Perjury and collateral estoppel

Can a military accused be tried for perjury and related offenses for alleging testifying falsely and soliciting a witness's false testimony at a court-martial that results in an acquittal? I would have thought that the obvious answer to that question is YES! While that is the answer that AFCCA reached today in its published opinion in United States v. Harris, __ M.J. ___, Misc. Dkt. No. 2008-03 (A.F. Ct. Crim. App. Jan. 22, 2009), the Court's scholarly opinion demonstrates that the issue isn't quite the slam dunk I thought it was.

This case is an Article 62 appeal, arising from a military judge's application of R.C.M. 905 to dismiss perjury, obstruction of justice, and related charges arising from the accused's first court-martial, at which he was acquitted of illegal drug use. The military judge reasoned that the members found the accused had not used the illegal drugs, so that was a settled matter that couldn't be contradicted at the second court-martial. AFCCA disagreed, adopting a narrower interpretation of R.C.M. 905 (and emphasizing that R.C.M. 905 itself is narrower than its equivalent provisions in earlier Manuals). AFCCA also reasoned that an acquittal doesn't necessarily indicate that the members concluded that the accused's testimony was truthful and doesn't constitute a finding of fact that the alleged misconduct didn't occur.

Like most Article 62 appeals, Harris also presents an interesting jurisdictional question. In a footnote, AFCCA observes, "Although [the United States] appealed the military judge's decision in its entirety, [the United States] argues in its brief that the military judge was correct in dismissing the charges of perjury and conspiracy to commit perjury. In light of our legal analysis, we grant [the United States'] appeal in its entirety." Harris, slip op. at 4 n.4. In other words, the government wins an issue that JAJG had abandoned. While AFCCA devoted more time to the main issue in the case than I would have thought it required, I think it devoted insufficient attention to this jurisdictional issue: in an Article 62 appeal, can a CCA grant relief that appellate government counsel doesn't seek? Congress has provided that "Appellate Government counsel shall represent the United States before the Court of Criminal Appeals . . . ." Article 70(b), UCMJ. And Article 62 provides that "the United States may appeal . . . An order or ruling of the military judge which terminates the proceedings with respect to a charge or specification." If the counsel for the United States abandoned a challenge to the dismissal of two of the charges, does a CCA still have jurisdiction to address the dismissal of those charges? Perhaps and perhaps not -- but I don't think the issue is as clear-cut as footnote 4 would make it appear. Perhaps we will soon see a CAAF opinion answering that interesting question.