The absence of bad faith does not win application of a good faith exception in United States v. Muwwakkil, No. 15-0112/AR
CAAF decided the certified interlocutory Army case of United States v. Muwwakkil, 74 M.J. 187, No. 15-0112/AR (CAAFlog case page) (link to slip op.), on Thursday, May 28, 2015. The court unanimously affirms the trial-stage ruling by a military judge that stuck the entire testimony of an alleged victim of sexual assault because the Government lost most of the recording of the alleged victim’s testimony during the Article 32 pretrial investigation. CAAF rejects both issues certified by the Judge Advocate General of the Army, affirming the decision of the Army CCA.
Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs in the result but writes separately to distinguish the Jencks Act (18 U.S.C. § 3500) from Rule for Courts-Martial 914.
Production of pre-trial statements by a witness is required by the Jencks Act, 18 U.S.C. § 3500, and the corollary Rule for Courts-Marital (RCM) 914. In this case, the Government called the alleged victim to testify at trial, but then produced only part of the recording of her pretrial testimony. The majority of the recording was lost by the Government in what the military judge determined was not an intentional act but “was certainly negligent and may amount to gross negligence.” 73 M.J. 859, 861 (A. Ct. Crim. App. Aug. 26, 2014) (quoting record).
Specifically, of approximately 2 hours and 15 minutes of testimony by the alleged victim at the Article 32 pretrial investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. Considering this, the military judge concluded that “the defense counsel does not have what he needs to adequately prepare for cross-examination of [the alleged victim],” and the judge felt that the only adequate remedy was to strike the entire testimony of the alleged victim. Id.
The Government promptly appealed under Article 62. The Army CCA denied that appeal and affirmed the judge’s ruling. The Judge Advocate General of the Army then certified two issues to CAAF:
I. Whether the U.S. Army Court of Criminal Appeals erred in its application of both the federal Jencks Act (18 U.S.C. § 3500) and Rule for Courts-Martial 914.
II. Whether the U.S. Army Court of Criminal Appeals erred in its deference to the military judge’s findings and conclusions, as she failed to consider the totality of the case, and instead made a presumption of harm before ordering an extraordinary remedy. See, e.g., Killian v. United Utates, 368 U.S. 231 (1961).
Rejecting the Government’s appeal and affirming the decision of the Army CCA, Judge Ohlson unravels the Government’s various arguments – that federal Jencks Act precedent doesn’t apply to courts-martial, that this is actually a discovery issue, that the accused should have litigated this issue pretrial rather than waiting until after the alleged victim testified, that the recording of the alleged victim’s testimony during the Article 32 pretrial investigation is not a statement, that the Government can not be required to produce something that is lost, and that the judge was required to find that the Government acted in bad faith prior to imposing the remedy of striking the testimony of the alleged victim – and CAAF concludes that the “military judge did not err or otherwise abuse her discretion in applying the provisions of the Jencks Act and R.C.M. 914 to the instant case.” Slip op. at 18.
Judge Ohlson’s opinion begins with a discussion of the purpose of the Jencks Act and its implementation in courts-martial:
The Jencks Act requires the military judge, upon motion by the accused, to order the government to disclose prior “statement[s]” of its witnesses that are “relate[d]” to the subject matter of their testimony after each witness testifies on direct examination. The Jencks Act is intended “‘to further the fair and just administration of criminal justice’” by providing for disclosure of statements for impeaching government witnesses.
In 1984, the President promulgated R.C.M. 914, and this rule tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused. Both R.C.M. 914 and the Jencks Act afford the defense an opportunity to impeach witnesses and enhance the accuracy of trial proceedings through cross-examination of witnesses. Given the similarities in language and purpose between R.C.M. 914 and the Jencks Act, we conclude that our Jencks Act case law and that of the Supreme Court informs our analysis of R.C.M. 914 issues.
Slip op. at 7-8 (marks and citations omitted). Noting that “the Government claims that the Jencks Act is ‘subsumed’ in R.C.M. 914,” Judge Ohlson also explains that “in this case, the result would be the same under both R.C.M. 914 and the Jencks Act.” Slip op. at 8-9 n.2. But the difference between the Jencks Act and R.C.M. 914 is highlighted in CAAF’s rejection of the Government’s discovery argument.
First, Judge Ohlson discusses the Government’s discovery-based contention:
[T]he Government contends that the accused should have been required to litigate the issue involving the loss of GP’s Article 32, UCMJ, testimony as a pretrial discovery matter under R.C.M. 701 and R.C.M. 703(f)(2) rather than as a motion for production under R.C.M. 914. However, we note that the Government did not raise this argument with the military judge, nor did it raise the issue with the CCA until the Government filed its motion for reconsideration – which the CCA denied. Under the particular circumstances of this case, we decline to entertain this untimely argument in this appeal.
Slip op. at 10. R.C.M. 701 is the baseline discovery rule for courts-martial, and R.C.M. 703 details the procedure for the production of witnesses and evidence at trial (and authorizes sanctions for failures of production). Even though CAAF rejects outright the Government’s discovery-based argument in this case, Judge Ohlson indicates that it wasn’t a very good argument when considered in the context of R.C.M. 914:
Although we decline to entertain the Government’s discovery argument, we briefly address in this footnote the difference between the Jencks Act and R.C.M. 914 with respect to discovery. The Jencks Act’s “major concern is with limiting and regulating defense access to government papers.” Palermo v. United States, 360 U.S. 343, 354 (1959). On the other hand, the military justice system affords an accused broad rights and remedies under the discovery provisions of the UCMJ that are more extensive than those afforded in the civilian criminal justice system. See United States v. Pomarleau, 57 M.J. 351, 359 (C.A.A.F. 2002). As a result, resort to military discovery procedures “should make resort to [R.C.M. 914] by the defense unnecessary in most cases.” MCM, Analysis of the Rules for Courts-Martial app. 21 at A21-64 (2012 ed.). Nonetheless, the military’s discovery rules do not render R.C.M. 914 meaningless when its terms apply.
Slip op. at 11 n.3.
Next, Judge Ohlson turns to the Government’s contention “that R.C.M. 914 does not actually apply in the instant case because recorded Article 32, UCMJ, testimony does not constitute a ‘statement.'” Slip op. at 11. Rejecting this contention and re-affirming the decision in United States v. Marsh, 21 M.J. 445, 451 (C.M.A. 1986), that such recorded statements are Jencks Act / R.C.M. 914 statements, Judge Ohlson notes that “the text of R.C.M. 914 itself indicates that recorded Article 32, UCMJ, testimony constitutes a ‘statement’ because it meets the R.C.M. 914(f)(2) standard of being ‘[a] substantially verbatim recital of an oral statement . . . that is recorded contemporaneously with the making of the oral statement and contained’ in a recording.” Slip op. at 12.
Yet the Government also asserted that it can not be required to produce a statement that it does not possess. But Judge Ohlson highlights the significance of how that loss occurred:
GP’s Article 32, UCMJ, recording was no longer in the Government’s possession solely because of the Government’s own negligence in failing to preserve it. It would be an odd result indeed if the Government ultimately was rewarded for its own negligence. Cf. Lieberman, 608 F.2d at (“When all that a witness said was recorded and then wholly or partly destroyed, it was at least once contained in ‘statements’ ‘in the possession of the United States’” (quoting 18 U.S.C. § 3500(e))). We therefore find that the Government’s negligent failure to retain control of the recorded Article 32, UCMJ, testimony, which once had been in its exclusive possession,” effectively means that “the trial counsel . . . elect[ed] not to comply” with the requirement under R.C.M. 914(e) to provide a copy of GP’s “statement” to the defense.
Slip op. at 13-14.
Judge Ohlson then addresses the fact that the military judge found only that the Government acted negligently, and did not find that it acted in bad faith, when it lost the recording. Noting that “jurisprudence of the Supreme Court and our Court . . . has recognized a judicially created good faith loss doctrine,” but that this doctrine is “generally limited in its application,” Judge Ohlson concludes that:
in the instant case we find that the military judge did not err in declining to apply the good faith loss doctrine because she explicitly found that the Government had engaged in negligent conduct, and a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply in a specific case.
Slip op. at 14-15. This conclusions highlights the difference between a good faith doctrine that excuses a bad act caused by otherwise clean hands, and the Government’s argument that anything that isn’t bad faith (unclean hands) should be excused.
Finally, Judge Ohlson considers the question of prejudice raised by the second certified issue. Noting that “although the military judge did not use the specific term ‘prejudice’ in her findings, she did essentially engage in a prejudice analysis by finding that GP was a key witness with credibility issues and that there was no adequate substitute for GP’s recorded Article 32, UCMJ, testimony,” Judge Ohlson concludes that R.C.M. 914 does not require a prejudice analysis at the trial stage:
The plain text of R.C.M. 914 provides two remedies for the Government’s failure to deliver a “statement” without referencing a predicate finding of prejudice to the accused. Absent any reference to prejudice or harmless error, at this stage of the proceedings we conclude that the military judge was not required to engage in a prejudice analysis.
Slip op. at 17.
In a separate concurring opinion, Judge Stucky addresses only the “majority’s suggestion that the Jencks Act applies to courts-martial.” Con. op. at 1.
The President has exercised [his Article 36] authority by promulgating a procedural rule governing the production of statements of witnesses for courts-martial. See R.C.M. 914. This rule is based on Fed. R. Crim. P. 26.2, which is based on the Jencks Act. Manual for Courts-Martial, United States, Analysis of R.C.M. 914, at A21–64 (2012 ed.).
Just as the Supreme Court recognized that Congress has the primary responsibility for enacting the rules of procedure in federal criminal trials, this Court should recognize thatCongress has explicitly granted the President the authority to promulgate pretrial, trial, and post-trial procedural rules. Thus, I conclude that R.C.M. 914 supersedes the Jencks Act for trials by courts-martial.
Con. op. at 2-3.
• ACCA opinion (73 M.J. 859)
• Blog post: The Army enforces Jencks
• Blog post: The Army JAG certifies Jencks issue in Muwwakkil
• Appellant’s (Government) brief
• Appellee’s brief
• Blog post: Argument preview
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis