Army Court of Criminal Appeals

United States v. Delisfort

Here, we have what appears to be an OSTC reachback case in which the military judge dismissed the charges because OSTC counsel did not sufficiently comply with their discovery obligations and evidenced a lack of preparedness for trial. The Appellee seems to be accused in a To-Catch-A-Predator sting from September 2023. 

This case is before us as an interlocutory appeal under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862 {UCM.I]. Appellant contends the military judge abused her discretion when she dismissed the case without prejudice for discovery violations after she improperly suppressed derivative evidence, failed to articulate actual prejudice to the appellee, and selected an extreme remedy that was not just under the circumstances.

To me the facts here are more important than the application of law to facts. I have often said that the biggest problem in courts-martial is the discovery process. This case represents one of the more common problems--untimely discovery and as the MJ found, with which the Panel agrees, a failure to investigate and prepare for trial (AKA Ineffective Assistance of Trial Counsel). 

How many cases have you had, seen, or heard about where the Government produces discovery a week or so before trial, or even during trial, claiming they just found it. But when the discovery is reviewed it's clear the information was in the Government's possession for a long time?

United States v. Floyd , __ M.J. ___ (N-M. Ct. Crim. App. 2022) (CAAFlog).
United States v. Hogans, ACM 22091,  2025 CCA LEXIS 19 (A.F. Ct. Crim. App. Jan. 22, 2025) pet. pending No. 25-0119/AF, 2025 CAAF LEXIS 217 (C.A.A.F. Mar. 20, 2025) (CAAFlog).
United States v. Vargas, ARMY 20220168, 2022 CCA LEXIS 365 (Army Ct. Crim. App. Jun. 16, 2022) aff'd and remanded 83 M.J. 150 (C.A.A.F. 2023) (CAAFlog).
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In United States v. Hoefs, ARMY 20200558, CCA LEXIS 406 (Army Ct. Crim. App., Jul. 11, 2022) rev. denied 2022 CAAF LEXIS 737 (C.A.A.F. Oct. 18, 2022), ACCA opined.

"Trial counsel must exercise due diligence in reviewing not only the evidence in his or her possession, but also that in the possession, control, or custody of other government authorities, to determine the existence of discoverable information. See United States v. Simmons, 38 M.J. 376, 381 (C.M.A. 1993); United States v. Williams, 50 M.J. 436, 441 (C.A.A.F. 1999). Trial counsel is required to review "files of law enforcement authorities that have participated in the investigation of the subject matter of the charged offenses."

Anyway, back to Delisfort.

​Defense argued the government's steps to identify appellee at trial violated the Confrontation Clause. The military judge sustained the Defense's objection to any reference to [some] Clearview AI facial recognition results, ruling the evidence inadmissible as testimonial hearsay and potential undisclosed expert testimony.

The government then claimed the Clearview AI facial recognition software was not the only basis to identify appellee, after which the Defense raised discovery concerns and the military judge granted a recess.

After the recess, the Government asked to call Mrs. X telephonically, which the court noted still posed a confrontation issue. After another recess, the Government disclosed that the Clearview Al search was performed not by Ms. X as originally believed, but by a CID intelligence analyst who had not been identified or noticed to appear at trial [Ooops]. The court granted a continuance for the Government to secure the necessary witnesses [Um, we need to call a totally new witness--potentially an expert].

At a later motions hearing, Ms. X. testified that she had no contact with trial counsel before 1 July 2024. SFC also confirmed that he had not been contacted prior to that date. [ Oh dear, who was talked to about the identification?] The military judge found that on 21 September 2023, SFC had performed the Clearview AI search, sent a DPS printout identifying appellee to SAM and provided a link containing all possible matches. SAM testified that the link he received that included all of the possible matches did not work and he did not report the issue. The Government never disclosed the other potential matches to the Defense. [Some confirmation bias at work here? We got the dude we were after so don't need to check into the other possible dudes?]
. . . 
The military judge found that "the Government's lack of preparation, lack of due diligence, and negligence led to discovery violations, which amounted to a failure to comply with R.C.M. 701.

The military judge further found, that the Defense learned, through speaking to [Ms. X], that her Clearview Al search of the Accused returned [other] possible matches; and the link that includes all of the matches was provided to [SAM]. The link that included all of the matches was a surprise to the Defense.

At a minimum, the Defense could use this evidence to challenge the process used to identify the Accused, and to develop other possible defenses." As of the military judge's ruling, the Government still had not produced the other potential matches from the search. [And one can surmise not investigation was ever conducted into the other possible suspects?]

Additionally, the [military judge] addressed the Government's handling of mobile surveillance footage. On 13 February 2024, the Government provided discovery that included videos from mobile CCTV cameras. However, on or about 26 June 2024, the Government disclosed for the first time additional CCTV footage from a nearby camera and acknowledged it had only learned of that footage during a pretrial interview.

The military judge found "[t]his is evident by the fact that the Government had CCTV footage used by CID at the time of the Accused's arrest in its possession as early as 13 February 2024 [.] but thought they first learned of it on 26 June 2024 during a pre-trial interview. This supports the theory that the pre-trial interview is when the Government first learned of the CCTV footage because they did not exercise due diligence to properly look through the case file."

Although the Government claimed it had spoken to Ms. before listing her as a witness on its preliminary witness list on 20 May 2024, she testified that she had not been contacted until 1 July and would have remembered if she had been, as she is rarely called to testify.

The military judge found that Ms. 's testimony at the 13 July 2024 motions hearing "further shows the Government's lack of preparation and due diligence to even interview those included on its original witness list. Accordingly,  the court agrees with the Defense position that 'the Government's lack of preparedness was so significant that it caused not only discovery violations but also actual prejudice to the Accused.'"

The military judge also noted that the link to the Clearview Al results provided to SA was non-functional, and he never reported the issue. The military judge initially dismissed the case with prejudice, finding both speedy trial and discovery violations by the government, however, on reconsideration she reversed her ruling on speedy trial and modified her remedy to dismissal without prejudice. In assessing prejudice to appellee, the military judge found "on 13 July 2024, the defense noted that they had to reveal its trial strategy to the Government to proffer evidence in support of the Government's alleged discovery violations. This weakened the [appellee's] ability to raise specific defenses, elicit specific items of evidence, raise certain objections, and otherwise present its case. See Doggett v. United States, 505 U.S. 647, 655 (1992)[.]"
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Concluding, the military judge determined "[a] continuance was already granted in this case, and the court already sustained the Defense objection to the Government introducing the facial recognition or any results that stem from its search. Consequently, the court is of the opinion that a dismissal is just under the circumstances."

It bears repeating that 

The military judge found the government's violations included failing to disclose discovery to the defense; failing to conduct due diligence in the pretrial investigation; failing to prepare its case; failing to identify necessary witnesses to present its case; failing to interview and prepare its witnesses; failing to comply with court instructions; and failing to comply with its discovery obligations. The military judge crafted escalating remedies to incentivize government compliance, until ultimately the government's mounting failures were such that dismissal without prejudice was just under the circumstances. The military judge's remedy resets the playing field, reestablishes equal opportunity to obtain evidence and witnesses, and provides the defense adequate time to prepare for trial.

BL, the appeal was denied. 

There's a bottom line that's been expressed before. Neither party should ever rely solely on the MCIO ROI, it can be biased, inaccurate, not sufficiently in depth, etc., etc., etc.

Cheers.

Yes, AI posting is gone. :)