CAAF will hear oral argument in the certified interlocutory Army case of United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page), on Tuesday, January 27, 2014. The case involves a 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.

Production of such 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, after the witness testifies on direct examination. In Muwwakkil, the Government called the alleged victim to testify at trial, but then was able to produce only part of the recording of her pretrial testimony because the rest was lost 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). Of approximately 2 hours and 15 minutes of testimony at the Article 32 investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. The military judge then 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 testimony of the alleged victim. Id.

The Government promptly appealed. The Army CCA denied that appeal and affirmed the judge’s ruling in a published opinion, reasoning:

There is no evidence that the government destroyed the statement in “good faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at 376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the government simply disagrees with the judge’s exercise of her discretion as to the proper remedy. Any disagreement any of us might have with the judge’s exercise of discretion under these circumstances is no basis for relief under Article 62. See Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might disagree with the trial court’s findings, but whether those findings are ‘fairly supported by the record.’”) (citation omitted). Indeed the law demands that we respect and defend the reasoned exercise of a trial judge’s discretion in cases such as these and so we do here.

73 M.J. at 863. 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).

When I first noted the JAG’s certification (in this post), I thought that the second certified issue was particularly interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs in an interlocutory appeal. Instead of addressing the military judge’s ruling directly (the normal process), the issue challenges the decision of the Army CCA.

But the Government’s brief is even more interesting, as it uses the first issue to recast the entire case as a question of discovery rather than an application of RCM 914, and it opens with the novel assertion that:

The military judge was faced with a case dispositive motion in the middle of the government’s case in chief. The government counsel was granted less than 12 hours to evaluate the appellee’s citations to federal law, and respond in kind. Caveated [sic] as a motion to strike, and interpreted as a motion to suppress evidence, the government was essentially precluded from presenting the proper argument, which is spoliation of evidence.

Gov’t Br. at 7.

The Government’s brief asserts that “the language of 914 mirrors the plain language of the Jencks Act, but that does not mean that the federal case law regarding Jencks should be controlling here.” Gov’t Br. at 11. The Government’s position is that the military’s discovery process – a process that the Government asserts is “vastly more broad than the federal system,” Gov’t Br. at 11 – governs production of matters such as the recording, and the Government’s brief argues that “with no evidence of bad faith, and no evidence that the appellee took any effort to remedy this issue prior to jeopardy attaching, it is inappropriate to reach to RCM 914 for a remedy mid-trial.” Gov’t Br. at 14. Instead the Government argues that “the applicable test for remedy is defined in RCM 703(f) (2),” the rule for addressing unavailable evidence. Gov’t Br. at 13.

Notably, the Army CCA’s published opinion doesn’t address this argument because, as Appellee’s brief notes, the Government is making it for the very first time:

During argument on the trial motion the government made no mention of R.C.M. 703 focusing rather only on its degree of culpability under the Jencks analysis. (JA 100- 104). On appeal to the Army Court the government again made no challenge to the military judge’s ruling on the basis of R.C.M. 703 but rather that the military judge’s finding of negligence was ambiguous and her decided remedy was unreasonable under the circumstances.

App. Br. at 11. The Government’s brief also rather unconvincingly dismisses precedent recognizing that the Jencks Act applies to statements made by Government witnesses at Article 32 pretrial investigations. Gov’t Br. at 10-11. See United States v. Marsh, 21 M.J. 445, 451 (C.M.A. 1986) (“The Courts of Military Review, including the court that reviewed appellant’s case, have uniformly held that the Jencks Act applies to tapes of statements made by government witnesses at such a hearing. . . . This conclusion is justified. . .”)).

Yet from its appellate glass house, the Government throws stones at Appellee:

With no evidence of bad faith, and no evidence that the appellee took any effort to remedy this issue prior to jeopardy attaching, it is inappropriate to reach to RCM 914 for a remedy mid-trial. If this had been properly litigated under the rules of discovery, the government would have had opportunity to remedy the situation. Appellee himself speculated in his Motion for Continuance as to proper remedies to cure the defect. However, the defense specifically opted not to pursue a request for remedy, other than the continuance itself. He tactically waited until jeopardy attached and then raised the issue under Jencks rather than the proper application of the pretrial compulsory process. In an analysis of bad faith and prejudice, appellee is not blameless here. He made a strategic decision to wait to seek a far reaching and improper remedy.

Gov’t Br. at 14.

The Government thus seems to believe that Appellee had a duty to help the Government cure the defect caused by the Government’s failure to preserve the recording of its own witness’ pretrial testimony.

Moreover, the substance of the alleged victim’s testimony at the Article 32 investigation receives scant attention in the Government’s brief to CAAF. The Government’s brief does acknowledge, as did the trial judge and the Army CCA, that the Investigating Officer noted inconsistencies between the alleged victim’s pretrial testimony and statements she gave prior to that testimony. See Gov’t Br. at 4; 73 M.J. at 862 (quoting record). But it is Appellee’s brief that reveals the real significance of the inconsistent statements by the alleged victim:

The IO recommended the convening authority not refer the charges to court-martial primarily due to Ms. GP’s inconsistent testimony at the hearing. (JA 218). The convening authority however referred the charges to a general court-martial on January 15, 2014.

App. Br. at 7 (emphasis added).

Considering the Article 32 Investigating Officer’s recommendation against referral, it’s hard to fathom how the trial counsel failed to ensure that the recording of the alleged victim’s Article 32 testimony was preserved for use at trial, particularly since any statements inconsistent with the alleged victim’s trial testimony would be admissible. See MRE 801(d). It’s particularly hard to feel sympathy for the trial counsel who, the Government’s brief asserts, “was granted less than 12 hours to evaluate the appellee’s citations to federal law, and respond in kind.” Gov’t Br. at 7.

The Government’s brief on the second issue boils down to an argument for harmlessness. The Government asserts that:

At the 39a session, appellee acknowledged that he had the opportunity to review the summarized transcript, the IO report, and did so in the pre-trial phase. Appellee also noted that he was represented by counsel at the Art. 32 hearing, a second defense counsel was present for the entire proceeding, and a defense paralegal took copious notes for the express purpose of impeaching the victim.

All of this is evidence of no prejudice.

Gov’t Br. at 18. And yet, the “summarized transcript” of the alleged victim’s testimony at the Article 32 investigation was hardly much of a transcript at all. “Lacking in substance, the summarized transcript reads one and a half pages whereas Ms. GP testified for over two hours.” App. Br. at 28. Additionally, the defense paralegal’s noted are also no longer available to the Defense (for reasons not discussed in the briefs or the CCA’s opinion).

The Government’s brief concludes with a transparently desperate attempt to get CAAF to review this case de novo, rather than under the highly-deferential standard of an abuse of discretion:

The Army court did not articulate any specific findings of fact, yet deferred in total to the decision of the military judge. Likewise, although the military judge made no written findings or conclusions, the Army court did not question how her factual basis supported her conclusions of law. To grant such deference is nearly unheard of in our body of case law.

The military judge, and the Army court, not only made factual errors, they affirmatively failed to consider required information in the determination of both negligence and prejudice. Therefore, this Court should review the entirety of this case de novo, granting very little if any deference to the military judge’s findings.

Gov’t Br. at 20 (emphasis added). This is probably the most disappointing part of the Government’s brief, as the Army CCA’s opinion quotes numerous findings of fact by the military judge that at least appear to support a conclusion that Appellee is prejudiced by the Government’s failure to preserve the recording. These include the military judge’s findings that:

“[I]mpeaching [GP] is the defense’s most important strategy”;

“[The Investigating Officer] indicated that GP’s testimony has been inconsistent with previous statements”;

“In order to properly impeach [GP], the defense needs to have access to [that recording]”;

Neither the defense paralegal’s notes nor those of the investigating officer are adequate substitutes because neither are sufficiently verbatim;

There is no substitute available for that recording in this case;

[I]t’s not up to the military judge to determine whether or not that statement is useful. It’s not my job to look through it and ensure that every single inconsistency is made. My job is to ensure that the defense counsel has the tools he needs for adequate cross-examination in accordance with the law which is the Jencks Act and R.C.M. 914 which codifies that in the military justice system[; and]

“[T]he defense counsel does not have what he needs to adequately prepare for cross-examination of [GP]. It is based on the government’s actions which involve negligence. I don’t believe it can be remedied in any way other than to strike the testimony of [GP].”

73 M.J. at 861 (edits in original).

The Government is in an unenviable position in this case. But so too is Appellee, who stands accused of sexual assault at a general court-martial. It seems inevitable that CAAF’s opinion will involve a choice between excusing the Government’s negligence or protecting Appellee’s procedural rights, and I think the Government is unlikely to prevail.

Case Links:
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

7 Responses to “Argument Preview: United States v. Muwwakkil, No. 15-0112/AR”

  1. Dew_Process says:

    Just because the legal system has moved away from the view that all rape accusations are contrived does not mean it must move to the view that none are.
    ~~ Nancy Gertner, U.S. District Court Judge (ret.); Prof. of Law, Harvard Law School

    Food for thought!  Read the entire article HERE.

  2. TBeckett says:

    Shame on the government for putting a witness on the stand when it wasn’t prepared to comply with Jencks.  I admire the pluckiness of the government’s argument on appeal, though.

  3. Tom Booker says:

    Fun fact, and completely unrelated to the discussion of Muwwakkil, but pertinent to the post from Dew Process.  Judge Gertner was an adjunct professor at Boston University School of Law in the early 1980’s when she was a civil rights and criminal defense attorney (and colleague of Harvey Silverglate), before her appointment to the U.S. District Court by President Clinton (who might have been a Yale Law classmate).  I studied juries with her for a semester.  She was a brilliant and gifted attorney then, and I still have the greatest respect for her.  She even liked my argument, although nobody’s seriously bought it, that the Federal Rule of Criminal Procedure (26) that requires the U.S. Attorney to consent to a defendant’s election to go judge-alone, is unconstitutional (the 6th amendment is different from the 7th; get over it).  Of course any similar rule in court-martial practice would probably be all right per the 5th amendment, the 6th amendment right to a jury not applying to a court-martial (and the 7th, being purely for civil matters, also not applying).
    Tom Booker

  4. RY says:

    Seems to me RCM 703 was implicated because the problem with RCM 914 is that the statement is no longer within the Gov’t possession so it is a destruction of evidence / lost evidence issue in conjunction with Jencks.  I didn’t read the MJ’s ruling but the portions quoted above hit the magic language – that the record is of primary significance to trial and there are no adequate substitutes.  Thus, whether he or she specifically cited RCM 703 or not, the ruling addresses the salient provisions.  Moreover, RCM 703 differs from federal case law in that there is no need to prove bad faith or that the lost evidence is exculpatory.  The repeat references to whether it was bad faith or gross negligence are simply considerations in the totality of circumstances in arriving at a remedy.  Gov’t will probably be wasting time trying to fight the error and should instead focus on how it is harmless and remedy was too severe. 
    Zach – how was this a conviction?  If it’s an interlocutory Art 62 case, then the case should not have proceeded once the MJ was notified of the intent to appeal.  Did TC wait until after conviction to notify MJ of intent to appeal?

  5. Zachary D Spilman says:

    Not sure I understand your question RY. You’re right that this case is an interlocutory appeal in an ongoing court-martial. What part of my preview do you read to say otherwise?

  6. RY says:

    my mistake.  I misread your last paragraph to say he stands convicted as opposed to accused. 

  7. stewie says:

    I hate the idea of picking apart something where someone is just trying to do their job and make the best of a bad situation (and I won’t pretend I’d do any better in this situation than gov’t appellate counsel did), but hoo boy:
    “There is a long history of the Jencks Act being applied to military justice, but the cases on point are generally at odds with the intent of the statute.”
    This section basically says, I know you guys in the past have held, pretty consistently, contrary to what I’m about to argue, but you’ve gotten it wrong this entire time…repeatedly.  That’s a tough argument to make. And effectively, counsel is saying the military judge should have ignored direct, clear appellate precedence and was wrong to follow it (which is a tough abuse of discretion argument to make, but I guess it works if you are going for de novo and hoping that CAAF says, you know what, you’re right, we’ve gotten this wrong the entire time).
    “The language of 914 mirrors the plain language of the Jencks Act, but that does not mean that the federal case law…should be controlling here.”  OK, so we should ignore both military precedence AND Federal precedence, where both largely agree with each other?  And gov’t counsel says the Feds limit disclosure to exculpatory material (which leads me to ask, isn’t an inconsistent statement from a complaining witness exculpatory material?).
    The shift to 703.  Effectively the argument here appears to be that 703 only requires production of evidence that is relevant and necessary.  Necessary not being cumulative. And that the evidence here is cumulative because they already have her written statement which “almost mirror(s)” the 32 testimony.
    Couple thoughts there…”almost” mirrors is not the same thing as mirrors…so at least part of it is explicitly not cumulative.  Testifying under oath is a fundamentally different thing than signing a statement, and the fact that she said something not once, but twice one way, then testified differently at trial is, to quote Ron Burgandy, “kind of a big deal.”
    The problem with 703 is that it still leads to an abuse of discretion review.  The other problem is that, 914 is a subset of the concerns in 703.  If one were to take gov’t counsel’s argument to it’s natural end, why would we ever use 914 again? When would we analyze lost testimony under 914 vice 703?  I know the brief appears to argue that 914 is really an almost pro-government rule but much like how the gnomes made profit from selling stolen underpants, I don’t see how we get there.
    Next, the idea that appellee is required to take steps to remedy this situation.  I mean, gov counsel is going to get raked over this argument I think.  Maybe not, but boy in what universe is the defense required to fix the government’s discovery issues?  And what efforts would have made the lost found? The deleted recovered?  This Judo attempt to flip the burden from government to defense is quite frankly ill-advised, at best.  Stick to the arguments as to why there was no prejudice.  This was a completely “anticipatable” situation by government.  They knew they didn’t have a verbatim transcript.  They knew the victim was going to testify.  They knew that 914 was likely to be invoked.  A smart TC would have gotten out in front of this and done a motion early on to litigate this, and find an alternate route.  Government waiting until trial to address this was just plain dumb…so no, they didn’t have a mere 12 hours to anticipate/respond to this issue…they had from the moment they found out they did not have a verbatim transcript (which according to the gov’s brief, was prior to arraignment).  I mean I’m assuming base-level competency here…perhaps that’s too much.
    The bottom line is, if we assume that there is some line we cross in dealing with 914 where harm manifests, it most certainly is going to be when dealing with the alleged victim’s prior, inconsistent, sworn testimony…there are few instances more likely to be harmful than that.  This isn’t a secondary witness. 
    I hope gov counsel, for her sake, focuses a lot more on the argument that there is no prejudice, or that the MJ didn’t examine appropriate alternate measures, then this idea that 914 really shouldn’t be used much or that the accused is somehow responsible for solving the government’s discovery obligations.