In an unpublished opinion in a prosecution appeal under Article 62, a three-judge panel of the Army CCA finds that “when the government concedes an issue [of law] at trial and the military judge accepts the concession, then the government cannot complain to this court that the military judge erred.” United States v. Suarez, No. 20170366, slip op. at 7 (A. Ct. Crim. App. Sep 27, 2017) (link to slip op.).

At stake is the admission of six images of suspected child pornography discovered on the accused’s cell phone after it was searched pursuant to an authorization. The device was protected by a passcode and the investigators asked the accused for that passcode. So the defense moved to suppress. See, generally, United States v. Mitchell, 76 M.J. 413 (C.A.A.F. Aug. 30, 2017) (CAAFlog case page).

Responding to the defense motion, the prosecutors “conceded in their initial brief to the military judge that the accused’s providing a passcode to a CID agent was testimonial and incriminating.” Slip op. at 4. These were significant concessions, because “in conceding the passcode was incriminating, the government necessarily conceded the request for the incriminating response was an interrogation.” Slip op. at 5. And because it was an interrogation, the questioning implicated the accused’s rights under the 5th Amendment and Article 31(b). So the military judge suppressed the images.

The prosecution appealed, “mak[ing] numerous arguments as to why the military judge erred.” Slip op. at 3.

But the panel doesn’t consider those arguments. Rather, it holds that “the substantive issue of this appeal was waived by the government at trial.” Slip op. at 8.

Writing for the three-judge panel, Judge Wolfe explains that:

we conclude that we cannot reject the government’s concession in this case, even if we were otherwise inclined. The government argues that we should not accept its concession at trial and that we are not bound by the concession. We disagree. When the government makes a concession to this court we may choose to reject the concession. If a party misapplies the law in a brief to this court we are not required to adopt the flawed reasoning. That is what de novo review of an issue of law allows.

However, when the government concedes an issue at trial and the military judge accepts the concession, then the government cannot complain to this court that the military judge erred.

Slip op. at 7. Judge Wolfe adds:

Our review, here, is to determine whether, under Article 62(a)(1)(B),UCMJ, the military judge erred in his “ruling which exclude[d] evidence that is substantial proof of a fact material in the proceeding.” That is, our review is to determine whether the trial judge erred as a matter of law, not to determine how we would decide the same issue in the first instance.

Slip op. at 7-8 (emphasis added).

I see a few ways to interpret this opinion.

One interpretation is that the CCA is doing nothing more than holding the prosecution to a single argument. But in a court-martial “the trial judge is more than a mere referee,” United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975), and presumably the same is true for appellate military judges. Even if the prosecution shouldn’t be allowed to change its argument (ignoring whether the change is for sincere or deceitful reasons), a military judge should be expected to reach legally accurate conclusions. Here, however, the CCA allows what may well be an incorrect view of the law to stand. Whatever the benefits of holding the prosecution to a single argument, they are likely outweighed by the cost of an easily corrected potential error.

Another interpretation is that the CCA has re-defined the meaning of do novo review. “Whether an interrogation occurred is a question of law, reviewable de novo.” United States v. Kosek, 41 M.J. 60, 63 (C.M.A. 1994). De novo review means independent review. See United States v. Mosley, 52 M.J. 679, 683 (A. Ct. Crim. App. 2000) (quoting United States v. Ford, 51 M.J. 445, 451(C.A.A.F. 1999) (“independent, i.e., de novo, review”)); Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (“a legal question requiring independent federal determination”). Put differently:

The phrase “de novo determination” has an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy.

United States v. Raddatz, 447 U.S. 667, 690 (1980) (Stewart, J., dissenting) (emphasis added). Such an independent review means looking beyond the arguments and conclusions made below and answering questions of law in the first instance. But the CCA specifically refuses to do that.

A third interpretation is that the CCA has changed the meaning of a concession. In Kosek – which, coincidentally, was also a prosecution interlocutory appeal involving an interrogation – the CMA (CAAF’s former name) outlined what might be a meaningful difference between a military judge making a ruling and a military judge merely accepting a concession:

we are unable to determine whether the military judge ruled that the question was an interrogation for which an Article 31 warning would be required or whether he merely accepted the Government’s concession as a premise for his rulings on the derivative evidence.

Kosek, 41 M.J. at 63 (emphases added). The opinion in Kosek includes a transcript of the prosecution’s concession that looks a lot like the concession in Suarez. See 41 M.J. at 62. The CMA reversed in Kosek in part due to this ruling/concession uncertainty, remanding for clarification by the military judge, and it did so even though “the Government did not appeal the military judge’s characterization of the events as an interrogation” because CAAF found that “the question whether an interrogation occurred is an essential predicate question of law.” 41 M.J. at 63. So the concession about the existence of an interrogation in Kosek – and even the prosecution’s failure to appeal the military judge’s finding an interrogation – didn’t prevent the CMA from examining this conclusion of law. This is the polar opposite of the CCA’s conclusion in Suarez.

Now United States v. Elespuru, 73 M.J. 326 (C.A.A.F. 2014) (CAAFlog case page), could be read to support Suarez, but I don’t think it does. In Elespuru the defense won relief for an unreasonable multiplication of charges at trial, but conceded that the charges were not multiplicious. On appeal, however, the defense took the exact opposite position, arguing that the charges were multiplicious (because one was a lesser included offense of the other). CAAF found waiver because the defense “consciously and intentionally failed to save the point and led the trial judge to understand that counsel was satisfied.” 73 M.J. at 329. But the waiver in Elespuru was of the issue as a whole, not merely of a question of law within the issue. For Suarez to be analogous to Elespuru, the prosecution would have had to concede that the images should be suppressed (and then appealed the suppression). But the prosecution in Suarez opposed suppression and merely conceded a subsidiary question of law (just as in Kosek).

Judge Wolfe’s opinion in Suarez doesn’t mention Kosek (which, by the way, ended with admission of the evidence and a conviction, see 44 M.J. 579) or Elespuru.

Ultimately, Suarez elevates a concession to a binding statement of the law. Judge Wolfe observes:

As the accused’s counsel on appeal correctly summarized in oral argument, “‘[S]hould’ is an Article 66 question, ‘can’ is an Article 62 question . . . the problem with trying to overturn the concession here is: the question posed to this court is whether or not the military judge abused his discretion. And, saying that a military judge abused his discretion by accepting the concession of the very party who then claims he abused his discretion in accepting the concession, is—it fails to logically connect.”

Slip op. at 8. I think this is completely backwards.

Abuse of discretion is a standard of review, not merely a label for a bad decision. “An abuse of discretion has occurred ‘if the military judge’s findings of fact are clearly erroneous or if the decision is influenced by an erroneous view of the law.” United States v. Dockery, 76 M.J. 91, 96 (C.A.A.F. 2017) (CAAFlog case page) (citing United States v. Quintanilla, 63 M.J. 29, 35 (C.A.A.F. 2006) (emphasis added). Put differently, “where a military judge’s decision was influenced by an erroneous view of the law, that decision constitutes an abuse of discretion.” United States v. Busch, 75 M.J. 87, 92 (C.A.A.F. 2016) (CAAFlog case page) (citing United States v. Beaty, 70 M.J. 39, 41 (C.A.A.F. 2011)) (emphasis added).

Whether an interrogation occurred is a question of law. The law is relatively fixed, and the parties don’t get to make up their own law for trial. If the prosecution’s concession about the occurrence of an interrogation in this case was an erroneous view of the law, then it was an abuse of discretion for the military judge to reliance upon that erroneous concession to decide the legal issue of whether an interrogation occurred.

The Army CCA has been finding waiver in some unusual places recently. See, for exampleUnited States v. Kelly, 76 M.J. 793, No. 20150725 (A. Ct. Crim. App. Jul. 5, 2017) (discussed here); United States v. Sanchez, No. 20140735 (A. Ct. Crim. App. Jul. 17, 2017) (discussed here). The Army’s Government Appellate Division benefited greatly from those decisions, and it hasn’t shown any interest in reversing them.

Maybe now that will change.

10 Responses to “The Army CCA rejects a prosecution appeal “because the United States waived most of the issues they assert on appeal””

  1. Former DC says:

    Zack: Isn’t this, on a practical level, really just ACCA holding the Government to the same standard as the Accused? After all, had the roles been reversed, there is no question that the concession, or waiver really, would be held against the Defense on appeal. So this seems to be fundamental fairness.
    Yes, I know before you say it, there is a technical legal difference between waiver and a concession, but that is what I am driving at. It seems to me that in this situation, ACCA is trying to close that gap, to make the playing field even for both sides. 

  2. Zachary D Spilman says:

    I think I addressed your points in my post, Former DC. Particularly the parts about the CCA doing nothing more than holding the prosecution to a single argument and the CCA changing the meaning of a concession.

  3. Allan says:

    I, too, am troubled.  Let’s say that a defendant pleads guilty, the judge finds that there is sufficient evidence to accept the plea, and defense counsel concurs that the judge is correct.  However, it turns out that the there is substantial basis in law or fact to question the judge’s decision.  In that case, waiver would not apply.  What is the difference?

  4. stewie says:

    Defense and government play by different rules and expectations. This is another example of that IMO. If a DC misunderstands the law to his client’s detriment, IAC exists to save it (as does abuse of discretion if the MJ incorrectly agrees with that misunderstanding).
    If the government misunderstands the law, there is not, and quite frankly should not, be the same level of saving mechanism.
    If the government says, hey we agree with defense here, and it isn’t to the detriment of the accused, but maybe isn’t necessarily a correct view of the law, and the MJ agrees, I’m not sure it makes sense to effectively retry the case because the government later comes back and hey MJ you shouldn’t have listened to us back then.
    I don’t think this is closing the gap or making things even, I think this is a recognition that it’s not always a level playing field, some times the defense is favored, sometimes the government is favored. In this case, the government doesn’t have the same protections when they wrongly concede that the accused does when their counsel wrongly concedes.

  5. Zachary D Spilman says:

    The thing is, stewie, that when it comes to a question of law it doesn’t matter what the parties thought at trial. As Justice Ginsberg noted in February during oral argument in McLane Co. v. EEOC:

    if it’s a question of law, if the district court got the law wrong, that is ipso facto an abuse of discretion because he has no discretion to misapply the law. 

  6. stewie says:

    The MJ didn’t misapply the law. He didn’t rule against the gov. The Gov conceded the issue. Your argument is that the MJ should have forced the Gov anyways?
    Let’s use a simpler example. Defense offers in clear hearsay evidence, Gov doesn’t think it’s hearsay, and does not object. Your argument is that if the MJ doesn’t object for the Gov then it’s an abuse of discretion? It’s misapplying the law?
    I don’t think so. I don’t think the Gov can concede (effectively not object) at trial, then turn around on appeal and say, I know Gov didn’t object and conceded the issue at trial, but the judge shouldn’t have let us do that.

  7. Zachary D Spilman says:

    I think I directly addressed your concession argument in my post, stewie. Particularly the part about how the prosecution in this case opposed suppression and merely conceded a subsidiary question of law (just as in Kosek).

    Your hearsay hypothetical fails to appreciate the difference between the failure to object and a bad argument. The prosecution’s concession in this case (that the accused was subject to an interrogation – a question of law) is at most a bad argument, and it is wholly different from not objecting and then complaining on appeal. The prosecution opposed suppression. That preserved the issue.

    As I wrote above, the parties don’t get to make up their own law for trial.

  8. stewie says:

    “in conceding the passcode was incriminating, the government necessarily conceded the request for the incriminating response was an interrogation.”
    Again, the Gov agreed with Defense it was an interrogation. This is no different than agreeing with the defense it’s not hearsay.
    The Gov may be wrong in either case, but the MJ isn’t required to rectify it in either case. I think ACCA got it right, and I rarely say that, and I just threw up a little in my mouth doing it.

  9. Former DC says:

    It’s interesting I am saying this, for the same reason as above, but stewie is right. It isn’t the MJ’s job to fix counsel’s errors. Put another way, I cannot see a US District Court Judge being asked to fix an AUSA’s mistake. In a US Court of Appeals, this would get laughed out of the building  
    Remember, from the MJ’s perspective, the TC’s action may not be a mistake. I, like lots of litigators, sometimes allow something to happen at trial that the law or rules say I technically shouldn’t (e.g., not objecting to hearsay), because I see some tactical advantage to it.
    Zack: I appreciate your reasoning, but if your line of thinking as I understand it to it’s logical conclusion, that would mean that the MJ would have to object sue sponte every time a litigant didn’t make a proper objection and would have to advance arguments that are legally correct, even if the parties don’t want them. The problems there are obvious. Or, to get to the same result, the Government would get an appeal on such points but the Defense wouldn’t – which also doesn’t fly. 
    Again, I understand and appreciate your view, but I don’t buy this one. Write that down, because like stewie, I don’t say that often. 

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

    Seems like the government stipulated to a factual issue, i.e. when the request for a password was made.  Conceding on a factual issue that influences the MJ’s reading of the law, which I think happens to be correct, I don’t think the CCA can review that.  There’s no “clearly erroneous” finding of fact when the government stipulates to those facts.  I have no problem with this decision.