CAAF will hear the first oral argument of the 2017 term on Tuesday, October 10, 2017, at 9:30 a.m., in the certified Army case of United States v. Jacobsen, No. 17-0408/AR (CAAFlog case page). A single issue challenges the Army CCA’s rejection of an interlocutory prosecution appeal under Article 62, UCMJ:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

The case is a general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. Jacobsen’s defense counsel gave an opening statement that promised the members that “over the course of this trial you’re going to hear that [the alleged victim] has told five different stories about what happened on that couch on the evening of Valentine’s Day of this year going into the 15th of February.” Gov’t Div. Br. at 2. Then, on cross-examination of the alleged victim, the defense elicited evidence of numerous prior inconsistent statements about the alleged offense. In response, the prosecution:

sought to call a CID special agent to testify to the victim’s prior consistent statements under Mil. R. Evid. 801(d)(1)(B)(ii). The defense objected.

The military judge ruled that M.R.E. 801(d)(1)(B)(ii) does not apply in this case and that the Government could not admit the victim’s CID statement as rehabilitation evidence. The Government appealed his decision under Article 62, UCMJ.

Gov’t Div. Br. at 3 (citations to record omitted). Mil. R. Evid. 801(d)(1)(B) is part of the hearsay rule and is identical to Fed. R. Evid. 801(d)(1)(B). The federal rule was amended in 2014 in a way that makes any prior consistent statements of a witness non-hearsay, so long as the prior statement is otherwise admissible for rehabilitation (discussed here). The amendment was incorporated into the MCM in 2016 (noted here). The amendment did not, however, change what statements are otherwise admissible to rehabilitate a witness. See Fed. R. Evid. 801 advisory committee note to the 2014 amendment. See also United States v. Adams, 63 M.J. 691, 696-97 (A. Ct. Crim. App. 2006) (discussing circumstances when prior consistent statements are relevant).

Article 62 authorizes a prosecution appeal under certain, limited circumstances. One of them is of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). Based on this authorization, the prosecution appealed the military judge’s ruling that prohibited the CID agent from testifying about the alleged victim’s prior statements.

But the Army CCA did not address the admissibility of the CID agent’s testimony. Rather, it rejected the prosecution’s appeal as unauthorized under Article 62. In a short order the CCA dismissed the appeal, concluding:

Contrary to appellant’s claim, the military judge did not issue “[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” UCMJ art. 62(a)(l)(B) (emphasis added). Although Congress intended to provide military prosecutors, to the extent practicable, with the same rights of appeal afforded to federal civilian prosecutors in 18 U.S.C. § 3731 (i.e., the right to appeal trial rulings dismissing charges or excluding substantive evidence), the jurisdictional language codified by Congress in Article 62, UCMJ, differs from 18 U.S.C. § 3731. See United States v. Lopez de Victoria, 66 M.J. 67, 68-71 (C.A.A.F. 2008) (explaining the general intent of Congress in enacting Article 62, UCMJ).

Specifically, the plain language of 18 U.S.C. § 3731 confers appellate jurisdiction over trial orders suppressing evidence, only conditioned upon timely certification from the United States attorney. United States v. Grace, 526 F.3d 499, 505-06 (9th Cir. 2008) (en banc). In contrast, the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria.

United States v. Jacobsen, No. 20160768, slip op. at 1 (A. Ct. Crim. App. Feb. 6, 2017) (order) (marks in original) (discussed here). The Government Appellate Division sought reconsideration and the CCA reached the same conclusion on March 16, 2017, again highlighting the different language of the civil and military statutes.

The JAG then certified the case to CAAF to determine whether a CCA may determine that a prosecution appeal does not meet the Article 62 criteria despite a trial counsel’s certification that it does.

The Army Government Appellate Division’s brief asserts that the Army court’s decision conflicts with precedent from CAAF, federal civil courts, and the Air Force and Navy-Marine Corps courts, and also that:

The ACCA’s narrow, structural interpretation of Article 62, UCMJ, frustrates the legislative intent behind the statute and divorces the statute from its intended purpose.

Gov’t Div. Br. at 4. The brief then reviews the related federal statute (18 U.S.C. § 3731) and cases interpreting it. See Gov’t Div. Br. at 7-11. It ultimately concludes that “in its opinions, the ACCA does not offer any reason why these appeals should operate differently in the military than in federal civilian courts.” Gov’t Div. Br. at 11. But this isn’t quite right, as the Army court based its decisions on the fact that 18 U.S.C. § 3731 and Article 62 (10 U.S.C. § 862) are worded differently.

Next, the Government Division’s brief focuses on two decisions by other CCAs: United States v. Pacheco, 36 M.J. 530, 533 (A.F. Ct. Crim. App. 1992), and United States v. Scholz, 19 M.J. 837,841 (N.M.C.M.R. 1984). Gov’t Div. Br. at 11-16. The Air Force CCA’s decision in Pacheco adopted the reasoning of the Navy-Marine Corps court’s decision in Scholz. The Scholz decision, however, read Article 62 broadly:

[S]hort of a constitutional bar, the United States has a broad right of appeal under Article 62, U.C.M.J. While this may mean that many rulings are potentially eligible for appellate review, from a practical standpoint, the military’s interest in preventing a backlog within its own system will act to prevent an abuse of the right. Any further limitation on the exercise of appellate review is an area for legislative, not judicial action.

Viewing the facts sub judice, we find that the Petitioners have properly alleged that the excluded evidence was substantial proof of a fact material to the proceedings. We are not persuaded by the Respondent’s argument that the evidence was cumulative. In an interlocutory appeal, it is beyond the scope of this Court to speculate as to what weight or importance a particular piece of evidence might have at trial. It is sufficient that the petitioner believes that the evidence is significant enough to seek reversal of a military judge’s exclusionary ruling rather than continue at trial with whatever other evidence that might be available. Accordingly, we hold that this Court has jurisdiction to hear Petitioner’s appeal.

Scholz, 19 M.J. at 840-41. This is persuasive evidence that the Army court’s rejection of the appeal in this case was wrong.

The Government Division’s brief then turns to policy arguments and the promised discussion of controlling precedent from CAAF:

To the extent that the ACCA held that the difference between Article 62, UCMJ, and 18 U.S.C. § 3731 reflects a substantive difference in the two appeals, it makes a distinction without a difference. In United States v. True, 28 M.J. 1, 2 (C.A.A.F. 1989), this Court specifically analyzed the differences between Article 62, UCMJ, and § 3731. . . . After noting that the “wording” and “presentation” of Article 62 differed from § 3 731, this Court held that “the practical effect of the … language in both statutes is the same, i.e., avoidance of technical barriers to government appeals.” Id. . . . Thus, the ACCA departed from both the plain meaning of Article 62 and this Court’s precedent on the relationship between the two appeals statutes.

Gov’t Div. Br. at 19-20. It concludes with the argument that “Congress enacted the existing text of Article 62, which allows the Government to select and certify its own interlocutory appeals and confers jurisdiction over those appeals directly to the appellate courts.” Gov’t Div. Br. at 23.

Jacobsen’s response suggests that CAAF has already answered the certified question:

In United States v. Bradford, this Court found the trial counsel’s appeal did not meet the statutory criteria, and then held the lower court did not have jurisdiction to review the substance of the appealed ruling. 68 M.J. 371, 373 (C.A.A.F. 2010). See also United States v. Anderson, 69 M.J. 176 (C.A.A.F. 2010); United States v. Borgman, 69 M.J. 84 (C.A.A.F. 2010).

Accused’s Br. at 10. Bradford, however, addressed a prosecution motion to preadmit evidence, which is a nonexistent procedure to admit trial evidence at a pre-trial hearing (prior to a court-martial’s assembly, members selection, and opening statements). The military judge rightly rejected the motion, and CAAF rejected the prosecution appeal because “the Government has not [yet] moved to admit the document at trial.” 68 M.J. 373. Anderson and Borgman were trailer cases raising the same issue. These cases are fundamentally different from the issue presented in Jacobsen because they didn’t address the exclusion of evidence (but rather merely required the prosecution follow the rules and admit the evidence at trial). CAAF’s resolution of United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014) (CAAFlog case page) (finding no jurisdiction), reached a similar conclusion.

But Jacobsen’s response also presents a more pragmatic approach:

If a trial counsel’s “certification of the appeal conclusively establishes jurisdiction in the appellate courts” – as the government alleges in its brief – then a timely appeal under Article 62, UCMJ, could never be dismissed on jurisdictional grounds by an appellate court. (Gov’t. Br. 4) (See also Gov’t. Br. 11) (“Under Article 62, UCMJ, as under 18 U.S.C. § 3731, the trial counsel’s certification is conclusive for purposes of establishing jurisdiction”). This position is directly contradicted by Bradford.

Accused’s Br. at 12. This is a strong point. If an appellate court can reject a prosecution appeal on the basis that is does not exclude evidence (as CAAF did in Bergman and Vargas; both of which were not appealed), then presumably it can also reject a prosecution appeal on the basis that the excluded evidence is not substantial proof of a material fact.

Jacobsen’s brief also highlights the differences between 18 U.S.C. § 3731 and Article 62. See Accused’s Br. at 13-18.

Finally, under a heading that “The government’s position would provide trial counsel with the same
authorities – but none of the limitations – as United States Attorneys,” Accused’s Br. at 18, Jacobsen concludes that:

Through its narrow focus on the certification requirements, the government argues that trial counsel have the unilateral ability to mandate appellate review of any evidentiary ruling excluding evidence at any time before or during a trial, as long as they certify such evidence meets the applicable standard. Again, such unfettered authority is not even granted to United States Attorneys. Plain and simple, the similar certification requirements within the two statutes does not obviate their clear textual differences, nor the structural differences between courts-martial and federal civilian criminal prosecutions.

Accused’s Br. at 19-20.

A reply brief from the Army Government Appellate Division practically invites CAAF to focus on the differences between military trial counsel and United States Attorneys:

This Court should not construe the certification requirements of Article 62, UCMJ, differently from those detailed in 18 U.S.C. § 3731 without some compelling rationale based in the difference between military and civilian practice.

Reply Br. at 9. Our #2 Military Justice Story of 2015 comes to mind.

The Air Force Appellate Government Division filed an amicus curiae brief in support of the Army Appellate Government Division’s position. The brief primarily asserts that military appellate courts are ill-suited to make the factual determination that the Army CCA made in this case (that the excluded evidence is not substantial proof of a material fact):

[I]n the present court-martial, where the Government had begun to present evidence, the Government still had yet to rest its case. (Govt. Br. at 2-3.) As such, the Army Court of Criminal Appeals did not have the necessary and complete factual basis to conclude that the excluded prior consistent statement was not substantial proof of a fact material in the proceeding.

In sum, given the Court of Criminal Appeals’ lack of fact-finding authority in an Article 62 appeal, it cannot adequately determine whether evidence constitutes “substantial proof of a fact material in the proceeding.”

Amicus Br. at 4. This is a pretty appealing observation, except that the question of whether something is substantial proof of a material fact may well be a question of law, not a question of fact. The Mil. R. Evid. 403 criteria, for example, are questions of legal relevance that seem to directly address whether something is substantial proof of a material fact. Evidence that is, say, needlessly cumulative, or misleading, or would waste time, would not be substantial proof of a material fact.

Considering this, next week’s oral argument might focus less on the meaning of the statute and more on what the CCA actually decided.

Case Links:
ACCA Order (Feb. 6, 2017) (CAAFlog link)
ACCA Order (Mar. 16, 2017) (CAAFlog link)
Appellant’s (Army Gov’t Appellate Div.) brief
Appellee’s (Jacobsen) brief
Appellant’s reply brief
Amicus brief in support of Appellant (A.F. Gov’t App. Div.)
Blog post: Argument preview

One Response to “Argument Preview: Determining when a prosecution appeal is authorized, in United States v. Jacobsen, No. 17-0408/AR”

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

    How is evidence of an alleged victim’s credibility (or lack thereof) a “fact?”

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