Our #6 top story of 2014 again involves a military judge ruling against the government after getting frustrated and the government appealing. Vargas was a spousal assault special court-martial. Zach has previously discussed the case here and here. The case was delayed and continued multiple times. The last several continuances were based on the government’s request to accommodate witness availability. Several of those witnesses were government employees. The government last moved on 16 October 2013 to again continue the trial so all its witnesses could appear. The military judge denied the continuance and maintained the trial date of 22 October 2013.

The morning of trial, issues came up involving the government’s use of exhibits and a 911 call during its opening statement. The defense objected to the use of non-admitted evidence and the military judge sustained the objection. The government then asked for another continuance to allow it to present the witness necessary to lay the foundation for the 911 call. The military judge refused. The court-martial proceeded with opening statements and the government called four witnesses in its case-in-chief.

The witnesses must have been short ones because the government only started calling witnesses after lunch and by 1411, the four witnesses were done. The government then announced its remaining witnesses would not be available until the next morning.

The military judge was not accommodating. Especially as two of the three planned witnesses were local government employees. The military judge denied the continuance request – essentially just for a few hours assuming the case would break for the evening.

The government asked the military judge to reconsider and the military judge refused. The government announced an intention to appeal. The military judge pressed on. In front of the members the military judge asked the government whether it had any additional evidence. The government responded, “we don’t have any additional evidence at this time . . . .” The military judge asked if the government was resting the government refused to rest. The military judge then rested the government’s case for them.

The next day the military judge reconsidered her ruling and then affirmed her earlier decision.
The government appealed under Article 62, UCMJ. The Navy-Marine Corps Court of Criminal Appeals found jurisdiction and held the military judge’s ruling were an abuse of discretion. Here.

Next stop CAAF. Here. And CAAF continued a theme for the year – upholding the military judge’s decision and using strong language to characterize the government’s actions. Judge Erdmann laid the blame for the need for another continuance on the “government’s own actions” and referred to the government’s “remarkably casual approach to witness production.” Even referring to any limitations on the government’s ability to present evidence as “self-inflicted.”

CAAF addressed the central legal question of whether the combination of the military judge’s denial of the short continuance and resting of the government’s case qualified under Article 62 as “excluding evidence.” If it did, NMCCA had jurisdiction. And if it didn’t, NMCCA did not. Based on the way the government had put itself in a box, CAAF ruled that the military judge’s decision did not exclude evidence. The military judge did not tell the government it could not present a witness or an exhibit, but rather simply told the government it didn’t have any more time to present that evidence. Accordingly, the military judge’s ruling was not “excluding evidence” but was rather an exercise of the military judge’s responsibility to manage the case. So CAAF reversed NMCCA and sent the case back down.

Chief Judge Baker dissented, arguing that the issue was jurisdiction, not a referendum on the government’s actions. He viewed the government’s action as relevant as to whether the military judge abused her discretion in denying the continuance, but not relevant for the narrow jurisdictional question. He took the straightforward approach that the military judge’s order resting the government’s case had the effect of “excluding evidence.”

The jurisdictional parameters of government appeals under Article 62, UCMJ are important and that alone may rate Vargas in our top ten. But I’m a sucker for the stories as much as the arcane legal principles. And love the underlying lessons found in every case. In this one, there are some very basic lessons every trial attorney needs to know or be reminded of. The government knew the case was starting on 22 October 2013. Why not try to pre-admit the 911 call so that the question of using it in the opening was resolved up front? Why not have all the witnesses standing by – at least the local government employees? (One was a NCIS Special Agent returning from Afghanistan, but what about the local ones?). Is it a pain to make witnesses sit around? Yes. Is it something you should try like heck to avoid? Of course. Is it worth the pain to avoid the military judge from resting your case. It is.

Now, I don’t want to come across as if I am judging government counsel here. As those that know me, I have made more and more serious mistakes in dozens of courts-martial. My point rather is to learn from each one. And we should all take Vargas as another reminder of basic trial preparation. No trial counsel should view Article 62 as a way out. The case is won or lost for the government before the military judge.

23 Responses to “Top Ten Military Justice Stories of 2014 – #6: United States v. Vargas & Article 62”

  1. Defense Hack says:

    We’ve all goofed at some point. When I was a TC, a fellow TC rested his case without asking for judicial notice of a regulation, and the MJ granted the 917 motion, dismissing the one slam-dunk charge on the sheet. A few years later, as a DC, the MJ allowed the Government to reopen their case cure a similar oversight. Some judges will hold the Government’s feet to the fire by making them bear the burden of their mistakes, inexperience, or arrogance, whereas others will hold the Government’s hand throughout the process. I’ve seen militay judges lay foundations for witnesses after the opposing side objects, and I’ve seen judges watch as young litigators stumble and suffer. A litigator, and that litigators mentors, should never assume that a particular judge is going to help them if they come to court unprepared.I am somewhat conflicted on the Vargas ruling. As an unapologetic defense hack, I am sick of seeing judges fix Government cases when the TC, ATC, STC, SVP, CoJ, and Deputy can’t figure out the basics. I’ve seen court rooms packed with a half-dozen prosecutors, and for some reason, the newb TC can’t figure out foundation and hearsay the day of trial. At the same time, most TCs are fairly new to the Army and fairly new at litigating. I guess it comes down to teaching styles; pain of defeat versus hald holding.

  2. stewie says:

    I’m with you. I agree that there is a teaching role for MJs but that’s what Bridging the Gap and Gateway sessions are for.  When it’s “game-time” the MJ should not be helping the TC at all.

  3. Former DC says:

    @Jason: Since you mentioned it, would you please point out the Article or Rule that permits “pre-admission” of anything in a court-martial? This is something I am hearing about, but no one seems to be able to point the authority which allows it. Being an Article I court, courts-martial can only act specifically as authorized; there is abundant case law that enforces that limitation, so if it is a real option, it has to authorized in law. Can you – or another reader – enlighten? Thanks. 

  4. Defense Hack says:

    Pre-admission is a common practice and allowable under a reading of the MRE. I’m too lazy to cite, but I’ll say that most MJs draw a distinction between “offering a preview of the evidence” vs actually showing pieces of evidence that are not yet admitted. The ability to pre-admit can be handled as a Motion in Limine under 905 or 906, whichever governs. I don’t have my bible at my desk so I can’t give the specific rule. Said another way, a lawyer may say something like “you’ll hear a 911 call, in which the victim said x,” versus the actual 911 call, which is subject to hearsay, foundation, authentication, etc.

  5. Zachary D Spilman says:

    Pre-admission is not allowable under the Military Rules of Evidence.

    R.C.M. 906(b)(13) permits only a “preliminary ruling on admissibility of evidence,” not the admission of evidence outside the presence of the members and prior to the assembly of the court-martial.

    Moreover, “the UCMJ states that jeopardy attaches when evidence is introduced.” United States v. Easton, 71 M.J. 168, 172 (C.A.A.F. 2012) (CAAFlog case page). 

    Of course, the parties can litigate, or agree on, the admissibility of evidence in advance. But evidence is admitted at trial, not before.

  6. stewie says:

    Defense Hack gets to the nub.  The point of “pre-admission” is not actual, technical admission of evidence, it is that both sides agree that evidence is going to be admissible so it can be discussed during the opening, or so that necessary witnesses aren’t brought in (for authentication or other purposes), or other similar purposes.

  7. Former DC says:

    @ Defense Hack and Stewie:  This is not my understanding of what is happening.  When something is “pre-admitted”, the MJs are conducting the whole inquiry:  foundation, authentication, hearsay, etc., outside the presence of the members in a 39A session, and then simply allowing counsel to “introduce” it in front of the members.  That’s a far cry from mentioning something in an opening and then doing the full admission procedure during the trial.  This view also appears to be more in line with what Jason was discussing.
    Sounds to me like a good one for the guys in Appellate Defense Division to tee up.  I re-read RCM 906 and Easton, as suggested by Zack.  As best as I can determine in that cursory review, he has the better of the argument.  It seems questionable practice to risk a reversal on the excuse that “everyone commonly does this”.  No disrespect, but this isn’t the first “good idea” that has come along that CAAF shot down in flames.

  8. Zachary D Spilman says:

    At the beginning of practically every case worth studying is a judge who accepted the tautological argument that whatever happened must have been right because it has always been done that way.

  9. Defense Hack says:

    Zachary, that’s how the military runs. It’s how we’ve always done it, therefore it must be right.
    A number of MJs I have practiced in front of treat “pre-admission” as the ticket to use it in opening, although the precise mechanism hasn’t been clear until Easton. Looked at another way, evidence cannot be admitted until the court has been assembled. 
    But back to the issue originally being discussed, assuming the 911 call had been litigated and determined admissible, can it be used in opening?

  10. Zachary D Spilman says:

    Using evidence (like the recording of a 911 call) during an opening statement strikes me as a cheap trick. The opening is about framing the case, not presenting evidence before actual presentation of the evidence. The military judge has a lot of discretion, but I don’t see any reason why a judge should permit a party to present evidence during an opening statement over an objection. 

    That’s why a typical opening statement involves the words “the evidence will show” and “you will see/hear.” Then, after openings, the evidence does show and the finder of fact does see/hear (one hopes).

    Also, a military that figures the old way is the right way will always be ready to fight the last war.

  11. stewie says:

    Former DC, “introducing” is admission.  DC or TC can waive authentication requirements anytime they want.  We can all talk about whether or not that is a good idea in the whole or in part (particularly for DC), but there is no requirement that the panel see foundation, authentication, or that hearsay can’t come in, if the opponent simply says “no objections” to an offer of admission.  All “pre-admission” does is address this early on in the process as opposed to in front of the panel.
    The parties could, if they wanted to, simply turn to each during a recess and say, I’d like to just admit this, you got any issues with that, the other party say no, then not object at trial. 
    That is all that is happening and it violates no rules.  It’s a knowing, voluntary waiver of the issue by one side.  It’s done in front of the MJ, on the record, just not in front of the panel.  So what rule is violated?
    I disagree that talking about evidence on the record is a “cheap trick” in this situation.  But if one side doesn’t want it to happen, there’s a simple way to make it not happen.  Unlike Brian Fontana’s cologne, 100 percent of the time, it works all of the time.  Object to pre-admission and require foundation et. al to be put on in front of the panel (or witnesses to come or what have you).
    I don’t understand all of this sturm and angst over an agreement between the parties that could as easily be done off the record without the MJ, and be as simple as government/defense moves to introduce ___.  Objection? No. Admitted.

  12. Zachary D Spilman says:

    Well of course the parties can agree. One can waive almost any error. And preliminary rulings on admissibility as allowed by RCM 906 (b)(13) (not the imaginary concept of “pre-admission”) are always a smart idea, as they get preliminary questions resolved early.

    But talking about evidence in the opening is different from actually presenting it (for example, playing the 911 tape in Vargas). See my comment above.

    As for whether a panel must see foundation (as a matter of law, and not merely good trial advocacy), I think that’s an open question. I know that CAAF didn’t reach it in United States v. Lubich, 72 M.J. 170 (C.A.A.F. 2013) (CAAFlog case page).

  13. Phil Cave says:

    Depending on the TC, I don’t see a problem agreeing ahead of time not to object to foundation.  But I almost always will say that there is no objection to foundation, but there is to relevance – or I don’t object subject to a showing of relevance.  At which point, the evidence is not admitted.  If the evidence is not admitted then I don’t see how it can be “played” or displayed over objection.   

  14. stewie says:

    What law says the panel must see the foundation?  Some citations please.  And even if there was, again, knowing voluntary waiver removes the issue. No one thinks pre-admission means that the evidence is admitted again in open court on the record (and again it doesn’t have to be in front of the panel, it could just as easily be in an Art. 39a session after the panel has been seated).
    And also, again, if the opponent is ok with it, then presenting evidence in opening violates what exactly? It’s a knowing, voluntary waiver.  The other side always holds the key and can keep the door lock should they so choose.  No one is suggesting it can be played or showed over objection.  But usually, when you agree to pre-admission, you are ok with it being shown to the panel from that point forward.  If you don’t want any of that, then don’t agree to it.  Make the other side check every single box. Or no boxes.  Or do what Phil does and worry more about some boxes than others.

  15. stewie says:

    Correction: That should say, no one thinks that pre-admission doesn’t mean that the evidence is NOT admitted again in open court on the record post-panel empanelment. Everyone I know understands it simply means we’ve, in advanced, decided there will be no objections to the this piece of evidence coming into evidence.  It allows for ease of witness travel, or to streamline a presentation, or myriad other possible tactical/strategic reasons.
    For example, I’ve seen DC allow DNA evidence in a SA case to be “pre-admitted” because the evidence was actually favorable to the accused.

  16. Zachary D Spilman says:

    Well, Stewie, there are two issues with not showing the members the foundational evidence.  

    The first is practical: If a knife is admitted into evidence as the murder weapon, but the foundational testimony about the knife’s discovery in the accused’s house isn’t ever presented to the members, then the defense can easily argue that there is no evidence that connects the knife to the accused and he will be acquitted.

    The second is legal: If the foundational evidence goes to an issue of conditional relevance (as it often does), then M.R.E. 104(b) comes into play. M.R.E. 104(b) is the same as F.R.E. 104(b) with the addition of language to clarify that the judge determines admissibility. See Manual for Courts-Martial, United States, at A22-3 (2012). But:

    In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditional fact by a preponderance of the evidence. The court simply examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact … by a preponderance of the evidence.

    United States v. Acton, 38 M.J. 330, 333 (C.M.A. 1993) (quoting Huddleston v. United States, 485 U.S. 681, 690 (1988)). Put differently, “the task for the military judge is to determine whether there is sufficient evidence for a reasonable court member to believe that the [predicate fact is true].” United States v. Mirandes-Gonzalez, 6 M.J. 411, 414 (C.M.A. 1988). See also United States v. Lubich, 72 M.J. 170 (C.A.A.F. 2013) (quoting United States v. Blanchard, 48 M.J. 306, 309 (C.A.A.F. 1998)) ([authentication] “requires a preliminary determination by the judge that sufficient evidence of authenticity exists to present the authenticity question to the members for their ultimate factual determination.”). 

  17. stewie says:

    The practical part is not part of this discussion.  We all know there are possible reasons why you’d want to force the other side to establish foundation OR why you would want to do it even if the other side doesn’t want it or need (e.g. going through the education/training of an expert in front of the panel to establish credibility).  No one is debating that.  But, that doesn’t mean you can’t also have practical reasons why you would waive foundational requirements.
    The legal part.  First, If both sides agree that the item is sufficiently authenticate, then that right there is more than enough for the MJ to determine that there is sufficient evidence of authenticity to present to the panel.  I guarantee you that no appellate court is going to ever overrule a military judge who admits something when both parties waive authentication and foundation (barring an extreme case of IAC).  It’s never going to be an abuse of discretion to do so.  The cases you cite deal with situations where one side or the other objected.  They do NOT deal with cases where both sides agreed to waive.
    Second, and more germane to this discussion, none of the cases you cite stand for the proposition that the MJ’s obligation under MRE 104(b) has to be done in front of the panel.  So even if I agree with you that this is somehow an unwaivable requirement, that the military judge HAS to conduct or see some sort of foundational/authentication evidence, he can do what you assert is required by MRE 104(b) in a pre-trial hearing. So, again, I ask, where is the case law or rule that says you have to do foundation or authentication in front of the panel?

  18. Zachary D Spilman says:

    I’m certain that in my comments above I acknowledge that the parties can waive any foundational issue, and I don’t claim that the judge’s ruling must be made in the presence of the members. 

    My point was (and still is) that there is no such thing as “pre-admission.” Evidence is admitted at trial, not before. 

  19. Defense Hack says:

    Zachary – This might be a silly question, but if a TC or DC for that matter wanted to publish photos in their opening, wouldn’t they have to be admitted as evidence before publication to the panel? Or is it no considered evidence because it is contained in the opening, and attorneys don’t present evidence in opening in closing?My thought is that we’ve been using the phrase “pre-admit” when we really mean “litigate admissibility of” a piece of evidence, and although it might be presented in opening (as cheap-trick as that may be), it’s not evidence per se because it hasn’t been properly admitted into evidence during the merits phase of the trial. Is that your analysis? If so, if a young TC wanted to pre-admit, would you object categorically or just under certain circumstances?

  20. Zachary D Spilman says:

    I wish that “pre-admit” really just meant “litigate admissibility.” Sadly, I have case files with motions filed by Government counsel that prove otherwise (relief requested: That the prosecution exhibits be admitted into evidence and the words for identification be deleted).

    As for publishing photos during the opening, my first question would be: “Why?” See my comment above about that being a cheap trick.

    Every case is different, but the odds are good that I’d object, because objecting is the right thing to do (or, more to the point, conceding is the wrong thing to do). I discussed this in my opinion analysis of Lubich (also mentioned above).

  21. stewie says:

    I’ve been doing this awhile and I’ve never seen anyone think “pre-admit” meant they didn’t have to actually offer it again into evidence after the trial proper started.

  22. Former DC says:

    @stewie: I hate to contradict you, but I have seen a bunch of this recently, including at least two cases where the TC got the MJ to delete the “for identification ” WEEKS before the members were seated, and another, currently before CCA, where the MJ prohibited the DC from litigating relevance before the members because the evidence had been “pre-admitted”. 
    It seems that the term “pre-admission” means different things to different people. If it means “see if we can agree”, ok, sure. But if it means, “litigate in a 39A, get ‘for identification’ deleted, and later be prohibited from discussing evidentiary issues before the members”, then I see no legal authorities whatsoever. Unfortunately, the latter, which appears to be an unauthorized adoption of civilian civil practice, seems to be what is creeping into practice. 

  23. stewie says:

    Well it must be a recent phenomena then.  I think when you do pre-admission, you are litigating most or all of the admissibility issues ahead of time.  Once both sides agree, then while I agree you still need to actually do the formality of introducing it on the record after empanelment, I don’t have a problem with the MJ saying to one side or the other, you had your chance to object, you waived it, why have you changed your mind? I suppose if there’s a good reason the MJ would have to honor the objection, but if it meant that the opposing side had to jump through hopes to get a witness(es) in then the MJ should give them plenty of leeway.
    Imagine that a DC agrees pre-trial to “pre-admit” evidence that would ordinarily require a foundational witness.  The DC says, no objections, we don’t need that witness.  Government doesn’t bring that witness and moves to admit the evidence at trial.  DC says, objection lack of foundation.  I think at that point, it would depend but I don’t think the answer is going to be to not allow the government time to fix the issue (or at least it shouldn’t).  Of course, the same situation could be in the reverse with the same leeway one hopes.
    Now, I think that relevance is an exception, because something is only relevant when it is relevant.  A trial could go such a way that something that might have been relevant in theory ends up not being relevant at trial at least at the time it is offered. 
    So bottom-line, if this is something that is creeping into practice then obviously we need to get it out of practice.  I’ve not heard of it happening before now though so it isn’t widespread, at least not in the Army. But I would have hoped that MJs at the very least understood the differences/nuances.