United States v. Tucker

20 M.J. 602, 1985 CMR LEXIS 3867

• Court: U.S. Navy-Marine Corps Court of Military Review
• Decided: March 28, 1985
• Docket: Misc. Dkt. No. 85-03
• Status: Published

Opinions

RAPP, Judge:

This case is now before us on appeal by the Government. The military judge granted appellee’s motion to dismiss on the ground that the Government had been unable to meet the heavy burden of demonstrating that no derivative use had been made of appellee’s immunized testimony in his court-martial. The Government has asserted that the military judge erred by: (1) applying an incorrect legal standard to conclude that improper use had been made of immunized testimony, (2) ruling that the Government was precluded from requesting reconsideration of the military judge’s decision to grant the motion to dismiss while a 72-hour delay was in effect pursuant to R.C.M. 908(b), Manual for Courts-Martial, 1984 (MCM), for the Government to decide whether to file a notice of appeal, and (3) denying the Government’s request to reopen the evidentiary hearing on the motion to dismiss to present further testimony.

No matter how the Government characterizes the first issue, it is still in essence a question of fact. We are precluded, as a result, from overriding the military judge’s decision, even if we disagreed with him. Article 62(b), Uniform Code of Military Justice, 10 U.S.C. § 862(b); R.C.M. 908(b)(2), MCM. Furthérmore, the military judge’s explanation of his ruling shows that he applied an acceptable legal standard in this somewhat murky area of the law. See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); United States v. McDaniel, 482 F.2d 305 (8th Cir.1973); United States v. Rivera, 1 M.J. 107 (C.M.A.1975); compare United States v. Eastman, 2 M.J. 417 (A.C. M.R.1979) with United States v. Gardner, 18 M.J. 612 (A.F.C.M.R.1984).

Common sense and the very wording of R.C.M. 908(b)(4), MCM, have convinced us that the military judge erred as a matter of law when he denied the Government’s request for reconsideration of his decision to grant the motion to dismiss. The plain meaning of the Rule’s caution that, “no session of the court-martial may proceed” would be contradicted by the contrary position, as the military judge is not “proceeding” but rather is acting on a motion already before him. Further, reconsideration would be consistent with the intent of the Rule’s drafters set forth in the Analysis of the Rule (Manual for Courts-Martial, A21-51) to minimize the potentially adverse effect of Government appeals on trial dockets, military operations, and appellate courts; i.e., the military judge’s reconsideration and reversal of his ruling would obviate the need for such appeal. The military judge possesses adequate authority and powers to regulate litigation of requests for reconsideration by strictly limiting information presented to newly-discovered evidence, matters not reasonably available for introduction at the earlier proceedings, or similar subjects.

While we commend the military judge for including in the record the specific, proffered testimony in dispute, rather than the brief, generalized offer of proof we frequently see, we cannot agree with him that Rule 905(f), MCM, does not allow presentation of further evidence on the motion to reconsider. The military judge has broad powers to use in shaping the proceedings over which he presides. Allowing a motion to reconsider without opportunity to present further information could deprive the military judge of matters proper for his consideration and crucial to his decision. We trust that the military judge would exercise his discretion to limit such presentations within appropriate bounds, as we discussed above. We decline to grant relief, however, as the proffered testimony was relevant only to the question of fact, which is beyond our jurisdiction. Accordingly, appellant’s motion to reverse the ruling below is denied.

Senior Judge KERCHEVAL concurs.