United States v. Vargas

This opinion is subject to revision before publication.
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Erick VARGAS, Private First Class
United States Army, Appellant
No. 22-0259
Crim. App. No. 20220168
Argued December 7, 2022—Decided March 14, 2023
Military Judges: Jacqueline Tubbs and Sasha N. Rutizer
For Appellant: Captain Sean Patrick Flynn (argued);
Colonel Michael C. Friess, Lieutenant Colonel Dale
McFeatters, Major Bryan A. Osterhage, and Jona-
than F. Potter, Esq.
For Appellee: Captain Timothy R. Emmons (argued);
Colonel Christopher B. Burgess and Major Jennifer
A. Sundook.
Judge HARDY delivered the opinion of the Court, in
which Chief Judge OHLSON, Judge SPARKS,
Judge MAGGS, and Senior Judge CRAWFORD
joined.
_______________
United States v. Vargas, No. 22-0259/AR
Opinion of the Court
Judge HARDY delivered the opinion of the Court.
In this interlocutory, Article 62 appeal, 1 Appellant chal-
lenges the United States Army Court of Criminal Appeal’s
(ACCA’s) decision vacating the military judge’s order dis-
missing Appellant’s court-martial with prejudice. The mil-
itary judge ordered the dismissal pursuant to Rule for
Courts-Martial (R.C.M.) 701(g)(3) after the Government vi-
olated its discovery obligations by failing to disclose to the
defense a statement made by the alleged victim to investi-
gators before trial. Although R.C.M. 701(g)(3) does not ex-
pressly sanction dismissal with prejudice as a remedy for
discovery violations, it does authorize military judges to
impose a remedy that is “just under the circumstances.”
R.C.M. 701(g)(3)(D). We granted review to determine
whether the specific remedy imposed by the military judge
under that provision in this case—dismissal of the charges
with prejudice—was only permissible if that remedy was
the least drastic remedy sufficient to cure the Govern-
ment’s error.
This question arises out of apparent tension between
R.C.M. 701(g)(3)(D) and this Court’s decision in United
States v. Stellato, 74 M.J. 473 (C.A.A.F. 2015). Although
the plain language of the rule permits any remedy that is
“just under the circumstances,” the ACCA interpreted Stel-
lato as mandating that dismissal with prejudice is only
available as a remedy if it is the least drastic remedy suffi-
cient to cure the Government’s error. Stellato does not im-
pose such a restriction.
This Court’s decision in Stellato represents a line of
precedent recognizing that one particular remedy—dismis-
sal of charges—is a drastic remedy and that a military
judge must consider whether any alternatives are availa-
ble before imposing it, while R.C.M. 701(g)(3)(D) permits
any remedy that is “just under the circumstances.” In this
case, applying both R.C.M. 701(g)(3)(D) and Stellato, the
1 See Article 62, Uniform Code of Military Justice (UCMJ),
10 U.S.C. § 862 (2018) (authorizing interlocutory appeals by the
Government in limited circumstances).
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Opinion of the Court
military judge was required to consider whether any alter-
natives to dismissal with prejudice were available before
imposing that remedy, but was also authorized to reject al-
ternative R.C.M. 701(g)(3)(D) remedies if she found that
they were not just under the circumstances. Because the
military judge focused on whether dismissal with prejudice
was the least restrictive remedy sufficient to cure the Gov-
ernment’s error, rather than on whether lesser
R.C.M. 701(g)(3)(D) remedies would have been just under
the circumstances, we affirm the ACCA’s decision to the
extent that it vacated the military judge’s March 8, 2022,
oral ruling dismissing the case with prejudice, and return
the case to the Judge Advocate General of the Army for re-
mand to the military judge for further proceedings con-
sistent with this opinion.
I. Background
In March 2022, Appellant faced a general court-martial
for allegations of sexual assault and abusive sexual con-
tact, in violation of Article 120, UCMJ, 10 U.S.C. § 920(2018). Following opening statements on Wednesday,
March 9, the alleged victim HS testified about the events
at issue in the case. Trial counsel asked HS about a conver-
sation that she and Appellant had shortly before the
charged conduct occurred. HS proceeded to testify: “Well,
after he had already been that close and he started grab-
bing my head and kissing my forehand [sic], telling me I
was a beauty queen and not to let—.” At that point, defense
counsel objected, and the military judge excused the mem-
bers to conduct an Article 39(a) hearing. 2
At the hearing, defense counsel informed the military
judge that HS’s statement that Appellant called her a
beauty queen and kissed her on the forehead had not been
disclosed to defense, and her testimony was the first time
the defense had heard this information. The military judge
asked trial counsel whether they were aware, prior to HS’s
testimony, of her statement that Appellant called her a
2 See Article 39(a), UCMJ, 10 U.S.C. § 839(a) (2018).
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Opinion of the Court
beauty queen and kissed her on the forehead shortly before
the charged conduct. Trial counsel admitted that they were
aware, but initially asserted that they only learned this in-
formation two days earlier during a discussion with HS on
Monday, March 7, and failed to disclose it due to an “over-
sight.” The military judge excused the trial counsel from
further participation in the proceedings.
After the Government detailed new trial counsel, they
clarified that, in fact, HS provided the Government with
this information five days before trial on Friday, March 4.
The Government had failed to disclose the information to
the defense, even though there had been an intervening
pretrial hearing to consider evidentiary motions discussing
the exact time frame when HS made the statement. After
concluding that HS’s undisclosed statement was relevant
and material, the military judge found that the Govern-
ment had violated its discovery obligations under
R.C.M. 701 by failing to disclose HS’s statement that Ap-
pellant had called her a beauty queen and kissed her on the
forehead before the charged conduct.
The military judge then considered the available
remedies to address the Government’s discovery violation
under R.C.M. 701(g)(3). Defense counsel requested
dismissal with prejudice, or alternatively a mistrial and
dismissal without prejudice. The Government requested
three remedies: (1) allowing the defense to impeach the
victim on the issue; (2) granting a continuance to allow the
defense additional time to prepare their case; and (3)
crafting a limiting instruction to the panel and preventing
the Government from arguing the facts of the previously
undisclosed statement.
In an oral ruling, the military judge found that the Gov-
ernment’s failure prejudiced Appellant by hampering his
ability to prepare a defense. She found that the error pre-
vented the defense from: (1) preparing a different direct or
cross-examination of the victim; (2) seeking a pretrial
agreement for some or all the offenses; or (3) using the in-
formation in their opening statement or voir dire. The mil-
itary judge stated, “This Court is required to craft the least
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Opinion of the Court
drastic remedy to obtain a desired result. I have considered
the number of remedies.” She then walked through each of
the possible remedies and concluded that they would not
“cure the issue.” The military judge took a seven-minute
recess to consider the possible remedy of a mistrial under
R.C.M. 915. After the recess, she found that a mistrial
would be insufficient “given the gravity of the government’s
discovery violation.” The military judge then granted the
defense’s motion to dismiss with prejudice. She denied the
Government’s request to reconsider her oral ruling and
grant a continuance to the following day to permit the Gov-
ernment to file a written response.
The Government filed an Article 62 appeal at the
ACCA, arguing that the military judge abused her discre-
tion by granting Appellant’s motion to dismiss with preju-
dice. The ACCA vacated the military judge’s ruling on the
grounds that she “failed to impose the least drastic remedy
that would have cured the error; as such, dismissal with
prejudice was outside the range of alternative choices rea-
sonably arising from the relevant facts and applicable law.”
United States v. Vargas, No. ARMY MISC 20220168, 2022
CCA LEXIS 365, at *8, 2022 WL 2189543, at *3 (A. Ct.
Crim. App. June 16, 2022) (unpublished). We granted re-
view of the following issue:
Whether the Army Court erred in its abuse-of-dis-
cretion analysis by requiring the military judge to
craft the least drastic remedy to cure the discovery
violation.
United States v. Vargas, No. 22-0259/AR, 2022 CAAF
LEXIS 748, 2022 WL 16966520 (C.A.A.F. Oct. 21, 2022) (or-
der granting review).
II. Discussion
Although the granted issue asks whether the ACCA
erred, this Court reviews a military judge’s ruling directly
in an Article 62 appeal. Stellato, 74 M.J. at 480. A military
judge’s choice of remedy for discovery violations is reviewed
for an abuse of discretion. Id. A military judge abuses her
discretion “ ‘when the [military judge’s] findings of fact are
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clearly erroneous, the court’s decision is influenced by an
erroneous view of the law, or the military judge’s decision
on the issue at hand is outside the range of choices reason-
ably arising from the applicable facts and the law.’ ” Id. (al-
teration in original) (quoting United States v. Miller, 66
M.J. 306, 307 (C.A.A.F. 2008)). Here, we conclude that the
military judge abused her discretion when she granted Ap-
pellant’s motion to dismiss with prejudice because her de-
cision was based on an erroneous view of the law.
A. Remedies for Discovery Violations
R.C.M. 701(g)(3) provides that when a military judge
finds that a party has failed to comply with their discovery
obligations, “the military judge may take one or more of the
following actions:
(A) Order the party to permit discovery;
(B) Grant a continuance;
(C) Prohibit the party from introducing evidence, call-
ing a witness, or raising a defense not disclosed;
(D) Enter such other order as is just under the circum-
stances.”
Here, the military judge declined to impose one of the pre-
authorized remedies in R.C.M. 701(g)(3)(A)-(C) and instead
chose to exercise her discretion to “[e]nter such other order
as is just under the circumstances.” R.C.M. 701(g)(3)(D).
We have previously recognized that dismissal with preju-
dice may be an appropriate remedy for a discovery violation
under R.C.M. 701(g)(3)(D), and we reiterate that holding
today. Stellato, 74 M.J. at 488. Dismissal with prejudice is
an appropriate remedy under R.C.M. 701(g)(3)(D) when,
after considering whether lesser alternative remedies are
available, the military judge determines that such a rem-
edy is just under the circumstances.
Our holding is rooted, as it must be, in the text of
R.C.M. 701(g)(3)(D). This Court “adhere[s] to the plain
meaning of any text—statutory, regulatory, or otherwise.”
United States v. Bergdahl, 80 M.J. 230, 235 (C.A.A.F.
2020). The plain language of R.C.M. 701(g)(3)(D) permits
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Opinion of the Court
any remedy that is “just under the circumstances.” We do
not understand this language to require the military judge
to craft the least drastic remedy to cure the discovery vio-
lation. Crafting the least drastic remedy demands a narrow
focus on curing the prejudice to the aggrieved party, but
R.C.M. 701(g)(3)(D) authorizes a broader inquiry into the
“circumstances” of the case and the discovery violation at
issue. See United States v. Trimper, 28 M.J. 460, 469
(C.M.A. 1989) (describing the rule as “flexible”); see also
United States v. Dancy, 38 M.J. 1, 6 (C.M.A. 1993) (“Where
a remedy must be fashioned for a violation of a discovery
mandate, the facts of each case must be individually eval-
uated.”). Importing a least drastic remedy requirement
into R.C.M. 701(g)(3)(D) would be inconsistent with the
broad language of the rule.
The Government argues that this Court’s decision in
Stellato requires the military judge to craft the least dras-
tic remedy that will cure the discovery error. We
acknowledge that some of the language in Stellato can be
read—especially in isolation—to support that assertion.
See, e.g., 74 M.J. at 488 (“We also underscore that if ‘an
error can be rendered harmless, dismissal is not an appro-
priate remedy.’ ” (quoting United States v. Gore, 60 M.J.
178, 187 (C.A.A.F. 2004))). But to the extent this language
suggests that a military judge crafting a remedy under
R.C.M. 701(g)(3)(D) must constrain her analysis to curing
the prejudice suffered by an aggrieved party, such a con-
straint would be inconsistent with the language of the rule,
which permits a broader inquiry into which remedy would
be “just under the circumstances.”
Stellato itself illustrates that when determining which
remedy is “just under the circumstances,” the military
judge may consider factors that go beyond those necessary
to determine which remedy would be sufficient to cure the
prejudice to the aggrieved party. For example, Stellato ex-
plained that while not required, “bad faith certainly may
be an important and central factor for a military judge to
consider in determining whether it is appropriate to dis-
miss a case with prejudice.” Stellato, 74 M.J. at 489. The
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Court in Stellato also noted the military judge’s considera-
tion of “other factors” including his finding that the Gov-
ernment had “systematically ignored” discovery obliga-
tions. Id. at 491 (internal quotation marks omitted). These
considerations dealt with crafting a just remedy, not curing
the prejudice to the accused.
Rather than constraining the relevant considerations
under R.C.M. 701(g)(3)(D), Stellato represents a line of
precedent recognizing that one particular remedy—dismis-
sal of charges with prejudice—is a drastic one and the mil-
itary judge must consider whether any alternatives are
available before imposing it. See, e.g., Stellato, 74 M.J. at
490 (“To complete our review of the military judge’s deci-
sion to dismiss with prejudice, we finally examine whether
he appropriately considered lesser, alternative remedies.”);
Gore, 60 M.J. at 187 (“We have long held that dismissal is
a drastic remedy and courts must look to see whether al-
ternative remedies are available.”). Consistent with the
language of the rule, the military judge is also authorized
to reject alternative R.C.M. 701(g)(3)(D) remedies if the
military judge finds they would not be “just under the cir-
cumstances.” A remedy is only “available” under
R.C.M. 701(g)(3)(D) if it is “just under the circumstances.” 3
Overlaying Stellato and R.C.M. 701(g)(3)(D), a military
judge must both consider whether other lesser alternative
remedies are available and determine that dismissal with
3 Considering whether alternative remedies are available be-
fore dismissing with prejudice may also involve considering rem-
edies under R.C.M. 701(g)(3)(A)-(C). The availability of those
remedies, however, is not subject to the “just under the circum-
stances” requirement contained in R.C.M. 701(g)(3)(D). This de-
cision is not intended to implicate the existing law governing the
availability of those remedies which may depend on, for exam-
ple, whether they have been exhausted, their responsiveness to
the discovery violation at issue, and the factors outlined in the
R.C.M. 701(g)(3) Discussion. See, e.g., United States v. Murphy,
33 M.J. 323, 328-29 (C.M.A. 1991) (discussing exclusion of evi-
dence); R.C.M. 701(g)(3) Discussion.
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prejudice is just under the circumstances before imposing
that remedy.
We emphasize that dismissal with prejudice is a partic-
ularly severe remedy and should not be imposed lightly.
Again, this Court’s holding in Stellato demonstrates as
much. There, the military judge dismissed the charges with
prejudice after finding that the government had committed
multiple discovery violations including failing to preserve
evidence, refusing to produce a material witness, and fail-
ing to disclose exculpatory evidence as soon as practicable.
74 M.J. at 483-88. This Court found each of these findings
supported in the record. Id. The military judge further
found that the violations prejudiced the accused in three
ways: (1) the discovery violations delayed the production of
exculpatory evidence; (2) the continuances needed to rem-
edy those delays prevented the accused from calling a key
witness, who passed away before trial began; and (3) the
continuances interfered with his career progression and
ability to communicate with his family to resolve custody
issues. Id. at 489. We similarly found that these findings
were also supported in the record. Id. at 490.
The conduct of trial counsel in that case was “deeply
troubling.” Id. at 491. The gravity of the discovery viola-
tions, the government’s pattern of behavior, and the sever-
ity of the prejudice to the accused led us to conclude that
the military judge did not abuse his discretion by dismiss-
ing the charges. Id. While the circumstances need not rep-
licate Stellato for a military judge to conclude that dismis-
sal with prejudice is just, the facts of that case are
representative of the types of cases for which such a severe
remedy is reserved.
B. The Military Judge’s Ruling
The military judge’s ruling below did not articulate why
any of the proposed remedies under R.C.M. 701(g)(3)(D)
were or were not just under the circumstances. Rather, by
focusing on whether the remedies would address the
prejudice to the accused, her ruling appears to have been
influenced by an erroneous view of the law as requiring her
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Opinion of the Court
to impose the least drastic remedy to cure the discovery
violation.
After finding that the delayed disclosure was prejudi-
cial to the accused, the military judge stated:
This Court is required to craft the least drastic
remedy to obtain a desired result. I have consid-
ered the number of remedies. I have already dis-
missed the original trial counsel. I have consid-
ered not allowing any additional direct
examination of the victim, but, of course, would
result in—that has no—that is an absurd result.
There is no evidence presented. I have considered
allowing a delay. I don’t think a delay cures the
issue. I’ve considered bringing the alleged victim
back in here to allow the defense to fully cross-ex-
amine her on that issue, and then putting her
back on in front of the panel members. That does
not cure the issue. It doesn’t cure what I previ-
ously stated with respect to a strategic option,
with what they could have done with that infor-
mation ahead of time. I’ve considered a curative
instruction, but you cannot unring that bell, not
when you consider the government’s opening
statement. I’ve considered precluding the govern-
ment from being able to argue anything about
linking a basis of the kiss on the forehead. But
that doesn’t cure the issue, which is non-disclo-
sure, failure to allow them to prepare, and fore-
closing the ability to create a strategic option. So
the fact is, there is not another remedy.
Defense, I am granting your motion to dismiss
with prejudice.
I am aware under R.C.M. 915—Court’s in re-
cess for 5 minutes.
The military judge then recessed for seven minutes, re-
turned to the bench, and concluded the ruling by stating “I
considered a mistrial under . . . R.C.M. 915 and do not find
that that remedy is sufficient given the gravity of the gov-
ernment’s discovery violation. So with that said, Defense, I
am granting your motion to dismiss with prejudice.”
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The military judge abused her discretion because her
analysis was based on her mistaken understanding that
she was required to craft the least drastic remedy to cure
the discovery error. She began by stating that she was “re-
quired to craft the least drastic remedy to obtain a desired
result.” Although she did not expressly state her “desired
result,” her analysis was focused on whether each remedy
would “cure the issue” or was “sufficient,” rather than
whether it was “just under the circumstances.” Dispelling
any ambiguity about what she meant by “cur[ing] the is-
sue,” she defined it in terms of curing the prejudice to the
accused that she had previously identified: “[T]hat doesn’t
cure the issue, which is non-disclosure, failure to allow
them to prepare, and foreclosing the ability to create a stra-
tegic option.” We commend the military judge for consider-
ing lesser alternative remedies before dismissing with prej-
udice, as Stellato requires. However, her consideration of
whether other remedies were available under
R.C.M. 701(g)(3)(D) was improperly limited to whether
those remedies would cure the prejudice to the accused. As
discussed above, such an inquiry is narrower than that
which the text of R.C.M. 701(g)(3)(D) requires—whether
other remedies would be “just under the circumstances.” At
no point did the military judge articulate why any
R.C.M. 701(g)(3)(D) remedy was or was not “just under the
circumstances.” While there may be significant overlap in
a remedy that cures the prejudice to the accused and a rem-
edy that is just under the circumstances, the two are not
necessarily coextensive. As such, the military judge’s anal-
ysis was tainted by her misunderstanding of the law.
This Court is empowered to affirm a military judge if
her ruling reached the correct result for the wrong reason.
United States v. Bess, 80 M.J. 1, 11-12 (C.A.A.F. 2020)
(explaining that a “ ‘judgment below . . . may be affirmed
on any ground permitted by the law and record’ ”
(alteration in original) (quoting Murr v. Wisconsin, 137 S.
Ct. 1933, 1949 (2017))). However, absent the military
judge’s articulation of the reasons that dismissal with
prejudice is just under the circumstances (and conversely
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Opinion of the Court
why the lesser R.C.M. 701(g)(3)(D) remedies would not
have been just), it would be difficult for this Court to afford
her choice of remedy the deferential standard of review to
which it is entitled. See United States v. Flesher, 73 M.J.
303, 312 (C.A.A.F. 2014) (“ ‘When the standard of review is
abuse of discretion, and we do not have the benefit of the
military judge’s analysis . . . we cannot grant the great
deference we generally accord to a trial judge’s factual
findings because we have no factual findings [or legal
reasoning] to review.’ ” (quoting United States v. Benton, 54
M.J. 717, 725 (A. Ct. Crim. App. 2001))). We believe that
the military judge is in the best position to determine, in
the first instance, which remedy is just under the
circumstances. Cf. United States v. Barron, 52 M.J. 1, 6
(C.A.A.F. 1999) (emphasizing the deference owed to the
military judge’s choice of remedial action because the
military judge is “at the center of the trial”). A remand is
therefore the appropriate remedy in this Article 62 appeal.
Cf. United States v. Kosek, 41 M.J. 60, 64 (C.M.A. 1994)
(“The appropriate remedy for incomplete or ambiguous
rulings is a remand for clarification.”). 4
III. Conclusion
In exercising her discretion to impose a remedy for dis-
covery violations under R.C.M. 701(g)(3)(D), the military
judge may impose dismissal with prejudice if, after consid-
ering whether less severe alternative remedies are availa-
ble, she concludes that dismissal with prejudice is just un-
der the circumstances. The military judge’s ruling in this
case was influenced by an erroneous view of the law as re-
quiring her to impose the least drastic remedy to cure the
discovery error. As a result, she improperly limited her
4 We also note that in response to Appellant’s petition to this
Court, the Government did not argue whether dismissal with
prejudice was “just under the circumstances,” but rather argued
that the military judge and the CCA were correct in their under-
standing of the law. Just as it is appropriate to allow the military
judge the opportunity to reconsider her ruling under the correct
legal standard, it is similarly appropriate to afford the parties
the opportunity to argue their positions under the same.
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Opinion of the Court
analysis to whether each remedy would cure the prejudice
to the accused and failed to articulate why dismissal with
prejudice was just under the circumstances. We affirm the
decision of the United States Army Court of Criminal Ap-
peals to the extent that it vacated the military judge’s
March 8, 2022, oral ruling dismissing the case with preju-
dice. The case is returned to the Judge Advocate General
of the Army for remand to the military judge for further
proceedings consistent with this opinion.
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