CAAF decided the interlocutory Marine Corps case of United States v. Vargas, 74 M.J. 1, No. 14-6009/MC (CAAFlog case page) (link to slip op.), on Monday, December 8, 2014. The court holds that the Article 62 does not confer jurisdiction for the Government’s appeal of the military judge’s ruling that denied a Government request for a continuance, reversing the decision of the Navy-Marine Corps CCA and remanding the case for further trial proceedings.
Judge Erdmann writes for the court, joined by Judges Stucky, Ryan, and Ohlson. Chief Judge Baker dissents.
Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon on the first day the Government counsel was unprepared to present any more evidence until the second day. So, Government counsel requested a continuance until the following morning.
But the Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917 (the Defense rested without presenting any evidence). The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.
That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.
A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:
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.
United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here). CAAF then granted review to determine whether the CCA had jurisdiction to reach this conclusion, with the following issue:
Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.
In today’s opinion the court answers this question with a clear “No.”
Judge Erdmann’s opinion begins with an explanation that:
We have previously held that “[p]rosecution appeals are disfavored and are permitted only upon specific statutory authorization.”
Slip op. at 13 (quoting United States v. Bradford, 68 M.J. 371, 373 (C.A.A.F. 2010)) (additional citations omitted). The statutory authorization at issue in this case is Article 62, which permits a Government appeal of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” But CAAF finds no such order or ruling here:
In reviewing the military judge’s orders, it is clear that neither ruling had the direct effect of “excluding evidence” as that term is used in Article 62, UCMJ. The military judge did not make any ruling which held that the government’s evidence was inadmissible nor did she indicate that she would not allow the introduction of properly admissible evidence.
Slip op. at 16. Rather, Judge Erdmann points the finger squarely at the trial counsel:
It was the government’s own actions prior to and during trial that led to the military judge’s denial of the government’s motions. Had the government subpoenaed its witnesses and had them ready to testify at trial, there is nothing in the record which indicates that the witnesses would not have been allowed to testify or that its exhibits would not have been admitted. Instead, the record reflects the military judge’s ongoing concern that, despite at least six continuances, the government was still not properly prepared for this trial. This concern was justified given the government’s remarkably casual approach to witness production, which included several requests for continuances based on witness convenience and, when the government’s last request for a continuance was denied on October 16, failing to ensure the appearance of those witnesses when the trial commenced on October 22. Therefore, any limitation on the government’s ability to present evidence was self-inflicted. The orders in this case did not, either in substance or in form, limit the pool of potential evidence that could be admissible at trial. Wuterich, 67 M.J. at 73.
Slip op. at 17-18 (emphasis added). And perhaps as a point of emphasis, Judge Erdmann adds in a footnote that:
Trial counsel also informed the court that Special Agent Fogle had arrived from Afghanistan. However, that morning the government discovered that Special Agent Fogle did not possess the information that the government had believed he possessed. The government further informed the military judge and the defense that they had found yet another witness, not previously identified to the court or the defense, who did possess the information they wished to introduce.
Slip op. at 11 N.4.
Yet Chief Judge Baker dissents, asserting that “the issue in this case is the military judge’s denial of the Government’s motion to reconsider the military judge’s order resting its case-in-chief.” Diss. op. at 2. He poses the following hypothetical:
What if a military judge orders the Government to rest before presenting any of its case-in-chief? Would this Court really conclude that there is no jurisdiction to hear an appeal in such a case? Would this Court really conclude that such an order did not “exclude evidence that is substantial proof of a fact material in the proceeding[?]” Article 62(a)(1)(B), UCMJ.
Diss. op. at 3. Chief Judge Baker would find jurisdiction, and he would also find that the military judge abused her discretion:
In considering whether the military judge abused her discretion in overruling the Government’s objection to her order resting the Government’s case, the factors the majority cites are all relevant. However, it is also relevant that the military judge’s order resting the Government’s case-in-chief occurred the day after the Government’s request for a continuance was denied. Thus, the trial continued until the next day at which point the military judge again rested the Government’s case even though the witnesses in question were then available. This, to me, is the clearest factor that the military judge abused her discretion in this case.
Diss. op. at 4-5.
Notably, Judge Erdmann’s opinion of the court doesn’t explicitly say what should happen next. But the final paragraph of his opinion practically requires an acquittal (of the single specification of assault consummated by a battery) on the merits:
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is reversed and the orders of the military judge denying the government’s continuance request and resting the government’s case are reinstated. As R.C.M. 908 was inapplicable, it was of no effect and the military judge was entitled to proceed with the trial.
Slip op. at 19-20. Because the Defense rested without presenting any evidence, there is no basis for a Government case in rebuttal. The members must now make findings on the case as it was presented; a case that the Government has repeatedly asserted is lacking in substantial proof of a material fact.
Perhaps the only honorable thing left for the Government to do is to dismiss the case.
• NMCCA opinion
• Blog post: The NMCCA finds that Article 62 authorizes appeals of recesses
• Appellant’s brief
• Appellee’s (Government) brief
• Appellant’s reply brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis