UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                LIND, KRAUSS, and PENLAND
                                   Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                      Staff Sergeant TAHIR L. MUWWAKKIL
                            United States Army, Appellee

                                   ARMY MISC 20140536

                    Headquarters, 10th Regional Support Group
                         Wendy P. Daknis, Military Judge
            Lieutenant Colonel May L. Nicholson, Staff Judge Advocate


For Appellant: Colonel John P. Carrell, JA; Lieutenant Colonel James L. Varley, JA;
Major Kenneth W. Borgnino, JA (on brief).

For Appellee: Colonel Kevin Boyle, JA; Captain Nicholas J. Larson, JA (on brief).


                                         26 August 2014

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                   OPINION OF THE COURT AND ACTION ON APPEAL
                      BY THE UNITED STATES FILED PURSUANT TO
                  ARTICLE 62, UNIFORM CODE OF MILITARY JUSTICE
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KRAUSS, Judge:

       Appellee is charged with rape and assault consummated by a battery in
violation of Articles 120 and 128, Uniform Code of Military Justice [hereinafter
UCMJ], 10 U.S.C. §§ 920, 928 (2012). The United States filed a timely appeal with
this court pursuant to Article 62, UCMJ, contending that the military judge abused
her discretion by striking the alleged victim’s testimony in its entirety in light of a
Jencks Act violation, thus excluding evidence that is substantial proof of a fact
material in the proceeding. The United States does not dispute the fact that a Jencks
Act violation occurred, but rather only appeals the military judge’s resort to the
drastic remedy of striking the relevant witness’s testimony in its entirety. We hold
the judge did not abuse her discretion in striking the testimony at issue.
MUWWAKKIL—ARMY MISC 20140536

                                  BACKGROUND

      Appellant is accused of raping and assaulting GP. GP testified at an Article
32, UCMJ, hearing convened to investigate the preferred charges. The government
recorded her testimony in its entirety. Two recording devices were used. One
malfunctioned during the hearing but, because the second functioned properly, the
testimony was nevertheless recorded.

       Present for GP’s testimony at the hearing were the Investigating Officer, trial
counsel, appellee’s trial defense counsel, that counsel’s senior defense counsel
observing, a trial defense paralegal, and the paralegal recording the hearing. The
defense paralegal took about 20 pages of notes during GP’s testimony. The
investigating officer prepared and completed his report based on his notes and
recollection of the hearing, including GP’s testimony.

       After the hearing, the responsible paralegal summarized GP’s testimony based
upon this recording. He placed the device upon which the testimony was recorded in
the drawer of his colleague’s desk. Testimony established that though the paralegal
should have backed up this recording by copying it to a disc, in accordance with
what was understood to be standard operating procedure in the office, he never did.
The recording of GP’s testimony on that device was subsequently deleted. The
direct, cross, and investigating officer examination of GP amounted to about 2 hours
and 15 minutes of recorded testimony. Of that, only about 52 minutes comprising
her direct testimony was preserved from the other recording device before it
malfunctioned. None of the cross-examination by defense counsel or examination by
the investigating officer was preserved. No verbatim transcript of her testimony was
ever prepared.

       After GP’s testimony on direct examination was complete at trial, appellee
moved to strike the entirety of her testimony due to a violation of the Jencks Act and
Rule for Courts-Martial [hereinafter R.C.M.] 914. After receiving evidence and
hearing argument on the matter, the judge granted appellee’s motion. The military
judge concluded that neither the summarized transcript, the defense paralegal’s
notes, nor the investigating officer’s notes comprised substantially verbatim
transcripts of GP’s testimony. She therefore concluded that striking GP’s testimony
was a necessary and appropriate remedy under the circumstances.

        The government, acting within its discretion under Article 62(a)(1)(B),
UCMJ, and R.C.M. 908(a), appealed the military judge’s decision essentially
complaining that the judge abused her discretion by striking the victim’s testimony
because: (1) there was no showing of gross negligence on the part of the
government; (2) the Jencks Act violation does not prejudice appellee; and
(3) striking GP’s testimony is unduly extreme under the circumstances of this case.




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                     Military Judge’s Findings and Conclusions

       The military judge made no written findings of fact and conclusions of law
but rather announced them on the record; of these, the following are essential to the
consideration and resolution of the matter at hand:

      The summarized transcript of GP’s Article 32 testimony “is not a substantially
verbatim” transcript of that testimony;

       There was no “positive control over the paralegals in the military justice
section to ensure that they understood the importance of the audio and that it was in
fact evidence that needed to be preserved”;

       The government failed to maintain “accountability internally within the
military justice shop”;

      The government did not purposely delete the recording “to deprive the
accused or the defense of this audio . . . [and] the evidence is that they did want to
maintain it; they just failed to by not following proper procedures”;

      The loss of the recording was certainly negligent and may amount to gross
negligence;

       “[I]mpeaching [GP] is the defense’s most important strategy”;

      “[The Investigating Officer] indicated that GP’s testimony has been
inconsistent with previous statements”;

      “In order to properly impeach [GP], the defense needs to have access to [that
recording]”;

      Neither the defense paralegal’s notes nor those of the investigating officer
are adequate substitutes because neither are sufficiently verbatim;

       There is no substitute available for that recording in this case;

             [I]t’s not up to the military judge to determine whether or
             not that statement is useful. It’s not my job to look
             through it and ensure that every single inconsistency is
             made. My job is to ensure that the defense counsel has the
             tools he needs for adequate cross-examination in
             accordance with the law which is the Jencks Act and
             R.C.M. 914 which codifies that in the military justice
             system[; and]



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           “[T]he defense counsel does not have what he needs to adequately prepare
    for cross-examination of [GP]. It is based on the government’s actions which
    involve negligence. I don’t believe it can be remedied in any way other than to
    strike the testimony of [GP].”

      The government subsequently moved the military judge to reconsider
requesting, among other things, that she order the production of the defense
paralegal’s notes for review. The judge denied the government’s request for
reconsideration and, accepting the defense counsel’s proffer 1, found that the defense
paralegal’s notes were not available.

                              LAW AND DISCUSSION

                                  Standard of Review

       The parties analogize the present situation with that of a judge’s ruling on a
motion to suppress evidence and agree that the standard of review is abuse of
discretion as applied under Article 62. The analogy is apt. A judge’s ruling on a
Jencks Act violation, effectively excluding evidence, is likewise reviewed for abuse
of discretion. United States v. Cardenas-Mendoza, 579 F.3d 1024, 1031 (9th Cir.
2009); United States v. DeFranco, 30 F.3d 664, 667 (6th Cir. 1994); United States v.
Wables, 731 F.2d 440, 447-48 (7th Cir. 1984); see also United States v. Albo,
22 U.S.C.M.A. 30, 33, 46 C.M.R. 30, 33 (1972). Accordingly, and especially under
Article 62, our standard of review is necessarily deferential:

               “In reviewing a military judge’s ruling on a motion to
               [strike under the Jencks Act and R.C.M. 914], we review
               factfinding under the clearly-erroneous standard and
               conclusions of law under the de novo standard.” United
               States v. Ayala, 43 M.J. 296, 298 (C.A.A.F. 1995). “Thus
               on a mixed question of law and fact . . . a military judge
               abuses his discretion if his findings of fact are clearly
               erroneous or his conclusions of law are incorrect.” Id.
               The abuse of discretion standard calls “for more than a
               mere difference of opinion. The challenged action must
               be ‘arbitrary, fanciful, clearly unreasonable, or clearly
               erroneous.’” United States v. White, 69 M.J. 236, 239
               (C.A.A.F. 2010) (quoting United States v. Lloyd, 69 M.J.
               95, 99 (C.A.A.F. 2010)).




1
 In its initial submission to the military judge on the matter, the defense also
provided a detailed explanation for the lack of any such notes.


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                  When reviewing matters under Article 62(b), UCMJ,
             [a service] court may act only with respect to matters of
             law. United States v. Gore, 60 M.J. 178, 185 (C.A.A.F.
             2004). “When a court is limited to reviewing matters of
             law, the question is not whether a reviewing court might
             disagree with the trial court’s findings, but whether those
             findings are ‘fairly supported by the record.’”         Id.
             (quoting United States v. Burris, 21 M.J. 140, 144
             (C.M.A. 1985)). When reviewing a ruling on a motion to
             [strike under the Jencks Act and R.C.M. 914], “we
             consider the evidence in the light most favorable to the
             prevailing party.” United States v. Cowgill, 68 M.J. 388,
             390 (C.A.A.F. 2010) (quoting United States v. Reister,
             44 M.J. 409, 413 (C.A.A.F. 1996)).

United States v. Baker, 70 M.J. 283, 287-88 (C.A.A.F. 2011). 2

                            Jencks Act and R.C.M. 914

       The Jencks Act, 18 U.S.C. § 3500, and its incorporation within the military
justice system under R.C.M. 914, require the government to preserve and produce
prior verbatim statements of witnesses upon demand by the defense. Article 32
recordings of witness testimony are included as statements under the Jencks Act.
United States v. Marsh, 21 M.J. 445, 451 (C.M.A. 1986); United States v. Lewis, 38
M.J. 501, 508 (A.C.M.R. 1993).

       Where the government’s loss of such statements is due to bad faith or gross
negligence, striking the testimony of the witness whose statement is lost is
mandated. See Marsh, 21 M.J. at 452 (citing United States v. Jackson, 450 A.2d
419, 427 (D.C. 1982)). When the government, as here, carelessly fails to maintain
and produce a statement under its Jencks Act obligations, the judge is required to
consider and balance the totality of relevant circumstances and resolve whether and
what fashion of remedy is appropriate. See id. at 451-52 (relying on Jackson,
450 A.2d 419 and United States v. Bryant, 439 F.2d 642, 651-52 (D.C. Cir. 1971)),
abrogated on other grounds by Arizona v. Youngblood, 488 U.S. 51 (1988)); United
States v. Bosier, 12 M.J. 1010, 1013-14 (A.C.M.R. 1982); United States v. Ali,
12 M.J. 1018, 1020 (A.C.M.R. 1982); see also United States v. Jarrie, 5 M.J. 193,
195 (C.M.A. 1978) (addressing the limits of the so-called “good faith” exception and
appropriate action in the absence of good faith); United States v. Carrasco, 537 F.2d
372, 376-78 (9th Cir. 1976). Those circumstances include, among others, the degree

2
  We have no authority to find facts under Article 62, UCMJ, and are confined to the
trial judge’s findings of fact and reasonable interpretation and characterization of
the same. Baker, 70 M.J. at 289-90.


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MUWWAKKIL—ARMY MISC 20140536

of negligence on the part of the government, the extent to which the defense might
adequately rely on substitutes for the lost statement, and the importance of the lost
statement to the presentation of the defense. See, e.g., Marsh, 21 M.J. at 451-52;
Bosier, 12 M.J. at 1014 (citing Bryant, 439 F.2d at 653). 3 However, it is not for the
judge to determine how useful the lost statement might be in cross-examination; that
judgment is for the defense counsel. See United States v. Dixon, 8 M.J. 149, 152 n.7
(C.M.A. 1979).

       By resolving the question of remedy in the manner described, a trial judge
acts well within her discretion. See Marsh, 21 M.J. at 452 (citing United States v.
Perry, 471 F.2d 1057, 1068 n.47 (D.C. Cir. 1972) (“As the Supreme Court noted in a
slightly different context in Palermo v. United States, 360 U.S. 343, 353 (1959),
administration of the Jencks Act must rest ‘within the good sense and experience of
the district judge . . . and subject to the appropriately limited review of appellate
courts.’”)); see also United States v. Boyd, 14 M.J. 703, 705 (N.M.C.M.R. 1982)
(“[I]mplementation of the Act must be entrusted to the good sense and experience of
the trial judge subject to appropriately limited review of appellate courts.” (quoting
United States v. Augenblick, 393 U.S. 348, 355 (1969) (internal quotation marks
omitted))). And the judge in this case did just that.

       The government concedes simple negligence for the loss of the recording, but
contends that any finding of gross negligence is clearly erroneous. However, as the
government correctly points out, the judge never did make a clear finding of gross
negligence. In any event, the judge’s finding that the government’s loss of the
required statement was due to its negligence is amply supported by evidence in the
record and necessarily triggers the totality of circumstances test described above to
determine an appropriate remedy for the Jencks Act violation. 4

       There is no evidence that the government destroyed the statement in “good
faith” or was otherwise blameless in its destruction. See, e.g., Carrasco, 537 F.2d at
376; Lewis, 38 M.J. at 508 (citing Jarrie, 5 M.J. at 195). Beyond that, the
government simply disagrees with the judge’s exercise of her discretion as to the
proper remedy. Any disagreement any of us might have with the judge’s exercise of

3
  In cases where a trial judge erroneously fails to strike affected testimony, appellate
courts further consider the strength of the evidence of appellant’s guilt otherwise to
determine whether the error was harmless. See, e.g., Carrasco, 537 F.2d at 378
(citing Killian v. United States, 368 U.S. 231, 240-44 (1961)); Bosier, 12 M.J. at
1014.
4
 Even in cases where the government acted in good faith or was otherwise
blameless, the judge should apply the balancing test described above. See generally
Marsh, 21 M.J. at 451-52. See also Carrasco, 537 F.2d at 376-78; Bosier, 12 M.J. at
1014.


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MUWWAKKIL—ARMY MISC 20140536

discretion under these circumstances is no basis for relief under Article 62. See
Baker, 70 M.J. at 288 (“[T]he question is not whether a reviewing court might
disagree with the trial court’s findings, but whether those findings are ‘fairly
supported by the record.’”) (citation omitted). Indeed the law demands that we
respect and defend the reasoned exercise of a trial judge’s discretion in cases such as
these and so we do here.

                                   CONCLUSION

      Because the military judge’s findings are fairly supported by the record and
her decision to strike GP’s testimony was well within her discretion and
responsibility to administer the Jencks Act and R.C.M. 914, we hold that the judge
did not abuse her discretion.

     Accordingly, the appeal of the United States pursuant to Article 62, UCMJ, is
DENIED.

      Senior Judge LIND and Judge PENLAND concur.

                                        FOR
                                         FORTHE
                                            THE COURT:
                                                COURT:




                                         MALCOLM H.
                                        MALCOLM      H. SQUIRES,
                                                        SQUIRES,JR.
                                                                 JR.
                                         Clerk of Court
                                        Clerk of Court




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