Army Court of Criminal Appeals

United States v. Clark

Deadlines are real. 

Appellant requests this court set aside the findings where the military judge denied appellant's motion to compel a witness due to untimeliness. Where trial defense counsel filed the motion after the entry of pleas and after the deadline set by the pretrial order, we find the military judge did not abuse his discretion in determining defense failed to show good cause to file the motion out of time and affirm.

The MJ focused on the justification for the delay in filing the motion, and did not address the government's additional objection of relevance and cumulativeness. Essentially, The MJ likely found and ACCA found the defense was dilatory. The possibility of IAC was not before the court.

While the defense proffered a timeline, the timeline did not elucidate what steps defense took to investigate Mr. Us location prior to their private investigator contacting him on 9 June 2022, which was two days after the motions deadline, five months after the court's issue of the pretrial order, and ten months after preferral of the original charges, was not a surprise witness—someone defense had just discovered. Mr. El wrote his lengthy statement in March of the previous year and defense listed him as a witness on their initial request as y as 15 March 2022.3 The defense stated they were investigating Mr. s information from 1 April until 9 June but provided no more details about the actions they took to locate MrAduring those two months, or when they hired the private investigator, or what other hurdles their due diligence failed to overcome.
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Failing to enforce the deadlines therein would render both the order and the military judge's role, in promoting efficiency and fairness, essentially toothless. But the rules do not promote a draconian adherence to deadlines. A party has recourse when they can show good cause. In appellant's case, the defense provided a reason for the late filing. We find, however, the military judge did not abuse his discretion indetermining, in light of the circumstances, that it was not a good one.