United States v. RosarioMartinez (2026)

The specified issue in this case is: “Did the military judge err in finding the affidavit of the senior member to be incompetent evidence under [Military Rule of Evidence (M.R.E.)] 606(b)(2)(C) and in denying Appellant's motion for appropriate relief to correct an error in the findings worksheet?” The Court answers the specified issue in the negative and therefore affirms the findings and sentence in this case.

I agree that the findings and sentence in this case should be affirmed, but my reasoning is different. I am persuaded by the Government's argument that the Court should not reach the merits of the specified issue because Appellant abandoned the issue when he did not raise it in his appeal to the United States Navy-Marine Corps Court of Criminal Appeals (NMCCA). I therefore respectfully concur only in the judgment of the Court and do not concur in the Court's opinion.

I. Discussion

The Court correctly states the key facts relevant to this appeal. Appellant moved the military judge for appropriate relief on the basis of an affidavit by a member of the court-martial indicating that the members had not followed applicable voting rules when they found him guilty of one specification of sexual assault. The Government opposed the motion, arguing that M.R.E. 606(b) prevented the military judge from considering the member's affidavit. M.R.E. 606(b)(1) provides that “a member of a court-martial may not testify about any ․ incident that occurred during the deliberations of that court-martial” and that the “military judge may not receive a member's affidavit ․ on these matters.”

In a written ruling, the military judge denied relief based on M.R.E. 606. In so doing, the military judge recognized that M.R.E. 606(b)(2)(C) creates an exception that allows a member to testify about whether “a mistake was made in entering the finding or sentence on the finding or sentence forms.” But the military judge ruled that this exception did not apply. Rather, the military judge found “that the affidavit from the senior member produced by the defense [was] an inquiry into the deliberative process.” The affidavit was therefore incompetent evidence and “the court [was] foreclosed from considering matters that occurred during the members’ deliberative process.”

Appellant appealed to the NMCCA, raising two issues. Issue I was: “Did unlawful command influence occur during deliberations where the members discussed the Marine Corps and [Sexual Assault Prevention and Response] policies that any consumption of alcohol renders a person unable to consent to sexual activity and that alleged sexual assault victims have to be believed?” Issue II was: “Was Appellant entitled to a unanimous verdict?” In his brief, Appellant described the military judge's ruling on his motion for appropriate relief, but he did not argue that the military judge had erred by not considering the member's affidavit under the exception in M.R.E. 606(b)(2)(C). On the contrary, every time Appellant mentioned the voting procedures, his arguments concerned the asserted unlawful command influence or his right to a unanimous verdict. The NMCCA, accordingly, did not rule on the challenge now presented under M.R.E. 606(b)(2)(C). United States v. RosarioMartinez, 85 M.J. 535, 541-42 (N-M. Ct. Crim. App. 2024).

The Court also correctly states the law concerning the abandonment of issues on appeal. The United States Supreme Court has explained that “[o]rdinarily an appellate court does not give consideration to issues not raised below.” Hormel v. Helvering, 312 U.S. 552, 556 (1941). But the Supreme Court has qualified this general principle by recognizing that “[t]here may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” 1 Id. at 557.

This Court has adopted the same general principle and qualification. In United States v. Parker, this Court explained:

When a party does not appeal a ruling, the ruling of the lower court normally becomes the law of the case. See United States v. Doss, 57 M.J. 182, 185 (C.A.A.F. 2002). The law-of-the-case doctrine, however, is a matter of appellate policy, not a binding legal doctrine. Because the law-of-the-case doctrine is discretionary, it need not be applied when the lower court's decision is “clearly erroneous and would work a manifest injustice.” Id. at n.* (citing United States v. Williams, 41 M.J. 134, 135 n.2 (C.M.A. 1994)).

62 M.J. 459, 464 (C.A.A.F. 2006). 2

After correctly describing the facts and the law, the Court then holds that this appeal is an “exceptional case” in which the Court should consider an argument that Appellant did not raise before the NMCCA. This is where I part company with the Court's opinion. In my view, this appeal is not an “exceptional case”—as the Supreme Court has used that term—for three reasons.

First, this case reached the NMCCA and this Court through “normal adversarial litigation.” Sims v. Apfel, 530 U.S. 103, 109 (2000). While the Supreme Court has recognized that “the reasons for a court to require issue exhaustion are much weaker” when a “proceeding is not adversarial” in nature, id. at 110, this appeal concerns a fully adversarial criminal case. Appellant had every incentive and a full and fair opportunity to challenge the military order before the NMCCA but he did not do so.

Second, Appellant offers no good reason for not having raised the issue on appeal to the NMCCA. On the contrary, in his briefs before this Court, his enigmatic position is that he somehow “raised this issue on appeal under other exceptions to M.R.E. 606(b)(2).” But as described above, Appellant never argued that the military judge erred by not considering the member's affidavit under M.R.E. 606(b)(2)(C).

Third, this is not a case where settled law demonstrates “the proper resolution is beyond any doubt” or a case “where ‘injustice might otherwise result.’ ” Singleton v. Wulff, 428 U.S. 106, 121 (1976) (quoting Hormel v. Helvering, 312 U.S. 552, 557 (1941)). On the contrary, as the Court's opinion correctly recognizes, there was no settled law regarding the specified issue because this Court had never formally considered the scope of the exception in M.R.E. 606(b)(2)(C). An appellate court cannot always be expected to refrain from correcting unraised errors “if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160 (1936). But here there was no obvious error in the military judge's ruling.

The Supreme Court's principles on abandonment are important because the justice system depends on orderly litigation. For example, as we have remarked many times, this Court benefits greatly from a thorough consideration of issues by a Court of Criminal Appeals. E.g., United States v. Shafran, 85 M.J. 420, 425 n.3 (C.A.A.F. 2025) (commending the Court of Criminal Appeals for its thorough and persuasive analysis). This benefit is lost when we consider arguments that were not presented to a Court of Criminal Appeals. Better results are more likely when we decline to act on a question not raised below, “without prejudice to the disposition of the question wherever appropriately presented.” Blair v. Oesterlein Mach. Co., 275 U.S. 220, 225 (1927).

II. Conclusion

For these reasons, I respectfully concur in the judgment.

FOOTNOTES

1.   Another exception is the “cross-appeal doctrine” described in United States v. Am. Ry. Exp. Co., 265 U.S. 425, 435 (1924). The cross-appeal doctrine is the “familiar principle of appellate practice ․ that ‘[a]n appellee ․ may defend the judgment below on a ground not earlier aired.’ ” United States v. Perkins, 78 M.J. 381, 386 n.8 (C.A.A.F. 2019) (second alteration in original) (emphasis added) (quoting Greenlaw v. United States, 554 U.S. 237, 250 n.5 (2008)). The cross-appeal doctrine does not apply to the issue now before this Court because Appellant is challenging a ruling on a ground that he did not raise at the NMCCA.

2.   Most federal courts use the term “abandonment” to describe the principle that appellants are precluded from arguing issues that they failed to raise in their appellate briefs. 16AA Wright & Miller's Federal Practice & Procedure § 3974.1 (5th ed. 2020). In Parker, however, this Court referred to this principle as the “law-of-the-case doctrine.” 62 M.J. at 464. This description may be confusing because other authorities define the “law-of-the-case doctrine” as “[t]he doctrine that when a point or question arising in the course of a lawsuit has been finally decided, the legal rule or principle announced as applicable to the facts governs the lawsuit in all its later stages and developments.” Law of the Case, Black's Law Dictionary (12th ed. 2024). Under this definition, the law-of-the-case doctrine would serve the more specific function of preventing a decision of a higher court from being relitigated after remand to a lower court. 18B Wright & Miller's Federal Practice & Procedure § 4478 (3d ed. 2019) (explaining that a ruling of a superior court “binds a lower court on remand to the law of the case established on appeal”).

Judge MAGGS, concurring in the judgment.