CAAF decided the interlocutory Marine Corps case of United States v. Vargas, 74 M.J. 1, No. 14-6009/MC (CAAFlog case page) (link to slip op.), on Monday, December 8, 2014. The court holds that the Article 62 does not confer jurisdiction for the Government’s appeal of the military judge’s ruling that denied a Government request for a continuance, reversing the decision of the Navy-Marine Corps CCA and remanding the case for further trial proceedings.
Judge Erdmann writes for the court, joined by Judges Stucky, Ryan, and Ohlson. Chief Judge Baker dissents.
Appellant is a Marine Staff Sergeant charged with a single specification of assault consummated by a battery. Trial before a special court-martial with members began on October 22, 2013, and was docketed for three days. Government counsel planned to call seven witnesses; four on the first day and three on the second day. However, the empanelment of members and the testimony of the first four witnesses went faster than anticipated, and by mid-afternoon on the first day the Government counsel was unprepared to present any more evidence until the second day. So, Government counsel requested a continuance until the following morning.
But the Defense opposed the continuance and the military judge denied it. Government counsel then gave notice of intent to appeal the judge’s ruling. This notice is supposed to stop the proceedings (pursuant to R.C.M. 908(b)(1)), but the military judge kept going, including resting the Government’s case and denying a Defense motion for a finding of not guilty pursuant to R.C.M. 917 (the Defense rested without presenting any evidence). The parties began to discuss instructions for the members before the military judge finally stopped the proceedings for the Government’s appeal.
That evening Government counsel changed course, sending the judge an email disclaiming any intent to appeal the denial of the continuance and asking for reconsideration of the ruling that the Government’s case was rested. The next day the military judge heard the Government’s motion for reconsideration and reaffirmed her rulings. The Government then gave a second notice of intent to appeal, and an interlocutory appeal under Article 62 followed.
A three-judge panel of the NMCCA granted that appeal, vacating the judge’s rulings, after finding that it had jurisdiction to do so under Article 62 (which authorizes Government appeals in various situations including of “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B)). The CCA determined that:
By denying the trial counsel’s motion for a recess until the next morning and then sua sponte resting the Government’s case, the military judge effectively denied the Government the opportunity to present critical testimony that is substantial proof of a fact material in the proceeding.
United States v. Vargas, No. 201300426, slip op. at 9 (N-M. Ct. Crim. App. Feb. 28, 2014) (discussed here). CAAF then granted review to determine whether the CCA had jurisdiction to reach this conclusion, with the following issue:
Whether the Navy-Marine Corps Court of Criminal Appeals erroneously interpreted Article 62, UCMJ, to allow a Government appeal of the military judge’s denial of a continuance request as well as the military judge’s order resting the Government’s case.
In today’s opinion the court answers this question with a clear “No.”