                       UNITED STATES, Appellant

                                    v.

                  Tahir L. MUWWAKKIL, Staff Sergeant
                          U.S. Army, Appellee

                              No. 15-0112

                       Crim. App. No. 20140536

       United States Court of Appeals for the Armed Forces

                       Argued January 27, 2015

                         Decided May 28, 2015

OHLSON, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN and RYAN, JJ., joined. STUCKY, J., filed a
separate opinion concurring in the result.


                                 Counsel

For Appellant: Captain Carrie L. Ward (argued); Colonel John P.
Carrell, Lieutenant Colonel James L. Varley, and Captain Janae
M. Lepir.

For Appellee: Captain Nicholas J. Larson (argued); Lieutenant
Colonel Jonathan F. Potter and Major Aaron R. Inkenbrandt.

Military Judge:    Wendy P. Daknis



       This opinion is subject to revision before final publication.
United States v. Muwwakkil, No. 15-0112/AR

     Judge OHLSON delivered the opinion of the Court.

     This case arises out of an interlocutory appeal under

Article 62, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §

862 (2012), in a pending court-martial.

     At trial, the military judge struck the complaining

witness’s testimony, citing as the basis for her ruling the

Government’s failure to provide the defense with a recording of

the complaining witness’s Article 32, UCMJ, 10 U.S.C. § 832

(2012), testimony as required under the Jencks Act, 18 U.S.C.

§ 3500 (2012), and Rule for Courts-Martial (R.C.M.) 914.    After

the United States Army Court of Criminal Appeals (CCA) denied

the Government’s appeal of the military judge’s ruling under

Article 62, UCMJ, the Judge Advocate General of the Army (TJAG)

certified the following two issues for our review under Article

67(a)(2), UCMJ, 10 U.S.C. § 867(a)(2) (2012):

     I. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS
     ERRED IN ITS APPLICATION OF BOTH THE FEDERAL JENCKS
     ACT (18 U.S.C. § 3500) AND RULE FOR COURTS-MARTIAL
     914.

     II. WHETHER THE U.S. ARMY COURT OF CRIMINAL APPEALS
     ERRED IN ITS DEFERENCE TO THE MILITARY JUDGE’S
     FINDINGS AND CONCLUSIONS, AS SHE FAILED TO CONSIDER
     THE TOTALITY OF THE CASE, AND INSTEAD MADE A
     PRESUMPTION OF HARM BEFORE ORDERING AN EXTRAORDINARY
     REMEDY. SEE, [E.G.], KILLIAN v. UNITED STATES,
     368 U.S. 231 (1961).

     We answer these certified issues in the negative by finding

that the military judge did not err or otherwise abuse her

discretion in applying the provisions of the Jencks Act and


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United States v. Muwwakkil, No. 15-0112/AR

R.C.M. 914 to the instant case.    We therefore affirm the CCA’s

decision.

                           I.   BACKGROUND

     Appellee1 was charged with one specification each of rape

and assault consummated by a battery, in violation of Articles

120 and 128, UCMJ, 10 U.S.C. §§ 920, 928 (2012).      GP, the

complaining witness in this case, testified at the Article 32,

UCMJ, hearing that the accused had raped and assaulted her in

July 2013.   Among those in attendance at the Article 32, UCMJ,

hearing were the accused, his defense counsel, his counsel’s

supervisor, and the defense paralegal, as well as the trial

counsel and the investigating officer.       GP’s Article 32, UCMJ,

testimony lasted for approximately two hours and fifteen

minutes.

     A paralegal working for the Regional Support Legal Office

recorded the Article 32, UCMJ, testimony on two devices, one of

which malfunctioned partway through the hearing.      The recording

from the malfunctioning machine captured fifty-two minutes of

GP’s direct testimony, but none of her testimony on cross-

examination or redirect.   Following the hearing, the Government

paralegal used the functioning recorder to summarize in three

pages GP’s testimony, and then he returned the functioning

device to a colleague’s desk in the military justice office.

1
  Because this is an interlocutory appeal, we will henceforth
refer to Appellee as “the accused” in this opinion.

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United States v. Muwwakkil, No. 15-0112/AR

However, at some undetermined point before trial, the recording

of GP’s testimony from the functioning device was deleted.

During motions practice, the paralegal conceded that he failed

to appropriately “back up” the recording, and trial counsel

stipulated that she did not provide the paralegals in the

military justice office with any instruction regarding the

handling or preservation of the Article 32, UCMJ, audio in the

accused’s case.

     At the conclusion of the Article 32, UCMJ, hearing, the

investigating officer issued a report recommending that the

charges not proceed against the accused because of his concerns

about GP’s credibility.   In making this recommendation, the

investigating officer specifically cited inconsistencies in GP’s

testimony and her inability to remember details.

Notwithstanding this recommendation, the convening authority

referred the charges to a general court-martial, serving the

charges on the accused on January 15, 2014.

     On or about February 13, 2014, the accused learned that the

Government had lost the recording of GP’s Article 32, UCMJ,

testimony, and on February 16 he sought a continuance of at

least three weeks, in part because of the lost recording.

Although not part of the record before us, the military judge

apparently granted the continuance.   On April 25, the accused

requested from trial counsel any notes taken by the



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United States v. Muwwakkil, No. 15-0112/AR

investigating officer, the trial counsels, or the Government

paralegal in order to mitigate the loss of the recording.

However, trial counsel objected to providing these materials on

the grounds that (1) the accused had the Article 32, UCMJ,

summarized testimony and the investigating officer’s report and

(2) the Government had no duty to produce the verbatim recording

or to mitigate any alleged damage.

     Prior to trial, the accused did not take any additional

steps in an effort to cure the loss of the Article 32, UCMJ,

recording.   Instead, after GP testified on direct at the

accused’s court-martial, the defense moved to strike GP’s trial

testimony under R.C.M. 914 and the Jencks Act because the

Government could not produce the recording of GP’s Article 32,

UCMJ, testimony.   The military judge granted the motion.   She

concluded that the loss of the Article 32, UCMJ, recorded

testimony could only be remedied by striking GP’s testimony

because:   (1) the summarized testimony was “not a substantially

verbatim” transcript of GP’s Article 32, UCMJ, testimony; (2)

the recording was lost due to the Government’s negligence, and

perhaps, gross negligence; (3) impeachment of GP was the

defense’s “most important strategy”; (4) GP was “one of two key

witnesses” in the case; (5) the investigating officer found GP’s

testimony to be “inconsistent with previous statements”; and (6)

there was no substitute for the Article 32, UCMJ, recording.



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United States v. Muwwakkil, No. 15-0112/AR

The military judge also denied the Government’s motion for

reconsideration.

     After the military judge issued her ruling, the Government

filed an Article 62, UCMJ, appeal with the CCA arguing that the

military judge’s decision to strike GP’s testimony was

unnecessarily severe where there was no explicit finding of

gross negligence or prejudice.      The lower court determined,

however, that the military judge did not abuse her discretion in

striking GP’s testimony under the Jencks Act and R.C.M. 914, and

thus it denied the Government’s appeal both initially, United

States v. Muwwakkil, 73 M.J. 859, 864 (A. Ct. Crim. App. 2014),

and on reconsideration, United States v. Muwwakkil, No. ARMY

MISC 20140536 (A. Ct. Crim. App. Sept. 12, 2014).      TJAG then

certified to this Court the two issues cited above, which we now

consider.

                            II.    Discussion

     A.     Certified Issue I

     Although the first certified issue refers to the CCA’s

application of the Jencks Act and R.C.M. 914, the question

before us actually involves the decision by the military judge

to strike GP’s testimony.       In circumstances such as these, we

deem it appropriate to primarily address the military judge’s

ruling rather than the CCA’s opinion.      See United States v.

Neal, 68 M.J. 289, 302 (C.A.A.F. 2010).



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United States v. Muwwakkil, No. 15-0112/AR

     The predecessor to this Court ruled in 1963 that the Jencks

Act, applied to courts-martial.   See United States v. Walbert,

14 C.M.A. 34, 37, 33 C.M.R. 246, 249 (1963).   The Jencks Act

requires the military judge, upon motion by the accused, to

order the government to disclose prior “statement[s]” of its

witnesses that are “relate[d]” to the subject matter of their

testimony after each witness testifies on direct examination.

See 18 U.S.C. § 3500(b).   The Jencks Act is intended “‘to

further the fair and just administration of criminal justice’”

by providing for disclosure of statements for impeaching

government witnesses.   Goldberg v. United States, 425 U.S. 94,

107 (1976) (quoting Campbell v. United States, 365 U.S. 85, 92

(1961)).   At the time of the Walbert decision, there was no

provision in the UCMJ or the Manual for Courts-Martial, United

States (MCM) similar to the Jencks Act.   Thus, the extension of

the Jencks Act to military practice was deemed necessary “to

ensure that discovery and disclosure procedures in the military

justice system, which are designed to be broader than in

civilian life, provided the accused, at a minimum, with the

disclosure and discovery rights available in federal civilian

proceedings.”   United States v. Williams, 50 M.J. 436, 440

(C.A.A.F. 1999).

     In 1984, the President promulgated R.C.M. 914, and this

rule “tracks the language of the Jencks Act, but it also



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United States v. Muwwakkil, No. 15-0112/AR

includes disclosure of prior statements by defense witnesses

other than the accused.”    United States v. Pena, 22 M.J. 281,

282 n.* (C.M.A. 1986).   Both R.C.M. 914 and the Jencks Act

afford the defense an opportunity to impeach witnesses and

enhance the accuracy of trial proceedings through cross-

examination of witnesses.   United States v. Lewis, 38 M.J. 501,

508 (A.C.M.R. 1993).   Given the similarities in language and

purpose between R.C.M. 914 and the Jencks Act, we conclude that

our Jencks Act case law and that of the Supreme Court informs

our analysis of R.C.M. 914 issues.

     We review a military judge’s decision to strike testimony

under the Jencks Act and R.C.M. 914 using an abuse of discretion

standard.   See United States v. Augenblick, 393 U.S. 348, 355

(1969); United States v. Longstreath, 45 M.J. 366, 374 (C.A.A.F.

1996) (reviewing military judge’s decision on whether to strike

testimony under Military Rule of Evidence 301(f)(2) for abuse of

discretion); United States v. Cardenas-Mendoza, 579 F.3d 1024,

1031 (9th Cir. 2009) (“A district court’s Jencks Act rulings are

reviewed for abuse of discretion.”).

     Turning to that task, we note that for purposes of the

accused’s case, we are concerned with the following provisions

of R.C.M. 914:2


2
  The Government claims that the Jencks Act is “subsumed” in
R.C.M. 914, and its brief therefore focuses on R.C.M. 914.
Given the Government’s emphasis on R.C.M. 914, our discussion in

                                  8
United States v. Muwwakkil, No. 15-0112/AR

     (a) Motion for production. After a witness other
     than the accused has testified on direct examination,
     the military judge, on motion of a party who did not
     call the witness, shall order the party who called the
     witness to produce, for examination and use by the
     moving party, any statement of the witness that
     relates to the subject matter concerning which the
     witness has testified, and that is:

          (1) In the case of a witness called by the trial
     counsel, in the possession of the United States . . .
     .

     . . . .

     (e) Remedy for failure to produce statement. If the
     other party elects not to comply with an order to
     deliver a statement to the moving party, the military
     judge shall order that the testimony of the witness be
     disregarded by the trier of fact and that the trial
     proceed, or, if it is the trial counsel who elects not
     to comply, shall declare a mistrial if required in the
     interest of justice.

     (f) Definition. As used in this rule, a “statement”
     of a witness means:

     . . . .

          (2) A substantially verbatim recital of an oral
     statement made by the witness that is recorded
     contemporaneously with the making of the oral
     statement and contained in a stenolineart, mechanical,
     electrical, or other recording or a transcription
     thereof . . . .



the main text likewise will focus on this rule. However, we
recognize that Certified Issue I asks whether both R.C.M. 914
and the Jencks Act were properly applied. The R.C.M. 914
provisions at issue in this case track the language of the
Jencks Act. Compare R.C.M. 914(a)(1), (e), (f)(2), with
18 U.S.C. § 3500(b), (d), (e)(2). We therefore find that in
this case, the result would be the same under both R.C.M. 914
and the Jencks Act. Cf. United States v. Smith, 31 F.3d 1294,
1301 n.6 (4th Cir. 1994) (noting that “the result here would be
the same if analyzed under [Fed. R. Crim. P. 26.2] rather than
the [Jencks] Act”).

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United States v. Muwwakkil, No. 15-0112/AR

R.C.M. 914(a)(1), (e), (f)(2).

     The Government offers three arguments as to why R.C.M. 914

does not apply to this case:   (1) the rules of discovery should

have applied; (2) recorded Article 32, UCMJ, testimony should

not constitute a “statement”; and (3) trial counsel could not

“elect” to decline to produce GP’s recorded Article 32, UCMJ,

testimony at trial because that recorded testimony was no longer

in the possession of the Government.

     In regard to the first argument, the Government contends

that the accused should have been required to litigate the issue

involving the loss of GP’s Article 32, UCMJ, testimony as a

pretrial discovery matter under R.C.M. 701 and R.C.M. 703(f)(2)

rather than as a motion for production under R.C.M. 914.

However, we note that the Government did not raise this argument

with the military judge, nor did it raise the issue with the CCA

until the Government filed its motion for reconsideration --

which the CCA denied.   Under the particular circumstances of

this case, we decline to entertain this untimely argument in

this appeal.   See Dep’t of Revenue v. Kurth Ranch, 511 U.S. 767,

772 n.9 (1994) (“The issue was not raised below, so we do not

address it.”); Giordenello v. United States, 357 U.S. 480, 488

(1958) (refusing to entertain government’s belated contentions

not raised in the lower courts).      We therefore find no error in

this case stemming from the failure of the military judge and



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United States v. Muwwakkil, No. 15-0112/AR

the CCA to consider the MCM’s discovery rules in evaluating the

merits of the accused’s motion to strike.3   As for the

Government’s two remaining arguments, we are unconvinced that

the text of R.C.M. 914 supports them.

     As background, we note that R.C.M. 914 was triggered when

GP testified on direct examination.   The rule therefore

authorized the accused to request GP’s “statements” in the

Government’s “possession.”   R.C.M. 914(a)(1); see also 18 U.S.C.

§ 3500(b).   However, pursuant to its second argument, the

Government suggests that R.C.M. 914 does not actually apply in

the instant case because recorded Article 32, UCMJ, testimony

does not constitute a “statement.”    In the course of making this

argument, the Government questions the correctness of our

conclusion in United States v. Marsh, 21 M.J. 445, 451 (C.M.A.




3
  Although we decline to entertain the Government’s discovery
argument, we briefly address in this footnote the difference
between the Jencks Act and R.C.M. 914 with respect to discovery.
The Jencks Act’s “major concern is with limiting and regulating
defense access to government papers.” Palermo v. United States,
360 U.S. 343, 354 (1959). On the other hand, the military
justice system affords an accused broad rights and remedies
under the discovery provisions of the UCMJ that are more
extensive than those afforded in the civilian criminal justice
system. See United States v. Pomarleau, 57 M.J. 351, 359
(C.A.A.F. 2002). As a result, resort to military discovery
procedures “should make resort to [R.C.M. 914] by the defense
unnecessary in most cases.” MCM, Analysis of the Rules for
Courts-Martial app. 21 at A21-64 (2012 ed.). Nonetheless, the
military’s discovery rules do not render R.C.M. 914 meaningless
when its terms apply.



                                11
United States v. Muwwakkil, No. 15-0112/AR

1986), that recorded Article 32, UCMJ, testimony constituted a

“statement” under the Jencks Act.

     In addressing this point, we uphold our decision in Marsh

that Article 32, UCMJ, recorded testimony constitutes a

statement under the Jencks Act.    Further, because our Jencks Act

case law informs our R.C.M. 914 analysis, we find that Marsh

supports a conclusion that Article 32, UCMJ, recorded testimony

also constitutes a “statement” under R.C.M. 914.      Moreover, the

text of R.C.M. 914 itself indicates that recorded Article 32,

UCMJ, testimony constitutes a “statement” because it meets the

R.C.M. 914(f)(2) standard of being “[a] substantially verbatim

recital of an oral statement . . . that is recorded

contemporaneously with the making of the oral statement and

contained” in a recording.    Therefore, we find that Article 32,

UCMJ, recorded testimony qualifies as a “statement” under both

the Jencks Act and R.C.M. 914, and we reject the Government’s

suggestion to the contrary.

     In regard to its third argument against the applicability

of R.C.M. 914 to the instant case, the Government claims that it

was not “in possession” of GP’s Article 32, UCMJ, recorded

testimony at the time of trial, and thus it made no “election”

to disobey the military judge’s order to produce it after GP

testified on direct examination.       See R.C.M. 914(a)(1), (e); see

also 18 U.S.C. § 3500(b), (d).     However, this reading of R.C.M.



                                  12
United States v. Muwwakkil, No. 15-0112/AR

914 would effectively render the rule meaningless.    The

Government would be able to avoid the consequences of R.C.M.

914’s clear language and intent simply by failing to take

adequate steps to preserve statements.    See United States v.

Sanchez, 635 F.2d 47, 65 (2d Cir. 1980) (explaining Jencks Act’s

implicit preservation requirement); United States v. Lieberman,

608 F.2d 889, 895 (1st Cir. 1979) (“Cases under the Jencks Act

have indicated that the Act calls . . . for the preservation of

statements for future disclosure.”).    Further, we note that the

Government’s strained interpretation of R.C.M. 914 stands in

stark contrast to judicial interpretations of the Jencks Act by

the Supreme Court, our predecessor Court, and the federal

circuit courts, all of which have applied the Jencks Act to

destroyed or lost statements.   See, e.g., Augenblick, 393 U.S.

at 355 (stating that there was “no doubt” that lost “tapes were

covered by the Jencks Act”); Marsh, 21 M.J. at 451; United

States v. Ramirez, 174 F.3d 584, 589 (5th Cir. 1999).       Thus, we

decline to adopt the Government’s approach.

     Our conclusion on this point is reinforced by the facts in

the instant case.   GP’s Article 32, UCMJ, recording was no

longer in the Government’s possession solely because of the

Government’s own negligence in failing to preserve it.      It would

be an odd result indeed if the Government ultimately was

rewarded for its own negligence.     Cf. Lieberman, 608 F.2d at 897



                                13
United States v. Muwwakkil, No. 15-0112/AR

(“When all that a witness said was recorded and then wholly or

partly destroyed, it was at least once contained in ‘statements’

‘in the possession of the United States’” (quoting 18 U.S.C.

§ 3500(e))).   We therefore find that the Government’s negligent

failure to retain control of the recorded Article 32, UCMJ,

testimony, which once had been in its exclusive “possession,”

effectively means that “the trial counsel . . . elect[ed] not to

comply” with the requirement under R.C.M. 914(e) to provide a

copy of GP’s “statement” to the defense.

     Under these circumstances and pursuant to R.C.M. 914(e),

the military judge was required to impose one of two sanctions

on the Government:   (1) “order that the testimony of the witness

be disregarded by the trier of fact”; or (2) “declare a mistrial

if required in the interest of justice.”   R.C.M. 914(e); see

also 18 U.S.C. § 3500(d).   The military judge chose the

authorized sanction of striking GP’s testimony.

     In seeking to avoid this sanction, the Government now

claims that the military judge needed to find “bad faith” and

“prejudice” before striking GP’s testimony.   We address the “bad

faith” argument immediately below and the “prejudice” argument

in the second certified issue.

     The Jencks Act jurisprudence of the Supreme Court and our

Court, which, as we noted above, also guides our analysis of

R.C.M. 914, has recognized a judicially created good faith loss



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United States v. Muwwakkil, No. 15-0112/AR

doctrine.   See Marsh, 21 M.J. at 451 (stating that the “Supreme

Court has indicated on several occasions that good-faith loss of

[Jencks Act materials] may not require the same sanction

required for deliberate suppression or for bad-faith destruction

of these materials”).   This doctrine excuses the Government’s

failure to produce “statements” if the loss or destruction of

evidence was in good faith.   See Killian v. United States,

368 U.S. 231, 242 (1961); see also United States v. Moore,

452 F.3d 382, 389 (5th Cir. 2006) (“Jencks Act sanctions should

be imposed in cases of bad faith and negligent suppression of

evidence but not in the case of good faith loss by the

government.”).   However, our predecessor Court has recognized

that this exception is “generally limited in its application.”

United States v. Jarrie, 5 M.J. 193, 195 (C.M.A. 1978).    Indeed,

in the instant case we find that the military judge did not err

in declining to apply the good faith loss doctrine because she

explicitly found that the Government had engaged in negligent

conduct, and a finding of negligence may serve as the basis for

a military judge to conclude that the good faith loss doctrine

does not apply in a specific case.   Cf. Marsh, 21 M.J. at 451-52

(applying the good faith loss doctrine where there was

government negligence but also “substantial evidence”

establishing (1) an office policy to preserve Article 32, UCMJ,

recordings and (2) the steps taken to comply with this policy).



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United States v. Muwwakkil, No. 15-0112/AR

Therefore, the military judge did not abuse her discretion in

applying the Jencks Act and R.C.M. 914 by striking GP’s

testimony.    Accordingly, we answer the first certified issue in

the negative.

     B.   Certified Issue II

     The second certified issue essentially asks this Court to

determine whether the military judge merely presumed harm when

she struck GP’s testimony because of Jencks Act and R.C.M. 914

violations.   We initially find that although the military judge

did not use the specific term “prejudice” in her findings, she

did essentially engage in a prejudice analysis by finding that

GP was a key witness with credibility issues and that there was

no adequate substitute for GP’s recorded Article 32, UCMJ,

testimony.    See United States v. Riley, 189 F.3d 802, 806-07

(9th Cir. 1999); see also Marsh, 21 M.J. at 452 (finding no

error in military judge’s decision declining to strike testimony

under the Jencks Act where accused was provided a summarized

transcript that was “‘almost word for word’” of Article 32, UCMJ

testimony); cf. Rosenberg v. United States, 360 U.S. 367, 371

(1959) (“[W]hen the very same information was possessed by

defendant’s counsel as would have been available were error not

committed, it would offend common sense and the fair

administration of justice to order a new trial.”).




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United States v. Muwwakkil, No. 15-0112/AR

     Moreover, we further conclude that this prejudice analysis

was not required under R.C.M. 914.   We apply ordinary rules of

statutory construction in interpreting R.C.M. 914.   See, e.g.,

United States v. Hunter, 65 M.J. 399, 401 (C.A.A.F. 2008).

Specifically, we interpret R.C.M. 914(e) by “look[ing] at ‘the

plain language of the [MCM] and constru[ing] its provision in

terms of its object and policy, as well as the provisions of any

related [rules], in order to ascertain the intent of [the

President]; if the [MCM] is unclear we look next to the

[drafters’ analysis].’”   United States v. Rendon, 58 M.J. 221,

224 (C.A.A.F. 2003) (alterations in the original) (quoting

United States v. Falk, 50 M.J. 385, 390 (C.A.A.F. 1999)).    The

plain text of R.C.M. 914 provides two remedies for the

Government’s failure to deliver a “statement” without

referencing a predicate finding of prejudice to the accused.

Absent any reference to prejudice or harmless error, at this

stage of the proceedings we conclude that the military judge was

not required to engage in a prejudice analysis.4   We therefore

answer the second certified issue in the negative.


4
  We recognize that in Jencks Act cases, the Supreme Court has
returned cases on direct appeal to the trial court to conduct a
harmless error analysis. See Goldberg, 425 U.S. at 111-12 &
n.21; Killian, 368 U.S. at 244. In both instances, the Supreme
Court remanded following a full trial for the trial court to
examine whether a Jencks Act violation occurred and if so
whether the violation was harmless or warranted a new trial.
Goldberg, 425 U.S. at 111-12; Killian, 368 U.S. at 244. These
cases are distinguishable from certified interlocutory questions

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United States v. Muwwakkil, No. 15-0112/AR

                         III.   Decision

     We conclude that the military judge did not err or

otherwise abuse her discretion in applying the provisions of the

Jencks Act and R.C.M. 914 to the instant case.   Accordingly, we

affirm the decision of the United States Army Court of Criminal

Appeals.




and a situation where a military judge is considering an R.C.M.
914 motion in the midst of a trial.

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United States v. Muwwakkil, No. 15-0112/AR


     STUCKY, Judge (concurring in the result):

     I agree that the military judge did not abuse her

discretion under Rule for Courts-Martial (R.C.M.) 914 in

striking the witness’s testimony.   I disagree, however, with the

majority’s suggestion that the Jencks Act applies to courts-

martial.

     In Palermo v. United States, the Supreme Court described

the circumstances that led to the enactment of the Jencks Act,

18 U.S.C. § 3500.

          Exercising our power, in the absence of statutory
     provision, to prescribe procedures for the
     administration of justice in the federal courts, this
     Court, on June 3, 1957, in Jencks v. United States,
     353 U.S. 657 [1957], decided that the defense in a
     federal criminal prosecution was entitled, under
     certain circumstances, to obtain, for impeachment
     purposes, statements which had been made to government
     agents by government witnesses. These statements were
     therefore to be turned over to the defense at the time
     of cross-examination if their contents related to the
     subject matter of the witness’ direct testimony, and
     if a demand had been made for specific statements
     which had been written by the witness or, if orally
     made, as recorded by agents of the Government. We
     also held that the trial judge was not to examine the
     statements to determine if they contained material
     inconsistent with the testimony of the witness before
     deciding whether he would turn them over to the
     defense. Once the statements had been shown to contain
     related material only the defense was adequately
     equipped to decide whether they had value for
     impeachment.

360 U.S. 343, 345–46 (1959).

     The decision raised concerns in Congress, and legislation

was introduced almost immediately thereafter to limit Jencks.
United States v. Muwwakkil, No. 15-0121/AR


Id. at 346–47.   Three months later, on September 2, 1957,

Congress approved the Jencks Act, which narrowed the definition

of the term “statements.”   Id. at 347.   The Supreme Court

recognized that Congress had the power to define the rules of

trial procedure and, therefore, concluded that the Jencks Act

superseded the rules the Court created in Jencks.    See id. at

347–48, 351.

          The Constitution grants Congress “plenary control
     over rights, duties, and responsibilities in the
     framework of the Military Establishment, including
     regulations, procedures, and remedies related to
     military discipline.” Weiss v. United States, 510
     U.S. 163, 177 (1994); see U.S. Const. art. I, § 8,
     cl. 14. Congress has exercised its control over
     military discipline through the Uniform Code of
     Military Justice, which “establishes an integrated
     system of investigation, trial, and appeal that is
     separate from the criminal justice proceedings
     conducted in the U.S. district courts.” United States
     v. Dowty, 48 M.J. 102, 106 (1998).

United States v. McElhaney, 54 M.J. 120, 124 (C.A.A.F. 2000).

     As part of this integrated system, Congress provided that

the President may prescribe

     [p]retrial, trial, and post-trial procedures,
     including modes of proof, for cases arising under [the
     UCMJ], . . . which shall, so far as he considers
     practicable, apply the principles of law and the rules
     of evidence generally recognized in the trial of
     criminal cases in the United States district courts,
     but which may not be contrary to or inconsistent with
     [the UCMJ].

Article 36(a), UCMJ, 10 U.S.C. § 836(a) (2012).   The President

has exercised that authority by promulgating a procedural rule



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United States v. Muwwakkil, No. 15-0121/AR


governing the production of statements of witnesses for courts-

martial.    See R.C.M. 914.   This rule is based on Fed. R. Crim.

P. 26.2, which is based on the Jencks Act.    Manual for Courts-

Martial, United States, Analysis of R.C.M. 914, at A21–64 (2012

ed.).

        Just as the Supreme Court recognized that Congress has the

primary responsibility for enacting the rules of procedure in

federal criminal trials, this Court should recognize that

Congress has explicitly granted the President the authority to

promulgate pretrial, trial, and post-trial procedural rules.

Thus, I conclude that R.C.M. 914 supersedes the Jencks Act for

trials by courts-martial.




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