2008 edition - Fort Sam Houston - U.S. Army

to a court-martial. Cf. Lee v. United States, 432 U.S. 23 (1977);
Illinois v. Somerville, 410 U.S. 458 (1973). See also United States
v. Newcomb, 5 M.J. 4 (C.M.A. 1977); United States v. Hardy, 4
M.J. 20 (C.M.A. 1977) authorizing re-referral of charges where
earlier proceedings lacked jurisdiction because of defects in referral
and composition. Res judicata would bar retrial by a courtmartial
for a jurisdictional defect which is not “correctable.” See,
e.g., R.C.M. 202 and 203. See also R.C.M. 905(g).
By its terms, the rule permits a retrial of a person acquitted by
a court-martial which lacks jurisdiction. The Court of Military
Appeals decision in United States v. Culver, 22 U.S.C.M.A. 141,
46 C.M.R. 141 (1973) does not preclude this, although that decision
raises questions concerning this result. There was no majority
opinion in Culver. Judge Quinn held that the defect (absence
of a written judge alone request) was not jurisdictional. In the
alternative, Judge Quinn construed paragraph 81 d of MCM, 1969
(Rev.) and the automatic review structure in courts-martial as
precluding retrial on an offense of which the accused had been
acquitted. (Note that R.C.M. 810(d), using slightly different language,
continues the same policy of limiting the maximum sentence
for offenses tried at an “other trial” to that adjudged at the
earlier defective trial.) Judge Duncan, concurring in the result in
Culver, found that although the original trial was jurisdictionally
defective, the defect was not so fundamental as to render the
proceedings void. In Judge Duncan’s view, the original courtmartial
had jurisdiction when it began, but “lost” it when the
r e q u e s t f o r m i l i t a r y j u d g e a l o n e w a s n o t r e d u c e d t o w r i t i n g .
Therefore, the double jeopardy clause of the Fifth Amendment
and Article 44 barred the second trial for an offense of which the
accused had been acquitted at the first. Chief Judge Darden dissented.
He held that because the earlier court-martial lacked jurisdiction,
the proceedings were void and did not bar the second
trial. Thus in Culver, two judges divided over whether the double
jeopardy clause bars a second trial for an offense of which the
accused was acquitted at a court-martial which lacked jurisdiction
because of improper composition. The third judge held retrial was
barred on non constitutional grounds.
Subsection (2)(D) is based on paragraph 68 e f, g , and h of
MCM, 1969 (Rev.). As to subsection (iv) see United States v.
Williams. 10 U.S.C.M.A. 615, 28 C.M.R. 181 (1959).
Subsection (3) sets out grounds which, unlike those in subsection
(1) and (2), do not require dismissal when they exist. The
military judge has discretion whether to dismiss or to apply another
remedy (such as a continuance in the case of subsection
( 3 ) ( A ) , o r s e n t e n c i n g i n s t r u c t i o n s i n t h e c a s e o f s u b s e c t i o n
(3)(B)). But see United States v. Sturdivant, 13 M.J. 323 (C.M.A.
1982). See also United States v. Baker, 14 M.J. 361 (C.M.A.
1983).
Subsection (3)(A) and the discussion are based on paragraph 69
b(3) of MCM, 1969 (Rev.).
Subsection (3)(B) is based on paragraph 26 b, 74 b(4), and 76
a(5) of MCM, 1969 (Rev.); United States v. Gibson, 11 M.J. 435
(C.M.A. 1981); United States v. Stegall, 6 M.J. 176 (C.M.A.
1979); United States v. Williams, 18 U.S.C.M.A. 78, 39 C.M.R.
78 (1968).
Rule 908 Appeal by the United States
Introduction. This rule is based on Article 62, as amended,
Military Justice Act of 1983, Pub. L. No. 98–209, § 5(c)(1), 97
ANALYSIS
App. 21, R.C.M. 908(b)
Stat 1393 (1983). See also S. Rep. No. 53, 98th Cong., 1st. Sess.
23 (1983); 18 U.S.C. § 3731. Article 62 now provides the Government
with a means to seek review of certain rulings or orders
of the military judge. The need for such procedure has been
recognized previously. See United States v. Rowel, 1 M.J. 289,
291 (C.M.A. 1976) (Fletcher, C.J., concurring). See also Dettinger
v. United States, 7 M.J. 216 (C.M.A. 1978). It is not
expected that every ruling or order which might be appealed by
the Government will be appealed. Frequent appeals by the Government
would disrupt trial dockets and could interfere with military
operations and other activities, and would impose a heavy
burden on appellate courts and counsel. Therefore this rule includes
procedures to ensure that the Government’s right to appeal
is exercised carefully. See S. Rep. No. 53 supra at 23.
(a) In general. This subsection repeats the first sentence of Article
62(a).
1998 Amendment: The change to R.C.M. 908(a) resulted from
the amendment to Article 62, UCMJ, in section 1141, National
Defense Authorization Act for Fiscal Year 1996, Pub. L. No.
104–106, 110 Stat. 186, 466–67 (1996). It permits interlocutory
appeal of rulings disclosing classified information.
(b) Procedure. Subsection (1) provides the trial counsel with a
mechanism to ensure that further proceedings do not make an
issue moot before the Government can file notice of appeal.
The first sentence in subsection (2) is based on the second
sentence of Article 62(a). The second sentence in subsection(2)
authorizes an initial measure to ensure that a decision to file
notice of appeal is carefully considered. The Secretary concerned
may require trial counsel to secure authorization from another
person, such as the convening authority, the convening authority’s
d e s i g n e e , o r t h e s t a f f j u d g e a d v o c a t e . B e c a u s e t h e d e c i s i o n
whether to file the notice must be made within 72 hours, it
probably will not be practicable in many cases to secure authorization
from a more distant authority (see subsection (b)(5) and
Analysis, below), but nothing in this subsection prohibits requiring
this authorization to be secured from, for example, the chief
of appellate Government counsel or a similar official in the office
of the Judge Advocate General. Note that the Secretary concerned
is not required to require authorization by anyone before notice of
appeal is filed. The provision is intended solely for the benefit of
the Government, to avoid disrupting trial dockets and the consequences
this has on command activities, and to prevent overburdening
appellate courts and counsel. The accused has no right to
have the Government forego an appeal which it might take. But
see R.C.M. 707(c)(1)(D). The authorization may be oral and no
reason need be given.
Subsection (3) is based on the second and third sentences of
Article 62(a). The second sentence is added to permit decisions
by defense counsel and the military judge on how to proceed as
to any unaffected charges and specifications under subsection (4).
Subsection (4) is necessary because, unlike in Federal civilian
trials (see Fed. R. Crim. P. 8(a)), unrelated offenses may be and
often are tried together in courts-martial. Consequently, a ruling
or order which is appealable by the Government may affect only
some charges and specifications. As to those offenses, the pend
e n c y o f a n a p p e a l u n d e r t h i s r u l e n e c e s s a r i l y h a l t s f u r t h e r
proceedings. It does not necessarily have the same effect on other
charges and specifications unaffected by the appeal. Subsection
(4) provides several alternatives to halting the court-martial en-
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