Government Appeal Procedure

Real Costs of a COURT MARTIAL Conviction and Discharge

Overview of government appeal procedure for motions and writs:

1. Trial counsel may request a delay of not more than 72 hours. R.C.M. 908(b)(1).
2. A court-martial may not proceed, except as to matters unaffected by the ruling or order.
3. However, if the order is nonappealable within the meaning of R.C.M. 908, the trial judge may properly proceed with the trial.
   United States v. Browers, 20 M.J. 356 (C.M.A. 1985).
4. The decision to file a notice of appeal with the judge must be authorized by the SJA or the GCMCA. for example, see Dep’t. of Army, Reg. 27-10, Military Justice, para. 13-3(a) (16 Nov 2005) (effective 16 Dec 2005).
5. Written notice of the appeal must be filed with the military judge not later than 72 hours after the ruling or order. R.C.M. 908(b)(3).
   1. United States v. Daly, 69 M.J. 485 (C.A.A.F. 2011). The CAAF held the Government’s action was untimely because it failed to file either a motion for reconsideration of the order to dismiss or a notice of appeal within the seventy-two-hour period of government appeals authorized in Article 62(a)(2), UCMJ. Instead, the Government took twelve days to finalize and submit a brief to the military judge asking for reconsideration of the order to dismiss.
   2. United States v. Neal, 68 M.J. 289 (C.A.A.F 2010). The government has an unqualified
      seventy-two hour period to file a notice of appeal. The government need not request a delay in the proceedings in order to preserve the seventy-two hour period for filing a notice of appeal.
   3. United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994). The appellate court found R.C.M. 908 provision to file appeal within 72 hours mandatory, and a MJ has no authority to extend the time for filing appeal notice. To avoid procedural issues in the future, the court recommended the following:
      1. MJ should enter essential findings contemporaneously with ruling on motion;
      2. MJ should state on record that his action is ruling of the court;
      3. if MJ rules adverse to the government on a significant matter, the MJ should then ascertain on the record whether the government is contemplating an appeal; and,
      4. if the government is contemplating an appeal, the MJ should state on record the time of the ruling, i.e., the time the 72-hour period will run, and how and where the government may provide the MJ with written notice of appeal.
6. Written notice to the military judge shall (R.C.M. 908(b)(3)):
7. Specify the order appealed and the charges and specifications affected.
8. Certify that the appeal is not for the purpose of delay.
9. Certify that the evidence excluded is substantial proof of a material fact.
10.  Notice of appeal “automatically stays” trial proceedings except as to unaffected charges or specifications. R.C.M. 908(b)(4).
    1. a. Motions may be litigated in the judge’s discretion.
    2. b. If trial on merits has not begun:
       1. Severance at the request of all parties.
       2. Severance requested by the accused to prevent manifest injustice.
11. If trial on merits has begun: a party may put on additional evidence within the judge’s discretion.
12. Requesting reconsideration.
    1. should be undertaken upon request . United States v. Tucker, 20 M.J. 602 (N.M.C.M.R. 1985). But see United States v. Vangelisti, 30 M.J. 234 (C.M.A. 1990) (military judge did not abuse his discretion in denying the prosecution’s request to reopen after granting the defense motion to suppress the accused’s confession).
    2. Scope of reconsideration. Harrison v.United States, 20 M.J. 55 (C.M.A. 1985). A trial judge has inherent authority, not only to reconsider a previous ruling on matters properly before him, but also to take additional evidence in connection therewith.
    3. Effect of reconsideration and time limits. United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001). The denial of a reconsideration ruling can be appealed, and the time limit within which to appeal does not start until the trial court rules on the petition for reconsideration. While the MCM does not address timeliness of request for reconsideration, the time limits from Article 62 and R.C.M. 908 are appropriately applied to such requests in assessing the timeliness for purpose of appeal.
13. Speedy trial rules are generally not a problem as long as the appeal is not frivolous.
    See R.C.M. 707 (b)(3)(c) and R.C.M. 707(c). See also United States v. Ramsey, 28 M.J. 370 (C.M.A. 1989) (“[a] frivolous appeal is one where the law is so clear and well-established that continued litigation is evidence of bad faith.”) The government gets a NEW 120 DAY CLOCK. R.C.M. 707(b)(3)(C).
14. Pretrial confinement of accused pending government appeal. R.C.M. 908(b)(9): If an accused is in pretrial confinement at the time the United States files notice of its intent to appeal, the commander, in determining whether the accused should be confined pending the outcome of an appeal by the United States, should consider the same factors which would authorize the imposition of pretrial confinement under R.C.M. 305(h)(2)(B).
15. Record of trial. R.C.M. 908(b)(5).
16. Prepared and authenticated to the extent necessary to resolve the issue appealed.
17. Essential findings.
    1. When ruling on motions to suppress evidence, military judges are required to state their essential findings of fact on the record (R.C.M. 905(d)).
    2. Findings should be logical and complete enough so that there is no need to resort to other parts of the record for meaning.
    3. Military judge should state the legal basis for the decision—the legal standards applied and the analysis of the application of these standards to the facts previously stated.
    4. Military judge should state any conclusions made and the decision.
    5. Help frame issues at the trial level; seek clarity and precision in judge’s ruling.
18. Military judge or Court of Criminal Appeals may require additional portions of the record.
19. “Forwarding” of the appeal to government representative. R.C.M. 908(b)(6).
20. Statement of the issues appealed.
21. The original record or summary of the evidence.
22. Within 20 days from the date written notice of appeal is filed with the trial court.
    1. United States v. Combs, 38 M.J. 741 (A.F.C.M.R. 1993). Government appeal properly dismissed for failure to promptly forward.
    2. United States v. Snyder, 30 M.J. 662 (A.F.C.M.R. 1990). The government failed to forward the authenticated ROT within 20 days; the accused had remained in pretrial confinement pending resolution of appeal. HELD: “The right to liberty is too fundamental to apply an ‘almost good enough’ standard to the government’s actions.”
23. Mailing within 20 days meets the requirements of “forwarding. United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991) aff’d 36 M.J. 2 (C.M.A. 1992).
24. The Chief, Government Appellate Division, makes the decision whether to file the appeal; therefore coordinate with Government Appellate from the beginning.

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