              UNITED STATES NAVY-MARINE CORPS
                 COURT OF CRIMINAL APPEALS
                      WASHINGTON, D.C.
                                 Before
              F.D. MITCHELL, J.A. FISCHER, M.K. JAMISON
                        Appellate Military Judges

                      UNITED STATES OF AMERICA

                                     v.

                         RUBEN VARGAS
              STAFF SERGEANT (E-6), U.S. MARINE CORPS

                            NMCCA 201300426
     Review Pursuant to Article 62(b), Uniform Code of Military Justice,
                             10 U.S.C. § 862(b)

Military Judge: LtCol N.K. Hudspeth, USMC.
Convening Authority: Commanding Officer, Headquarters and
Support Battalion, Marine Corps Installations East, Marine
Corps Base, Camp Lejeune, NC.
For Appellant: Maj David N. Roberts, USMC.
For Appellee: Maj Richard A. Viczorek, USMCR.

                           28 February 2014

     ---------------------------------------------------
                     OPINION OF THE COURT
     ---------------------------------------------------

THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.

MITCHELL, Senior Judge:

     In the case sub judice, the Government appears in the role
of the appellant pursuant to Article 62, Uniform Code of
Military Justice, 10 U.S.C. § 862, which authorizes Government
appeals in certain circumstances. The Government requests this
court vacate the military judge’s decision to deny the
Government’s request for an overnight recess and then sua sponte
resting the Government’s case over its objection.
                        I. Background and History

     The appellee’s case was referred for trial by special
court-martial on 4 February 2013. He was charged with one
specification of assault consummated by a battery and one
specification of endangering the mental health, physical health,
safety, and welfare of minor children1 in violation of Articles
128 and 134, UCMJ, 10 U.S.C. §§ 928 and 934. After arraignment
on 25 February 2013, multiple continuances and preliminary court
proceedings pursuant to Article 39(a), UCMJ, occurred from
February to July 2013, and on 12 July 2013 the appellee elected
to be tried by members with enlisted representation. Record at
8, 50.
     The appellee’s trial commenced on 22 October 2013 and,
anticipating that the trial would last three days, was docketed
accordingly. The day before the appellee’s trial commenced, the
trial counsel informed the civilian defense counsel that he
intended to call four witnesses on the first day of trial and
his final three witnesses the next day. The civilian defense
counsel did not object to the manner in which the Government
proposed to present its case-in-chief.
     On the first day of trial, after empanelment of the
members, the Government called its first four witnesses: a
percipient witness and the three military police officers who
responded to the 911 call. Due to scheduling conflicts with the
911 operator and the physician who treated the victim of the
alleged assault, and the fact that the Naval Criminal
Investigative Service (NCIS) special agent who took the
appellee’s statement was deployed and traveling back to the
United States from Afghanistan, the trial counsel scheduled
those witnesses to be called the next day.
     On day one of the appellee’s trial, empanelment of the
members was completed by noon and the testimony of the
Government’s first four witnesses concluded at approximately
1400. After a brief recess, the trial counsel asked the
military judge to “continue the trial and place (sic) in recess
until tomorrow morning[,]” explaining that the last of the
Government’s witnesses would not be available until then. Id.
at 184. Civilian defense counsel opposed the motion. Id. at
186-87. The military judge denied the motion and asked the
trial counsel whether he had any other evidence to present or
intended to rest his case. Id. at 188. Trial counsel informed
the military judge that he did not intend to rest his case at
1
  Charge II and its sole specification were withdrawn by the trial counsel
acting on behalf of the convening authority on 22 October 2013.

                                      2
that time. Id. After a brief recess, in an Article 39(a)
session, the trial counsel asked the military judge to
reconsider the Government’s request to recess trial until
morning. Id. at 189-90. The military judge again denied the
motion. Id. at 190-91. Afterwards, the following exchange
occurred between the military judge and the counsel:
    MJ: So your motion is denied.     Do you have anything
    else?

    TC: Yes, ma’am. Given that ruling by the military
    judge, at this time, the government intends to offer –
    to exercise its right to an interlocutory appeal under
    Article 62 of the Uniform Code of Military Justice.
    The government intends to provide 72-hour written
    notice to the military judge upon recess from this
    court.
    MJ: You may do so. But, I am not    obliged to continue
    the case while you do that, and I   am declining to
    exercise that continuance so that   you may do that.
    You may do it simultaneously with   this case, but we
    are going to proceed.
Id. at 191.
     After the military judge had the members brought back into
the courtroom, the following colloquy transpired between the
military judge and trial counsel:
    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.


                                3
     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. With
     that, Defense?

     CC: Defense rests.

Id. at 192.

     After the defense rested its case, the civilian defense
counsel requested an Article 39(a) session and made a motion
under RULE FOR COURTS-MARTIAL 917, MANUAL FOR COURTS-MARTIAL, UNITED STATES
(2012 ed.), averring that the evidence presented by the
Government was insufficient to sustain a conviction. Id. at
193. After hearing argument from both sides, the military judge
denied the motion. Id. at 194. At the conclusion of the
Article 39(a) session, the military judge brought the members
back into the courtroom and excused them from the courtroom
until 1600. Id. When the court was again called to order, the
military judge summarized an intervening R.C.M. 802 conference
at which the trial counsel cited the provisions of R.C.M.
908(b)(1). The military judge then stated that the court should
have been delayed until the interlocutory appeal could be
decided by the appellate court.2 Id. at 201-02. Prior to the
military judge staying the proceeding, the trial counsel had the
following conversation with the military judge:

     TC: Yes, ma’am, I would just – the Government would
     seek a point of clarification as to where we are in
     the proceedings. I know that the government raised
     the issue and intends to provide notice.

     MJ: I’ve denied your continuance request.

     TC: Yes, ma’am.

     MJ: Um –

     TC: We were still in our case in chief, I believe
     ma’am –
     MJ: Yes.
2
  R.C.M. 908(b)(1) states: Delay. After an order or ruling which may   be
subject to an appeal by the United States, the court-martial may not   proceed,
except as to matters unaffected by the ruling or order, if the trial   counsel
requests a delay to determine whether to file notice of appeal under   this
rule. Trial counsel is entitled to no more than 72 hours under this
subsection.


                                      4
      TC: And it is the court’s position that we were still
      in the government’s case in chief.

      MJ: Right.    You can put that in your appeal.

      TC: Yes, ma’am.

      MJ: Uh, my, uh, and the court can tell me to un-ring
      the bell. But, at the point of this trial, we are at
      findings instructions.

Id. at 204.
     The military judge then had the members brought back into
the courtroom, explained to them that the court proceeding was
going to be delayed, and excused them until further notice. Id.
at 205-06. At approximately 1800 that evening, the trial
counsel informed the military judge and the civilian defense
counsel that the Government would no longer be seeking an
interlocutory appeal of the military judge’s denial of the
motion for a recess. He further requested an Article 39(a)
session for the next morning.

     The following morning, 23 October 2013, the military judge
called an Article 39(a) session in response to the Government’s
written motion to reconsider her decision to rest the
Government’s case. Appellate Exhibit XLIII. During this
Article 39(a) session, the trial counsel proffered the testimony
of the Government’s three remaining witnesses and the relevance
to its case. The defense stipulated to the proffer of
testimony.3 Record at 214. The military judge made findings of
fact and reaffirmed her earlier decision denying the
Government’s request to recess the trial.4 The Government gave
the required notice and timely filed this appeal.



                              II. The Issues

3
  The stipulation of proffered testimony was limited to the motion the
Government filed asking the military judge to reconsider her earlier decision
to rest the Government’s case.
4
  The military judge stated her findings of fact on the record at pages 217-
23. We note that unless clearly erroneous, we are bound by the military
judge’s findings of fact. In the case at bar, the Government does not
dispute them; we find no clear error in the military judge’s findings of
fact; and, we therefore adopt them as our own.

                                      5
     We are confronted with two issues, which we will address in
the following order:

    1. Are the trial judge's actions appealable under
    Article 62, UCMJ, and R.C.M. 908?

    2. If so, did the trial judge abuse her discretion in
    denying the recess and resting the Government’s case?

We answer both questions in the affirmative.

                        III. Jurisdiction

     We necessarily begin with the question as to whether this
court has jurisdiction to review the Government’s appeal under
Article 62, UCMJ. Limited in scope, Article 62 provides in part
that the United States may appeal an order or ruling of the
military judge that terminates the proceedings with respect to a
charge or specification, or which excludes evidence that is
substantial proof of a fact material in the proceeding. This
provision ensures that the Government has the same opportunity
to appeal adverse trial rulings that the prosecution has in
federal civilian criminal proceedings. United States v. Lopez
de Victoria, 66 M.J. 67, 71 (C.A.A.F. 2008).

     In the case sub judice, the military judge did not
terminate the proceedings; we therefore focus our analysis as to
whether the military judge’s ruling excluded evidence that is
substantial proof of a fact material in the proceeding.

A. Analysis

     In military jurisprudence, the commonly-held understanding
of the term “exclusion of evidence” usually involves a situation
where the military judge has made a ruling at trial that certain
testimony, documentary evidence, or real evidence is
inadmissible. The language of Article 62 itself suggests that
Congress intended the term “excludes” to be narrowly construed
and applied only to those rulings by the military judge that
explicitly exclude or suppress evidence. The legislative
history of Article 62, however, does not reflect that Congress
intended the word “excludes” to be limited to rulings on
admissibility. Moreover, Congress intended that Article 62
parallel, to the extent practicable, 18 U.S.C. § 3731 (1984),
which permits appeals by the United States in federal civilian




                                6
prosecutions.5    See United States v. Brooks, 42 M.J. 484, 486
(C.A.A.F. 1995)   (“Article 62 was intended by Congress to be
interpreted and   applied in the same manner as the Criminal
Appeals Act, 18   USC § 3731” (citations omitted)).

     While Congress intended 18 U.S.C. § 3731 and Article 62 to
be interpreted and applied in the same manner, the former
provision mandates a more liberal application. It specifically
states that “[t]he provisions of this section shall be liberally
construed to effectuate its purposes”; Article 62 contains no
such language or mandate. Due to this distinction in language,
the Court of Appeals for the Armed Forces (CAAF) has indicated
that it would be inappropriate to apply the liberal construction
mandate of 18 U.S.C. § 3731 when interpreting Article 62, and
further charged that cases interpreting the parallel provisions
of that code section should be used as guidance and only to the
extent consistent with an interpretation of Article 62 that is
not dependent upon the liberal construction admonition. United
States v. Wuterich 67 M.J. 63, 71 (C.A.A.F. 2008). Because the
legislative history makes clear that Congress intended for
Article 62 appeals to be conducted “‘under procedures similar to
[those governing] an appeal by the United States in a federal
civilian prosecution,’” military courts have looked to federal
precedent for guidance on this question. United States v.
Browers, 20 M.J. 356, 359 (C.M.A. 1985) (citation and footnote
omitted).

     Article III courts have construed the scope of 18 U.S.C.
§ 3731 by utilizing an “effects” test. This test focuses on the
effect of a court order, rather than its facial categorization
or its title. United States v. Margiotta, 662 F.2d 131 (2d Cir.
1981); United States v. Humphries, 636 F.2d 1172, 1175 (9th Cir.
1980). The effects test is not all-inclusive and is limited to
those cases in which the military judge’s ruling has a “direct
rather than incidental effect on the exclusion of evidence.”
Wuterich, 67 M.J. at 75 (citation omitted). The CAAF in
Wuterich established that “the pertinent inquiry is not whether
the court has issued a ruling on admissibility, but instead

5
  18 U.S.C.S. § 3731. Appeal by United States. “In a criminal case an appeal
by the United States shall lie to a court of appeals from a decision,
judgment, or order of a district court dismissing an indictment or
information or granting a new trial after verdict or judgment . . . from a
decision or order of a district court suppressing or excluding evidence or
requiring the return of seized property in a criminal proceeding . . . from a
decision or order, entered by a district court of the United States granting
the release of a person charged with or convicted of an offense . . . . The
provisions of this section shall be liberally construed to effectuate its
purposes.”

                                      7
whether the ruling at issue ‘in substance or in form’ has
limited the ‘pool of potential evidence that would be
admissible.’” Id. at 73 (quoting United States v. Watson, 386
F.3d 304, 313 (1st Cir. 2004)). That is precisely the
Government’s contention in the case at bar.

     The appellee, by contrast, avers that the military judge
did not rule that the three witnesses could not testify at trial
and that she therefore did not deprive the Government of that
opportunity. Instead, the appellee argues that the military
judge’s ruling had an “incidental” rather than direct impact on
the Government’s case and is therefore not subject to appeal
under Article 62. Appellee’s Brief of 23 Dec 2013 at 15.
Finally, the appellee contends that the witnesses “were not
necessary for any elements of the alleged offense,” as the four
witnesses called by the Government on the first day of trial
“provided enough evidence to overcome the defense motion for a
finding of not guilty” in accordance with R.C.M. 917. Id at 16.
We find both of the appellee’s arguments unpersuasive.
     At first glance, the Browers case cited above appears to
weaken the Government’s position as that case involved a
continuance request submitted by Government counsel due to
witness unavailability, which was denied by the trial judge. On
appeal, the Court of Military Appeals held that the denial by
the military judge did not meet the jurisdictional requirements
of Article 62.6 That decision, however, did not establish a
bright-line rule that a continuance request denied by a trial
judge per se lacks jurisdiction under Article 62. In Browers,
the Government was seeking a 16-day continuance to find two key
witnesses, one who was on convalescent leave and the other who
was absent without leave (AWOL). The witnesses’ appearance at
the court-martial was speculative at best (assuming the
Government could locate the AWOL soldier), and the decision by
the military judge not to continue the matter was a “case
management” decision determined to be well-within his authority.7
We also note that in Browers the Government requested a

6
  In Browers, the United States Court of Military Appeals reversed the United
States Army Court of Military Review and found that the Government was not
entitled to appeal the denial of a continuance request by the lower court.
7
  Similarly, in Watson (cited in Browers), the United States Court of Appeals
for the First Circuit held that it lacked jurisdiction, under 18 U.S.C.
§ 3731, to hear the interlocutory appeal of a case where the Government’s
witness was deported by the United States Immigration and Naturalization
Service and the trial judge, in denying the motion for a continuance,
indicated that continuing the case until the witness could be deposed could
result in an inordinate delay.

                                      8
continuance prior to presentation of any evidence, a
signification distinction from the instant case. Browers, 20
M.J. at 356-60.

     Another critical distinction between Browers and the case
at bar is that the Browers decision to deny the continuance was
an issue of scheduling and did not have the direct result of
excluding evidence. Browers, 20 M.J. at 356-60. Such was not
the case here. By denying the trial counsel’s motion for a
recess until the next morning and then sua sponte resting the
Government’s case, the military judge effectively denied the
Government the opportunity to present critical testimony that is
substantial proof of a fact material in the proceeding.
Contrary to the intimation of the military judge, this wasn’t a
case of the Government seeking a recess because it was not ready
for trial. Quite to the contrary, the record reflects that the
trial was well in progress, moving along at a faster pace than
anticipated by the trial counsel. The brief recess requested by
the trial counsel from 1400 until the following morning to
accommodate nonlocal and civilian witnesses would have resulted
in little or no impact on the trial schedule as this court-
martial was already docketed for three days. In fact, the trial
was seemingly progressing ahead of schedule. The relevance and
importance of these witnesses to the prosecution’s case was
readily apparent from the trial counsel’s proffer. Finally, we
note that unlike in Browers, in the case at bar the members had
been empaneled and evidence had been presented, thus making
withdrawal of the charges and re-referral impermissible unless
the withdrawal was “‘necessitated by urgent and unforeseen
military circumstances.’” See United States v. Easton, 71 M.J.
168, 177 (C.A.A.F. 2012) (quoting R.C.M. 604(b)).8

     Here, the Government planned reasonably for the
presentation of evidence and scheduled its witnesses’s
appearances accordingly. That presentation of evidence
completed earlier than expected on the first day of trial does
not justify the extreme action taken by the military judge. Not

8
  R.C.M. 604(a) states that the convening authority or a superior competent
authority may for any reason cause any specifications to be withdrawn from a
court-martial at any time before findings are announced. R.C.M. 604(b)
allows charges which have been withdrawn from a court-martial to be referred
to another court-martial unless the withdrawal was for an improper reason.
See United States v. Underwood, 50 M.J 271, 276 (C.A.A.F. 1999) (convening
authority dismissed and re-referred after military judge failed to grant the
Government’s continuance to secure out of state witness.) Charges withdrawn
after the introduction of evidence on the general issue of guilt may be
referred to another court-martial only if the withdrawal was necessitated by
urgent and unforeseen necessity.

                                      9
only were the last three witnesses available to testify the next
day, but they were intentionally scheduled by the Government on
that day due to schedule conflicts and travel considerations.
The scheduled witnesses’ testimony was well-within the three-day
timeframe for which the case was docketed. The appellee’s trial
was proceeding ahead of schedule so there was little concern for
undue delay or interference with the trial schedule.

     Finally, we summarily dismiss the appellant’s argument that
the witnesses in question were not necessary to the Government’s
case because the military judge denied the defense motion for a
finding of not guilty in accordance with R.C.M. 917. We note
that the quantum of proof required for the Government to
withstand an R.C.M. 917 motion was “some evidence,” vice the
proof beyond a reasonable doubt required for a conviction.

B. Conclusion

     We reject the appellee's assertion that this court lacks
jurisdiction because the military judge never ruled that the
Government’s three remaining witnesses could not testify and
therefore there was no exclusion of evidence. We follow the
example of the Article III courts’ interpretation of 18 U.S.C.
§ 3731, as adopted by the CAAF in Wuterich, and apply the
effects test. Applying the effects test to the case at bar, we
hold that the trial judge's ruling in denying the brief recess
so that witnesses scheduled to be heard the next day could
testify and then sua sponte resting the Government’s case, had
the direct effect of limiting “‘[t]he pool of potential evidence
that would be admissible’” and excluding evidence that was
substantial proof of a material fact.” Wuterich, 67 M.J. at 73
(quoting Watson, 386 F.3d at 313.) We therefore answer the
first issue of jurisdiction under Article 62 in the affirmative.

                    IV. Denial of the Recess

     Having resolved the question of whether this court has
jurisdiction to hear this appeal, we turn now to the question of
whether the military judge abused her discretion in refusing to
allow an overnight recess for the Government to produce their
final three witnesses and instead resting the case on behalf of
the Government over the trial counsel’s protest. Although the
facts at bar involve not a continuance, but instead an overnight
recess, we turn to the law involving continuances for guidance
in this relatively novel situation created by the military
judge, to determine whether she abused her discretion.


                               10
     As a general rule, the decision whether to continue a trial
to enable a party to procure an absent witness rests within the
sound discretion of the trial court. See R.C.M. 906(b)(1) and
Article 40, UCMJ. Continuances for the production of material
witnesses are looked upon with favor, however, and the exercise
of sound discretion requires that they be granted upon a showing
of reasonable cause. United States v. Daniels, 28 C.M.R. 276,
279 (C.M.A. 1959). A judge’s decision will not be disturbed on
appeal absent a clear showing that such discretion has been
misused. United States v. Weisbeck, 50 M.J. 461, 464 (C.A.A.F.
1999). “An ‘abuse of discretion’ exists where ‘reasons or
rulings of the’ military judge are ‘clearly untenable and . . .
deprive a party of a substantial right such as to amount to a
denial of justice’; it ‘does not imply an improper motive,
willful purpose, or intentional wrong.’” United States v.
Travers, 25 M.J. 61, 62 (C.M.A. 1987).

A. Analysis

      In order to guard against bad faith and unwarranted delays,
the military judge must consider many factors before ruling on a
request for continuance for purposes of securing a witness. The
factors this court uses to determine whether a military judge
abused his or her discretion by denying a continuance are the
same ones adopted by the CAAF in United States v. Miller, 47
M.J. 352 (C.A.A.F. 1997), to include: “‘surprise, nature of any
evidence involved, timeliness of the request, substitute
testimony or evidence, availability of witness or evidence
requested, length of continuance, prejudice to opponent, moving
party received prior continuances, good faith of moving party,
use of reasonable diligence by moving party, possible impact on
verdict, and prior notice.’” Id. at 358 (quoting F. GILLIGAN AND
F. LEDERER, COURT-MARTIAL PROCEDURE §18-32.00 at 704 (1991) (footnotes
omitted)). Applying the Miller factors to the case at bar, we
conclude as follows:

Lack of surprise: Civilian defense counsel was well-aware that
the Government intended to call the witnesses in question on day
two of the three day trial.

Timeliness of the request: The motion for a recess was promptly
made by the trial counsel after examination of his first four
witnesses.
Other continuance requests: Multiple continuance requests were
made and granted in this case. Again, this was merely a request
for a recess for the Government witnesses to testify on the day


                                  11
they were scheduled to do so and well-within the three-day
period for which the case was docketed.
Good faith of the moving party: The appellee does not aver, and
the military judge did not find, that the Government was acting
in bad faith. As stated above, the trial counsel anticipated
that the empanelment of the members and the testimony of its
first four witnesses would take longer than it did. The trial
progressed more rapidly than anticipated.
Length of request and prejudice: The Government requested a
recess until the next morning – a matter of a few hours. The
appellee has not demonstrated that he would have been prejudiced
by the military judge had she granted the recess.
Prior notice: Prior to the trial commencing, the defense was
given notice that the three Government witnesses would testify
on the second day of trial.

Possible impact on verdict: The Government considered these
witnesses critical to its case: the 911 operator was needed to
lay the foundation to admit the 911 tape into evidence; the
attending physician was needed to lay the foundation to admit
the pictures of the victim of this alleged assault and to
testify as to the extent of the victim’s injuries; and the NCIS
agent was needed to lay the foundation for a statement from the
appellant in which he made admissions of guilt.

     In this case, we conclude that the expected testimony of
these absent witnesses was material, noncumulative, and of
critical importance to the Government’s case-in-chief. The
expected testimony of these witnesses would have a significant
impact on whether the Government could prove its case beyond a
reasonable doubt.

    Each of these factors clearly favors the Government.

     In light of the circumstances of this case, we conclude
that the military judge’s action in denying the Government a
brief recess during trial and then sua sponte, over objection,
resting the Government’s case was a clear abuse of discretion.

B. Conclusion

     The military judge’s ruling is vacated. The record of
trial is returned to the Judge Advocate General for remand to



                               12
the convening authority and delivery to the military judge for
further proceedings not inconsistent with this opinion.

    Judge FISCHER and Judge JAMISON concur.

                          For the Court



                           R.H. TROIDL
                           Clerk of Court




                               13
