IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

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1 05/08/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES, v. Appellee Keith E. Barry Senior Chief Special Warfare Operator (E-8) United States Navy, MOTION TO SUPPLEMENT THE RECORD Crim.App. Dkt. No USCA Dkt. No /NA Appellant TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: Pursuant to Rules 30 and 30A of this Court s Rules of Practice and Procedure, Senior Chief (SOCS) Keith Barry, USN, by and through counsel, moves to supplement the record with the following documents: 1. Declaration of RADM Patrick J. Lorge, USN (Ret.) dated May 5, Declaration of LCDR Leah A. O Brien, JAGC, USN dated May 4, Declaration of LT Christopher C. McMahon, JAGC, USN dated May 5, Mr. David Sheldon s with attachment dated May 3, In both the petition for reconsideration and motion to appoint a special master, undersigned counsel mistakenly listed this document as Declaration of LT Coli C. McMahon, JAGC, USN dated May 5, Here, it is listed correctly. LT McMahon s first name is Christopher. His middle name is Coli.

2 Pursuant to Rule 30A, good cause exists to grant this motion. These documents are relevant to SOCS Barry s petition to reconsider and motion to appoint a special master. They establish the factual basis for each and contain evidence that surfaced after this Court s ruling affirming the lower court s decision in this case. This evidence demonstrates unlawful command influence, presents several unresolved material facts, and affects the validity of the findings. Conclusion Wherefore, SOCS Barry prays that this Court will grant his motion to supplement the record. DAVID P. SHELDON Civilian Defense Counsel Law Offices of David P. Sheldon, PLLC 100 M Street SE, Suite 600 Washington, D.C Tel: (202) davidsheldon@militarydefense.com CAAF Bar No Appendices 2 JACOB E. MEUSCH LT, JAGC, USN Appellate Defense Counsel Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street SE Bldg. 58, Ste. 100 Washington Navy Yard, D.C Tel: (202) jacob.meusch@navy.mil CAAF Bar No Declaration of RADM Patrick J. Lorge, USN (Ret.) dated May 5, Declaration of LCDR Leah A. O Brien, JAGC, USN dated May 4, Declaration of LT Christopher C. McMahon, JAGC, USN dated May 5, Mr. David Sheldon s with attachment dated May 3, 2017

3 Certificate of Filing and Service I certify that the foregoing was delivered to this Court, the Appellate Government Division, and to the Administrative Support Division, Navy-Marine Corps Appellate Review Activity on May 8, JACOB E. MEUSCH LT, JAGC, USN Appellate Defense Counsel Navy-Marine Corps Appellate Review Activity 1254 Charles Morris Street SE Bldg. 58, Ste. 100 Washington Navy Yard, D.C Tel: (202) jacob.meusch@navy.mil CAAF Bar No

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8 IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED ST ATES, V. Appellee Keith E. Barry Senior Chief Special Warfare Operator (E-8) United States Navy, DECLARATION OF LCDR LEAH A. O'BRIEN, JAGC, USN Crim.App. Dkt. No USCA Dkt. No /NA Appellant TO THE HONORABLE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES: I, LCDR Leah A. O'Brien, JAGC, USN, do hereby swear and attest that the following is true and accurate to the best of my knowledge: 1. I was detailed to represent Senior Chief (SOCS) Keith Barry, USN as his trial defense counsel in connection with the subject court-martial. Mr. Jon Shelburne also represented SOCS Barry as his civilian trial defense counsel. 2. On April 27, 2017, I received third-hand information concerning the Convening Authority's decision to approve the findings and sentence in the subject case. Specifically, I was advised of the following: a. The Convening Authority, RADM Patrick J. Lorge, USN, intended to disapprove the findings. Appendix 2

9 b. CDR Dominic Jones, USN, 1 RADM Lorge's Staff Judge Advocate, tried to convince RADM Lorge to approve the findings, but was unable to do so. c. Given his inability to persuade RADM Lorge, CDR Jones contacted RADM James Crawford III, JAGC, USN, to help him convince RADM Lorge to approve the findings in SOCS Barry's case. 2 At that time, RADM Crawford was dual hatted as Commander, Naval Legal Service Command and the Deputy Judge Advocate General of the Navy. d. RADM Crawford contacted RADM Lorge regarding SOCS Barry's case and gave him advice to the following effect: "If you disapprove the findings in this case, it will ruin your career." e. LCDR Jon Dowling, JAGC, USN, was serving as the Deputy Staff Judge Advocate to RADM Lorge at the time of the SOCS Barry's case, and is a person with additional information concerning RADM Crawford's advice to RADMLorge. f. Following RADM Crawford's advice, RADM Lorge approved SOCS Barry's findings and sentence. He also made the following statements contemporaneous with his approval: 1 CDR Jones has since promoted to CAPT. 2 RADM Crawford has since promoted to V ADM and is currently serving as the Judge Advocate General of the Navy. 2 Appendix 2

10 In my seven years as a General Court-Martial Convening Authority, I have never reviewed a case that has given me greater pause than the one that is before me now. The evidence presented at trial and the clemency submitted on behalf of the accused was compelling and caused me concern as to whether SOCS Barry received a fair trial or an appropriate sentence. * * * If prejudicial legal error was committed, I strongly encourage the Appellate Court to consider remanding this case for further proceedings or, in the alternative, disapproving the punitive discharge pursuant to Article 66( c ), UCMJ thereby allowing the accused to retire in the rank that he last honorably served. 3. On April 27, 2017, I attempted to contact SOCS Barry's appellate defense counsel. On May 1, 2017, I reached LT Coli McMahon, JAGC, USN, who was SOCS Barry's appellate defense counsel. I advised LT McMahon that I had additional information concerning the Convening Authority's action in SOCS Barry's case. 4. On May 2, 2017, I had a conference call with SOCS Barry's entire appellate defense team: Mr. David Sheldon, LT McMahon, and LT Jacob Meusch, JAGC, USN. During the conversation, I advised them of the information outlined above. 5. The following day, May 3, 2017, I received additional information and relayed it to the appellate defense team: LCDR Jon Dowling contacted the Office of the Judge Advocate General (Code 13) to make an ethics-type complaint and also sought guidance concerning his professional responsibility requirements as they related to RADM Crawford' s actions in SOCS Barry's case. 3 Appendix 2

11 Pursuant to 28 U.S.C. 1746, I declare under penalty of perjury that the foregoing information is true and correct. Date: \..\ ~lmj 2,0 \t 4 Appendix 2

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15 From: To: Cc: Subject: Date: Attachments: David Sheldon Crawford, James W VADM JAG; Jones, Dominic J CAPT COMNAVSURFPAC; Dowling, Jonathan E LCDR RLSO SW, CNRSW DSJA; Lindsey, Yancy B RDML CNRSW, N00 Eldred, Joseph J CAPT OJAG, N013; King, Donald C CAPT Staff Judge Advocate, RLSO SW [Non-DoD Source] Preservation Memo ICO United States v. Barry Wednesday, May 03, :30:35 3 May 2017 Preservation memo.pdf ALL CON: Please confirm receipt of the attached memorandum regarding the preservation of evidence ICO United States v. Barry, which I am sending in my capacity as the civilian defense counsel for SOCS Keith Barry, USN. v/r David Sheldon Law Offices of David P. Sheldon PLLC 100 M Street SE, Suite 600 Washington, DC (202) (w) (202) (f) Appendix 4

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IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES

IN THE UNITED STATES COURT OF APPEALS FOR THE ARMED FORCES UNITED STATES Appellee v. KEITH E. BARRY Senior Chief Special Warfare Operator (E-8) U. S. Navy Appellant BRIEF OF AMICUS CURIAE Crim. App. No.