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.

Case Links:
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

8 Responses to “Opinion Analysis: United States v. Vargas, No. 14-6009/MC”

  1. Tami (a/k/a Princess Leia) says:

    They’ll probably ask for dismissal without prejudice so they can retry him.  Not saying they could actually do that, just saying that will probably be their strategy.

  2. stewie says:

    I’m fine with not finding abuse of discretion not sure if I agree or not but the judge is right that the government had a ton of time to get this right and wholly failed.   However, I agree with Baker that the court had jurisdiction.

  3. Zachary D Spilman says:

    Having thought about this some more, I don’t see why the extraordinary relief process isn’t a far better answer to Chief Judge Baker’s hypothetical than the Article 62 appeal process.

    The Government’s ability to pursue a writ in the military justice system seems to be undisputed. For instance, earlier this year the Government pursued a writ of mandamus to stop a deposition in the Air Force case of United States v. McDowell, Military Judge, and DeMario, Real Party in Interest, Misc. Dkt. No. 2013-28 (A.F.Ct.Crim.App. Mar. 13, 2014) (discussed here), aff’d, __ M.J. __ (C.A.A.F. Aug. 8, 2014) (discussed here). While the Government was denied the requested writ in that case, that denial was entirely based on the merits of the petition. In fact, the AFCCA specifically stated:

    We conclude it is appropriate to consider the petition under the All Writs Act. 

    Order at 7.

    The actions of a military judge that “orders the Government to rest before presenting any of its case-in-chief,” Vargas, __ M.J. at __, diss. op. of Baker, C.J. at 3, would undoubtedly be “a judicial usurpation of power or be characteristic of an erroneous practice which is likely to recur,” McDowell, __ M.J. at __, con. op. of Baker, C.J. at __.

    CAAF’s fidelity to the plain language of Article 62 hardly leaves the Government without recourse.

  4. stewie says:

    Then why does the majority spend the vast majority of it’s time explaining why the MJ didn’t abuse their discretion? I mean if this is an open and shut jurisdiction case, it would have been a much leaner decision IMO. I think I find J. Baker’s reasoning more persuasive. The court simply should have reached the merits and found that the MJ did not abuse their discretion.
    I mean that’s effectively what the decision says anyways.

  5. AF JAG says:

    @Zachary Spilman–how on Earth would a Writ for Extraordinary Relief function as a reasonable recourse for the government? 
    For a Writ of Extraordinary Relief to avail the government a chance for appellate review in a case such as this, you would have to believe that that the same trial judge who refused the government’s request for a very modest “continuance” would then be inclined to delay further trial proceedings until such time as the government had the opportunity to file its appeal at the CCA, and then the CCA act upon it.
    Unless, you’re anticipating “Dominos Justice” out of the CCA, i.e. decision on the case (or more likely the motion for an emergency stay of proceedings) in 30 minutes or less–there is no way on Earth that a Writ for Extraordinary Relief avails the government anything in cases like this.

  6. Zachary D Spilman says:

    Well, AF JAG, I have three responses for you.

    First, if a military judge were to do something as crazy as Chief Judge Baker’s hypothetical of “order[ing] the Government to rest before presenting any of its case-in-chief” (emphasis added), I suspect the cognizant CCA would fall over itself to grant a Government writ petition in record time.

    Second, as we learned in United States v. Easton, 71 M.J. 168 (C.A.A.F. Jun. 4, 2012) (CAAFlog case page), jeopardy attaches at introduction of evidence. If the judge doesn’t allow the Government to present any evidence (Chief Judge Baker’s hypothetical), then there’s no jeopardy, and the Government can bring the charges anew.

    Finally, if a military judge has truly gone off the deep end (and I think Chief Judge Baker’s hypothetical would be an example of that), then I’d expect someone to ask the judge to recuse himself. Such a judge would probably deny the motion, but that denial would be subject to review. See United States v. Sherrod, 26 M.J. 30, 33 (C.M.A. 1988) (“[W]hen a trial judge is disqualified, all the judge’s actions from that moment on are void – except for those immediately necessary to assure the swift and orderly substitution of judges.”).

  7. stewie says:

    Baker gave an extreme hypo to make a point. I do not think that’s the only hypo he could have come up with, or that any other hypo would be as extreme. I think the point he makes is that this is an area where one imagines the courts have some level of jurisdiction to correct cases where a MJ abuses their discretion. I concur. I don’t know that is what happened in this case (or at least reasonable minds can disagree as to whether it did) so I’m fine with the result.

  8. Christian Deichert says:

    Ah the continuance rule.  Not an oft invoked part of RCM 703, but effective.  Dave Court and I had a similar issue at a BCD special (article 15 turndown for DUI).  Trial counsel didn’t bother trying to get the Polizei officer that put my client behind the wheel (i.e., in actual physical control of a vehicle while drunk) until just before trial, which was around Christmas.  The officier in question was enjoying a long German vacation and was not at trial.  They asked for a continuance, we objected, judge denied it under 703.  They askd for a 3-hour recess and had the general withdraw charges.  We later successfully argued a motion for defective referral when they tried to re-refer the case.