CAAF decided the certified interlocutory Army case of United States v. Muwwakkil, 74 M.J. 187, No. 15-0112/AR (CAAFlog case page) (link to slip op.), on Thursday, May 28, 2015. The court unanimously affirms the 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. CAAF rejects both issues certified by the Judge Advocate General of the Army, affirming the decision of the Army CCA.

Judge Ohlson writes for the court, joined by all but Judge Stucky who concurs in the result but writes separately to distinguish the Jencks Act (18 U.S.C. § 3500) from Rule for Courts-Martial 914.

Production of 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. In this case, the Government called the alleged victim to testify at trial, but then produced only part of the recording of her pretrial testimony. The majority of the recording was lost by the Government 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).

Specifically, of approximately 2 hours and 15 minutes of testimony by the alleged victim at the Article 32 pretrial investigation, only approximately 52 minutes was preserved. 73 M.J. at 861. Considering this, the military judge 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 entire testimony of the alleged victim. Id.

The Government promptly appealed under Article 62. The Army CCA denied that appeal and affirmed the judge’s ruling. 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).

Rejecting the Government’s appeal and affirming the decision of the Army CCA, Judge Ohlson unravels the Government’s various arguments – that federal Jencks Act precedent doesn’t apply to courts-martial, that this is actually a discovery issue, that the accused should have litigated this issue pretrial rather than waiting until after the alleged victim testified, that the recording of the alleged victim’s testimony during the Article 32 pretrial investigation is not a statement, that the Government can not be required to produce something that is lost, and that the judge was required to find that the Government acted in bad faith prior to imposing the remedy of striking the testimony of the alleged victim – and CAAF concludes that the “military judge did not err or otherwise abuse her discretion in applying the provisions of the Jencks Act and R.C.M. 914 to the instant case.” Slip op. at 18.

Judge Ohlson’s opinion begins with a discussion of the purpose of the Jencks Act and its implementation in courts-martial:

The Jencks Act requires the military judge, upon motion by the accused, to order the government to disclose prior “statement[s]” of its witnesses that are “relate[d]” to the subject matter of their testimony after each witness testifies on direct examination. The Jencks Act is intended “‘to further the fair and just administration of criminal justice’” by providing for disclosure of statements for impeaching government witnesses.

In 1984, the President promulgated R.C.M. 914, and this rule tracks the language of the Jencks Act, but it also includes disclosure of prior statements by defense witnesses other than the accused. Both R.C.M. 914 and the Jencks Act afford the defense an opportunity to impeach witnesses and enhance the accuracy of trial proceedings through cross-examination of witnesses. Given the similarities in language and purpose between R.C.M. 914 and the Jencks Act, we conclude that our Jencks Act case law and that of the Supreme Court informs our analysis of R.C.M. 914 issues.

Slip op. at 7-8 (marks and citations omitted). Noting that “the Government claims that the Jencks Act is ‘subsumed’ in R.C.M. 914,” Judge Ohlson also explains that “in this case, the result would be the same under both R.C.M. 914 and the Jencks Act.” Slip op. at 8-9 n.2. But the difference between the Jencks Act and R.C.M. 914 is highlighted in CAAF’s rejection of the Government’s discovery argument.

First, Judge Ohlson discusses the Government’s discovery-based contention:

[T]he Government contends that the accused should have been required to litigate the issue involving the loss of GP’s Article 32, UCMJ, testimony as a pretrial discovery matter under R.C.M. 701 and R.C.M. 703(f)(2) rather than as a motion for production under R.C.M. 914. However, we note that the Government did not raise this argument with the military judge, nor did it raise the issue with the CCA until the Government filed its motion for reconsideration – which the CCA denied. Under the particular circumstances of this case, we decline to entertain this untimely argument in this appeal.

Slip op. at 10. R.C.M. 701 is the baseline discovery rule for courts-martial, and R.C.M. 703 details the procedure for the production of witnesses and evidence at trial (and authorizes sanctions for failures of production). Even though CAAF rejects outright the Government’s discovery-based argument in this case, Judge Ohlson indicates that it wasn’t a very good argument when considered in the context of R.C.M. 914:

Although we decline to entertain the Government’s discovery argument, we briefly address in this footnote the difference between the Jencks Act and R.C.M. 914 with respect to discovery. The Jencks Act’s “major concern is with limiting and regulating defense access to government papers.” Palermo v. United States, 360 U.S. 343, 354 (1959). On the other hand, the military justice system affords an accused broad rights and remedies under the discovery provisions of the UCMJ that are more extensive than those afforded in the civilian criminal justice system. See United States v. Pomarleau, 57 M.J. 351, 359 (C.A.A.F. 2002). As a result, resort to military discovery procedures “should make resort to [R.C.M. 914] by the defense unnecessary in most cases.” MCM, Analysis of the Rules for Courts-Martial app. 21 at A21-64 (2012 ed.). Nonetheless, the military’s discovery rules do not render R.C.M. 914 meaningless when its terms apply.

Slip op. at 11 n.3.

Next, Judge Ohlson turns to the Government’s contention “that R.C.M. 914 does not actually apply in the instant case because recorded Article 32, UCMJ, testimony does not constitute a ‘statement.'” Slip op. at 11. Rejecting this contention and re-affirming the decision in United States v. Marsh, 21 M.J. 445, 451 (C.M.A. 1986), that such recorded statements are Jencks Act / R.C.M. 914 statements, Judge Ohlson notes that “the text of R.C.M. 914 itself indicates that recorded Article 32, UCMJ, testimony constitutes a ‘statement’ because it meets the R.C.M. 914(f)(2) standard of being ‘[a] substantially verbatim recital of an oral statement . . . that is recorded contemporaneously with the making of the oral statement and contained’ in a recording.” Slip op. at 12.

Yet the Government also asserted that it can not be required to produce a statement that it does not possess. But Judge Ohlson highlights the significance of how that loss occurred:

GP’s Article 32, UCMJ, recording was no longer in the Government’s possession solely because of the Government’s own negligence in failing to preserve it. It would be an odd result indeed if the Government ultimately was rewarded for its own negligence. Cf. Lieberman, 608 F.2d at (“When all that a witness said was recorded and then wholly or partly destroyed, it was at least once contained in ‘statements’ ‘in the possession of the United States’” (quoting 18 U.S.C. § 3500(e))). We therefore find that the Government’s negligent failure to retain control of the recorded Article 32, UCMJ, testimony, which once had been in its exclusive  possession,” effectively means that “the trial counsel . . . elect[ed] not to comply” with the requirement under R.C.M. 914(e) to provide a copy of GP’s “statement” to the defense.

Slip op. at 13-14.

Judge Ohlson then addresses the fact that the military judge found only that the Government acted negligently, and did not find that it acted in bad faith, when it lost the recording. Noting that “jurisprudence of the Supreme Court and our Court . . . has recognized a judicially created good faith loss doctrine,” but that this doctrine is “generally limited in its application,” Judge Ohlson concludes that:

in the instant case we find that the military judge did not err in declining to apply the good faith loss doctrine because she explicitly found that the Government had engaged in negligent conduct, and a finding of negligence may serve as the basis for a military judge to conclude that the good faith loss doctrine does not apply in a specific case.

Slip op. at 14-15. This conclusions highlights the difference between a good faith doctrine that excuses a bad act caused by otherwise clean hands, and the Government’s argument that anything that isn’t bad faith (unclean hands) should be excused.

Finally, Judge Ohlson considers the question of prejudice raised by the second certified issue. Noting that “although the military judge did not use the specific term ‘prejudice’ in her findings, she did essentially engage in a prejudice analysis by finding that GP was a key witness with credibility issues and that there was no adequate substitute for GP’s recorded Article 32, UCMJ, testimony,” Judge Ohlson concludes that R.C.M. 914 does not require a prejudice analysis at the trial stage:

The plain text of R.C.M. 914 provides two remedies for the Government’s failure to deliver a “statement” without referencing a predicate finding of prejudice to the accused. Absent any reference to prejudice or harmless error, at this stage of the proceedings we conclude that the military judge was not required to engage in a prejudice analysis.

Slip op. at 17.

In a separate concurring opinion, Judge Stucky addresses only the “majority’s suggestion that the Jencks Act applies to courts-martial.” Con. op. at 1.

The President has exercised [his Article 36] authority by promulgating a procedural rule governing the production of statements of witnesses for courts-martial. See R.C.M. 914. This rule is based on Fed. R. Crim. P. 26.2, which is based on the Jencks Act. Manual for Courts-Martial, United States, Analysis of R.C.M. 914, at A21–64 (2012 ed.).

Just as the Supreme Court recognized that Congress has the primary responsibility for enacting the rules of procedure in federal criminal trials, this Court should recognize thatCongress has explicitly granted the President the authority to promulgate pretrial, trial, and post-trial procedural rules. Thus, I conclude that R.C.M. 914 supersedes the Jencks Act for trials by courts-martial.

Con. op. at 2-3.

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
Oral argument audio
CAAF opinion
Blog post: Opinion analysis

30 Responses to “The absence of bad faith does not win application of a good faith exception in United States v. Muwwakkil, No. 15-0112/AR”

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

    I think we have some insight on how CAAF will rule on Stellato….

  2. LookingForAnswers says:

    Is it normal for the request of the recording of the victims testimony at an Article 32 by the Defense to be denied?

  3. JTS says:

    This is a big deal, and all TCs/DCs should read this case, and the Government needs to train its paralegals accordingly.  I also think the JAG Corps, well at least the Army, should take a serious look at how it handles recordings/transcripts/etc. at Art. 32s in light of this case.  I don’t think the recording on the 10 year old voice recorder or paralegal’s cell phone and then doing some voodoo IT magic to get it onto a Government laptop is going to cut it anymore.  MJ Shops should put some serious thought on logistical and technological support for Art. 32s in light of this.  However, with a CW no longer being required to testify at a 32, I wonder how much impact this will have at future CMs for Defense where there is no Art 32 testimony to request from the chief witness.

  4. Jack Burton says:

    @ Looking for Answers:  No.  But as I understand this case the summarized transcript was also painfully short and did not fully account for the recorded testimony of the CW.  Something like a page of written testimony for 2.5 hours of recording, but its been some time since I read the pleadings.
    In the immortal words of Dr. Sheldon Cooper (Big Bang Theory):  Neener Neener…
    And yes; Can’t wait for Stellato ruling. 

  5. Zachary D Spilman says:

    MJ Shops should put some serious thought on logistical and technological support for Art. 32s in light of this.

    If your comment is intended to mean that CAAF’s decision obligates the Government to create the recording in the first instance (notwithstanding the new Article 32), then I think that’s wrong.

    Here the Government had a recording but lost it (or, perhaps more accurately, failed to safeguard it). I see nothing in Judge Ohlson’s opinion that requires the Government to make such a recording in the first instance. Moreover, such a requirement would have exceptionally broad implications. It would, for instance, require the Government (and the defense, in the case of a defense witness, as R.C.M. 914 applies to both sides) to record every conversation with every witness. 

    I don’t think this case is a particularly big deal. A pretrial screw-up has serious trial-stage implications. That’s pretty routine.

  6. Lieber says:

    Lookingforanswers: In the Army Article 32 hearings are always recorded.  then a paralegal prepares a summarized transcript in most cases.

  7. Tacitus says:

    The FY 2014 NDAA amended Article 32, UCMJ, to require recording.  Consequently, the Army would be wise to create uniform standards for making and safeguarding Article 32 recordings.

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

    Since recordings of Article 32 hearings are now required, I’m wondering if there continues to be a value in preparing a summarized transcript?  I personally don’t think so.  I think the paralegal’s time would be better spent learning how to prevent the accidental loss of recordings.
    I also wonder if the result of this case would have been different if the defense had recorded the victim’s Article 32 testimony?  We did this frequently when I was an SDC in Korea, there was no rule to prevent defense counsels from doing so.  Of course, we would also ask for copies of the recordings from the Government.  But if the defense in this case had recorded the alleged victim’s Article 32 testimony, would the Government’s negligence in losing its recording matter?  Could the judge have ruled in the Government’s favor if the judge found no prejudice, due to the defense’s possession of “a” recording?

  9. Broken System says:

    @ Tacitus  I agree that the Army would be wise to create uniform standards.  However, in order to accomplish that mission we would first need competent, real paralegals.  No offense to them as they are well intentioned, but their lack of training and professional competence is a big hurdle to overcome.  Secondly, they are routinely passed from section to section and doing things other than their jobs (ranges, SGT’s time training, civilain education, etc) so that they are competitive for promotion, which prevents them from actually doing the work they are assigned and becoming proficient (and an asset to the TC/COJ). 
    I wonder if the Regimental CSM (and therefore head paralegal) was asked what was being done to train paralegals so as to prevent this in the future???

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

    Guess maybe the TC and paralegal should have gone fo CID and asked them to recover the deleted materials.  :)

  11. J.M. says:

    Sure, if the TC wants THEIR offices raided.

  12. stewie says:

    We need more paralegals. Period. We need more court reporters. Period. We need better technology. Period.
    Time for the TJAGs and NCOs of the Corps to get out there and tell big Army (Navy/Air Force) to create more slots.  TRADOC posts get filled at 60ish percent capacity, regardless of how many courts-martial they do.  FORSCOM gets filled to close to 100 percent, but I suspect they’d also say “100 percent” isn’t really sufficient for what they need either. 
    Get new tech.  Get more paralegals. You’d solve a ton of problems with those two steps alone.  From transcripts to post-trial delay, discovery issues, witness issues, myriad administrative problems…

  13. Tami (a/k/a Princess Leia) says:

    Getting more people isn’t an option unless Congress agrees to open up pocket books and starting writing more checks the public can’t cover.
    RCSM recently established a “task list” for paralegals based on rank.  Junior enlisted are expected to master certain skills, junior NCOs another set of skills, and senior NCOs a third set of skills, each level more complicated than the previous.

  14. stewie says:

    Sure we can cover it…just requires the correct priorities.

  15. Phil Cave says:

    @Tami and Stewie,
    If you express it properly I’m sure Sen. Gillibrand will order it to happen.

  16. Tami (a/k/a Princess Leia) says:

    Sarcasm alert:  They will probably just sneak a new, well-thought out UCMJ article into the next NDAA to authorize Government “losing” recordings of Article 32 hearings.

  17. Phil Cave says:

    @Tami.  Thanks for the alert.  I’m surprised it hasn’t been done already with retroactive effect on any case still not final.

  18. JTS says:

    As you can tell from some of the posters, this might be a bigger problem than you realize in the paralegal support aspect of the way the Army at least does business rather than long term legal implications.  Yes, you are correct, this was a case of a lost or recorded over Article 32 hearing.  But I don’t think you realize how often this happens, and I know of at least three cases in my former jurisdiction where the exact things happen.  And I stand by my comments voodoo IT because that’s what actually happens.  Paralegals are told to “just make things work” even if the installation IT support doesn’t allow them to use tools such as recording devices the way that most efficient and prevents the sort of mistakes we see here.  I’ve seen paralegals have to record proceedings using a USB based digital recorder just to have them put it on their personal computers, burn it to a disc, only then to save it on a share drive.  Yes, it accomplishes the mission but its amateur hour, IMHO.  We therefore have a system set paralegals up for a failure like this and wonder why courts look down upon it when there’s a mistake.  If any CoJ out there doesn’t have a plan on how to support Article 32s given the IT rules at his or her installation, he or she would be well advised to come up with one in light of this decision.  Because what I really think CAAF is trying to say is going though the motions to try and get things right just isn’t good enough anymore.

  19. Phil Cave says:

    Why don’t you do what the Navy and Marine Corps does in almost all cases — use the courtroom, use the court recording equipment?  Then fairly quickly after that they give me a CD with the audio.  FTR Gold has a free player (although I understand people are going away from FTRG?)  Been in plenty of 32’s where it was the IO or GR who turned the equipment on or off.

  20. stewie says:

    That works in some jurisdictions, but in the busier ones, or ones with a traveling judge, it may not.
    The former may involve too many trials using the courtroom to allow all 32s to also be in the courtroom.
    The latter usually involve back to back trial weeks where the traveling judge sets up camp for several weeks to knock out cases.
    I’m not saying it wouldn’t help, but I think there’s a fundamental resource problem with both technology and personnel that are always going to make this possibility (of lost recordings) exist.

  21. Zachary D Spilman says:

    I’ve seen paralegals have to record proceedings using a USB based digital recorder just to have them put it on their personal computers, burn it to a disc, only then to save it on a share drive.  Yes, it accomplishes the mission but its amateur hour, IMHO. 

    Agreed JTS. The use of personal computers in this fashion also raises significant concerns with data security and privacy. 

    And perhaps that’s really what the judge’s decision in this case was all about (that is to say, perhaps the judge sees this as a systemic problem in the Army and imposed a rather drastic remedy to provoke reform; same with the Army CCA).

    But that’s not what CAAF’s decision is about (and rightly so, I think).

    What will the Army lean from this? I’m sure we’ll find out the hard way. 

  22. Monday morning QB says:

    As JTS notes, this will have little import.  Under the new 32 format, the victim does not have to testify and cannot be compelled to do so.  You add this opinion on top of that and it’s only an idiot TC who puts his victim on the stand in a 32.  Too big a risk that a reporter erases or loses something.  My guidance to TC’s after this?  NEVER call your victim at a 32.

  23. stewie says:

    NEVER is usually bad advice in most situations.
    There are definitely times when you want the alleged victim to testify at the 32, and in those situations a fear that you might not capture it in a recording is “mitigatable” enough that it shouldn’t override that need.

  24. TK421 says:

    Wow!  Now that the court has seen fit to make the government accountable for recordings they “lose” during Article 32 hearings, can I get relief for one of my clients when we were shot down by the judge when I argued that since the government made a recording of the Article 32, it is their duty to preserve it, since it is an official record, (I argued Jenks and the judge said “doesn’t apply) and can’t argue “well, we didn’t ensure it was safeguarded but we didn’t mean to lose it so don’t hold us accountable”? I argued to the judge that they can’t have it both ways….record an Article 32, “lose it” when it has information on it detrimental to their case, and then claim “good faith” and “we weren’t required to record it anyway…so we aren’t required to maintain it”.  Judge ate that excuse up just to move the case along and I argued passionately that to allow the government to claim that was, in effect, a bullshit excuse to allow them to lose “evidence” whenever it was beneficial for them to do so.  Still lost and I’m convinced that if we had that 32 recording to present it at the trial, showing the glaring inconsistencies in the victim’s account of the incident, the result would have been dramatically different.
    Just another reason I can’t wait to leave. 

  25. Grey says:

    Sarcasm alert:  They will probably just sneak a new, well-thought out UCMJ article into the next NDAA to authorize Government “losing” recordings of Article 32 hearings.

    As other comments indicate, this issues has already been fixed by no longer requiring victim testimony.  No testimony, no recording, no problem.  This also fixed the problem from United States v. Edmond back in April where the defense counsel was ineffective, in part, because he failed to cross examine on inconsistencies with prior Art. 32 testimony.  Eliminating victim testimony means that there is less to be responsible for, reducing the acceptable level of performance that is required.  
    With a few more changes like this, counsel will be able to outright dispense with trial preparation and just stroll into the court room with a cup of coffee and smirk, just like in the movies.

  26. Joint Standing Court says:

    Solution: Establish standing, joint courts-martial; place the courthouses for these standing courts-martial in locations where they can serve geographic districts; create controlled joint tour assignments at the courthouses for judge advocates, paralegals, and support staff filling judicial, prosecution, and defense billets; fill key staff and paralegal billets with civilians to establish continuity of operations and facilitate long-term process improvement; have a secretarial-level authority detail court-martial members from commands in the court’s assigned geographic district and travel those members to the courthouse on temporary duty orders for month-long increments; travel witnesses to the courthouse for trial unless the parties agree to their production by remote means.  

  27. Monday morning QB says:

    Honestly this opinion is sort of a joke. Transcripts are not even made of federal court proceedings unless one of the parties requests one. This is part of the problem in our system with people bringing everyone under the umbrella of the “government,” and then other times saying they are not part of the government. Query: if the court reporter is an independent civilian, are they part of the government? Why is the court reporter and his or her product at the control of the government simply because the court reporter is wearing a military uniform?  Perhaps it’s time to start contracting and farming out reporting to civilians. Would the loss of such a transcript under that circumstance be attributable to the government? I think not. I would love to see how an Article III judge would handle the argument that the transcript of a prior session was lost. Let’s say it was the transcript of the grand jury testimony of a victim. No way the judge dismisses the charges with prejudice in that instance.  But if we are going to play this game in our system, then never call a victim to make a prior statement before trial.  Not worth it. 

  28. stewie says:

    The Jenks Act applies to civilians so not sure your point MMQB. We aren’t talking about a transcript, we are talking about a recording. And the feds do recordings.  And I bet unlike us, they don’t lose them unless it’s a really unique, unforeseeable circumstance.
    I don’t know how I feel about standing courts, although what you describe JSC would certainly solve the problem of a lack of a military crim law track which to me is a cause for about 60% of our systemic woes.

  29. Phil Cave says:

    I have been an advocate of standing courts for many, many years.
    1.  They would act on search authorizations.  And should be fairer and more responsive to requiring real probable cause.
    2.  Even under the new rules, there are any number of prereferral issues the court could deal with, and it would avoid the necessity for Writ practice in the early stages.

  30. Monday morning QB says:

    Stewie, the point is I’ve practiced in federal court. The court reporters are civilians, independent from the G. They control the record and the transcript. Following me so far?  If something gets lost it’s not the Gs fault and you don’t get stupid rulings punishing the G for a lost statement. Get it?