                       UNITED STATES, Appellee

                                    v.

                    Ruben VARGAS, Staff Sergeant
                    U.S. Marine Corps, Appellant

                              No. 14-6009

                       Crim. App. No. 201300426

       United States Court of Appeals for the Armed Forces

                       Argued September 9, 2014

                       Decided December 8, 2014

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

                                 Counsel

For Appellant:    Lieutenant Colonel Richard A. Viczorek, USMCR
(argued).

For Appellee: Lieutenant Ann E. Dingle, JAGC, USN (argued);
Lieutenant Commander Keith B. Lofland, JAGC, USN, Major David N.
Roberts, USMC, and Major Paul M. Ervasti, USMC (on brief); Brian
K. Keller, Esq.

Military Judge:   N. K. Hudspeth


       This opinion is subject to revision before final publication.
United States v. Vargas, No. 14-6009/MC

     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 case.   The government subsequently filed an appeal

with the United States Navy-Marine Corps Court of Criminal

Appeals (NMCCA) pursuant 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 (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




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United States v. Vargas, No. 14-6009/MC

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

1
    We granted review of the following issue:

       Whether the Navy-Marine Corps Court of Criminal
       Appeals erroneously interpreted Article 62, UCMJ, to
       allow a government appeal of the military judge’s
       denial of a continuance request as well as the
       military judge’s order resting the government’s case.




                                  3
United States v. Vargas, No. 14-6009/MC

                         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.”

     August 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


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United States v. Vargas, No. 14-6009/MC

                          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-

2
  Trial counsel had compiled the photo exhibits and the 911 call
into a video he planned to play to the members during his
opening statement.

                                 5
United States v. Vargas, No. 14-6009/MC

     chief 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 court regarding your
     pretrial submission. Specifically, Appellate Exhibit
     XVI 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-chief.   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

government moved for a continuance until the next morning when


                                 6
United States v. Vargas, No. 14-6009/MC

its witnesses would be available.      The defense objected to the

delay.

     The military judge asked trial counsel to identify the

three unavailable witnesses and the reasons for their

unavailability.   Trial counsel explained that the special agent

who had initially been identified as a witness had deployed the

previous week and was no longer available.      However, that agent

had been replaced with Special Agent Fogle who, although he had

not been formally identified to the court or defense counsel,

was currently en route from Afghanistan.      The second witness was

the treating physician, a government employee, who had patient

conflicts that day.   The final witness was the on-base 911

operator, also a government employee, who was unavailable

because she worked late and slept during the day.

     The military judge asked whether the government had served

process on any of the witnesses.       Trial counsel responded that

it had not.   The military judge then denied the government’s

motion for a continuance, noting that:

     Reasons for a continuance include insufficient
     opportunity to prepare for trial and, unavailability
     of an essential witness, the interest of government in
     the order of trial and related cases, and illness of
     the accused, counsel, military judge, or other member.

     In this case, there’s been plenty of opportunity for
     the government to prepare for trial. The accused was
     arraigned in March of this year. We are now in
     October. The court has granted at least six
     continuances in this case involving a very simple



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United States v. Vargas, No. 14-6009/MC

     Specification of assault; albeit, there was two
     Specifications originally on the charge sheet.

     The court finds there is sufficient opportunity for
     the government to prepare for trial. With respect to
     availability of an essential witness, the court does
     not rule whether these witnesses are essential, but
     does rule they are available under the rules of, uh,
     this R.C.M. and 804 -- uh, and MRE 804.

     This case is not -- delay of this case is not related
     to a trial of any other related cases and there is no
     illness of the accused, counsel, military judge, or
     member.

     The court finds that it is not reasonable cause to
     delay this trial; albeit, for only one day.
     Considering that trial was ordered -- these dates that
     we’re finally here to today, despite all the
     continuances were ordered in August of this year. As
     well as the fact that the government with the consent
     of the defense tried to delay the trial again on the
     16th of October, and the court denied the delay making
     it clear to counsel of both parties, this trial is
     going to proceed, and it will not be delayed any
     further.

     The court -- the government has chosen not to compel
     the production of their own witnesses and to put those
     witnesses [sic] schedules ahead of the courts [sic]
     schedule, which also does not amount to just cause for
     a delay in this court-martial.

     Your motion for a continuance is denied.

The military judge then asked the trial counsel:

     MJ:   Do you intend to rest or do you have any other
           evidence?

     TC:   We do not intend to rest, ma’am.

     MJ:   Okay, So you have more evidence?

     TC:   Yes, ma’am, but it will be provided by these
           witnesses.




                                 8
United States v. Vargas, No. 14-6009/MC

     MJ:   Okay. Well I’m going to bring in the members and
           call on the government to present evidence or to
           rest.

     When the court-martial was reconvened, trial counsel moved

the military judge to reconsider her ruling denying the

continuance.   That motion was denied.   After noting that the

decision was not based on the court’s schedule but, rather, on

the rights of the accused, the military judge provided the

following explanation:

     The government is ready for trial or they’re not ready
     for trial. The government has demonstrated through
     the course of today that they were not, in fact,
     prepared for trial as they should be. With 11
     Appellate Exhibits not provided to the court reporter
     before we came on the record at 0900.

     The charge that the government indicated to the court
     yesterday that was going to be withdrawn was not
     withdrawn, prior to coming on the record today. And,
     the fact that the government’s opening video, which
     they clearly spent some time on, was not provided to
     the defense before today for their review among other
     things to show a lack of preparation in this case.

     The court, accordingly, doesn’t give any deference to
     the fact that you’re not prepared, and you took the
     witnesses [sic] schedules as more important than the
     schedule of this court, and the process of the
     administration of justice.

     So your motion is denied.

     The government then informed the court that it intended to

file an appeal under Article 62, UCMJ.    The military judge

stated she was not obliged to continue the case while the

government pursued that action and the court was reconvened.

The following exchange then occurred:


                                 9
United States v. Vargas, No. 14-6009/MC

     MJ:     Government, do you have any additional evidence
             to present?

     TC:     Ma’am, we do not have any additional evidence at
             this time -- um, we do not have any additional
             evidence at this time.

     MJ:     Okay.   Are you resting then?

     TC:     No, ma’am.

     MJ:     You may present any additional evidence or you
             may rest.

     TC:     Ma’am, again the government intends to offer
             additional evidence. However, we do not have
             that on us at this time. We do not intend to
             rest our case at this time, ma’am.

     MJ:     Okay. Your case is rested if you have no
             additional evidence to present at this time. I
             have already denied any continuance in this case.

     The defense then rested its case without presenting any

evidence.    After the parties worked on findings instructions,

there was a further discussion of R.C.M. 908(b) and the effect

of an Article 62 appeal on the underlying trial.3    The court-

martial reconvened and trial counsel reiterated the government’s

plan to file an Article 62 appeal from the military judge’s

denial of the government’s motion for a continuance.    The

military judge then stayed the proceedings pending the Article

62 appeal.

     Later that evening, trial counsel advised the military

judge and defense counsel that the government did not intend to

3
  Rule for Courts-Martial (R.C.M.) 908(b)(4) provides that upon
written notice of a government appeal, the ruling or order that
is the subject of the appeal is automatically stayed.

                                   10
United States v. Vargas, No. 14-6009/MC

file an Article 62 appeal from the denial of its request for a

continuance.   The government, instead, requested an Article

39(a) hearing for the next morning to ask the military judge to

reconsider her ruling that the government had rested its case.

     The court-martial was reconvened at 11:22 a.m. the

following day.   The military judge granted the government’s

motion to reconsider her ruling that rested the government’s

case-in-chief.   Trial counsel proffered what its three remaining

witnesses would testify to if they were allowed to testify.4    The

military judge then affirmed her earlier decision in a

comprehensive ruling which summarized the proceedings which are

at issue in this appeal.

     On appeal, the NMCCA determined it had jurisdiction over

this matter under Article 62, UCMJ, and held the military

judge’s rulings were a clear abuse of discretion.   Vargas, No.

NMCCA 201300426, slip op. at 10, 12.




4
  Trial counsel also informed the court that Special Agent Fogle
had arrived from Afghanistan. However, that morning the
government discovered that Special Agent Fogle did not possess
the information that the government had believed he possessed.
The government further informed the military judge and the
defense that they had found yet another witness, not previously
identified to the court or the defense, who did possess the
information they wished to introduce.

                                11
United States v. Vargas, No. 14-6009/MC

                             Discussion

     We review issues of jurisdiction and statutory

interpretation de novo.   United States v. Daly, 69 M.J. 485, 486

(C.A.A.F. 2011); United States v. Lopez de Victoria, 66 M.J. 67,

73 (C.A.A.F. 2008).

     Vargas argues that United States v. Browers, 20 M.J. 356

(C.M.A. 1986), which held that a denial of a government request

for a continuance under Article 62 is not an appealable ruling,

is directly on point and dictates a reversal of the NMCCA.    The

government responds that while a facial review of Browers would

indicate that it controls the outcome of this case, Browers was

“deconstructed” in United States v. Wuterich, 67 M.J. 63

(C.A.A.F. 2008), and the proper test to determine whether a

ruling “excludes evidence” under Article 62 is whether it

“limit[s] the pool of potential evidence that would be

admissible at court-martial.”   Brief of Appellee at 11, United

States v. Vargas, No. 14-6009 (C.A.A.F. June 9, 2014) (citation

and internal quotation marks omitted).    The government goes on

to argue that the military judge’s rulings denied the government

the opportunity to present testimony and thereby limited the

potential pool of evidence the prosecution could present.

     The military judge in this case made two “rulings” -- one

denying a government-requested continuance and one resting the

government’s case.    While the government notified the military



                                 12
United States v. Vargas, No. 14-6009/MC

judge that it would not appeal the denial of the continuance and

would only proceed with the ruling “resting” the government’s

case, in fact, the government appealed both rulings to the

NMCCA.5   As a result, the NMCCA reviewed both rulings and found

both to be an abuse of discretion.    Vargas, No. NMCCA 201300426,

slip op. at 12.    As recognized by the parties, the rulings are

closely related.   Once the military judge denied the

continuance, the normal course was for the trial to continue.

At that point, however, since the government informed the

military judge it had no further evidence or witnesses to

introduce, the government’s own inaction essentially “rested”

its case and the military judge’s “ruling” was nothing more than

a recognition of that fact.

     We have previously held that “[p]rosecution appeals are

disfavored and are permitted only upon specific statutory

authorization.”    United States v. Bradford, 68 M.J. 371, 373

(C.A.A.F. 2010) (citing Wuterich, 67 M.J. at 70); see also

5
  The government’s Article 62, UCMJ, appeal to the NMCCA
contained the following issue:

     Military judges are required by Article 40, UCMJ, and
     R.C.M. 906(B)(1) to grant continuances to any party
     for such time, and as often, as appears to be just.
     Did the military judge abuse her discretion when she
     denied the overnight continuance requested by trial
     counsel, and directed the government to rest its case
     despite having three more witnesses to present?

Interlocutory Appeal by the United States, at 2, United
States v. Vargas, No. NMCCA 201300426 (N-M. Ct. Crim. App.
Dec. 3, 2013).

                                 13
United States v. Vargas, No. 14-6009/MC

United States v. Wilson, 420 U.S. 332, 336 (1975) (“This Court

early held that the Government could not take an appeal in a

criminal case without express statutory authority.”) (citation

omitted); Will v. United States, 389 U.S. 90, 96 (1967) (“All

our jurisprudence is strongly colored by the notion that

appellate review should be postponed, except in certain narrowly

defined circumstances, until after final judgment has been

rendered by the trial court.     This general policy against

piecemeal appeals takes on added weight in criminal cases. . . .

Moreover, in the federal jurisprudence, at least, appeals by the

Government in criminal cases are something unusual, exceptional,

not favored . . . .”) (internal quotations and citations

omitted).   Accordingly, while Article 62, UCMJ, authorizes

interlocutory government appeals, it strictly proscribes the

circumstances under which the government may do so:

     Article 62.      Appeal by the United States

     (a)(1) In a trial by court-martial in which a military
     judge presides and in which a punitive discharge may
     be adjudged, the United States may appeal the
     following (other than an order or ruling that is, or
     that amounts to, a finding of not guilty with respect
     to the charge or specification):

            . . . .

            (B) An order or ruling which excludes evidence
            that is substantial proof of a fact material in
            the proceeding.

     We dealt with a strikingly similar situation in Browers,

where we considered whether the “denial of a continuance


                                   14
United States v. Vargas, No. 14-6009/MC

requested so that the Government may produce a material witness

constitutes the exclusion of evidence.”     20 M.J. at 360.   In

holding that it did not, we noted that “[m]ost lawyers think of

exclusion of evidence as a ruling made at or before trial that

certain testimony, documentary evidence, or real evidence is

inadmissible. . . . and we see no reason to believe that

Congress had any different intention in drafting Article

62(a)(1).”    Id.   We also suspected then, as we do now, that

“Congress believed that the scheduling of trials should be left

primarily to trial judges and reliance should be placed on their

judgment.”    Id.

      In Wuterich, we again looked at whether a military judge’s

ruling was an exclusion of evidence under Article 62, UCMJ.        67

M.J. at 64.   In that case, we held that a ruling quashing a

subpoena seeking discovery constituted an exclusion of evidence.

Id.   The court relied on a test set forth in United States v.

Watson, 386 F.3d 304 (1st Cir. 2004), which held that “the

pertinent inquiry is not whether the court has issued a ruling

on admissibility, but instead whether the ruling at issue in

substance or in form has limited the pool of potential evidence

that would be admissible.”    Wuterich, 67 M.J. at 73 (internal

citations and quotations omitted).     Simply put, the question is




                                  15
United States v. Vargas, No. 14-6009/MC

one of incidental versus direct effect.   Id.6   Both parties agree

that this is the proper test to apply when determining whether a

ruling “excludes evidence” under Article 62, UCMJ.

     Although Watson involved an interpretation of 18 U.S.C.

§ 3731, the federal counterpart to Article 62, UCMJ, it

addressed the same issue as the one before this court today --

whether the denial of a continuance constituted an exclusion of

evidence.   The court in Watson held that the orders denying the

continuances did not limit the pool of potential evidence that

would be admissible but, rather, were case management orders

entered for the purpose of preventing delay.7    Watson, 386 F.3d

at 313.

     In reviewing the military judge’s orders, it is clear that

neither ruling had the direct effect of “excluding evidence” as

that term is used in Article 62, UCMJ.    The military judge did

not make any ruling which held that the government’s evidence

was inadmissible nor did she indicate that she would not allow

the introduction of properly admissible evidence.    In Wuterich

we recognized that:

6
  Though decided prior to Wuterich, the Browers holding is not
inconsistent with Wuterich and Wuterich did not modify or
overrule Browers.
7
  The United States Court of Appeals for the First Circuit
arrived at this conclusion even though § 3731 contains a
provision mandating a liberal construction of the statute.
Watson, 386 F.3d at 309. In Wuterich, we specifically rejected
a similar liberal construction for Article 62, UCMJ, appeals.
67 M.J. at 72.



                                16
United States v. Vargas, No. 14-6009/MC

     [a]lthough the orders appealed from will certainly
     hamper (and may effectively prevent) the obtaining and
     subsequent use of [the witness’s] testimony, those
     orders did not, either in substance or in form, limit
     the pool of potential evidence that would be
     admissible at the forthcoming trial. . . . That the
     orders had an incidental effect on the government’s
     evidence-gathering is too remote a consequence to
     support appellate jurisdiction under the second
     paragraph of section 3731 [allowing the government to
     appeal an order suppressing or excluding evidence].

Wuterich, 67 M.J. at 72-73 (quoting Watson, 386 F.3d at 313).

     It was the government’s own actions prior to and during

trial that led to the military judge’s denial of the

government’s motions.   Had the government subpoenaed its

witnesses and had them ready to testify at trial, there is

nothing in the record which indicates that the witnesses would

not have been allowed to testify or that its exhibits would not

have been admitted.   Instead, the record reflects the military

judge’s ongoing concern that, despite at least six continuances,

the government was still not properly prepared for this trial.8

This concern was justified given the government’s remarkably

casual approach to witness production, which included several

requests for continuances based on witness convenience and, when

the government’s last request for a continuance was denied on

October 16, failing to ensure the appearance of those witnesses

when the trial commenced on October 22.   Therefore, any


8
  There was a total of eight requests for continuances. Two were
to continue Article 39(a), UCMJ, sessions, and six were to
continue the trial date.

                                17
United States v. Vargas, No. 14-6009/MC

limitation on the government’s ability to present evidence was

self-inflicted.    The orders in this case did not, either in

substance or in form, limit the pool of potential evidence that

could be admissible at trial.   Wuterich, 67 M.J. at 73.

     Further, a judge is ultimately responsible for the control

of his or her court and the trial proceedings.   See Taylor v.

Kentucky, 436 U.S. 478, 489 n.17 (1978) (“‘The trial judge has

the responsibility for safeguarding both the rights of the

accused and the interests of the public in the administration of

criminal justice.’” (quoting ABA Project on Standards for

Criminal Justice, Function of the Trial Judge § 1.1(a)

(App.Draft 1972))); United States v. Baca, 27 M.J. 110, 115

(C.M.A. 1988) (finding a “military judge has considerable

responsibility for the proper administration of military justice

and . . . at all appropriate times and in an appropriate manner

. . . may promote justice at the trial”) (internal quotations

and citations omitted); see also Article 40, UCMJ, 10 U.S.C.

§ 840 (2012); R.C.M. 801(a), 804(e), 906(b)(1); Military Rule of

Evidence 611(a).   Proper case management during a trial,

necessary for the protection of an accused’s due process rights

and the effective administration of justice, is encompassed

within that responsibility.9


9
  The dissent’s view would eviscerate the authority of a military
judge to control the trial proceedings. When a motion for
continuance is denied and the party requesting the continuance


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United States v. Vargas, No. 14-6009/MC

     Therefore, in addition to not excluding evidence as that

term is used in Article 62, UCMJ, the rulings were in

furtherance of the military judge’s well-established

responsibility to manage her cases.       Indeed, by the time she

denied the government’s request for a continuance at trial, the

military judge had already granted at least six.      Notably, two

of the granted continuances occurred after the military judge

had warned the parties to be prepared for trial.      While it is

true that the last continuance requested was for only one day,

the well-articulated record allows us to conclude that the

military judge’s rulings were ones of case management intended

to protect both the rights of the accused and the effective

administration of justice.10

                               Decision

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is reversed and the orders of the military

judge denying the government’s continuance request and resting

the government’s case are reinstated.      As R.C.M. 908 was

inapplicable, it was of no effect and the military judge was


has no further evidence to present to the court, the dissent
would allow that party to effectively delay the case (in essence
granting the motion for continuance) until such time that party
is ready to proceed. Such a rule fails to recognize the
authority of a military judge to exercise effective case
management and control of the trial proceedings.
10
   We note that these cases are highly fact-determinative and the
denial of a government request for continuance under other
circumstances may well lead to a different result.

                                  19
United States v. Vargas, No. 14-6009/MC

entitled to proceed with the trial.   See United States v.

Browers, 20 M.J. 356, 360 (C.A.A.F. 1985).




                               20
United States v. Vargas, No. 14-6009/MC


     BAKER, Chief Judge (dissenting):

     The jurisdictional question presented in this case is

whether an order by a military judge curtailing the Government’s

case-in-chief, over objection, is subject to review under

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

§ 862 (2012).   Remarkably, the majority concludes that this

Court lacks jurisdiction to hear such an interlocutory issue.

It reaches this conclusion through reference to a number of

points that have nothing to do with the jurisdictional question

presented, namely,

  “Congress believed that the scheduling of trials should be
  left primarily to trial judges and reliance should be placed
  on their judgment.” United States v. Vargas, __ M.J. __ (15)
  (C.A.A.F. 2014) (citation and internal quotation marks
  omitted).

  “Any limitation on the government’s ability to present
  evidence was self-inflicted.” Id. at __ (17-18).

  “Proper case management during a trial, necessary for the
  protection of an accused’s due process rights and the
  effective administration of justice, is encompassed within
  that responsibility.” Id. at __ (18).

  “Once the military judge denied the continuance, the normal
  course was for the trial to continue. At that point, however,
  since the government informed the military judge it had no
  further evidence or witnesses to introduce, the government’s
  own inaction essentially ‘rested’ its case and the military
  judge’s ‘ruling’ was nothing more than a recognition of that
  fact.” Id. at __ (13).

These factors are relevant to whether or not the military judge

may have abused her discretion, but they do not address whether

there is jurisdiction under Article 62, UCMJ, to consider the
United States v. Vargas, No. 14-6009/MC


military judge’s order resting the Government’s case-in-chief.

Moreover, the majority conflates the military judge’s denial of

a continuance with the military judge’s order resting the

Government’s case, and thus erroneously relies on United States

v. Browers, 20 M.J. 356 (C.M.A. 1985), a case involving the

denial of a continuance.   Browers is not “strikingly similar” to

this case, because it only addressed the military judge’s denial

of a continuance, a matter which all judges agree generally

presents a case management issue.1   Vargas, __ M.J. at __ (14).

     To repeat, the issue in this case is the military judge’s

denial of the Government’s motion to reconsider the military

judge’s order resting its case-in-chief.

     The sum total of the majority’s analysis on this critical

jurisdictional question is that the Government somehow rested

its own case when the military judge denied its motion for a

continuance and the Government was not prepared to proceed.

However, the Government objected and affirmatively stated that

1
  I agree with the majority’s premise that a military judge
should have the authority “to exercise effective case management
and control of the trial proceedings.” Vargas, __ M.J. at __
(18 n.9). What I do not agree with is the majority’s conclusion
that this Court does not have jurisdiction to review a military
judge’s decision to sua sponte rest a party’s case-in-chief,
over the party’s objection, while evidence is still pending.
(In the present case, the witnesses were available to testify at
the time of the military judge’s ruling.) Moreover, I do not
share the majority’s view that a military judge’s case
management is beyond review as a matter of jurisdiction. Thus,
the only thing being eviscerated here, is this Court’s
jurisdiction to review the work of military judges.
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United States v. Vargas, No. 14-6009/MC


it was not resting its case.    Most importantly, the military

judge reopened the matter the following day after realizing on

the first day that R.C.M. 908(b)(4) precluded any further

sessions of the court-martial in light of trial counsel’s

declaration that he intended to appeal.      This effectively mooted

the continuance issue since the proceedings would now be forced

into the following day when, as it turns out, all the Government

witnesses in issue would be in attendance.      In short, the

Government did not rest its case.      Moreover, even if it could be

argued that it had done so on day one, on day two the military

judge reopened the matter and denied the motion to reconsider

the ruling resting the Government’s case.      And it is that order

for which there is jurisdiction to appeal under Article 62,

UCMJ.

        The jurisdictional point is illustrated with reference to

the following hypothetical:    What if a military judge orders the

Government to rest before presenting any of its case-in-chief?

Would this Court really conclude that there is no jurisdiction

to hear an appeal in such a case?      Would this Court really

conclude that such an order did not “exclude[] evidence that is

substantial proof of a fact material in the proceeding[?]”

Article 62(a)(1)(B), UCMJ.    I do not think so, and neither did

the military judge in this case.       In fact she seems to have

understood that she was excluding evidence for the purposes of

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United States v. Vargas, No. 14-6009/MC


Article 62, UCMJ, when denying the Government’s motion for

reconsideration, she stated:   “[a]bsent appellate intervention,

the government will not be allowed an opportunity to present

additional evidence in their case-in-chief.”

     The CCA was correct on the jurisdictional issue.

Therefore, finding jurisdiction, this Court should ask one

question:    did the military judge abuse her discretion when she

rested the Government’s case after it sought on the afternoon of

day one an adjournment to the following day to accommodate the

schedules of three witnesses in a case that was already

scheduled for three days?   At least two of these witnesses

offered substantial proof of a material fact, the 911 operator

and the emergency room doctor -- one who had taken the initial

emergency call and the other who had administered medical

treatment.   One might argue that the testimony of the NCIS agent

recalled from Afghanistan would not have provided evidence that

was “substantial proof of a fact material to the proceeding[s].”

However, such assessments in a criminal case are best left to

the counsel trying the case, especially since Article 51(c)(4),

UCMJ, 10 U.S.C. § 851(c)(4) (2012), expressly burdens the

Government with proving the guilt of the accused beyond a

reasonable doubt.

     In considering whether the military judge abused her

discretion in overruling the Government’s objection to her order

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United States v. Vargas, No. 14-6009/MC


resting the Government’s case, the factors the majority cites

are all relevant.   However, it is also relevant that the

military judge’s order resting the Government’s case-in-chief

occurred the day after the Government’s request for a

continuance was denied.   Thus, the trial continued until the

next day at which point the military judge again rested the

Government’s case even though the witnesses in question were

then available.   This, to me, is the clearest factor that the

military judge abused her discretion in this case.

     As a result, I respectfully dissent.




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