The AFCCA “roundly reject[s]” the Government’s untenable position in Sauk (but does not hold counsel in contempt or dismiss the charges)
The CCA finds:
In response to a show cause order from this court and during oral argument, the Government asserted the United States is allowed 60 days from the issuance of our revised order to seek certification to C.A.A.F. The Government generally asserted that The Judge Advocate General could certify this matter for our superior court’s review under Article 67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2). While the Government’s position centered on the post-trial discovery order issued in this case, the Government indicated that all orders from this court are theoretically subject to the same 60-day period during which a party need not comply with this court’s orders if it believes certification to review the order is appropriate. The Government explained it did not seek an enlargement to comply or a stay of the order’s execution because this court’s orders, like its decisions, are not self-executing and thus are not final until this period has run. We disagree.
Slip op at 4. Additionally:
Counsel have an obligation to “comply promptly with all orders and directives of the court.” A.F. STANDARDS FOR CRIM. JUSTICE, Standard 3-5.2(c) (6 June 2013). This court recently made this point clear. See United States v. Bowser, 73 M.J. 889, 899 (A.F. Ct. Crim. App. 2014), aff’d, No. 15-0289/AF (C.A.A.F. 25 March 2015) (“Short of some completely unusual circumstances not present here, the Government simply does not have the authority to choose which orders of a military judge it will follow and which ones it will not, at least not without facing the threat of remedial action or even punishment.”). If the Government did not understand the message of Bowser before, we make the point plain now: counsel appearing before this court have a duty to obey all orders of this court, except in the extraordinary situation where the court issues an order plainly calling for counsel to engage in unlawful or unethical conduct. It matters not whether the Government disagrees with this court’s order or that a “professional disagreement” (as the Government terms it) arises.
Slip op. at 4 (citation omitted). Moreover:
If the Government wishes to seek review of this court’s orders, it may do so. In the meantime, however, all parties must comply with this court’s orders. No “grace period” is permitted during which a party may simply decide not to comply with an order solely because it is considering whether to seek review of the order. We roundly reject the Government’s view that compliance with orders is not required until the time has elapsed for the party to seek appellate review of the order.
Slip op. at 5 (emphasis added). However:
[O]n the eve of oral argument, the Government belatedly provided declarations responsive to this court’s post-trial discovery order. The Government’s belated compliance does not excuse its earlier actions, particularly when it continued to maintain the position at oral argument that it did not need to comply with this court’s order or even seek a stay of the enforcement of the order to pursue its options for further review. The Government had no legal basis to disobey this court’s order, particularly in light of the recent Bowser decision. Bowser, 73 M.J. 889. Nonetheless, we have elected not to dismiss the charges and specifications or hold government counsel in contempt.
Slip op. at 5-6.