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.

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Audio of this week’s oral arguments at CAAF is available at the following links:

United States v. Olson, No. 14-0166/AF (CAAFlog case page): Oral argument audio.

United States v. Muwwakkil, No. 15-0112/AR (CAAFlog case page): Oral argument audio.

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.

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About two months ago, in this post, Phil discussed the Army CCA’s decision that rejected a Government interlocutory appeal in United States v. Muwwakkil, 73 M.J. 859, No. 20140536 (A. Ct. Crim. App. Aug. 26, 2014) (link to unpub. op.). The appeal was of a military judge’s ruling that stuck the entire testimony of an alleged victim of rape. The military judge struck the testimony because the Government lost the recording of the alleged victim’s testimony at the Article 32 pretrial investigation. Affirming the judge, the CCA reasoned:

The government concedes simple negligence for the loss of the recording, but contends that any finding of gross negligence is clearly erroneous. However, as the government correctly points out, the judge never did make a clear finding of gross negligence. In any event, the judge’s finding that the government’s loss of the required statement was due to its negligence is amply supported by evidence in the record and necessarily triggers the totality of circumstances test described above to determine an appropriate remedy for the Jencks Act violation.

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.

Slip op. at 6-7.

Last Monday, October 20, the Judge Advocate General of the Army certified the case to CAAF:

No. 15-0112/AR. U.S. v. Tahir L. MUWWAKKIL. CCA 20140536. Notice is hereby given that a certificate for review of the decision of the United States Army Court of Criminal Appeals on appeal by the United States under Article 62, Uniform Code of Military Justice, 10 U.S.C. § 862, and a supporting brief were filed under Rule 22, together with a motion to stay the proceedings on this 20th day of October, 2014, on the following issues:

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 STATES, 368 U.S. 231 (1961).

On consideration thereof, it is ordered that the motion to stay proceedings is hereby granted. Appellee will file an answer to the certified issues under Rule 22(b)(1) on or before October 30, 2014

While this is an interesting case on its own facts, the second certified issue is really interesting because it seems to be an attempt to reach outside the normal abuse of discretion standard that CAAF employs when it reviews the underlying ruling of the military judge in an interlocutory appeal. See United States v. Wicks, 73 M.J. 93, __, slip op. at 10-11 (C.A.A.F. Feb. 20, 2014) (CAAFlog case page) (“In an Article 62, UCMJ, petition, this Court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the prevailing party at trial. . .”).

As for the Government’s concern about a presumption of harm, I’ll be interested to see how CAAF applies United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978) (“It suffices to say that, in the present case, the requested materials were not preserved for the record as required by 18 U.S.C s 3500(c) . This factor alone distinguishes it from those cases cited by the Court of Military Review as support for the application of the harmless error rule.”)

On 28 August, the Army Court of Criminal Appeals decided an Article 62, adverse to the government in United States v. Muwwakkil.

After the recorded Article 32 in this case was completed, as usual a summary of the complaining witness’s testimony was prepared from the audio recording.  The audio recording was then deleted.  (Practice credit here.  There was a back-up recording being made at the same time. And in fact one of the recorders did malfunction during the hearing.)  They could only recover 52 minutes of the CW’s 2.25 hours of testimony; and it only had the direct testimony, not the all important cross and follow-up.  There was no verbatim transcript made.  (The military judge declined to order production of the defense paralegal’s notes made during the testimony.)

At trial the complaining witness was allowed to testify on direct.  After direct the defense asked the judge to strike the testimony, citing to the Jenck’s Act and R.C.M. 914.

After taking evidence and testimony the military judge agreed with the defense that there was a violation, and to striking all of the testimony – thus this government appeal.  The military judge (note to Air Force, and others) did not find the summary of testimony “substantially verbatim.”  The IO apparently concluded that the CW’s testimony was, “inconsistent with previous statements.”

On appeal, the government agreed that there was a Jenck’s Act violation, but disagreed with the remedy in a situation where, according to the government:

a. There was no showing of gross negligence.

b. There was no prejudice to the defense.

c. And the remedy was “unduly extreme.”

ACCA rehearses the oral findings of fact and conclusions of law made by the military judge.

ACCA and the parties agreed that the issue involves the abuse of discretion standard similar to other suppression issues – thus ACCA’s review was “necessarily deferential” to the military judge’s findings.

ACCA analysis sets out the following: if the loss is due to bad faith or gross negligence – striking of testimony is “mandated.” But otherwise it is discretionary according to a “totality of the circumstances” balanced against any available remedy.  The court also addressed the good faith exception found in other suppression issues.

ACCA finds the military judge’s findings and conclusions of government negligence are “amply supported” and not clearly erroneous.

Ultimately ACCA finds that the government is – my words – “simply” quibbling with the military judge, which is not the standard of review.

My practice note.  I take it the defense was not provided a copy of the audio recording.  I have always made it a practice to ask for a copy of the 32 audio immediately, and generally get that from Navy and Marine 32’s (likely because we usually do the hearings in the court-room, and so it’s easy to make a FTR Gold “readable” copy.  Had the defense been provided a copy of the audio before it was destroyed, there would never be an issue here.  A note for future IO’s and GR’s.  It’s always a good idea to dump a copy of the audio to a CD and give it to the defense before they leave the building.  I don’t believe this is the first time the 32 audio has been lost, it might happen again.

I would expect serious consideration on the part of the government to put this case before CAAF – up periscope.

On a side note, knowing this judge and where the trial was being held, there might be a back-story here if anyone knows it?