In both Lopez de Victoria and Michael, the government prevailed before the CCA and the accused petitioned CAAF for review. On the other hand, in two Air Force cases -- Miller and Webb -- the accused won Article 62 appeals at the Air Force Court and the Judge Advocate General certified to CAAF. Last Friday, the defense moved to dismiss in both Miller and Webb. The motions argued that CAAF had no jurisdiction to act in those cases -- and noted that the defense position was the same as that advanced by the government in both Lopez de Victoria and Michael. In both Lopez de Victoria and Michael, appellate government counsel expressly wrote that they were taking their positions on behalf of the "United States." And the Air Force Appellate Government Division filed an amicus brief arguing the opposite position of their Army GAD and Navy-Marine Corps Code 46 brethren.
Today the Air Force Appellate Government Division filed an opposition to the motions to dismiss in Miller and Webb, indicating that "the United States hereby enters its Opposition" to the motions to dismiss. The Air Force Appellate Government Division also wrote that "the United States stands on the Amicus Curiae brief previously submitted to this Court in Lopez de Victoria and Michael." How can "the United States" simultaneously advance diametrically opposed positions in four different cases pending before the same court at the same time? I thought the Civil War pretty much determined that the United States is one entity. Forget about all that litigation over "under God" in the Pledge of Allegiance. Let's focus instead on the Pledge's next word: "indivisible." How can the same indivisible entity take inconsistent positions because its interests dictate different results in different caes? Well, it can't. The judicial estoppel doctrine generally "precludes a party from asserting a position in one legal proceeding which is contrary to a position it has already asserted in another." Patriot Cinemas v. General Cinema Corp., 834 F.2d 208, 211 (1st Cir. 1987).
Perhaps in an invocation of international law's tu quoque defense, Air Force Appellate Government writes:
Additionally, the United States would like this Court to note that one of Appellee's counsel of record in the case sub judice, also represented the Appellant in United States v. Cossio, No. 06-6005/AF, an appeal under Article 62, in which Appellant states that "[t]his Court has jurisdiction to review this case pursuant to Article 67, UCMJ."
That argument wins points for style (other than its use of the clunker "sub judice" and the erroneous comma that follows it). But there is no reason why two appellants who both happen to be represented by Air Force Appellate Defense should have identical litigation interests. The arguments that counsel for Miller and Webb advance before CAAF are Miller's and Webb's arguments, not their own. Senior Airman Miller can't be estopped from making an argument because his lawyer took an inconsistent position in a previous case. But on the other side of the house, THE SAME PARTY -- the United States -- is simultaneously advancing inconsistent arguments. Judicial estoppel does not apply where one counsel advances inconsistent arguments for two different clients. Judicial estoppel may apply where two different counsel advance inconsistent arguments for one client.
Courts are generally reluctant to apply judicial estoppel in criminal cases. And even if the defense and the government agreed as to the right outcome of a proceeding, the courts are free to reach a contrary conclusion. But simultaneously arguing that CAAF does have jurisdiction where it is the United States seeking to review an adverse ruling from a lower court and that it doesn't have jurisdiction where the United States is seeking to block review of a favorable ruling from a lower court offends the very principles that provide the basis for judicial estoppel. Regardless of how CAAF decides the jurisdictional issues in the four pending cases, it should make clear that the United States is one entity that must speak with one voice.
ADDENDUM: I was just cleaning up to get ready for family coming over for Thanksgiving. And I came across the Spring 2003 issue of the National Military Justice Group Journal. (Whatever happened to the NMJG Journal? I always enjoyed reading it.) That issue included an article on trial tactics by COL Keith Hodges, JA, USA (Ret.). Here's an excerpt:
15. At trial, what do the parties call themselves?
Look at the charge sheet. It is United States v. Private Michael Jones.
The TC should always refer to her side as "The United States." Wrap yourself in the flag. The Army is a green machine. The government or, God forbid, the US Government, is a large amorphous bureaucracy. The "United States" sounds like "We the people."
But there's a cost to being "The United States." And that is you represent the same "United States" that trial counsel and appellate government counsel from other services represent. If a trial counsel or government counsel is channeling "The United States" in the case of United States v. Corporal Jones, then the message must be the same in the cases of United States v. Machinist's Mate Third Class Jones or United States v. Senior Airman Jones. Egad -- I seem to be becoming more and more purple the longer I think about it.