U.S. v.Thompson ( 2021 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Jesse M. THOMPSON, Sergeant First Class
United States Army, Appellant
No. 21-0111
Crim. App. No. 20180519
Argued May 25, 2021—Decided August 9, 2021
Military Judges: Fansu Ku (arraignment) and
Christopher E. Martin (trial)
For Appellant: Captain Thomas J. Travers (argued); Colonel
Michael C. Friess, Lieutenant Colonel Angela D. Swilley,
Major Kyle C. Sprague, and Captain Lauren M. Teel (on
brief).
For Appellee: Major Anthony A. Contrada (argued); Colonel
Steven P. Haight, Lieutenant Colonel Wayne H. Williams,
and Major Brett A. Cramer (on brief).
Judge SPARKS delivered the opinion of the Court, in
which Judge MAGGS and Judge HARDY, and Senior
Judge STUCKY, joined. Chief Judge OHLSON filed a
separate opinion concurring in the result.
_______________
Judge SPARKS delivered the opinion of the Court.
A general court-martial composed of a military judge
sitting alone convicted Appellant, pursuant to his plea, of
adultery, in violation of Article 134, UCMJ, 10 U.S.C. § 934
(2012). Contrary to his plea, Appellant was convicted of
solicitation of production of child pornography, in violation of
Article 134, UCMJ, 10 U.S.C. § 934 (2012). The military judge
sentenced Appellant to a bad-conduct discharge and
confinement for twenty-four months. The United States Army
Court of Criminal Appeals affirmed the findings and sentence
as approved by the convening authority. United States v.
Thompson, No. ARMY 20180519, 2020 CCA LEXIS 420, at *9,
2020 WL 6899432, at *4 (A. Ct. Crim. App. Nov. 23, 2020)
(unpublished).
United States v. Thompson, No. 21-0111/AR
Opinion of the Court
We granted review to determine whether the military
judge abused his discretion in failing to strike the victim’s
testimony under Rule for Courts-Martial (R.C.M.) 914.
R.C.M. 914 requires the government to make available to the
defense, after a witness has testified, any statement
possessed by the United States that the witness has made.
We conclude that the military judge did not abuse his
discretion when he denied Appellant’s R.C.M. 914 motion
because the United States was not in possession of the alleged
statement.
Background
In 2009, DS was approximately thirteen or fourteen years
old when she first met Appellant, who was her uncle by
marriage. In 2012, Appellant began sending DS Facebook
messages complementing her looks. Their messaging
progressed into daily Skype chats which were sexual in
nature.
In 2015, the Federal Bureau of Investigation (FBI) began
investigating Appellant after DS’s mother, MC, reported that
she had discovered nude photographs of DS and Appellant on
DS’s iPad. After the FBI’s investigation had progressed for
more than a year, Appellant’s case was transferred to the
Army Criminal Investigation Command (CID).
During the investigation, DS had difficulty remembering
the dates of her in-person interactions with Appellant due to
the passage of time. In order to help DS remember, she and
her mother created a written time line, using Facebook and
MC’s calendar, identifying the dates of DS’s in-person
interactions with Appellant. MC testified to the creation of
the time line as follows:
We talked about the relationship and things that
had happened. [DS] could not remember the
timeline very well. We looked through Facebook and
said, “Oh, there was the visit”—we didn’t remember
what year family Christmas of 2012 was, so we did
go back and look at, this was 2012 when this
happened. “Oh yeah, the wedding was 2011. Oh,
yeah, the first time we met was 2010.” We did not
remember those dates, so we did have to go back and
find them out.
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United States v. Thompson, No. 21-0111/AR
Opinion of the Court
DS had the time line in her pocket when she was interviewed
by CID. The following colloquy during the interview took
place:
[CID Investigator]: Now you said you brought some
—or you had some notes or something written down
or something like that, dates and all that kind of
stuff.
[DS]: Yeah. I have it.
[CID Investigator]: Have we pretty well covered
most of that already?
(pause)
[DS]: Um, yeah. We covered when I first – when I
first met him. But, I mean, I have specific dates if
you want those. I couldn’t remember them off the top
of my head, but if you want them.
[CID Investigator]: It’s okay.
[DS]: But we covered pretty much the—
[CID Investigator]: And it—the specific dates, um,
the only one that you’re really confident of is the—
[DS: March 8th.
[CID Investigator]: —is the March 8th. Okay. All
right. And the other ones, you’re not a hundred
percent on, but you kind of have an idea of the
timeframe. Is that right?
[DS]: Yeah. I wouldn’t be able to remember them off
the top of my head, but, um, whenever I—how I got
those dates were just from pictures that we had
taken on those different times.
[CID Investigator]: Okay. Okay. And you—where
are those pictures now?
[DS]: They’re probably on Facebook.
[CID Investigator]: Okay. All right. Um, okay. So
that’s something I can probably get from you at a
later time?
[DS]: Yeah
[CID Investigator]: Okay.
[DS]: Yeah.
3
United States v. Thompson, No. 21-0111/AR
Opinion of the Court
The CID Investigator did not collect the time line from DS
during or after the interview. DS subsequently lost the time
line.
After DS testified on direct at Appellant’s court-martial,
trial defense counsel moved to strike DS’s trial testimony
under R.C.M. 914 because the Government could not produce
the lost time line. The military judge denied the R.C.M. 914
motion finding: (1) the time line was not a statement as it was
not signed, adopted, or otherwise approved, nor intended to
transmit information; (2) the time line was not in the
possession of the United States; (3) the Government had not
acted in bad faith or was not grossly negligent in losing the
time line; and (4) it was unclear if the time line related to the
subject matter of DS’s testimony.
On appeal, Appellant argued the military judge erred in
denying his R.C.M. 914 motion. Thompson, 2020 CCA LEXIS
420, at *4–5, 2020 WL 6899432, at *3. The lower court
concluded that the military judge had not abused his
discretion because the time line did not qualify as an R.C.M.
914 statement and it was not in the possession of the United
States. Id. at *6–9, 2020 WL 6899432, at *3–4. On the latter
point, Appellant argued that while the time line was never in
the Government’s actual possession, it was in the
Government’s constructive possession because DS had offered
the time line to CID. Id. at *8, 2020 WL 6899432, at *4. The
lower court disagreed finding there had to be a joint law
enforcement investigation between federal and state
authorities for constructive possession to apply under R.C.M.
914. Id. at *8–9, 2020 WL 6899432, at *4.
Discussion
Appellant argues that the military judge abused his
discretion in denying his R.C.M. 914 motion because the time
line: (1) was a statement; (2) was in the constructive
possession of the United States; (3) related to DS’s testimony;
and (4) was not lost in good faith.
We review a military judge’s ruling on a R.C.M. 914
motion for an abuse of discretion. United States v. Clark, 79
M.J. 449, 453 (C.A.A.F. 2020). “An abuse of discretion occurs
when a military judge’s findings of facts are clearly erroneous
or his conclusions of law are incorrect.” Id.
4United States v. Thompson, No. 21-0111/AR
Opinion of the Court
R.C.M. 914(a) states:
After a witness other than the accused has testified
on direct examination, the military judge, on motion
of a party who did not call the witness, shall order
the party who called the witness to produce, for
examination and use by the moving party, any
statement of the witness that relates to the subject
matter concerning which the witness has testified,
and that is:
(1) In the case of a witness called by the trial
counsel, in the possession of the United States;
or
(2) In the case of a witness called by the defense, in
the possession of the accused or defense counsel.
The Jencks Act requires the trial judge, upon motion by
the accused, to order the government to disclose prior
“statement[s]” of its witnesses that are “relate[d] to the
subject matter” of their testimony after each witness testifies
on direct examination. 18 U.S.C. § 3500(b). “In 1984, the
President promulgated R.C.M. 914, and this rule ‘tracks the
language of the Jencks Act, but it also includes disclosure of
prior statements by defense witnesses other than the
accused.’ ” United States v. Muwwakkil, 74 M.J. 187, 190–91
(C.A.A.F. 2015) (citation omitted). “Given the similarities in
language and purpose between R.C.M. 914 and the Jencks
Act, we have conclude[ed] that our Jencks Act case law and
that of the Supreme Court informs our analysis of R.C.M. 914
issues.” Id. at 191.
If the government, as the opposing party, fails to produce
a qualifying statement, R.C.M. 914(e) provides the military
judge with two remedies for the government’s failure to
deliver the qualifying statement: (1) “order that the testimony
of the witness be disregarded by the trier of fact” or (2)
“declare a mistrial if required in the interest of justice.” When
the military judge errs in denying a R.C.M. 914 motion, we
determine whether this error prejudiced Appellant based on
the nature of the right violated. Clark, 79 M.J. at 454.
Not every failure to produce a qualifying statement
invokes a R.C.M. 914 remedy. Both the Supreme Court and
this Court “have indicated that good faith loss or destruction
of Jencks Act material and R.C.M. 914 material may excuse
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United States v. Thompson, No. 21-0111/AR
Opinion of the Court
the government’s failure to produce ‘statements.’ ” Id. (citing
Muwwakkil, 74 M.J. at 193; United States v. Augenblick, 393
U.S. 348, 355–56 (1969)). “A finding of sufficient negligence
may serve as the basis for a military judge’s conclusion that
the good faith loss doctrine does not apply.” Id. (citing
Muwwakkil, 74 M.J. at 193).
The relevant language of R.C.M. 914 requires the
government to produce any pertinent statement of a
prosecution witness “in the possession of the United States.”
R.C.M. 914 (a)(1). R.C.M. 914 does not apply if the statement
is not in the possession of the United States. R.C.M. 914
concerns preservation and disclosure of statements in the
government’s possession, not the collection or creation of
evidence. Here, law enforcement chose not to take possession
of DS’s time line. This decision did not violate R.C.M. 914
because there was no obligation for CID to create an R.C.M.
914 qualifying statement during its interview of DS. See
United States v. Bernard, 625 F.2d 854, 859–60 (9th Cir.
1980) (rejecting a claim that the government is required to
create Jencks Act material by recording everything a
potential witness says); United States. v. Martinez-Mercado,
888 F.2d 1484, 1490 (5th Cir. 1989) (the government is not
required to develop potential Jencks Act statements by
demanding that its witnesses reduce to writing every matter
about which they intend to testify at trial; rather, the
government is obligated to reveal to the defendant no more
than what is embodied in reports and within statements);
United States v. Brennerman, 818 F. App’x 25, 30 (2d Cir.
2020) (holding that the government was not “under any
obligation under the Jencks Act to collect” personal notes
prepared by a witness that “were not in the government’s
possession” at any time).
While the time line was not in the actual possession of the
United States, Appellant contends that the time line was in
its constructive possession because the CID Investigator,
while acting on behalf of the Army, had access to the time line
and consciously avoided collecting it. We have not previously
addressed whether constructive possession applies to R.C.M.
914.
Federal circuit courts have generally concluded that the
Jencks Act applies only to statements possessed by the
6
United States v. Thompson, No. 21-0111/AR
Opinion of the Court
prosecutorial arm of the federal government. See, e.g., United
States v. Naranjo, 634 F.3d 1198, 1211–12 (11th Cir. 2011)
(holding that a statement is in the possession of the United
States for Jencks Act purposes “if it is in the possession of a
federal prosecutorial agency” (internal quotation marks
omitted) (quoting United States v. Cagnina, 697 F.2d 915, 922
(11th Cir. 1983))). The prosecutorial arm of the federal
government may, in certain cases, include nonfederal entities
when the nonfederal entity is acting in concert or at the
behest of the federal government as its agent. See United
States v. Moeckly, 769 F.2d 453, 463 (8th Cir. 1985) (“The
Jencks Act does not apply to statements made to state
officials when there is no joint investigation or cooperation
with federal authorities.” (citations omitted)). Where the
statements are physically held by someone other than a
federal prosecutorial agency, such statements are generally
not considered in the possession of the United States unless
the holder serves as “an arm of the United States
government.” United States v. Reyeros, 537 F.3d 270, 285 (3rd
Cir. 2008) (holding that Columbian courts holding extradition
documents did not serve as an arm of the United States
government and therefore the Jencks Act did not apply to
such documents).
Consistent with the federal circuit courts, we conclude
that R.C.M. 914 applies only to statements possessed by the
prosecutorial arm of the federal government or when a
nonfederal entity has a joint investigation with the United
States. Ultimately, the party in control of the time line was
DS—a third-party private citizen—not the United States, and
therefore the time line was not subject to R.C.M. 914
production.1
Appellant argues that if we do not extend the doctrine of
constructive possession to the instant case we allow the
Government to avoid the consequences of R.C.M. 914 by
failing to take adequate measures to preserve R.C.M. 914
statements. However, in the case Appellant cites for this
1 Having held that the time line was never in the actual or
constructive possession of the United States, we need not and do
not address whether the time line was a R.C.M. 914 statement or if
the good faith loss doctrine applies to these facts.
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United States v. Thompson, No. 21-0111/AR
Opinion of the Court
proposition, Muwwakkil, 74 M.J. at 192–93, it was
undisputed that the lost Article 32, UCMJ, 10 U.S.C. § 832
(2012), recorded victim testimony had been in the actual
possession of the United States before being lost. Thus, we
held that the government could not be rewarded for its own
negligence in failing to preserve the recording. Id. at 193.
Here, the Government, unlike in Muwwakkil, had no
obligation pursuant to R.C.M. 914 to preserve the time line
which it never possessed.
Under the circumstances of this case, Appellant’s reliance
on the doctrine of constructive possession is misplaced.
Accordingly, the military judge did not abuse his discretion in
ruling that DS’s time line was not in the possession of the
United States pursuant to R.C.M. 914.
Decision
The judgment of the United States Army Court of
Criminal Appeals is affirmed.
8
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in the result.
Although I concur with the majority’s holding that Appel-
lant is not entitled to relief under Rule for Courts-Martial
(R.C.M.) 914, I do not agree with their line of reasoning in
reaching that result. Specifically, I would hold that DS’s time
line was a statement and that it was in the possession of the
Government under R.C.M. 914, but that Appellant is not en-
titled to relief because of the good faith loss doctrine. There-
fore, I write separately.
I. Applicable Law
R.C.M. 914(a)(1) requires the government, pursuant to a
motion, to produce for the defense any relevant statement of
a prosecution witness that is in the possession of the United
States. A statement under R.C.M. 914 is defined as follows:
(1) A written statement made by the witness that is
signed or otherwise adopted or approved by the
witness; [or]
(2) A substantially verbatim recital of an oral state-
ment made by the witness that is recorded con-
temporaneously with the making of the oral
statement and contained in stenographic, me-
chanical, electrical, or other recording or a tran-
scription thereof.
R.C.M. 914(f)(1)-(2) (2016) (emphasis added). Thus, under the
provisions of R.C.M. 914 and our case law, in order for a state-
ment to qualify under the rule, (1) the witness must have
“made” the statement, (2) the witness must have signed,
adopted, or approved the statement, and (3) the statement
must relate to the subject matter to which the witness testi-
fied. See United States v. Gonzalez-Melendez, 594 F.3d 28, 36
(1st Cir. 2010) (defendant not entitled to discover FBI’s re-
cording of witness’ out-of-court statements because there was
no evidence that witness adopted it); United States v. Oruche,
484 F.3d 590, 599 (D.C. Cir. 2007) (government was not re-
quired to provide irrelevant grand jury testimony of a testify-
ing witness).
In addition to these requirements, the statement also
must be within the government’s possession. In that regard,
this Court has determined that R.C.M. 914 applies “to de-
stroyed or lost statements” previously in the government’s
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
control, and that such lost statements are deemed to be in the
government’s continuing “possession” for purposes of R.C.M.
914. United States v. Muwwakkil, 74 M.J. 187, 192–93
(C.A.A.F. 2015) (describing how the government is implicitly
required to take adequate steps to preserve statements). If
these requirements are met, then the writing in question is a
qualifying statement under R.C.M. 914.
If the government “elects” not to produce a qualifying
statement, the military judge “shall order that the testimony
of the witness be disregarded by the trier of fact [or] shall de-
clare a mistrial if required in the interest of justice.” R.C.M.
914(e) (emphasis added). However, as the majority observes,
there is a limited “judicially created good faith loss doctrine”
that may apply to such situations. Muwwakkil, 74 M.J. at
193. Specifically, a military judge may decline to impose sanc-
tions if there is a good faith loss by the government, that is, if
the government neither acted in bad faith nor was sufficiently
negligent in maintaining possession of the statement. United
States v. Moore, 452 F.3d 382, 389 (5th Cir. 2006); see also
United States v. Marsh, 21 M.J. 445, 451–52 (C.M.A. 1986)
(stating that “the drastic remedy of striking the testimony”
for a violation of the Jencks Act, 18 U.S.C. § 3500(b), may be
“required for deliberate suppression or for bad-faith destruc-
tion” of statements or for “gross negligence amounting to an
election by the prosecution to suppress these materials”).
II. Analysis
A. The Government Possessed the Time Line
The majority holds that the military judge did not abuse
his discretion in concluding that the time line was not in the
possession of the Government. In particular, the majority con-
cludes that (1) the CID agent had “no obligation . . . to create
an R.C.M. 914 qualifying statement during its interview of
DS” and (2) the government cannot constructively possess the
statements of a non-informant witness under R.C.M. 914. Alt-
hough I generally agree with the proposition that the govern-
ment does not have an affirmative burden to create R.C.M.
914 statements, this principle does not apply in the instant
case because the Government was offered a statement that
2
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
already had been created by the witness.1 More critically, I
firmly disagree with the majority’s view that the government
cannot constructively possess a statement made by a witness
who is not part of the prosecutorial arm of the United States.
Instead, I conclude that consistent with the provisions of ap-
plicable rules and case law, when a prosecution witness (a)
unconditionally offers to a government agent (b) a previously
prepared statement (c) that is immediately and easily acces-
sible by the government agent and (d) that is the subject mat-
ter of the witness’s testimony, then (e) that government agent
constructively possesses that statement for the purposes of
R.C.M. 914. See generally United States v. Stellato, 74 M.J.
473 (C.A.A.F. 2015); United States v. Muwwakkil, 74 M.J. 187(C.A.A.F. 2015).
The majority is correct that the doctrine of constructive
possession is usually applied in cases where there is a joint
law enforcement investigation between federal and state au-
thorities. See, e.g., United States v. Naranjo, 634 F.3d 1198,
1211–13 (11th Cir. 2011); United States v. Brooks, 79 M.J.
501, 508–09 (Army Ct. Crim. App. 2019). Further, because a
non-informant witness is not a government agent, courts
should indeed be circumspect about ruling that the govern-
ment constructively possessed such a witness’s notes because,
unlike government agents and informants, cooperating wit-
nesses are not categorically under the control of the govern-
ment. See United States v. Reyeros, 537 F.3d 270, 281–85 (3d
Cir. 2008). However, this Court’s decision in Stellato (albeit
in the R.C.M. 701 context) demonstrates that the constructive
1 The majority cites United States v. Brennerman for the prop-
osition that the government is not “under any obligation under the
Jencks Act to collect” personal notes prepared by a witness that
“were not in the government’s possession” at any time. 818 F. App’x
25, 30 (2d Cir. 2020). Putting aside that this is an unpublished case,
the Second Circuit’s analysis of whether the government violated
its disclosure obligations hinged on an observation that the govern-
ment “[was] not aware of the personal notes” and a single citation
to another Second Circuit case that determined federal authorities
did not possess a local police file because there was no joint federal-
state investigation. Id. at 30 (citing United States v. Bermudez, 526
F.2d 89, 100 n.9 (2d Cir. 1975)). Neither Brennerman nor Bermudez
respond to the facts of this case in a manner that fully supports the
majority’s view.
3
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
possession doctrine can certainly extend to those situations
where the government has the ability to control the handling
and disposition of evidence in the custody of a cooperating
witness. 74 M.J. at 483 (citing United States v. Muwwakkil,
74 M.J. 187). As this Court observed in Stellato, “the Govern-
ment need not physically possess an object for it to be within
the possession, custody, or control of military authorities.” 74
M.J. at 485.
Indeed, my grave concern is that to hold otherwise will in-
centivize government agents “to avoid the consequences of
R.C.M. 914’s clear language and intent simply by [purposely]
failing to take adequate steps to preserve statements.”
Muwwakkil, 74 MJ at 192. As stated in Appellant’s brief, a
holding such as the majority’s will “encourage law enforce-
ment personnel to intentionally avoid collecting relevant evi-
dence for fear it might not fit the government’s theory of the
case and [then] they [will] have to disclose [any exculpatory]
evidence to the defense.” Brief for Appellant at 11, United
States v. Thompson, No. 21-0111 (C.A.A.F. Mar. 24, 2021)
The majority asserts that the legal issue before us turns
on whether the government once actually physically pos-
sessed the statement. I am unconvinced. Consider the follow-
ing scenario: a cooperating government witness repeatedly
and unconditionally tries to hand to an investigating agent a
written statement that already was prepared by the witness
and that is directly relevant to the witness’s testimony. How-
ever, the agent consistently rebuffs the witness’s efforts be-
cause the agent is concerned that the statement contains evi-
dence favorable to the defense. The majority would hold that
the provisions of R.C.M. 914 would not apply. I wholeheart-
edly disagree.
Similarly, in the instant case the prosecution witness un-
conditionally offered the CID agent a previously prepared
time line that was directly relevant to her testimony and that
was in her pocket. Under these facts, I conclude that the Gov-
ernment constructively possessed DS’s statement. As a re-
sult, I would hold that the military judge clearly erred in find-
ing that the Government did not possess the time line.
4
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
B. The Time Line Was a Statement
Because I would find that the time line was in the posses-
sion of the Government, I next consider whether the time line
was a statement under R.C.M. 914. I would hold that it is. In
United States v. Clark, we held that this Court adopts an “ex-
pansive interpretation of the definition of ‘statement.’ ” 79
M.J. 449, 454 (C.A.A.F. 2020). As the military judge noted,
statements under R.C.M. 914 are generally intended to trans-
mit information. See United States v. Carrasco, 537 F.2d 372,
375 (9th Cir. 1976). Here, the time line purported to do ex-
actly that: it outlined the history of DS’s interactions with Ap-
pellant over a six-year period, including incidents that consti-
tuted the charged misconduct. These facts are substantively
different from those found in United States v. Ramirez where
the Fifth Circuit concluded that “scattered notes” taken by an
informant-witness over the course of the investigation that
included “odd pieces of paper on which [the witness] jotted
down names, addresses, and license plate numbers” and that
were destroyed before the witness testified “do not fit within
the [Jencks] Act’s purview.” 954 F.2d 1035, 1038 (5th Cir.
1992). Therefore, the military judge’s finding that the time
line was more like notes for recollection rather than a state-
ment under R.C.M. 914 demonstrated an improper under-
standing of the law and an incorrect application of the facts
to the law.2
2 As examples, this Court and the CCAs have determined that
the following constitute “statements” under the Jencks Act or
R.C.M. 914: (1) a law enforcement officer’s written notes of his in-
terview with an informant or another witness if the officer is called
to testify, United States v. Jarrie, 5 M.J. 193, 194 (C.M.A. 1978); see
also Clancy v. United States, 365 U.S. 312, 315 (1961); United
States v. Jordan, 316 F.3d 1215, 1253 (11th Cir. 2003); (2) a wit-
ness’s Article 32, UCMJ, testimony, Muwwakkil, 74 M.J. at 192;
(3) an audio recording of a witness interview, Brooks, 79 M.J. at 506
(citing R.C.M. 914(f)(2)); (4) a tape recording of an officer’s inter-
view with a witness after the officer testifies, United States v. Wal-
bert, 14 C.M.A. 34, 37, 33 C.M.R. 246, 249 (1963); and (5) agents’
statements while interviewing the accused. Clark, 79 M.J. at 454.
See also Carrasco, 537 F.2d at 375–76 (finding a diary of a govern-
ment informant to be a statement because it consisted of daily en-
tries documenting the events leading up to a narcotics transaction
that was signed or initialed on each page by the author as accurate).
5
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
The military judge also clearly erred in finding that DS
did not adopt or approve the statement. DS created the time
line with her mother by selecting the pieces of information
from Facebook and the calendar that they presumably be-
lieved were accurate and relevant. Further, DS carried the
time line with her and offered to hand it over to an investiga-
tive agent of the United States government, again evincing
her belief that the time line was accurate, relevant, and help-
ful. See Carrasco, 537 F.2d at 375 (“By giving her diary to [the
law enforcement agent, the paid government informant]
transformed what had been a diary not covered by the Jencks
Act into a statement which was.”).3 For these reasons, I con-
clude that the time line was a statement and the military
judge clearly erred in finding otherwise.
C. Good Faith
Even though I conclude that the military judge erred in
finding that the time line was not a statement in the
possession of the Government, I would find that the military
judge did not abuse his discretion when he concluded that
there was “no bad faith or gross negligence” on the part of the
Government. Muwwakkil, 74 M.J. at 193. Setting aside the
issue of what degree of negligence is necessary to conclude
that an R.C.M. 914 remedy is appropriate, there is no basis to
conclude that the military judge did not properly comprehend
the legal question of what constitutes good faith. Further,
there is no basis to conclude that the military judge’s factual
finding was clearly erroneous when he concluded that the
CID agent did not engage in bad faith by failing to obtain the
time line from DS. At the CID interview when DS offered the
time line to the agent, he responded that “he didn’t need [it].”
United States v. Thompson, No. ARMY 20180519, 2020 CCA
LEXIS 420 at *4, 2020 WL 6899432 at *2 (Army Ct. Crim.
App. Nov. 23, 2020). The agent’s decision not to collect the
time line is neither inexplicable nor necessarily predicated on
bad faith. Because DS and her mother coauthored the time
3 R.C.M. 914 requirements for determining whether something
is a “statement” that was “adopted or approved” by the witness do
not revolve around the issue of whether any witness relied on the
statement at trial or whether investigators incorporated the state-
ment into their report.
6
United States v. Thompson, No. 21-0111/AR
Chief Judge OHLSON, concurring in result
line, the CID agent may have simply been seeking to obtain
DS’s recollection of events based solely on DS’s own memory.
The agent also may have determined that the time line’s
value was negligible: the Government already had access to
the calendar and Facebook photographs with time stamps, all
of which created their own irrefutable time line.4 The record,
therefore, supports the military judge’s determination that
there was no bad faith or gross negligence on the part of the
Government. Accordingly, the military judge acted in a
manner consistent with the good faith loss doctrine when he
declined to impose any sanctions on the Government.
Muwwakkil, 74 M.J. at 193.
III. Conclusion
Although I conclude that for R.C.M. 914 purposes DS’s
time line constituted a statement and was in the constructive
possession of the Government, I also conclude that the good
faith loss doctrine applies in this case such that Appellant is
not entitled to relief. Therefore, I vote to affirm the judgment
of the Army Court of Criminal Appeals.
4 Defense counsel also had access to the calendar, cross-exam-
ining DS on it, and could have gained access to the Facebook pho-
tographs but never requested them. Given that the defense made a
request only for the time line and did not seek the Facebook photo-
graphs, it could be argued “that the purpose of the production re-
quest in this case was [not] to use the [time line] for impeachment
purposes, but [rather] to prevent [DS] . . . from being able to testify
. . . . [If so, t]he Jencks Act is not an appropriate tool for achieving
that end.” United States v. Bobadilla-Lopez, 954 F.2d 519, 523 (9th
Cir. 1992).
7