TRIAL STAGES: Writs and Interlocutory Appeals: Article 62 Appeals

2022 (October Term)

United States v. Vargas, 83 M.J. 150 (the CAAF reviews a military judge’s ruling directly in an Article 62 appeal). 

United States v. Pyron, 83 M.J. 59 (in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial).    

2021 (October Term)

United States v. Black, 82 M.J. 447 (the CAAF directly reviews a military judge’s decision when presented with an interlocutory appeal, and in such appeals, it reviews the evidence in the light most favorable to the prevailing party and is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

United States v. Badders, 82 M.J. 299 (when a military judge declares a mistrial, the government may appeal that ruling to a service court of criminal appeals under Article 62(a)(1)(A), UCMJ).    

(it has long been established that the United States cannot appeal in a criminal case without express congressional authorization; and in the military justice system, Congress provided authority for government appeals in Article 62, UCMJ; this statute states in relevant part that in a trial by general or special court-martial, or in a pretrial proceeding under Article 30a, UCMJ, the United States may appeal an order or ruling of the military judge which terminates the proceedings with respect to a charge or specification and that this provision shall be liberally construed to effect its purposes). 

(an interlocutory appeal must actually fall within the strictures of Article 62(a)(1)(A), UCMJ, to create appellate jurisdiction). 

(the phrase “terminates the proceedings with respect to a charge or specification” in Article 62(a)(1)(A) makes it clear that the article refers to terminating that particular court-martial in regard to a charge or specification). 

(the provisions of Article 62, UCMJ, broadly permit the government to appeal orders terminating proceedings in those instances where the United States Constitution poses no barrier to doing so). 

(a constitutional barrier arises when the Double Jeopardy Clause bars a government appeal; and double jeopardy would be implicated where a trial was terminated by mistrial over the objection of the accused without manifest necessity or the government intended to provoke the accused into moving for a mistrial). 

(a military judge’s declaration of a mistrial constitutes a termination of the proceedings under Article 62(a)(1)(A) of a particular court-martial in regard to a charge or specification).
 

2020 (October Term)

United States v. Becker, 81 M.J. 483 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

(a military judge’s decision to exclude evidence is reviewed by an appellate court for an abuse of discretion; an abuse of discretion occurs when a military judge either erroneously applies the law or clearly errs in making his or her findings of fact; these standards also apply to interlocutory appeals under Article 62, UCMJ). 

(on matters of fact with respect to appeals under Article 62, UCMJ, an appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous; a reviewing court may not find its own facts or substitute its own interpretation of the facts). 

(on an Article 62, UCMJ, appeal, an appellate court is not authorized to make factual determinations to support a simple difference of opinion between it and the military judge).

United States v. Harrington, 81 M.J. 184 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

United States v. Henry, 81 M.J. 91 (in an Article 62, UCMJ, appeal, an appellate court reviews the military  judge’s decision  directly  and  reviews  the  evidence in  the  light  most  favorable  to  the  party which  prevailed at trial). 

United States v. Garcia, 80 M.J. 379 (in Article 62, UCMJ, cases, an appellate court reviews a trial judge’s suppression ruling directly for an abuse of discretion; moreover, it examines the evidence in a light most favorable to the party which prevailed at trial; and when conducting this discretionary review of the trial judge’s suppression ruling, it reviews factfinding under the clearly-erroneous standard and conclusions of law under the de novo standard; a finding of fact is clearly erroneous when there is no evidence to support the finding, or when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed; an abuse of discretion occurs when a trial judge makes clearly erroneous factual findings or when the trial judge misapprehends the law).    

United States v. White, 80 M.J. 322 (when the CAAF reviews cases that were initially appealed under Article 62, UCMJ, CAAF Rule 21(c)(1) does not afford parties the opportunity to file briefs; instead, it considers the arguments that appellant makes in the supplement to his petition for review and appellee’s answer to the petition). 

(in both an Article 62, UCMJ, appeal, and any review of a ruling on a motion to suppress, an appellate court views the evidence in the light most favorable to the party that prevailed on the motion at trial).

2018(October Term)

United States v. Lewis, 78 M.J. 447 (cases appealed under Article 62, UCMJ, may be reviewed under Article 67(a), UCMJ). 

(in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

2017 (October Term)

United States v. Hendrix, 77 M.J. 454 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; the court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

United States v. Jacobsen, 77 M.J. 81 (government appeals in criminal cases are disfavored and may only be brought pursuant to statutory authorization).

(the authority to review a government appeal is provided by Article 62, UCMJ, which represents Congress’s view that particular decisions made by a military judge permit an interlocutory government appeal). 

(Article 62(a)(1)(B), UCMJ, authorizes the government to appeal, inter alia, an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding). 

(in order to effectuate an interlocutory appeal under Article 62, UCMJ, the government trial counsel must both submit written notice of appeal to the military judge within seventy-two hours of the military judge’s ruling, and include a certification that the appeal is not taken for purpose of delay and that the evidence excluded is substantial proof of a fact material in the proceeding; the interlocutory appeal is then forwarded to the Court of Criminal Appeals). 

(the plain language of Article 62(a)(1), UCMJ, confers appellate jurisdiction for orders or rulings that actually meet specified criteria; the language of Article 62, UCMJ, is not ambiguous, it provides that the government may appeal certain kinds of rulings by a military judge; given the limits on government appeals specifically, and Article I courts generally, an appeal must actually fall within the strictures of Article 62(a)(1)(A)-(F), UCMJ, to create appellate jurisdiction; and as relevant to the instant case, Article 62(a)(1)(B), UCMJ, requires that the military judge’s ruling (1) excludes evidence, and (2) that excluded evidence is substantial proof of a fact material in the proceeding). 

(the language in Article 62, UCMJ, that requires that the evidence excluded by a military judge’s trial ruling was evidence that is substantial proof of a fact material in the proceeding is a threshold jurisdictional requirement for an interlocutory government appeal). 

(a trial counsel’s certification that evidence is substantial proof of a fact material in the proceeding is not conclusive for purposes of establishing appellate jurisdiction under Article 62(a)(1)(B), UCMJ). 

(although interlocutory appeal certifications made by a US attorney conclusively establish jurisdiction under 18 USC § 3731, certifications made by the government under Article 62, UCMJ, are not conclusive on the question of appellate jurisdiction). 

United States v. Pugh, 77 M.J. 1 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial; on matters of fact with respect to appeals under Article 62, UCMJ, the appellate court is bound by the military judge’s factual determinations unless they are unsupported by the record or clearly erroneous). 

2016 (October Term)

United States v. Mitchell, 76 M.J. 413 (these standards apply to interlocutory appeals under Article 62, UCMJ: an appellate court reviews a military judge’s ruling on a motion to suppress for an abuse of discretion and consider the evidence in the light most favorable to the party that prevailed at trial, and a military judge abuses her discretion if her findings of fact are clearly erroneous or her conclusions of law are incorrect). 

United States v. Gurczynski, 76 M.J. 381 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

2015 (September Term)

Howell v. United States, 75 M.J. 386 (Article 62 limits interlocutory appeals – an appeal that occurs before the trial court’s final ruling on the entire case; this case was not an interlocutory appeal because the trial court had issued findings and sentence and the military judge had authenticated the record before the government appealed). 

United States v. Henning, 75 M.J. 187 (in an Article 62, UCMJ, appeal, an appellate court reviews a military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed at trial). 

2014 (September Term)

United States v. Stellato, 74 M.J. 473 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s rulings directly). 

(in an Article 62, UCMJ, appeal, an appellate court is bound by the facts as found by the military judge unless those facts are clearly erroneous). 

United States v. Buford, 74 M.J. 98 (in an Article 62, UCMJ, appeal, an appellate court reviews the military judge’s decision directly and reviews the evidence in the light most favorable to the party which prevailed below). 

United States v. Vargas, 74 M.J. 1 (Article 62, UCMJ, allows interlocutory government appeals under limited circumstances, including from an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding). 

(a military judge’s denial of a government’s request for a continuance to accommodate the availability of witnesses and her subsequent resting of the government’s case when it was unable to proceed, did not constitute an exclusion of evidence appealable under Article 62, UCMJ and thus those rulings were not appealable under Article 62; the military judge had already granted at least six continuances, and she did not make any ruling which held that the government’s evidence was inadmissible nor did she indicate that she would not allow introduction of properly admissible evidence; rather, her rulings were in furtherance of a judge’s well-established responsibility to manage her cases). 

(RCM 908(b)(4) provides that upon written notice of a government appeal, the ruling or order that is the subject of the appeal is automatically stayed). 

(prosecution appeals are disfavored and are permitted only upon specific statutory authorization). 

(while Article 62, UCMJ, authorizes interlocutory government appeals, it strictly proscribes the circumstances under which the government may do so). 

(in a trial by court-martial in which a military judge presides and in which a punitive discharge may be adjudged, the United States may appeal an order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding).    

(the proper test to apply when determining whether a ruling excludes evidence under Article 62, UCMJ, is whether the ruling at issue in substance or in form has limited the pool of potential evidence that would be admissible; simply put, the question is one of incidental versus direct effect). 

(in this case, a military judge’s denial of a government’s request for a continuance and the subsequent resting of the government’s did not, either in substance or in form, limit the pool of potential evidence that could be admissible at trial).

(in this case, by the time the military judge denied the government’s request for a continuance at trial, she had already granted at least six, and two of the granted continuances occurred after the military judge had warned the parties to be prepared for trial;  while it is true that the last continuance requested was for only one day, the well-articulated record allows us to conclude that the military judge’s rulings were ones of case management intended to protect both the rights of the accused and the effective administration of justice). 

(cases involving the exclusion of evidence for purposes of interlocutory appeals under Article 62, UCMJ, are highly fact-determinative and the denial of a government request for a continuance under other circumstances than those presented in this case may well lead to a different result).

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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