Navy-Marine Corps Court of Criminal Appeals

The preferral of charges is an important step in movement toward a court-martial. Most of the time there isn't a reason to challenge the preferral. However, history has shown, and United States v. Floyd , __ M.J. ___ (N-M. Ct. Crim. App. 2022), further shows that it is sometimes worth the effort to peer behind the wizard's curtain, talk to the accuser, and compare the "evidence" the accuser reviewed. There also are some lessons for trial counsel.

​After referral of charges and shortly before trial was set to begin, the trial defense counsel for Appellee moved to dismiss two of the five specifications alleging sexual abuse of a child for defective preferral and discovery violations. Trial defense counsel argued that, at the time of preferral, Charge II, Specification 2 alleged “excessively inflammatory” language that was not supported by evidence. Trial defense counsel further argued that, at the time of preferral, Charge II, Specification 4 was not supported by the evidence reviewed by the accuser. Finally, the trial defense counsel argued that after preferral and during the months leading up to trial, the Government violated its discovery obligations.

The Motion to Dismiss was litigated at an Article 39(a) session. At the conclusion of the hearing the military judge made an oral ruling dismissing Specification 2 with prejudice and dismissing Specification 4 without prejudice. During the hearing the military judge told the parties that he intended to supplement his oral ruling with a written ruling. In his oral ruling, the military judge determined that with regard to Specification 2, in addition to not being supported by the evidence, the trial counsel violated discovery obligations under Military Rule of Evidence [Mil. R. Evid.] 304(d) and Rule for Courts-Martial [R.C.M.] 701 by making late disclosures to the defense. This included the fact that the trial counsel did not interview the named victim in the specification until shortly before trial. 

The Government appeal raises two broad issues, (1) the MJ violated the rules by issuing written findings and conclusions after receiving the notice of appeal, and (2) abuse of discretion in the rulings.

The Court disagrees that it cannot consider the MJ's written ruling, favorably citing United States v. Catano, 75 M.J. 513 (A. F. Ct. Crim. App. 2015). As the third of three points, the Court adds

Finally we note, as the AFCCA did, that this position lends itself to improved judicial economy. The Court of Appeals for the Armed Forces has recognized that where an appellate court finds during the course of an Article 62, UCMJ, appeal that a trial judge’s findings are “incomplete or ambiguous" the “appropriate remedy is a remand for clarification or additional findings.” It would be nonsensical to preclude military judges from supplementing their oral rulings prior to certification of the record, only to wait and then have an ​appellate court remand an interlocutory appeal back to the military judge for further clarifications. As such this Court will consider the military judge’s written ruling. 

Or, stated another way, we agree the MJ should not have issued his written ruling. However, we believe we need the benefit of that written ruling to decide the issues before the court. We could remand the case back to the MJ for him to supplement the record with a written ruling. But, for judicial economy, we will leap over that hurdle and assume we have remanded and have got back a compliant written ruling and will now consider it.

The court finds "that the military judge did not abuse his discretion in dismissing either specification for improper or defective preferral. Further, we find that the military judge did not abuse his discretion in dismissing Specification 2 with prejudice."

In general, the court reviews the standard for preferral of charges and discovery obligations with a reminder of consequences.

(1) [a] order the party to permit discovery; (2) grant a continuance; (3) prohibit the party from introducing evidence, calling a witness, or raising a defense not disclosed; and (4) enter such other order as is just under the circumstances. Dismissal “is a drastic remedy” but may be appropriate when “no lesser sanction will remedy” the prejudicial effects of the discovery violation.

There is no abuse of discretion with the dismissal with prejudice when

The Government concedes that, at the time of preferral, there was zero evidence before OS2 Romeo [the accuser] that the specifically contested language quoted in Specification 2 was stated by Appellee. . . . Here, the military judge did not review or question the “weight and sufficiency” of the evidence. He based his ruling on the undisputed fact that there was no evidence in existence at the time of preferral to support the quoted language.

The court has some concerns about the effective assistance of counsel to the United States.

We also agree with the military judge that that the term “words to that effect” does not save this preferral. When combined with all of the circumstances surrounding this case, it is indeed significant that the Government made a decision to use quotation marks around the language it alleged Appellee said. This was misleading and, as detailed below, ultimately exacerbated by the subsequent actions and inactions of the Government. During the many months before trial, and despite many attempts by trial defense counsel to seek clarification, there was no evidence (until the eve of trial) that the Government possessed evidence that would support the allegation that Appellee actually said the contested indecent language charged in Specification 2.
. . . 
We agree with the Government that trial counsel are not required to interview a victim months before trial. We also agree that, in most cases, waiting to interview a victim until the eve of trial is not a “best practice.” In this case, once on notice that the quoted language was never represented in evidence, the Government’s delay until the eve of trial to interview the [witnesses] and actually obtain the evidence was significant and the military judge correctly found that when considering the totality of the circumstances in this case, it was in violation of the Government’s discovery obligations. On numerous occasions, the Government was not forthright with the trial defense counsel regarding all of the evidence as it related to Specification 2. The Defense fairly and properly assumed, as did the trial court, that evidence existed supporting the allegation that Appellee allegedly made the actual quotes regarding “a[***]” and “p[***].” The trial defense counsel asked multiple times about the specific language in the specification, and multiple times the Government did not directly respond about the state of that evidence. Multiple times the Government articulated it had provided all known evidence to the Defense, a notion that the military judge correctly labeled a “fallacy.” We reject any notion that deliberate ignorance changes the calculation[.]

Just think how this issue might have gone with the military judge if the Government had not waited "until the eve of trial" and had been more active.

1. They might have identified the problems earlier (pre Article 32?) (at the 32?), withdrawn the charges and started again. Yes, there would be time on the 707 clock, but so what. Which is worse, the problem in front or an uncertain one in the future.

2.  They might have got a do-over rather than a dismissal with prejudice.

The dismissal without prejudice of a second charge was proper and the Government gets a do-over.

We find that the military judge’s dismissal of Specification 4 was also proper and predicated on findings of fact that are supported by the evidence in the record. Specification 4 differs from Specification 2 in that the evidence to support it did actually exist at the time of preferral. The problem is that the accuser did not review said evidence – the record clearly establishes that OS2 Romeo did not review either young woman’s statement to NCIS. Instead, OS2 Romeo only reviewed the NCIS ROI summary of Ms. Grace’s and Ms. Madison’s statements, as well as media, none of which serve to support the allegation. The ROIs provide no detail as to what took place between Ms. Madison and the Appellee when they talked separately. Additionally, the ROIs do not mention Ms. Madison stating that Appellee masturbated, nor that he directed her to touch herself inappropriately – all things the Government alleged Appellee to have done in Specification 4. As such, we agree with the military judge that there was no evidence that OS2 Romeo reviewed which could have reasonably led her to believe that Appellee committed the lewd acts alleged in Specification 4. 

Preferral is an important step in the process we need to resist the practice of it becoming perfunctory. Long gone are the days when the TC put the charge sheet in front of the chief and said sign here please-done, preferred.