United States v. Wuterich

               UNITED STATES, Appellee

                         v.

          Frank D. WUTERICH, Staff Sergeant
             U.S. Marine Corps, Appellant

                     No. 08-6006
              Crim. App. No. 200800183

                         AND

          CBS BROADCASTING INC., Petitioner

                         v.

     NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS,
           THE UNITED STATES OF AMERICA, and
Frank D. WUTERICH, Staff Sergeant, U.S. Marine Corps,
                      Respondents

                   No. 08-8020/MC

                         AND

               In re Frank D. WUTERICH

                   No. 08-8021/MC
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



          United States Court of Appeals for the Armed Forces

                              Argued September 17, 2008

                              Decided November 17, 2008



EFFRON, C.J., delivered the opinion of the Court, in which BAKER
and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting
opinion, in which ERDMANN, J., joined.


                                           Counsel



For Appellant/Petitioner Wuterich: Lieutenant Kathleen L.
Kadlec, JAGC, USN (argued); Colonel Dwight H. Sullivan, USMCR,
and Major Christian J. Broadston, USMC (on brief).



For Petitioner CBS Broadcasting Inc.: Lee Levine, Esq.
(argued); Seth D. Berlin, Esq. (on brief).



For Appellee/Respondent United States:                     Lieutenant Timothy H.
Delgado, JAGC, USN (argued).



For Amicus Curiae in Support of Petitioner CBS Broadcasting
Inc.: Clifford M. Sloan, Esq., Amy R. Sabin, Esq., and David W.
Foster, Esq. (on brief), Skadden, Arps, Slate, Meagher & Flom
LLP.



Military Judge:          Jeffrey G. Meeks




                  THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       Chief Judge EFFRON delivered the opinion of the Court.

       The present case concerns three filings arising out of

United States v. Wuterich, a pending court-martial convened at

Camp Pendleton, California.                United States v. Wuterich, No. 08-

6006, is a petition for grant of review under Article 67(a)(3),

Uniform Code of Military Justice (UCMJ), 

10 U.S.C. § 867

(a)(3)

(2000), filed by Staff Sergeant (SSgt) Frank D. Wuterich

(Appellant), the accused in the pending court-martial.                             In re

Wuterich, No. 08-8021, is a petition for extraordinary relief

filed by SSgt Wuterich under the All Writs Act, 

28 U.S.C. § 1651

(a) (2000).          CBS Broadcasting Inc. v. United States, No. 08-

0820, is a petition for extraordinary relief filed by CBS

Broadcasting Inc., the recipient of a subpoena in the pending

court-martial.         On September 17, 2008, we held a consolidated

hearing on these three filings.

       The consolidated cases involve a ruling by the military

judge in the pending court-martial.                    See infra Part I.

Appellant faces charges of voluntary manslaughter and other

offenses related to the deaths of civilians in Haditha, Iraq.

During the period in which the civilian deaths were under

investigation, Appellant provided an interview to CBS

Broadcasting Inc. regarding the events on the date of and in the

place of the charged offenses.                 CBS subsequently broadcast a

portion of the interview as part of the 60 Minutes television


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program.      The Government issued a subpoena to CBS that included

a request for the outtakes -- the portions of the interview

given by Appellant that were not included in the broadcast.                                CBS

declined to provide the outtakes and filed a motion to quash the

subpoena.       The military judge, without reviewing the content of

the outtakes, granted the motion to quash the subpoena.                              The

Government appealed under Article 62, UCMJ, 

10 U.S.C. § 862

(2000), which provides authority for interlocutory government

appeals similar to the authority available in federal civilian

criminal prosecutions under 

18 U.S.C. § 3731

 (2000).

       The present appeal primarily involves two issues.                           First,

whether the military judge’s ruling is subject to appeal under

Article 62.        Second, whether the military judge erred by

granting the motion to quash the subpoena without first

conducting an in camera review of the contents of the requested

material.

       This Court consistently has looked to the decisions of the

federal courts under section 3731 for guidance in interpreting

the parallel provisions of Article 62.                     See infra Part III.B.1.

Under those decisions, which provide important guidance limiting

such review, a ruling that quashes a subpoena is subject to

interlocutory appellate review.                  See infra Part III.B.2.

Likewise, those decisions provide guidance as to the

circumstances in which it is appropriate for the trial court to


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conduct an in camera review.                See infra Part III.D.              For the

reasons set forth below, we conclude that the ruling of the

military judge was subject to appeal under Article 62.                             We

further conclude that it was an abuse of discretion for the

military judge to quash the subpoena without first conducting an

in camera review of the requested materials.                        In our decretal

paragraph, we order the military judge to review the requested

material prior to ruling on the motion to quash the subpoena.

       Part I summarizes the circumstances leading up to the

current appeal.          Part II describes the issues set forth in each

of the filings.          Part III discusses the procedural and

substantive issues raised by the filings.                       Part IV sets forth

our decision.



                                      I.    BACKGROUND

       A.      THE CHARGES AT THE PENDING COURT-MARTIAL

       The trial of SSgt Wuterich concerns the alleged unlawful

killing of civilians during military operations in Haditha,

Iraq, on November 19, 2005.                During an investigation into the

events in Haditha, Appellant provided a statement on February

21, 2006, concerning this incident and his role.

       Following further investigation, charges against Appellant

were referred for trial by court-martial on December 27, 2007.

The pending charges allege dereliction of duty, voluntary


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manslaughter, aggravated assault, reckless endangerment, and

obstruction of justice, offenses under Articles 92, 119, 128,

and 134, UCMJ, 

10 U.S.C. §§ 892

, 919, 928, 934 (2000).

       B.      STATEMENTS PROVIDED BY APPELLANT TO CBS REGARDING THE
               CHARGED OFFENSES

       On March 18, 2007, the CBS television program 60 Minutes

broadcast a segment entitled “The Killings in Haditha; Staff

Sergeant Frank Wuterich discusses what the Marines did the day

24 Iraqi civilians were killed.”                    At the outset of the

broadcast, the CBS correspondent offered the following

introduction:

               On November 19th, 2005, a squad of United
               States Marines killed 24 apparently innocent
               civilians in an Iraqi town called Haditha.
               The dead included men, women and children as
               young as two. Iraqi witnesses say the
               Marines were on a rampage, slaughtering
               people in the street and in their homes.
               And in December, four Marines were charged
               with murder. Was it murder? Was Haditha a
               massacre? A military jury will decide, but
               there’s no question that Haditha is symbolic
               of a war that leaves American troops with
               terrible choices. The Marine making those
               choices in Haditha was a 25-year-old
               sergeant named Frank Wuterich. He’s charged
               with 18 murders, the most by far, and he’s
               accused of lying on the day that it
               happened. Wuterich faces life in prison.
               None of the Marines charged with murder has
               spoken publicly about this, but tonight
               Staff Sergeant Wuterich says he wants to
               tell the truth about the day he decided who
               would live and who would die in Haditha.




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The segment included questions to Appellant by CBS correspondent

Scott Pelley, statements by Appellant, observations by Mr.

Pelley regarding Appellant’s statements, other commentary by Mr.

Pelley, and statements by other individuals.                        The segment

consisted of about one-half hour of broadcast time.

        The statements broadcast by CBS were made during an on-

camera interview with Appellant conducted by Mr. Pelley in

October 2006.         According to Mr. Pelley, “During our interview,

Staff Sergeant Wuterich recounted the events of the incident at

Haditha.”       The precise length of Appellant’s interview with CBS

is not set forth in the record.                  Defense counsel indicated on

the record that the interview lasted for “hours,” and the

military judge referred to representations that there were

“several hours” of outtakes.                These statements have not been

challenged on appeal.             Subsequent to Appellant’s meeting with

Mr. Pelley, CBS selected portions of the interview for

presentation during the broadcast.

        C.     THE SUBPOENA FOR APPELLANT’S STATEMENTS TO CBS

        The prosecution issued a subpoena to CBS, dated January 16,

2008.     See Rule for Courts-Martial (R.C.M.) 703.                        In pertinent

part, the subpoena required CBS “to deliver any and all video

and/or audio tape(s), to include out-takes and raw footage, of

any and all interviews and/or statements, oral comments, and/or

oral communications or nonverbal acts, actions, and/or


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acknowledgements made by Staff Sergeant Frank D. Wuterich,

United States Marine Corps, recorded by or for, or in the

possession of, CBS News.”               The subpoena also noted that “SSgt

Frank D. Wuterich is a criminal defendant and any/all statements

made by him or his defense counsel concerning his actions could

be deemed to be admissions and admissible at the trial of the

facts . . . .”

       CBS moved to quash the portion of the subpoena that sought

production of the unaired footage.                   In support of the motion,

CBS cited R.C.M. 703(f)(4)(C), which authorizes the military

judge to require that a subpoena be withdrawn or modified if it

is “unreasonable or oppressive.”                    CBS also contended that the

subpoena should be quashed because the Government could not meet

its burden of showing that production of the unaired footage was

required under “a qualified reporter’s privilege that is rooted

in both the First Amendment . . . and the common law.”                             As an

alternative to the motion to quash the subpoena, CBS moved that

the military judge issue “a protective order, pursuant to R.C.M.

701(g)(2), precluding the Government from obtaining the

materials sought by the subpoena.”                   CBS agreed to provide and

authenticate a copy of the segment broadcast on 60 Minutes.

       Responding to the CBS motion, the prosecution asserted that

the subpoena reflected a good faith determination that the

outtakes contained admissions from Appellant that were relevant,


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material, and necessary.              The prosecution contended that the

existence of a reporter’s privilege represented a minority view

among the federal courts and that, even under the rulings of

those courts that had found a qualified privilege, the subpoena

should not be quashed.

       The prosecution and CBS submitted detailed briefs to the

military judge, including appendices directed to the question of

whether the information sought in the outtakes was cumulative of

evidence otherwise in the Government’s possession.                           The military

judge reviewed the 60 Minutes broadcast, but he did not obtain

and review the unaired outtakes that were the subject of the

motion to quash.

       The defense did not submit a brief on the CBS motion to

quash.     When the military judge asked whether the defense had a

position on the motion to quash, defense counsel responded:

“No, Your Honor.”

         During a subsequent colloquy with trial counsel, the

military judge commented to trial counsel that after viewing

the 60 Minutes broadcast, “I’m having a hard time seeing what it

is you think that’s there that’s not already there.”                            Trial

counsel responded that the outtakes could provide the

prosecution with the following information about Appellant’s

broadcast statements:




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               The background to those comments. The
               backdrop for his rational[e]. The in-
               context expressions of the accused in the
               context of the interview. Not the snippets.
               Not the sound bites. Not the portion that
               has been edited for broadcast. But the
               context. The totality of his expressions of
               his conduct, and his rational[e] for his
               conduct and the conduct on the part of his
               Marines.

       The military judge then asked defense counsel what position

the defense would take at trial if the prosecution offered into

evidence Appellant’s statements from the 60 Minutes broadcast.

Defense counsel responded that he would object if the

prosecution sought to admit only the broadcast portions of the

interview:       “I would assert the doctrine of completeness [under]

M.R.E. 106 and ask that it all be there for context.”                             At that

point, the military judge asked counsel for CBS what position

CBS would take if the defense asked for the complete interview.

Counsel for CBS responded that “we would, I suspect, file a

similar motion to quash,” depending on the state of the record

at the time, among other factors.                   He further noted that the

burden to overcome the privilege asserted by CBS would rest with

the defense, although the balance might be different in the

context of a defense request.

       Defense counsel requested permission to address the issue,

noting that the defense was not “requesting that these outtakes

be admitted [at] trial.”              Defense counsel further emphasized



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that “we are not a party to the dispute that’s going on today.

And we are also not required to assist the government in

acquiring its evidence or the evidence it thinks it needs.

That’s never our duty . . . .”

       The military judge did not indicate how he might rule if

the defense were to offer a motion to compel introduction of the

interview outtakes under Military Rule of Evidence (M.R.E.) 106.

Instead, he indicated that he would provide both the prosecution

and counsel for CBS with the opportunity to brief that issue

should it arise in the future.

       At the conclusion of arguments on the motion, the military

judge granted the motion to quash the subpoena on the grounds

that “the requirement of necessity has not been met.”                             See

R.C.M. 703(f)(1) (“Each party is entitled to the production of

evidence which is relevant and necessary.”).                        The military judge

took note of “the representation that there are several hours of

outtakes in the possession of CBS which contain information

concerning the accused’s view of the events that occurred on the

19th of November of 2005.”               He also observed that the outtakes

“could be admissible into the evidence as statements of the

accused under Military Rule of Evidence 801(d) [admissibility of

statements by a party-opponent].”                   The military judge concluded,

however, that “with respect to the outtakes, the contents of the

accused’s comments are speculative at this point and the court


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



is concerned that the subpoena in this case likely qualifies as

a fishing expedition.”

        The military judge determined that production of the

requested information was not necessary because “the information

desired here by the government from CBS would be cumulative with

what is already in the hands of the government.”                          See R.C.M.

703(f)(1) Discussion (noting, in the nonbinding commentary

accompanying the rule, that “[r]elevant evidence is necessary

when it is not cumulative and when it would contribute to a

party’s presentation of the case in some positive way on a

matter in issue”).           In the course of reaching his conclusion on

cumulativeness, the military judge considered the availability

to the prosecution of statements by Appellant broadcast in the

60 Minutes segment; other statements made by Appellant prior to

trial; statements made by members of his unit; and the forensic

evidence, photographs, and other physical evidence obtained from

the scene of the charged offenses.

        The military judge also addressed the question of whether

CBS could rely on a newsgathering privilege, stating that he was

persuaded that such a privilege existed “under federal common

law.”     He added, however, that it was not necessary to base his

decision on such a privilege because any motion to quash that

met the “lower standard” of R.C.M. 703 would necessarily meet




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“the greater standard required for disclosure” under a qualified

reporter’s privilege.

       The prosecution asked the military judge to reconsider his

ruling “and order an in camera inspection to determine whether

or not the material in question is in fact cumulative . . .

given the fact that the military judge had not had an

opportunity to review” the material.                    See R.C.M. 703(f)(4)(C)

(providing that when the recipient of a subpoena requests

relief, “the military judge may direct that the evidence be

submitted to the military judge for an in camera inspection to

determine whether such relief should be granted”).                           The military

judge denied the motion without explanation.                        The Government

appealed the ruling to the Court of Criminal Appeals under

Article 62, UCMJ, 

10 U.S.C. § 862

 (2000).                       The United States

Navy-Marine Corps Court of Criminal Appeals vacated the ruling

of the military judge and remanded the case for further

proceedings.        United States v. Wuterich, 

66 M.J. 685, 691-92

 (N-

M. Ct. Crim. App. 2008).



                           II.     THE PENDING PROCEEDINGS

       The present consolidated case addresses three pending

filings that seek review of the decision by the Court of

Criminal Appeals.           In United States v. Wuterich, No. 08-6006,

Appellant has filed a petition for grant of review under Article


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



67(a)(3), UCMJ.          On Appellant’s petition, we have granted review

of the following issues:

               I.     Whether the lower court erred in
                      holding that it has jurisdiction to
                      entertain the Government’s challenge of
                      a discovery ruling pursuant to Article
                      62, UCMJ.

               II.    Whether the lower court erred in
                      holding that the Appellant did not have
                      standing as petitioner/appellee and
                      thereby violated Appellant’s statutory
                      and constitutional right to counsel.

       In a related case, In re Wuterich, No. 08-8021, Appellant

filed a petition for extraordinary relief under 

28 U.S.C. § 1651

(a), as an alternative, in the event that we determined

Appellant lacks standing to appeal under Article 67(a)(3), UCMJ.

In view of our determination, infra Part III.A., that Appellant

has standing to appeal under Article 67(a)(3), UCMJ, we deny the

writ petition as moot.

       The third filing, CBS Broadcasting Inc. v. United States,

No. 08-0820, is a petition for extraordinary relief to obtain

review of the decision by the Court of Criminal Appeals.                              CBS

filed this writ as an alternative to reliance on Appellant’s

petition for grant of review under Article 67(a)(3), UCMJ, as

the vehicle for reviewing the decision of the court below.                               In

the writ petition, CBS suggested that the merits of the decision

by the lower court could be addressed properly during

consideration of Appellant’s petition for review under Article


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67(a)(3), UCMJ.          We agree, and deny the CBS writ petition as

moot.

        The Government appeal under Article 62 automatically stayed

the proceedings before the court-martial pending disposition by

the Court of Criminal Appeals.                 See R.C.M. 908(b)(4).              The Court

of Criminal Appeals subsequently returned the case for further

proceedings before the court-martial.                     

66 M.J. at 691-92

.            Our

Court has not ordered a stay of the pending court-martial

proceedings.        See R.C.M. 908(c)(3).              Neither party has asked us

to issue a stay or otherwise take action with respect to the

status of the court-martial.



                                    III.     DISCUSSION

        In the present case, Appellant -– knowing of the

investigation into the events in Haditha -- granted an interview

to CBS Broadcasting Inc.              CBS, which was aware of the ongoing

investigation, focused the interview on the events occurring on

the date and in the place of the matters under investigation.

CBS broadcast some, but not all, of the statements made by

Appellant during the interview.                  In the nationally televised 60

Minutes program, CBS stated that Appellant wanted “to tell the

truth about the day he decided who would live and who would die

in Haditha.”




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         At this stage in the appellate proceedings, Appellant

neither contests the voluntariness of the statements made during

his CBS interview about the events in Haditha nor claims any

privilege that would preclude use of his statements to CBS in

the pending court-martial.               The majority of the statements made

by Appellant during the CBS interview, however, are not now

available for introduction into evidence at the court-martial.

In response to a Government subpoena for tapes of Appellant’s

entire interview, CBS produced only the broadcast portion.                               It

declined to provide the court-martial with the outtakes, which

contained the majority of Appellant’s interview statements.

       On the record before us, only CBS has access to Appellant’s

full interview regarding the events in Haditha.                          Only CBS -- an

entity that is not a party to the pending court-martial -- is in

a position to assess whether the statements in the outtakes are

exculpatory, inculpatory, or otherwise necessary to enhance the

significance of other statements made by Appellant.

       The military judge ruled that the Government could not have

access to the majority of statements made by the accused in his

interview because the military judge concluded that those

statements -- which he had not reviewed -- were cumulative in

relationship to other evidence available to the Government.                                The

military judge did not explain on the record how he was able to




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assess the content and quality of statements contained in the

outtakes that he had not reviewed.

        Appellant and Petitioner-CBS each contend that the military

judge’s ruling was not appealable under Article 62, UCMJ, the

statute governing prosecution appeals.                     Further, each contends

that the ruling by the military judge, even if subject to

appeal, did not constitute an abuse of discretion.                           In addition,

Appellant contends that the lower court erred in ruling that he

did not have standing to participate in the appellate

proceedings.        Section A of this discussion addresses standing.

Section B discusses government appeals in criminal cases.

Section C considers the Government appeal in the present case.

Section D discusses the military judge’s decision that

production of the outtakes was not necessary because the

evidence therein was cumulative.                    Section E addresses further

proceedings.

                                       A.    STANDING

        After the military judge quashed the Government’s subpoena,

the Government filed an appeal under Article 62, UCMJ.

Appellant filed a motion to dismiss on the grounds that the

military judge’s ruling was not appealable under Article 62,

UMCJ.

        The Court of Criminal Appeals declined to consider

Appellant’s filings on the grounds that Appellant had no


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standing to participate in the Government’s appeal under Article

62, UCMJ.       Wuterich, 

66 M.J. at 688-89

.                 The Court of Criminal

Appeals noted that defense counsel had asserted at trial that

SSgt Wuterich was not a party to the dispute between CBS and the

Government.        

Id. at 688

.         The court primarily relied on cases

involving the concept of standing under the Fourth Amendment, as

well as cases involving privileges and third-party subpoenas.

See 

id. at 688-89

.

       The jurisdictional concept of standing normally concerns

the limitation of the judicial power of the United States to

“[c]ases” and “[c]ontroversies.”                    U.S. Const. art. III, § 2.

See, e.g., Sprint Communc’ns Co. v. APCC Servs., Inc., 

128 S. Ct. 2531, 2535

 (2008) (summarizing the requirements for a

plaintiff in civil litigation to establish standing -- an injury

in fact, causation, and redressability).                      This Court, which was

established under Article I of the Constitution, has applied the

principles from the “cases” and “controversies” limitation as a

prudential matter.           See United States v. Chisholm, 

59 M.J. 151, 152

 (C.A.A.F. 2003).

       The evidentiary concept of standing in criminal cases

concerns the issue of whether a defendant has a sufficient

interest in the object of a search, a claim of privilege, or

other evidentiary matter to prevail on the merits of the

objection.       See, e.g., Rakas v. Illinois, 

439 U.S. 128

, 134-40


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(1978); United States v. Johnson, 

53 M.J. 459, 461-62

 (C.A.A.F.

2000); United States v. Jones, 

52 M.J. 60, 63-64

 (C.A.A.F.

1999).     These cases involve the criteria used to assess the

merits of a criminal defendant’s evidentiary claims, not the

right of a defendant to participate as a litigant in the

assessment of those claims.

       Appellant did not initiate the present litigation.                            He is a

defendant in a criminal case brought by the United States.

Trial defense counsel’s comment regarding the dispute between

the Government and CBS was offered in the context of counsel’s

position that the defense had no obligation to assist the

Government in obtaining the evidence from CBS.                         Defense counsel

expressly addressed the interest of Appellant in the requested

material under the rule of completeness of M.R.E. 106.                             See

supra Part I.C.          The position articulated by trial defense

counsel before the military judge underscores the direct

interest of Appellant in the scope of any ruling at trial or on

appeal regarding the evidence that would be available for

consideration at this trial.

       Appellant sought to persuade the Court of Criminal Appeals

that the military judge’s order was not subject to appeal under

Article 62, and that the case should proceed with a trial on the

merits.      In so doing, Appellant invoked his direct interest in

prompt disposition of the charges, a matter expressly addressed


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in Article 62, UCMJ.            Although it would have been appropriate

for the Court of Criminal Appeals to consider the relationship

of Appellant to the requested material for purposes of assessing

how much weight, if any, to accord Appellant’s views on the

motion to quash the subpoena, it was not appropriate to deprive

him altogether of the opportunity to participate in appellate

litigation having direct consequences on the prompt disposition

of criminal proceedings brought against him by the United

States.

       As a result of the lower court’s erroneous view of

standing, Appellant did not have the opportunity to participate

in the appellate proceedings before that court.                          Under these

circumstances, we vacate the decision of the court below in our

decretal paragraph.            In view of the pending court-martial

proceedings, and because this case involves an issue of law that

does not pertain to the unique factfinding powers of the Court

of Criminal Appeals, we shall review directly the decision of

the military judge without remanding the case to the lower

court.     See United States v. Shelton, 

64 M.J. 32, 37

 (C.A.A.F.

2006) (“When reviewing a decision of a Court of Criminal Appeals

on a military judge’s ruling, we typically have pierced through

that intermediate level and examined the military judge’s

ruling, then decided whether the Court of Criminal Appeals was




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right or wrong in its examination of the military

judge’s ruling.”) (citations and quotation marks omitted).

                   B.    GOVERNMENT APPEALS IN CRIMINAL CASES

       Federal courts, including courts in the military justice

system established under Article I of the Constitution, are

courts of limited jurisdiction.                  See United States v. Lopez de

Victoria, 

66 M.J. 67, 69

 (C.A.A.F. 2008) (noting that such

jurisdiction “is conferred ultimately by the Constitution, and

immediately by statute”).               In criminal cases, prosecution

appeals are not favored and are available only upon specific

statutory authorization.              See 7 Wayne R. LaFave et al., Criminal

Procedure § 27.3(a)-(b) (3d. ed. 2007); United States v. Watson,

386 F.3d 304, 307

 (1st Cir. 2004).                   The constitutional

prohibition on double jeopardy and related statutory

considerations severely limit post-trial appeals by the

prosecution in contrast to the broad appellate rights of the

defense following the conclusion of trial.                       See 7 LaFave, supra,

§ 27.3(a).       In view of these limitations, the prosecution as a

general matter has a somewhat broader opportunity than the

defense to file appeals during the trial.                       See id. § 27.3(c).

Congress has authorized interlocutory government appeals in

federal civilian criminal cases under 

18 U.S.C. § 3731

 (2000).1



1
    The current version of 

18 U.S.C. § 3731

 provides:


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



Congress also has authorized interlocutory prosecution appeals

in cases tried by courts-martial under Article 62, UCMJ, 

10 U.S.C. § 862.2

        In a criminal case an appeal by the United States shall lie to a court
        of appeals from a decision, judgment, or order of a district court
        dismissing an indictment or information or granting a new trial after
        verdict or judgment, as to any one or more counts, or any part thereof,
        except that no appeal shall lie where the double jeopardy clause of the
        United States Constitution prohibits further prosecution.

        An appeal by the United States shall lie to a court of appeals from a
        decision or order of a district court suppressing or excluding evidence
        or requiring the return of seized property in a criminal proceeding,
        not made after the defendant has been put in jeopardy and before the
        verdict or finding on an indictment or information, if the United
        States attorney certifies to the district court that the appeal is not
        taken for purpose of delay and that the evidence is a substantial proof
        of a fact material in the proceeding.

        An appeal by the United States shall lie to a court of appeals from a
        decision or order, entered by a district court of the United States,
        granting the release of a person charged with or convicted of an
        offense, or denying a motion for revocation of, or modification of the
        conditions of, a decision or order granting release.

        The appeal in all such cases shall be taken within thirty days after
        the decision, judgment or order has been rendered and shall be
        diligently prosecuted.

        The provisions of this section shall be liberally construed to
        effectuate its purposes.
2
    The current version of Article 62, UCMJ, provides:

        (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.
           (C) An order or ruling which directs the disclosure of classified
        information.
           (D) An order or ruling which imposes sanctions for nondisclosure of
        classified information.
           (E) A refusal of the military judge to issue a protective order
        sought by the United States to prevent the disclosure of classified
        information.


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



1.     The relationship between Article 62, UCMJ, and 

18 U.S.C. § 3731

       Congress provided authority for interlocutory government

appeals under Article 62, UCMJ, in the Military Justice Act of

1983, 

Pub. L. No. 98-209, § 10

, 

97 Stat. 1393

 (1983).                             Congress

based the legislation on 

18 U.S.C. § 3731

, the statute

applicable to the trial of criminal cases in the federal

district courts.          See S. Rep. No. 98-53, at 6 (1983) (stating

that Article 62 “allows appeal by the government under

procedures similar to an appeal by the United States in a

federal civilian prosecution”); 

id. at 23

 (stating that “[t]o

the extent practicable, the proposal parallels 

18 U.S.C. § 3731

,


          (F) A refusal by the military judge to enforce an order described in
       subparagraph (E) that has previously been issued by appropriate
       authority.
         (2) An appeal of an order or ruling may not be taken unless the trial
       counsel provides the military judge with written notice of appeal from
       the order or ruling within 72 hours of the order or ruling. Such
       notice shall include a certification by the trial counsel that the
       appeal is not taken for the purpose of delay and (if the order or
       ruling appealed is one which excludes evidence) that the evidence
       excluded is substantial proof of a fact material in the proceeding.
         (3) An appeal under this section shall be diligently prosecuted by
       appellate Government counsel.
       (b) An appeal under this section shall be forwarded by a means
       prescribed under regulations of the President directly to the Court of
       Criminal Appeals and shall, whenever practicable, have priority over
       all other proceedings before that court. In ruling on an appeal under
       this section, the Court of Criminal Appeals may act only with respect
       to matters of law, notwithstanding section 866(c) of this title [

10 U.S.C. § 866

(c)] (article 66(c)).
       (c) Any period of delay resulting from an appeal under this section
       shall be excluded in deciding any issue regarding denial of a speedy
       trial unless an appropriate authority determines that the appeal was
       filed solely for the purpose of delay with the knowledge that it was
       totally frivolous and without merit.




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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



which permits appeals by the United States in federal

prosecutions”).

       As Chief Judge Everett noted in United States v. Browers:

               Because the legislative history makes clear
               that Congress intended for Article 62
               appeals to be conducted “under procedures
               similar to [those governing] an appeal by
               the United States in a federal civilian
               prosecution,” we look to federal precedent
               for guidance on this question.

20 M.J. 356, 359

 (C.M.A. 1985) (alteration in original) (quoting

S. Rep. No. 98-53, at 6); accord Lopez de Victoria, 

66 M.J. at 70-71

; 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).

       Federal court decisions interpreting 

18 U.S.C. § 3731

constitute guidance, not binding precedent, in the

interpretation of Article 62, UCMJ.                    When considering the import

of cases arising under 

18 U.S.C. § 3731

, we bear in mind that

“Congress, in enacting the revised Article 62, UCMJ, in 1983,

clearly intended to afford the government a right to appeal

which, ‘to the extent practicable . . . parallels 

18 U.S.C. § 3731

 . . . .’”         Lopez de Victoria, 

66 M.J. at 70

 (first ellipsis

in original) (quoting S. Rep. No. 98-53, at 23).                          In that

regard, we take into account the structural differences between

courts-martial and trials in federal district court, as well as




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the textual similarities and differences with respect to Article

62, UCMJ, and 

18 U.S.C. § 3731

.

       Section 3731, for example, states:                    “The provisions of this

section shall be liberally construed to effectuate its

purposes.”       The First Circuit, in United States v. Watson,

described the legislative background of this provision.                              The

court noted that the initial statute authorizing government

appeals in federal criminal cases referred only to “motion[s] to

suppress.”       

386 F.3d at 308-10

.             Following a series of judicial

decisions narrowly construing this provision, Congress expanded

the statute to cover all orders suppressing or excluding

evidence and added the language on liberal construction to

“‘reverse[] the practice of narrowly interpreting’” the statute.

See 

id.

 at 309 (quoting S. Rep. No. 91-1296, at 37 (1970), and

citing Omnibus Crime Control Act of 1970, 

Pub. L. No. 91-642, § 14

, 

84 Stat. 1880

, 1890 (1971)).                    With respect to the guidance

drawn from cases interpreting 

18 U.S.C. § 3731

, we note that

those cases routinely cite the liberal construction admonition

in the course of addressing the scope of section 3731.                             E.g.,

Watson, 

386 F.3d at 310

; In re Grand Jury Empanelled (Colucci),

597 F.2d 851, 855-56

 (3d Cir. 1979).

       Article 62, UCMJ, on the other hand, contains no language

on statutory construction, and its legislative history does not

demonstrate a rationale for the omission of this language.


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



Therefore, it would be inappropriate to apply the liberal

construction mandate of section 3731 when interpreting Article

62, UCMJ.       This is consistent with our past practice.                        We have

not previously applied an explicit liberal construction when

interpreting Article 62, UCMJ.                 We treat cases interpreting

parallel provisions of 

18 U.S.C. § 3731

 as guidance, not as

mandates; and we apply that guidance only to the extent

consistent with an interpretation of Article 62 that is not

dependent upon the liberal construction admonition.

2.     Appeals under 

18 U.S.C. § 3731

       The issues in the present appeal concern the meaning of the

term “excludes evidence” in Article 62.                      The statute permits the

government to appeal an “order or ruling which excludes evidence

that is substantial proof of a fact material in the proceeding.”

Article 62(a)(1)(B), UCMJ.               Under this provision, trial counsel

must file a certification with the military judge “that the

appeal is not taken for the purpose of delay and (if the order

or ruling appealed is one which excludes evidence) that the

evidence excluded is substantial proof of a fact material in the

proceeding.”        Article 62(a)(2), UCMJ.

       The related provision governing federal civilian criminal

trials, 

18 U.S.C. § 3731

, permits the government to appeal an

order by the trial court “suppressing or excluding evidence.”

The United States Attorney must certify “that the appeal is not


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



taken for purpose of delay and that the evidence is a

substantial proof of a fact material in the proceeding.”                              

Id.

       The courts of appeals have addressed the meaning of the

term “excluding evidence” under 

18 U.S.C. § 3731

 and have

concluded that the term includes an order quashing a subpoena.

See 25 James Wm. Moore et al., Moore’s Federal Practice

¶ 617.08[4] (3d. ed. 2008); 7 LaFave, supra, § 27.3(c).                              The

case law in this area, permitting appeal of an order quashing a

subpoena, predates the enactment of Article 62, UCMJ.                             See,

e.g., Colucci, 

597 F.2d at 856

.

       In Watson, the First Circuit discussed the scope of the

term “excluding evidence” under 

18 U.S.C. § 3731

.                           

386 F.3d at 307

.    The appeal involved a trial court ruling that denied a

government motion for a continuance.                    Prior to trial, the

prosecution asked immigration officials to keep the prosecution

informed of the status of a potential witness.                         The immigration

officials neglected to do so, and deported the witness.                              The

government moved for a continuance to conduct an overseas

deposition.        The trial court denied the motion, noting that the

case was more than three years old, there were speedy trial

issues, the problem was a result of government negligence, and

it could take six to twelve months to obtain the testimony by

deposition.        The government renewed its motion, and the trial




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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



court denied the renewed motion for the same reasons.                             

Id. at 306-07

.

       The court of appeals concluded that the orders denying the

motions were not appealable under 

18 U.S.C. § 3731

 because they

were case-management orders, entered with the purpose of

preventing delay:

               Although the orders appealed from will
               certainly hamper (and may effectively
               prevent) the obtaining and subsequent use of
               [the witness’s] testimony, those orders did
               not, either in substance or in form, limit
               the pool of potential evidence that would be
               admissible at the forthcoming trial. Rather,
               they were premised on, and accomplished, a
               more prosaic goal: the lower court’s
               determination to forestall further delay.
               That was why the court denied the requested
               continuance -- and the practical effect of
               that denial was to clear the way for the
               trial to proceed. That the orders had an
               incidental effect on the government’s
               evidence-gathering is too remote a
               consequence to support appellate
               jurisdiction under the second paragraph of
               section 3731.

Id. at 313

.

       In the course of its opinion, the court of appeals reviewed

the development of 

18 U.S.C. § 3731

 as well as cases applying

the provision to permit appeals of decisions “excluding

evidence.”       The court concluded that an interlocutory

prosecution appeal under section 3731 is permitted when “the

order itself is the practical equivalent of a suppression or

exclusion order; that is, when the order has the direct effect


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



of denying the government the right to use evidence.                            If such an

effect is only incidental, then there can be no appeal.”                              

Id. at 311

.    The cases discussed in Watson in support of this test

reflect a highly case-specific approach to the determination of

whether the effect on the exclusion of evidence is direct or

incidental.        See 

id. at 310-12

.            Watson did not call into

question any of the cases permitting government appeal of an

order quashing a subpoena.

       Under Watson, the pertinent inquiry is not whether the

court has issued a ruling on admissibility, but instead whether

the ruling at issue “in substance or in form” has limited “the

pool of potential evidence that would be admissible.”                             

Id. at 313

.    The distinction drawn by Watson between direct and

incidental effects underscores that the inquiry concerns the

impact of the ruling on the pool of potential evidence, not

whether there has been a formal ruling on admissibility.                              See

id. at 311-12

.

3.     Limitations on appeals under Article 62, UCMJ

       Appellant and Petitioner-CBS contend that the prosecution

may not appeal an order quashing a subpoena under Article 62,

UCMJ, irrespective of the authority for the prosecution to

appeal such orders under 

18 U.S.C. § 3731

.                       According to

Appellant, Chief Judge Everett’s opinion in Browers, 

20 M.J. at 356

, “stands for the proposition that Article 62 authorizes


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



prosecution appeals of orders excluding evidence only where a

military judge rules that certain evidence ‘is inadmissible.’”

       Contrary to Appellant’s assertion, Chief Judge Everett did

not state that such an Article 62 appeal could take place “only”

if the military judge rules that evidence “is inadmissible.”

Browers, like Watson, involved an appeal of a case-management

ruling by the trial judge.               The prosecution at trial moved for a

continuance due to the absence of two witnesses.                          The military

judge denied the motion, noting that the charges were old, one

witness was not likely to be available in the near future, and

the government had failed to keep track of the other witness.

In Browers, Chief Judge Everett concluded that the order was not

appealable because it involved the question of trial scheduling,

not the exclusion of evidence.                 

20 M.J. at 356-60

.

       In the course of discussing this issue, Chief Judge Everett

stated:

               Most lawyers think of exclusion of evidence
               as a ruling made at or before trial that
               certain testimony, documentary evidence, or
               real evidence is inadmissible. In short,
               “excludes” usually is a term of art; and we
               see no reason to believe that Congress had
               any different intention in drafting Article
               62(a)(1).

Id. at 360

.

       Chief Judge Everett referred generally to what “[m]ost

lawyers think” and described “excludes” as a word that “usually



                                               30
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



is a term of art.”           

Id.

     The nonexclusive nature of these

observations underscores that the opinion did not provide either

a formal definition or a comprehensive description of the

meaning of “excludes.”             In context, Chief Judge Everett’s

observations set the stage for his conclusion on the critical

issue in the case:           denial of a continuance, in a case that had

languished, involved a scheduling matter that did not amount to

an exclusion of evidence.               Highlighting the case-management

nature of an order denying a continuance, he stated:                            “Indeed,

we suspect Congress believed that the scheduling of trials

should be left primarily to trial judges and reliance should be

placed on their judgment.”                

Id. at 360

.        His opinion did not

establish a bright-line rule or a comprehensive definition of

“excludes,” nor did it otherwise hold that an order is

appealable under Article 62(a)(1)(B) “only” if there is a formal

ruling that evidence is inadmissible.

       Appellant’s argument suggests that the phrase “excludes

evidence” means something different in military law than the

term “excluding evidence” means in civilian criminal

proceedings.        In that regard, we note that in Browers, Chief

Judge Everett did not state that we should disregard decisions

under 

18 U.S.C. § 3731

 permitting appeal even without a formal

ruling on admissibility.              On the contrary, as noted above in

Part III.B.1., he expressly stated that we “look to federal


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



precedent for guidance” in the interpretation of Article 62.                                

20 M.J. at 359

.        He specifically noted that the government had not

identified any cases arising under 

18 U.S.C. § 3731

 in which

denial of a continuance had been treated as an appealable order.

Id. at 360

.

       In a subsequent dissent, Chief Judge Everett took the

position that the Court in Browers “adopted a narrow

construction of the statutory language.”                      United States v. True,

28 M.J. 1, 5

 (C.M.A. 1989) (Everett, C.J., dissenting).                              His

view, however, was not joined by the other members of the Court.

In that regard, we note that Browers was decided with the

participation of only two Judges, Chief Judge Everett and Judge

Cox.    

20 M.J. at 360

.           Judge Cox -- who concurred separately in

Browers -- did not endorse Chief Judge Everett’s suggestion in

True that the Court in Browers had adopted a “narrow

construction” of Article 62.                Instead, he joined the majority

opinion in True.           

28 M.J. at 4

.         The majority in True rejected a

narrow construction of the statute, noting:                        “Prudent 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.”                          

28 M.J. at 3

.

       In short, this Court’s decision in Browers does not support

the proposition that the term “excludes” in Article 62 refers

only to a ruling that evidence is inadmissible.                          Likewise,


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



Browers does not support the proposition that the term

“excludes” under Article 62 should be construed more narrowly

than the term “excluding” under section 3731.                         On the contrary,

Browers expressly identified case law under section 3731 as an

important source of guidance in interpreting Article 62.                              The

text of Article 62 does not reflect that Congress used the word

“exclude” as a term of art limited to formal rulings on

admissibility.         Cf. Articles 43(d), 57(b), 120(s), UCMJ, 

10 U.S.C. §§ 843

(d), 57(b), 120(s) (2000) (using the terms

“excluded” and “excluding” in various legal contexts to convey

descriptive meanings different from the concept of

admissibility).          Compare Watson, 

386 F.3d at 313

 (describing a

ruling “excluding evidence” under section 3731 as one “that

would, either in substance or in form, limit the pool of

potential evidence that would be admissible”).                         We agree with

the approach taken in Watson, which focused on the pool of

potential evidence, not a formal ruling on admissibility.                               See

supra Part III.B.2.

       The legislative history of Article 62, UCMJ, also does not

reflect that Congress intended the word “exclude” to be a term

of art limited to rulings on admissibility.                        Congress, in

drafting Article 62, UCMJ, did not focus on the word “excludes”

or “excluding.”          To the extent that the state of the law at the

time of enactment illuminates congressional intent, we note that


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



the Colucci case applying 

18 U.S.C. § 3731

 to an order quashing

a subpoena predated enactment of Article 62, UCMJ, by several

years.     See Colucci, 

597 F.2d at 855-56

.                    We need not rely on

that point, however, but instead focus on the meaning of the

word “exclude” in the context of the similar wording in section

3731 (“excluding”) and Article 62 (“excludes”).                          We also focus

on the purpose of Article 62, UCMJ, reflected in its structure

and legislative history, to provide the government in military

cases with the same interlocutory appeal authority as in

civilian criminal cases, “to the extent practicable.”                             See S.

Rep. No. 98-53, at 23 (1983); cf. Article 36, UCMJ, 

10 U.S.C. § 836

 (2000) (authorizing the President to prescribe pretrial,

trial, and post-trial procedural and evidentiary rules that

follow the rules for trials in federal district courts insofar

as the President deems practicable).

       We conclude that application of guidance from the federal

court decisions under 

18 U.S.C. § 3731

 is both practicable and

appropriate.        Under that guidance, a ruling quashing a subpoena

is appealable under Article 62, UCMJ.                     We have specifically

taken into account, and apply, the guidance from cases under 

18 U.S.C. § 3731

 restricting interlocutory government appeals to

those rulings that have a direct rather than incidental effect

on the exclusion of evidence.                 See supra Part III.B.2.               In

reaching this conclusion, we have considered the differences


                                               34
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



between courts-martial and civilian trials, particularly the

emphasis in military law on prompt disposition of trials and

appeals, and the accelerated time frames in Article 62.

Compare, e.g., Article 62(a)(2), UCMJ, with 

18 U.S.C. § 3731

.

See, e.g., Manual for Courts-Martial, United States, pt. I,

para. 3 (2008 ed.); R.C.M. 908.                  Appellate courts in the

military justice system are required to give priority to cases

arising under Article 62 whenever practicable.                         See Article

62(b); C.A.A.F. R. 19(a)(7)(A).                  In the present case, we note

that this Court has not issued a stay of the court-martial

proceedings.        See R.C.M. 908(c)(3).              Neither party has asked us

to issue a stay or otherwise take action with respect to the

status of the court-martial.                See supra Part II.

       The experience in federal civilian courts underscores the

infrequency of government appeals from orders quashing subpoenas

and the effectiveness of judicial interpretations of 

18 U.S.C. § 3731

 in that regard.            In a section 3731 appeal, as in an appeal

under Article 62, the prosecution must certify that the appeal

is not taken for purposes of delay and that the evidence is a

substantial proof of a fact material in the proceedings.

Section 3731 has been interpreted to apply only to rulings that

have a direct rather than an incidental effect of excluding

evidence.       See, e.g., Watson, 

386 F.3d at 311-13

.                      The

interpretation set forth in Watson, which we apply in the


                                               35
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



context of Article 62, provides a significant limitation on the

availability of government appeals.                    We have no reason to

anticipate that application of that interpretation in the

military justice system should differ with respect to the

relative infrequency of government appeals.                        Application of that

interpretation to review of the specific ruling at issue here --

the military judge’s decision to quash a subpoena requesting

statements by the accused to the news media regarding events on

the date of and in the place of the incident under investigation

-- is not likely to have an appreciable effect on the volume of

prosecution appeals under Article 62.                     In light of the text, the

legislative history, the decisions and experiences of courts

applying the parallel provisions of 

18 U.S.C. § 3731

, and

considerations of practicability, we conclude that the term

“excludes evidence” in military law is not different from the

term “excluding evidence” in federal civilian proceedings with

respect to an interlocutory appeal of a decision to quash a

subpoena for the production of evidence.

                       C.    THE APPEAL IN THE PRESENT CASE

       The question before us is not simply the generic question

of whether Article 62, UCMJ, permits appeal of a motion quashing

a subpoena, but whether the ruling at issue in this case had the

direct effect of excluding evidence.                    In resolving that issue,

we consider whether the military judge’s ruling directly limited


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



the pool of potential evidence that would be admissible at the

court-martial.         See Watson, 

386 F.3d at 313

.                  Appellant contends

that the prosecution cannot appeal because the prosecution has

not demonstrated that the outtakes contain any relevant,

admissible evidence, contending that “the Government’s

assertions as to what might be contained in the CBS outtakes

were mere speculation.”              The record before us, however,

demonstrates that the outtakes contain statements by Appellant

about the charged crimes, focusing on the events that transpired

on the day and in the place of the alleged offenses.                            See supra

Part I.B.       Appellant also contends that the ruling is not

appealable because “the ‘admissions’ that the Government

speculates are in the outtakes are available from a number of

other sources.”          However, the question of whether the material

in the outtakes is cumulative goes to the merits of the ruling

by the military judge, not whether that ruling is appealable.

See infra Part III.D.

       According to Appellant, the military judge’s ruling did not

exclude evidence from the court-martial:                      “If the government

ultimately obtains these outtakes through negotiation with CBS

News or alternative means, it [sic] may well be admissible.”                                On

the record before us, CBS has sole possession and control of the

outtakes.       The record does not establish the existence of any




                                               37
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



negotiations or “alternative means” through which the Government

could obtain the outtakes.

       The record reflects that CBS does not believe that it is

appropriate to provide the outtakes to the prosecution.                              CBS has

litigated vigorously a motion to quash the subpoena as well as

the present appeal.            As part of that litigation, CBS has

submitted a declaration from its correspondent, Mr. Pelley,

asserting a variety of negative consequences to the

newsgathering function that would follow “if reporters were to

become known as willing or unwilling investigative agents for

the Government.”          Under these circumstances, the record

establishes that the military judge’s decision had the direct

effect of excluding the outtakes from the pool of potential

evidence that would be admissible at the court-martial.

       In a related argument, Appellant and Petitioner-CBS suggest

that the military judge’s decision to quash the subpoena is not

appealable in this case because the military judge did not

foreclose future consideration of the admissibility of the

outtakes.       The military judge, however, discussed that

possibility in the context of a contingency under the control of

the defense.        During litigation of the motion to quash the

subpoena at trial, the military judge asked trial defense

counsel if he would object to introduction into evidence of the

broadcast statements made by the accused.                       Defense counsel


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



reserved the right to object under M.R.E. 106, the rule of

completeness, which provides, “When a writing or recorded

statement or part thereof is introduced by a party, an adverse

party may require that party at that time to introduce any other

part or any other writing or recorded statement which ought in

fairness to be considered contemporaneously with it.”                             See also

M.R.E. 304(h)(2) (providing a rule of completeness in connection

with an alleged admission or confession).

       The rule of completeness is a rule that benefits the party

opposing admission of evidence, not the party offering the

evidence.       Assuming that the prosecution moves to admit the

broadcast statements, the defense would not be obligated to

object under the rule of completeness.                     Defense counsel

emphasized during discussion of the motion to quash the subpoena

that the defense was “not required to assist the government in

acquiring its evidence or the evidence it thinks it needs,” and

that defense counsel was not “required to anticipate what the

government might try to do and announce all of my objections.”

Likewise, it is not possible to know at this stage whether the

interests of Appellant in presenting the most effective defense

in his trial by court-martial and the interests of CBS as a

newsgathering entity will be similar or different during trial

on the merits.




                                               39
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       At this stage in the proceedings, the possibility of a

future ruling on admissibility of the outtakes under the rule of

completeness rests with the defense.                    Moreover, without having

the content of the outtakes in the record, there is no way of

knowing which parts, if any, of the outtakes would be covered by

the rule of completeness.               Under these circumstances, the

contingent possibility that an opposing party might raise an

objection that could resurrect the need for a subpoena, which is

dependent on multiple variables, does not diminish the direct

effect of the ruling excluding the outtakes.

       In the present case, the military judge ruled that the

evidence requested in the subpoena was cumulative with the

evidence otherwise available to the prosecution.                          See supra Part

I.C.    In so doing, he focused specifically on the pool of

potential evidence that would be admissible at the court-

martial.      As such, his decision to quash the subpoena was

appealable under Article 62, UCMJ, because it had a direct

effect on whether the outtakes would be excluded from

consideration at the court-martial.

       D.    THE MILITARY JUDGE’S DECISION TO QUASH THE SUBPOENA

       The question before us is whether the military judge in

this case erred when he granted the motion to quash the subpoena

on the grounds that it was unnecessary without reviewing in

camera the evidence requested.                 See supra Part I.C.; R.C.M.


                                               40
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



703(f)(1).       We review the military judge’s decision under an

abuse of discretion standard.                 See United States v. Reece, 

25 M.J. 93, 95

 (C.M.A. 1987).

       In trials by courts-martial, “[t]he trial counsel, the

defense counsel, and the court-martial shall have equal

opportunity to obtain witnesses and other evidence in accordance

with such regulations as the President may prescribe.”                             Article

46, UCMJ, 

10 U.S.C. § 846

 (2000).                   The President has provided

that the parties and the court-martial “shall have equal

opportunity to obtain witnesses and evidence, including the

benefit of compulsory process.”                  R.C.M. 703(a).          Under R.C.M.

703(f)(1), “Each party is entitled to the production of evidence

which is relevant and necessary.”                   M.R.E. 401 establishes “a low

threshold of relevance.”              Reece, 

25 M.J. at 95

 (quoting United

States v. Tomlinson, 

20 M.J. 897, 900

 (A.C.M.R. 1985)).                              As

noted in the nonbinding Discussion accompanying R.C.M.

703(f)(1):       “Relevant evidence is necessary when it is not

cumulative and when it would contribute to a party’s

presentation of the case in some positive way on a matter in

issue.”      See Reece, 

25 M.J. at 95

.

       R.C.M. 703(f)(4)(C) provides:                  “If the person having

custody of evidence requests relief on grounds that compliance

with the subpoena or order of production is unreasonable or

oppressive . . . the military judge may direct that the subpoena


                                               41
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



or order of production be withdrawn or modified.”                           Under the

rule, “the military judge may direct that the evidence be

submitted to the military judge for an in camera inspection in

order to determine whether such relief should be granted.”

         Reece considered these provisions on direct review of a

case in which the military judge had declined to review in

camera the social service and counseling records of two

witnesses.       

25 M.J. at 94-95

.            The defense at trial had asserted

that records of drug and alcohol abuse, as well as behavioral

problems, were relevant to the credibility of the witnesses.                                On

appeal, this Court observed that the credibility of the two

witnesses was a key issue at trial and that the appellant had

“made as specific a showing of relevance as possible, given that

he was denied all access to the documents.”                        

Id. at 95

.        Under

the circumstances of the case, Reece held that the military

judge erred in not conducting an in camera review of the

requested materials, and remanded the case for in camera

inspection by a military judge under United States v. DuBay, 

17 C.M.A. 147

, 

37 C.M.R. 411

 (1967).                   

25 M.J. at 95

; cf. United

States v. Cuthbertson, 

630 F.2d 139, 145-46, 148-49

 (3d Cir.

1980) (holding that the trial judge did not err in requiring an

in camera review of trial witness statements when there was a

showing of relevancy, necessity, and specificity, but erred in




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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



requiring an in camera review of non-witness statements without

such a showing).

       In the present case, Appellant argues that the military

judge did not err in quashing the subpoena because “[t]here is

no reason to believe that there are material statements in

excess of what CBS aired on March 17, 2007, as Petitioner’s

[Appellant’s] statements are relatively uniform and indicative

of his subjective intent.”               Appellant further contends that --

               the government also has a wealth of
               additional evidence that can be used to
               demonstrate [Appellant’s] specific intent,
               including forensic evidence, the testimony
               of all of [Appellant’s] squad members, and
               secondary evidence. The testimony of
               Appellant’s squad members is indicative of
               his specific intent, as he trained his squad
               on the rules of engagement and their
               understanding of the rules of engagement
               mirrors his. Appellant’s subjective intent
               is clear from his multiple statements -- he
               declared the buildings and anyone within
               hostile and authorized the use of force. He
               repeatedly admitted to telling them to
               “shoot first and ask questions later.”

(citations omitted).            In similar fashion, Petitioner-CBS notes

that the record is replete with other evidence available to the

Government on the contested issues in the court-martial.

Petitioner-CBS further suggests that an in camera review of the

outtakes is unnecessary because “it is typically the case that

the most relevant and important information is included in the

publicly disseminated news report.”



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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       As we have noted earlier, Appellant granted an interview

with CBS in which he specifically described events at the time

and in the place of the charged offenses.                       CBS conducted the

interview knowing that it involved matters then under

investigation.         The interview lasted for several hours, but only

a portion of the interview was aired by CBS.                        The outtakes

contain a majority of Appellant’s discussion of the charged

offenses with CBS, and only CBS possesses those outtakes.                               See

supra Part I.B-C.

       At this stage in the proceedings, Appellant has pled not

guilty.      Therefore, the issues of his specific intent and other

key elements of the offenses remain in dispute.                          On the record

before us, the case involves both direct and circumstantial

evidence, including statements by Appellant.                        Both the

prosecution and the defense will have the opportunity to

demonstrate the inculpatory or exculpatory value of evidence

that is introduced with respect to the charged offenses.                              Under

those circumstances, the level of detail, the context, and the

credibility of the evidence is likely to be at issue.

       In that setting, the decisions made by CBS as to what was

relevant and important to include in a nationally broadcast news

story are not the same as the judgment by the parties to the

court-martial of what might be relevant and necessary in the

trial of the pending case, which includes both general crimes


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



and unique military offenses.                 Likewise, Appellant’s assessment

that his statements in the record reflect a consistent

expression of intent is a matter that, at this stage in the

proceedings, is likely to be subject to evaluation by the

factfinder at trial.            Moreover, Appellant’s assessment does not

describe the content of the statements in the outtakes.

       In Cuthbertson, the Third Circuit addressed similar

considerations in a case where a news organization sought to

resist a subpoena that requested, in part, material containing

“verbatim and substantially verbatim statements . . . of

witnesses that the government intends to call at trial.”                              

630 F.2d at 148

.        In sustaining the decision of the trial judge to

order production of that material for in camera inspection, the

court observed:

               By their very nature, these statements are
               not obtainable from any other source. They
               are unique bits of evidence that are frozen
               at a particular place and time. Even if the
               defendants attempted to interview all of the
               government witnesses and the witnesses
               cooperated with them, the defendants would
               not obtain the particular statements that
               may be useful for impeachment purposes at
               trial.

Id.; accord United States v. LaRouche, 

841 F.2d 1176, 1180

 (1st

Cir. 1988) (sustaining the trial judge’s decision to order

production of outtakes of a news media interview with a key

trial witness).



                                               45
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       The outtakes of the CBS interview of Appellant about the

events in Haditha on the date of the charged offenses, like the

material at issue in Cuthbertson and LaRouche, constitute a

potentially unique source of evidence that is not necessarily

duplicated by any other material.                   Under the circumstances of

the present case, consideration of whether the outtakes are

cumulative requires review of the requested material by the

military judge.          The military judge’s decision to quash the

subpoena without conducting an in camera review of the requested

material constituted an abuse of discretion.

                               E.    FURTHER PROCEEDINGS

       Petitioner-CBS based the motion to quash the subpoena in

part on the grounds that the outtakes were protected by a

qualified newsgathering privilege.                   Petitioner-CBS relied on

principles related to the newsgathering process and did not

claim that Appellant’s statements were made under conditions of

confidentiality.          Although the military judge indicated

agreement with the concept of a qualified newsgathering

privilege, he found it unnecessary to base his decision on the

privilege because he determined that the outtakes were

cumulative.

       Under M.R.E. 501(a)(4), a privilege may be claimed under

“[t]he principles of common law generally recognized in the

trial of criminal cases in the United States district courts


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



pursuant to Rule 501 of the Federal Rules of Evidence insofar as

the application of such principles in trials by courts-martial

is practicable and not contrary to or inconsistent with the

code, these rules, or this Manual.”                    In the past, this Court has

considered but has not resolved the question of whether a

newsgathering privilege applies in the military justice system.

See United States v. Rodriguez, 

50 M.J. 38

, 38 (C.A.A.F. 1998)

(summary disposition).             On appeal, the parties have referred to

the question of whether a newsgathering privilege should be

recognized in the military justice system, but they have not

asked this Court to resolve whether the subpoena in this case

should have been quashed on a qualified newsgathering privilege.

Under these circumstances, we do not decide here whether such a

privilege should be recognized in the military justice system.

       The issue of an in camera review is a separate matter.

Even to the extent that a qualified privilege has been

recognized by some courts in the trial of federal civilian

cases, the application of such a privilege to an in camera

review has been highly case specific.                     See, e.g., United States

v. Burke, 

700 F.2d 70, 76-78

 (2d Cir. 1983); Cuthbertson, 

630 F.2d at 146-49

.          In that context, even if a qualified privilege

applied to cases in the military justice system -- a matter that

we do not decide here -- such a privilege would not preclude an

in camera review pursuant to R.C.M. 703(f)(4)(C) under the


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



circumstances of the present case.                   The description of the

material at issue in the present case -- video outtakes from a

specific interview in which Appellant discussed the events

occurring on the date of and in the place of the charged

offenses -- is sufficient to meet a threshold showing of

necessity for an in camera review.                   The military judge could not

make an evaluation of necessity under the specific circumstances

of this case without reviewing the outtakes for content and

context.      See supra Part III.D.              Accordingly, we conclude that

the military judge in the present case must conduct an in camera

review of the requested materials prior to ruling on the motion

to quash the subpoena.

       In any further hearing before the military judge on a

motion to quash the subpoena, the military judge alone will

inspect the requested materials in camera.                       Such a hearing,

accompanied by inspection of the requested material in camera by

the military judge alone, will provide the appropriate forum for

consideration of issues pertinent to a motion to quash the

subpoena, such as the existence, if any, of a qualified

newsgathering privilege under M.R.E. 501(a)(4), the scope of any

such privilege, and the application, if any, of such a privilege

to the requested materials.

       Our decision to order inspection in camera by the military

judge alone pertains to the present case.                       We do not decide here


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



whether, under other circumstances, inspection by the parties

under an appropriate protective order would be warranted.                               See

Reece, 

25 M.J. at 95

 n.6.



                                       IV.    DECISION

       We vacate the decision of the United States Navy-Marine

Corps Court of Criminal Appeals and the order of the military

judge quashing the Government’s subpoena.                       We remand the record

of trial to the Judge Advocate General of the Navy for return to

the military judge for further consideration of whether relief

should be granted to Petitioner-CBS under R.C.M. 703.                             Prior to

ruling, the military judge shall order production of the

requested material for in camera inspection by the military

judge alone.




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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting):

       I agree that Appellant has standing to litigate the

Government’s appeal of the military judge’s ruling quashing a

third-party subpoena.             United States v. Wuterich, __ M.J. __

(19-21) (C.A.A.F. 2008).              However, because the Government’s

appeal in this case is an appeal of the military judge’s ruling

on a discovery motion -- a ruling that expressly noted that the

object of the discovery could be admissible1 -- and not “[a]n

order or ruling which excludes evidence,” I disagree that the

United States Navy-Marine Corps Court of Criminal Appeals (CCA)

had jurisdiction under Article 62 of the Uniform Code of

Military Justice (UCMJ), 

10 U.S.C. § 862

 (2000), to hear the

Government’s appeal.            That the CCA had no jurisdiction under the

facts of this case is supported both by the precedent of this

Court and the precedent of the United States Court of Appeals

for the First Circuit.             See United States v. Browers, 

20 M.J. 356, 360

 (C.M.A. 1985) (defining “exclusion” as used in Article

62(a)(1)(B), UCMJ, as a ruling involving inadmissibility);

United States v. Watson, 

386 F.3d 304, 310

 (1st Cir. 2004)

(“[The Criminal Appeals Act] unarguably restricts government

appeals to specific categories of district court orders.                              If an


1
  Transcript of Record at 87, United States v. Wuterich (Feb. 22,
2005) (Article 39(a), UCMJ, session) (“[T]he court clearly finds
that this could be admissible into the evidence as statements of
the accused under Military Rule of Evidence 801(d).”).
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



order falls outside those categories, the government’s attempted

appeal must be dismissed.”) (citation omitted).

       A.    Statutory authorization for a government appeal

       In criminal cases, prosecution appeals are not favored and

are available only upon specific statutory authorization.                               See

United States v. Wilson, 

420 U.S. 332, 336

 (1975); 7 Wayne R.

LaFave et al., Criminal Procedure §27.3(a)-(b) (3d. ed. 2007).

Specifically relevant to this case, Article 62(a)(1)(B), UCMJ,

grants the Government the authority to appeal “[a]n order or

ruling which excludes evidence that is substantial proof of a

fact material in the proceeding.”                   Article 62(b), UCMJ, grants

the CCA the jurisdiction to hear those appeals.

       B.    “Order or ruling which excludes evidence”

       This Court previously adopted a narrow construction of the

language in Article 62, UCMJ, permitting the government to

appeal from an order or ruling “which excludes evidence that is

substantial proof of a fact material in the proceeding.”

Browers, 

20 M.J. at 359-60

.                In Browers, the Court

differentiated appealable decisions from unappealable ones by

asking whether the military judge made a ruling involving the

admissibility of the evidence.                    Writing for the Court, former

Chief Judge Everett defined “excludes evidence” to mean “a

ruling made at or before trial that certain testimony,

documentary evidence, or real evidence is inadmissible.”                               

Id.

 at


                                              2
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



360 (emphasis added).             The Court acknowledged that this

interpretation might result in a party being deprived of

critical evidence, but expressed confidence in the “ability of

military judges to make these delicate determinations.”                              

Id.

       Inexplicably, the majority dismisses former Chief Judge

Everett’s definition in Browers, a decision of this Court, as

mere “observations.”            Wuterich, __ M.J. at __ (31).                  If the

current majority has a different take on what the definition of

“excludes” should be, as it is entitled to have, it should say

so and explicitly overrule Browers rather than mischaracterize a

holding of this Court.2

       The majority suggests that Browers “concluded that the

order was not appealable because it involved the question of

trial scheduling, not the exclusion of evidence.”                           Wuterich, __

M.J. at __ (30).          Browers made no such conclusion, as the

Court’s language plainly demonstrates.                     Browers explicitly

states that “the issue is whether denial of a continuance

requested so that the Government may produce a material witness

constitutes the exclusion of evidence.”                      Browers, 

20 M.J. at 360

(emphasis in original).              The Browers Court concluded that the

2
  Any relevance of the Court’s composition during Browers, which
the majority appears to suggest weighs against the precedential
value of the opinion, Wuterich, __ M.J. at __ (32), is unclear
at best. Chief Judge Everett delivered the opinion of the
Court; Judge Cox, while writing separately to concur in Browers,
did not disagree with Judge Everett’s opinion in general or his
definition of “excludes” in particular.

                                              3
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



denial of a continuance was not an appealable ruling because it

was not an order that “excludes evidence” despite the fact that

the ruling prevented the government from presenting two material

witnesses.       The scheduling ruling in Browers, like the discovery

ruling in this case, deprived the government of evidence, but

did not “exclude” evidence for purposes of Article 62, UCMJ.

       If any doubt remained as to the Court’s intentions in

Browers, former Chief Judge Everett later repeated the

definition of “excludes evidence” as a ruling that “evidence is

inadmissible,” and stated that, in Browers, this Court “adopted

a narrow construction of the statutory language.”                           United States

v. True, 

28 M.J. 1, 5

 (C.M.A. 1989) (Everett, C.J., dissenting)

(citing Browers, 

20 M.J. at 360

).3


3
  The Court in True considered whether the ruling of the military
judge, which abated the court-martial, was one “which terminates
the proceedings,” not whether it was one “which excludes
evidence.” 

28 M.J. at 2

. On that point Chief Judge Everett
agreed. 

Id. at 5

 (Everett, C.J., dissenting). While all
federal circuits to have considered the issue agree that the
analogous language in the first paragraph of 

18 U.S.C. § 3731

(“a decision, judgment, or order of a district court dismissing
an indictment or information or granting a new trial after
verdict or judgment”) should be construed broadly, see, e.g.,
Watson, 

386 F.3d at 308

 (crediting “Congress’s intent that all
such orders would be appealable unless the Double Jeopardy
Clause forbade that course of action”), only the Fifth Circuit
reads “suppresses or excludes evidence” as broadly. See United
States v. Smith, 

135 F.3d 963, 967

 (5th Cir. 1998) (holding that
§ 3731 provides the government with as broad a right to appeal
an order suppressing or excluding evidence as the Constitution
will permit). Consequently the breadth of the language in True,
applicable to statutory language regarding “terminates the
proceedings,” is of doubtful weight when considering the

                                              4
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



       One would think that Browers ends the inquiry as to the

meaning of Article 62(a)(1)(B), UCMJ.                     This Court concluded that

“excludes” was a term of art relating to admissibility of

evidence and saw “no reason to believe that Congress had any

different intention in drafting Article 62(a)(1).”                           Browers, 

20 M.J. at 360

.        This narrow view is consistent with the Supreme

Court’s instruction that the government could only take an

appeal in a criminal case if it had express statutory authority,

Wilson, 

420 U.S. at 336

, and its policy against piecemeal

appeals in criminal cases, “where the defendant is entitled to a

speedy resolution of the charges against him.”                         Will v. United

States, 

389 U.S. 90, 96

 (1967); see also U.S. Const. amend. VI

(“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial . . . .”).

       But despite Browers, the majority looks to the parallel

federal statute, 

18 U.S.C. § 3731

, in search of a different

definition of “an order or ruling which excludes evidence” as

specified by Article 62, UCMJ.                    The majority states that it

agrees with the First Circuit’s approach that defines rulings

excluding evidence under § 3731 as ones that “‘either in

substance or in form, limit the pool of potential evidence that

would be admissible.’”             Wuterich, __ M.J. at __ (33) (quoting


different language “excludes evidence.” While the former
directly implicates the Double Jeopardy Clause, Wilson, 

420 U.S. at 336-37

 (1975), the latter does not.

                                              5
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



Watson, 

386 F.3d at 313

).               I do not believe, however, that the

precedent of the First Circuit supports the Court’s holding

today.

       The First Circuit, noting Congress’s instruction that §

3731 should be construed liberally, concludes only that “the

second paragraph of section 3731, in its present form, covers

all pretrial orders that deny admissibility to virtually any

evidence on virtually any ground.”                   Watson, 

386 F.3d at 309

(emphasis added).           In Watson, a case with a fact pattern similar

to that of Browers, the government attempted to appeal from a

trial judge’s denial of a government motion requesting a

continuance.        Without the continuance, the government could not

depose a key witness and would be forced to prosecute Watson

without the benefit of the witness’s testimony.                          

Id. at 307

.

The First Circuit held that it had no jurisdiction under § 3731

to hear the government’s appeal because the trial court was not

engaged in making an evidentiary ruling.                       Id. at 311.        The court

rejected the government’s argument that the trial court’s

rulings were a but-for cause of the government’s inability to

gather or present evidence at trial.                    Id.     The court explicitly

distinguished between available and admissible evidence, stating

that “[a]lthough the orders appealed from will certainly hamper

(and may effectively prevent) the obtaining and subsequent use

of [the witness’s] testimony, those orders did not, either in


                                              6
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



substance or in form, limit the pool of potential evidence that

would be admissible at the forthcoming trial.”                          Id. at 313

(emphasis added).           For the First Circuit, admissibility, rather

than availability, is the critical factor in determining when

the government may appeal an order under § 3731.                          As in Browers,

even though the trial court’s ruling would “certainly hamper

(and may effectively prevent) the obtaining and subsequent use”

of a witness’s testimony, the First Circuit still held that the

ruling did not exclude evidence.                  Id.     The First Circuit’s

approach is consistent with this Court’s position in Browers,

and different than today’s decision, which implies that any

decision that limits the pool of available evidence would be

appealable under Article 62, UCMJ.

       The majority’s decision is also contrary to the approach

favored by the other federal courts of appeals, which reject the

argument that any trial court order or ruling that hampers or

effectively prevents the obtaining or use of evidence is

appealable by the government under § 3731.                       See, e.g., United

States v. Hickey, 

185 F.3d 1064, 1066-67

 (9th Cir. 1999)

(finding no jurisdiction to hear appeal from order denying

government’s request to unseal defendant’s financial

affidavits); United States v. Camisa, 

969 F.2d 1428, 1429

 (2d

Cir. 1992) (finding no jurisdiction to hear appeal from order

denying government’s request to disqualify defendant’s counsel


                                              7
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



which possibly rendered a witness’s testimony inadmissible).                                As

the First Circuit stated, “[w]hatever incidental effect those

orders may have on evidentiary matters, they are simply not the

proximate cause of the exclusion of any evidence.”                           Watson, 

386 F.3d at 312

.

       C.    The majority’s rule is not supported by the decisions
             of the federal courts of appeals

       The majority suggests that its approach, in the context of

the facts of this case, is consistent with the approach of other

federal circuits.           See Wuterich, __ M.J. at __ (27-29) (“The

courts of appeals have addressed the meaning of the term

‘excluding evidence’ under 

18 U.S.C. § 3731

 and have concluded

that the term includes an order quashing a subpoena.”).                              I

disagree.       In fairness, the federal courts of appeals have at

times permitted appeals under 

18 U.S.C. § 3731

 in cases

involving the quashing of subpoenas in the context of grand jury

investigations.          See, e.g., In re Grand Jury Subpoenas

(Kiefaber), 

774 F.2d 969, 972-73

 (9th Cir. 1985), vacated on

other grounds, 

823 F.2d 383

 (9th Cir. 1987); In re Grand Jury

Empanelled (Colucci), 

597 F.2d 851, 856

 (3d Cir. 1979).                              But

each of those cases relied on the precise language -- “[t]he

provisions of this section shall be liberally construed to

effectuate its purposes” -- in § 3731 that is not present in

Article 62, UCMJ.           See Kiefaber, 

774 F.2d at 972-73

 (“Therefore,



                                              8
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



in light of the legislative direction to construe broadly the

phrase ‘suppressing or excluding evidence,’ we conclude that the

district court’s order quashing the grand jury subpoenas

constitutes an order suppressing or excluding evidence.”)

(footnote omitted); Colucci, 

597 F.2d at 856

 (“In light of this

legislative direction to construe broadly the government’s right

of appeal, this Court has held that orders which do not,

‘strictly speaking,’ suppress evidence but which have the

‘practical effect’ of excluding evidence from a proceeding, are

within the ambit of [section] 3731.”).                     Yet this is the very

language upon which the majority claims not to rely in

construing Article 62, UCMJ.                 Wuterich, __ M.J. at __ (26)

(“[I]t would be inappropriate to apply the liberal construction

mandate of section 3731 when interpreting Article 62, UCMJ.”).

And, of course, at the pre-indictment grand jury stage an

individual is a target, not a defendant, so there is not yet any

Sixth Amendment speedy trial concern.                     See United States v.

Marion, 

404 U.S. 307, 313

 (1971) (“[The Sixth Amendment] would

seem to afford no protection to those not yet accused, nor would

[it] seem to require the Government to discover, investigate,

and accuse any person within any particular period of time.”).

       D.    The majority’s holding is overly broad

       The problems with the majority’s new position are twofold.

First, it highlights that Browers is being overruled sub


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



silentio.       The military judge’s ruling at issue in Browers

clearly limited the pool of evidence that was available to the

government to proffer at trial by preventing the government from

presenting two material witnesses, yet this Court held that the

ruling did not exclude evidence for the purposes of Article 62,

UCMJ.     One cannot reconcile today’s holding with the precedent

of this Court in Browers.

        This highlights the second problem with the majority’s

position.       Although the majority expressly states that a liberal

construction of Article 62, UCMJ, is not warranted, its holding

is extraordinarily broad.               See Wuterich, __ M.J. at __ (25-26)

(stating that because Article 62, UCMJ, contains no language on

statutory interpretation, it would be inappropriate to apply

§ 3731’s liberal construction mandate when interpreting Article

62).    If one accepts that any order or ruling that limits the

pool of evidence that is available to the government is

appealable under Article 62(a)(2)(B), then any ruling by a

military judge that impacts the availability, as opposed to the

admissibility, of evidence would be a proper subject of a

government appeal.           Under the majority’s new rule there is no

principled way to distinguish among:                    garden-variety scheduling

orders, such as those at issue in Browers, which hindered the

government’s ability to offer a witness’s testimony; discovery




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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



rulings of any sort that go against the government; and actual

rulings on the admissibility of evidence.

       The majority relies heavily on the fact that Browers and

Watson considered what it characterizes as case-management

orders to distinguish the holdings in those cases from the

majority’s broad interpretation of § 3731 and Article 62, UCMJ.

See Wuterich, __ M.J. at __ (28-31).                     Presumably, the majority

believes that trial scheduling orders may “limit the pool of

potential evidence” without qualifying under Article 62, UCMJ,

solely because trial scheduling falls within the sound

discretion of the trial judge.                 Of course, neither case rested

on that fact.         Moreover, discovery rulings, as the one in the

instant case undoubtedly is, may “limit the pool of potential

evidence” and are also within the sound discretion of the trial

court.     See, e.g., Diamond Ventures, LLC v. Barreto, 

452 F.3d 892, 898

 (D.C. Cir. 2006) (“[T]he district court has wide

discretion in managing discovery.”); Faigin v. Kelly, 

184 F.3d 67, 84

 (1st Cir. 1999) (“A district court’s case-management

powers apply with particular force to the regulation of

discovery and the reconciliation of discovery disputes.”);

Trepel v. Roadway Express, Inc., 

194 F.3d 708, 716

 (6th Cir.

1999) (“Matters of discovery are in the sound discretion of the

district court.”).           Both types of decisions being within the

discretion of a trial court and potentially or actually limiting


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



the pool of potential evidence, the only distinction available

appears based on ad hoc decisions by this Court.                          This is a

less-than-workable legal standard.

       E.    Admissibility is the touchstone

       A military judge’s ruling quashing a subpoena duces tecum

is a discovery ruling, which may impact the availability of

evidence, but it neither denies the admissibility of the

evidence nor excludes it.               This distinction is an important one

that should make a difference based on the explicit language of

Article 62(a)(1)(B), UCMJ.               Courts faced with a motion to quash

a subpoena duces tecum in a criminal case consider more than

admissibility -– they balance the general public’s duty to

testify, Branzburg v. Hayes, 

408 U.S. 665, 688

 (1972), against

other interests, such as the burden placed on the recipient of

the subpoena, see United States v. Nixon, 

418 U.S. 683, 698

(1974), and the explicitly stated goal of expediting the

defendant’s trial.           See 

id.

       The balancing is contextual and

uses a four-factor test articulated by Judge Weinfeld of the

United States District Court for the Southern District of New

York and adopted by the Supreme Court in Nixon, 

418 U.S. at 699

-

700 (citing United States v. Iozia, 

13 F.R.D. 335, 338

 (S.D.N.Y.

1952)).4      The Weinfeld factors are important because they


4
  The Drafters’ Analysis for Rule for Courts-Martial (R.C.M.)
703(e) also cites Nixon in its discussion of the purpose of a

                                             12
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



illustrate the difference between discovery rulings and

evidentiary orders, a difference the majority ignores.

       Under the Weinfeld test, the moving party cannot require

production of documents prior to trial unless that party shows:

       (1) that the documents are evidentiary and relevant;
       (2) that they are not otherwise procurable reasonably
       in advance of trial by exercise of due diligence; (3)
       that the party cannot properly prepare for trial
       without such production and inspection in advance of
       trial and that the failure to obtain such inspection
       may tend unreasonably to delay the trial; and (4) that
       the application is made in good faith and is not
       intended as a general “fishing expedition.”

Id.

       It may be that a court quashes a subpoena based on the

first Weinfeld factor –- lack of relevancy.                        If so, this would

be a ruling on the admissibility of evidence and fall within

Browers and Watson, even if styled a discovery order by the

trial judge.        In contrast, the other three Weinfeld factors do

not weigh or consider whether the evidence is admissible.

Rather, the second factor considers the burden placed on the

party receiving the subpoena, the third factor considers the

potential impact on the defendant’s right to a speedy trial, and

the fourth factor protects parties from unwarranted requests.

These factors address equitable considerations that protect the




subpoena duces tecum. Manual for Courts-Martial, United States,
Analysis of the Rules for Courts-Martial app. 21 at A21-37 (2008
ed.).

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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



rights of third parties and the defendant, not evidentiary

concerns.

       As the United States Court of Appeals for the District of

Columbia Circuit stated in a case involving a government appeal,

an order regarding a subpoena in no way finally decides that any

of the subpoenaed material must be denied to the jury and

“cannot be deemed an order ‘suppressing or excluding evidence,’

or otherwise within the contemplation of the Criminal Appeal

Act, 

18 U.S.C. § 3731

.”              Nixon v. Sirica, 

487 F.2d 700

, 707 n.23

(D.C. Cir. 1973).           Denials of discovery requests may ultimately

make evidence unavailable, but not all such denials are –- or

should be -- appealable under Article 62, UCMJ, because they

usually do not address the admissibility of the evidence.

       F.    No ruling that evidence is inadmissible in this case

       In this case the ruling of the military judge did not

exclude evidence in any evidentiary sense, although the ruling

may have, or even will have, the effect of making the evidence

unavailable.        The military judge not only refrained from ruling

that the subpoenaed tapes were inadmissible, he opined that they

likely were.        Transcript of Record at 87, Wuterich (Article

39(a), UCMJ, session) (“[T]he court clearly finds that this

could be admissible into the evidence as statements of the

accused under Military Rule of Evidence 801(d).”).                           In his

words, the order was a “discovery denial.”                       Transcript of Record


                                             14
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



at 93, Wuterich (Article 39(a), UCMJ, session).                          Although the

military judge’s ruling “will certainly hamper (and may

effectively prevent) the obtaining and use” of the outtakes by

the Government, the ruling “did not, either in substance or in

form, limit the pool of potential evidence that would be

admissible at the forthcoming trial.”                     Watson, 

386 F.3d at 3131

(emphasis added).

       As CBS acknowledged at oral argument, if the Government

obtains possession of the outtakes, nothing in the military

judge’s order would prevent the Government from proffering the

outtakes as evidence.             Transcript of Oral Argument at 00:35:25,

Wuterich, Nos. 08-6006, 08-8020, 08-8021.                       This is because it

was not an order “which excludes evidence.”                        The majority

ignores this salient fact, and focuses instead on a straw man –-

the possibility that the Government could obtain the outtakes

through negotiation or other means, a possibility it then

dismisses.       Wuterich, __ M.J. at __ (37-38).

       Of course this goes to availability, not admissibility, and

is not relevant for purposes of Article 62(b), UCMJ.                            Further, I

note that CBS attempted to work with the Government by providing

the 60 Minutes broadcast, offering to authenticate it, and

requesting materials from the Government to help determine

whether the outtakes were indeed cumulative.                        In response, the

Government refused either to accept the broadcast or to provide


                                             15
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



CBS with the requested materials.                   CBS Broadcasting Inc.’s

Petition for a Writ of Prohibition and/or Mandamus at 3-4, 5

n.3, United States v. Wuterich, No. 08-8020 (C.A.A.F. July 10,

2008); Transcript of Oral Argument at 00:27:54, Wuterich, Nos.

08-6006, 08-8020, 08-8021.               Given the fluid nature of third-

party discovery in practice, there is no basis for concluding

that absence of progress in light of the Government’s lack of

cooperation is evidence of the futility of negotiations.

       G.    Appellant’s trial

       The previous construction of Article 62, UCMJ, by this

Court in Browers was narrow, consistent with the precept that

government appeals are disfavored and only permitted where

expressly authorized by statute, and consonant with the policy

against piecemeal appeals in criminal cases, “where the

defendant is entitled to a speedy resolution of the charges

against him.”         Will, 

389 U.S. at 96

; see also U.S. Const. amend.

VI (“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial . . . .”); Watson, 

386 F.3d at 310

 (“Section 3731 was ‘carefully circumscribed by Congress

out of a desire (among other reasons) to safeguard individuals

from the special hazards inherent in prolonged litigation with

the sovereign.’”) (quoting United States v. McVeigh, 

106 F.3d 325, 330

 (10th Cir. 1997)); United States v. Kane, 

646 F.2d 4, 7

(1st Cir. 1981) (cautioning that if interlocutory orders related


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United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



to discovery and other preliminary matters were appealable under

the second paragraph of section 3731, “defendants’ rights to a

speedy trial could be subverted”).

       As this case demonstrates, these principles, and the impact

of expansive jurisdiction under Article 62, UCMJ, are of more

than academic concern.             This is especially true in the military

justice system, where defendants’ detailed military counsels are

subject to reassignment and retirement.                      Appellant’s trial was

automatically stayed under R.C.M. 908 in February 2008 by the

Government’s interlocutory appeal of the military judge’s

granting of a motion to quash a third-party subpoena.                             See

R.C.M. 908(b)(4) (providing an automatic stay of a court-martial

pending disposition by the CCA of an interlocutory government

appeal).5       During that period Appellant lost the representation

of both of his detailed military counsel due to retirement.

Appellant’s Reply at 1, United States v. Wuterich, No. 08-6006


5
  The majority implies that the Government’s appeal to this Court
has not delayed this case -- as if Appellant’s court-martial
might somehow proceed in parallel to the appellate proceedings
currently before this Court -- because this Court has not
granted a stay. Of course the court-martial has not proceeded,
and it seems strange to suggest that it would while the Court
entertained this appeal. In any event, the dearth of statutory
procedures relating to whether a proceeding after the appeal to
the CCA is stayed illustrates the concerns I previously raised
regarding this Court’s assumption of jurisdiction to hear
Article 62, UCMJ, appeals –- the statute does not countenance
the involvement of this Court. See United States v. Lopez de
Victoria, 

66 M.J. 67, 74-77

 (C.A.A.F. 2008) (Ryan, J., joined by
Erdmann, J., dissenting).

                                             17
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



(C.A.A.F. Sept. 2, 2008); Transcript of Oral Argument at

00:46:41, Wuterich, Nos. 08-6006, 08-8020, 08-8021.                            The

Government concedes that these losses may prejudice Appellant’s

defense.      Transcript of Oral Argument at 00:47:26, Wuterich,

Nos. 08-6006, 08-8020, 08-8021.

       And to what end?           Common sense suggests that CBS endeavored

to make the 60 Minutes segment at issue as newsworthy as

possible, which at least recommends the idea that to the extent

Appellant made incriminating, shocking, or newsworthy

statements, they are almost certainly in the broadcast, which

CBS provided to the Government.                   Despite the absence of any

support for the suggestion that the contested outtakes contain

anything new, and despite the fact the Government conceded at

argument that it has evidence on every element of every offense,6

the majority’s ruling allows the Government to continue to

litigate this issue and further prejudice Appellant’s defense.

Under the Browers construction, the CCA’s opinion would be

vacated for lack of jurisdiction and Appellant’s trial would

proceed apace.

                                         Conclusion

       Appellant challenges the jurisdiction of the CCA to hear

the Government’s appeal of a military judge’s ruling quashing a


6
  Transcript of Oral Argument at 00:45:44, Wuterich, Nos. 08-
6006, 08-8020, 08-8021.

                                             18
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)



subpoena.       This Court has previously stated that the

“jurisdiction of courts is neither granted nor assumed by

implication” and that “[t]hat maxim is particularly apt in the

case of an Article I court whose jurisdiction must be strictly

construed.”        Loving v. United States, 

62 M.J. 235

, 244 n.60

(C.A.A.F. 2005) (citations and quotation marks omitted).                              The

majority concludes that the CCA has jurisdiction over a military

judge’s order quashing a third-party subpoena, an order that did

not rule that any evidence was inadmissible.                        I believe that

this is an unwarranted expansion of the CCA’s jurisdiction that

cannot be justified by the language of Article 62(a)(1)(B),

UCMJ.     Because the majority’s holding mischaracterizes this

Court’s prior ruling in Browers, threatens defendants’ Sixth

Amendment right to a speedy trial, and opens the door to

interlocutory appeals from discovery rulings, I respectfully

dissent.




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