Friday, June 20, 2008

NMCCA's Wuterich opinion (Revised)

NMCCA's Wuterich opinion is a remarkably -- and, I believe, erroneously -- aggressive opinion.

SSgt Wuterich is the accused in the case. The military judge made a ruling suppressing a subpoena issued to CBS News. The government appealed to NMCCA, designating SSgt Wuterich as the appellee in the case. SSgt Wuterich moved to dismiss for lack of jurisdiction and opposed the reversal of the military judge's ruling. NMCCA refused to consider SSgt Wuterich's motion to dismiss or his position on the merits, ruling that he had no standing. NMCCA did consider a motion to dismiss filed by the non-party CBS News and considered CBS News's position on the merits. But, according to NMCCA, this was an appeal with but one party -- the United States.

NMCCA's position that SSgt Wuterich had no standing to move to dismiss was obviously wrong. This was an appeal in his court-martial case which had the AUTOMATIC effect of delaying the trial. See R.C.M. 908(b)(4). That automatic stay of proceedings directly affected SSgt Wuterich and the litigation of his court-martial case. If NMCCA had no jurisdiction to hear the appeal, he had a right to point that out and challenge NMCCA's jurisdiction to proceed.

R.C.M. 908(c) provides that "[t]he parties shall be represented before appellate courts in proceedings under this rule as provided in R.C.M. 1202." SSgt Wuterich was a party to the appeal, and was expressly recognized as such by the United States, which designated him as the appellee. And NMCCA itself styles its decision as United States of America v. Frank D. Wuterich, Staff Sergeant (E-6), U.S. Marine Corps. Why is SSgt Wuterich's name in the caption if he isn't a party to the case? Interestingly, NMCCA's own rule governing Article 62 appeals provides: "The appeal shall be docketed under the same title given to the action in the court-martial with the accused and the United States denominated as the sole parties therein." N-M. Ct. Crim. App. R. 4-6.c. Nevertheless, NMCCA pointedly signals that it refuses to even consider SSgt Wuterich's submissions to the court. NMCCA writes: "We have carefully considered the record of the proceedings, the Government’s brief on appeal, and non-party CBS’s reply brief." Id., slip op. at 2. Gee, what's conspicuously absent from that list?

But let's assume for the moment that SSgt Wuterich wasn't a party. If not, how did NMCCA have jurisdiction? This would no longer be an appeal in the case of United States v. Wutercih. Rather, this would essentially have been litigation in the case of United States v. CBS News. How does the UCMJ provide jurisdiction to a CCA to rule on a dispute between the United States and a private corporation that is not now, and has never been, a member of the U.S. military?

Beyond that, NMCCA's ruling is a reprise of its recent Article 62 jurisdictional overreach in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008), which we discussed here. For more than 15 years, published NMCCA case law held that Article 62 was to be construed strictly and narrowly. See, e.g., United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991); United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994); United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001). But then NMCCA panels turned around in Dossey and now Wuterich and construed Article 62 broadly. Most appellate courts that sit in panels apply the law of the circuit doctrine (also know by various other names including the doctrine of interpanel accord) to hold that one panel of a court can't overturn the published precedent of the court; only the court sitting en banc may do so. Dossey and Wuterich both overturned more than a decade's worth of established NMCCA precedent. Whether one thinks the Dossey and Wuterich panels had the better reading of the law, that way lies chaos. Panels must exercise self-restraint by following their own court's published precedent. If the judges on the Wuterich panel thought that cases like Pearson, Flores-Galaraz, and Santiago improperly construed Article 62, then their correct response should have been to propose en banc consideration of Wuterich. If not (or if the court declined to hear the case en banc), under the doctrine of interpanel accord, the court's earlier case law remains binding precedent and the later outlier, like Dossey, is not to be followed.

But forget about strict construction of Article 62 -- under a plain meaning analysis of its terms, the military judge's ruling in this case wasn't appealable. Article 62 provides, in pertinent part, that the government may appeal "[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding." 10 U.S.C. § 862 (2000). Judge Meeks didn't exclude anything. He has not prevented the United States government from presenting any evidence to the court-martial. If the United States can reach an agreement with CBS to obtain the outtakes -- or if the United States obtains them some other way -- they may very well be admissible. And that is because Judge Meeks didn't "exclude" such evidence. If Congress meant to make discovery disputes subject to an Article 62 appeal, presumably Congress would have chosen a much more direct way of saying so. As NMCCA suggests, some Article III courts may have construed similar language to allow the government to appeal discovery disputes. But some Article III courts' aggressive interpretation of a different statute doesn't justify NMCCA's stretching of Article 62's language beyond its plain meaning.

Wuterich is an aggressive and disturbing ruling. CAAF should certainly grant review to determine whether a CCA can choose to simply ignore the accused in ruling on an Article 62 appeal and, if so, whether a CCA has any jurisdiction to consider a dispute that doesn't involve the accused.

It's ironic that it will take an exercise of CAAF's jurisdiction that some of us think exceeds its statutory basis, see United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008), to rein in NMCCA from exceeding its Article 62 jurisdiction.


DB Cooper said...

Is it just me, or do the service courts subject MJs to a heightened standard of scrutiny in an Article 62 appeal (where the accused won), no matter what the relevant standard of review is? I rarely see a service court nit-pick a military judge’s factual findings or legal conclusions to such a degree in an Article 66 review (where the government won).

I disagree with CAAFlog on the jurisdictional issue. The CAAF and the other service courts treat Article 62 and its federal counterpart (18 USC 3731) as mirror images of one another, bestowing the same broad right of appeal to the government. Although both statutes don’t specifically reference the scenario in which an MJ quashes a subpoena, the case law heavily emphasizes the government’s broad right of appeal. In fact, the service courts have held that the government need not even prove the suppressed or excluded evidence is "substantial proof of a fact material to the proceeding." The government’s naked, unsupported claim that it is "substantial proof of a fact material to the proceeding" cuts the mustard for jurisdictional purposes. The fifth circuit case cited by NMCCA would seem to by directly on point.

However, I agree that SSgt Wuterich had standing in this matter. If the government wanted to freeze him out of the process, they should have contacted the US Attorney in Southern California and taken CBS to federal district court. By choosing Article 62 as their appellate vehicle and by choosing NMCCA as their appellate forum, the government made SSGt Wuterich a party. That seems to be the weak link In the opinion that CAAF will latch onto.

CAAFlog said...


NMCCA isn't bound by 5th Circuit case law. If the 5th Circuit overreaches when construing a different statute, that provides no justification for NMCCA to overreach when construing Article 62. All federal courts are supposed to construe their jurisdictional grants strictly.

But, again, regardless of whether Article 62 should be construed narrowly or broadly, the Wuterich panel violated NMCCA's own published case law by construing it broadly. And one panel of a multi-panel court isn't supposed to do that. That's a process rule designed to keep the law predictable. And in both Wuterich and Dossey, NMCCA panels trashed the process.

And there is no justification for any court to read a jurisdictional statute more broadly than the statute's plain language would suggest. Even more so here than in Wuterich, that is what NMCCA has done.

But those jurisprudential points aside, I agree that with you that it's just plain ugly for NMCCA to announce to the world that it refuses to event consider the arguments advanced by the Marine Corps staff sergeant whose liberty is on the line in this case. It's interesting that NMCCA included Staff Sergeant Wuterich in the case's caption, but didn't identify either party as the appellant or the appellee.

BD Cooper said...


I did not mean to imply that a 5th Circuit case was binding. Of course it is only “persuasive authority.” My point is that CAAF treats ART 62 and 18 USC 3731 as conferring an identical right of government appeal. In the absence of other federal or military cases addressing this specific issue of a subpoena, it seems, under these facts, the 5th circuit case interpreting 18 USC 3731 has the best precedential value vis a vis ART 62. It is analogous to a federal circuit court interpreting a unique application of 18 USC 2252A. The federal court’s holding would not be binding on a military prosecution for child pornography under 18 USC 2252A, but if it’s the only factually analogous case out there, it would certainly hold significant weight.

John O'Connor said...

"All federal courts are supposed to construe their jurisdictional grants strictly."

Why is that so, and who says so? I am not a believer in judge-made policy to construe certain things strictly or broadly; it seems to me that the judiciary's mandate is to construe a statute "fairly." Anything other than that really is judicial legislation in my mind.

Some would say that I am a jurisdictional minimalist. But that's not really accurate. I am not in favor of intentionally construing a jurisdictional statute in a cramped manner in order to limit the jurisdiction it conveys; what I am against is the judiciary giving an unfair construction to a jurisdictional grant to give itself jurisdiction not conferred by Congress, which happens all the time in the military context.

On the merits of this case, let me start by conceding that I am not an expert on this aspect of jurisdiction and haven't read any case law. That said, I reach the same place as CAAFlog but by a different path. I reject CAAFlog's argument that the MJ didn't exclude anything by quashing a subpoena. If CBS seeks to quash a subpoena, and the MJ grants that request, it seems to me that the MJ at least arguably has excluded the subpoenaed evidence because CBS by its conduct is trying to prevent production of the material and the government is excluded from offering evidence the MJ won't let it have.

But I still think that the plain language of the statute doesn't permit an appeal here because of the other requirement of an Article 62 appeal. The statute permits appeal of "[a]n order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding." While I think a fair reading of "excludes" could encompass an order prohibiting the government from obtaining evidence it desires to use, how can the government possibly meet its burden of showing that evidence that it doesn't have and hasn't seen is "substantial proof of a material fact in the proceeding"? There may be some cases where the government knows exactly what is shown in the material it seeks by subpoena, but that seems like the rare case to me and probably not the case here.

Also, the notion that the accused lacks standing is, well, what's a polite synonym for dumb? A few years ago, I appeared in a series of courts-martial to quash a subpoena served on my client, and the MJ in that case said he thought we lacked standing, but then let me come in chambers (with all counsel of record) and explain why we didn't want to produce the material. That seemed insane to me at the time, that the very party subpoenaed would lack standing to challenge it. This is no better. It might be that the accused could lack standing to quash a third party subpoena at the trial level, but he is certainly aggrieved by an Article 62 appeal and that has to confer standing to challenge appealability.

CAAFlog said...

One of the many courts that has emphasized the importance of strictly construing an Article I court's jurisdiction is CAAF:

"Also, we are mindful of the general principle of statutory construction that 'jurisdiction of courts is neither granted nor assumed by implication.' Singer, supra note 37, § 67.3. That maxim is particularly apt in the case of an Article I court whose jurisdiction 'must be strictly construed.' Northrop Grumman Corp. v. United States, 47 Fed. Cl. 20, 40 (2000)."

Loving v. United States, 62 M.J. 235, 244 n.60 (C.A.A.F. 2005). (I'm quoting that passage for its second sentence and provide the first for context, not as support for the proposition.)

As to the more general point that statutes granting federal courts' jurisdiction should be narrowly construed, here is one of many enunciations of that principle:

"The second consideration that supports our construction of § 2311(b)(2) is the rule that statutes conferring jurisdiction on federal courts are to be strictly construed, and doubts resolved against federal jurisdiction. See Phillips v. Osborne, 9 Cir.1968, 403 F.2d 826, 828; F & S Construction Co. v. Jensen, 10 Cir.1964, 337 F.2d 160, 161; Russell v. New Amsterdam Casualty Co., 8 Cir.1964, 325 F.2d 996, 998."

Boelens v. Redman Homes, Inc., 748 F.2d 1058, 1067 (5th Cir. Tex. 1984).

And, of course, for the very narrow point that CCAs are to construe Article 62 itself strictly, I cite NMCCA's own case law:

"We begin our discussion by noting that 'prosecution appeals are not particularly favored in the courts.' United States v. Pearson, 33 M.J. 777, 779 (N.M.C.M.R. 1991). As a result, statutes that authorize Government appeals, as well as regulations and appellate court rules implementing them, are strictly construed and enforced. Id. at 779. at 779. See e.g., Flores-Galarza, 40 M.J. at 908 (dismissing appeal for failure to provide timely notice of appeal to military judge); Pearson, 33 M.J. at 780-81, 33 M.J. at 780-81 (upholding dismissal of appeal for failure to file original record of trial in timely manner); United States v. Snyder, 30 M.J. 662, 664 (A.F.C.M.R. 1990) (dismissing appeal for failure to file record of trial in timely manner)."

United States v. Santiago, 56 M.J. 610, 613 (N.M.C.C.A. 2001) (footnote omitted).

Anonymous said...

How does a court rule (with limited jurisdiction on 62) find that the MJ abused his discretion by failing to conduct an in camera review of the outtakes so as to properly review the trial motions to quash and also conclude that the outtakes are necessary, based upon the record of trial, for government discovery? It seems the NM Court logically could only make one of those findings. Is anyone else confused by this analysis?

John O'Connor said...

I'm not saying that judges "haven't" created judge-made presumptions to construe this type of statute or that type of statute broadly or narrowly. What I am saying is that I don't think the practice is particularly respectable, as it smacks of judicial legislation or policymaking.

Now it might eb true that the damage wrought thereby is minimized because Congress (or a state legislature, as the case may be) is theoretixcally operating in the knowledge that a particular type of statute will be (through judicial policymaking) construed broadly or narrowly, so they can word the statute with those presumptions in mind. But I think it's bad judgery to do so, to coin a phrase.

In that vein, I wholly endorse the first sentence from Loving that CAAFlog quotes but have little good to say about the second.

Anonymous said...

If the MJ says the evidence is relevant and then says it cumulative but has not even seen the evidence to say it's that not an abuse of discretion? Why didn't the MJ just do an in camera? Regardless, anyone want to bet on this case at CAAF? I won't make the same prediction about certainty as CAAFlog did with a certain race horse...however, I hope CAAF is now happy that their docket will be clogged with piecemeal litigation.

Anonymous said...

DB Cooper, your observation that the service courts seem to subject MJs to a heightened standard of scrutiny in an Article 62 appeal (where the accused won below) viscerally seems true. But I need to check the stats.

Anonymous said...

Ironically, only when CAAF is inundated with "Art 62 appeals" from the CCA's Art 62 appeal rulings, will Judge Ryan (in her otherwise great wisdom) realize that CAAF might not, in fact, be an "OK" place for these judicially created appeals to lie. CAAF may yet see what Lopez hath wrought.

CAAFlog said...

2350 Anon,

You lost me there. If I'm construing your post correctly, you think that it's a bad idea for CAAF to exercise jurisdiction over Article 62 appeals. Judge Ryan and Judge Erdmann concluded in Lopez de Victoria that CAAF didn't have such jurisdiction. So it would seem that you would be happy with the consequences of Judge Ryan's position.

That said, Judge Ryan and Judge Erdmann clearly didn't vote the way they did in Lopez de Victoria because they thought a regime in which CAAF couldn't review CCAs' rulings on Article 62 appeals was preferable to one in which they could. They voted the way they did because only Congress can confer jurisdiction on CAAF and, in their analysis, the UCMJ didn't give CAAF jurisdiction over such cases.

Either or both of them may have thought that it would be preferable if Congress had given CAAF such jurisdiction, but didn't. Similarly, either or both of them might have thought it preferable to let Article 62 appeals end at the CCA. But such a policy preference didn't animate the dissent.

My own personal view is that the military justice system SHOULD allow CAAF to review CCA decisions in Article 62 appeals but that neither Article 62 nor Article 67 actually provides for such review. A majority of CAAF concluded otherwise and I respect that decision. Of course, Judges Ryan and Erdmann also signaled their respect for the precedent that the majority established in Lopez de Victoria by expressly stating in United States v. Michael, 66 M.J. 78 (C.A.A.F. 2008), that they would adhere to Lopez de Victoria and reach the merits of Article 62 appeals on review at CAAF.

One happy consequence of Lopez de Victoria is that CAAF can now review NMCCA's profoundly erroneous Wuterich opinion and NMCCA's disturbing departure from its own precedent in Dossey II.

CAAFlog said...

2350 Anon,

Nor is there any cause for concern that CAAF will become overwhelmed. It looks like this term, CAAF will issue 65 opinions of the court, which is actually an increase from last term's 55. This term's workload reflects an average of precisely 13 opinions of the court for each judge -- or slightly more than one a month (1.18 per month in this 11 month term, to be more precise). Surely CAAF has the capacity to significantly increase that output.

Interestingly, at last month's American Law Institute annual meeting, Justice Ginsburg observed that the Supreme Court is on pace to hear far more cases next term than it has in recent terms. She also commented that she thought the limit of the Court's institutional capacity to produce quality opinions is about 100 per term. When that number is exceeded, she said, the author justice has insufficient time to respond to other justices' concerns about a circulating opinion, which leads to more separate opinions.