In what looks like one hot mess of a case, the NMCCA finds that Article 62 authorizes a Government appeal of “the military judge’s decision to deny the Government’s request for an overnight recess and then sua sponte resting the Government’s case over its objection.” United States v. Vargas, No. 201300426 (N-M.Ct.Crim.App. Feb. 28, 2014) (link to unpub. op.).
The appellee is a Marine Staff Sergeant and the case is a special court-martial with members for a single specification of assault consummated by a battery. Trial began on October 22, 2013, and was docketed for three days. The Government planned to call seven witnesses; four on the first day and three on the second day. But “[o]n day one of the appellee’s trial, empanelment of the members was completed by noon and the testimony of the Government’s first four witnesses concluded at approximately 1400.” Slip op. at 2. The other three witnesses weren’t available yet, and so the Government requested a recess until the next morning. The Defense opposed the request, and the military judge denied the request. Then the follow exchange took place:
MJ: So your motion is denied. Do you have anything else?
TC: Yes, ma’am. Given that ruling by the military judge, at this time, the government intends to offer – to exercise its right to an interlocutory appeal under Article 62 of the Uniform Code of Military Justice. The government intends to provide 72-hour written notice to the military judge upon recess from this court.
MJ: You may do so. But, I am not obliged to continue the case while you do that, and I am declining to exercise that continuance so that you may do that. You may do it simultaneously with this case, but we are going to proceed.
Slip op. at 3. Notably, R.C.M. 908(b)(1) states: “After an order or ruling which may be subject to an appeal by the United States, the court-martial may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel requests a delay to determine whether to file notice of appeal under this rule” (emphasis added). More on this in a moment.
The members were recalled and the military judge rested the Government’s case. The Defense immediately also rested, and then the Defense moved for a finding of not guilty under R.C.M. 917 based on the inadequacy of the case presented by the Government up to that point (though one would think four witnesses would be enough to prove a battery…). But the judge denied the Defense motion.
The judge then acknowledged the requirement of R.C.M. 908 and recessed the case for the Government appeal. But the Government didn’t appeal. Rather, it moved for reconsideration. The next morning (presumably with the three witnesses available and ready to testify) “the military judge made findings of fact and reaffirmed her earlier decision denying the Government’s request to recess the trial.” Slip op. at 5. That would be the recess that would have run from the afternoon before to that very morning (had it been granted, of course). Then the Government appealed. And now the CCA grants the Government appeal.
The CCA begins its analysis by noting the jurisdictional limitations within the text of Article 62:
Limited in scope, Article 62 provides in part that the United States may appeal an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification, or which excludes evidence that is substantial proof of a fact material in the proceeding.
Slip op. at 6. The court concludes that this case meets the Article 62 criteria because:
By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.
Slip op. at 9. The court then considers the fact that the Defense motion for a finding of not guilty was denied, and comes to a puzzling conclusion:
Finally, we summarily dismiss the appellant’s [sic] argument that the witnesses in question were not necessary to the Government’s case because the military judge denied the defense motion for a finding of not guilty in accordance with R.C.M. 917. We note that the quantum of proof required for the Government to withstand an R.C.M. 917 motion was “some evidence,” vice the proof beyond a reasonable doubt required for a conviction.
Slip op. at 10 (emphasis added). During normal post-trial review, a 917 motion is reviewed as a question of the legal sufficiency of all of the evidence presented during the trial (see R.C.M. 917(g)). And “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient.” United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (link to slip op.). But the CCA seems to believe that even without any additional evidence, a 917 motion should be denied whenever there is “some evidence,” even if that evidence definitively does not amount to proof beyond a reasonable doubt. Put differently, the NMCCA thinks a military judge should knowingly allow members to return a legally insufficient finding of guilty. Scary.
Still, while the court’s finding of jurisdiction is remarkable, it is likely correct under the circumstances presented in the CCA’s opinion (more on this at the end). The judge’s ruling did operate to exclude evidence that appears to be substantial proof of a material fact. CAAF may feel differently, or it may dig into the record for different facts. But I see a greater potential for a CAAF grant and reversal in what the CCA does with its finding of jurisdiction.
The CCA notes that “the decision whether to continue a trial to enable a party to procure an absent witness rests within the sound discretion of the trial court.” Slip op. at 11. And it explains that “[a] judge’s decision will not be disturbed on appeal absent a clear showing that such discretion has been misused.” Slip op. at 11. The court even cites United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F. 1999) (link to slip op.) (“The standard of review of a military judge’s decision to deny a continuance is abuse of discretion.”). Abuse of discretion is a highly deferential standard of review.
But the CCA doesn’t actually give the judge any deference. In fact, the CCA gives the judge a remarkably cold shoulder, it doesn’t engage in any substantive discussion of the judge’s findings at all, and it appears to review the Government’s motion de novo:
Applying the Miller factors to the case at bar, we conclude as follows:
Lack of surprise: Civilian defense counsel was well-aware that the Government intended to call the witnesses in question on day two of the three day trial.
Timeliness of the request: The motion for a recess was promptly made by the trial counsel after examination of his first four witnesses.
Other continuance requests: Multiple continuance requests were made and granted in this case. Again, this was merely a request for a recess for the Government witnesses to testify on the day they were scheduled to do so and well-within the three-day period for which the case was docketed.
Good faith of the moving party: The appellee does not aver, and the military judge did not find, that the Government was acting in bad faith. As stated above, the trial counsel anticipated that the empanelment of the members and the testimony of its first four witnesses would take longer than it did. The trial progressed more rapidly than anticipated.
Length of request and prejudice: The Government requested a recess until the next morning – a matter of a few hours. The appellee has not demonstrated that he would have been prejudiced by the military judge had she granted the recess.
Prior notice: Prior to the trial commencing, the defense was given notice that the three Government witnesses would testify on the second day of trial.
Possible impact on verdict: The Government considered these witnesses critical to its case: the 911 operator was needed to lay the foundation to admit the 911 tape into evidence; the attending physician was needed to lay the foundation to admit the pictures of the victim of this alleged assault and to testify as to the extent of the victim’s injuries; and the NCIS agent was needed to lay the foundation for a statement from the appellant [sic] in which he made admissions of guilt.
In this case, we conclude that the expected testimony of these absent witnesses was material, noncumulative, and of critical importance to the Government’s case-in-chief. The expected testimony of these witnesses would have a significant impact on whether the Government could prove its case beyond a reasonable doubt.
Each of these factors clearly favors the Government.
In light of the circumstances of this case, we conclude that the military judge’s action in denying the Government a brief recess during trial and then sua sponte, over objection, resting the Government’s case was a clear abuse of discretion.
Slip op. at 11-12 (emphases in original). Unfortunately, the opinion provides precious few facts of the case. For instance, assuming the alleged victim testified, the physician’s testimony seems cumulative. And if the victim didn’t testify, I can think of a few theories of admissibility for the medical records (that I assume include the pictures) that don’t require the live testimony of the physician. Similarly, the 911 recording is likely self-authenticating if certified as a public record (see M.R.E. 902(4)). Even the NCIS agent seems unnecessary (though it would be nice to know the form of the “admissions.” Oral, written, video recorded…).
Standard of review issues aside, my gut tells me that the Government blew this at the trial stage and that the appeal is of the wrong thing. The witness testimony that was excluded isn’t the “evidence that is substantial proof of a fact material in the proceeding” as required for an appeal under Article 62. Rather, it’s just foundation for other evidence, and it seems like the other, substantive evidence was never actually offered. Best I can tell from the CCA’s opinion, Government counsel got frustrated and then gave up once the judge held their feet to the fire.
This distinction is important because of the limited scope of Article 62. If the Government never actually offered the ultimate “evidence that is substantial proof of a fact material in the proceeding,” then the appeal isn’t ripe. If the witnesses are cumulative or a waste of time, then the appeal is likely moot. Above I wrote that the CCA’s finding of jurisdiction is likely correct under the circumstances presented in the CCA’s opinion. But the CCA’s opinion is light on the facts. Too light, really.
Whether CAAF will get curious remains to be seen. Between the wrong standard of review and the underlying questions of just what the heck went on at that trial, there’s plenty to get curious about.