Audio of the oral argument in United States v. Sauk, No. 38398 (discussed and debated in this post) is available on the AFCCA’s website here.

The audio is just over 30 minutes long, and the file on the CCA’s server is 30 MB and is in Windows Media Audio format. I converted it to mp3 (reducing the size to 20 MB) and made some improvements to the volume, and put it on our server here.

18 Responses to “AFCCA argument audio: United States v. Sauk”

  1. JAE says:

    My impression after listening to this audio was that the AFCCA really blew this thing out of proportion, especially in light of the government’s claim that it informed the Court (before the expiration of the deadline for compliance with the discovery order) of its intention to seek CAAF review under Article 67.  The Court seemed to be most ticked off by the government’s failure to formally seek a stay of its ruling, but the response of “OK, what happens if the Court denies that stay request?” was pretty effective.  Article 67 would seem to trump.  If the Court doesn’t have the power to deny a stay request inside the Article 67 60-day window for CAAF review, what sense does it make to ask them to grant one? 

  2. RY says:

    Just silliness.  The IG report did not find any errors with Sauk.  JAJG sent affidavits to AFCCA the night prior to oral argument, asserting this.  So then why did they ignore the AFCCA’s order? 
    JAJG starts by saying they have never intended to disrespect the AFCCA and then asserts they have only sought TJAG certification some 26 times in the last 8 yrs, so only 3.25 per year and less than one percent.  Um….more than half have been in the last 18 months or so.  They asserted there is no express means in the rules for JAJG to request a stay of an order and they argue JAJG has the right to seek a cert whether they disagree with an order or a decision and CAAF’s rules given them 60 days to do so.
    AFCCA did well calling them out on the contradictions.  If JAJG, for example, does not have to respond because they can seek certification, so too can Appellants.  AFCCA also noted that JAJG has written in opposition when appellant’s miss a deadline or order, how does that square with the fact that appellants could also seek certification?
    I doubt AFCCA will do anything here.  The issue is moot for Sauk.  But IMHO, JAJG (a few individuals in particular) at times truly paints the government in a bad light. 

  3. Michael Lowrey says:

    Interesting listen.Basically what happens is that the government provided the information that the AFCCA wanted, said it respected AFCCA, but also said we’ve got 60 days to certify issues and AFCCA is just going to have to deal with it.
    That said, I still don’t understand the reasoning behind the government’s decisions in this case — why go through all this, including the potential of certifying the issue, when the simple answer is that the IG’s report at issue doesn’t impact this case? Wouldn’t it have been a lot simpler to just say that in the first place?

  4. stewie says:

    It seems clear they are trying to set some sort of precedent, or force a change in the court’s rules to allow them to pick and choose when they want to ignore a discovery order long enough to consider certification by the TJAG.  So it’s clearly not about this case or issue, it’s about pushing things in the future.  I’m not defending it remotely, just saying I think this case was nothing more than a vehicle to push this issue.

  5. Advocaat says:

    Extraordinary.  (1) Obedience of lawful orders is the foundation of good order and discipline–I learned that at Fort Benning as an 18-year-old in the 1980s.  (2) According to JAJG (and not the Division Chief), orders do not have to be followed as long as the refusal is done in a respectful manner and as long as the recipient tells the issuer, “I’m thinking about going over your head.”  That is not the position I would have expected the United States to take.  (3) I was disappointed JAJA did not take the opportunity to give JAJG a lesson in the importance of following orders and how a toothless enforcement mechanism destroys the fabric of military discipline as the platform to ask AFCCA to dismiss the charges and specifications.  (4) I wish the judges had gone down the elements and defenses of failure to obey a lawful order (e.g., “You aren’t raising the defense of impossibility because you finally followed our order late last night, right?”) and I wish they had made JAJG identify which person was responsible for this very respectful disobedience.  (5) Finally, JAJG should have affirmatively cleared the two junior counsel on the case.  Boo.  Hiss. 

  6. The Silver Fox says:

    This is how I would have handled the oral argument:

  7. Chuck Bass says:

    Well said, JAE. [Incidentally, I wonder why it took so long for your post to show up, since you were apparently the first person to comment.]

  8. Zachary D Spilman says:

    JAE’s comment was caught in the spam filter.

  9. Phil Cave says:

    Does Article 67(a)(2) permit certification of interlocutory issues?  The case is still in the process of review and has not been “reviewed.”  The wording suggests the CCA review has to be final/decided.  I thought there was a point where J. Hecker was going to the point that, if there is no power to certify, then who cares about the 60 days, file a writ?  Let’s look at Article 67(c)

    In any case reviewed by it, the Court of Appeals for the Armed Forces may act only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the Court of Criminal Appeals. In a case which the Judge Advocate General orders sent to the Court of Appeals for the Armed Forces, that action need be taken only with respect to the issues raised by him.”

    What I’m suggesting is that there is no authority for the TJAG to certify such an interlocutory issue.  The remedy to the government is to file a writ.  If there’s some case law that suggests the power to certify and interlocutory matter let me know and I’ll certainly change my view.
    If there is no power, and if the government turned over the stuff yesterday without asking for a delay (out of time) or filing a writ.  What does that say, if anything?

  10. The Silver Fox says:

    A.F. R. Prac. Proc. 19.1: “Upon motion by a party or on its own motion, the Court may reconsider an interlocutory order previously rendered by it, provided that jurisdiction of the case has not been obtained by CAAF.  Jurisdiction vests with CAAF when a petition OR CERTIFICATE has been filed with that court.” (emphasis added.)

  11. The Silver Fox says:

    I don’t know what the heck that was.  Check, please.

  12. Phil Cave says:

    @SF.  You using MSE4 to post from?
    And, right, the Gov. could have gone in and asked for reconsideration, and as one of the J’s said, tacked on a request for more time to consider taking a writ, NOT IMO a certification.  There is no “60 days” for consideration in taking a writ – a writ is filed promptly.

  13. JustAnotherADC says:

    A.F. R. Prac. Proc. 19.1 cited above doesn’t support the government’s argument in this case because a lower court’s rule of practice cannot create jurisdiction for a higher court. Even if it could, the cited rule only concerns the circumstances under which AFCCA will reconsider its own interlocutory orders.

    The government’s argument presented at oral argument is completely unworkable in practice and leads to absurd results. Also, all of the cases the government cited were ones where there was a decision to certify, versus an interlocutory order (as some of the judges pointed out).
    Given the government’s (last-minute) compliance, contempt is not appropriate and dismissal would not be the correct remedy as the accused’s rights were not ultimately prejudiced.

    This was a self-inflicted gunshot wound by the government, however, and AFCCA was certainly within its rights to rattle the sabers to ensure its orders were followed. The court would also be well within its rights to issue a written decision on the question presented at oral argument denying dismissal and failing to find the government in contempt, but clearly rejecting the government’s argument to avoid interference with the court conducting its business in the future.

  14. Passing By says:

    Silver Fox, I concur completely with what you said at “mso-para-margin-top:0in;” but what you suggest at “mso-hansi-font-family:Calibri;” is completely unsupportable.

  15. Dew_Process says:

    @ RY:  This is the same gov’t counsel that argued (successfully) before an AF CCA panel that a Petition for a New Trial, with a “due date” that fell on a Sunday, was “untimely” when filed on Monday morning.
    @ JA ADC:  Contempt IS appropriate here because the contemptible action was an affront to the Court.  The fact that they complied “at the last moment” goes to what if any “punishment” is appropriate.
    The issue here is that while Sauk is the vehicle that brought this to head, it is demonstrative of a long-standing problem and lack of adult supervision at JAJG — which anyone outside of JAJG who has practiced regularly at AF CCA in the past 2-3 years knows.  Judges Weber and Hecker were both very experienced litigators and appellate practitioners before being “robed” at AF CCA and if you know the personalities involved, practicing at the fringes of incivility is not something in their respective playbooks.
    @ Phil – while I agree with your assessment’s above, I would also note that CAAF Rule 19(d), states:

    A petition for extraordinary relief under Rule 4(b)(1) shall be filed as soon as possible but, in any event, no later than 20 days after the petitioner learns of the action complained of.

  16. wowzers says:

    From Advocaat’s comment where govt says orders don’t have to be followed…that’s rich. Next thing you know they’ll be saying plea agreements don’t have to be honored because the secret handshake wasn’t used. Oh, and I hope a bunch of Privates adopt that attitude with their NCO’s on the line. I want front row seats for that one, especially when the Privates say, ‘that’s what JAG said’.

  17. Phil Cave says:

    @DP.  Ah, so when I say “prompt” CAAF construes that to mean up to 20 days, but not 60.  But I don’t think reliance on the rule helps in this particular case.

  18. Dew_Process says:

    @Phil – my point exactly, unless of course JAJG has their own variant of Number Theory.   Which of course, would not surprise me.