CAAFlog » September 2014 Term » United States v. Vargas

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.”

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Audio of today’s oral argument at CAAF in United States v. Vargas, No. 14-6009/MC (CAAFlog case page) is available here.

CAAF will hear the first oral argument of the September 2014 Term in the Marine Corps case of United States v. Vargas, No. 14-6009/MC (CAAFlog case page), on Tuesday, September 9, 2014. The court will review the decision of the Navy-Marine Corps CCA that granted a Government interlocutory appeal and vacated a military judge’s rulings that denied the Prosecution an overnight recess during trial and rested its case.

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 the Government counsel was unprepared to present any more evidence until the second day.

So Government counsel requested a continuance until the following morning. 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 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) (link to unpub. op.). The court then analyzed the circumstances (giving surprisingly little deference to the trial judge) and concluded:

In light of the circumstances of this case, we conclude that the military judge’s action in denying the Government a brief recess during trial and then sua sponte, over objection, resting the Government’s case was a clear abuse of discretion.

Slip op. at 10. In my analysis of the CCA’s opinion I discussed two potential issues: whether the CCA had jurisdiction and whether the court gave the required degree of deference to the trial judge’s rulings. A few months later Appellant sought review by CAAF, identifying these same two issues, and in July the court granted review of the jurisdictional question:

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.

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CAAF’s oral argument calendar was updated today, listing the date and case of the first oral argument of the September 2014 Term:

Tuesday, September 9, 2014
9:30 a.m.:

United States v. Ruben Vargas  No. 14-6009/MC
(Appellee) (Appellant)

Counsel for Appellant:  LtCol Richard A. Viczorek, USMCR
——————————– (supplement)
—————————————– (reply)
Counsel for Appellee:  Maj David N. Roberts, USMC (answer)

Case Summary: Special court-martial prosecution for assault consummated by a battery. Granted issue questions 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.

NOTE: Counsel for each side will be allotted 20 minutes to present oral argument.

I discussed the NMCCA’s decision in Vargas in a March post titled: The NMCCA finds that Article 62 authorizes appeals of recesses.

The online version of CAAF’s daily journal is usually a full day behind (i.e., today’s update posted yesterday’s activity), so while I normally post the daily journal entry for CAAF grants, we won’t have that until tomorrow at the earliest.

In what looks like one hot mess of a case, the NMCCA finds that Article 62 authorizes a Government appeal of “the military judge’s decision to deny the Government’s request for an overnight recess and then sua sponte resting the Government’s case over its objection.” United States v. Vargas, No. 201300426 (N-M.Ct.Crim.App. Feb. 28, 2014) (link to unpub. op.).

The appellee is a Marine Staff Sergeant and the case is a special court-martial with members for a single specification of assault consummated by a battery. Trial began on October 22, 2013, and was docketed for three days. The Government planned to call seven witnesses; four on the first day and three on the second day. But “[o]n day one of the appellee’s trial, empanelment of the members was completed by noon and the testimony of the Government’s first four witnesses concluded at approximately 1400.” Slip op. at 2. The other three witnesses weren’t available yet, and so the Government requested a recess until the next morning. The Defense opposed the request, and the military judge denied the request. Then the follow exchange took place:

MJ: So your motion is denied. Do you have anything  else?

TC: Yes, ma’am. Given that ruling by the military judge, at this time, the government intends to offer – to exercise its right to an interlocutory appeal under Article 62 of the Uniform Code of Military Justice. The government intends to provide 72-hour written notice to the military judge upon recess from this court.

MJ: You may do so. But, I am not obliged to continue the case while you do that, and I am declining to exercise that continuance so that you may do that. You may do it simultaneously with this case, but we are going to proceed.

Slip op. at 3. Notably, R.C.M. 908(b)(1) states: “After an order or ruling which may be subject to an appeal by the United States, the court-martial may not proceed, except as to matters unaffected by the ruling or order, if the trial counsel requests a delay to determine whether to file notice of appeal under this rule” (emphasis added). More on this in a moment.

The members were recalled and the military judge rested the Government’s case. The Defense immediately also rested, and then the Defense moved for a finding of not guilty under R.C.M. 917 based on the inadequacy of the case presented by the Government up to that point (though one would think four witnesses would be enough to prove a battery…). But the judge denied the Defense motion.

The judge then acknowledged the requirement of R.C.M. 908 and recessed the case for the Government appeal. But the Government didn’t appeal. Rather, it moved for reconsideration. The next morning (presumably with the three witnesses available and ready to testify) “the military judge made findings of fact and reaffirmed her earlier decision denying the Government’s request to recess the trial.” Slip op. at 5. That would be the recess that would have run from the afternoon before to that very morning (had it been granted, of course). Then the Government appealed. And now the CCA grants the Government appeal.

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