A. Yeah, I think by any law of physics, the body wouldf al l b ac kw ar d.

Q. And which way did the body fall, according to thevideo that you saw?


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A. Well, it didn't fall backwards. It went forwardslightly but mainly to the right.

R. 973.

The Government further asserts that Mr. Bevel testified that

based on the bloodstain evidence, the deceased could have been ina seated position on a rock when he was shot. GB 16. This infersthat the bloodstain evidence a l o n e could s erv e as a basis for Mr.

Bevel's opinion that Ali Mansur was seated when he was shot.However, Mr. Bevel never opined that the deceased could have beenseated on a rock when he was shot based on all of the forensic

evidence he reviewed. Mr. Bevel's response to trial counsel'squestion was clearly limited to the bloodstain evidence, withouttaking into account the wound trajectories and final resting placeof the body:

A. If you only consider the bloodstains, the bloodstaintrail and no other information, I would have to agreewith that.

R. 1010.

The Government makes the same error with respect to theposition of the body. GB 16. What the record actually reflects isthat the military judge asked Mr. Bevel whether the positioning ofthe body in photos and video was inconsistent with the deceased

having been shot from a seated position:A. ConsideringQ. And I'm only referring to the positioning of the body.

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A. only his body. Okay, if we only consider the body,no.

R. 1016-17.

Of course, when one considers the horizontal trajectory ofboth wounds, the conclusion would change. Contrary to theGovernment's assertion, neither expert ever testified that based onall of the forensic e v i d e n c e "the victim could have been seated

when [the] appellant shot him."The Government also claims that the defense experts testified

"the torso shot could have occurred while the body was falling,after an initial shot to the head," citing "R. 971-72, 1003" forthis proposition. GB 16. Not only did the defense experts nottestify as the Government claims on the pages cited, they weren'teven asked questions regarding the sequencing of the shots on thosepages. R. 971-72, 1003.

Contrary to the Government's contentions, when considering allof the evidence, both Dr. Radelat and Mr. Bevel were certain intheir conclusions: Dr. Radelat testified that based on the autopsy,Ali Mansur was shot first in the right side of the chest whilestanding, with his right arm not in the bullet track, and then inthe side of his head as he instantly fell to the ground. R. 959-62.

Mr. Bevel testified that based on the blood stains and otherforensic evidence, the best explanation for the location of thewounds on Ali Mansur and the pattern of the blood depicted in scenephotographs was that Ali Mansur was standing when shot first in the

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chest, and that his right arm was raised because it was not in theflight path of the bullet that entered the side of his right ribcage. R. 980-83.

2. The Government Misrepresents the Testimony of theGovernment Expert (Dr. MacDonell)The Government states, "At the end of the proceedings on

Wednesday, 25 February 2009, Dr. MacDonell still held the opinionthat there were a multitude of possibilities, but believed that Mr.Mansur was "not standing when the [sic] shot through the head." GB17. Dr. MacDonell's actual opinion was:

. . . I said the only thing that I can come up withconsistent with all of the facts as I know them would bethat he probably was shot in the side with his arm upinthe chest or side, and then as he dropped straight downthe bullet went through his head because he passed infront of the muzzle at the exact moment, though extremelyunlikely that that's [what] happened.

R. 1463.

Next, the Government states that "Dr. MacDonell opined thatthe crime scene did not lend itself to detailed interpretation anddisagreed with the defense experts' opinion that the victim wasstanding when he was shot." GB 25. The record does not contain anystatement by Dr. MacDonell that he disagreed with the defenseexperts' opinion that Ali Mansur was standing when shot.

Finally, the Government states as fact to this Honorable Courtthat Dr. MacDonell testified that 1LT Behenna fired down at Ali

Mansur while he was in a seated position. GB 25-26. Dr. MacDonellactually testified:

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That the only explanation for the two horizontal shotswould be if they were fired in the same trajectory withone being fired higher than the other. And e i t he r th es ho t was f i r e d down a t th e r i b s o r th e body and that thehead dropped down in line with the pistol, or the shotwas fired in the head first and then really, reallyquickly he dropped down to the body before it fell andshot again, which seemed extremely unlikely. So, I feltthe horizontal trajectories and the horizontal nature ofthe trajectories would mean that he was shot first in theribs and then in the head as he fell down.

R. 1478. (emphasis added).3. The Government Misrepresents the Military Judge's

Findings of Fact and the Finding at Issue is ClearlyErroneous

The Government asserts that the military judge found Dr.MacDonell's affidavit to be not credible. GB 41. In fact, themilitary judge only found one statement contained in the affidavitto be not credible. AE XCV. The military judge did not questionanything else in the affidavit.

ILT Behenna respectfully submits that the military judgemisconstrued Dr. MacDonell's testimony about his conversation withthe prosecutors after he heard ILT Behenna' s direct examination andbefore he left to return to New York. Dr. MacDonell testified that

he made his comment to Dr. Berg In th e courtroom, and continued,"He [Dr. Berg] was in there. And a s I was l e a v ing , I told theprosecuting group, I said, *That was just exactly what I toldyou.'" R. 1462 (emphasis added). Additionally, Dr. MacDonelltestified:

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Q.[ATC1] Dr. MacDonell, the information that wascontained in your email from yesterdayA. Yes.

Q. The opinion that is written there, you never providedthat to government counsel in that way, did you?A. I didn't write it down. A l l I d id was exp la in It onWednesday and my po s s i b i l i t y o f what occurred and then onThursday a s I was l e a v ing I ment ioned It again th at th atwas exac t l y what I sa id , and I know that there is noreason for me to stay to do that. I would have to bethere another day at least, and you were very graciouslyallowing me to return even though I had these mixedemotions as to whether I should stay or not. But my wife,I could not leave her alone last night and I didn'toron Thursday night.Q. What I am asking isI understand the demonstrationand that whole conversation on Wednesday, but as far asall of the different opinions that are listed in thatemail, you never communicated that to us that way?A. Wel l , I th ink I d i d . I said these are the things thatare consistent. If this is the way that it happened thenit will explain the [forensic bloodstain evidence]. . .

R. 1471-72 (emphasis added).Based on the fact that Dr. MacDonell identified in his

affidavit the exact location of this latter conversation (Room 13- the trial counsel's conference room/office in the courthouse),the military judge perceived a conflict with the testimony at thehearing and found this single statement in the affidavit to be notcredible. AE XCV. This finding is clearly erroneous.

It is clear from Dr. MacDonell's testimony and affidavit thatthere were two separate conversations on Thursday in the courthouseduring which he told members of the prosecution team that ILT

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Behenna's testimony was consistent with the Wednesdaydemonstration: he told Dr. Berg in the courtroom (and no one elsein the courtroom) , and then later as he was leaving, he told the

trial counsel in their office. Because the military judgeapparently did not understand the testimony that way, Dr. MacDonellsubmitted his affidavit to state exactly where and when theconversation with trial counsel occurred. This information did not

conflict with his testimony, it merely added detail in an effort tocorrect the military judge's misunderstanding.C. Inaccurate, Conflicting, and Conclusory Statements in the

Government's Brief.

There are no record cites for the repeated conclusorystatement that Dr. MacDonell's opinion was "prompted solely byappellant's testimony" or that ILT Behenna's testimony was the"sole catalyst behind" Dr. MacDonell's opinion. GB 30, 31; see GB27, 32, 35. The reason is that there is no factual basis for thatclaim. The day before ILT Behenna testified, Dr. MacDonell haddemonstrated to the prosecution team, including its expertassistants, the only logical explanation for the shooting. R. 1463-64; MacDonell Affidavit. When questioned by the military judge, Dr.MacDonell made It c l e a r he had adop t ed and exp r e s s e d th e sameopin ion on Wedne sd ay . He mere l y d id no t r e a l i z e how f avorab l e tothe Defense It w a s until he s a w IL T Be h e nn a demonstrate the

shoo t i n g on Thursday:

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Q. [MJ] If you had testified on Wednesday, prior tohearing Lieutenant Behenna's testimony, what would yourc on cl us io ns h av e b ee n?

A. Well, I would have the same conclusions, but I wouldnot have been as concerned, I guess is the right word,because I had no idea that he was going to say that.

Q. As of Wednesday during this meetingI am trying tounderstand theI am trying to understand where youropinion was as of Wednesday as it relates to youranalysis of the evidence and opinions you were providingto the government. As of Wednesday, what was yourconclusion as to the most likely fact pattern?A. Well, there would have been exactly what I have justbeen saying, but I would not have been as surewell, Idon't think sure is the right word. I would not have beenas concerned until I heard the defendant testify becauseI thought he was acting out what I had just done . . .So, the moment I saw what he did, I thought, "Well, maybethis guy is telling the truth after all and maybe hedidn'tit didn't happen that way."

...[I]t was only triggered by seeing him testify, orhearing him and his explanation. I think he put his armsup showing that Ali was supposedly reaching for his gunand so on, and it kind of concerned me because I thoughtin the interest of justice I ought to do something. AndI askedAs I said, I came back and I talked to a SupremeCourt Judge that is a friend of mine, and I talked to anattorney, and they both advised me that I should donothing, but possibly it would relieve my conscious [sic]if I sent an email to the prosecution and reminded themthat this certainly could be Brady material.

R. 1476-77. It is clear that when he said " I t was only triggered,"Dr. MacDonell was referring to his concern that he thought he oughtto do something. He sent the email. He did not state that a"revised" or "new" opinion was triggered.

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Before court on Thursday morning, Dr. MacDonell examined thedeformed bullet before ILT Behenna took the stand. R. 1472;MacDonell Affidavit. Dr. MacDonell used all of the following data

to determine how the shooting had occurred as reflected in hiscomments to the "prosecuting group" as he left the courthouse onThursday, "That was just exactly what I told you." R. 1462:

The horizontal trajectories of both shots through the bodyas found on autopsy. R. 1478; MacDonell Affidavit.The fact that the bullet was deformed from impacting theconcrete wall. R. 1472; MacDonell Affidavit.

The pattern of the blood stains. R. 1472; MacDonellAffidavit.

The testimony of the Defense experts. R. 1469; MacDonellAffidavit.

The testimony of ILT Behenna. R. 1462; MacDonell Affidavit.The opinion of an expert witness unquestionably can be and

very often is based on the testimony of other witnesses. "The factsor data in the particular case upon which an expert bases anopinion or inference may be those p e r c e i v e d b y o r made known t o theexpert, at or before th e hear ing ." Manual for Courts-Martial, UnitedStates, Mil. R. Evid. 703 (2008) (emphasis added) . That is why expertsare permitted to sit in the courtroom during testimony of otherwitnesses.

Further, it should be noted that the Government's Briefdescribes Dr. MacDonell's "only logical explanation" opinion as a"revised" opinion at pages 21-22, 28, 30-33, 35-38, 40 and 42, yet

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takes the position that his opinion "never changed" and it was nota "revised opinion" at pages 19, 29 and 31. Similarly, where Dr.MacDonell is described as "lack[ing] of a definitive opinion" at

page 27 of the Government's Brief, lead trial counsel argued to themembers that "the forensics were clear" at page 1411 of the record.Counsel for ILT Behenna agree with the latter assessment - theforensic scene construction experts, Tom Bevel and HerbertMacDonell, and the forensic pathologist, Paul Radelat, clearlytestified that "the best explanation" (Bevel and Radelat at trial)

and "the only logical explanation," (MacDonell on the Motion forMistrial and Motion for New Trial) of the physical evidence is thatAli Mansur was shot first in the rib cage while standing with hisright arm outstretched and shot second in the temple as he fell. R.956-62, 980-83, 1463; MacDonell Affidavit. Contrary to theGovernment's assertion, Dr. MacDonell never changed his opinion.After he became aware of all of the forensic evidence, the onlything that ILT Behenna's testimony triggered was Dr. MacDonell'sbelief that he needed to do something.D. The Government Completely Ignored7 the Legal Principle That

Knowledge by a Member of the Prosecution Team Is Imputed tot h e P ro se cu to r.

The Appellant's Brief sets out the law regarding whatknowledge is imputed to the prosecutor. AB 21-24, 31-33. The

7 The Government also completely ignores the ethical duty imposed byU.S. Dep't of Army Reg. 27-26, Legal Services: Rules of Prof' 1 Conduct for Lawyers,R. 3.8 (01 May 1992) and the current scrutiny the federal civilian courts aregiving to this type of discovery violation. See AB 30-31.

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Government apparently concedes this point by its reference to Dr.MacDonell as one of its "expert assistants," which would includeDr. Berg and Dr. Ricky Malone (a psychiatrist who, like Dr.MacDonell, was present but did not testify). GB 15-18. TheGovernment considers these expert assistants part of "theprosecution." GB 16-17 n.110.

This Honorable Court should apply the principles of UnitedSta te s v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003), and reach theconclusion that the favorable information possessed by Dr.MacDonell and Dr. Berg is to be imputed to trial counsel. Thiswould be true even if somehow one b el ie ve s that Dr. MacDonell and

Dr. Berg did not recognize the favorable character of thisinformation until after ILT Behenna testified on Thursday. At thatpoint, the trial was still underway. It is emphasized that leaddefense counsel made a specific request for this information at thefirst opportunity before court resumed Friday morning,8 beforeinstructions or final argument. R. 1482-83.E. Assertions That ILT Behenna Told No One about His Reason to

Shoot until the Trial.

The Defense filed a Motion in Limine to prevent the Governmentfrom introducing evidence or commenting on ILT Behenna's reliance

on Article 31 and the Fifth Amendment prior to trial. AE XXI. The

8 The Government concedes this fact. GB 33. Further, the Governmentabandoned the position it took at the trial level that this whole problem was thefault of defense counsel. R. 1620-21, 1673-74, 1679, 1682, 1688;AE LXXXIII;AEXCIV.

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military judge granted that motion. R. 257. Yet, the Governmentasserts that ILT Behenna told no one before trial that he fired in

self-defense. GB 13-14, 70. The Government's comments are, in

effect, an attempt to penalize ILT Behenna for relying on hisArticle 31 and Fifth Amendment rights, which is prohibited at trialand on appeal.F. The Bedrock Principle for Evaluating a B r a d v Violation Is

Whether the Accused Received a Fair Trial, i.e.. Is theVerdict "Worthy of Confidence?"9

Rather than an appellate court trying to determine whether theevidence supports a conviction, despite the failure to disclosefavorable information, the Court of Appeals for the Armed Forceshas held that the issue is whether the failure to disclose that

information deprived the accused of a fair trial. United S ta t e s v .Webb, 66 M.J. at 92 (quoting Kyles , 514 U.S. at 434-35). TheGovernment concedes that Dr. MacDonell's opinion was the"undisclosed opinion of the Government's forensic expert." GB 47.It is hard to imagine more powerful evidence than an expert opinionfrom the Government's own witness flatly contradicting theprosecution theory and confirming the defense theory. Favorableinformation is discoverable whether it goes to guilt or topunishment, and it is clear that the non-disclosure in the case at

9 Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) {an accuseddemonstrates a Brady violation by "showing that the favorable evidence couldreasonably be taken to put the whole case in such a different light as toundermine confidence in the verdict.").

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bar deprived ILT Behenna of a fair trial at both phases. Kyles, 514U.S. at 432, 434; Webb, 66 M.J. at 92.

The Government failed to address the teachings of United

States v. Brickey , 16 M.J. 258, 265-66 (CM.A. 1983), indicatinghow significant the impact of an additional witness may be on acritical issue, such as impeachment of a prosecution witness. Dr.MacDonell's testimony would not have been cumulative. Confirmationfrom the Government's expert of the two Defense experts and ILTBehenna himself on the core factual dispute at trial very likelywould have made the difference between the members finding that AliMansur was killed while sitting on a rock or finding that he wasshot in self-defense as he rose to a standing position and reachedfor ILT Behenna's pistol with his right arm after trying todistract the Lieutenant by throwing a piece of concrete at him.

In addition, the Government completely failed to address thisHonorable Court's controlling opinion in United S ta t e s v . Adens, 56M.J. 724 (Army Ct. Crim. App. 2002), holding that there is also as t a t u t o r y basis for disclosure under Article 46, UCMJ. It alsominimized in a footnote the recent persuasive authority from asister court in United S ta t e s v . Mott , No. 200900115, 2009 WL4048019 (N.M. Ct. Crim. App. 24 Nov. 2009)(unpub.). GB 26, n.166.These cases support ILT Behenna's contention that he did notreceive a fair trial at either stage of the court-martial.

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[1]LT Behenna had described the events. Their reactionwas noticeably cold.

MacDonell Affidavit.

The Government infers that the trial counsel was ethicallyfree to ignore that opinion and argue a contradictory explanationof how the events unfolded simply because the members were thefactfinders. GB 47-48. To the contrary, the law forbids such anargument. United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir.2009) ("it is improper for the government to present to the jurystatements or inferences it knows to be false or has very strongreason to doubt.") (emphasis added). When the Government's ownexpert was aware and told the members of the prosecution team whatthe most logical series of events were, the trial counsel'sargument to the contrary was not a reasonable inference from theevidence and was improper.B. There is No Evidence in the Record of T ri al C ou ns el 's Thought

Process.

The Government also repeatedly and improperly refers to factsno t in evidence on this issue. Some examples of the Government'sattempts to proffer trial strategy and other information not in therecord to this Court:

"Not r e a l i z i n g why Dr. MacDonell had told defense counselhe would have made a ^great witness' for them, theprosecution responded that they had turned over allexculpatory evidence." GB 18, citing defense counselargument on the Motion, oral stipulation of fact thatdefense counsel made a specific request for favorableinformation, the military judge's Findings of Fact, and

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the Government's response to the Motion for Mistrial(emphasis added)."By the end of the meeting, it was clear that no singlefact pattern could prevail and a multitude ofpossibilities remained, of which Dr. MacDonell'shypothetical was only one." GB citing the Government'sresponse to the Motion for Mistrial (emphasis added)."Given their expert's lack of a definitive opinion, theGo v e r nmen t decided not to call h im as a witness a n dr e s t e d t h e i r case on Wednesday." GB 27, citing theGovernment's response to the Motion for Mistrial,argument on the Motion for Mistrial, and the militaryjudge's Findings of Fact (emphasis added)."When the Go v e r nm en t first learned of Dr. MacDonell's*new' opinion on Friday 27 February 2009 via email, theprosecutor immediately forwarded it to defense." GB 30,citing trial counsel's argument on the Motion forMistrial, Dr. MacDonell's email to trial counsel, and theGovernment's response to the Motion for Mistrial(emphasis added)."The record shows that Dr. MacDonell's opinion onWednesday, 25 February 2009, had not changed, and that heonly changed his mind after appellant's testimony onThursday, 26 February 2009, which was unknown to th eGovernment un t i l r e c e i v ing h is ema i l on Friday, 27February 2009." GB 32, citing Dr. MacDonell's testimonyon the Motion for Mistrial(emphasis added)."For t he se r easons [that Dr. MacDonell presented multiplehypotheses to the prosecution], th e p ro s ecu t i on d id no tc a l l Dr. MacDonel l a s a wi tne s s . . ." GB 48, with nocitation to the record (emphasis added).

There is not one shred of evidence - no testimony, noaffidavit, no stipulation - about the knowledge the trial counselhad, when they learned of certain information, or why they did ordid not present certain evidence at trial. See discussion at p. 6-7, supra . It is inappropriate to state as a matter of fact in an

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appellate brief what the trial counsel allegedly were thinking,when the Government made affirmative decisions, when given theopportunity, not to call even one of the trial counsel to testify

to inform the military judge of their trial strategy or to submitan affidavit to controvert Dr. MacDonell's affidavit. This

Honorable Court should disregard such self-serving and improperstatements.

C. The Government Mischaracterizes the Defense Expert Testimony.The Government states that "both defense expert witnesses

testified that it was possible Mr. Mansur was sitting when he wasshot." GB 49. This statement takes the testimony of Dr. Radelat andMr. Bevel completely out of context. See discussion of this claimat pp. 8 to 12, supra .D. Th e Trial Counse l's Mi sl ea di ng S tat em ent s were Improper.

Trial counsel argued that, "I think the forensics were clear"and that "it's almost impossible to conclude either that [AliMansur] was sitting or standing," R. 1411 knowing all the whilethat all three forensic experts agreed that he was standing. Trialcounsel argued that her story was reasonable and ILT Behenna's wasunreasonable. Id . Ironically, she asked the members to "look at allof the evidence" knowing that she withheld compelling evidence thatILT Behenna's account of the events was the most logical one, andconsistent with all three forensic opinions. R. 1412.

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E . Prejudice.

The Government argues t h a t t he re was no harm r e s u l t i ng fromt h i s argument by a t tempt ing to apply th e f a c to r s th e Cour t o fAppeals fo r th e Armed Forces s e t f o r t h in United Sta t e s v.Erickson, 65 M .J . 221 , 224 (C .A.A.F . 2007) ( c i t i n g Uni ted S t a t e s v .Fl e t cher , 62 M .J . 175 , 184 (C .A.A.F . 2005) ) ( s e v e r i t y o f th emi scondu ct , measur es adop ted to cure th e misconduct , and th e weigh to f th e ev idence) . The Cour t initially s t a t e d , "We l ook a t th ec umu la tiv e im p ac t o f any p r o s e c u t o r i a l misconduc t on t h e a cc us ed 'ss u bs ta n tia l r ig h ts and th e f a i r n e s s and i n t e g r i t y o f h i s trial..."and then a f t e r l i s t i ng th e t h ree f ac t o r s , con t inued , "We cons ide rth e Fl e t cher f a c to rs to de t e rm ine whe th e r trial c o u n s e l ' s commen t s ,t aken a s a whole , were so damaging t h a t we canno t be con f i d en t t h a tErickson w as sentenced o n the basis of the evidence alone." Id.

( c i t a t i on s and quo t e s om i t t e d ) . The s i g n i f i c a n c e o f t h i s a d d i t i o n a llanguage is t h a t t h i s Honorab le Cour t must d ete rm i ne w h eth er ILTBe h e n n a h a d a fair trial a n d w a s convicted a n d sentenced o n the

ev idence . Given th e d i s pu t ed f a c t s o f th e i n s t a n t ca s e , t h emisconduct was severe,10 no measures were taken to cure th emisconduc t , and th e ac t ua l ev idence was f a r from overwhe lming .

10 The Government claims t ha t ILT Behenna 's complaints involve only f ivepages o f a 2 9 -p ag e a rg ume nt . GB 54 . Th i s i s mis l e ad i n g . Lead trial c ou ns el o nlya rgued th e Government ' s r e b u t t a l argument , and t h i s a rgument - t h e one t h a t wasimproper - i s con t a i ned in on ly ten pages o f th e r e co rd . R. 1404-13 . ILT Behennasubmits t h a t e r r o r occur red on pages 1407, 14 10, 1411, 1412, and 1413 - ha l f o fth e pages o f th e argumen t a t i s s u e .

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Additionally, Erickson is distinguishable factually in that itwas a case before a military judge alone, and the issue was aninflammatory sentencing argument. In the case at bar, the issue is

an improper argument to members during the guilt or innocence stageon the central issue in the case.

The Government's claim that there was no ha rm because themilitary judge instructed the members that counsel's arguments werenot evidence, GB 53, does not save this improper argument. Underthat theory, this Honorable Court could never find error thatoccurred during argument, because that instruction is given inevery members case. The conviction and sentence in this caseillustrate what can happen when the Government f a l l s to d is c lo sehighly favorable information to the Defense and then un fa i r l ycap i ta l i zes on that failure in argument to the members. This Courtshould not condone or tolerate such conduct.

The trial counsel's improper argument harmed ILT Behennaindependently and exacerbated the Brady error discussed supra , andcaused material prejudice to ILT Behenna's substantial rights.

REPLY TO GOVERNMENT BRIEF O NISSUE V (SELF-DEFENSE INSTRUCTION)

The Government accuses ILT Behenna of misconstruing theself-defense instruction and ignoring the facts in evidence. GB 59.The Government mischaracterizes the instruction by selectivelyfocusing on portions of the instruction, rather than reading the

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2. No instruction on withdrawal from the conflict

The Government argues that omission of an instructionregarding withdrawal was harmless because the issue did not apply

in this case, due to the fact that ILT Behenna "orchestrated anunauthorized interrogation" in the culvert. GB 64. This isincorrect. How and why the parties arrived at their location isirrelevant - the question is whether after Ali Mansur threw thepiece of concrete and reached for ILT Behenna's weapon, there wasan opportunity for ILT Behenna to withdraw before firing inself-defense. There was no such opportunity reasonable under thecircumstances as ILT Behenna perceived them, and he clearly firedin self-defense.

B. Erroneous Instruction on Pointing the Pistol as an Assault.

1. The Military Judge's Instruction Regarding AssaultThe Government contends that, "The military judge properly

instructed the panel that there xmay' be evidence of an assault .. .", GB 60, without acknowledging the full and plain language ofthe instruction that said, "Now there exists evidence in this casethat the accused may have been assaulting Ali Mansur immediatelyprior to the shooting by pointing a loaded weapon at him." R. 1317.(emphasis added). Without listing the elements of an offer type ofassault, the military judge gave the members two choices:

1. to find an assault if they find that ILT Behenna pointedthe weapon at Ali Mansur; or

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2. to find no assault if they find that ILT Behenna did notpoint the weapon at Ali Mansur.Then the military judge proceeded to instruct the members that

if they made the first choice and determined that ILT Behennaassaulted Ali Mansur, then ILT Behenna was not entitled toself-defense unless they found escalation. R. 1317.

2. No Evidence Regarding UnlawfulnessThe Government claims that the evidence proved that the

pointing was unlawful (and therefore an assault), and agrees withthe military judge's conclusion that "overwhelming evidence" provedthat ILT Behenna was assaulting Ali Mansur prior to the shooting.GB 21, 29, 35, 36, 38, 41, 61. To support this contention, theGovernment improperly seeks to fill the void of a total lack ofevidence of unlawfulness by stating: "appellant admits that he hadno authorization to either take Mr. Mansur to the culvert or to

point a loaded weapon at him." GB 61. In actuality, ILT Behennatestified that he used a graduated effort to get Ali Mansur toanswer his questions about the terrorist cell operating in his areaof operations. He had removed Ali Mansur's clothing to use thehumiliation technique, which had not resulted in answers to hisquestions. He acknowledged that he should not have done that. R.

1226-27. He then pulled out his pistol in order to scare Ali Mansurand obtain the information. It was not an "authorized standard

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operat ing procedure type of technique ," and it was a "badd e c i s i o n . " R. 1231 - 3 2 . n

The Government had th e burden o f p ro vin g u n law f uln e ss , y e t

t r i a l counse l f a i l ed to presen t any t es t imony , la y o r exp e r t , abou twhether th e law o f war, th e r u l e s o f engagement , o r any l awfu lorder p erm itte d o r forbade such ac t ions . The Government f a i le d tomeet its burden a t trial to prove th e e lement o f un lawfu lness o fILT Behenna ' s a c t i on s in po in t ing th e weapon a t A li Mansur .Therefo re , th e mi l i t a r y j udge ' s conc lus ion t h a t th e ev idence o fa s s au l t was "overwhelming" was c l e a r l y e r roneous , and th ein s t r u c t i on u nc on st i tu tio na lly re lie ve d the Government o f th eburden o f p rov ing a r equ i r ed e lement .C . Prejudice.

The e r roneous i n s t r u c t i on ex t ingu i sh ing ILT Behenna ' s r ig h t tose l f -de fense pre jud iced him because it took away h is de fen secomple te ly . Addi t iona l ly , in defending th e mi l i t a r y ju dg e 's d en ia lof the Mo t i o n for Mistrial a n d Mo t i o n for New Trial filed based o nthe Brady claims, supra,12 the mil i t a ry judge and the Governmentr e l i ed upon th e i n co r r e c t assumpt ion t h a t ILT Behenna f o r f e i t e d h is

11 The Government miss t a t e s the record by re fe renc ing ILT Behenna 's "ownun sub s t an t i a t e d b e l i e f t h a t Mr. Mansur was a terrorist." GB 66 n .360 (emphas i sadded) . As s e t fo r th in th e Ap p el la nt 's B rie f, th e r e was ample ev idence from manys o u r c e s that A l i Mansur was i n vo l v e d in terrorist activities, and ILT Behennaknew t h i s . See AB 2 . The Government concedes t h i s po in t - Man su r "wa s l inked toa t e r r o r i s t c e l l ope ra t i ng in Salaam Vi l l age . " GB 3 ( c i t i ng t es t imony r ega rd ingan i n te l l ig e n c e r e p o rt ).

12 The mil i t a ry judge went so fa r as to say t ha t th e u nd isc lo se dev idence cou ld no t have changed th e f ind ing on murder . AE XCI. Tha t isc l a i r v oy an ce .

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right to self-defense. The Government cannot show, as it must toprevail, that this error was harmless beyond a reasonable doubt.United Sta t e s v . Lewis , 65 M.J. 85, 87-89 (C.A.A.F. 2007)(citations omitted).

REPLY TO GOVERNMENT BRIEF O NISSUE VI I (MANSLAUGHTER INSTRUCTION)

The Government focuses on the fact that the Defense did not

request a voluntary manslaughter instruction. GB 74. However, thisfact is irrelevant, since the military judge had a sua sponte dutyto give the instruction based on the evidence presented at trial.United S ta t e s v . Ober, 66 M.J. 393, 405 (C.A.A.F. 2008); Uni tedS ta t e s v . Gut i e rrez , 64 M.J. 374, 376-77 (C.A.A.F. 2007); Uni t edS ta t e s v . Dav i s , 53 M.J. 202, 205 (C.A.A.F. 2000).

The Government's contention is that the military judge had nosuch duty, since, in its view, the facts did not raise the issue.

GB 74. Specifically, the Government claims that Ali Mansur throwinga piece of concrete and reaching for ILT Behenna's weapon did not"objectively qualify" as adequate provocation because ILT Behenna"sought or induced" such actions. Id . In the alternative, theGovernment argues that even if they constituted provocation, theseactions did not "rise to the level of ^unlawful infliction of greatbodily harm' or as actions that would ^excite uncontrollablepassion'" because neither the concrete nor Ali Mansur "touched" ILTBehenna. GB 76.

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ILT Behenna respectfully but strongly disagrees. The rule isthat if any evidence supports an instruction, the military judgemus t give the instruction to the members. The fact that theGovernment finds t he ev id en ce not credible i s i rr el ev an t.A. Requirements for Voluntary Manslaughter.

The Court of Appeals for the Armed Forces noted that:The elements the Government must prove for voluntarymanslaughter are, somewhat paradoxically, identical tothose of unpremeditated murder. Compare para. 44b (1) withpara. 43b(2), Part IV, Manual, supra . The differencebetween the two offenses is that if, notwithstanding theaccused's intentional state of mind, he kills while "inthe heat of sudden passion caused by adequateprovocation," what would otherwise be unpremeditatedmurder is mitigated to voluntary manslaughter. Thislatter mental state, though part of the statutorydefinition of the offense, is neither an element that theGovernment must prove nor an affirmative defense that thedefense must prove. Once raised, however, the Governmentmust disprove it beyond a reasonable doubt.

United Sta t e s v . Schap, 49 M.J. 317, 319-20 (C.A.A.F. 1998)(emphasis added) (citations omitted).B. Inducement.

ILT Behenna did not induce Ali Mansur to provoke him. ILTBehenna's objective was to question Ali Mansur, R. 1225, not toengage him in a struggle for ILT Behenna's weapon. ILT Behennatestified that he only wanted to get information from Ali Mansurbefore returning him to his home. R. 1214, 1225.

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C. S ud de n P as si on - Fear or Rage.

An objective and reasonable person certainly would be veryfearful if an insurgent, especially one he believed had previously

been involved in plans to kill and injure his soldiers, threatenedhim by throwing a rock and trying to get control of the person'sloaded weapon. Such a weapon could inflict not only great bodilyharm, but death. ILT Behenna testified, "I was scared Ali was goingto take my weapon and use it on me, but this happened fast." R.1234. Especially considering the history between these twoindividuals, the combat situation, and ILT Behenna's Acute StressDisorder (which included an exaggerated startle reaction, R. 1133),this would excite uncontrollable passion in a reasonable person inthis situation - in other words, it would create a r ea s onab l e f e a rof imminent grievous bodily harm or death and mitigate the offensefrom unpremeditated murder to the lesser included offense ofvoluntary manslaughter. Thus, Ali Mansur's actions constitutedadequate provocation.D. " Co ol in g D ow n. "

The Government states that the fear ILT Behenna had was caused

from the IED attack on ILT Behenna's soldiers. GB 74 n.401. This

was not the Defense theory, and was not argued to the members. TheBrief on Behalf of Appellant clearly states that "the adequateprovocation" was "caused by [Ali Mansur] throwing a piece ofconcrete and reaching for the Lieutenant's pistol." AB 66. The

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Government acknowledges this in the main body of its brief, GB 74,yet argues in footnote 401 that "there was a sufficient ^coolingdown' period" between the IED attack and the shooting.

The Government references the wrong time period. There was nocooling down period; the evidence indicates that as soon as ILTBehenna heard the concrete hit the wall behind him and saw Ali

Mansur standing and reaching for his weapon, he fired out of fearto protect himself - "I was scared Ali was going to take my weaponand use it on me, but this happened fast." R. 1234.E. Analysis of Applicable Case Law.

Controlling case law illustrates the fact that the evidencewas sufficient to require a voluntary manslaughter instruction inthe instant case. Uni ted S ta t e s v . W e lls , 52 M.J. 126 (C.A.A.F.1999) . Wells had a verbal confrontation with his wife and hiswife's boyfriend at her apartment. Wells got into his vehicle, andas he left the area, the boyfriend shot a pistol into the air.Wells drove to his own apartment, where he retrieved a loadedweapon and called a friend to pick him up and drive him back to hiswife's apartment complex. Id . at 127. "[The friend's] assumptionwas that they were going back over to *beat the dude up orsomething.'" Id . at 132 (Crawford, J., dissenting). More than 15minutes elapsed before Wells and his friend arrived at the complex.Id . Once in the parking lot, the argument between the men continuedafter Wells shouted to the boyfriend. At one point the boyfriend

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backed away; witnesses testified that his hands were at the chestand shoulder level, but Wells testified that he thought theboyfriend was reaching for his gun in the waistband of his pants.

Wells shot the boyfriend, killing him. At trial, Wells claimed thathe shot in self-defense. Id . at 128 (majority opinion).

Despite the time that elapsed between the initialconfrontation which ended with the shot in the air, after whichWells returned to the safety of his own apartment and then cameback to the scene after at least 15 minutes with a loaded weapon

and reinitiated the argument; the conflicting testimony regardingwhether it was reasonable for Wells to have acted in self-defense

(based on where the boyfriend's hands were just prior to theshooting) ; and the fact that Wells did not request an instructionon voluntary manslaughter, the Court reversed because the militaryjudge failed to give a voluntary manslaughter instruction. Id . at131. The Court did not find that Wells induced the provocation,that the provocation was insufficient, or that there was anadequate cooling down period - the Court found that "this is a casewhere an entire instruction on a lesser-included offense was

omitted by the trial judge." Id . The same situation occurred in theinstant case.

F. Prejudice.

The members convicted ILT Behenna of unpremeditated murder,which, as the Court of Appeals for the Armed Forces noted, has thesame elements as voluntary manslaughter but for the "in the heat of

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sudden passion caused by adequate provocation" language. Schap, 49M.J. at 319-20. Had the military judge properly instructed *themembers regarding voluntary manslaughter, the members would havebeen able to evaluate whether the lesser included offense was moreappropriate than the greater offense of conviction. The failure togive the members this option was reversible error that causedmaterial prejudice to ILT Behenna's substantial rights.

P R A Y E R

The independent and cumulative effect of the errors discussedabove deprived ILT Behenna of his right to a fair trial.

WHEREFORE, the Appellant, ILT Michael C. Behenna, prays thatthe Court set aside the findings of guilty and the sentence, anddismiss Charge II and its specification (unpremeditated murder) forfactual insufficiency; or in the alternative, without waiving theforegoing, set aside the findings of guilty and the sentence.

Respectfully submitted,

(jEKBCL R- ZIMMERMANNCivilian Appellate Defense Counsel

KY^E R. SAMPSON ^tYDCivilian Appellate Defense CounselZimmermann, Lavine,

Zimmermann, & Sampson, P.C.770 South Post Oak Lane, Suite 620Houston, Texas 77056(713) 552-0300(713) 552-0746 Fax

(JACK B/ ZIMMERMANN E. PATRICK GILMANead Clvil/ian Appellate Defense Counsel CPT, JA

37

Detailed Appellate Defense Counsel

Defense Appellate Division901 North Stuart Street, Suite 340Arlington, VA 22203(703) 588-5289(703) 696-8100 Fax


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CERT IF ICATE OF SERV ICE

UNITED STATES v .

Army Docke t No

Brief on Beh a l f ofAppe l l a n t

M o t io n

Other V

I cert i fy that a copy of the foregoing was delivered to theCourt and the Government Appellate Division on C&t^J^^^&C~ y

MICHELLE L. WASHINGTONParalegal SpecialistDefense Appellate Division(703) 588-6023

behenna reply oral argument

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