2023 (October Term)
B.M. v. United States, 84 M.J. 314 (Article 62(a), UCMJ, authorizes the government to take an interlocutory appeal asking for the lifting of an abatement order; an abatement order is the functional equivalent of a ruling of the military judge which terminates the proceedings under Article 62(a), UCMJ, and such a ruling is a proper subject for appeal by the government under that statute).
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).
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).