CAAF decided the certified Army case of United States v. Jacobsen, 77 M.J. 81, No. 17-0408/AR (CAAFlog case page) (link to slip op.), on Monday, December 11, 2017. Answering only the discrete question presented in the JAG’s certification, a majority of CAAF holds that a trial counsel’s certification does not conclusively establish appellate jurisdiction over an interlocutory prosecution appeal.

Judge Ryan writes for the court, joined by Chief Judge Stucky, Judge Ohlson, and Judge Sparks. Senior Judge Cox dissents.

The case is an interlocutory appeal in an ongoing general court-martial involving an alleged sexual offense. Sergeant First Class (E-7) Jacobsen is the accused, and his defense includes a focus on the alleged victim’s lack of credibility. The prosecution wants to introduce a prior statement of the alleged victim to rehabilitate her credibility, but the military judge prohibited it from doing so. The prosecution then appealed that ruling.

Article 62 authorizes interlocutory appeals under limited circumstances. One of them is when a military judge issues “an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B). The prosecution filed such an appeal, and the trial counsel certified “that the evidence excluded is substantial proof of a fact material in the proceeding.” Article 62(a)(2).

But the Army CCA found that it lacked jurisdiction to consider the appeal because, despite the trial counsel’s certification, the CCA concluded that the military judge did not exclude evidence that is substantial proof of a fact material in the proceeding. The Judge Advocate General of the Army then certified a single issue to CAAF:

Whether the trial counsel’s certification that evidence is “substantial proof of a fact material in the proceeding” is conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(b), Uniform Code of Military Justice.

Yesterday’s opinion answers this question with a no. A majority of CAAF adopts the reasoning of the Army CCA that because interlocutory appeals are allowed only when the case “actually meet[s] specified criteria,” slip op. at 4 (quoting CCA opinion), “the ACCA had to satisfy itself that it had appellate jurisdiction before proceeding to review the merits of the appeal,” slip op. at 5. As the lone dissenting voice, however, Senior Judge Cox “see[s] no reason in military practice for an application of Article 62, UCMJ, that second guesses the trial counsel’s certification as to the impact that excluding evidence has upon its ability to successfully try its case.” Diss. op. at 3.

Writing for the majority, Judge Ryan begins with a rather blunt rejection of the Government’s argument that Article 62 should be read in harmony with 18 U.S.C. § 3731, which authorizes prosecution appeals in the federal civil courts and treats a United States attorney’s certification as dispositive:

Irrespective of whatever rules and regulations may provide additional layers of caution upon its exercise, Article 62, UCMJ, itself provides that trial counsel for the government may file an interlocutory appeal, in contradistinction to the federal statute, which requires certification by a presidentially nominated, senate-confirmed U.S. attorney.

Slip op. at 3 n.3. Put differently: a military trial counsel is not the same as a federal prosecutor.

Judge Ryan returns to the subject later in the opinion, identifying three “important textual and structural differences between Article 62, UCMJ, and 18 U.S.C. § 3731.” Slip op. at 8. One of these is that 18 U.S.C. § 3731 includes a clause requiring it to be liberally construed, and Judge Ryan observes that in the Military Justice Act of 2016, “Congress added a liberal construction clause to Article 62, UCMJ, identical to 18 U.S.C. § 3731.” Slip op. at 9 n.5. This clause, however, is not yet in effect, and very likely will not affect CAAF’s analysis because it involves only one of three textual and structural differences between the statutes (four, if we include the difference between a trial counsel and a U.S. attorney).

But the real heart of Judge Ryan’s majority opinion is that:

the language in Article 62(a)(1)(B)’s second prong – the evidence excluded by a military judge’s trial ruling was evidence that is substantial proof of a fact material in the proceeding – is . . . jurisdictional because the subsection imposes two requirements, there is no reason to treat the two criteria differently, and the decisions by this Court in Vargas, Wuterich, Bradford, and Browers make clear they are jurisdictional in nature. While the government in each case certified that the military judge’s ruling excluded evidence that was substantial proof of a fact material in the proceeding, in each instance this Court looked beyond the certification to determine whether appellate jurisdiction existed.

Slip op. at 7 (emphasis in original). This analysis reflects a wholesale rejection of the Army Appellate Government Division’s argument (in which the Air Force Appellate Government joined as an amicus curiae), and it will not be affected by any pending legislative change.

The majority approach is textualist. Senior Judge Cox’s dissent, in contrast, is pragmatic. He expects that:

the majority view will likely change the rules for Article 62, UCMJ, appeals. The initial focus will not be on whether the ruling excludes evidence, nor will it be on whether the military judge got it right, but rather is the evidence substantial proof of a material fact. Application of the majority view will be interesting.

Diss. op. at 3. But he also suggests that:

It is ironic that the appeal would focus on the question of whether the matter was substantial proof of a material fact rather than whether the military judge got the ruling right. If it is not substantial proof, the Court of Criminal Appeals should say so and why it believes that to be the case and dismiss the appeal not because it lacks jurisdiction but because the ruling is simply not worthy of its consideration.

Diss. op. at 3. Put differently, an appeal that fails the Article 62 criteria may just as easily be rejected on the merits as on the criteria. But the JAG asked CAAF to find the criteria off-limits, forcing analysis of the merits. The majority doesn’t agree that the statute does that.

Senior Judge Cox also suggests:

If you find the [prosecution’s] appeal to be frivolous, say so and dismiss it as being a frivolous appeal. Let the chips fall where they may.

Diss. op. at 4. The obvious response is why start now. CAAF’s Article 62 precedent weighs heavily in favor of seriously considering even the thinnest of prosecution appeals, such as appeals involving the denial of a recess or the refusal to admit evidence before the court-martial began. See United States v. Vargas, 74 M.J. 1 (C.A.A.F. Dec. 8, 2014) (CAAFlog case page) (recess); United States v. Bradford, 68 M.J. 371, 373 (C.A.A.F. 2010) (discussed here) (preadmit evidence). The Army CCA’s opinion in Jacobsen could be read as calling the prosecution appeal frivolous without actually using that word, and that’s likely the toughest language we can expect to see.

Case Links:
• ACCA Order (Feb. 6, 2017) (CAAFlog link)
• ACCA Order (Mar. 16, 2017) (CAAFlog link)
• Appellant’s (Army Gov’t Appellate Div.) brief
• Appellee’s (Jacobsen) brief
• Appellant’s reply brief
• Amicus brief in support of Appellant (A.F. Gov’t App. Div.)
• Blog post: Argument preview
• Oral argument audio
CAAF opinion
Blog post: Opinion analysis

8 Responses to “Opinion Analysis: A trial counsel’s certification doesn’t create interlocutory jurisdiction, in United States v. Jacobsen”

  1. k fischer says:

    When a complaining witness is torn apart on the stand with her prior inconsistent statements and the Defense’s resounding theme is that she lacks any and all accountability, then a prior consistent statement (if this is what SA VanDerBeek was going to testify about) is substantial and material.
    I think Cox got it right and I’m a defense attorney, fcol.

  2. Lone Bear says:

    Credibility evidence is not fact evidence.  It goes to the weight, and CAAF was right to leave that decision to the trial judge when it goes not to a fact or element, but rather to the weight and credibility of the testimony.  I think with the appellate government divisions pulling the trigger so easily on these appeals at the expense of the speedy trial right (in a way that would be laughable in the civilian system) that the court was right to put some limitations on it. 

  3. Muad'Dib says:

    k fischer: The legal issue wasn’t whether the evidence excluded in this particular case was substantial and material. It was whether ACCA can even conduct that analysis, or whether they are bound merely by the Government’s certification to conclude “yes, it is substantial and material.” This conclusion seems obvious from the plain text of Article 62, all the canons of construction we use for jurisdictional statutes in an Article I setting, the legislative history, and so on. Maybe ACCA got it wrong by saying this wasn’t substantial and material, but that wasn’t the issue certified by TJAG and granted by the Court.
    To me, the core of this case is this: Can the Government meet the jurisdictional requirements laid out in Article 62 merely by saying, “Substantial and material? Oh yeah, we meet that burden.” The best answer we can get from the text is “no.” The only real argument the Government had was a weak analogy to a federal statute with totally different language.

  4. JBF says:

    The opinion of the Court is limited to the certified issue. The Army JAG only certified the question of whether the trial counsel’s certification is dispositive, not whether the Army Court abused it’s discretion in the event the trial counsel’s certification is not dispositive. The Court did not reach the second issue once the certified issue was answered in the negative. If TJAG had certified the second issue, perhaps there would have been a different result. See footnote 2 that Judge Ryan dropped on the second page of the opinion.

  5. tinfoil wars says:

    Was requesting certification the right strategic move for the government? Did they lose the battle and the war? (at least until they can draft some more “we-just-lost-at-CAAF” legislation).

  6. Jolly Roger says:

    Credibility evidence is not fact evidence.
    Sure, but this was fact evidence. MRE 801(d)(1)(B)(ii). If the witness testified that she was raped, and then her testimony was attacked on a ground other than recent motive to fabricate, and the prior statement “I was raped” is consistent with her trial testimony, then the prior statement comes in substantively now under the new rule, not just for the weight of her trial testimony. The rule change opens the floodgates to this sort of thing and hasn’t gotten enough attention. The prior statement can be considered for its truth.

  7. Just a little too early . . . says:

    Respectfully disagree that CAAF can toss aside the “liberally construed” addition to Article 62 created by the MJA of 2016.
    The government’s assertion that Article 62 and 18 U.S.C. 3731 should be interpreted as coextensive is exactly the language of the Military Justice Act, NDAA FY17, Sec 5326:  “(e) the provisions of this section shall be liberally construed to effect its purposes.”  That language mirrors 18 U.S.C. § 3731 which now reads:  “The provisions of this section shall be liberally construed to effectuate its purposes.”  The MJRG Report itself makes clear that the intent behind adopting this language was to explicitly put Article 62 appeals on the same footing with government interlocutory appeals under 18 U.S.C. 3731. 
    CAAF’s hostility to this position (See, e.g., United States v. Wuterich, 67 M.J. 63, 74 (2008); United States v. Vargas, 74 M.J. 1 (2014)) should moderate itself in light of this specific language from the report: 
    The final sentence in 18 U.S.C. § 3731, which authorizes interlocutory appeals in federal civilian courts, states that “[t]he provisions of this section shall be liberally construed to effectuate its purposes.”  The federal civilian courts consider that rule of construction when interpreting provisions in Section 3731 that are similar to the provisions in Article 62. This proposal would better align Article 62 with the rule of construction applicable in federal civilian courts under 18 U.S.C. § 3731.
    Report of the MJRG, Part I:  UCMJ Recommendations (22 December 2015) pg 577 (citations omitted).  
    Too bad for the government that the effective date of that change is still a year away . . . but when it comes, I hope the Court will give this provision the deference it deserves.

  8. Zachary D Spilman says:

    I disagree, Just a little too early.

    The majority identifies three “important textual and structural differences between Article 62, UCMJ, and 18 U.S.C. § 3731.” Slip op. at 8. They are:

    First, unlike Article 62, UCMJ, 18 U.S.C. § 3731 states an appeal “shall lie” to a federal civilian court of appeals from a district court ruling suppressing or excluding evidence “if” the “United States Attorney certifies” that “the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.” . . .

    In contrast, Article 62, UCMJ, simply states that “the United States may appeal. . .[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding” and that an appeal shall be “forwarded” to the Court of Criminal Appeals. Article 62(a)(1)(B), (b), UCMJ (emphasis added). Unlike 18 U.S.C. § 3731, there is no mention of jurisdiction whatsoever, though it is clear that where Congress intends to authorize conclusive jurisdiction through a statute, it is well able to do so. 

    Slip op. at 8-9. 

    Second, Article 62, UCMJ, and 18 U.S.C. § 3731 contain different temporal elements as well, which impacts the interplay between the right of the government to appeal, and the accused’s right to a speedy trial. . . . 18 U.S.C. § 3731 prohibits the government from bringing an interlocutory appeal once jeopardy has attached, which essentially requires all government appeals to be taken well prior to the trial itself. 

    Slip op. at 9 (citations omitted).

    Lastly, unlike Article 62, UCMJ, 18 U.S.C. § 3731 contains a liberal construction clause. . . 

    Slip op. at 9. 

    The majority also observes that:

    Article 62, UCMJ, itself provides that trial counsel for the government may file an interlocutory appeal, in contradistinction to the federal statute, which requires certification by a presidentially nominated, senate-confirmed U.S. attorney.

    Slip op. at 3 n.3. 

    Now the MJA adds a liberal construction clause, but it does nothing to reconcile the language difference (shall lie vs. may appeal), the temporal difference, and the fact that the trial counsel making the certification need not even be an attorney (see R.C.M. 502(d)(2)).

    Furthermore, the prosecution appeal in this case would not have been allowed under 18 U.S.C. § 3731 (because it was made after jeopardy attached and before the findings). 

    The liberal construction clause will change the analysis, but I doubt it will change the result.