United States v. Dossey

PUBLISHED OPINION OF THE COURT WHITE, Senior Judge: This ease is before us a second time. This panel previously denied a Government appeal from: (1) a purported ruling by the military judge excluding evidence, and (2) the military judge’s declaration of a mistrial.1 The Government moved for reconsideration en banc and for extraordinary relief in the nature of a writ of mandamus.2 The court, en banc, denied both reconsideration en banc and the request for extraordinary relief. Panel reconsideration, however, was granted.3 Having reconsidered the matter, we now hold this court has jurisdiction under Article 62, UCMJ, 10 U.S.C. § 862, to review the instant mistrial declaration. Further, we hold that the military judge abused his discretion in declaring a mistrial. We shall vacate the mistrial declaration, reinstate the charge and specification, and return the record to the Judge Advocate General for remand to the court-martial to continue the trial. I. The Facts The accused was charged with offenses arising out of his alleged use of government computers to access child pornography. He moved in limine to exclude evidence obtained from a search of the Government computers and network server he allegedly used. On 17 May 2007, the military judge granted the motion in part. AE XII. During a pretrial session of court on 6 June, at the request of the trial defense counsel, the judge clarified his 17 May ruling.4 Record at 279-80. Subsequently, during the Government’s case-in-chief, the judge determined that evidence in violation of his ruling had come before the members in Prosecution Exhibit 13.5 At that point, the judge called an Article 39(a), UCMJ, session. During the Article 39(a) session, the judge stated his belief that his “ruling was reasonably clear” that search terms and efforts at communication were not admissible. Id. at 413. After some colloquy with the trial counsel concerning whether the exhibit was covered by the court’s prior ruling, the judge declared a mistrial as to the charge and specification affected by the evidence at issue.6 Id. at 420. While the judge permitted discussion on whether his suppression order had been violated, at no time did he solicit comments from counsel concerning the necessity for a mistrial. Immediately thereafter, the trial counsel asked for a recess, which was granted. Id. — 622 — After the recess, the trial counsel informed the court of the Government’s intent to appeal the judge’s ruling excluding portions of Prosecution Exhibit 13, as well as his decision to declare a mistrial. Id. at 422. The Government also announced it intended to go forward on the remaining charge and specification.7 Id. The judge excused the members, pending call of the court, advising them to expect to be called back at some time in the future.8 II. Principles of Law Article 62, UCMJ, confers on this court jurisdiction over a Government appeal from an order or ruling by a judge9 that, inter alia, “terminates the proceedings with respect to a charge or specification”, or “excludes evidence that is substantial proof of a material fact in the proceeding.” Art. 62(a)(1)(A) and (B), UCMJ. The Government must notify the trial judge of the appeal in writing within 72 hours of the order or ruling being appealed. Art. 62(a)(2), UCMJ. Congress intended Article 62 to be interpreted and applied in the same manner as the federal Criminal Appeals Act, 18 U.S.C. § 3731, except where the particulars of military practice dictate a different approach. United States v. Brooks, 42 M.J. 484, 486 (C.A.A.F.1995); United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F.1995); United States v. True, 28 M.J. 1, 3 (C.M.A.1989) (citations omitted); S.Rep. No. 53, 98th Cong., 1st Sess. 6, 23 (1983); H.Rep. No. 549, 98th Cong., 1st Sess. 19 (1983), reprinted in 1983 U.S.Code Cong. & Admin.News 2177, 2184-85. While the precise language of the two statutes differs in certain respects, “we can look to the interpretation and application of [the Criminal Appeals Act] for guidance in determining how we will apply Article 62.” Lincoln, 42 M.J. at 324. In enacting the current version of the Criminal Appeals Act in 1971,10 “Congress intended to remove all statutory barriers to Government appeals and permit whatever appeals the Constitution would permit.” United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). See Arizona v. Manypenny, 451 U.S. 232, 243 n. 18, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); United States v. Scott, 437 U.S. 82, 85, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Lincoln, 42 M.J. at 324; Conference Report No. 91-1768, 91st Cong., 2d Sess., reprinted in 1970 U.S.Code Cong. & Admin.News 5848-49. “The military judge may, as a matter of discretion, declare a mistrial when such action is manifestly necessary in the interest of justice because of circumstances arising during the proceedings which cast substantial doubt upon the fairness of the proceedings.” Rule for Courts-Martial 915(a), Manual for Courts-Martial, United States (2005 ed.). When it appears grounds for a mistrial may exist, the judge “shall inquire into the views of the parties on the matter and then decide the matter as an interlocutory question.” R.C.M. 915(b). “Because consent or lack thereof by the defense to a mistrial may be determinative of a former jeopardy motion at a second trial, the views of the defense must be sought.” Manual for Courts-Martial, United States (2005 ed.), App. 21, at A21-63. The judge’s failure to seek the views of the parties, however, does not invalidate the mistrial declaration. United States v. Mora, 26 M.J. 122, 124 (C.M.A.1988). A declaration of mistrial has the effect of withdrawing the affected charge and specification from the court-martial. The convening authority may refer them anew, or otherwise dispose of them. R.C.M. 915(c)(1) and Discussion. While withdrawal occurs — 623 — upon announcement of the mistrial, a mistrial declaration is not an irreversible “talismanic utterance.” It may be reconsidered or reversed until the jury is discharged. See United States v. Razmilovic, 498 F.3d 136, 147 (2d Cir.2007); Camden v. Circuit Court of the Second Judicial Circuit, 892 F.2d 610, 616 n. 7 (7th Cir.1989); United States v. Smith, 621 F.2d 350, 352 n. 2 (9th Cir.1980). III. Discussion The Government appeals from both the military judge’s purported 6 June ruling to exclude evidence, and the judge’s mistrial declaration. The first issue need not detain us. On 17 May, the judge issued a -written ruling suppressing certain Government evidence. The time to appeal that ruling expired on 20 May. Subsequently, on 6 June, the judge called the Government to task for violating his earlier order. Having carefully reviewed the parties’ arguments and the record of trial, we are satisfied that (a) the 17 May ruling excluded the evidence at issue in this appeal, and (b) the military judge did not issue a new ruling excluding evidence on 6 June. Rather, he merely noted a violation of his 17 May ruling, and fashioned a remedy— the mistrial — for that violation. Consequently, there is no appealable evidentiary ruling on 6 June.11 A. Jurisdiction to Review a Declaration of Mistrial Article 62 gives this court jurisdiction over an order or ruling that “terminates the proceedings.” The first question that must be answered, therefore, is whether a mistrial “terminates the proceedings.” The court is aware of no prior decision by the courts of criminal appeals or our superior court that resolves whether a mistrial “terminates the proceedings,” and is, therefore, an appealable order.12 On its face, it is unclear whether the phrase “terminates the proceedings” means to terminate the proceedings before the particular court-martial to which the charge has been referred, or all proceedings on the charge. Obviously, because a mistrial does not terminate all proceedings on a charge (since retrial may be attempted), if that phrase means the latter, we do not have jurisdiction. To resolve this ambiguity, it is appropriate to consider the legislative histories of Article 62 and the Criminal Appeals Act, 18 U.S.C. § 3731, the case law interpreting both statutes, and the context in which the Uniform Code uses the word “proceedings” in its other articles. A review of the Code reveals that, almost without exception, the Code uses “proceedings” to refer to happenings before a particular court-martial. For example, Article 28 refers to a reporter who records “the proceedings of and testimony taken before” a court-martial, and Article 54 requires courts-martial to “keep a separate record of the proceedings of the trial of each case brought before it.” Article 48 empowers a court-martial to punish for contempt anyone who “disturbs its proceedings,” and Article 51 directs the presiding officer of a court-mar — 624 — tial to rule on interlocutory questions “arising during the proceedings.” The Code’s only uses of the word “proceedings” in a sense broader than a particular court-martial are in Articles 98 and 138. The usage in Article 138 concerns administrative complaints of wrong, and is not helpful to our inquiry. Article 98 makes it a crime to intentionally fail to enforce or comply with any provision of the Code regulating the “proceedings before, during or after trial of an accused.” Art. 98, UCMJ, 10 U.S.C. § 898 (emphasis added). Significantly, Article 98 explicitly refers to proceedings before and after trial, rather than simply referring to the “proceedings of a court-martial.” This specificity suggests that the other, unmodified uses of the term “proceedings” in the Code are understood to mean the happenings before a particular court-martial. This reading is consistent with both the legislative history of, and the case law concerning, Article 62. As noted in Section II above, Congress intended Article 62 to be interpreted and applied in the same manner as the federal Criminal Appeals Act, by which “Congress intended to remove all statutory barriers to Government appeals and permit whatever appeals the Constitution would permit.” Wilson, 420 U.S. at 337, 95 S.Ct. 1013. Reading the phrase “terminates the proceedings” in Article 62 to mean the proceedings before the court-martial to which a charge has been referred renders a broader range of orders appealable than the alternate reading, and effectuates the Congressional intent that the Government should enjoy a broad right to appeal. In light of the foregoing, we conclude that the phrase “terminates the proceedings” in Article 62 means to terminate the proceedings before the particular court-martial to which a charge has been referred. Given this reading of Article 62, it is clear that a mistrial declaration terminates the proceedings, and, therefore, that this court has jurisdiction over a Government appeal from such an order.13 B. The Mistrial 1. Standard of Review An appellate court will not reverse a military judge’s decision to declare a mistrial unless the military judge has abused his discretion under the particular facts and circumstances of the case before him. United States v. Rosser, 6 M.J. 267, 270 (C.M.A. 1979).14 Nevertheless, in deciding to declare a mistrial, a military judge “must engage in a sufficient inquiry as a matter of law to uncov — 625 — er sufficient facts to decide the issue before him.” Id. at 271. 2. Substantive Review of the Military Judge’s Order A military judge should declare a mistrial only when such action is “manifestly necessary in the interest of justice.” R.C.M. 915(a). In deciding whether manifest necessity exists, the judge must sufficiently inquire into the facts to decide the issue. Rosser, 6 M.J. at 271. He shall inquire into the views of the parties. R.C.M. 915(b). Further, he must determine if less drastic alternative remedies might be adequate to address the problem. United States v. Jorn, 400 U.S. 470, 487, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Diaz, 59 M.J. 79, 91 (C.A.A.F.2003). In this ease, the trial judge took none of these steps. While he engaged in some colloquy with the parties on whether his suppression order had been violated, he did not discuss whether a mistrial was necessary to ensure a fair trial. Nor did the judge develop the facts that might support such a conclusion. In this case, the trial judge could have noted for the record exactly what improper evidence had come before the members, and how it was prejudicial. He could have noted for the record what reaction, if any, the members had to the improper evidence. He could have conducted voir dire of the members to determine if they had noticed the improper evidence and if it had any prejudicial effect on them. The judge did not inquire into the views of the parties about whether a mistrial was necessary. Finally, the record is devoid of any indication the judge considered less drastic alternatives, such as a curative instruction or exclusion of the offending exhibit. Further, the necessity for a mistrial is not manifest on the record. From the record, it is not even clear the members were exposed to any prejudicial information in Prosecution Exhibit 13. At the time the judge declared a mistrial, an electronic version of Prosecution Exhibit 13, a spreadsheet, had been displayed on the members’ computer monitors, while the Government’s expert witness explained the types of information in each column. The record suggests the entire spreadsheet was not visible on the monitors, as at one point the expert asked the trial counsel to scroll over to another part of the spreadsheet, because the portion of the spreadsheet to which he wished to refer was not visible. Record at 411. How much and what part of the exhibit was visible on the members’ monitors cannot be determined from the record. The Internet search terms contained on the first 26 lines of the spreadsheet do not appear to be unfairly prejudicial.15 It is not until fine 27 of the spreadsheet that the search term “preteen,” arguably prejudicial in the context of a child pornography prosecution, first appears. Nothing in the testimony of the expert witness, however, had called attention to that line of the spreadsheet, or any of the others with arguably prejudicial search terms, before the judge called the Article 39(a) session. Consequently, because the trial judge demonstrated no effort to exercise sound discretion in deciding whether there was manifest necessity for a mistrial, and the necessity for a mistrial is not manifest from the record, the judge abused his discretion. IY. Decision/Order Accordingly, we vacate the military judge’s order declaring a mistrial, and reinstate the original charge and specification. The record of trial is returned to the Judge Advocate General of the Navy to return to the court-martial for further proceedings consistent with this decision.16 Judge COUCH concurs. Footnotes [1] In our earlier decision, we held that, because a mistrial withdraws the affected charge and specification from the court-martial and returns them to the convening authority, who may refer them anew, "[w]e do not have jurisdiction to grant the relief requested” and ”[t]he Government’s remedy is thus not an appeal, but the opportunity to retry the affected charges at a new court-martial.” United States v. Dossey, No. 200700537, 2007 WL 3120903, 2007 CCA LEXIS 437 (N.M.Ct.Crim.App. 23 Oct. 2007) at 4. [2] The Government requested a writ of mandamus directing the military judge, prior to any future mistrial declaration in the case, to seek the views of both parties, to clearly state on the record the manifest necessity for declaring a mistrial, and to follow the pertinent rules for courts-martial and precedents. Government Motion for En Banc Reconsideration and Motion for Extraordinary Relief, Errata-Corrected, of 28 Nov 2007 at 24. [3] United States v. Dossey, No. 200700537, unpublished order (N.M.Ct.Crim.App. 5 Dec 2007). [4] The judge stated that the point of his 17 May ruling was "to suppress those things that are traditionally considered communications, that are traditionally afforded some degree of protection as stated in [United States v.] Long [64 M.J. 57 (C.A.A.F.2006)].” He said his ruling covered "things that are actually typed that could be considered communications," but evidence the accused sat at a particular terminal or energized a particular search engine were not covered. Record at 279-80. [5] Prosecution Exhibit 13 is a spreadsheet prepared from information in the index.dat file in the appellee’s computer account profile on the ship’s server. That file records the history of appellee’s Internet usage. The spreadsheet includes, inter alia, search terms the appellee entered into Internet search engines. [6] The original charge and its sole specification. [7] Additional Charge I and its sole specification. [8] On 11 December 2007, the Government notified the court that the members remained available to continue the trial in this case. Statement under penally of perjury of LT Michael J. Marinello, JAGC, USN, Trial Counsel of 11 Dec 2007. [9] The statute also requires the court-martial be one that may impose a punitive discharge. That requirement is clearly met in this case. [10] In 1971, Congress repealed the prior statute authorizing Government appeal in civilian criminal cases and replaced it with the current version. Omnibus Crime Control Act of 1970, 91 P.L. 642, Title III, § 14 (Jan. 2, 1971), 84 Stat. 1890. Since then, Congress has amended the Act four times, making minor modifications, none of which are relevant to the issue at hand. [11] We might agree with the Government that the judge issued an appealable order excluding evidence on 6 June if the judge had applied his 17 May ruling so unreasonably as to constitute a de facto change. Such is not the case. While the trial counsel was, no doubt, genuinely surprised by the judge’s application of the 17 May ruling to Prosecution Exhibit 13, the judge’s application of his 17 May ruling to the developments of 6 June was not a de facto change amounting to a new ruling that restarted the appeal clock. [12] We do not agree with the Government that our superior court has "clearly” held mistrial declarations are appealable under Article 62, nor that the federal circuit courts of appeal have similarly interpreted the Criminal Appeals Act. Brooks, 42 M.J. at 484, cited by the Government, concerned whether entry of a not guilty finding by the military judge, following a guilty verdict by members, was tantamount to dismissal, and therefore appealable. It did not address whether mistrials may be appealed under Article 62. Insofar as Brooks concerns mistrials, it merely establishes appellate courts may vacate such a declaration as a remedy where the mistrial was a consequence of some other appealable order found to be erroneous. Likewise, neither United States v. Keene, 287 F.3d 229 (1st Cir.2002) nor United States v. Harshaw, 705 F.2d 317 (8th Cir.1983), both cited by the Government, involve appeal from a mistrial. Keene concerns appeal from the denial of a motion to dismiss. Harshaw, despite language suggesting it concerns appeal from a mistrial, actually involves review of an evidentiary ruling by the trial court. [13] The author previously opined, in his concurrence to the original decision, that a mistrial did not "terminate the proceedings,” and therefore this court lacked jurisdiction. The author arrived at that conclusion based on the facts that (a) Congress intended Article 62 to be applied in the same manner as the Criminal Appeals Act, (b) the Criminal Appeals Act specifically mentions dismissals, but makes no reference to mistrials, and (c) Article 62's legislative history contains no indication Congress intended it to apply to mistrials. Upon reconsideration, the author is persuaded his earlier concurrence placed too much weight on the lack of mention of mistrial in the legislative histoiy. The better reading of the legislative history is that Congress gave no thought at all to mistrials when enacting Article 62, and had no discernable intent on that matter. Further, Article 62’s legislative histoiy is clear about really only one proposition, viz. Article 62 was meant to give militaiy prosecutors the same broad right to appeal enjoyed by civilian federal prosecutors. On further reflection, the author has concluded the absence of mistrial from the list of appealable orders in the Criminal Appeals Act is likely due to a difference between civilian and military practice. In a federal district court, the jury is almost invariably discharged immediately after a mistrial is declared, creating a fait accompli. Reversal of the mistrial and resumption of the trial is impossible; the only option available to the Government is retrial. Because the original trial cannot resume, there is no need for the Criminal Appeals Act to provide for an interlocutory appeal. By contrast, given the way courts-martial are convened and members detailed to them, it is not necessarily the case that a mistrial creates a fait accompli. In this case, for example, the court-martial remains in existence and the members remain subject to recall to complete the trial. This distinction between military and civilian practice explains why it is inadequate simply to conclude that, because the Criminal Appeals Act does not mention mistrials, such declarations must necessarily not be appeal-able under Article 62, UCMJ. [14] Rosser was a direct appeal under Article 66, UCMJ, 10 U.S.C. § 866, in which the court was reviewing the military judge’s denial of a defense motion for a mistrial; that case did not address whether there is appellate jurisdiction under Article 62, UCMJ, to review mistrial declarations. [15] The search terms reported in the first ten lines are all "amateur facial.” Lines 11 and 12 report the use of the search terms "facial whore." Lines 13 and 14 report the use of the search terms "cumoncarmen.com amateur facial.” Lines 15 through 26 report the use of the search terms "amateur facial.” [16] Because the members were not discharged, but rather excused pending call of the court to resume trial, it remains possible to continue the trial, without offending double jeopardy. See Brooks, 42 M.J. at 487. Because it is unnecessary to do so, we make no decision about whether double jeopardy would bar retrial in this case, — 626 — as argued by the Government. Upon remand, the military judge is of course free to revisit the issue of the necessity for a mistrial, paying due attention to the appropriate factors. If the judge concludes, after due consideration and in the exercise of sound discretion, that a mistrial is necessary to ensure a fair trial, nothing in this decision prevents him from again declaring a mistrial.