2010 (September Term)
United States v. Baker, 70 M.J. 283 (when reviewing matters under Article 62(b), UCMJ, the CCA may act only with respect to matters of law; when a court is limited to reviewing matters of law, the 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).
(the CCA has no authority to find facts in an Article 62, UCMJ, appeal).
United
States v. Daly, 69 M.J. 485 (under Article
62, UCMJ, the United States may
appeal an order or ruling of a military judge that terminates the
proceedings
with respect to a charge or specification; an appeal of an order or
ruling may
not be taken unless the trial counsel provides the military judge with
written
notice of appeal from the order or ruling within 72 hours of the order
or
ruling).
(where the government failed
to file either a
motion for reconsideration of the order to dismiss or a notice of
appeal within
the 72 hour period for government appeals authorized in Article
62(a)(2), but
instead took 12 days to finalize and submit a brief to the military
judge
asking for reconsideration of the order to dismiss, the government’s
action was
untimely under the explicit limitation of Article 62).
(where the government’s notice
of appeal under
Article 62 was not timely filed, the CCA was without jurisdiction to
consider
the government’s appeal).
United
States v. Bradford, 68 M.J. 371 (Article
62(a)(1)(B), UCMJ, authorizes the
government to pursue an interlocutory appeal of an
order or ruling which
excludes evidence that is substantial proof of a fact material in the
proceeding; however, prosecution appeals are disfavored and are
permitted only
upon specific statutory authorization).
(a military judge’s decision
not to “preadmit”
a drug testing report did not constitute an order or ruling which
excludes
evidence that is substantial proof of a fact material in the proceeding
from
which the government could pursue an interlocutory appeal under Article
62,
UCMJ; the military judge set forth foundational criteria for the
admissibility
of the report, but did not exclude specific evidence of particular
statements
by specific persons).
United
States v. Neal, 68 M.J. 289 (RCM 908(b)(1),
which permits the prosecution
to request a delay in trial proceedings during the 72 hour period for
filing a
notice of an interlocutory appeal from a military judge’s ruling, does
not
require the government to request a delay as soon as the military judge
issues
the ruling in order to preserve the 72 hour period; neither Article 62,
UCMJ,
nor RCM 908 requires the prosecution to take any such action; Article
62
provides the prosecution with an unqualified 72 hour period in which to
file a
notice of appeal; RCM 908(b)(1) does not diminish that time period or
otherwise
condition the availability of the full 72 hour period upon filing a
request for
delay; RCM 908(b)(1) provides that certain aspects of the proceedings
will be
stayed during the 72 hour period “if” trial counsel requests a delay;
in the
absence of such a request, the proceedings will continue; as such, the
rule
offers trial counsel an opportunity to delay the proceedings during the
72 hour
period if the prosecution wishes to preserve the status quo with
respect to
matters affected by the military judge’s ruling or order; and it
provides the
trial counsel with a mechanism to ensure that further proceedings do
not make
an issue moot before the government can file notice of appeal).
(a military judge’s discharge
of the court
members before trial counsel filed a notice of an interlocutory appeal
under
Article 62, UCMJ, from the judge’s ruling dismissing an
aggravated sexual contact charge, did not terminate the
proceedings,
so as to preclude the government from taking such an appeal).
(in the military justice
system, the authority
of the military judge in a court-martial does not cease upon the
discharge of
the members; the military judge retains control over a court-martial
until the
record is authenticated and forwarded to the convening authority for
review;
until that point, even after discharge of the members and adjournment
of the
court-martial, the military judge may take actions such as: reconsidering rulings (RCM 905(f));
reconvening the court-martial to correct an erroneous sentence
announcement,
(RCM 1007(b)); calling a session to clarify an ambiguous sentence
imposed by
either the military judge or the members (RCM 1009(c)); and directing
post-trial sessions (RCM 1102); these authorities illustrate that a
court-martial does not cease to exist upon discharge of the members,
and a case
remains in an interlocutory posture so long as the military judge has
the power
to take action under the UCMJ and RCMs).
(excusal of members is a
standard procedure in
a court-martial, and the possibility of excusal and related concerns
does not
transform the status of a court-martial from an interlocutory to a
final
proceeding).
(action of the military judge
in excusing the
panel members and permitting them to discuss the case with counsel did
not
preclude the government from taking an interlocutory appeal of the
judge’s ruling
dismissing an aggravated sexual contact charge, where based on the
current
undeveloped trial record, it would be inappropriate at this point of
the
proceedings to conclude that some or all of the members have been
disqualified;
even assuming that one or all of the members should be disqualified,
the
military judge would then have the opportunity to consider whether such
members
may be replaced under RCM 505(c); to the extent that excusal of members
might
lead to motions raising mistrial or potential former jeopardy concerns,
those
matters should be considered in light of briefing by the parties before
the
military judge and any factfinding that the military judge might find
necessary; however, at the present time, the military judge has not had
the opportunity
to engage in factfinding, or to consider any related issues concerning
replacement, mistrial, or former jeopardy; there has been no
declaration of a
mistrial in the present case, this case remains in an interlocutory
posture,
and discharge of the panel members does not necessarily preclude
reassembly).
United
States v. Wuterich, 67 M.J. 32 (Article 62,
UCMJ, provides authority for
interlocutory government appeals similar to the authority available in
federal
civilian criminal prosecutions under 18 USC § 3731; the CAAF
consistently has
looked to the decisions of the federal courts under section 3731 for
guidance
in interpreting the parallel provisions of Article 62; under those
decisions,
which provide important guidance limiting such review, a ruling that
quashes a
subpoena is subject to interlocutory appellate review).
United
States v. Michael, 66 M.J. 78 (when reviewing
evidentiary rulings under
Article 62, UCMJ, an appellate court applies an abuse of discretion
standard; a
military judge abuses his discretion if his findings of fact are
clearly
erroneous or his conclusions of law are incorrect).
United
States v. Lopez de Victoria, 66 M.J. 67 (prior to 1983,
there was no
statutory provision for interlocutory appeals by the government in
courts-martial; such issues were reviewable only in the context of
petitions
for extraordinary relief; the Military Justice Act of 1983, Pub. L.
98-209
(1983), amended Article 62 of the UCMJ to provide for a government
appeal of
rulings by a military judge that terminated proceedings with respect to
a
charge or specification or that excluded evidence that was substantial
proof of
a material fact; the President, in his contemporaneous implementation
of the
Act, expressly provided for appeal of adverse Article 62, UCMJ,
decisions to
the CAAF, and from the CAAF to the Supreme Court).
(cases appealed under Article
62,
UCMJ, which authorizes government interlocutory appeals to the courts
of
criminal appeals, may be reviewed by the CAAF under its Article 67(a),
UCMJ,
statutory review authority).
United States v. Cossio, 64 M.J. 254 (when a case
comes to a court of criminal appeals by way of a government appeal
under Article 62, UCMJ, that court is limited to reviewing the military
judge’s decision only with respect to matters of law; the court is
bound by the military judge’s findings of fact unless they were clearly
erroneous and that court could not find its own facts or substitute its
own interpretation of the facts).
2006
United
States v. Harding, 63 M.J. 65 (under Article 62, UCMJ, the
government may
appeal an order or ruling of the military judge which terminates the
proceedings with respect to a charge or specification).