UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                            Before
                                SIMS, COOK and GALLAGHER
                                   Appellate Military Judges

                            UNITED STATES, Appellant
                                          v.
                          Specialist KEVIN J. KITMANYEN
                            United States Army, Appellee

                                        ARMY 20110609

           Headquarters, 7th Army Joint Multinational Training Command
            Jeffery Nance and Christopher T. Fredrikson, Military Judges
             Lieutenant Colonel Francisco A. Vila, Staff Judge Advocate


For Appellant: Colonel Michael E. Mulligan, JA; Major Amber J. Williams, JA;
Captain Chad M. Fisher, JA (on brief); Major Amber J. Williams, JA; Captain Chad
M. Fisher, JA (reply brief).

For Appellee: Colonel Patricia A. Ham, JA; Lieutenant Colonel Imogene Jamison,
JA; Lieutenant Colonel Peter Kageleiry, Jr., JA; Captain Barbara A. Snow-Martone,
JA (on brief).


                                        31 October 2011
                       ---------------------------------------------------------
                        MEMORANDUM OPINION AND ACTION ON
                              APPEAL BY THE UNITED STATES
                              FILED PURSUANT TO ARTICLE 62,
                          UNIFORM CODE OF MILITARY JUSTICE
                       ----------------------------------------------------------

  This opinion is issued as an unpublished opinion and, as such, does not serve as precedent.

COOK, Judge:

       Appellee is charged with one specification of rape of a child, one
specification of aggravated sexual contact with a child, and one specification of
sodomy of a child under the age of 12, in violation of Articles 120 and 125, Uniform
Code of Military Justice, 10 U.S.C. §§ 920 and 925 [hereinafter UCMJ]. This case
is before this court pursuant to a government appeal of a military judge’s ruling in
accordance with Article 62, UCMJ, 10 U.S.C. 662.

      At trial, the military judge made a finding that Mr. Douglas Loveland is
available to testify at trial. Subsequently, the military judge ruled that if Mr.
KITMANYEN—ARMY 20110609

Loveland does not appear to testify for the defense, then Criminal Investigation
Command (CID) Special Agent G. [hereinafter SA G] would be prohibited from
testifying and appellee’s sworn written statement would be excluded as evidence.
Appellant claims the military judge abused his discretion in so ruling. Appellant
requests that this court vacate the military judge’s ruling and order the military
judge to find Mr. Loveland unavailable.

       We agree with appellant that the military judge abused his discretion in
finding Mr. Loveland available to testify at trial and subsequently barring SA G
from testifying and excluding appellee’s sworn written statement from being entered
as evidence. We will take appropriate action in our decretal paragraph.

                                       FACTS

      Appellate Exhibit [hereinafter AE] LVIII, the military judge’s thirteen-page
“Essential Findings of Fact, Conclusions of Law, and Ruling – Defense Motion to
Produce Witness or Abate the Proceedings,” is attached as Appendix A. Appendix
B, AE LVI, is the military judge’s eight-page “Summary of RCM 802 Conferences
(8 March – 9 June 2011).” Because the key question at issue is whether the
prosecution has satisfied its burden to “exhaus[t] every reasonable means to secure”
Mr. Loveland’s “live testimony,” United States v. Burns, 27 M.J. 92, 97 (C.M.A.
1988), we will focus on the facts that have an impact on this analysis.

       The defense requested witness at issue, Mr. Loveland, is an employee of the
U.S. Food and Drug Administration (FDA) and lives and works in the United States.
Mr. Loveland had previously supervised SA G when SA G was employed by the
FDA prior to his service with CID. SA G interviewed appellee and took appellee’s
sworn written statement. The prosecution has sought to enter this written statement
into evidence. Mr. Loveland, during his deposition, testified that, among other
things, SA G is an untruthful person. (Appendix A at 4; AE XXXVIII at attachment
4).

       Mr. Loveland was initially identified as a potential witness when derogatory
information was discovered in a file containing information about SA G’s FDA
employment. In response to an attempt by appellee’s civilian defense counsel to
interview Mr. Loveland, Mr. Jim Smith, an associate chief counsel at the FDA,
responded via email,

             . . . pursuant to 5 USC 301, our regulations, and agency
             policy, FDA employees (and past employees) may not
             divulge information acquired during the discharge of their
             duties without the permission of the Commissioner of
             FDA. Also pursuant to our regulations and policies, the
             agency does not make its employees available for



                                          2
KITMANYEN—ARMY 20110609

             interviews by litigants in proceedings, civil or criminal,
             which are unrelated to the Food, Drug, and Cosmetic Act,
             the Public Health Services Act and related statutes.

(Appendix A at 2; Appendix B at 3).

       During a Rule for Courts-Martial [hereinafter R.C.M.] 802 conference,
members of the prosecution informed the military judge that “the FDA would not
allow its employees to be interviewed by either the Government or the Defense” and
“that even if a valid subpoena compelled Mr. Loveland to ‘appear’ at a deposition or
a court-martial, he still needed FDA authorization to actually ‘testify.’” (Appendix
A at 2-3; Appendix B at 3).

       On 1 April 2011, Major Tulud, Chief of Military Justice, 7th U.S. Army Joint
Multinational Training Command (JMTC), pursuant to a “suggestion” by the military
judge, called Mr. Smith and “requested information on the process of obtaining FDA
approval for allowing Mr. Court, the civilian defense counsel, to interview Mr.
Loveland” and “also discussed Mr. Loveland’s possible testimony at a court-martial
in Germany.” (Appendix A at 3).

        While informing MAJ Tulud that his research concerning the Manual for
Courts-Martial led him to the conclusion that “Mr. Loveland could not be compelled
to testify in an overseas court-martial,” Mr. Smith explained the process of
requesting FDA approval for Mr. Loveland’s testimony at a court-martial in
Germany. Id. Mr. Smith also informed MAJ Tulud “that, since FDA special agents
were ‘simply too busy, they [FDA] cannot allow their agents to come over on an
invitational basis.’” Id. Mr. Smith followed up this conversation with an email to
the prosecution that stated the FDA was likely to disapprove a request for Mr.
Loveland to testify at a court-martial in Germany and discussed the admissibility of
a deposition. (Id.; Appendix B at 4).

       On 4 April 2011, at the request of Mr. Court, the prosecution sent a
memorandum to BG Salazar, Commanding General, 7th JMTC, and the convening
authority in this case, that requested an order to depose Mr. Loveland. (Appendix A
at 3; AE XXXVIII at attachment 1). On 5 April 2011, BG Salazar approved the
request to depose Mr. Loveland (AE XXXVIII at attachment 3) and ordered CPT
Gleich to depose Mr. Loveland. (Appendix A at 3; AE XXXVIII at attachment 2).

      On 5 April 2011, the trial counsel, CPT Ongjoco, signed a subpoena requiring
Mr. Loveland to appear on 12 April 2011 at FDA headquarters in order to be
deposed. (Appendix A at 4; AE LVII at attachment 1). In accordance with FDA
procedures, CPT Ongjoco attached this subpoena to a cover memorandum addressed
to Ms. DiPaolo, Office of Enforcement, Food and Drug Administration, Department
of Health and Human Services, and emailed both to Mr. Smith on 5 April 2011. Id.



                                          3
KITMANYEN—ARMY 20110609

      On 7 April 2011, Mr. Smith emailed CPT Ongjoco an authorization letter from
Ms. Andrea Chamblee (Appendix A at 4; AE LVII at attachment 2). In this letter,
Ms. Chamblee identified herself “[a]s the Acting Director of the Division of
Compliance Policy,” and as such has “been delegated authority by the [FDA]
Commissioner to review requests made under 21 C.F.R. § 20.1.” (Appendix A at 4;
AE LVII at attachment 2). In granting the prosecution’s request to depose Mr.
Loveland, Ms. Chamblee explained her analysis of how 21 C.F.R. § 20.1 impacted
her decision:

             Section 20.1 provides that a request for testimony may be
             granted upon a determination that the testimony is both in
             the public health interest and furthers the objectives of the
             Federal Food, Drug, and Cosmetic Act (FDCA) and the
             agency. Because of limited resources and the vast number
             of requests the agency receives for personnel to testify in
             litigation to which FDA is not a party, FDA may, in its
             discretion, disapprove a request for testimony even when
             these prerequisites have been met. FDA must deny
             requests that are duplicative, unlikely to elicit relevant
             testimony, unduly burdensome, or otherwise inappropriate.
             Accordingly, the agency must carefully assess requests for
             testimony made pursuant to section 20.1. As discussed
             below, after considering the merits of your requests, FDA
             has determined that your request to depose Mr. Loveland .
             . . is in the public interest and promotes the objectives of
             the FDCA and the agency, and hereby authorizes Mr.
             Loveland to provide certain testimony.

             In this particular case, compelling circumstances appear to
             justify an exception to the general policy of disapproving
             requests for testimony. Therefore, pursuant to 21 C.F.R.
             § 20.1, I am authorizing Mr. Loveland . . . to provide
             testimony in this case . . . .

Id.

      On 12 April 2011, a deposition of Mr. Loveland was conducted via video
teleconference [hereinafter VTC]. (Appendix A at 4; AE XXXVIII at attachment 4).
Mr. Loveland and Mr. Smith were in a conference room in Silver Spring, Maryland.
The deposition officer and all parties, including the appellee, were in a conference
room in Grafenwoehr, Germany. (Appendix A at 4; AE XXXVIII at attachment 4).
Mr. Loveland testified he was SA G’s direct supervisor at the FDA’s Washington
Field Office for fourteen months in 2006 and 2007. The gist of Mr. Loveland’s
testimony was that SA G is an untruthful person. (Appendix A at 4; AE XXXVIII at



                                          4
KITMANYEN—ARMY 20110609

attachment 4). Mr. Loveland also stated, in response to a question from Mr. Court,
that he had no personal objection to traveling to Germany to testify at appellee’s
court-martial, but that the ultimate decision maker was going to be the FDA. (AE
XXXVIII at attachment 4).

        On 13 April 2011, Mr. Court requested the prosecution produce Mr. Loveland
for trial. (Appendix A at 4; AE XXXVII at attachment 1). The prosecution
conceded that Mr. Loveland was both relevant and necessary under R.C.M. 703(b)(1)
and did not contest their obligation to produce Mr. Loveland. (Appendix A at 4).

        On 13 April 2011, CPT Ongjoco forwarded a subpoena for Mr. Loveland to
appear at Rose Barracks, Germany on 26 April 2011, to testify at a court-martial
concerning “information relating to [SA G],” (Appendix A at 5; AE XXXVIII at
attachment 6), and a cover letter addressed to Ms. DiPaolo, Office of Enforcement,
Food and Drug Administration, Department of Health and Human Services
(Appendix A at 5 and AE XXXVIII at attachment 5) via email to Mr. Smith. In the
letter, CPT Ongjoco stated “the Government will incur all costs associated with this
travel.” Id.

        On 14 April 2011, Mr. Smith forwarded to CPT Ongjoco, via email, a denial
letter signed by Ms. Chamblee. (Appendix A at 5; AE XXXVIII at attachment 7).
Explaining why she had denied the request for Mr. Loveland to testify at the instant
court-martial, Ms. Chamblee stated:

             While the agency was compelled by law to grant
             permission for Mr. Loveland to respond to the deposition
             subpoena issued by the Court Martial and testify under
             oath at the deposition, Mr. Loveland is not compelled to
             respond to the trial subpoena, since the Court Martial is in
             Germany. See Rules of Courts Martial (R.C.M.), Rule
             703(e)(2) . . . .
             Moreover, if a civilian witness is otherwise unavailable to
             testify at trial (including not being amenable to a trial
             subpoena), deposition testimony is admissible at the Court
             Martial.

(AE XXXVIII at attachment 7).

Ms. Chamblee continued her denial letter by restating the evaluation factors
contained in 21 C.F.R § 20.1, ultimately finding the prosecution’s request: was not
in the public health interest; did not promote the objectives of the Federal Food,
Drug and Cosmetic Act; and did not advance the mission of the FDA. Id. Ms.
Chamblee also stated that authorizing Mr. Loveland “to leave his duties at FDA to
come to Germany to testify at trial” while not meeting any of the three criteria,



                                          5
KITMANYEN—ARMY 20110609

would be “redundant and unnecessary” based on the admissibility of Mr. Loveland’s
deposition at court-martial. (Appendix A at 5; AE XXXVIII at attachment 7).

       Following receipt of the denial, CPT Ongjoco called Mr. Smith and
“discussed the possibility that the” chief of justice, deputy staff judge advocate or
the staff judge advocate might call him. Mr. Smith’s response was that the decision
of the Commissioner’s designee, Ms. Chamblee, was final and that the analysis of
whether to allow Mr. Loveland to travel to Germany to testify was the same
regardless of who from the Department of the Army made the request. (Appendix A
at 5).

       On 18 April 2011, the military judge held an Article 39(a) hearing to address
the Defense Motion to Produce or Abate (Appendix A at 5; AE XXXVII). During
this hearing, MAJ Tulud testified concerning prosecution efforts to produce Mr.
Loveland at court-martial. The prosecution again conceded that Mr. Loveland was
relevant and necessary and the prosecution was obligated to produce him.
(Appendix A at 5). After the hearing, the military judge conducted an R.C.M. 802
conference wherein he “told the trial counsel that they had not taken reasonable
efforts to produce Mr. Loveland as a witness.” (Appendix A at 5). The trial counsel,
arguing unsuccessfully that Mr. Loveland was unavailable, requested and received a
continuance to make additional efforts to secure the attendance of Mr. Loveland.
(Appendix A at 5). At this time, the military judge told the trial counsel “that
someone much higher ranking than MAJ Tulud should contact the FDA to request
Mr. Loveland’s attendance.” (Appendix A at 5).

      Based on both parties agreeing a court order requiring the production of Mr.
Loveland may facilitate the process, the military judge issued an Order to Produce
Mr. Loveland on 18 April 2011. (Appendix A at 5; AE XLIX).

       BG Salazar signed a letter on 2 May 2011 that was addressed to the FDA
Commissioner. (AE XXXIX at Encl 4). In his letter, BG Salazar made a request on
behalf of the “Government Prosecution” to authorize Mr. Loveland to appear in
person in Germany and give testimony in appellee’s court-martial. In the letter, BG
Salazar discussed the allegations before the court-martial and emphasized the
appellee was facing a maximum punishment of a life sentence without the possibility
of parole. In support of the request, BG Salazar stated the military judge had
ordered the “Government Prosecution” to produce Mr. Loveland for trial and
included a copy of the military judge’s order as an enclosure to his letter. BG
Salazar concluded his letter by stating: Mr. Loveland would not be requested to
testify concerning information the FDA is prohibited from disclosing by law; Mr.
Loveland’s testimony would promote the objectives of 21 C.F.R. § 20.1 and the
FDA; Mr. Loveland’s testimony was in the public interest and was relevant and
necessary for appellee to receive a fair trial; and the U.S. Army would incur all costs
associated with Mr. Loveland’s travel to Germany. Id.



                                           6
KITMANYEN—ARMY 20110609

       The military judge made a finding that this letter was sent via email to Mr.
Smith. (Appendix A at 6). On 17 May 2011, in response to BG Salazar’s letter, Mr.
Smith emailed CPT Ongjoco a denial letter signed by Ms. Chamblee. (Appendix A
at 6; AE XXXIX at Encl. 5). The letter is similar to the denial letter Ms. Chamblee
sent to the prosecution in April 2011.

        In response to suggestions made by the military judge, the assistant trial
counsel (ATC), CPT Steele, asked Mr. Smith via email whether Mr. Loveland would
be allowed to testify: (1) “if he would only have to fly to Germany over a weekend
to testify; (2) if there was a change of venue to the United States; or (3) if he only
had to testify via VTC.” Mr. Smith responded by saying that regarding weekend
testimony or VTC testimony, his legal analysis would not change and Mr. Loveland
would not be made available. While Mr. Smith stated the Commissioner would
instruct Mr. Loveland to comply with a lawful, enforceable order to appear at a
stateside court-martial, Mr. Smith did not discuss whether Mr. Loveland would
actually be authorized to testify. (Appendix A at 6; AE XXXIX at Encl. 6).

       On 7 June 2011, the military judge ruled the prosecution had failed to
establish the unavailability of Mr. Loveland. CPT Steele subsequently emailed Mr.
Smith informing him of the military judge’s ruling. CPT Steele asked Mr. Smith
whether the FDA would authorize the testimony of Mr. Loveland if he was
subpoenaed to testify in Maryland. Mr. Smith responded that “authorization would
likely be granted pursuant to our . . . regulations . . . .” (Appendix A at 6; AE XLII
at Encl 2).

       On 9 June 2011, the prosecution emailed Ms. DiPaolo a letter requesting
authorization for Mr. Loveland to testify pursuant to a subpoena at Fort Meade,
Maryland, on Monday, 20 June 2011. (Appendix A at 7; AE XLIV). Ms. DiPaolo
emailed the ATC, “We are going to authorize the testimony of Mr. Loveland for June
20, 2011. I will send the formal authorization via email and certified mail next
week.” (Appendix A at 7; AE XLIII). The prosecution subsequently decided not to
pursue moving the court-martial to Maryland and the military judge, while agreeing
to reconsider his earlier decision, on 10 June 2011, upheld his 7 June 2011 ruling. 1

                              LAW AND DISCUSSION

                                     A. Jurisdiction

    Article 62, UCMJ, states, inter alia:



1
 We note that the military judge found that a “change of venue would cause
unjustifiable expense and delay.” (Appendix A at 12). This finding is consistent
with the holding in United States v. Crockett, 21 M.J. 423, 430 (C.M.A. 1986).


                                            7
KITMANYEN—ARMY 20110609

             (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):
             (A) An order or ruling of the military judge which
             terminates the proceedings with respect to a charge or
             specification.
             (B) An order or ruling which excludes evidence that is
             substantial proof of a fact material in the proceeding.

       At this point in the trial, the military judge has not terminated the
proceedings. He has ruled, however, that if the prosecution fails to comply with his
order to produce Mr. Loveland, then the prosecution cannot call SA G and cannot
offer the appellee’s sworn written statement into evidence. (Appendix A at 13). This
ruling has therefore directly impacted the admissibility of evidence. While
appellee’s counsel challenges the jurisdiction of this court based on the provisional
nature of the military judge’s exclusion of evidence, the military judge’s explicit
ruling on the availability of Mr. Loveland directly results in the exclusion of SA G’s
testimony and of appellee’s statement. This ruling does in fact act to constitute the
exclusion of “evidence that is substantial proof of a fact material in the proceeding.”
Article 62(a)(1)(B), UCMJ.

       Both our sister court and superior court have rejected a narrow application
and adopted a broader approach in deciding when a military judge’s rulings have the
effect of excluding evidence. 2 “The majority in True rejected a narrow construction
of the statute, noting [p]rudent advice concerning the use of [Article 62] should not
be confused with an unjustified narrowing of the scope of this statute or deliberate
frustration of the will of Congress.” United States v. Wuterich, 67 M.J. 63, 74
(C.A.A.F. 2008). The key is whether the military judge’s ruling “directly limit[s]
the pool of potential evidence that would be admissible at the court-martial,” not
whether the military judge has actually formally excluded evidence. Wuterich at 75.
While “[f]ederal court decisions interpreting 18 U.S.C. § 3731 constitute guidance,
not binding precedent, in the interpretation of Article 62, UCMJ,” Wuterich at 71,
federal courts have consistently applied a similar standard. See United States v.
Parks, 100 F.3d 1300 (7th Cir. 1996); United States v. Cannone, 528 F.2d 296 (2d
Cir. 1976); United States v. Watson, 386 F.3d 304 (1st Cir. 2004).



2
 United States v. Wuterich, 67 M.J. 63, 74 (C.A.A.F. 2008)(citing United States v.
Watson, 386 F.3d 304, 313 (1st Cir. 2004)); United States v. True, 28 M.J. 1, 4
(C.M.A. 1989); United States v. Taylor, 60 M.J. 720, 725 (N-M Ct. Crim App.
2004).


                                           8
KITMANYEN—ARMY 20110609

       As captured above and discussed below, the prosecution has taken reasonable,
good faith efforts to produce Mr. Loveland at trial. Additional efforts by the
prosecution to produce Mr. Loveland at appellee’s pending trial in Germany would
undoubtedly be futile. Because the prosecution will not be able to produce Mr.
Loveland at trial, the military judge’s conditional ruling has the impact of excluding
evidence that is substantial proof of a fact material to the proceeding. This court
therefore has jurisdiction.

                               B. Standards of Review

       When acting on interlocutory appeals pursuant to Article 62, UCMJ, our court
may act “only with respect to matters of law” and we may not substitute our own
fact-finding. United States v. Cossio, 64 M.J. 254, 256 (C.A.A.F. 2007).

       We review the facts under a clearly erroneous standard and conclusions of law
de novo. United States v. Cohen, 63 M.J. 45, 49 (C.A.A.F. 2006) (citing United
States v. Swift, 53 M.J. 439, 446 (C.A.A.F. 2000); United States v. Ayala, 43 M.J.
296, 298 (C.A.A.F. 1995)).

       We review a military judge’s determination of witness availability for an
abuse of discretion. United States v. Boswell, 36 M.J. 807, 810 (A.C.M.R. 1993)
(citations omitted). “A military judge abuses his discretion when: (1) the findings
of fact upon which he predicates his ruling are not supported by the evidence of
record; (2) if incorrect legal principles were used; or (3) if his application of the
correct legal principles to the facts is clearly unreasonable.” United States v. Ellis,
68 M.J. 341, 344 (C.A.A.F. 2010) (citing United States v. Mackie, 66 M.J. 198, 199
(C.A.A.F. 2008)).

                                    C. Applicable Law

       The witness in question, Mr. Loveland, is a defense requested witness. An
accused is entitled to the production of any witness whose testimony on a matter in
issue on the merits would be relevant and necessary. R.C.M. 703(b)(1). An
accused’s right to secure the presence of witnesses at trial is not absolute. 3 An
accused is not entitled to the presence of a witness who is unavailable within the
meaning of M.R.E. 804(a). R.C.M. 703 (b)(3).

       A witness is considered to be unavailable if the witness is unable to be
produced by process or other reasonable means, or is unavailable within the meaning
of Article 49(d)(2), UCMJ. M.R.E. 804(a). Under Article 49(d)(2), UCMJ, a
witness is unavailable if, “. . . by reason of death, age, sickness, bodily infirmity,

3
 United States v. Bennett, 12 M.J. 463, 466 (C.M.A. 1982); United States v.
Sweeney, 14 U.S.C.M.A. 599, 603, 34 C.M.R. 379, 383 (C.M.A. 1964).


                                           9
KITMANYEN—ARMY 20110609

imprisonment, military necessity, nonamenability to process, or other reasonable
cause, is unable or refuses to appear and testify in person at the place of trial or
hearing . . . .” (emphasis added).

       The key issue of whether the prosecution has satisfied its duty to produce a
witness is one of reasonableness. Ohio v. Roberts, 448 U.S. 56, 74 (1980); United
States v. Barreto, 57 M.J. 127, 132-33 (C.A.A.F. 2002)(citing United States v.
Davis, 29 M.J. 357, 359 (C.M.A. 1990)). “The ultimate question is whether the
witness is unavailable despite good-faith efforts undertaken prior to trial to . . .
present that witness.” Crockett at 430 (quoting Roberts at 74-75). While the
prosecution has the burden to “exhaus[t] every reasonable means to secure” a
witness’s “live testimony” United States v. Burns, 27 M.J. 92, 97 (C.M.A. 1988),
“[t]he law does not require the doing of a futile act.” Crockett at 430 (quoting
Roberts at 74-75). 4

       Because the witness in question, Mr. Loveland, is a civilian, “the key to
obtaining the presence of a civilian witness at a court-martial is service of a
subpoena and tender of a witness fee and mileage.” Burns at 97. However, a
“subpoena may not be used to compel a civilian witness to travel outside the United
States.” See Discussion R.C.M. 703(e)(2).

                        C. De Novo Review and Conclusions of Law

       As noted above, we find the prosecution, in good faith, took all reasonable
measures to produce Mr. Loveland at court-martial. These measures included the
issuance of a subpoena for Mr. Loveland to testify at court-martial and the offer to
pay all costs associated with Mr. Loveland’s travel. (AE XXXVIII at attachments 5
and 6). In addition, the convening authority personally addressed a request to the
Commissioner of the FDA asking that Mr. Loveland be permitted to travel to
Germany to testify in appellee’s court-martial. The convening authority’s request
not only contained a detailed explanation of why Mr. Loveland was required at the
court-martial and an offer to pay for all related expenses associated with Mr.
Loveland’s testifying in Germany, but included as an enclosure the military judge’s
order to produce Mr. Loveland at trial. In addition, members of the prosecution
contacted an FDA representative to discuss whether allowing Mr. Loveland to testify
on a weekend would impact FDA’s analysis. The FDA representative responded that



4
  While the courts in Roberts, Page, Crockett, Barreto, and Burns dealt with an
accused’s Sixth Amendment Confrontation Clause right and the present case
involves an accused’s Sixth Amendment Compulsory Process right, we find the
burden on the prosecution in producing a defense witness to exhaust all reasonable
measures, in good faith, to be substantially similar. See 2 Gilligan & Lederer, Court-
Martial Procedure §20-33.11 (3rd ed. 2006).


                                           10
KITMANYEN—ARMY 20110609

the timing of court-martial was immaterial. (Appendix A at 6; AE XXXIX at Encl.
6).

       While “nonamenability to a subpoena does not necessarily establish
unavailability as a witness,” Crockett at 427 (citing Mancusi v. Stubbs, 408 U.S. 204
(1972) and Barber), the enforceability of a subpoena does play a critical role in our
analysis of prosecutorial efforts to produce Mr. Loveland at trial and played a
critical role in the FDA’s analysis concerning making Mr. Loveland available. In
the face of what she perceived to be an enforceable subpoena, the FDA designee,
Ms. Chamblee, using her governing regulations as contained in the CFR, approved
Mr. Loveland being deposed. In contrast, when presented with what she correctly
perceived to be an unenforceable subpoena, Ms. Chamblee, using her governing
regulations, disapproved the prosecution’s request to produce Mr. Loveland at a
court-martial in Germany. When presented, prospectively, with a subpoena for Mr.
Loveland to appear in a court-martial located in Maryland, Ms. DiPaolo, an FDA
representative, stated the FDA would comply with this enforceable subpoena.

       In short, the FDA approved requests to make Mr. Loveland available when
Mr. Loveland was issued an enforceable subpoena, while disapproving requests for
Mr. Loveland to appear at court-martial when Mr. Loveland was not faced with an
enforceable subpoena. In regards to the enforceability of the subpoena, it is of no
significance who from the Department of the Army or Department of Defense (DoD)
made the request to FDA or how persuasively the request was made. Based on the
law, a subpoena “issued in court-martial cases to compel witnesses to appear and
testify … shall be similar to that which courts of the United States having criminal
jurisdiction may lawfully issue and shall run to any part of the United States, or the
Commonwealths and possessions.” Article 46, UCMJ. As a result, and as captured
by the R.C.M., a “subpoena may not be used to compel a civilian to travel outside
the United States and its territories.” 5

       However, the R.C.M. also states, “[c]ivilian employees of the Department of
Defense may be directed by appropriate authorities to appear as witnesses in courts-
martial as an incident of their employment. Appropriate travel orders may be issued
for this purpose.” 6 While not enforceable as a matter of law, the R.C.M. therefore
envisions the ability of DoD employers to make participating in courts-martial part
of a civilian DoD employee’s official duties, with likely adverse administrative
consequences for non-compliance.

      The FDA, however, is not a DoD entity. It falls under another executive
agency, the Department of Health and Human Services (HHS). Neither the UCMJ

5
    See Discussion in R.C.M 703(e)(2).
6
    Id.


                                          11
KITMANYEN—ARMY 20110609

nor any R.C.M. identify the ability of the DoD to make appearances at court-martial
an incident of HHS employees’ employment.

       FDA actions in regards to handling requests for Mr. Loveland to participate in
the instant court-martial have been consistent with 5 U.S.C.A. §301, 21 CFR §20.1
(the implementing regulation), and case law. Section 301 of Title 5 U.S.C.A. gives
each “head of an Executive department or military department” the authority to
“prescribe regulations for the government of his department.” However, this
“section does not authorize withholding information from the public or limiting the
availability of records to the public.” Pursuant to court rulings, these agency
regulations cannot be inconsistent with law 7 and 5 U.S.C.A. §301 does not authorize
agency heads to “withhold documents or testimony from federal courts.” 8

       The FDA has not forbidden the release of evidence or testimony. To the
contrary, the FDA has authorized Mr. Loveland to testify concerning his official
duties and his opinion of SA G’s character for truthfulness based on his official
relationship with SA G. This evidence has been recorded pursuant to the deposition
of Mr. Loveland and is available to the appellee to introduce prospectively as
evidence at his court-martial. What the FDA has not approved is, in the face of an
unenforceable subpoena, Mr. Loveland traveling to Germany to testify at appellee’s
court-martial.

       Despite the above-listed measures taken by the prosecution and the inability
of the prosecution to make Mr. Loveland appear at a court-martial in Germany,
either through legal or administrative coercion, the military judge identified a non-
exhaustive list of measures the prosecution should have pursued in attempting to
make Mr. Loveland available at trial. Because the prosecution had not pursued these
measures, the military judge found the prosecution had “failed to demonstrate it has
exhausted every reasonable means to secure Mr. Loveland’s live testimony” and
declared Mr. Loveland available for trial.

       The measures the military judge listed included: finding the prosecution’s
advocacy to the FDA inadequate, to include failing to stress to the FDA designee the
ability of Mr. Loveland to testify over a weekend to minimize the impact on Mr.
Loveland’s official FDA duties; finding the prosecution had failed to ensure the
FDA Commissioner had personally received and acted on their request(s); and
finding the prosecution was derelict in not engaging senior members of the Army or
DoD in the request process. By finding the prosecution has in good faith exhausted
all reasonable measures to make Mr. Loveland available, we have necessarily found

7
    United States ex rel. Touhy v. Ragen et al., 340 U.S. 462, 463, fn. 2 (1951).
8
 Exxon Shipping Co. v. United States Department of Interior, 34 F.3d at 778 (9th
Cir. 1994).


                                            12
KITMANYEN—ARMY 20110609

the military judge’s suggested measures to not be reasonable and ultimately find his
application of legal principles to the facts to be clearly unreasonable.

       From the record, it is clear the prosecution made repeated requests to the FDA
in order to secure Mr. Loveland’s presence at court-martial in Germany using both
formal and informal means. In their requests, the prosecution articulated the
severity of the case and the importance of Mr. Loveland’s testimony. In these
requests, the prosecution discussed the possibility the military judge would exclude
Mr. Loveland’s deposition and whether having Mr. Loveland testifying over a
weekend would impact FDA’s analysis. These factors were discounted by the FDA.
It was not reasonable for the military judge to presume redundant advocacy by the
prosecution would have impacted FDA’s decision.

       While acknowledging Ms. Chamblee was the FDA Commissioner’s designee
for responding to the prosecution’s request for Mr. Loveland to appear as a witness
and noting Ms. Chamblee twice denied requests for Mr. Loveland to travel to
Germany to testify at court-martial, the military judge erroneously found the
prosecution should have taken their request to the FDA Commissioner herself. 9
Because the properly identified designee rejected the prosecution’s request based on
the relevant facts and FDA’s regulation for reviewing witness requests, the
prosecution was not required to appeal this ruling to the FDA Commissioner.

       As an employee of the FDA, Mr. Loveland was subject to regulations pursuant
to 21 CFR §20.1 regarding his participation as a witness in a judicial proceeding.
As noted above, these regulations afforded the FDA Commissioner, or her designee,
consistent with the law, the ability to authorize or not authorize requests for
employees to testify. The properly designated FDA representative, pursuant to her
interpretation of 21 C.F.R. §20.1 and acting within her discretionary authority,
declined to authorize each of the requests for Mr. Loveland to travel to Germany. 10

     Lastly, the military judge found the prosecution had failed to pursue the
measure of going higher in its chain of command in making its requests to the FDA.

9
  The military judge also discounted the fact BG Salazar had addressed his request to
the FDA Commissioner because there was “no evidence that this letter was delivered
to, or discussed with, anyone in the FDA other than Ms. Chamblee.” (Appendix A at
6).
10
   While the military judge discussed why the prosecution had not challenged this
regulation or its application under the Administrative Procedures Act, 5 USC §500
et. seq., the military judge did not specifically list this as a reasonable measure the
prosecution should have pursued in its attempt to make Mr. Loveland available for
court-martial. Nonetheless, we do not find this to be a reasonable measure the
prosecution had to pursue.


                                           13
KITMANYEN—ARMY 20110609

While acknowledging that BG Salazar, the general court-martial convening
authority, had personally signed a request and addressed it to the FDA
Commissioner, the military judge discounted this measure stating, “General Salazar
didn’t make it happen, so obviously you should go higher.” While not articulating
in his findings how far up the chain of command the prosecution should have gone in
making its witness request, the military judge repeatedly insinuated the prosecution
may have to elevate this witness request to the Secretary of Defense or the President
of the United States. 11

      There is no legal requirement that the prosecution have enlisted the assistance
of someone of a particular rank. The FDA had made it clear that the status of the
requestor was immaterial. Their actions reflected such, as they approved the
request, made by a captain, for Mr. Loveland to be deposed and also approved the
request, made by a captain, for Mr. Loveland to prospectively testify in Maryland.

11
  In questioning MAJ Tulud in regards to her discussion with Mr. Smith, the
military judge asked MAJ Tulud, “And did you discuss – and just to clarify, but you
didn’t discuss other possibilities of getting permission from the FDA? . . . . If the
President of the United States called you up and asked you to produce this witness,
would you? Did you ever say something like that?” MAJ Tulud responded in the
negative.

In response to the prosecution discussing an FDA statement that the rank of the
requestor was immaterial to the FDA’s analysis (Appendix B at 5), the military
judge stated:

      MJ: If it was the President of the United States, would the requester be
      material?
      ATC: Sir, I can’t answer that.
      MJ: Yes, you can Captain Steele. If the President of the United States was the
      requestor, would the requestor be material? CPT Steele?
      ATC: Sir ----
      MJ: Are you saying that the President of the United States cannot tell the
      FDA to pony up a witness?
      ATC: Under the regulations, if you follow the regulations ---
      MJ: You’re going to lose a lot of credibility on this one, Captain Steele.

(R. at 381-382)

In discussing whether the prosecution was going to pursue an appeal of the FDA
denial through the Administrative Procedures Act, the military judge stated, “Well, I
believe that Mr. Gates, Mr. Robert Gates [then Secretary of Defense], probably has
more authority that I do and more authority than Mr. Court does. And, by the way,
you work for him…. You also work for the President.” (R. at 366)


                                         14
KITMANYEN—ARMY 20110609

What the FDA found to be persuasive was the enforceability of the subpoena, not the
rank of the requestor.

       Federal courts that have reviewed issues of availability of witnesses have
looked at what role the prosecution played in the unavailability of the witness.
When the prosecution has facilitated the unavailability of a witness, courts have
chosen not to find the witness unavailable. 12 In those instances, however, where the
prosecution was not responsible for the unavailability of a witness, such as is
currently before us, courts have not imputed the actions of other government entities
to the prosecution and have found the witness unavailable. 13

        The prosecution has not taken any measures that could be construed as
facilitating the unavailability of Mr. Loveland to testify at appellee’s court-martial
in Germany. In fact, there is no evidence whatsoever that Mr. Loveland has ever
been in Germany or that his absence or nonamenability to process was in any way
facilitated or caused by the prosecution.

       The military judge has also characterized the prosecution’s inability to
produce Mr. Loveland at trial as a “continuing part of the government’s discovery
violation.” He has used this finding to further support his prohibition of SA G from
testifying at court-martial and his suppression of appellee’s sworn written statement.
(Appendix A at 12). The military judge also stated the “Government can erase any
resulting prejudice to its case” caused by the military judge suppressing testimony
by SA G and introduction of appellee’s sworn statement, “by complying with my
order to produce Mr. Loveland.” Id. This court finds the prosecution’s inability to
produce Mr. Loveland does not constitute a discovery violation under R.C.M.
701(g)(3). We further find the military judge abused his discretion in characterizing
this inability to produce Mr. Loveland as a discovery violation and in using this
perceived violation as grounds to bar SA G from testifying and the introduction of
appellee’s sworn statement.

       The military judge abused his discretion in finding Mr. Loveland available to
testify at trial because he “committed a clear error of judgment in the conclusion
[he] reached upon weighing of the relevant factors.” See Ellis, 68 M.J. at 344.
Contrary to the military judge’s conclusions, we hold the prosecution, in taking good
faith efforts to secure Mr. Loveland’s attendance to testify at trial, has exhausted
every reasonable means to secure Mr. Loveland’s live testimony. “The fact that the

12
  United States v. Yida, 498 F.3d 945 (9th Cir. 2007); United States v. Mann, 590
F.2d 361 (1st Cir. 1978).
13
  United States v. Olafson, 213 F.3d 435 (9th Cir. 2000); United States v. Eufracio-
Torres, 890 F.2d 266 (10th Cir. 1989); United States v. Winn, 767 F.2d 527 (9th Cir.
1985); United States v. Seijo, 595 F.2d 116 (2nd Cir. 1979).


                                           15
KITMANYEN—ARMY 20110609

means utilized were unsuccessful does not mean that the government’s efforts were
not made in good faith.” Eufracio-Torres at 270. We therefore find that Mr.
Loveland is unavailable to testify at appellee’s court-martial in Germany.

                                   CONCLUSION

       The appeal of the United States pursuant to Article 62, UCMJ, is granted.
The ruling of the military judge is vacated and the record will be returned to the
military judge for action not inconsistent with this opinion

      Senior Judge SIMS and Judge GALLAGHER concur.

                                        FOR
                                        FOR THE
                                            THE COURT:
                                                COURT:




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




                                          16
