Friday, June 26, 2009

Audio galore

CAAF has posted audio of Wednesday's argument in United States v. Ashby, No. 08-0770/MC, here and has posted audio of Wednesday's argument in United States v. Schweitzer, No. 08-0746/MC, here.

NMCCA has posted audio of Thursday's uncommonly interesting en banc oral argument in United States v. Wuterich here. [Familiar disclaimer: I'm one of appellee's counsel in Wuterich, but we didn't participate in the oral argument. The argument involved government counsel and counsel for CBS.]


Anonymous said...


John O'Connor said...

I found one line of questioning by Judge Cox in Ashby very curious. He repeatedly suggested to counsel for both sides that there was no precedent to support the notion that destruction of evidence could qualify as obstruction of justice. Here are a few of the quotes (there might be minor errors, but I tried to get these exact).

To Appellant's counsel:

"Was there any case that said destruction of evidence is obstruction of justice?"

"What case would you find that destruction of evidence is obstruction of justice?"

"Where do we find anything that says spoliation of evidence that you own is criminal?"

To Appellee's counsel:

"I'll be candid with you, I looked -- and had others look -- I hadn't found a reported case in 59 years under the UCMJ where destruction of evidence constituted obstruction of justice."


That line of thought struck me as curious because I would think that destroying evidence when criminal proceedings are contemplated would be squarely within the bounds of what might constitute obstruction of justice. So, in about five minutes found two CAAF cases and a cornucopia of CCA cases holding that destruction of evidence can constitute obstruction of justice under the UCMJ (including a CAAF case when I believe Judge Cox was on the court). See, e.g., United States v. Lennette, 41 M.J. 488, 490 (CAAF 1995); United States v. Jones, 20 M.J. 38, 40 (CMA 1985); United States v. Stevens, 2009 WL 150 7978 (AFCCA 2009); United States v. Magalhaes, 2008 WL 495613 (NMCCA 2008). Ganted the last two cases cited above are "unreported," but I could have thrown a few reported CCA cases in if I had written them down.

So I think the most that can be said is that destruction of evidence isn't "always" obstruction of justice, but Judge Cox's proposition that it "cannot" constitute obstruction of justice is just flat wrong under existing case law.

Cloudesley Shovell said...


Judge Cox had a point, even if he research wasn't very thorough. There's a difference between concealing one's involvement in a crime and obstruction of justice. For example, a burglar breaks into a house using a crowbar (his own property) then throws the crowbar in a river so he won't be caught with burglar's tools. Did he obstruct justice by throwing the crowbar away (thus "destroying evidence")? No. What if he gets rid of the crowbar after he knows the police are investigating him? What if he knows the police are coming to his house with a search warrant, and he hides the crowbar in a place where the police will never find it, but doesn't destroy it? Is he merely avoiding detection of his involvement in the burglary (not illegal) or is he obstructing justice

Where to draw the line? CAAF punted on that question in the past, saying it must be resolved on a case-by-case basis. See US v. Finsel, 36 MJ 441, 443-444 (CMA 1993).

In this particular case, I would say that the circumstances support the idea that the destruction of the videotape was indeed obstruction of justice. Ashby and Schweitzer were not attempting to conceal their involvement in the mishap--that was already well known and never in dispute. Rather, the circumstances show that they acted with the specific intent to deny the investigating authorities evidence pertaining to that mishap.

In the afternoon argument, Major Harvey specifically addressed the destruction-as-obstruction issue, and cited Jones, 20 MJ 38, to Judge Cox.

Cloudesley Shovell said...

Anon at 902 pm--

No need to shout. We can hear you just fine in lower case.

Also, at the risk of being labeled a pedant, it's Judge Stucky, not Colonel.

John O'Connor said...


I agree with your point that not all destruction of evidence equals obstruction of justice. What I found odd was Judge Cox's repeated assertion that destruction of evidence can never be obstruction of justice, and he stated it not as his own view of what the law should be, but as a statement of what CAAF law is. I mean, he said that he had looked, and had somebody else look, and there were no reported military cases treating destruction of evidence as obstruction of justice. That statement of the law struck me as odd because it was just so wrong.

Granted, Judge Cox, in his own words "hadn't followed the jurisprudence of the court," but if that issue was a bee in your bonnet, and even the appellant hadn't raised the issue, you'd think that the research Judge Cox and someone at his request conducted would have turned up all of these cases.

John O'Connor said...

Oh, and glad to hear that the Government raised U.S. v. Jones in the afternoon session. Listening to the audio, I thought that both of the counsel in Ashby did an excellent job representing their clients.

Anonymous said...

I just wonder why removing the tape from the camera and REPLACE it with a BLANK one (as done by either Ashby or Schweitzer) should not be seen as an obstruction of justice?