Monday, January 26, 2009

Defense files opposition to the Government's motion to strike the Rodriguez recon petition

Today the defense filed this opposition to the Government's motion to strike the defense's reconsideration petition in United States v. Rodriguez, 67 M.J. 110 (C.A.A.F. 2009). Code 46 now has until next Monday to file a reply.


Anonymous said...

"This is an inappropriate use . . . of a motion to strike."

Correct. Moving on.

Anonymous said...

Ouch. Poor government. Maybe they can file a motion to strike their motion to strike.

Anonymous said...

Apparently the gov't counsel are the same as when I practiced up there: just not too bright. Frivolous motion if there ever was one...

Cloudesley Shovell said...

There are some fascinating issues in this slow-moving train wreck that go beyond this case.

1. Military appellate courts have long tolerated the litigation of a second trial at the appellate level in many cases. So much so that practitioners rarely see anything wrong with simply challenging inconvenient facts with affidavits, and expecting the appellate courts to find new facts based on material outside the record, and then use those facts to resolve substantive issues in the case. While doing so might be efficient and appropriate in extremely limited circumstances, all too often such restraints are ignored, both by the parties and the courts.

2. There is still, I think, a basic misunderstanding of the importance of the notice of appearance of counsel. Each counsel is responsible for appearing, withdrawing (if appropriate) and keeping the court and parties on notice of counsel's current address.

3. Service is complete upon compliance with the court's service rules. Service rules require proof of service, not proof of receipt. The time to challenge the sufficiency of service is at the pleadings stage, not after you've lost your case. See the analogous rule at FRCP 12 (defense of insufficient service subject to waiver). In this case insufficient service should have been alleged way back at the initial filing of the petition for grant of review.

Discuss amongst yourselves who's the engineer of this train wreck. Consider the effect of ad hominem attacks on the strength of your argument.

Anonymous said...


The court's rules also allow for the filing of petitions after 60 days. The court now says that rule is invalid due to their strict construction of Art. 67. The defense is saying that strict construction of Art. 67 invalidates the court's service rule as well. Seems to be a reasonable argument.

The defense also says he raised the issue in oral argument. Do you think that's insufficient?

Anonymous said...


As usual, a thoughtful post. To the disappointment of many, this may not end up being a train-wreck at all – CAAF may decide to deny the motion to rehear based on some of the arguments I will make below.

As to your points:

1. The litigation of a second trial is not an issue in this case. The affidavits here seem perfectly proper and go entirely to uniquely appellate procedural matters. Your overall point may be valid, but you will have to save the comment for another case, not this one.

2. Your second point about counsels’ ongoing responsibilities to the client and the court is dead-on. While I enjoyed reading the ADC’s complete smack-down of the government’s silly “motion to strike,” and agree that the government was abusing the purpose of that motion simply to repeat arguments it evidently feels CAAF is too dense to understand the first time, the ADC in this case is making his arguments while whistling past the graveyard. The dormant issue in this case is the prior ADC’s Ineffective Assistance of Counsel. As harsh as it may seem, that counsel had an obligation to both the client and the court to proactively stay abreast of his cases in the appellate pipeline. The fact that a military appellate defense shop is “not a law firm,” as the ADC put it, in the end HURTS the defense position. This means that virtually all the responsibilities and burdens fall upon the attorney. The attorney is responsible for notifying clerical staff of his whereabouts, putting a red-flag out for certain cases, actively monitoring cases, turning the case over to another attorney or withdrawing from the case. While neither the government nor the defense want to discuss the IAC issue, CAAF may have to specify this issue because it’s the elephant in the room. The alternative is for the ADC to call-out the management and administration of military defense cases as a big-G government responsibility. But what we are left with is an illusion. The ADC here is not really fighting all-out for Rodriguez, he is shadow-boxing with the government over an intellectually stimulating appellate issue about the court’s deadlines, while a few spectators oh-and-ah, when the real issue is about proper case management. Just as attorneys have a duty to investigate a case before going to trial, they have a similar duty to properly close out their cases. That was not done here – and it was either the prior ADC’s fault or the government’s fault for not establishing, via its military defense management team, clear procedures for dealing with case transfers and/or service on individual attorneys. IAC or government mismanagement. Chose your poison. But it’s too late now, unless the defense plans on making a THIRD desperation argument alleging one of these – again, by sprinkling jurisdictional fairy-dust over his argument. (And that’s only a half-joke, because I believe jurisdictional fairy-dust has some REAL power and I don’t fault the ADC from using it).

3. Your third point about the distinction between service and receipt seems to be a subtle and nuanced one. I have an open mind on this distinction, and perhaps I can be persuaded on this point with some fact patterns and case citations, but the distinction seems too slick to me at first blush. Just as different areas of the law recognize the “reasonable likelihood” standard, it seems to me that service must be done in a manner that would reasonable be likely to actually reach the intended recipient. The “I followed the court’s rules, so I’m good” argument should not fly if the service seems superficial. And in this case, I think NMCCA’s rubber stamp is a sham. But I must agree with your concluding point that the issue of service should have been raised long ago, and disagree with Eugene Fidell’s argument, that CAAF should grant a rehearing because it’s such an important issue. I think Eugene is brilliant and his point is valid – except that there is one fundamental issue even more important than jurisdiction: candor before the tribunal. An attorney cannot hold back an argument and expect the court to take that argument seriously when raised at the 11th hour. The “it’s never too late to argue jurisdiction” argument has its logical limits. Res judicata eventually trumps that rule. And with TIME, we are talking about a new (mutated) species of jurisdiction (we are not talking about REAL jurisdiction – subject matter or personal).

When it’s all said and done in this case, I think a lesson that will come through to defense counsel is not to make half-ass arguments. The ADC is not really fighting full throttle for Rodriguez, he is pulling punches to spare the prior ADC and his military managers. That is half-ass argument number one. The ADC’s “peep” during oral argument that it did not concede proper service or un-timeliness is too little, too late. That is half-ass argument number two. There is an appellate rule in all federal circuits that courts are to view undeveloped arguments as non-arguments and subject to waiver.

My final observations about this case come back to an interview I saw with Boston Celtic hall of fame center, Bill Russell. He laughed when describing how modern players love to make a show when blocking a shot by swatting the ball out-of-bounds with full force. The fans go crazy, but the offense keeps the ball. Russell said that when he blocked shots, he tried to do so gently so his team could take possession.

While I admire the intellect, research abilities and cleverness of the ADC in this case and believe he is overpowering a somewhat mediocre government performance, he is just swatting the ball out-of-bounds.

The biggest problem with military appellate defense shops is that these organizations tend to represent issues and not people. This case is emblematic of that problem. The ADC here has identified a sexy appellate issue, and all the voyeurs are aroused. But Rodriguez, the person, is going to lose this case because the ADC, as smart as he is, did not raise the right issues at the right time.

Cloudesley Shovell said...

Anon 0750am: I disagree that service in Art 67(b)(2) is somehow different than service everywhere else. I also think it's insufficient to raise issues at oral argument. If counsel believed service was insufficient, he should have raised the issue immediately, not waiting until after he lost his case.

Socrates: I'm afraid we'll have to politely disagree on point 1. If counsel had raised the issue of insufficient service at the outset, affidavits might have been appropriate, but trying to change the facts after an adverse decision is not the way to go.

Excellent points in para. 2. "Whistling past the graveyard"--good one.

Excellent points in the following paragraphs as well. One thing for sure, this kerfuffle has certainly made people think about the importance of some of the more mundane court rules. I wonder how long it will take to get the CCA (and NMCCA) rules amended to actually discuss service in some detail. I wouldn't be surprised to see CAAF Rule 39 incorporated into the CCA rules in fairly short order.