United States v. Vargas

74 M.J. 1, 2014 CAAF LEXIS 1156, 2014 WL 6981291
Court of Appeals for the Armed Forces·Decided December 8, 2014·No. 14-6009/MC·Published·Cited by 27 cases

Opinions

Judge ERDMANN delivered the opinion of the court.

Staff Sergeant Ruben Vargas is charged with assault consummated by a battery in violation of Article 128, UCMJ, 10 U.S.C. § 928 (2012). During the first day of trial, the military judge denied a government request for a continuance. When the government was unable to proceed with trial due to the unavailability of its witnesses, the military judge rested the government’s ease. The government subsequently filed an appeal with the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA) pursu[2]*2ant to Article 62, UCMJ, 10 U.S.C. § 862 (2012). The NMCCA held that the military judge’s rulings were appealable under Article 62 and that the military judge abused her discretion in denying the government’s motion for a continuance and resting the government’s case. United States v. Vargas, No. NMCCA 201300426, slip op. at 10, 12, 2014 WL 789199 (N.-M.Ct.Crim.App. Feb. 28, 2014).

Article 62, UCMJ, allows interlocutory government appeals under limited circumstances, including from an “order or ruling which excludes evidence that is substantial proof of a fact material in the proceeding.” Article 62(a)(1)(B), UCMJ. We granted review of this case to determine whether the military judge’s denial of the government’s request for a continuance and the subsequent resting of the government’s case constituted an exclusion of evidence appealable under Article 62, UCMJ.1 We hold the military judge’s rulings were not appealable under Article 62 and reverse the decision of the NMCCA.

Background

Vargas was charged with one specification of assault consummated by a battery against his wife. The facts underlying the assault are not relevant to our analysis as to whether the NMCCA had jurisdiction to hear the government’s appeal. In this jurisdictional challenge to the government’s Article 62, UCMJ, appeal, it is important to review the context in which the military judge’s rulings were made:

February 4, 2013 Charges were referred to a special court-martial.
February 19, 2013 Trial was set for April 23, 2013, with no objections from counsel.
February 25, 2013 Arraignment.
April 5, 2013 Trial continued to June 4, 2013, on defense motion due to Vargas’s hiring of civilian defense counsel.
May 29, 2013 Following the government’s response to discovery, the defense requested additional time to review the discovery material. Trial continued to July 9, 2013.
July 3, 2013 An Article 39(a), UCMJ, session was held to resolve the government’s alleged failure to produce discovery. The military judge determined that the government may have failed to produce necessary discovery and continued the case' to the week of July 22, 2013, to give the government' time to provide complete discovery.
July 11, 2013 The government provided the additional discovery discussed on July 3, 2013.
July 12, 2013 An Article 39(a), UCMJ, session was held on a defense motion to compel discovery. The defense argued that the documents received from the government the previous day were incomplete. The military judge ordered the government to produce the evidence requested or provide proof that it did not exist through an affidavit. Trial was continued to August 13, 2013. In granting the continuance, the military judge warned that the “parties better be ready for trial on August 13.’!
[3]*3August 6, 2013 The government moved for an additional continuance. The military judge granted the motion and continued the trial to August 27,2013.
August 21, 2013 One week before the trial, the government moved for a continuance to October 22, 2013, to accommodate the availability of two of its witnesses, Special Agent (SA) Carlos Castro and SA Shawn Fogle. SA Castro was scheduled to attend a field exercise and SA Fogle was deployed. The military judge granted the motion.
October 16, 2013 The government again moved to continue the trial to accommodate the availability of the same witnesses named in the August 21, 2013, motion. The government also cited travel issues for two other unnamed witnesses caused by the “Government shutdown.” The military judge denied the motion.

The court was assembled on the morning of October 22, 2013, and the government confirmed it was ready to proceed. Voir dire was completed that morning and the court-martial recessed at 11:32 a.m. The court-martial reconvened at 12:43 p.m. The parties discussed trial counsel’s intent to utilize several photos and the 911 call audio during his opening statement, none of which had been pre-admitted into evidence.2 The defense objected to the government’s use of non-admitted evidence in the government’s opening statement and the military judge sustained the objection. Trial counsel then informed the court that the witness necessary to lay the foundation for admission of the 911 audio would not be available until the next morning. The military judge advised trial counsel:

That’s not my problem. Trial is scheduled for today. I indicated to you yesterday that I expected voir dire to finish by lunch and you would get to your case-in-ehief after lunch, which is exactly how we’ve proceeded.... So you are expected to be prepared for trial.

Trial counsel then informed the military judge that Special Agent Fogle, who was necessary to lay the foundation for the photo exhibits, would also not be available until the next day. The military judge responded:

Okay. Well, Trial Counsel, I will remind you that you submitted exhibits to the eourt regarding your pretrial submission. Specifically, Appellate Exhibit XVT and Appellate Exhibit XXXV where Special Agent Fogel [sic] is not listed as a witness. I will not delay the trial to get his appearance at this time.
So you — this trial has been set for quite a while now. We are working on, one, two, three, four, five, six — at least six approved continuances in this case. Charges were preferred in March. And government is expected to — I’m sorry, it was arraigned in March.
Government is expected to be prepared for trial upon arraignment, and we’re now in October. So you’re going to proceed with what you have. And if you can’t prove your case, then I’m sorry. So I don’t find just 'cause for a delay at this point for you to get any witnesses.

The court-martial then continued with the parties’ opening statements and the government proceeded to call four witnesses in its case-in-ehief. Following the testimony of those witnesses, the court took a fifteen-minute recess at 2:11 p.m. During the recess, trial counsel informed the military judge that the government’s remaining three witnesses were not available to testify. When the court-martial reconvened, the gov[4]*4ernment moved for a continuance until the next morning when its witnesses would be available. The defense objected to the delay.

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United States v. Vargas, 74 M.J. 1, 2014 CAAF LEXIS 1156, 2014 WL 6981291 (Ark. 2014).

74 M.J. 1 (United States v. Vargas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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