Docket No.

ARMY 20090234

IN THE

UNITED STATES ARMY

COURT OF CRIMINAL APPEALS

UNITED STATES,
Appellee

First Lieutenant
MICHAEL C. BEHENNA
U.S. Army,
Appellant

REPLY BRIEF ON BEHALF OF APPELLANT

JACK B. ZIMMERMANN, Lead E. PATRICK GILMAN

TERRI R. ZIMMERMANN Captain, United States Army
KYLE R. SAMPSON Detailed Appellate Defense Counsel
Civilian Appellate Defense Counsel Defense Appellate Division
Zimmermann, Lavine, Zimmermann, 901 North Stuart Street, Suite 340
& Sampson, P.C. Arlington, VA 2220
770 South Post Oak Lane, Suite 620 (703) 588-5289
Houston, Texas 77056 (703) 696-8100 Fax
(713) 552-0300
(713) 552-0746 Fax

Attorneys for the Appellant,

FIRST LIEUTENANT MICHAEL C. BEHENNA

0^
 TABLE OF CONTENTS
Page

TABLE OF CONTENTS i

REPLY ISSUES 1

ARGUMENT 2

REPLY TO BRIEF ON BEHALF OF APPELLEE ON

ISSUES I, II, AND III (DISCOVERY VIOLATION) 2

A. Lack of Factual Basis in the Record of Trial 2

B. The Government Misrepresents the Record 8

1. The Government Misrepresents the

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

2. The Government Misrepresents the

Testimony of the Government
Expert (Dr. MacDonell) 12

3. The Government Misrepresents

the Military Judge's Findings of
Fact and the Finding at Issue is
Clearly Erroneous 13

C. Inaccurate, Conflicting, and Conclusory

Statements in the Government's Brief 15

D. The Government Completely Ignored

the Legal Principle That Knowledge by a
Member of the Prosecution Team Is
Imputed to the Prosecutor 18

E. Assertions That 1LT Behenna Told No One

about His Reason to Shoot until the Trial 19

F. The Bedrock Principle for Evaluating a Brady

Violation Is Whether the Accused Received
a Fair Trial, i.e., Is the Verdict
"Worthy of Confidence?" 20

REPLY TO GOVERNMENT BRIEF ON ISSUE

IV (IMPROPER TRIAL COUNSEL ARGUMENT) 22
 Page

A. The Government Misstates the

Facts and the Law 22

B. There is No Evidence in the Record of

Trial Counsel's Thought Process 23

C. The Government Mischaracterizes

the Defense Expert Testimony 25

D. The Trial Counsel's Misleading

Statements were Improper 25

E. Prejudice 26

REPLY TO GOVERNMENT BRIEF ON

ISSUE V (SELF-DEFENSE INSTRUCTION) 27

A. Erroneous Limiting Instruction on Self-Defense... . 28

1. Requirement to find lack of escalation,

even if no assault 28

2. No instruction on withdrawal
from the conflict 29

B. Erroneous Instruction on Pointing the

Pistol as an Assault 29

1. The Military Judge's Instruction

Regarding Assault 29

2. No Evidence Regarding Unlawfulness 30

C. Prejudice 31

REPLY TO GOVERNMENT BRIEF ON

ISSUE VII (MANSLAUGHTER INSTRUCTION) 32

A. Requirements for Voluntary Manslaughter 33

B. Inducement 33

C. Sudden Passion - Fear or Rage 34

D. "Cooling Down." 34

(
ii
 Page

E. Analysis of Applicable Case Law 35

F. Prejudice 36

PRAYER 37

CERTIFICATE OF FILING AND SERVICE

in
 IN THE UNITED STATES ARMY
COURT OF CRIMINAL APPEALS

UNITED STATES, REPLY BRIEF ON BEHALF OF

APPELLANT
Appellee
Docket No. ARMY 20090234

v. Tried at Fort Campbell,

Kentucky, on 8 December 2008,
22 January, 23-28 February, 2
First Lieutenant and 20 March 2009, before a
MICHAEL C. BEHENNA general court-martial convened
United States Army, by the Commander, Fort Campbell
Appellant Installation, Fort Campbell,
Kentucky, Colonel Theodore
Dixon, Military Judge,
presiding.

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES

ARMY COURT OF CRIMINAL APPEALS

REPLY ISSUES

ISSUE I

THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION

FOR MISTRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TO
DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

ISSUE II

THE MILITARY JUDGE REVERSIBLY ERRED BY DENYING THE MOTION

FOR NEW TRIAL, BASED ON THE TRIAL COUNSEL'S FAILURE TO
DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

ISSUE III

THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY FAILING

TO DISCLOSE FAVORABLE INFORMATION TO THE DEFENSE.

ISSUE IV

THE TRIAL COUNSEL COMMITTED REVERSIBLE ERROR BY MAKING

FALSE ASSERTIONS OF MATERIAL FACT AND INTERJECTING HER

Panel No. 4
 PERSONAL OPINION OF THE EVIDENCE IN CLOSING FINAL
ARGUMENT.

ISSUE V

THE MILITARY JUDGE REVERSIBLY ERRED BY GIVING AN IMPROPER

INSTRUCTION LIMITING 1LT BEHENNA' S RIGHT TO SELF-DEFENSE.

ISSUE VII1

THE MILITARY JUDGE REVERSIBLY ERRED BY FAILING TO

INSTRUCT THE MEMBERS SUA SPONTE ON THE LESSER INCLUDED
OFFENSE OF VOLUNTARY MANSLAUGHTER.

ARGUMENT

REPLY TO BRIEF ON BEHALF OF APPELLEE2 ON

ISSUES I. II. AND I I I (DISCOVERY VIOLATION)

A. Lack of Factual Basis in the Record of Trial.

The primary reason that the Government's position on these

three related Issues lacks merit is that the record of trial

contains no factual support from the hearing on the Motion for

Mistrial for that position. The fact is that the Government failed

to disclose to the Defense c r i t i c a l information - the Government's

own expert witness' opinion that flatly contradicted the

prosecution theory and confirmed the Defense theory - and this

withholding violated the Constitutional, statutory, and ethical

1 Issue VI (Sufficiency) is not discussed in this Reply Brief, because

the decision of whether the evidence at trial convinces the judges of this
Honorable Court of guilt beyond a reasonable doubt is one made by each individual
judge. Counsel rely on the facts and law set out in the Brief on Behalf of
Appellant, hereinafter designated "AB," pages 63 to 64.

2 For brevity, hereinafter designated "Government Brief" or "GB."

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 of

learning at his hotel of the email from the "Government's expert

assistant"3 that he had given the prosecutors highly favorable

information 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 Motion

for Mistrial without conducting an evidentiary hearing:

CDC1: . . . Does the court believe that a hearing is

necessary or do you accept the proffers of the counsel as
fact or do you want to hear from Dr. MacDonell or
Sergeant Macaulay or Dr. Berg?4 I mean, there seems to be
a factual dispute here as to what - Dr. MacDonell says
that he told them all this and demonstrated it.

MJ: Well I can put it to you this way, Mr. Zimmermann,

I'm not going to declare a mistrial without an
evidentiary hearing.

R. 1457.

The Government was told to contact Dr. MacDonell and have him

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

3 Dr. Herbert MacDonell, a forensic scene reconstruction expert with

a reputation as one of the nation's leading forensic experts, who was listed as
a 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 for
Mistrial, AE LXXXII.

4 Dr. Eric Berg, a pathologist designated by the Government as an

expert in that field, and listed as a Government witness, who did not testify,
although present at trial.
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 of

failure to disclose favorable information. United States 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 to

put on evidence.

MJ: Anything else from the government?

ATC1: No, Your Honor. Thank you.

[The witness [Dr. MacDonell] was excused and the
telephone call was disconnected.]

MJ: Does either side see any need for additional

witnesses?

CDC1: Well, Judge, as long as we can have some

stipulation that I, in fact, contacted the prosecutors at
the next session of court, and passed on that information
and I was told that there was no exculpatory evidence, I
need to get in the record.

MJ: Government, any disagreement with that?

ATC1: No, Your Honor, it was yesterday morning, and we

had a discussion about it.

R. 1482.
* * *

MJ: ... I may have mentioned that on the record, but

formally, does the government wish to present any
additional evidence?

ATC1: No, Your Honor.

R. 1484.

The Defense then rested on the Motion. Id.

 The Government elected to call no witnesses or offer any

affidavits, despite Dr. Berg and SGT McCauley being local at Ft.

Campbell. R. 1457, 1484. SGT McCauley is the paralegal who played

the part of the deceased in the demonstration where Dr. MacDonell

informed the prosecutors that the "only logical explanation" of the

forensics and bullet trajectories discovered on autopsy was that

the first shot was to the rib cage while Ali Mansur was standing

with his arm outstretched and the second shot was to his head while

he was falling. R. 1464-65; MacDonell Affidavit. All three trial

counsel were present in the courtroom during the Article 39(a)

session on the Motion for Mistrial. R. 1443.

No one testified except Dr. MacDonell. R. 1484. There were no

stipulations of expected testimony. There was one oral stipulation

of fact entered. R. 1482. The military judge accepted the

attachments to the briefs.5 R. 1598, 1629. That is the sum total of

the evidence presented at the hearing.

After the military judge eventually denied the Motion for

Mistrial, and Dr. MacDonell learned of the military judge's

Findings of Fact, Dr. MacDonell clarified what he believed was a

5 Attachments to Defense Trial Brief in Support of Oral Motion for

Mistrial AE LXXXII: Request For Discovery, Dr. MacDonell's Interim Forensic
Report, Dr. MacDonell's CV, Dr. MacDonell's email to lead trial counsel, Captain
Poirier. Attachments to Response to Defense Motion for a Mistrial AE LXXXIII:
Approval of Defense Expert Tom Bevel, Defense Request for Scene Reconstruction
Expert Tom Bevel with CV, Approval of Defense Expert Dr. Radelat, Defense Request
for Forensic Pathology Expert Dr. Radelat with CV, Government Request for
Appointment of Crime Scene Reconstruction Expert Dr. MacDonell, Government
Witness List, CPT Poirier email of Government Witness List, Dr. MacDonell's
Interim Forensic Report, CPT Poirier email of Interim Report to Defense Counsel,
Dr. MacDonell's email to CPT Poirier, Dr. MacDonell's telephonic testimony.
misunderstanding of his telephonic testimony by means of a sworn

affidavit. 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 none of the three trial counsel ever

testified to contradict the testimony of what Dr. MacDonell swore

happened at the Wednesday demonstration with SGT McCauley,

witnessed by Dr. Berg, the three trial counsel, and others. Nor did

any of them file an affidavit to controvert Dr. MacDonell's

testimony or his affidavit. Dr. Berg never testified or submitted

an affidavit to contradict Dr. MacDonell's testimony and affidavit

about the demonstration on Wednesday, or that on Thursday Dr.

MacDonell was sitting next to Dr. Berg in the courtroom and leaned

over and told him after hearing 1LT Behenna's recollection of the

shooting, "that's exactly what I told you yesterday." R. 1462. No

government witness testified or submitted an affidavit to

contradict Dr. MacDonell's testimony and affidavit that he told the

prosecuting group as he was leaving the courthouse to return to New

York, "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 of

a definitive opinion," GB 27, that the military judge found that

Dr. 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

demonstration), GB 16-17, and on Friday (when they told lead

defense 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 evidence

introduced in the trial court is disingenuous. See GB 15 n.98; 16

n.104; 17 n.112; 21 n.136; 32 n.198; 35 n.213-14.6 Many of the

military judge's Findings of Fact are unsupported by the record,

and the Government cannot bootstrap a factual foundation for the

arguments in its Brief by citing the military judge rather than

evidence in the record.

A party which fails to call witnesses under its control or

offer other evidence it would be expected to use to establish its

position must be held to concede the point in question - such a

failure gives rise to the presumption that the evidence "would be

unfavorable to that party." United States v. Wilson, 322 F.3d 353,

363 (5th Cir. 2003). The bottom line: the Government put on zero

evidence from witnesses in any form on the Motion for Mistrial or

Motion for New Trial. There is no way it carried its burden of

proof on the Brady issue beyond a reasonable doubt.

6 To support its claims, the Government also repeatedly cites

exclusively 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; 65
n.359.
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 the

right rib cage, under the right arm. The other entry wound was to

the right temple. R. 623-24.

The Government asserts to this Honorable Court 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 his

opinion as to whether or not Mr. Mansur was standing when he was

shot." GB 15. The Government further states that "Dr. Radelat also

conceded that it was not impossible for Mr. Mansur to be sitting

and falling over as he was shot when comparing this to the

trajectory 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 the

Government cites reveals that Dr. Radelat was responding to

questions from the military judge regarding only the horizontal

nature of the wounds on the deceased. R. 970-72. In response to

hypotheticals the military judge posed dealing with the wound

trajectories, Dr. Radelat responded:

Q.[MJ] I guess the purpose of the questions are, you're

basing your opinions—well, let me put it this way, is
there anything inconsistent with an individual who is
sitting, falling over, and the trajectory of the bullets
through the body and through the head as you understand
them?
 A. Well, the person would have to fall to the left to
start with, to expose his right side. He would have to
be, I suppose, at least at a 45 degree angle from the
vertical.

Q. Well what I am asking you, sir, is there anything

inconsistent with that fact-pattern, with the evidence as
you understand it?

A. I guess, Judge, the only (sic) that I can really say

is that it is a contorted scenario, which is not
impossible by the rules of physics, but I do think it
kind of offends probability and maybe commonsense to some
extent.

R. 972. This hypothetical scenario was based solely on the wound

trajectories without taking into account the other forensic

evidence, such as the blood pattern and final resting place of the

body. The very next questions defense counsel asked of Dr. Radelat

were:

Q. [CDC1] Dr. Radelat, in the course of the materials that

you reviewed, you reviewed the video taken at the scene?

A. I did.

Q. And in there you were able to see the final resting

position of the body?

A. Yes.

Q. And would that have an effect in answering the judge's

question of if someone were seated and leaning backward
so that a pistol round would go and create a horizontal,
which direction would you expect, if that happened, that
the body would have fallen?

A. Yeah, I think by any law of physics, the body would

fall backward.

Q. And which way did the body fall, according to the

video that you saw?
 A. Well, it didn't fall backwards. It went forward
slightly 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 in

a seated position on a rock when he was shot. GB 16. This infers

that the bloodstain evidence alone could serve 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 been

seated on a rock when he was shot based on all of the forensic

evidence he reviewed. Mr. Bevel's response to trial counsel's

question was clearly limited to the bloodstain evidence, without

taking into account the wound trajectories and final resting place

of the body:

A. If you only consider the bloodstains, the bloodstain

trail and no other information, I would have to agree
with that.

R. 1010.

The Government makes the same error with respect to the

position of the body. GB 16. What the record actually reflects is

that the military judge asked Mr. Bevel whether the positioning of

the body in photos and video was inconsistent with the deceased

having been shot from a seated position:

A. Considering

Q. And I'm only referring to the positioning of the body.

10
 A. only his body. Okay, if we only consider the body,
no.

R. 1016-17.

Of course, when one considers the horizontal trajectory of

both wounds, the conclusion would change. Contrary to the

Government's assertion, neither expert ever testified that based on

all of the forensic evidence "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" for

this proposition. GB 16. Not only did the defense experts not

testify as the Government claims on the pages cited, they weren't

even asked questions regarding the sequencing of the shots on those

pages. R. 971-72, 1003.

Contrary to the Government's contentions, when considering all

of the evidence, both Dr. Radelat and Mr. Bevel were certain in

their conclusions: Dr. Radelat testified that based on the autopsy,

Ali Mansur was shot first in the right side of the chest while

standing, with his right arm not in the bullet track, and then in

the side of his head as he instantly fell to the ground. R. 959-62.

Mr. Bevel testified that based on the blood stains and other

forensic evidence, the best explanation for the location of the

wounds on Ali Mansur and the pattern of the blood depicted in scene

photographs was that Ali Mansur was standing when shot first in the

11
chest, and that his right arm was raised because it was not in the

flight path of the bullet that entered the side of his right rib

cage. R. 980-83.

2. The Government Misrepresents the Testimony of the

Government Expert (Dr. MacDonell)

The Government states, "At the end of the proceedings on

Wednesday, 25 February 2009, Dr. MacDonell still held the opinion

that there were a multitude of possibilities, but believed that Mr.

Mansur was "not standing when the [sic] shot through the head." GB

17. Dr. MacDonell's actual opinion was:

. . . I said the only thing that I can come up with

consistent with all of the facts as I know them would be
that he probably was shot in the side with his arm up—in
the chest or side, and then as he dropped straight down
the bullet went through his head because he passed in
front of the muzzle at the exact moment, though extremely
unlikely that that's [what] happened.

R. 1463.

Next, the Government states that "Dr. MacDonell opined that

the crime scene did not lend itself to detailed interpretation and

disagreed with the defense experts' opinion that the victim was

standing when he was shot." GB 25. The record does not contain any

statement by Dr. MacDonell that he disagreed with the defense

experts' opinion that Ali Mansur was standing when shot.

Finally, the Government states as fact to this Honorable Court

that Dr. MacDonell testified that 1LT Behenna fired down at Ali

Mansur while he was in a seated position. GB 25-26. Dr. MacDonell

actually testified:

12
 That the only explanation for the two horizontal shots
would be if they were fired in the same trajectory with
one being fired higher than the other. And either the
shot was fired down at the ribs or the body and that the
head dropped down in line with the pistol, or the shot
was fired in the head first and then really, really
quickly he dropped down to the body before it fell and
shot again, which seemed extremely unlikely. So, I felt
the horizontal trajectories and the horizontal nature of
the trajectories would mean that he was shot first in the
ribs 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 Clearly
Erroneous

The Government asserts that the military judge found Dr.

MacDonell's affidavit to be not credible. GB 41. In fact, the

military judge only found one statement contained in the affidavit

to be not credible. AE XCV. The military judge did not question

anything else in the affidavit.

ILT Behenna respectfully submits that the military judge

misconstrued Dr. MacDonell's testimony about his conversation with

the prosecutors after he heard ILT Behenna' s direct examination and

before he left to return to New York. Dr. MacDonell testified that

he made his comment to Dr. Berg In the courtroom, and continued,

"He [Dr. Berg] was in there. And as I was leaving, I told the

prosecuting group, I said, *That was just exactly what I told

you.'" R. 1462 (emphasis added). Additionally, Dr. MacDonell

testified:

13
 Q.[ATC1] Dr. MacDonell, the information that was
contained in your email from yesterday

A. Yes.

Q. The opinion that is written there, you never provided

that to government counsel in that way, did you?

A. I didn't write it down. All I did was explain It on

Wednesday and my possibility of what occurred and then on
Thursday as I was leaving I mentioned It again that that
was exactly what I said, and I know that there is no
reason for me to stay to do that. I would have to be
there another day at least, and you were very graciously
allowing me to return even though I had these mixed
emotions as to whether I should stay or not. But my wife,
I could not leave her alone last night and I didn't—or
on Thursday night.

Q. What I am asking is—I understand the demonstration

and that whole conversation on Wednesday, but as far as
all of the different opinions that are listed in that
email, you never communicated that to us that way?

A. Well, I think I did. I said these are the things that

are consistent. If this is the way that it happened then
it 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 the

hearing and found this single statement in the affidavit to be not

credible. AE XCV. This finding is clearly erroneous.

It is clear from Dr. MacDonell's testimony and affidavit that

there were two separate conversations on Thursday in the courthouse

during which he told members of the prosecution team that ILT

14
Behenna's testimony was consistent with the Wednesday

demonstration: he told Dr. Berg in the courtroom (and no one else

in the courtroom) , and then later as he was leaving, he told the

trial counsel in their office. Because the military judge

apparently did not understand the testimony that way, Dr. MacDonell

submitted his affidavit to state exactly where and when the

conversation with trial counsel occurred. This information did not

conflict with his testimony, it merely added detail in an effort to

correct the military judge's misunderstanding.

C. Inaccurate, Conflicting, and Conclusory Statements in the

Government's Brief.

There are no record cites for the repeated conclusory

statement that Dr. MacDonell's opinion was "prompted solely by

appellant's testimony" or that ILT Behenna's testimony was the

"sole catalyst behind" Dr. MacDonell's opinion. GB 30, 31; see GB

27, 32, 35. The reason is that there is no factual basis for that

claim. The day before ILT Behenna testified, Dr. MacDonell had

demonstrated to the prosecution team, including its expert

assistants, the only logical explanation for the shooting. R. 1463-

64; MacDonell Affidavit. When questioned by the military judge, Dr.

MacDonell made It clear he had adopted and expressed the same

opinion on Wednesday. He merely did not realize how favorable to

the Defense It was until he saw ILT Behenna demonstrate the

shooting on Thursday:

15
 Q. [MJ] If you had testified on Wednesday, prior to
hearing Lieutenant Behenna's testimony, what would your
conclusions have been?

A. Well, I would have the same conclusions, but I would

not 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 meeting—I am trying to

understand the—I am trying to understand where your
opinion was as of Wednesday as it relates to your
analysis of the evidence and opinions you were providing
to the government. As of Wednesday, what was your
conclusion as to the most likely fact pattern?

A. Well, there would have been exactly what I have just

been saying, but I would not have been as sure—well, I
don't think sure is the right word. I would not have been
as concerned until I heard the defendant testify because
I thought he was acting out what I had just done . . .
So, the moment I saw what he did, I thought, "Well, maybe
this guy is telling the truth after all and maybe he
didn't—it didn't happen that way."

...[I]t was only triggered by seeing him testify, or

hearing him and his explanation. I think he put his arms
up showing that Ali was supposedly reaching for his gun
and so on, and it kind of concerned me because I thought
in the interest of justice I ought to do something. And
I asked—As I said, I came back and I talked to a Supreme
Court Judge that is a friend of mine, and I talked to an
attorney, and they both advised me that I should do
nothing, but possibly it would relieve my conscious [sic]
if I sent an email to the prosecution and reminded them
that this certainly could be Brady material.

R. 1476-77. It is clear that when he said "It was only triggered,"

Dr. MacDonell was referring to his concern that he thought he ought

to do something. He sent the email. He did not state that a

"revised" or "new" opinion was triggered.

16
 Before court on Thursday morning, Dr. MacDonell examined the

deformed 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 his

comments to the "prosecuting group" as he left the courthouse on

Thursday, "That was just exactly what I told you." R. 1462:

The horizontal trajectories of both shots through the body

as found on autopsy. R. 1478; MacDonell Affidavit.

The fact that the bullet was deformed from impacting the
concrete wall. R. 1472; MacDonell Affidavit.

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

Affidavit.

The testimony of the Defense experts. R. 14 69; MacDonell

Affidavit.

The testimony of ILT Behenna. R. 14 62; MacDonell Affidavit.

The opinion of an expert witness unquestionably can be and

very often is based on the testimony of other witnesses. "The facts

or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the

expert, at or before the hearing." Manual for Courts-Martial, United

States, Mil. R. Evid. 703 (2008) (emphasis added) . That is why experts

are permitted to sit in the courtroom during testimony of other

witnesses.

Further, it should be noted that the Government's Brief

describes Dr. MacDonell's "only logical explanation" opinion as a

"revised" opinion at pages 21-22, 28, 30-33, 35-38, 40 and 42, yet

17
takes the position that his opinion "never changed" and it was not

a "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 the

members that "the forensics were clear" at page 1411 of the record.

Counsel for ILT Behenna agree with the latter assessment - the

forensic scene construction experts, Tom Bevel and Herbert

MacDonell, and the forensic pathologist, Paul Radelat, clearly

testified that "the best explanation" (Bevel and Radelat at trial)

and "the only logical explanation," (MacDonell on the Motion for

Mistrial and Motion for New Trial) of the physical evidence is that

Ali Mansur was shot first in the rib cage while standing with his

right arm outstretched and shot second in the temple as he fell. R.

956-62, 980-83, 1463; MacDonell Affidavit. Contrary to the

Government's assertion, Dr. MacDonell never changed his opinion.

After he became aware of all of the forensic evidence, the only

thing that ILT Behenna's testimony triggered was Dr. MacDonell's

belief 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 to
the Prosecutor.

The Appellant's Brief sets out the law regarding what

knowledge is imputed to the prosecutor. AB 21-24, 31-33. The

7 The Government also completely ignores the ethical duty imposed by

U.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 are
giving to this type of discovery violation. See AB 30-31.

18
Government apparently concedes this point by its reference to Dr.

MacDonell as one of its "expert assistants," which would include

Dr. Berg and Dr. Ricky Malone (a psychiatrist who, like Dr.

MacDonell, was present but did not testify). GB 15-18. The

Government considers these expert assistants part of "the

prosecution." GB 16-17 n.110.

This Honorable Court should apply the principles of United

States v. Mahoney, 58 M.J. 346, 348 (C.A.A.F. 2003), and reach the

conclusion that the favorable information possessed by Dr.

MacDonell and Dr. Berg is to be imputed to trial counsel. This

would be true even if somehow one believes that Dr. MacDonell and

Dr. Berg did not recognize the favorable character of this

information until after ILT Behenna testified on Thursday. At that

point, the trial was still underway. It is emphasized that lead

defense counsel made a specific request for this information at the

first opportunity before court resumed Friday morning,8 before

instructions 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 Government

from 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 Government

abandoned the position it took at the trial level that this whole problem was the
fault of defense counsel. R. 1620-21, 1673-74, 1679, 1682, 1688;AE LXXXIII;
AEXCIV.

19
military judge granted that motion. R. 257. Yet, the Government

asserts 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 his

Article 31 and Fifth Amendment rights, which is prohibited at trial

and on appeal.

F. The Bedrock Principle for Evaluating a Bradv Violation Is

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

Rather than an appellate court trying to determine whether the

evidence supports a conviction, despite the failure to disclose

favorable information, the Court of Appeals for the Armed Forces

has held that the issue is whether the failure to disclose that

information deprived the accused of a fair trial. United States v.

Webb, 66 M.J. at 92 (quoting Kyles, 514 U.S. at 434-35). The

Government 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 opinion

from the Government's own witness flatly contradicting the

prosecution theory and confirming the defense theory. Favorable

information is discoverable whether it goes to guilt or to

punishment, and it is clear that the non-disclosure in the case at

9 Kyles v. Whitley, 514 U.S. 419, 434-35 (1995) {an accused

demonstrates a Brady violation by "showing that the favorable evidence could
reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.").

20
bar deprived ILT Behenna of a fair trial at both phases. Kyles, 514

U.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), indicating

how significant the impact of an additional witness may be on a

critical issue, such as impeachment of a prosecution witness. Dr.

MacDonell's testimony would not have been cumulative. Confirmation

from the Government's expert of the two Defense experts and ILT

Behenna himself on the core factual dispute at trial very likely

would have made the difference between the members finding that Ali

Mansur was killed while sitting on a rock or finding that he was

shot in self-defense as he rose to a standing position and reached

for ILT Behenna's pistol with his right arm after trying to

distract the Lieutenant by throwing a piece of concrete at him.

In addition, the Government completely failed to address this

Honorable Court's controlling opinion in United States v. Adens, 56

M.J. 724 (Army Ct. Crim. App. 2002), holding that there is also a

statutory basis for disclosure under Article 4 6, UCMJ. It also

minimized in a footnote the recent persuasive authority from a

sister court in United States v. Mott, No. 200900115, 2009 WL

4048019 (N.M. Ct. Crim. App. 24 Nov. 2009)(unpub.). GB 26, n.166.

These cases support ILT Behenna's contention that he did not

receive a fair trial at either stage of the court-martial.

21
 REPLY TO GOVERNMENT BRIEF ON ISSUE
IV (IMPROPER TRIAL COUNSEL ARGUMENT)

The Government contends that the trial counsel's closing final

argument was proper and that it did not materially prejudice ILT

Behenna's substantial rights. GB 43. The gist of the argument is

that the trial counsel "argued reasonable inferences raised by the

evidence" and therefore did not argue facts that she knew or had

strong reason to believe were false, and that she was merely

responding to the defense closing argument. GB 44.

A. The Government Misstates the Facts and the Law.

The Government states that, "appellant incorrectly categorizes

expert opinion testimony as ^fact.'" GB 47. A review of the cited

pages of the Appellant's Brief indicates that no such claim exists.

Those pages of the Brief refer only to Dr. MacDonell's "undisclosed

opinion" and the "forensic evidence" (referring to his opinion). AB

49-50.

Further, referring to Dr. MacDonell's opinion, the

Government's rendition of Dr. MacDonell's testimony is misleading

when it states, "he doesn't remember sharing this statement with

the prosecutors during trial." GB 47-48. See discussion at p. 13-

14, supra. Dr. MacDonell further clarified the chronology in his

affidavit, which states:

. . . I reminded them that although the scenario I had

presented to them the day before was unlikely, it still
was the only theory I could develop that was consistent
with the physical evidence. It was also exactly the way

22
 [1]LT Behenna had described the events. Their reaction
was noticeably cold.

MacDonell Affidavit.

The Government infers that the trial counsel was ethically

free to ignore that opinion and argue a contradictory explanation

of how the events unfolded simply because the members were the

factfinders. GB 47-48. To the contrary, the law forbids such an

argument. United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir.

2009) ("it is improper for the government to present to the jury

statements or inferences it knows to be false or has very strong

reason to doubt.") (emphasis added). When the Government's own

expert was aware and told the members of the prosecution team what

the most logical series of events were, the trial counsel's

argument to the contrary was not a reasonable inference from the

evidence and was improper.

B. There is No Evidence in the Record of Trial Counsel's Thought

Process.

The Government also repeatedly and improperly refers to facts

not in evidence on this issue. Some examples of the Government's

attempts to proffer trial strategy and other information not in the

record to this Court:

"Not realizing why Dr. MacDonell had told defense counsel

he would have made a ^great witness' for them, the
prosecution responded that they had turned over all
exculpatory evidence." GB 18, citing defense counsel
argument on the Motion, oral stipulation of fact that
defense counsel made a specific request for favorable
information, the military judge's Findings of Fact, and

23
 the Government's response to the Motion for Mistrial
(emphasis added).

"By the end of the meeting, it was clear that no single

fact pattern could prevail and a multitude of
possibilities remained, of which Dr. MacDonell's
hypothetical was only one." GB citing the Government's
response to the Motion for Mistrial (emphasis added).

"Given their expert's lack of a definitive opinion, the

Government decided not to call him as a witness and
rested their case on Wednesday." GB 27, citing the
Government's response to the Motion for Mistrial,
argument on the Motion for Mistrial, and the military
judge's Findings of Fact (emphasis added).

"When the Government first learned of Dr. MacDonell's

*new' opinion on Friday 27 February 2009 via email, the
prosecutor immediately forwarded it to defense." GB 30,
citing trial counsel's argument on the Motion for
Mistrial, Dr. MacDonell's email to trial counsel, and the
Government's response to the Motion for Mistrial
(emphasis added).

"The record shows that Dr. MacDonell's opinion on

Wednesday, 25 February 2009, had not changed, and that he
only changed his mind after appellant's testimony on
Thursday, 26 February 2009, which was unknown to the
Government until receiving his email on Friday, 27
February 2009." GB 32, citing Dr. MacDonell's testimony
on the Motion for Mistrial(emphasis added).

"For these reasons [that Dr. MacDonell presented multiple

hypotheses to the prosecution], the prosecution did not
call Dr. MacDonell as a witness . . ." GB 48, with no
citation to the record (emphasis added).

There is not one shred of evidence - no testimony, no

affidavit, no stipulation - about the knowledge the trial counsel

had, when they learned of certain information, or why they did or

did 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

24
appellate brief what the trial counsel allegedly were thinking,

when the Government made affirmative decisions, when given the

opportunity, not to call even one of the trial counsel to testify

to inform the military judge of their trial strategy or to submit

an affidavit to controvert Dr. MacDonell's affidavit. This

Honorable Court should disregard such self-serving and improper

statements.

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 was

shot." GB 49. This statement takes the testimony of Dr. Radelat and

Mr. Bevel completely out of context. See discussion of this claim

at pp. 8 to 12, supra.

D. The Trial Counsel's Misleading Statements were Improper.

Trial counsel argued that, "I think the forensics were clear"

and that "it's almost impossible to conclude either that [Ali

Mansur] was sitting or standing," R. 1411 knowing all the while

that all three forensic experts agreed that he was standing. Trial

counsel argued that her story was reasonable and ILT Behenna's was

unreasonable. Id. Ironically, she asked the members to "look at all

of the evidence" knowing that she withheld compelling evidence that

ILT Behenna's account of the events was the most logical one, and

consistent with all three forensic opinions. R. 1412.

25
E. Prejudice.

The Government argues that there was no harm resulting from

this argument by attempting to apply the factors the Court of

Appeals for the Armed Forces set forth in United States v.

Erickson, 65 M.J. 221, 224 (C.A.A.F. 2007) (citing United States v.

Fletcher, 62 M.J. 175, 184 (C.A.A.F. 2005)) (severity of the

misconduct, measures adopted to cure the misconduct, and the weight

of the evidence) . The Court initially stated, "We look at the

cumulative impact of any prosecutorial misconduct on the accused's

substantial rights and the fairness and integrity of his trial..."

and then after listing the three factors, continued, "We consider

the Fletcher factors to determine whether trial counsel's comments,

taken as a whole, were so damaging that we cannot be confident that

Erickson was sentenced on the basis of the evidence alone." Id.

(citations and quotes omitted). The significance of this additional

language is that this Honorable Court must determine whether ILT

Behenna had a fair trial and was convicted and sentenced on the

evidence. Given the disputed facts of the instant case, the

misconduct was severe,10 no measures were taken to cure the

misconduct, and the actual evidence was far from overwhelming.

10 The Government claims that ILT Behenna's complaints involve only five
pages of a 29-page argument. GB 54. This is misleading. Lead trial counsel only
argued the Government's rebuttal argument, and this argument - the one that was
improper - is contained in only ten pages of the record. R. 1404-13. ILT Behenna
submits that error occurred on pages 1407, 1410, 1411, 1412, and 1413 - half of
the pages of the argument at issue.

26
 Additionally, Erickson is distinguishable factually in that it

was a case before a military judge alone, and the issue was an

inflammatory sentencing argument. In the case at bar, the issue is

an improper argument to members during the guilt or innocence stage

on the central issue in the case.

The Government's claim that there was no harm because the

military judge instructed the members that counsel's arguments were

not evidence, GB 53, does not save this improper argument. Under

that theory, this Honorable Court could never find error that

occurred during argument, because that instruction is given in

every members case. The conviction and sentence in this case

illustrate what can happen when the Government falls to disclose

highly favorable information to the Defense and then unfairly

capitalizes on that failure in argument to the members. This Court

should not condone or tolerate such conduct.

The trial counsel's improper argument harmed ILT Behenna

independently and exacerbated the Brady error discussed supra, and

caused material prejudice to ILT Behenna's substantial rights.

REPLY TO GOVERNMENT BRIEF ON

ISSUE V (SELF-DEFENSE INSTRUCTION)

The Government accuses ILT Behenna of misconstruing the

self-defense instruction and ignoring the facts in evidence. GB 59.

The Government mischaracterizes the instruction by selectively

focusing on portions of the instruction, rather than reading the

27
plain language of the instruction as a whole, especially

considering the evidence admitted at trial.

A. Erroneous Limiting Instruction on Self-Defense.

1. Requirement to find escalation, even if no assault.

One fatal flaw in the limiting instruction is that it fails to

recognize there were four independent circumstances under which ILT

Behenna had the right to self-defense. The instruction should have

been given in the disjunctive, i.e, "if you have a reasonable doubt

that the accused 1) assaulted Ali Mansur, or 2) was provoked by Ali

Mansur, or 3) had some other legal justification or excuse, or 4)

you are not convinced beyond a reasonable doubt that Ali Mansur did

not escalate the level of force, then you must conclude that the

accused had the right to self defense." Instead, the military judge

instructed that methods 1, or 2, or 3, and 4 were required to have

the right to self-defense. In other words, what was required was

any one of the first three, plus the fourth. That is not the law.

Escalation was "linked" to the other ways ILT Behenna could

act in self-defense and thus the members were required to find such

escalation in order to find that self-defense applied. Under the

instruction actually given, even if the members found no assault,

they were nonetheless required to find escalation in order to

conclude that ILT Behenna had the right of self-defense.

28
 2. No instruction on withdrawal from the conflict

The Government argues that omission of an instruction

regarding withdrawal was harmless because the issue did not apply

in this case, due to the fact that ILT Behenna "orchestrated an

unauthorized interrogation" in the culvert. GB 64. This is

incorrect. How and why the parties arrived at their location is

irrelevant - the question is whether after Ali Mansur threw the

piece of concrete and reached for ILT Behenna's weapon, there was

an opportunity for ILT Behenna to withdraw before firing in

self-defense. There was no such opportunity reasonable under the

circumstances as ILT Behenna perceived them, and he clearly fired

in self-defense.

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

1. The Military Judge's Instruction Regarding Assault

The 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 of

the instruction that said, "Now there exists evidence in this case

that the accused may have been assaulting Ali Mansur immediately

prior to the shooting by pointing a loaded weapon at him." R. 1317.

(emphasis added). Without listing the elements of an offer type of

assault, the military judge gave the members two choices:

1. to find an assault if they find that ILT Behenna pointed

the weapon at Ali Mansur; or

29
 2. to find no assault if they find that ILT Behenna did not
point 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 Behenna

assaulted Ali Mansur, then ILT Behenna was not entitled to

self-defense unless they found escalation. R. 1317.

2. No Evidence Regarding Unlawfulness

The Government claims that the evidence proved that the

pointing was unlawful (and therefore an assault), and agrees with

the military judge's conclusion that "overwhelming evidence" proved

that ILT Behenna was assaulting Ali Mansur prior to the shooting.

GB 21, 29, 35, 36, 38, 41, 61. To support this contention, the

Government improperly seeks to fill the void of a total lack of

evidence of unlawfulness by stating: "appellant admits that he had

no authorization to either take Mr. Mansur to the culvert or to

point a loaded weapon at him." GB 61. In actuality, ILT Behenna

testified that he used a graduated effort to get Ali Mansur to

answer his questions about the terrorist cell operating in his area

of operations. He had removed Ali Mansur's clothing to use the

humiliation technique, which had not resulted in answers to his

questions. He acknowledged that he should not have done that. R.

1226-27. He then pulled out his pistol in order to scare Ali Mansur

and obtain the information. It was not an "authorized standard

30
operating procedure type of technique," and it was a "bad

decision." R. 1231-32.n

The Government had the burden of proving unlawfulness, yet

trial counsel failed to present any testimony, lay or expert, about

whether the law of war, the rules of engagement, or any lawful

order permitted or forbade such actions. The Government failed to

meet its burden at trial to prove the element of unlawfulness of

ILT Behenna's actions in pointing the weapon at Ali Mansur.

Therefore, the military judge's conclusion that the evidence of

assault was "overwhelming" was clearly erroneous, and the

instruction unconstitutionally relieved the Government of the

burden of proving a required element.

C. Prejudice.

The erroneous instruction extinguishing ILT Behenna's right to

self-defense prejudiced him because it took away his defense

completely. Additionally, in defending the military judge's denial

of the Motion for Mistrial and Motion for New Trial filed based on

the Brady claims, supra,12 the military judge and the Government

relied upon the incorrect assumption that ILT Behenna forfeited his

11 The Government misstates the record by referencing ILT Behenna's "own

unsubstantiated belief that Mr. Mansur was a terrorist." GB 66 n.360 (emphasis
added). As set forth in the Appellant's Brief, there was ample evidence from many
sources that Ali Mansur was involved in terrorist activities, and ILT Behenna
knew this. See AB 2. The Government concedes this point - Mansur "was linked to
a terrorist cell operating in Salaam Village." GB 3 (citing testimony regarding
an intelligence report).

12 The military judge went so far as to say that the undisclosed

evidence could not have changed the finding on murder. AE XCI. That is
clairvoyance.

31
right to self-defense. The Government cannot show, as it must to

prevail, that this error was harmless beyond a reasonable doubt.

United States v. Lewis, 65 M.J. 85, 87-89 (C.A.A.F. 2007)

(citations omitted).

REPLY TO GOVERNMENT BRIEF ON

ISSUE VII (MANSLAUGHTER INSTRUCTION)

The Government focuses on the fact that the Defense did not

request a voluntary manslaughter instruction. GB 74. However, this

fact is irrelevant, since the military judge had a sua sponte duty

to give the instruction based on the evidence presented at trial.

United States v. Ober, 66 M.J. 393, 405 (C.A.A.F. 2008); United

States v. Gutierrez, 64 M.J. 374, 376-77 (C.A.A.F. 2007); United

States v. Davis, 53 M.J. 202, 205 (C.A.A.F. 2000).

The Government's contention is that the military judge had no

such duty, since, in its view, the facts did not raise the issue.

GB 74. Specifically, the Government claims that Ali Mansur throwing

a 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, the

Government argues that even if they constituted provocation, these

actions did not "rise to the level of ^unlawful infliction of great

bodily harm' or as actions that would ^excite uncontrollable

passion'" because neither the concrete nor Ali Mansur "touched" ILT

Behenna. GB 76.

32
 ILT Behenna respectfully but strongly disagrees. The rule is

that if any evidence supports an instruction, the military judge

must give the instruction to the members. The fact that the

Government finds the evidence not credible is irrelevant.

A. Requirements for Voluntary Manslaughter.

The Court of Appeals for the Armed Forces noted that:

The elements the Government must prove for voluntary

manslaughter are, somewhat paradoxically, identical to
those of unpremeditated murder. Compare para. 44b (1) with
para. 43b(2), Part IV, Manual, supra. The difference
between the two offenses is that if, notwithstanding the
accused's intentional state of mind, he kills while "in
the heat of sudden passion caused by adequate
provocation," what would otherwise be unpremeditated
murder is mitigated to voluntary manslaughter. This
latter mental state, though part of the statutory
definition of the offense, is neither an element that the
Government must prove nor an affirmative defense that the
defense must prove. Once raised, however, the Government
must disprove it beyond a reasonable doubt.

United States 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. ILT

Behenna's objective was to question Ali Mansur, R. 1225, not to

engage him in a struggle for ILT Behenna's weapon. ILT Behenna

testified that he only wanted to get information from Ali Mansur

before returning him to his home. R. 1214, 1225.

33
C. Sudden Passion - Fear or Rage.

An objective and reasonable person certainly would be very

fearful if an insurgent, especially one he believed had previously

been involved in plans to kill and injure his soldiers, threatened

him by throwing a rock and trying to get control of the person's

loaded weapon. Such a weapon could inflict not only great bodily

harm, but death. ILT Behenna testified, "I was scared Ali was going

to take my weapon and use it on me, but this happened fast." R.

1234. Especially considering the history between these two

individuals, the combat situation, and ILT Behenna's Acute Stress

Disorder (which included an exaggerated startle reaction, R. 1133),

this would excite uncontrollable passion in a reasonable person in

this situation - in other words, it would create a reasonable fear

of imminent grievous bodily harm or death and mitigate the offense

from unpremeditated murder to the lesser included offense of

voluntary manslaughter. Thus, Ali Mansur's actions constituted

adequate provocation.

D. "Cooling Down."

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. The

Brief on Behalf of Appellant clearly states that "the adequate

provocation" was "caused by [Ali Mansur] throwing a piece of

concrete and reaching for the Lieutenant's pistol." AB 66. The

34
Government acknowledges this in the main body of its brief, GB 74,

yet argues in footnote 401 that "there was a sufficient ^cooling

down' period" between the IED attack and the shooting.

The Government references the wrong time period. There was no

cooling down period; the evidence indicates that as soon as ILT

Behenna heard the concrete hit the wall behind him and saw Ali

Mansur standing and reaching for his weapon, he fired out of fear

to protect himself - "I was scared Ali was going to take my weapon

and use it on me, but this happened fast." R. 1234.

E. Analysis of Applicable Case Law.

Controlling case law illustrates the fact that the evidence

was sufficient to require a voluntary manslaughter instruction in

the instant case. United States v. Wells, 52 M.J. 126 (C.A.A.F.

1999) . Wells had a verbal confrontation with his wife and his

wife's boyfriend at her apartment. Wells got into his vehicle, and

as he left the area, the boyfriend shot a pistol into the air.

Wells drove to his own apartment, where he retrieved a loaded

weapon and called a friend to pick him up and drive him back to his

wife's apartment complex. Id. at 127. "[The friend's] assumption

was that they were going back over to *beat the dude up or

something.'" Id. at 132 (Crawford, J., dissenting). More than 15

minutes elapsed before Wells and his friend arrived at the complex.

Id. Once in the parking lot, the argument between the men continued

after Wells shouted to the boyfriend. At one point the boyfriend

35
backed away; witnesses testified that his hands were at the chest

and shoulder level, but Wells testified that he thought the

boyfriend was reaching for his gun in the waistband of his pants.

Wells shot the boyfriend, killing him. At trial, Wells claimed that

he shot in self-defense. Id. at 128 (majority opinion).

Despite the time that elapsed between the initial

confrontation which ended with the shot in the air, after which

Wells returned to the safety of his own apartment and then came

back to the scene after at least 15 minutes with a loaded weapon

and reinitiated the argument; the conflicting testimony regarding

whether it was reasonable for Wells to have acted in self-defense

(based on where the boyfriend's hands were just prior to the

shooting) ; and the fact that Wells did not request an instruction

on voluntary manslaughter, the Court reversed because the military

judge failed to give a voluntary manslaughter instruction. Id. at

131. The Court did not find that Wells induced the provocation,

that the provocation was insufficient, or that there was an

adequate cooling down period - the Court found that "this is a case

where an entire instruction on a lesser-included offense was

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

instant case.

F. Prejudice.

The members convicted ILT Behenna of unpremeditated murder,

which, as the Court of Appeals for the Armed Forces noted, has the

same elements as voluntary manslaughter but for the "in the heat of

36
 sudden passion caused by adequate provocation" language. Schap, 49

M.J. at 319-20. Had the military judge properly instructed *the

members regarding voluntary manslaughter, the members would have

been able to evaluate whether the lesser included offense was more

appropriate than the greater offense of conviction. The failure to

give the members this option was reversible error that caused

material prejudice to ILT Behenna's substantial rights.

PRAYER

The independent and cumulative effect of the errors discussed

above deprived ILT Behenna of his right to a fair trial.

WHEREFORE, the Appellant, ILT Michael C. Behenna, prays that

the Court set aside the findings of guilty and the sentence, and

dismiss Charge II and its specification (unpremeditated murder) for

factual insufficiency; or in the alternative, without waiving the

foregoing, set aside the findings of guilty and the sentence.

Respectfully submitted,

(JACK B/ ZIMMERMANN E. PATRICK GILMAN

ead Clvil/ian Appellate Defense Counsel CPT, JA
Detailed Appellate Defense Counsel

(jEKBCL R- ZIMMERMANN
Civilian Appellate Defense Counsel

KY^E R. SAMPSON ^t YD
Civilian Appellate Defense Counsel

Zimmermann, Lavine, Defense Appellate Division

Zimmermann, & Sampson, P.C. 901 North Stuart Street, Suite 340
770 South Post Oak Lane, Suite 620 Arlington, VA 22203
Houston, Texas 77056 (703) 588-5289
(713) 552-0300 (703) 696-8100 Fax
(713) 552-0746 Fax

37
 CERTIFICATE OF SERVICE

UNITED STATES v.

Army Docket No

Brief on Behalf of
Appellant

Motion

Other V

I certify that a copy of the foregoing was delivered to the

Court and the Government Appellate Division on C&t^J^^^&C

~y

MICHELLE L. WASHINGTON
Paralegal Specialist
Defense Appellate Division
(703) 588-6023