United States v. Warda (2023)

When the Government was unable to produce immigration records that might contain evidence relevant to his defense, Appellant asked the military judge either to dismiss the charges with prejudice or to abate the proceedings under Rule for Courts-Martial (R.C.M.) 703(f)(2) (2016).¹ The military judge denied this request. The Court and I agree that the principal question in this appeal is whether the military judge abused his discretion in concluding that there was an “adequate substitute” for the evidence that the immigration records might have contained. The Court answers this question in the affirmative. I reach a different conclusion. In my view, the military judge did not abuse his discretion because the remedies that the military judge provided to Appellant reasonably addressed each of the concerns that Appellant presented to the military judge. I therefore respectfully dissent and would affirm the decision of the United States Army Court of Criminal Appeals (ACCA).

I. Background

As the Court recounts, Appellant was charged with raping MB, sexually assaulting MB, and communicating a threat to MB in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934 (2012). Prior to trial, Appellant sought discovery of MB's immigration records. His theory was that MB might have filed a petition with the United States Citizenship and Immigration Services (USCIS) in which she sought to remain in the country after their divorce based on immigration law extending immigration benefits to battered spouses or victims of domestic abuse. According to Appellant, the existence of such a petition might support an inference that MB had alternative motives for accusing Appellant of rape and assault—namely, such allegations might help MB to remain in the United States.²

When Appellant's efforts to obtain the records from immigration authorities proved unsuccessful, he moved for dismissal of the charges or abatement of the proceedings under R.C.M. 703(f)(1), which provides that “[e]ach party is entitled to the production of evidence which is relevant and necessary.” But if relevant and necessary evidence is unavailable, R.C.M. 703(f)(2) provides:

(2) Unavailable evidence. Notwithstanding subsection (f)(1) of this rule, a party is not entitled to the production of evidence which is destroyed, lost, or otherwise not subject to compulsory process. However, if such evidence is of such central importance to an issue that it is essential to a fair trial, and if there is no adequate substitute for such evidence, the military judge shall grant a continuance or other relief in order to attempt to produce the evidence or shall abate the proceedings, unless the unavailability of the evidence is the fault of or could have been prevented by the requesting party.

If R.C.M. 703(f)(1) and (f)(2) are read together and carefully parsed, they authorize a military judge to abate the proceedings when evidence is unavailable only if seven requirements are satisfied:

(1) “relevant and necessary” evidence at one time existed;

(2) such evidence is now “destroyed, lost, or otherwise not subject to compulsory process”;3

(3) such evidence is “of such central importance to an issue that it is essential to a fair trial”;

(4) “there is no adequate substitute for such evidence”;

(5) “grant[ing] a continuance or other relief in order to attempt to produce the evidence” is not a sufficient measure;

(6) the “unavailability of the evidence is [not] the fault of ․ the requesting party”; and

(7) “the unavailability of the evidence ․ could [not] have been prevented by the requesting party.”

If all seven requirements are satisfied, then the party seeking the evidence has a right to an abatement under R.C.M. 703(f)(2). But if one or more of these requirements is not satisfied, then the party has no right to an abatement.

The military judge denied Appellant's motion based on the first and fourth requirements listed above. Addressing the first element, the military judge concluded that Appellant had not shown by a preponderance of the evidence that the immigration records existed because the USCIS would not confirm that it existed. With respect to the fourth element, Appellant took the position that there was no adequate substitute for the evidence sought because no other evidence could convey MB's motive to fabricate her allegations. The military judge, however, was not convinced. During argument on the motion, the following exchange occurred between the military judge and defense counsel:

MJ: Why wouldn't ․ strenuous cross-examination in these areas that she's not—that she's refused to turn over these records, why is that not an adequate substitute?

DC: It's not an adequate substitute, Your Honor, because we don't have a way of impeaching her. She's now come up to the government and said, “I just didn't want to give [my immigration records] over because I didn't want him to have my personal information.” And very likely a panel member may go, “Well sure I wouldn't want him to have my personal information either, I get that, I understand it.” So, then we're stuck with whatever she says without the ability to impeach her and impeach the falseness that she is going to talk about.

MJ: ․ The Court intends to give you great latitude in the scope of cross-examination, to include the fact there was a court order that indicated that information would be redacted.

DC: Yes, Your Honor.

And the problem with that ․ is we start to get into some tricky situation[s.] I cross her on that, and let's say there was a court order and she claims that she was unaware of the court order. And I say, “Well your SVC was on the email line.” And she says, “Well he didn't tell me.”

MJ: Well we'll take that up as we get to it, I guess.

DC: We get into privilege issues, Your Honor. So, there is no adequate substitute at this point in time.

․

MJ: ․ The Court will grant defense counsel substantial leeway on cross-examination of Ms. [MB,] the alleged victim.

At trial, trial defense counsel rigorously cross-examined MB, seeking to show that her allegations of abuse and domestic violence were motivated by her desire to stay in the country. Trial defense counsel's questions included the following:

If you're an alleged victim of battery, domestic violence, cruelty[,] that's a potential way for you to stay in the country, right?

․

[Y]ou were made aware that in this case the defense, we, had asked for your immigration records, correct?

․

And you were aware too that the government agreed that those records should be produced, right?

․

And that we actually got an order for the military judge, correct?

․

Now, you told the government a few days ago that you did not allow them to get the records because you were afraid about Sergeant Warda getting your personal information, right?

In response, MB asserted that she refused to consent to the production of her records because she “had understood that [Appellant] will get a copy forever and know everything about me where I live, where I work, everything.” At that point, trial defense counsel moved for admission of the military judge's protective order. The military judge did not immediately admit the order but allowed trial defense counsel to show it to MB and read from it. In response to further questioning, MB did not deny having seen the court order, but she denied having read the military judge's order or having understood it.

II. Standards of Review

A military judge's decision not to abate proceedings is reviewed for an abuse of discretion. United States v. Simmermacher, 74 M.J. 196, 199 (C.A.A.F. 2015) (citing United States v. Ivey, 55 M.J. 251, 256 (C.A.A.F. 2001)).

III. Analysis

As explained above, the military judge denied Appellant's motion to dismiss the charges or abate the proceedings on the grounds that two requirements of R.C.M. 703(f) were not met: Appellant had not proven that the immigration records existed, and there was an adequate substitute for the evidence. I address each point in turn.

A. Existence of the Immigration Records

In concluding that Appellant had not established by a preponderance of the evidence that the immigration records existed, the military judge cited the refusal of the USCIS to confirm the existence of immigration records for MB. The ACCA determined that the military judge's finding of fact was not clearly erroneous. If the records do not exist, then the Government has no duty to provide them to Appellant under R.C.M. 703(f), and Appellant is not entitled to abatement. I am reluctant, however, to rely on this reasoning in deciding this case.

In the absence of contrary evidence, “a presumption of regularity attaches to the actions of Government agencies.” United States Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001). Accordingly, if immigration law required the USCIS to create and maintain immigration records for MB, then the military judge should have presumed that the records did exist even if the USCIS would not confirm their existence. See United States v. Engle, 3 C.M.A. 41, 46, 11 C.M.R. 41, 46 (C.M.A. 1953). But in this case neither the military judge nor the ACCA addressed the requirements of immigration law in any depth, and the parties have not adequately addressed it in their briefs. Nor did the military judge explain whether his findings on “requested records” meant all of MB's immigration records or only records regarding a petition for immigration status as a battered spouse or victim of domestic violence. Under these circumstances, I will assume that the relevant immigration records did exist, and I will focus my analysis on the question of whether there were adequate substitutes for the requested immigration records.

B. Adequate Substitutes for the Immigration Records

If the trial is not abated when evidence that may be exculpatory is unavailable, “the trial judge may fashion such remedies as are appropriate to protect the fundamental rights of the accused,” with the “[d]etermination of an appropriate remedy ․ left to the sound discretion of the trial judge.” United States v. Kern, 22 M.J. 49, 52 (C.M.A. 1986) (citing United States v. Loud Hawk, 628 F.2d 1139, 1151 (9th Cir. 1979) (Kennedy, J., concurring)).

A military judge does not abuse his discretion in crafting a remedy for missing evidence if the military judge adequately addresses the legitimate concerns of the accused. In Kern, the government charged the accused with stealing military property worth $2,647.72. Id. at 50. The accused sought a dismissal of the charge because the government was unable to produce the property but instead could produce only photographs of it. Id. at 50, 52. The military judge reasoned that “the Government's inability to produce the property did not affect appellant's ability to present a defense to the theft but it did affect his ability to defend regarding the value of the property.” Id. at 50. To address this concern, the judge amended the charge sheet by changing the value of the property from “$2,647.72” to “some value.” Id. This Court concluded that the military judge's action was not an abuse of discretion, explaining:

Although there might have been some benefit in having the property in question at the trial in order to clearly establish its condition and value, the military judge did reduce the alleged value of the property, a remedy which certainly protected the rights of the accused; thus, appellant was not harmed by the Government's inability to produce that property.

Id. at 52.

In the present case, as shown in the portions of the record quoted above, trial defense counsel raised several specific concerns during oral argument on Appellant's motion to abate the proceedings. In my view, the military judge recognized the validity of Appellant's stated concerns and addressed each of them with reasonable measures.

Appellant's first concern was that MB would explain away her reluctance to turn over the immigration records on the ground that she did not want Appellant to see her personal information—a concern that the panel members might see as reasonable under the circumstances. The military judge reasonably addressed this concern by allowing trial defense counsel to confront MB with the protective order that required MB's personal information to be redacted. At trial, when MB did in fact testify that she was afraid Appellant would receive all of her personal information, the military judge allowed trial defense counsel to confront her with the order.

Appellant's second concern was that MB would deny that she was aware of the court order. As shown above, the military judge promised to “take that up as we get to it.” But there was ultimately no need to address this concern because MB confirmed that she was aware of the order.

Appellant's third concern was that MB would claim attorney-client privilege or some other privilege, which would thwart effective cross-examination by precluding Appellant from effectively undermining MB's credibility. The military judge responded that he would allow extensive cross-examination to address this concern. In the end, MB did not claim any privilege.

On appeal, Appellant argues that “substantial leeway on cross-examination” at trial turned out not to be an adequate substitute for the immigration records because Appellant could not “impeach [MB's] repeated denials regarding her knowledge of the victim-based application process” for immigration benefits “[w]ithout the actual records.” However, as a plurality of the Supreme Court has explained—though in a different context—“[t]he ability to question adverse witnesses ․ does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987) (plurality opinion). “Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses.” Id.

Trial defense counsel's cross-examination of MB resulted in testimony bearing on her credibility and her alleged motive to testify falsely. For example, when confronted with a restraining order, which stated that she might be killed if she returned to Jordan, MB acknowledged the restraining order but denied ever making that specific claim. She also denied that being “an alleged victim of battery, domestic violence, [or] cruelty” was “a potential way for [her] to stay in the country,” even though she testified that she worked for a nonprofit that provided “legal consultations for immigration services.” And MB never provided an explanation for how she had remained in the United States despite acknowledging that she had originally immigrated with “a conditional green card” that “would have expired in 2019.” Finally, when questioned about her refusal to allow the USCIS to release her immigration records to trial defense counsel, even after the military judge had issued the protective order, MB claimed she had been advised that, if she released the file, Appellant “will know everything and he will [have] the file forever, even if [she] changed [her] address.” She further claimed that she did not understand or did not know that the military judge's order required her personal information to be redacted and that the military judge would first review her records to ensure confidentiality. Trial defense counsel was then able to confront her with the military judge's protective order, which stated that: “The Accused will not have physical or constructive possession of any protected information and the Court will redact out any information relating to [MB's] current address, city and state of residence, and/or current telephone number.”

MB's testimony shows that it was reasonable for the military judge to conclude that “substantial leeway on cross-examination” was an adequate substitute for MB's immigration records. Trial defense counsel was able to use MB's answers on cross-examination to impugn her credibility and motives during closing argument.

Accordingly, the military judge reasonably addressed all of Appellant's concerns at trial. In these circumstances, the military judge did not abuse his discretion in denying the motion for abatement under R.C.M. 703(f). In the apt words of the ACCA, “the judge crafted an appropriate solution to a difficult problem.” United States v. Warda, No. ARMY 20200644, 2022 CCA LEXIS 438, at *9, 2022 WL 2951949, at *4 (A. Ct. Crim. App. July 21, 2022) (unpublished).

IV. Conclusion

For these reasons, I would affirm the decision of the United States Army Court of Criminal Appeals.

FOOTNOTES

1.   R.C.M. 703(f) has since been moved to R.C.M. 703(e). See Exec. Order No. 13,825, Annex 2, § 2, 83 Fed. Reg. 9889, 9959 (Mar. 8, 2018).

2.   Appellant did not argue before the military judge, and does not argue on appeal, that the absence of a petition for battered spouse immigration benefits would also be material and relevant for impeaching MB.

3.   Appellant's position in this appeal is that MB's immigration records were not subject to compulsory process. In the absence of any contrary argument by the Government, I will assume that this position is correct.

Judge MAGGS, dissenting.