United States v. Wuterich

UNITED STATES, Appellee
v.
Frank D. WUTERICH, Staff Sergeant
U.S. Marine Corps, Appellant
No. 08-6006
Crim. App. No. 200800183
AND
CBS BROADCASTING INC., Petitioner
v.
NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS,
THE UNITED STATES OF AMERICA, and
Frank D. WUTERICH, Staff Sergeant, U.S. Marine Corps,
Respondents
No. 08-8020/MC
AND
In re Frank D. WUTERICH
No. 08-8021/MC
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
United States Court of Appeals for the Armed Forces
Argued September 17, 2008
Decided November 17, 2008
EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting
opinion, in which ERDMANN, J., joined.
Counsel
For Appellant/Petitioner Wuterich: Lieutenant Kathleen L.
Kadlec, JAGC, USN (argued); Colonel Dwight H. Sullivan, USMCR,
and Major Christian J. Broadston, USMC (on brief).
For Petitioner CBS Broadcasting Inc.: Lee Levine, Esq.
(argued); Seth D. Berlin, Esq. (on brief).
For Appellee/Respondent United States: Lieutenant Timothy H.
Delgado, JAGC, USN (argued).
For Amicus Curiae in Support of Petitioner CBS Broadcasting
Inc.: Clifford M. Sloan, Esq., Amy R. Sabin, Esq., and David W.
Foster, Esq. (on brief), Skadden, Arps, Slate, Meagher & Flom
LLP.
Military Judge: Jeffrey G. Meeks
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
Chief Judge EFFRON delivered the opinion of the Court.
The present case concerns three filings arising out of
United States v. Wuterich, a pending court-martial convened at
Camp Pendleton, California. United States v. Wuterich, No. 08-
6006, is a petition for grant of review under Article 67(a)(3),
Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(3)
(2000), filed by Staff Sergeant (SSgt) Frank D. Wuterich
(Appellant), the accused in the pending court-martial. In re
Wuterich, No. 08-8021, is a petition for extraordinary relief
filed by SSgt Wuterich under the All Writs Act, 28 U.S.C. §
1651(a) (2000). CBS Broadcasting Inc. v. United States, No. 08-
0820, is a petition for extraordinary relief filed by CBS
Broadcasting Inc., the recipient of a subpoena in the pending
court-martial. On September 17, 2008, we held a consolidated
hearing on these three filings.
The consolidated cases involve a ruling by the military
judge in the pending court-martial. See infra Part I.
Appellant faces charges of voluntary manslaughter and other
offenses related to the deaths of civilians in Haditha, Iraq.
During the period in which the civilian deaths were under
investigation, Appellant provided an interview to CBS
Broadcasting Inc. regarding the events on the date of and in the
place of the charged offenses. CBS subsequently broadcast a
portion of the interview as part of the 60 Minutes television
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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
program. The Government issued a subpoena to CBS that included
a request for the outtakes -- the portions of the interview
given by Appellant that were not included in the broadcast. CBS
declined to provide the outtakes and filed a motion to quash the
subpoena. The military judge, without reviewing the content of
the outtakes, granted the motion to quash the subpoena. The
Government appealed under Article 62, UCMJ, 10 U.S.C. § 862(2000), which provides authority for interlocutory government
appeals similar to the authority available in federal civilian
criminal prosecutions under 18 U.S.C. § 3731 (2000).
The present appeal primarily involves two issues. First,
whether the military judge’s ruling is subject to appeal under
Article 62. Second, whether the military judge erred by
granting the motion to quash the subpoena without first
conducting an in camera review of the contents of the requested
material.
This Court consistently has looked to the decisions of the
federal courts under section 3731 for guidance in interpreting
the parallel provisions of Article 62. See infra Part III.B.1.
Under those decisions, which provide important guidance limiting
such review, a ruling that quashes a subpoena is subject to
interlocutory appellate review. See infra Part III.B.2.
Likewise, those decisions provide guidance as to the
circumstances in which it is appropriate for the trial court to
4
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
conduct an in camera review. See infra Part III.D. For the
reasons set forth below, we conclude that the ruling of the
military judge was subject to appeal under Article 62. We
further conclude that it was an abuse of discretion for the
military judge to quash the subpoena without first conducting an
in camera review of the requested materials. In our decretal
paragraph, we order the military judge to review the requested
material prior to ruling on the motion to quash the subpoena.
Part I summarizes the circumstances leading up to the
current appeal. Part II describes the issues set forth in each
of the filings. Part III discusses the procedural and
substantive issues raised by the filings. Part IV sets forth
our decision.
I. BACKGROUND
A. THE CHARGES AT THE PENDING COURT-MARTIAL
The trial of SSgt Wuterich concerns the alleged unlawful
killing of civilians during military operations in Haditha,
Iraq, on November 19, 2005. During an investigation into the
events in Haditha, Appellant provided a statement on February
21, 2006, concerning this incident and his role.
Following further investigation, charges against Appellant
were referred for trial by court-martial on December 27, 2007.
The pending charges allege dereliction of duty, voluntary
5
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
manslaughter, aggravated assault, reckless endangerment, and
obstruction of justice, offenses under Articles 92, 119, 128,
and 134, UCMJ, 10 U.S.C. §§ 892, 919, 928, 934 (2000).
B. STATEMENTS PROVIDED BY APPELLANT TO CBS REGARDING THE
CHARGED OFFENSES
On March 18, 2007, the CBS television program 60 Minutes
broadcast a segment entitled “The Killings in Haditha; Staff
Sergeant Frank Wuterich discusses what the Marines did the day
24 Iraqi civilians were killed.” At the outset of the
broadcast, the CBS correspondent offered the following
introduction:
On November 19th, 2005, a squad of United
States Marines killed 24 apparently innocent
civilians in an Iraqi town called Haditha.
The dead included men, women and children as
young as two. Iraqi witnesses say the
Marines were on a rampage, slaughtering
people in the street and in their homes.
And in December, four Marines were charged
with murder. Was it murder? Was Haditha a
massacre? A military jury will decide, but
there’s no question that Haditha is symbolic
of a war that leaves American troops with
terrible choices. The Marine making those
choices in Haditha was a 25-year-old
sergeant named Frank Wuterich. He’s charged
with 18 murders, the most by far, and he’s
accused of lying on the day that it
happened. Wuterich faces life in prison.
None of the Marines charged with murder has
spoken publicly about this, but tonight
Staff Sergeant Wuterich says he wants to
tell the truth about the day he decided who
would live and who would die in Haditha.
6
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
The segment included questions to Appellant by CBS correspondent
Scott Pelley, statements by Appellant, observations by Mr.
Pelley regarding Appellant’s statements, other commentary by Mr.
Pelley, and statements by other individuals. The segment
consisted of about one-half hour of broadcast time.
The statements broadcast by CBS were made during an on-
camera interview with Appellant conducted by Mr. Pelley in
October 2006. According to Mr. Pelley, “During our interview,
Staff Sergeant Wuterich recounted the events of the incident at
Haditha.” The precise length of Appellant’s interview with CBS
is not set forth in the record. Defense counsel indicated on
the record that the interview lasted for “hours,” and the
military judge referred to representations that there were
“several hours” of outtakes. These statements have not been
challenged on appeal. Subsequent to Appellant’s meeting with
Mr. Pelley, CBS selected portions of the interview for
presentation during the broadcast.
C. THE SUBPOENA FOR APPELLANT’S STATEMENTS TO CBS
The prosecution issued a subpoena to CBS, dated January 16,
2008. See Rule for Courts-Martial (R.C.M.) 703. In pertinent
part, the subpoena required CBS “to deliver any and all video
and/or audio tape(s), to include out-takes and raw footage, of
any and all interviews and/or statements, oral comments, and/or
oral communications or nonverbal acts, actions, and/or
7
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
acknowledgements made by Staff Sergeant Frank D. Wuterich,
United States Marine Corps, recorded by or for, or in the
possession of, CBS News.” The subpoena also noted that “SSgt
Frank D. Wuterich is a criminal defendant and any/all statements
made by him or his defense counsel concerning his actions could
be deemed to be admissions and admissible at the trial of the
facts . . . .”
CBS moved to quash the portion of the subpoena that sought
production of the unaired footage. In support of the motion,
CBS cited R.C.M. 703(f)(4)(C), which authorizes the military
judge to require that a subpoena be withdrawn or modified if it
is “unreasonable or oppressive.” CBS also contended that the
subpoena should be quashed because the Government could not meet
its burden of showing that production of the unaired footage was
required under “a qualified reporter’s privilege that is rooted
in both the First Amendment . . . and the common law.” As an
alternative to the motion to quash the subpoena, CBS moved that
the military judge issue “a protective order, pursuant to R.C.M.
701(g)(2), precluding the Government from obtaining the
materials sought by the subpoena.” CBS agreed to provide and
authenticate a copy of the segment broadcast on 60 Minutes.
Responding to the CBS motion, the prosecution asserted that
the subpoena reflected a good faith determination that the
outtakes contained admissions from Appellant that were relevant,
8
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
material, and necessary. The prosecution contended that the
existence of a reporter’s privilege represented a minority view
among the federal courts and that, even under the rulings of
those courts that had found a qualified privilege, the subpoena
should not be quashed.
The prosecution and CBS submitted detailed briefs to the
military judge, including appendices directed to the question of
whether the information sought in the outtakes was cumulative of
evidence otherwise in the Government’s possession. The military
judge reviewed the 60 Minutes broadcast, but he did not obtain
and review the unaired outtakes that were the subject of the
motion to quash.
The defense did not submit a brief on the CBS motion to
quash. When the military judge asked whether the defense had a
position on the motion to quash, defense counsel responded:
“No, Your Honor.”
During a subsequent colloquy with trial counsel, the
military judge commented to trial counsel that after viewing
the 60 Minutes broadcast, “I’m having a hard time seeing what it
is you think that’s there that’s not already there.” Trial
counsel responded that the outtakes could provide the
prosecution with the following information about Appellant’s
broadcast statements:
9
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
The background to those comments. The
backdrop for his rational[e]. The in-
context expressions of the accused in the
context of the interview. Not the snippets.
Not the sound bites. Not the portion that
has been edited for broadcast. But the
context. The totality of his expressions of
his conduct, and his rational[e] for his
conduct and the conduct on the part of his
Marines.
The military judge then asked defense counsel what position
the defense would take at trial if the prosecution offered into
evidence Appellant’s statements from the 60 Minutes broadcast.
Defense counsel responded that he would object if the
prosecution sought to admit only the broadcast portions of the
interview: “I would assert the doctrine of completeness [under]
M.R.E. 106 and ask that it all be there for context.” At that
point, the military judge asked counsel for CBS what position
CBS would take if the defense asked for the complete interview.
Counsel for CBS responded that “we would, I suspect, file a
similar motion to quash,” depending on the state of the record
at the time, among other factors. He further noted that the
burden to overcome the privilege asserted by CBS would rest with
the defense, although the balance might be different in the
context of a defense request.
Defense counsel requested permission to address the issue,
noting that the defense was not “requesting that these outtakes
be admitted [at] trial.” Defense counsel further emphasized
10
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
that “we are not a party to the dispute that’s going on today.
And we are also not required to assist the government in
acquiring its evidence or the evidence it thinks it needs.
That’s never our duty . . . .”
The military judge did not indicate how he might rule if
the defense were to offer a motion to compel introduction of the
interview outtakes under Military Rule of Evidence (M.R.E.) 106.
Instead, he indicated that he would provide both the prosecution
and counsel for CBS with the opportunity to brief that issue
should it arise in the future.
At the conclusion of arguments on the motion, the military
judge granted the motion to quash the subpoena on the grounds
that “the requirement of necessity has not been met.” See
R.C.M. 703(f)(1) (“Each party is entitled to the production of
evidence which is relevant and necessary.”). The military judge
took note of “the representation that there are several hours of
outtakes in the possession of CBS which contain information
concerning the accused’s view of the events that occurred on the
19th of November of 2005.” He also observed that the outtakes
“could be admissible into the evidence as statements of the
accused under Military Rule of Evidence 801(d) [admissibility of
statements by a party-opponent].” The military judge concluded,
however, that “with respect to the outtakes, the contents of the
accused’s comments are speculative at this point and the court
11
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
is concerned that the subpoena in this case likely qualifies as
a fishing expedition.”
The military judge determined that production of the
requested information was not necessary because “the information
desired here by the government from CBS would be cumulative with
what is already in the hands of the government.” See R.C.M.
703(f)(1) Discussion (noting, in the nonbinding commentary
accompanying the rule, that “[r]elevant evidence is necessary
when it is not cumulative and when it would contribute to a
party’s presentation of the case in some positive way on a
matter in issue”). In the course of reaching his conclusion on
cumulativeness, the military judge considered the availability
to the prosecution of statements by Appellant broadcast in the
60 Minutes segment; other statements made by Appellant prior to
trial; statements made by members of his unit; and the forensic
evidence, photographs, and other physical evidence obtained from
the scene of the charged offenses.
The military judge also addressed the question of whether
CBS could rely on a newsgathering privilege, stating that he was
persuaded that such a privilege existed “under federal common
law.” He added, however, that it was not necessary to base his
decision on such a privilege because any motion to quash that
met the “lower standard” of R.C.M. 703 would necessarily meet
12
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
“the greater standard required for disclosure” under a qualified
reporter’s privilege.
The prosecution asked the military judge to reconsider his
ruling “and order an in camera inspection to determine whether
or not the material in question is in fact cumulative . . .
given the fact that the military judge had not had an
opportunity to review” the material. See R.C.M. 703(f)(4)(C)
(providing that when the recipient of a subpoena requests
relief, “the military judge may direct that the evidence be
submitted to the military judge for an in camera inspection to
determine whether such relief should be granted”). The military
judge denied the motion without explanation. The Government
appealed the ruling to the Court of Criminal Appeals under
Article 62, UCMJ, 10 U.S.C. § 862 (2000). The United States
Navy-Marine Corps Court of Criminal Appeals vacated the ruling
of the military judge and remanded the case for further
proceedings. United States v. Wuterich, 66 M.J. 685, 691-92 (N-
M. Ct. Crim. App. 2008).
II. THE PENDING PROCEEDINGS
The present consolidated case addresses three pending
filings that seek review of the decision by the Court of
Criminal Appeals. In United States v. Wuterich, No. 08-6006,
Appellant has filed a petition for grant of review under Article
13
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
67(a)(3), UCMJ. On Appellant’s petition, we have granted review
of the following issues:
I. Whether the lower court erred in
holding that it has jurisdiction to
entertain the Government’s challenge of
a discovery ruling pursuant to Article
62, UCMJ.
II. Whether the lower court erred in
holding that the Appellant did not have
standing as petitioner/appellee and
thereby violated Appellant’s statutory
and constitutional right to counsel.
In a related case, In re Wuterich, No. 08-8021, Appellant
filed a petition for extraordinary relief under 28 U.S.C. §
1651(a), as an alternative, in the event that we determined
Appellant lacks standing to appeal under Article 67(a)(3), UCMJ.
In view of our determination, infra Part III.A., that Appellant
has standing to appeal under Article 67(a)(3), UCMJ, we deny the
writ petition as moot.
The third filing, CBS Broadcasting Inc. v. United States,
No. 08-0820, is a petition for extraordinary relief to obtain
review of the decision by the Court of Criminal Appeals. CBS
filed this writ as an alternative to reliance on Appellant’s
petition for grant of review under Article 67(a)(3), UCMJ, as
the vehicle for reviewing the decision of the court below. In
the writ petition, CBS suggested that the merits of the decision
by the lower court could be addressed properly during
consideration of Appellant’s petition for review under Article
14
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
67(a)(3), UCMJ. We agree, and deny the CBS writ petition as
moot.
The Government appeal under Article 62 automatically stayed
the proceedings before the court-martial pending disposition by
the Court of Criminal Appeals. See R.C.M. 908(b)(4). The Court
of Criminal Appeals subsequently returned the case for further
proceedings before the court-martial. 66 M.J. at 691-92. Our
Court has not ordered a stay of the pending court-martial
proceedings. See R.C.M. 908(c)(3). Neither party has asked us
to issue a stay or otherwise take action with respect to the
status of the court-martial.
III. DISCUSSION
In the present case, Appellant -– knowing of the
investigation into the events in Haditha -- granted an interview
to CBS Broadcasting Inc. CBS, which was aware of the ongoing
investigation, focused the interview on the events occurring on
the date and in the place of the matters under investigation.
CBS broadcast some, but not all, of the statements made by
Appellant during the interview. In the nationally televised 60
Minutes program, CBS stated that Appellant wanted “to tell the
truth about the day he decided who would live and who would die
in Haditha.”
15
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
At this stage in the appellate proceedings, Appellant
neither contests the voluntariness of the statements made during
his CBS interview about the events in Haditha nor claims any
privilege that would preclude use of his statements to CBS in
the pending court-martial. The majority of the statements made
by Appellant during the CBS interview, however, are not now
available for introduction into evidence at the court-martial.
In response to a Government subpoena for tapes of Appellant’s
entire interview, CBS produced only the broadcast portion. It
declined to provide the court-martial with the outtakes, which
contained the majority of Appellant’s interview statements.
On the record before us, only CBS has access to Appellant’s
full interview regarding the events in Haditha. Only CBS -- an
entity that is not a party to the pending court-martial -- is in
a position to assess whether the statements in the outtakes are
exculpatory, inculpatory, or otherwise necessary to enhance the
significance of other statements made by Appellant.
The military judge ruled that the Government could not have
access to the majority of statements made by the accused in his
interview because the military judge concluded that those
statements -- which he had not reviewed -- were cumulative in
relationship to other evidence available to the Government. The
military judge did not explain on the record how he was able to
16
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
assess the content and quality of statements contained in the
outtakes that he had not reviewed.
Appellant and Petitioner-CBS each contend that the military
judge’s ruling was not appealable under Article 62, UCMJ, the
statute governing prosecution appeals. Further, each contends
that the ruling by the military judge, even if subject to
appeal, did not constitute an abuse of discretion. In addition,
Appellant contends that the lower court erred in ruling that he
did not have standing to participate in the appellate
proceedings. Section A of this discussion addresses standing.
Section B discusses government appeals in criminal cases.
Section C considers the Government appeal in the present case.
Section D discusses the military judge’s decision that
production of the outtakes was not necessary because the
evidence therein was cumulative. Section E addresses further
proceedings.
A. STANDING
After the military judge quashed the Government’s subpoena,
the Government filed an appeal under Article 62, UCMJ.
Appellant filed a motion to dismiss on the grounds that the
military judge’s ruling was not appealable under Article 62,
UMCJ.
The Court of Criminal Appeals declined to consider
Appellant’s filings on the grounds that Appellant had no
17
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
standing to participate in the Government’s appeal under Article
62, UCMJ. Wuterich, 66 M.J. at 688-89. The Court of Criminal
Appeals noted that defense counsel had asserted at trial that
SSgt Wuterich was not a party to the dispute between CBS and the
Government. Id. at 688. The court primarily relied on cases
involving the concept of standing under the Fourth Amendment, as
well as cases involving privileges and third-party subpoenas.
See id. at 688-89.
The jurisdictional concept of standing normally concerns
the limitation of the judicial power of the United States to
“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2.
See, e.g., Sprint Communc’ns Co. v. APCC Servs., Inc., 128 S.
Ct. 2531, 2535 (2008) (summarizing the requirements for a
plaintiff in civil litigation to establish standing -- an injury
in fact, causation, and redressability). This Court, which was
established under Article I of the Constitution, has applied the
principles from the “cases” and “controversies” limitation as a
prudential matter. See United States v. Chisholm, 59 M.J. 151,
152 (C.A.A.F. 2003).
The evidentiary concept of standing in criminal cases
concerns the issue of whether a defendant has a sufficient
interest in the object of a search, a claim of privilege, or
other evidentiary matter to prevail on the merits of the
objection. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134-40
18
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
(1978); United States v. Johnson, 53 M.J. 459, 461-62 (C.A.A.F.
2000); United States v. Jones, 52 M.J. 60, 63-64 (C.A.A.F.
1999). These cases involve the criteria used to assess the
merits of a criminal defendant’s evidentiary claims, not the
right of a defendant to participate as a litigant in the
assessment of those claims.
Appellant did not initiate the present litigation. He is a
defendant in a criminal case brought by the United States.
Trial defense counsel’s comment regarding the dispute between
the Government and CBS was offered in the context of counsel’s
position that the defense had no obligation to assist the
Government in obtaining the evidence from CBS. Defense counsel
expressly addressed the interest of Appellant in the requested
material under the rule of completeness of M.R.E. 106. See
supra Part I.C. The position articulated by trial defense
counsel before the military judge underscores the direct
interest of Appellant in the scope of any ruling at trial or on
appeal regarding the evidence that would be available for
consideration at this trial.
Appellant sought to persuade the Court of Criminal Appeals
that the military judge’s order was not subject to appeal under
Article 62, and that the case should proceed with a trial on the
merits. In so doing, Appellant invoked his direct interest in
prompt disposition of the charges, a matter expressly addressed
19
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
in Article 62, UCMJ. Although it would have been appropriate
for the Court of Criminal Appeals to consider the relationship
of Appellant to the requested material for purposes of assessing
how much weight, if any, to accord Appellant’s views on the
motion to quash the subpoena, it was not appropriate to deprive
him altogether of the opportunity to participate in appellate
litigation having direct consequences on the prompt disposition
of criminal proceedings brought against him by the United
States.
As a result of the lower court’s erroneous view of
standing, Appellant did not have the opportunity to participate
in the appellate proceedings before that court. Under these
circumstances, we vacate the decision of the court below in our
decretal paragraph. In view of the pending court-martial
proceedings, and because this case involves an issue of law that
does not pertain to the unique factfinding powers of the Court
of Criminal Appeals, we shall review directly the decision of
the military judge without remanding the case to the lower
court. See United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F.
2006) (“When reviewing a decision of a Court of Criminal Appeals
on a military judge’s ruling, we typically have pierced through
that intermediate level and examined the military judge’s
ruling, then decided whether the Court of Criminal Appeals was
20
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
right or wrong in its examination of the military
judge’s ruling.”) (citations and quotation marks omitted).
B. GOVERNMENT APPEALS IN CRIMINAL CASES
Federal courts, including courts in the military justice
system established under Article I of the Constitution, are
courts of limited jurisdiction. See United States v. Lopez de
Victoria, 66 M.J. 67, 69 (C.A.A.F. 2008) (noting that such
jurisdiction “is conferred ultimately by the Constitution, and
immediately by statute”). In criminal cases, prosecution
appeals are not favored and are available only upon specific
statutory authorization. See 7 Wayne R. LaFave et al., Criminal
Procedure § 27.3(a)-(b) (3d. ed. 2007); United States v. Watson,
386 F.3d 304, 307 (1st Cir. 2004). The constitutional
prohibition on double jeopardy and related statutory
considerations severely limit post-trial appeals by the
prosecution in contrast to the broad appellate rights of the
defense following the conclusion of trial. See 7 LaFave, supra,
§ 27.3(a). In view of these limitations, the prosecution as a
general matter has a somewhat broader opportunity than the
defense to file appeals during the trial. See id. § 27.3(c).
Congress has authorized interlocutory government appeals in
federal civilian criminal cases under 18 U.S.C. § 3731 (2000).1
1
The current version of 18 U.S.C. § 3731 provides:
21
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
Congress also has authorized interlocutory prosecution appeals
in cases tried by courts-martial under Article 62, UCMJ, 10
U.S.C. § 862.2In a criminal case an appeal by the United States shall lie to a court
of appeals from a decision, judgment, or order of a district court
dismissing an indictment or information or granting a new trial after
verdict or judgment, as to any one or more counts, or any part thereof,
except that no appeal shall lie where the double jeopardy clause of the
United States Constitution prohibits further prosecution.
An appeal by the United States shall lie to a court of appeals from a
decision or order of a district court suppressing or excluding evidence
or requiring the return of seized property in a criminal proceeding,
not made after the defendant has been put in jeopardy and before the
verdict or finding on an indictment or information, if the United
States attorney certifies to the district court that the appeal is not
taken for purpose of delay and that the evidence is a substantial proof
of a fact material in the proceeding.
An appeal by the United States shall lie to a court of appeals from a
decision or order, entered by a district court of the United States,
granting the release of a person charged with or convicted of an
offense, or denying a motion for revocation of, or modification of the
conditions of, a decision or order granting release.
The appeal in all such cases shall be taken within thirty days after
the decision, judgment or order has been rendered and shall be
diligently prosecuted.
The provisions of this section shall be liberally construed to
effectuate its purposes.
2
The current version of Article 62, UCMJ, provides:
(a)(1) 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 the following (other than an order or ruling that is, or
that amounts to, a finding of not guilty with respect to the charge or
specification):
(A) An order or ruling of the military judge which terminates the
proceedings with respect to a charge or specification.
(B) An order or ruling which excludes evidence that is substantial
proof of a fact material in the proceeding.
(C) An order or ruling which directs the disclosure of classified
information.
(D) An order or ruling which imposes sanctions for nondisclosure of
classified information.
(E) A refusal of the military judge to issue a protective order
sought by the United States to prevent the disclosure of classified
information.
22
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
1. The relationship between Article 62, UCMJ, and 18 U.S.C.
§ 3731Congress provided authority for interlocutory government
appeals under Article 62, UCMJ, in the Military Justice Act of
1983, Pub. L. No. 98-209, § 10, 97 Stat. 1393 (1983). Congress
based the legislation on 18 U.S.C. § 3731, the statute
applicable to the trial of criminal cases in the federal
district courts. See S. Rep. No. 98-53, at 6 (1983) (stating
that Article 62 “allows appeal by the government under
procedures similar to an appeal by the United States in a
federal civilian prosecution”); id. at 23 (stating that “[t]o
the extent practicable, the proposal parallels 18 U.S.C. § 3731,
(F) A refusal by the military judge to enforce an order described in
subparagraph (E) that has previously been issued by appropriate
authority.
(2) 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. Such
notice shall include a certification by the trial counsel 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.
(3) An appeal under this section shall be diligently prosecuted by
appellate Government counsel.
(b) An appeal under this section shall be forwarded by a means
prescribed under regulations of the President directly to the Court of
Criminal Appeals and shall, whenever practicable, have priority over
all other proceedings before that court. In ruling on an appeal under
this section, the Court of Criminal Appeals may act only with respect
to matters of law, notwithstanding section 866(c) of this title [10
U.S.C. § 866(c)] (article 66(c)).
(c) Any period of delay resulting from an appeal under this section
shall be excluded in deciding any issue regarding denial of a speedy
trial 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.
23
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
which permits appeals by the United States in federal
prosecutions”).
As Chief Judge Everett noted in United States v. Browers:
Because the legislative history makes clear
that Congress intended for Article 62
appeals to be conducted “under procedures
similar to [those governing] an appeal by
the United States in a federal civilian
prosecution,” we look to federal precedent
for guidance on this question.
20 M.J. 356, 359 (C.M.A. 1985) (alteration in original) (quoting
S. Rep. No. 98-53, at 6); accord Lopez de Victoria, 66 M.J. at
70-71; United States v. Brooks, 42 M.J. 484, 486 (C.A.A.F.
1995); United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F.
1995); United States v. True, 28 M.J. 1, 3 (C.M.A. 1989).
Federal court decisions interpreting 18 U.S.C. § 3731constitute guidance, not binding precedent, in the
interpretation of Article 62, UCMJ. When considering the import
of cases arising under 18 U.S.C. § 3731, we bear in mind that
“Congress, in enacting the revised Article 62, UCMJ, in 1983,
clearly intended to afford the government a right to appeal
which, ‘to the extent practicable . . . parallels 18 U.S.C. §
3731 . . . .’” Lopez de Victoria, 66 M.J. at 70 (first ellipsis
in original) (quoting S. Rep. No. 98-53, at 23). In that
regard, we take into account the structural differences between
courts-martial and trials in federal district court, as well as
24
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
the textual similarities and differences with respect to Article
62, UCMJ, and 18 U.S.C. § 3731.
Section 3731, for example, states: “The provisions of this
section shall be liberally construed to effectuate its
purposes.” The First Circuit, in United States v. Watson,
described the legislative background of this provision. The
court noted that the initial statute authorizing government
appeals in federal criminal cases referred only to “motion[s] to
suppress.” 386 F.3d at 308-10. Following a series of judicial
decisions narrowly construing this provision, Congress expanded
the statute to cover all orders suppressing or excluding
evidence and added the language on liberal construction to
“‘reverse[] the practice of narrowly interpreting’” the statute.
See id. at 309 (quoting S. Rep. No. 91-1296, at 37 (1970), and
citing Omnibus Crime Control Act of 1970, Pub. L. No. 91-642, §
14, 84 Stat. 1880, 1890 (1971)). With respect to the guidance
drawn from cases interpreting 18 U.S.C. § 3731, we note that
those cases routinely cite the liberal construction admonition
in the course of addressing the scope of section 3731. E.g.,
Watson, 386 F.3d at 310; In re Grand Jury Empanelled (Colucci),
597 F.2d 851, 855-56 (3d Cir. 1979).
Article 62, UCMJ, on the other hand, contains no language
on statutory construction, and its legislative history does not
demonstrate a rationale for the omission of this language.
25
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
Therefore, it would be inappropriate to apply the liberal
construction mandate of section 3731 when interpreting Article
62, UCMJ. This is consistent with our past practice. We have
not previously applied an explicit liberal construction when
interpreting Article 62, UCMJ. We treat cases interpreting
parallel provisions of 18 U.S.C. § 3731 as guidance, not as
mandates; and we apply that guidance only to the extent
consistent with an interpretation of Article 62 that is not
dependent upon the liberal construction admonition.
2. Appeals under 18 U.S.C. § 3731The issues in the present appeal concern the meaning of the
term “excludes evidence” in Article 62. The statute permits the
government to appeal an “order or ruling which excludes evidence
that is substantial proof of a fact material in the proceeding.”
Article 62(a)(1)(B), UCMJ. 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.” Article 62(a)(2), UCMJ.
The related provision governing federal civilian criminal
trials, 18 U.S.C. § 3731, permits the government to appeal an
order by the trial court “suppressing or excluding evidence.”
The United States Attorney must certify “that the appeal is not
26
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.” Id.The courts of appeals have addressed the meaning of the
term “excluding evidence” under 18 U.S.C. § 3731 and have
concluded that the term includes an order quashing a subpoena.
See 25 James Wm. Moore et al., Moore’s Federal Practice
¶ 617.08[4] (3d. ed. 2008); 7 LaFave, supra, § 27.3(c). The
case law in this area, permitting appeal of an order quashing a
subpoena, predates the enactment of Article 62, UCMJ. See,
e.g., Colucci, 597 F.2d at 856.
In Watson, the First Circuit discussed the scope of the
term “excluding evidence” under 18 U.S.C. § 3731. 386 F.3d at
307. The appeal involved a trial court ruling that denied a
government motion for a continuance. Prior to trial, the
prosecution asked immigration officials to keep the prosecution
informed of the status of a potential witness. The immigration
officials neglected to do so, and deported the witness. The
government moved for a continuance to conduct an overseas
deposition. The trial court denied the motion, noting that the
case was more than three years old, there were speedy trial
issues, the problem was a result of government negligence, and
it could take six to twelve months to obtain the testimony by
deposition. The government renewed its motion, and the trial
27
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
court denied the renewed motion for the same reasons. Id. at
306-07.
The court of appeals concluded that the orders denying the
motions were not appealable under 18 U.S.C. § 3731 because they
were case-management orders, entered with the purpose of
preventing delay:
Although the orders appealed from will
certainly hamper (and may effectively
prevent) the obtaining and subsequent use of
[the witness’s] testimony, those orders did
not, either in substance or in form, limit
the pool of potential evidence that would be
admissible at the forthcoming trial. Rather,
they were premised on, and accomplished, a
more prosaic goal: the lower court’s
determination to forestall further delay.
That was why the court denied the requested
continuance -- and the practical effect of
that denial was to clear the way for the
trial to proceed. That the orders had an
incidental effect on the government’s
evidence-gathering is too remote a
consequence to support appellate
jurisdiction under the second paragraph of
section 3731.
Id. at 313.
In the course of its opinion, the court of appeals reviewed
the development of 18 U.S.C. § 3731 as well as cases applying
the provision to permit appeals of decisions “excluding
evidence.” The court concluded that an interlocutory
prosecution appeal under section 3731 is permitted when “the
order itself is the practical equivalent of a suppression or
exclusion order; that is, when the order has the direct effect
28
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
of denying the government the right to use evidence. If such an
effect is only incidental, then there can be no appeal.” Id. at
311. The cases discussed in Watson in support of this test
reflect a highly case-specific approach to the determination of
whether the effect on the exclusion of evidence is direct or
incidental. See id. at 310-12. Watson did not call into
question any of the cases permitting government appeal of an
order quashing a subpoena.
Under Watson, the pertinent inquiry is not whether the
court has issued a ruling on admissibility, but instead whether
the ruling at issue “in substance or in form” has limited “the
pool of potential evidence that would be admissible.” Id. at
313. The distinction drawn by Watson between direct and
incidental effects underscores that the inquiry concerns the
impact of the ruling on the pool of potential evidence, not
whether there has been a formal ruling on admissibility. See
id. at 311-12.
3. Limitations on appeals under Article 62, UCMJ
Appellant and Petitioner-CBS contend that the prosecution
may not appeal an order quashing a subpoena under Article 62,
UCMJ, irrespective of the authority for the prosecution to
appeal such orders under 18 U.S.C. § 3731. According to
Appellant, Chief Judge Everett’s opinion in Browers, 20 M.J. at
356, “stands for the proposition that Article 62 authorizes
29
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
prosecution appeals of orders excluding evidence only where a
military judge rules that certain evidence ‘is inadmissible.’”
Contrary to Appellant’s assertion, Chief Judge Everett did
not state that such an Article 62 appeal could take place “only”
if the military judge rules that evidence “is inadmissible.”
Browers, like Watson, involved an appeal of a case-management
ruling by the trial judge. The prosecution at trial moved for a
continuance due to the absence of two witnesses. The military
judge denied the motion, noting that the charges were old, one
witness was not likely to be available in the near future, and
the government had failed to keep track of the other witness.
In Browers, Chief Judge Everett concluded that the order was not
appealable because it involved the question of trial scheduling,
not the exclusion of evidence. 20 M.J. at 356-60.
In the course of discussing this issue, Chief Judge Everett
stated:
Most lawyers think of exclusion of evidence
as a ruling made at or before trial that
certain testimony, documentary evidence, or
real evidence is inadmissible. In short,
“excludes” usually is a term of art; and we
see no reason to believe that Congress had
any different intention in drafting Article
62(a)(1).
Id. at 360.
Chief Judge Everett referred generally to what “[m]ost
lawyers think” and described “excludes” as a word that “usually
30
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
is a term of art.” Id. The nonexclusive nature of these
observations underscores that the opinion did not provide either
a formal definition or a comprehensive description of the
meaning of “excludes.” In context, Chief Judge Everett’s
observations set the stage for his conclusion on the critical
issue in the case: denial of a continuance, in a case that had
languished, involved a scheduling matter that did not amount to
an exclusion of evidence. Highlighting the case-management
nature of an order denying a continuance, he stated: “Indeed,
we suspect Congress believed that the scheduling of trials
should be left primarily to trial judges and reliance should be
placed on their judgment.” Id. at 360. His opinion did not
establish a bright-line rule or a comprehensive definition of
“excludes,” nor did it otherwise hold that an order is
appealable under Article 62(a)(1)(B) “only” if there is a formal
ruling that evidence is inadmissible.
Appellant’s argument suggests that the phrase “excludes
evidence” means something different in military law than the
term “excluding evidence” means in civilian criminal
proceedings. In that regard, we note that in Browers, Chief
Judge Everett did not state that we should disregard decisions
under 18 U.S.C. § 3731 permitting appeal even without a formal
ruling on admissibility. On the contrary, as noted above in
Part III.B.1., he expressly stated that we “look to federal
31
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
precedent for guidance” in the interpretation of Article 62. 20
M.J. at 359. He specifically noted that the government had not
identified any cases arising under 18 U.S.C. § 3731 in which
denial of a continuance had been treated as an appealable order.
Id. at 360.
In a subsequent dissent, Chief Judge Everett took the
position that the Court in Browers “adopted a narrow
construction of the statutory language.” United States v. True,
28 M.J. 1, 5 (C.M.A. 1989) (Everett, C.J., dissenting). His
view, however, was not joined by the other members of the Court.
In that regard, we note that Browers was decided with the
participation of only two Judges, Chief Judge Everett and Judge
Cox. 20 M.J. at 360. Judge Cox -- who concurred separately in
Browers -- did not endorse Chief Judge Everett’s suggestion in
True that the Court in Browers had adopted a “narrow
construction” of Article 62. Instead, he joined the majority
opinion in True. 28 M.J. at 4. The majority in True rejected a
narrow construction of the statute, noting: “Prudent advice
concerning the use of [Article 62] should not be confused with
an unjustified narrowing of the scope of this statute or
deliberate frustration of the will of Congress.” 28 M.J. at 3.
In short, this Court’s decision in Browers does not support
the proposition that the term “excludes” in Article 62 refers
only to a ruling that evidence is inadmissible. Likewise,
32
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
Browers does not support the proposition that the term
“excludes” under Article 62 should be construed more narrowly
than the term “excluding” under section 3731. On the contrary,
Browers expressly identified case law under section 3731 as an
important source of guidance in interpreting Article 62. The
text of Article 62 does not reflect that Congress used the word
“exclude” as a term of art limited to formal rulings on
admissibility. Cf. Articles 43(d), 57(b), 120(s), UCMJ, 10
U.S.C. §§ 843(d), 57(b), 120(s) (2000) (using the terms
“excluded” and “excluding” in various legal contexts to convey
descriptive meanings different from the concept of
admissibility). Compare Watson, 386 F.3d at 313 (describing a
ruling “excluding evidence” under section 3731 as one “that
would, either in substance or in form, limit the pool of
potential evidence that would be admissible”). We agree with
the approach taken in Watson, which focused on the pool of
potential evidence, not a formal ruling on admissibility. See
supra Part III.B.2.
The legislative history of Article 62, UCMJ, also does not
reflect that Congress intended the word “exclude” to be a term
of art limited to rulings on admissibility. Congress, in
drafting Article 62, UCMJ, did not focus on the word “excludes”
or “excluding.” To the extent that the state of the law at the
time of enactment illuminates congressional intent, we note that
33
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
the Colucci case applying 18 U.S.C. § 3731 to an order quashing
a subpoena predated enactment of Article 62, UCMJ, by several
years. See Colucci, 597 F.2d at 855-56. We need not rely on
that point, however, but instead focus on the meaning of the
word “exclude” in the context of the similar wording in section
3731 (“excluding”) and Article 62 (“excludes”). We also focus
on the purpose of Article 62, UCMJ, reflected in its structure
and legislative history, to provide the government in military
cases with the same interlocutory appeal authority as in
civilian criminal cases, “to the extent practicable.” See S.
Rep. No. 98-53, at 23 (1983); cf. Article 36, UCMJ, 10 U.S.C. §
836 (2000) (authorizing the President to prescribe pretrial,
trial, and post-trial procedural and evidentiary rules that
follow the rules for trials in federal district courts insofar
as the President deems practicable).
We conclude that application of guidance from the federal
court decisions under 18 U.S.C. § 3731 is both practicable and
appropriate. Under that guidance, a ruling quashing a subpoena
is appealable under Article 62, UCMJ. We have specifically
taken into account, and apply, the guidance from cases under 18
U.S.C. § 3731 restricting interlocutory government appeals to
those rulings that have a direct rather than incidental effect
on the exclusion of evidence. See supra Part III.B.2. In
reaching this conclusion, we have considered the differences
34
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
between courts-martial and civilian trials, particularly the
emphasis in military law on prompt disposition of trials and
appeals, and the accelerated time frames in Article 62.
Compare, e.g., Article 62(a)(2), UCMJ, with 18 U.S.C. § 3731.
See, e.g., Manual for Courts-Martial, United States, pt. I,
para. 3 (2008 ed.); R.C.M. 908. Appellate courts in the
military justice system are required to give priority to cases
arising under Article 62 whenever practicable. See Article
62(b); C.A.A.F. R. 19(a)(7)(A). In the present case, we note
that this Court has not issued a stay of the court-martial
proceedings. See R.C.M. 908(c)(3). Neither party has asked us
to issue a stay or otherwise take action with respect to the
status of the court-martial. See supra Part II.
The experience in federal civilian courts underscores the
infrequency of government appeals from orders quashing subpoenas
and the effectiveness of judicial interpretations of 18 U.S.C. §
3731 in that regard. In a section 3731 appeal, as in an appeal
under Article 62, the prosecution must certify that the appeal
is not taken for purposes of delay and that the evidence is a
substantial proof of a fact material in the proceedings.
Section 3731 has been interpreted to apply only to rulings that
have a direct rather than an incidental effect of excluding
evidence. See, e.g., Watson, 386 F.3d at 311-13. The
interpretation set forth in Watson, which we apply in the
35
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
context of Article 62, provides a significant limitation on the
availability of government appeals. We have no reason to
anticipate that application of that interpretation in the
military justice system should differ with respect to the
relative infrequency of government appeals. Application of that
interpretation to review of the specific ruling at issue here --
the military judge’s decision to quash a subpoena requesting
statements by the accused to the news media regarding events on
the date of and in the place of the incident under investigation
-- is not likely to have an appreciable effect on the volume of
prosecution appeals under Article 62. In light of the text, the
legislative history, the decisions and experiences of courts
applying the parallel provisions of 18 U.S.C. § 3731, and
considerations of practicability, we conclude that 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.
C. THE APPEAL IN THE PRESENT CASE
The question before us is not simply the generic question
of whether Article 62, UCMJ, permits appeal of a motion quashing
a subpoena, but whether the ruling at issue in this case had the
direct effect of excluding evidence. In resolving that issue,
we consider whether the military judge’s ruling directly limited
36
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
the pool of potential evidence that would be admissible at the
court-martial. See Watson, 386 F.3d at 313. Appellant contends
that the prosecution cannot appeal because the prosecution has
not demonstrated that the outtakes contain any relevant,
admissible evidence, contending that “the Government’s
assertions as to what might be contained in the CBS outtakes
were mere speculation.” The record before us, however,
demonstrates that the outtakes contain statements by Appellant
about the charged crimes, focusing on the events that transpired
on the day and in the place of the alleged offenses. See supra
Part I.B. Appellant also contends that the ruling is not
appealable because “the ‘admissions’ that the Government
speculates are in the outtakes are available from a number of
other sources.” However, the question of whether the material
in the outtakes is cumulative goes to the merits of the ruling
by the military judge, not whether that ruling is appealable.
See infra Part III.D.
According to Appellant, the military judge’s ruling did not
exclude evidence from the court-martial: “If the government
ultimately obtains these outtakes through negotiation with CBS
News or alternative means, it [sic] may well be admissible.” On
the record before us, CBS has sole possession and control of the
outtakes. The record does not establish the existence of any
37
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
negotiations or “alternative means” through which the Government
could obtain the outtakes.
The record reflects that CBS does not believe that it is
appropriate to provide the outtakes to the prosecution. CBS has
litigated vigorously a motion to quash the subpoena as well as
the present appeal. As part of that litigation, CBS has
submitted a declaration from its correspondent, Mr. Pelley,
asserting a variety of negative consequences to the
newsgathering function that would follow “if reporters were to
become known as willing or unwilling investigative agents for
the Government.” Under these circumstances, the record
establishes that the military judge’s decision had the direct
effect of excluding the outtakes from the pool of potential
evidence that would be admissible at the court-martial.
In a related argument, Appellant and Petitioner-CBS suggest
that the military judge’s decision to quash the subpoena is not
appealable in this case because the military judge did not
foreclose future consideration of the admissibility of the
outtakes. The military judge, however, discussed that
possibility in the context of a contingency under the control of
the defense. During litigation of the motion to quash the
subpoena at trial, the military judge asked trial defense
counsel if he would object to introduction into evidence of the
broadcast statements made by the accused. Defense counsel
38
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
reserved the right to object under M.R.E. 106, the rule of
completeness, which provides, “When a writing or recorded
statement or part thereof is introduced by a party, an adverse
party may require that party at that time to introduce any other
part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.” See also
M.R.E. 304(h)(2) (providing a rule of completeness in connection
with an alleged admission or confession).
The rule of completeness is a rule that benefits the party
opposing admission of evidence, not the party offering the
evidence. Assuming that the prosecution moves to admit the
broadcast statements, the defense would not be obligated to
object under the rule of completeness. Defense counsel
emphasized during discussion of the motion to quash the subpoena
that the defense was “not required to assist the government in
acquiring its evidence or the evidence it thinks it needs,” and
that defense counsel was not “required to anticipate what the
government might try to do and announce all of my objections.”
Likewise, it is not possible to know at this stage whether the
interests of Appellant in presenting the most effective defense
in his trial by court-martial and the interests of CBS as a
newsgathering entity will be similar or different during trial
on the merits.
39
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
At this stage in the proceedings, the possibility of a
future ruling on admissibility of the outtakes under the rule of
completeness rests with the defense. Moreover, without having
the content of the outtakes in the record, there is no way of
knowing which parts, if any, of the outtakes would be covered by
the rule of completeness. Under these circumstances, the
contingent possibility that an opposing party might raise an
objection that could resurrect the need for a subpoena, which is
dependent on multiple variables, does not diminish the direct
effect of the ruling excluding the outtakes.
In the present case, the military judge ruled that the
evidence requested in the subpoena was cumulative with the
evidence otherwise available to the prosecution. See supra Part
I.C. In so doing, he focused specifically on the pool of
potential evidence that would be admissible at the court-
martial. As such, his decision to quash the subpoena was
appealable under Article 62, UCMJ, because it had a direct
effect on whether the outtakes would be excluded from
consideration at the court-martial.
D. THE MILITARY JUDGE’S DECISION TO QUASH THE SUBPOENA
The question before us is whether the military judge in
this case erred when he granted the motion to quash the subpoena
on the grounds that it was unnecessary without reviewing in
camera the evidence requested. See supra Part I.C.; R.C.M.
40
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
703(f)(1). We review the military judge’s decision under an
abuse of discretion standard. See United States v. Reece, 25
M.J. 93, 95 (C.M.A. 1987).
In trials by courts-martial, “[t]he trial counsel, the
defense counsel, and the court-martial shall have equal
opportunity to obtain witnesses and other evidence in accordance
with such regulations as the President may prescribe.” Article
46, UCMJ, 10 U.S.C. § 846 (2000). The President has provided
that the parties and the court-martial “shall have equal
opportunity to obtain witnesses and evidence, including the
benefit of compulsory process.” R.C.M. 703(a). Under R.C.M.
703(f)(1), “Each party is entitled to the production of evidence
which is relevant and necessary.” M.R.E. 401 establishes “a low
threshold of relevance.” Reece, 25 M.J. at 95 (quoting United
States v. Tomlinson, 20 M.J. 897, 900 (A.C.M.R. 1985)). As
noted in the nonbinding Discussion accompanying R.C.M.
703(f)(1): “Relevant evidence is necessary when it is not
cumulative and when it would contribute to a party’s
presentation of the case in some positive way on a matter in
issue.” See Reece, 25 M.J. at 95.
R.C.M. 703(f)(4)(C) provides: “If the person having
custody of evidence requests relief on grounds that compliance
with the subpoena or order of production is unreasonable or
oppressive . . . the military judge may direct that the subpoena
41
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
or order of production be withdrawn or modified.” Under the
rule, “the military judge may direct that the evidence be
submitted to the military judge for an in camera inspection in
order to determine whether such relief should be granted.”
Reece considered these provisions on direct review of a
case in which the military judge had declined to review in
camera the social service and counseling records of two
witnesses. 25 M.J. at 94-95. The defense at trial had asserted
that records of drug and alcohol abuse, as well as behavioral
problems, were relevant to the credibility of the witnesses. On
appeal, this Court observed that the credibility of the two
witnesses was a key issue at trial and that the appellant had
“made as specific a showing of relevance as possible, given that
he was denied all access to the documents.” Id. at 95. Under
the circumstances of the case, Reece held that the military
judge erred in not conducting an in camera review of the
requested materials, and remanded the case for in camera
inspection by a military judge under United States v. DuBay, 17
C.M.A. 147, 37 C.M.R. 411 (1967). 25 M.J. at 95; cf. United
States v. Cuthbertson, 630 F.2d 139, 145-46, 148-49 (3d Cir.
1980) (holding that the trial judge did not err in requiring an
in camera review of trial witness statements when there was a
showing of relevancy, necessity, and specificity, but erred in
42
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
requiring an in camera review of non-witness statements without
such a showing).
In the present case, Appellant argues that the military
judge did not err in quashing the subpoena because “[t]here is
no reason to believe that there are material statements in
excess of what CBS aired on March 17, 2007, as Petitioner’s
[Appellant’s] statements are relatively uniform and indicative
of his subjective intent.” Appellant further contends that --
the government also has a wealth of
additional evidence that can be used to
demonstrate [Appellant’s] specific intent,
including forensic evidence, the testimony
of all of [Appellant’s] squad members, and
secondary evidence. The testimony of
Appellant’s squad members is indicative of
his specific intent, as he trained his squad
on the rules of engagement and their
understanding of the rules of engagement
mirrors his. Appellant’s subjective intent
is clear from his multiple statements -- he
declared the buildings and anyone within
hostile and authorized the use of force. He
repeatedly admitted to telling them to
“shoot first and ask questions later.”
(citations omitted). In similar fashion, Petitioner-CBS notes
that the record is replete with other evidence available to the
Government on the contested issues in the court-martial.
Petitioner-CBS further suggests that an in camera review of the
outtakes is unnecessary because “it is typically the case that
the most relevant and important information is included in the
publicly disseminated news report.”
43
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
As we have noted earlier, Appellant granted an interview
with CBS in which he specifically described events at the time
and in the place of the charged offenses. CBS conducted the
interview knowing that it involved matters then under
investigation. The interview lasted for several hours, but only
a portion of the interview was aired by CBS. The outtakes
contain a majority of Appellant’s discussion of the charged
offenses with CBS, and only CBS possesses those outtakes. See
supra Part I.B-C.
At this stage in the proceedings, Appellant has pled not
guilty. Therefore, the issues of his specific intent and other
key elements of the offenses remain in dispute. On the record
before us, the case involves both direct and circumstantial
evidence, including statements by Appellant. Both the
prosecution and the defense will have the opportunity to
demonstrate the inculpatory or exculpatory value of evidence
that is introduced with respect to the charged offenses. Under
those circumstances, the level of detail, the context, and the
credibility of the evidence is likely to be at issue.
In that setting, the decisions made by CBS as to what was
relevant and important to include in a nationally broadcast news
story are not the same as the judgment by the parties to the
court-martial of what might be relevant and necessary in the
trial of the pending case, which includes both general crimes
44
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
and unique military offenses. Likewise, Appellant’s assessment
that his statements in the record reflect a consistent
expression of intent is a matter that, at this stage in the
proceedings, is likely to be subject to evaluation by the
factfinder at trial. Moreover, Appellant’s assessment does not
describe the content of the statements in the outtakes.
In Cuthbertson, the Third Circuit addressed similar
considerations in a case where a news organization sought to
resist a subpoena that requested, in part, material containing
“verbatim and substantially verbatim statements . . . of
witnesses that the government intends to call at trial.” 630
F.2d at 148. In sustaining the decision of the trial judge to
order production of that material for in camera inspection, the
court observed:
By their very nature, these statements are
not obtainable from any other source. They
are unique bits of evidence that are frozen
at a particular place and time. Even if the
defendants attempted to interview all of the
government witnesses and the witnesses
cooperated with them, the defendants would
not obtain the particular statements that
may be useful for impeachment purposes at
trial.
Id.; accord United States v. LaRouche, 841 F.2d 1176, 1180 (1st
Cir. 1988) (sustaining the trial judge’s decision to order
production of outtakes of a news media interview with a key
trial witness).
45
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
The outtakes of the CBS interview of Appellant about the
events in Haditha on the date of the charged offenses, like the
material at issue in Cuthbertson and LaRouche, constitute a
potentially unique source of evidence that is not necessarily
duplicated by any other material. Under the circumstances of
the present case, consideration of whether the outtakes are
cumulative requires review of the requested material by the
military judge. The military judge’s decision to quash the
subpoena without conducting an in camera review of the requested
material constituted an abuse of discretion.
E. FURTHER PROCEEDINGS
Petitioner-CBS based the motion to quash the subpoena in
part on the grounds that the outtakes were protected by a
qualified newsgathering privilege. Petitioner-CBS relied on
principles related to the newsgathering process and did not
claim that Appellant’s statements were made under conditions of
confidentiality. Although the military judge indicated
agreement with the concept of a qualified newsgathering
privilege, he found it unnecessary to base his decision on the
privilege because he determined that the outtakes were
cumulative.
Under M.R.E. 501(a)(4), a privilege may be claimed under
“[t]he principles of common law generally recognized in the
trial of criminal cases in the United States district courts
46
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
pursuant to Rule 501 of the Federal Rules of Evidence insofar as
the application of such principles in trials by courts-martial
is practicable and not contrary to or inconsistent with the
code, these rules, or this Manual.” In the past, this Court has
considered but has not resolved the question of whether a
newsgathering privilege applies in the military justice system.
See United States v. Rodriguez, 50 M.J. 38, 38 (C.A.A.F. 1998)
(summary disposition). On appeal, the parties have referred to
the question of whether a newsgathering privilege should be
recognized in the military justice system, but they have not
asked this Court to resolve whether the subpoena in this case
should have been quashed on a qualified newsgathering privilege.
Under these circumstances, we do not decide here whether such a
privilege should be recognized in the military justice system.
The issue of an in camera review is a separate matter.
Even to the extent that a qualified privilege has been
recognized by some courts in the trial of federal civilian
cases, the application of such a privilege to an in camera
review has been highly case specific. See, e.g., United States
v. Burke, 700 F.2d 70, 76-78 (2d Cir. 1983); Cuthbertson, 630
F.2d at 146-49. In that context, even if a qualified privilege
applied to cases in the military justice system -- a matter that
we do not decide here -- such a privilege would not preclude an
in camera review pursuant to R.C.M. 703(f)(4)(C) under the
47
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
circumstances of the present case. The description of the
material at issue in the present case -- video outtakes from a
specific interview in which Appellant discussed the events
occurring on the date of and in the place of the charged
offenses -- is sufficient to meet a threshold showing of
necessity for an in camera review. The military judge could not
make an evaluation of necessity under the specific circumstances
of this case without reviewing the outtakes for content and
context. See supra Part III.D. Accordingly, we conclude that
the military judge in the present case must conduct an in camera
review of the requested materials prior to ruling on the motion
to quash the subpoena.
In any further hearing before the military judge on a
motion to quash the subpoena, the military judge alone will
inspect the requested materials in camera. Such a hearing,
accompanied by inspection of the requested material in camera by
the military judge alone, will provide the appropriate forum for
consideration of issues pertinent to a motion to quash the
subpoena, such as the existence, if any, of a qualified
newsgathering privilege under M.R.E. 501(a)(4), the scope of any
such privilege, and the application, if any, of such a privilege
to the requested materials.
Our decision to order inspection in camera by the military
judge alone pertains to the present case. We do not decide here
48
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
whether, under other circumstances, inspection by the parties
under an appropriate protective order would be warranted. See
Reece, 25 M.J. at 95 n.6.
IV. DECISION
We vacate the decision of the United States Navy-Marine
Corps Court of Criminal Appeals and the order of the military
judge quashing the Government’s subpoena. We remand the record
of trial to the Judge Advocate General of the Navy for return to
the military judge for further consideration of whether relief
should be granted to Petitioner-CBS under R.C.M. 703. Prior to
ruling, the military judge shall order production of the
requested material for in camera inspection by the military
judge alone.
49
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RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):
I agree that Appellant has standing to litigate the
Government’s appeal of the military judge’s ruling quashing a
third-party subpoena. United States v. Wuterich, __ M.J. __
(19-21) (C.A.A.F. 2008). However, because the Government’s
appeal in this case is an appeal of the military judge’s ruling
on a discovery motion -- a ruling that expressly noted that the
object of the discovery could be admissible1 -- and not “[a]n
order or ruling which excludes evidence,” I disagree that the
United States Navy-Marine Corps Court of Criminal Appeals (CCA)
had jurisdiction under Article 62 of the Uniform Code of
Military Justice (UCMJ), 10 U.S.C. § 862 (2000), to hear the
Government’s appeal. That the CCA had no jurisdiction under the
facts of this case is supported both by the precedent of this
Court and the precedent of the United States Court of Appeals
for the First Circuit. See United States v. Browers, 20 M.J.
356, 360 (C.M.A. 1985) (defining “exclusion” as used in Article
62(a)(1)(B), UCMJ, as a ruling involving inadmissibility);
United States v. Watson, 386 F.3d 304, 310 (1st Cir. 2004)
(“[The Criminal Appeals Act] unarguably restricts government
appeals to specific categories of district court orders. If an
1
Transcript of Record at 87, United States v. Wuterich (Feb. 22,
2005) (Article 39(a), UCMJ, session) (“[T]he court clearly finds
that this could be admissible into the evidence as statements of
the accused under Military Rule of Evidence 801(d).”).
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
order falls outside those categories, the government’s attempted
appeal must be dismissed.”) (citation omitted).
A. Statutory authorization for a government appeal
In criminal cases, prosecution appeals are not favored and
are available only upon specific statutory authorization. See
United States v. Wilson, 420 U.S. 332, 336 (1975); 7 Wayne R.
LaFave et al., Criminal Procedure §27.3(a)-(b) (3d. ed. 2007).
Specifically relevant to this case, Article 62(a)(1)(B), UCMJ,
grants the Government the authority to appeal “[a]n order or
ruling which excludes evidence that is substantial proof of a
fact material in the proceeding.” Article 62(b), UCMJ, grants
the CCA the jurisdiction to hear those appeals.
B. “Order or ruling which excludes evidence”
This Court previously adopted a narrow construction of the
language in Article 62, UCMJ, permitting the government to
appeal from an order or ruling “which excludes evidence that is
substantial proof of a fact material in the proceeding.”
Browers, 20 M.J. at 359-60. In Browers, the Court
differentiated appealable decisions from unappealable ones by
asking whether the military judge made a ruling involving the
admissibility of the evidence. Writing for the Court, former
Chief Judge Everett defined “excludes evidence” to mean “a
ruling made at or before trial that certain testimony,
documentary evidence, or real evidence is inadmissible.” Id. at
2
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
360 (emphasis added). The Court acknowledged that this
interpretation might result in a party being deprived of
critical evidence, but expressed confidence in the “ability of
military judges to make these delicate determinations.” Id.
Inexplicably, the majority dismisses former Chief Judge
Everett’s definition in Browers, a decision of this Court, as
mere “observations.” Wuterich, __ M.J. at __ (31). If the
current majority has a different take on what the definition of
“excludes” should be, as it is entitled to have, it should say
so and explicitly overrule Browers rather than mischaracterize a
holding of this Court.2
The majority suggests that Browers “concluded that the
order was not appealable because it involved the question of
trial scheduling, not the exclusion of evidence.” Wuterich, __
M.J. at __ (30). Browers made no such conclusion, as the
Court’s language plainly demonstrates. Browers explicitly
states that “the issue is whether denial of a continuance
requested so that the Government may produce a material witness
constitutes the exclusion of evidence.” Browers, 20 M.J. at 360
(emphasis in original). The Browers Court concluded that the
2
Any relevance of the Court’s composition during Browers, which
the majority appears to suggest weighs against the precedential
value of the opinion, Wuterich, __ M.J. at __ (32), is unclear
at best. Chief Judge Everett delivered the opinion of the
Court; Judge Cox, while writing separately to concur in Browers,
did not disagree with Judge Everett’s opinion in general or his
definition of “excludes” in particular.
3
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
denial of a continuance was not an appealable ruling because it
was not an order that “excludes evidence” despite the fact that
the ruling prevented the government from presenting two material
witnesses. The scheduling ruling in Browers, like the discovery
ruling in this case, deprived the government of evidence, but
did not “exclude” evidence for purposes of Article 62, UCMJ.
If any doubt remained as to the Court’s intentions in
Browers, former Chief Judge Everett later repeated the
definition of “excludes evidence” as a ruling that “evidence is
inadmissible,” and stated that, in Browers, this Court “adopted
a narrow construction of the statutory language.” United States
v. True, 28 M.J. 1, 5 (C.M.A. 1989) (Everett, C.J., dissenting)
(citing Browers, 20 M.J. at 360).3
3
The Court in True considered whether the ruling of the military
judge, which abated the court-martial, was one “which terminates
the proceedings,” not whether it was one “which excludes
evidence.” 28 M.J. at 2. On that point Chief Judge Everett
agreed. Id. at 5 (Everett, C.J., dissenting). While all
federal circuits to have considered the issue agree that the
analogous language in the first paragraph of 18 U.S.C. § 3731(“a decision, judgment, or order of a district court dismissing
an indictment or information or granting a new trial after
verdict or judgment”) should be construed broadly, see, e.g.,
Watson, 386 F.3d at 308 (crediting “Congress’s intent that all
such orders would be appealable unless the Double Jeopardy
Clause forbade that course of action”), only the Fifth Circuit
reads “suppresses or excludes evidence” as broadly. See United
States v. Smith, 135 F.3d 963, 967 (5th Cir. 1998) (holding that
§ 3731 provides the government with as broad a right to appeal
an order suppressing or excluding evidence as the Constitution
will permit). Consequently the breadth of the language in True,
applicable to statutory language regarding “terminates the
proceedings,” is of doubtful weight when considering the
4
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
One would think that Browers ends the inquiry as to the
meaning of Article 62(a)(1)(B), UCMJ. This Court concluded that
“excludes” was a term of art relating to admissibility of
evidence and saw “no reason to believe that Congress had any
different intention in drafting Article 62(a)(1).” Browers, 20
M.J. at 360. This narrow view is consistent with the Supreme
Court’s instruction that the government could only take an
appeal in a criminal case if it had express statutory authority,
Wilson, 420 U.S. at 336, and its policy against piecemeal
appeals in criminal cases, “where the defendant is entitled to a
speedy resolution of the charges against him.” Will v. United
States, 389 U.S. 90, 96 (1967); see also U.S. Const. amend. VI
(“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial . . . .”).
But despite Browers, the majority looks to the parallel
federal statute, 18 U.S.C. § 3731, in search of a different
definition of “an order or ruling which excludes evidence” as
specified by Article 62, UCMJ. The majority states that it
agrees with the First Circuit’s approach that defines rulings
excluding evidence under § 3731 as ones that “‘either in
substance or in form, limit the pool of potential evidence that
would be admissible.’” Wuterich, __ M.J. at __ (33) (quoting
different language “excludes evidence.” While the former
directly implicates the Double Jeopardy Clause, Wilson, 420 U.S.
at 336-37 (1975), the latter does not.
5
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
Watson, 386 F.3d at 313). I do not believe, however, that the
precedent of the First Circuit supports the Court’s holding
today.
The First Circuit, noting Congress’s instruction that §
3731 should be construed liberally, concludes only that “the
second paragraph of section 3731, in its present form, covers
all pretrial orders that deny admissibility to virtually any
evidence on virtually any ground.” Watson, 386 F.3d at 309(emphasis added). In Watson, a case with a fact pattern similar
to that of Browers, the government attempted to appeal from a
trial judge’s denial of a government motion requesting a
continuance. Without the continuance, the government could not
depose a key witness and would be forced to prosecute Watson
without the benefit of the witness’s testimony. Id. at 307.
The First Circuit held that it had no jurisdiction under § 3731
to hear the government’s appeal because the trial court was not
engaged in making an evidentiary ruling. Id. at 311. The court
rejected the government’s argument that the trial court’s
rulings were a but-for cause of the government’s inability to
gather or present evidence at trial. Id. The court explicitly
distinguished between available and admissible evidence, stating
that “[a]lthough the orders appealed from will certainly hamper
(and may effectively prevent) the obtaining and subsequent use
of [the witness’s] testimony, those orders did not, either in
6
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
substance or in form, limit the pool of potential evidence that
would be admissible at the forthcoming trial.” Id. at 313
(emphasis added). For the First Circuit, admissibility, rather
than availability, is the critical factor in determining when
the government may appeal an order under § 3731. As in Browers,
even though the trial court’s ruling would “certainly hamper
(and may effectively prevent) the obtaining and subsequent use”
of a witness’s testimony, the First Circuit still held that the
ruling did not exclude evidence. Id. The First Circuit’s
approach is consistent with this Court’s position in Browers,
and different than today’s decision, which implies that any
decision that limits the pool of available evidence would be
appealable under Article 62, UCMJ.
The majority’s decision is also contrary to the approach
favored by the other federal courts of appeals, which reject the
argument that any trial court order or ruling that hampers or
effectively prevents the obtaining or use of evidence is
appealable by the government under § 3731. See, e.g., United
States v. Hickey, 185 F.3d 1064, 1066-67 (9th Cir. 1999)
(finding no jurisdiction to hear appeal from order denying
government’s request to unseal defendant’s financial
affidavits); United States v. Camisa, 969 F.2d 1428, 1429 (2d
Cir. 1992) (finding no jurisdiction to hear appeal from order
denying government’s request to disqualify defendant’s counsel
7
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
which possibly rendered a witness’s testimony inadmissible). As
the First Circuit stated, “[w]hatever incidental effect those
orders may have on evidentiary matters, they are simply not the
proximate cause of the exclusion of any evidence.” Watson, 386
F.3d at 312.
C. The majority’s rule is not supported by the decisions
of the federal courts of appeals
The majority suggests that its approach, in the context of
the facts of this case, is consistent with the approach of other
federal circuits. See Wuterich, __ M.J. at __ (27-29) (“The
courts of appeals have addressed the meaning of the term
‘excluding evidence’ under 18 U.S.C. § 3731 and have concluded
that the term includes an order quashing a subpoena.”). I
disagree. In fairness, the federal courts of appeals have at
times permitted appeals under 18 U.S.C. § 3731 in cases
involving the quashing of subpoenas in the context of grand jury
investigations. See, e.g., In re Grand Jury Subpoenas
(Kiefaber), 774 F.2d 969, 972-73 (9th Cir. 1985), vacated on
other grounds, 823 F.2d 383 (9th Cir. 1987); In re Grand Jury
Empanelled (Colucci), 597 F.2d 851, 856 (3d Cir. 1979). But
each of those cases relied on the precise language -- “[t]he
provisions of this section shall be liberally construed to
effectuate its purposes” -- in § 3731 that is not present in
Article 62, UCMJ. See Kiefaber, 774 F.2d at 972-73 (“Therefore,
8
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
in light of the legislative direction to construe broadly the
phrase ‘suppressing or excluding evidence,’ we conclude that the
district court’s order quashing the grand jury subpoenas
constitutes an order suppressing or excluding evidence.”)
(footnote omitted); Colucci, 597 F.2d at 856 (“In light of this
legislative direction to construe broadly the government’s right
of appeal, this Court has held that orders which do not,
‘strictly speaking,’ suppress evidence but which have the
‘practical effect’ of excluding evidence from a proceeding, are
within the ambit of [section] 3731.”). Yet this is the very
language upon which the majority claims not to rely in
construing Article 62, UCMJ. Wuterich, __ M.J. at __ (26)
(“[I]t would be inappropriate to apply the liberal construction
mandate of section 3731 when interpreting Article 62, UCMJ.”).
And, of course, at the pre-indictment grand jury stage an
individual is a target, not a defendant, so there is not yet any
Sixth Amendment speedy trial concern. See United States v.
Marion, 404 U.S. 307, 313 (1971) (“[The Sixth Amendment] would
seem to afford no protection to those not yet accused, nor would
[it] seem to require the Government to discover, investigate,
and accuse any person within any particular period of time.”).
D. The majority’s holding is overly broad
The problems with the majority’s new position are twofold.
First, it highlights that Browers is being overruled sub
9
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
silentio. The military judge’s ruling at issue in Browers
clearly limited the pool of evidence that was available to the
government to proffer at trial by preventing the government from
presenting two material witnesses, yet this Court held that the
ruling did not exclude evidence for the purposes of Article 62,
UCMJ. One cannot reconcile today’s holding with the precedent
of this Court in Browers.
This highlights the second problem with the majority’s
position. Although the majority expressly states that a liberal
construction of Article 62, UCMJ, is not warranted, its holding
is extraordinarily broad. See Wuterich, __ M.J. at __ (25-26)
(stating that because Article 62, UCMJ, contains no language on
statutory interpretation, it would be inappropriate to apply
§ 3731’s liberal construction mandate when interpreting Article
62). If one accepts that any order or ruling that limits the
pool of evidence that is available to the government is
appealable under Article 62(a)(2)(B), then any ruling by a
military judge that impacts the availability, as opposed to the
admissibility, of evidence would be a proper subject of a
government appeal. Under the majority’s new rule there is no
principled way to distinguish among: garden-variety scheduling
orders, such as those at issue in Browers, which hindered the
government’s ability to offer a witness’s testimony; discovery
10
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
rulings of any sort that go against the government; and actual
rulings on the admissibility of evidence.
The majority relies heavily on the fact that Browers and
Watson considered what it characterizes as case-management
orders to distinguish the holdings in those cases from the
majority’s broad interpretation of § 3731 and Article 62, UCMJ.
See Wuterich, __ M.J. at __ (28-31). Presumably, the majority
believes that trial scheduling orders may “limit the pool of
potential evidence” without qualifying under Article 62, UCMJ,
solely because trial scheduling falls within the sound
discretion of the trial judge. Of course, neither case rested
on that fact. Moreover, discovery rulings, as the one in the
instant case undoubtedly is, may “limit the pool of potential
evidence” and are also within the sound discretion of the trial
court. See, e.g., Diamond Ventures, LLC v. Barreto, 452 F.3d
892, 898 (D.C. Cir. 2006) (“[T]he district court has wide
discretion in managing discovery.”); Faigin v. Kelly, 184 F.3d
67, 84 (1st Cir. 1999) (“A district court’s case-management
powers apply with particular force to the regulation of
discovery and the reconciliation of discovery disputes.”);
Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir.
1999) (“Matters of discovery are in the sound discretion of the
district court.”). Both types of decisions being within the
discretion of a trial court and potentially or actually limiting
11
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
the pool of potential evidence, the only distinction available
appears based on ad hoc decisions by this Court. This is a
less-than-workable legal standard.
E. Admissibility is the touchstone
A military judge’s ruling quashing a subpoena duces tecum
is a discovery ruling, which may impact the availability of
evidence, but it neither denies the admissibility of the
evidence nor excludes it. This distinction is an important one
that should make a difference based on the explicit language of
Article 62(a)(1)(B), UCMJ. Courts faced with a motion to quash
a subpoena duces tecum in a criminal case consider more than
admissibility -– they balance the general public’s duty to
testify, Branzburg v. Hayes, 408 U.S. 665, 688 (1972), against
other interests, such as the burden placed on the recipient of
the subpoena, see United States v. Nixon, 418 U.S. 683, 698
(1974), and the explicitly stated goal of expediting the
defendant’s trial. See id. The balancing is contextual and
uses a four-factor test articulated by Judge Weinfeld of the
United States District Court for the Southern District of New
York and adopted by the Supreme Court in Nixon, 418 U.S. at 699-
700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.
1952)).4 The Weinfeld factors are important because they
4
The Drafters’ Analysis for Rule for Courts-Martial (R.C.M.)
703(e) also cites Nixon in its discussion of the purpose of a
12
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
illustrate the difference between discovery rulings and
evidentiary orders, a difference the majority ignores.
Under the Weinfeld test, the moving party cannot require
production of documents prior to trial unless that party shows:
(1) that the documents are evidentiary and relevant;
(2) that they are not otherwise procurable reasonably
in advance of trial by exercise of due diligence; (3)
that the party cannot properly prepare for trial
without such production and inspection in advance of
trial and that the failure to obtain such inspection
may tend unreasonably to delay the trial; and (4) that
the application is made in good faith and is not
intended as a general “fishing expedition.”
Id.It may be that a court quashes a subpoena based on the
first Weinfeld factor –- lack of relevancy. If so, this would
be a ruling on the admissibility of evidence and fall within
Browers and Watson, even if styled a discovery order by the
trial judge. In contrast, the other three Weinfeld factors do
not weigh or consider whether the evidence is admissible.
Rather, the second factor considers the burden placed on the
party receiving the subpoena, the third factor considers the
potential impact on the defendant’s right to a speedy trial, and
the fourth factor protects parties from unwarranted requests.
These factors address equitable considerations that protect the
subpoena duces tecum. Manual for Courts-Martial, United States,
Analysis of the Rules for Courts-Martial app. 21 at A21-37 (2008
ed.).
13
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
rights of third parties and the defendant, not evidentiary
concerns.
As the United States Court of Appeals for the District of
Columbia Circuit stated in a case involving a government appeal,
an order regarding a subpoena in no way finally decides that any
of the subpoenaed material must be denied to the jury and
“cannot be deemed an order ‘suppressing or excluding evidence,’
or otherwise within the contemplation of the Criminal Appeal
Act, 18 U.S.C. § 3731.” Nixon v. Sirica, 487 F.2d 700, 707 n.23
(D.C. Cir. 1973). Denials of discovery requests may ultimately
make evidence unavailable, but not all such denials are –- or
should be -- appealable under Article 62, UCMJ, because they
usually do not address the admissibility of the evidence.
F. No ruling that evidence is inadmissible in this case
In this case the ruling of the military judge did not
exclude evidence in any evidentiary sense, although the ruling
may have, or even will have, the effect of making the evidence
unavailable. The military judge not only refrained from ruling
that the subpoenaed tapes were inadmissible, he opined that they
likely were. Transcript of Record at 87, Wuterich (Article
39(a), UCMJ, session) (“[T]he court clearly finds that this
could be admissible into the evidence as statements of the
accused under Military Rule of Evidence 801(d).”). In his
words, the order was a “discovery denial.” Transcript of Record
14
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
at 93, Wuterich (Article 39(a), UCMJ, session). Although the
military judge’s ruling “will certainly hamper (and may
effectively prevent) the obtaining and use” of the outtakes by
the Government, the ruling “did not, either in substance or in
form, limit the pool of potential evidence that would be
admissible at the forthcoming trial.” Watson, 386 F.3d at 3131(emphasis added).
As CBS acknowledged at oral argument, if the Government
obtains possession of the outtakes, nothing in the military
judge’s order would prevent the Government from proffering the
outtakes as evidence. Transcript of Oral Argument at 00:35:25,
Wuterich, Nos. 08-6006, 08-8020, 08-8021. This is because it
was not an order “which excludes evidence.” The majority
ignores this salient fact, and focuses instead on a straw man –-
the possibility that the Government could obtain the outtakes
through negotiation or other means, a possibility it then
dismisses. Wuterich, __ M.J. at __ (37-38).
Of course this goes to availability, not admissibility, and
is not relevant for purposes of Article 62(b), UCMJ. Further, I
note that CBS attempted to work with the Government by providing
the 60 Minutes broadcast, offering to authenticate it, and
requesting materials from the Government to help determine
whether the outtakes were indeed cumulative. In response, the
Government refused either to accept the broadcast or to provide
15
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
CBS with the requested materials. CBS Broadcasting Inc.’s
Petition for a Writ of Prohibition and/or Mandamus at 3-4, 5
n.3, United States v. Wuterich, No. 08-8020 (C.A.A.F. July 10,
2008); Transcript of Oral Argument at 00:27:54, Wuterich, Nos.
08-6006, 08-8020, 08-8021. Given the fluid nature of third-
party discovery in practice, there is no basis for concluding
that absence of progress in light of the Government’s lack of
cooperation is evidence of the futility of negotiations.
G. Appellant’s trial
The previous construction of Article 62, UCMJ, by this
Court in Browers was narrow, consistent with the precept that
government appeals are disfavored and only permitted where
expressly authorized by statute, and consonant with the policy
against piecemeal appeals in criminal cases, “where the
defendant is entitled to a speedy resolution of the charges
against him.” Will, 389 U.S. at 96; see also U.S. Const. amend.
VI (“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial . . . .”); Watson, 386 F.3d
at 310 (“Section 3731 was ‘carefully circumscribed by Congress
out of a desire (among other reasons) to safeguard individuals
from the special hazards inherent in prolonged litigation with
the sovereign.’”) (quoting United States v. McVeigh, 106 F.3d
325, 330 (10th Cir. 1997)); United States v. Kane, 646 F.2d 4, 7
(1st Cir. 1981) (cautioning that if interlocutory orders related
16
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
to discovery and other preliminary matters were appealable under
the second paragraph of section 3731, “defendants’ rights to a
speedy trial could be subverted”).
As this case demonstrates, these principles, and the impact
of expansive jurisdiction under Article 62, UCMJ, are of more
than academic concern. This is especially true in the military
justice system, where defendants’ detailed military counsels are
subject to reassignment and retirement. Appellant’s trial was
automatically stayed under R.C.M. 908 in February 2008 by the
Government’s interlocutory appeal of the military judge’s
granting of a motion to quash a third-party subpoena. See
R.C.M. 908(b)(4) (providing an automatic stay of a court-martial
pending disposition by the CCA of an interlocutory government
appeal).5 During that period Appellant lost the representation
of both of his detailed military counsel due to retirement.
Appellant’s Reply at 1, United States v. Wuterich, No. 08-6006
5
The majority implies that the Government’s appeal to this Court
has not delayed this case -- as if Appellant’s court-martial
might somehow proceed in parallel to the appellate proceedings
currently before this Court -- because this Court has not
granted a stay. Of course the court-martial has not proceeded,
and it seems strange to suggest that it would while the Court
entertained this appeal. In any event, the dearth of statutory
procedures relating to whether a proceeding after the appeal to
the CCA is stayed illustrates the concerns I previously raised
regarding this Court’s assumption of jurisdiction to hear
Article 62, UCMJ, appeals –- the statute does not countenance
the involvement of this Court. See United States v. Lopez de
Victoria, 66 M.J. 67, 74-77 (C.A.A.F. 2008) (Ryan, J., joined by
Erdmann, J., dissenting).
17
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
(C.A.A.F. Sept. 2, 2008); Transcript of Oral Argument at
00:46:41, Wuterich, Nos. 08-6006, 08-8020, 08-8021. The
Government concedes that these losses may prejudice Appellant’s
defense. Transcript of Oral Argument at 00:47:26, Wuterich,
Nos. 08-6006, 08-8020, 08-8021.
And to what end? Common sense suggests that CBS endeavored
to make the 60 Minutes segment at issue as newsworthy as
possible, which at least recommends the idea that to the extent
Appellant made incriminating, shocking, or newsworthy
statements, they are almost certainly in the broadcast, which
CBS provided to the Government. Despite the absence of any
support for the suggestion that the contested outtakes contain
anything new, and despite the fact the Government conceded at
argument that it has evidence on every element of every offense,6
the majority’s ruling allows the Government to continue to
litigate this issue and further prejudice Appellant’s defense.
Under the Browers construction, the CCA’s opinion would be
vacated for lack of jurisdiction and Appellant’s trial would
proceed apace.
Conclusion
Appellant challenges the jurisdiction of the CCA to hear
the Government’s appeal of a military judge’s ruling quashing a
6
Transcript of Oral Argument at 00:45:44, Wuterich, Nos. 08-
6006, 08-8020, 08-8021.
18
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)
subpoena. This Court has previously stated that the
“jurisdiction of courts is neither granted nor assumed by
implication” and that “[t]hat maxim is particularly apt in the
case of an Article I court whose jurisdiction must be strictly
construed.” Loving v. United States, 62 M.J. 235, 244 n.60
(C.A.A.F. 2005) (citations and quotation marks omitted). The
majority concludes that the CCA has jurisdiction over a military
judge’s order quashing a third-party subpoena, an order that did
not rule that any evidence was inadmissible. I believe that
this is an unwarranted expansion of the CCA’s jurisdiction that
cannot be justified by the language of Article 62(a)(1)(B),
UCMJ. Because the majority’s holding mischaracterizes this
Court’s prior ruling in Browers, threatens defendants’ Sixth
Amendment right to a speedy trial, and opens the door to
interlocutory appeals from discovery rulings, I respectfully
dissent.
19