Opinion Analysis: A trial counsel’s certification doesn’t create interlocutory jurisdiction, in United States v. Jacobsen
CAAF decided the certified Army case of United States v. Jacobsen, 77 M.J. 81, No. 17-0408/AR (CAAFlog case page) (link to slip op.), on Monday, December 11, 2017. Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.
Judge Ryan writes for the court, joined by Chief Judge Stucky, Judge Ohlson, and Judge Sparks. Senior Judge Cox dissents.
The case is an interlocutory appeal in an ongoing 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. The prosecution wants to introduce a prior statement of the alleged victim to rehabilitate her credibility, but the military judge prohibited it from doing so. The prosecution then appealed that ruling.
Article 62 authorizes interlocutory appeals under limited circumstances. One of them is when a military judge issues “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). The prosecution filed such an appeal, and the trial counsel certified “that the evidence excluded is substantial proof of a fact material in the proceeding.” Article 62(a)(2).
But the Army CCA found that it lacked jurisdiction to consider the appeal because, despite the trial counsel’s certification, the CCA concluded that the military judge did not exclude evidence that is substantial proof of a fact material in the proceeding. The Judge Advocate General of the Army then certified a single issue to CAAF:
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.
Yesterday’s opinion answers this question with a no. A majority of CAAF adopts the reasoning of the Army CCA that because interlocutory appeals are allowed only when the case “actually meet[s] specified criteria,” slip op. at 4 (quoting CCA opinion), “the ACCA had to satisfy itself that it had appellate jurisdiction before proceeding to review the merits of the appeal,” slip op. at 5. As the lone dissenting voice, however, Senior Judge Cox “see[s] no reason in military practice for an application of Article 62, UCMJ, that second guesses the trial counsel’s certification as to the impact that excluding evidence has upon its ability to successfully try its case.” Diss. op. at 3.
Writing for the majority, Judge Ryan begins with a rather blunt rejection of the Government’s argument that Article 62 should be read in harmony with 18 U.S.C. § 3731, which authorizes prosecution appeals in the federal civil courts and treats a United States attorney’s certification as dispositive:
Irrespective of whatever rules and regulations may provide additional layers of caution upon its exercise, Article 62, UCMJ, itself provides that trial counsel for the government may file an interlocutory appeal, in contradistinction to the federal statute, which requires certification by a presidentially nominated, senate-confirmed U.S. attorney.
Slip op. at 3 n.3. Put differently: a military trial counsel is not the same as a federal prosecutor.
Judge Ryan returns to the subject later in the opinion, identifying three “important textual and structural differences between Article 62, UCMJ, and 18 U.S.C. § 3731.” Slip op. at 8. One of these is that 18 U.S.C. § 3731 includes a clause requiring it to be liberally construed, and Judge Ryan observes that in the Military Justice Act of 2016, “Congress added a liberal construction clause to Article 62, UCMJ, identical to 18 U.S.C. § 3731.” Slip op. at 9 n.5. This clause, however, is not yet in effect, and very likely will not affect CAAF’s analysis because it involves only one of three textual and structural differences between the statutes (four, if we include the difference between a trial counsel and a U.S. attorney).
But the real heart of Judge Ryan’s majority opinion is that:
the language in Article 62(a)(1)(B)’s second prong – the evidence excluded by a military judge’s trial ruling was evidence that is substantial proof of a fact material in the proceeding – is . . . jurisdictional because the subsection imposes two requirements, there is no reason to treat the two criteria differently, and the decisions by this Court in Vargas, Wuterich, Bradford, and Browers make clear they are jurisdictional in nature. While the government in each case certified that the military judge’s ruling excluded evidence that was substantial proof of a fact material in the proceeding, in each instance this Court looked beyond the certification to determine whether appellate jurisdiction existed.
Slip op. at 7 (emphasis in original). This analysis reflects a wholesale rejection of the Army Appellate Government Division’s argument (in which the Air Force Appellate Government joined as an amicus curiae), and it will not be affected by any pending legislative change.
The majority approach is textualist. Senior Judge Cox’s dissent, in contrast, is pragmatic. He expects that:
the majority view will likely change the rules for Article 62, UCMJ, appeals. The initial focus will not be on whether the ruling excludes evidence, nor will it be on whether the military judge got it right, but rather is the evidence substantial proof of a material fact. Application of the majority view will be interesting.
Diss. op. at 3. But he also suggests that:
It is ironic that the appeal would focus on the question of whether the matter was substantial proof of a material fact rather than whether the military judge got the ruling right. If it is not substantial proof, the Court of Criminal Appeals should say so and why it believes that to be the case and dismiss the appeal not because it lacks jurisdiction but because the ruling is simply not worthy of its consideration.
Diss. op. at 3. Put differently, an appeal that fails the Article 62 criteria may just as easily be rejected on the merits as on the criteria. But the JAG asked CAAF to find the criteria off-limits, forcing analysis of the merits. The majority doesn’t agree that the statute does that.
Senior Judge Cox also suggests:
If you find the [prosecution’s] appeal to be frivolous, say so and dismiss it as being a frivolous appeal. Let the chips fall where they may.
Diss. op. at 4. The obvious response is why start now. CAAF’s Article 62 precedent weighs heavily in favor of seriously considering even the thinnest of prosecution appeals, such as appeals involving the denial of a recess or the refusal to admit evidence before the court-martial began. See United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page) (recess); United States v. Bradford, 68 M.J. 371, 373 (C.A.A.F. 2010) (discussed here) (preadmit evidence). The Army CCA’s opinion in Jacobsen could be read as calling the prosecution appeal frivolous without actually using that word, and that’s likely the toughest language we can expect to see.
• 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
• Oral argument audio
• CAAF opinion
• Blog post: Opinion analysis