TRIAL STAGES: Writs and Interlocutory Appeals: Article 62 Appeals

 

2013 (September Term)

United States v. Danylo, 73 M.J. 183 (Article 62(b), UCMJ, requires that an appeal by the government shall, whenever practicable, have priority over all other proceedings before that court). 

(Article 62(c), UCMJ, provides that delays resulting from an appeal under Article 62 shall be excluded from speedy trial analysis unless an appropriate authority determines that the appeal was filed solely for the purpose of delay with the knowledge that it was totally frivolous and without merit; the Supreme Court gives Congress the highest deference in ordering military affairs under its constitutional mandate to make rules for the government and regulation of the land and naval Forces; nevertheless, Article 62(c) does not totally immunize the Courts of Criminal Appeals against judicial review of the timeliness of their decisions). 

2012 (September Term)

United States v. Cote, 72 M.J. 41 (on direct review of an issue which was previously the subject of an Article 62, UCMJ, interlocutory appeal, CAAF reviews whether the military judge’s initial decision was an abuse of discretion). 

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). 


2009 (September Term)

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).


2008 (September Term)
 

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). 


(appellant had standing to file a motion to dismiss the government’s interlocutory appeal of the military judge’s evidentiary ruling to quash a subpoena issued to a television network that sought production of the unaired footage of a videotaped interview of appellant regarding his alleged offenses, where appellant had a direct interest in the scope of any ruling at trial or on appeal regarding the evidence that would be available for consideration at his trial). 


(in criminal cases, prosecution appeals are not favored and are available only upon specific statutory authorization). 

 
(Congress has authorized interlocutory prosecution appeals in cases tried by courts-martial under Article 62, UCMJ). 


(federal court decisions interpreting 18 USC § 3731 constitute guidance, not binding precedent, in the interpretation of Article 62, UCMJ). 


(Article 62, UCMJ, permits the government to appeal an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding; under this provision, trial counsel must file a certification with the military judge that the appeal is not taken for the purpose of delay and (if the order or ruling appealed is one which excludes evidence) that the evidence excluded is substantial proof of a fact material in the proceeding).


(appellate courts in the military justice system are required to give priority to cases arising under Article 62 whenever practicable). 


(a trial court ruling quashing a subpoena is appealable under Article 62, UCMJ, which permits the government to appeal an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding; in this regard, guidance from cases under the parallel federal statute, 18 USC § 3731, restricts interlocutory government appeals to those rulings that have a direct rather than incidental effect on the exclusion of evidence; and the term “excludes evidence” in military law is not different from the term “excluding evidence” in federal civilian proceedings with respect to an interlocutory appeal of a decision to quash a subpoena for the production of evidence).


(a military judge’s ruling that quashed a government subpoena issued to a television network seeking production of unaired outtakes of a videotaped interview of the accused regarding the alleged offenses was subject to appeal under Article 62, UCMJ, a statute permitting the government to appeal an “order or ruling which excluded evidence,” because the ruling had the direct effect of excluding the outtakes from the pool of potential evidence that would be admissible at the court-martial). 


2008 (Transition)


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). 

 

2007


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).

 

(a government appeal of a military judge’s order to abate the proceedings with respect to a rape charge in a pending court-martial until a warrant of attachment is enforced was not authorized under Article 62, UCMJ, because the military judge’s order did not terminate the proceedings; in fact, the rulings of the military judge in the case demonstrate that he is prepared to move forward with the trial if and when the warrant is executed).


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