UNITED STATES v. CABRERA (2023)

PUBLISHED OPINION OF THE COURT

Appellant's case is before us for the second time. Charges were preferred against Appellant on 7 March 2017 alleging two violations of Article 120, Uniform Code of Military Justice [UCMJ],³ for sexual assault by bodily harm and committing a sexual act against the victim, a fellow Marine, while he knew or reasonably should have known that she was asleep. During Appellant's general court-martial, several discovery violations by the Government came to light, resulting in the Defense filing a motion to dismiss the charge and its specifications with prejudice. After accepting written filings and hearing oral argument over the course of two days, the military judge declared a mistrial. On 25 August 2017, the same charges were re-referred to a second general court-martial. Appellant was convicted of both specifications and this Court affirmed the findings and sentence on 12 May 2020. Following our opinion in Appellant's case, Appellant petitioned the Court of Appeals for the Armed Forces [C.A.A.F.] for review, which granted Appellant's petition for additional fact-finding and set aside this Court's decision.⁴ On remand, after the required affidavits were acquired, we granted Appellant's motion for additional fact-finding. After the hearing was completed, the record was returned to this Court and re-docketed on 4 November 2021.

Appellant asserts five assignments of error [AOEs]: (1) after discovery violations resulted in a mistrial without the defense's consent, Appellant's second trial was prohibited by Rule for Courts-Martial [R.C.M.] 915(c)(2)(A), Article 44, UCMJ, and the Double Jeopardy Clause of the Fifth Amendment; (2) Lieutenant Colonel [LtCol][O-5] Kasprzyk's substantive participation in Appellant's case as military judge while simultaneously applying for employment with the prosecution, and his failure to disclose the conflict to the defense, violated R.C.M. 902(a); (3) the trial defense counsel and initial appellate defense counsel were ineffective where they failed to file a motion to compel the Government to produce requested discovery regarding LtCol Kasprzyk's conflict of interest, failed to further investigate the matter, and failed to raise the issue on appeal; (4) Colonel [Col][O-6] Kent's failure to recuse himself from reviewing LtCol Kasprzyk's mistrial ruling violated R.C.M. 902(a); and (5) even if the errors in this case do not individually merit relief, they cumulatively result in denial of a fair trial.

We find merit in Appellant's first AOE. Having found that a mistrial was declared in Appellant's first court-martial after jeopardy attached and before findings, and the declaration was without manifest necessity and over defense objection, double jeopardy attached and should have precluded Appellant's second court-martial. Accordingly, AOEs 2, 3, 4, and 5 are moot. We take action in our decretal paragraph.

I. BACKGROUND

A. Appellant's First Court-Martial

At court-martial, trial counsel first called the victim to testify. During redirect examination, trial counsel asked the victim a leading question related to her decision not to provide text messages to the Government. After objection by trial defense counsel, the Defense requested an Article 39(a), UCMJ, session. During this session, trial counsel admitted to having passed notes with the Victims’ Legal Counsel [VLC] regarding the victim's failure to provide the text messages, a topic brought up by trial defense counsel during cross-examination of the victim. The Defense filed a motion to dismiss with prejudice arising from the discovery violation.

During litigation of the issue, three additional discovery violations were identified. First, it was revealed in the Government's written response to the motion to dismiss that trial counsel had conducted an interview with the victim on the morning of her testimony. Following direct examination of the victim, trial defense counsel had specifically inquired about whether additional interviews were conducted. Trial counsel denied having conducted any additional interviews. An interview did, in fact, take place. During that interview, the victim made inconsistent statements regarding her body position and the state of her clothing when she awoke after the alleged assault. Second, the Government's written response revealed that emails, requested by the Defense, had been provided to the VLC, but not to the Defense. Third, trial counsel provided inadequate information in response to a specific discovery request related to the trial counsel's meeting with the victim. Lieutenant Colonel Kasprzyk, the military judge in Appellant's first court-martial, ruled that the Government committed these discovery violations, finding that the requested information was discoverable, the Government's response was vague, and the Government refused to provide much of what was requested by trial defense counsel.

Following the military judge's ruling, the Defense moved to dismiss Appellant's case with prejudice. Appellant indicated in the motion that he believed there were six appropriate remedy options: (1) dismissal with prejudice; (2) order a mistrial; (3) direct the panel to disregard all explanations regarding the missing text messages and provide a customized spoliation instruction; (4) order complete disclosure of all written communications of the alleged victim or anyone acting as her agent without regard to trial counsel's discretion; (5) conduct an in camera review of all interview and case preparation notes from any trial counsel, legal assistant, or individual acting at the behest of trial counsel for analysis of information that has not been disclosed; (6) order a closed hearing to permit defense counsel to examine VLC regarding his knowledge of facts related to the victim's cell phone without regard to any privilege.⁵ In the “relief requested” section of the motion to dismiss, trial defense counsel stated that Appellant “requests this Honorable Court dismiss with prejudice the Charge and its specifications or provide appropriate relief as suggested above or as the Court sees fit.”⁶

At the subsequent hearing on the written motion, LtCol Kasprzyk sought to clarify the positions of the parties – including specifically the Defense's position on mistrial as a potential remedy. LtCol Kasprzyk opened the Article 39(a) session with a review of the discovery violations and an overview of the potential pathways forward. He noted that “[a]ny option short of mistrial, when dealing with discovery, necessarily requires that the Court and defense would have to rely upon the trial counsel to interpret and apply the law as it pertains to the discovery obligations accurately.”⁷ The military judge then queried counsel, “What is the defense's position on a mistrial․as opposed to a motion to dismiss with prejudice. Which, at this point, ․I'm not inclined․to grant.”⁸

The Defense first articulated that it believed “a mistrial not to be appropriate,” but that a “mistrial is more appropriate than continuing with this trial, with this trial team, or anyone associated with this trial team.”⁹ The Defense, through Appellant's civilian defense counsel articulated that in the event a mistrial was ordered, he believed that “pretty extensive measures” needed to be put into place regarding the way information and discovery would be passed to the new Government trial team.¹⁰ The Defense asked the military judge to consider ¹¹ additional measures, such as releasing Appellant from confinement, if he were to order a mistrial as the remedy for the Government's discovery violations.

The military judge then sought to clarify whether the Defense objected to a mistrial, or if the objection to the mistrial was conditioned upon certain conditions imposed on the Government by the military judge:

MJ: All right. And I want to be clear, so it's clear for the record․my first question, as I interpreted your arguments yesterday with regard to․why mistrial wasn't appropriate, the Court received those arguments in terms of it was an insufficient remedy as compared to a motion to dismiss with prejudice. My question to you now is if the Court were to declare a mistrial, would the defense object?․Do you object to the mistrial? Do you understand the point that --

CDC: I do. I do, sir. And I think I'm looking at it a little different from the Court's perspective. It's this that the defense's lack of objection as preconditions, essentially, to it, that the Court is willing to take, in the course of its ruling, certain measures․to attempt to remedy the prejudice that's created with a mistrial. ․ if the Court can figure out a way that a mistrial eliminates and alleviates those issues, then we're in agreement․but if the Court cannot affirmatively eliminate those issues, then․we are willing to go so far as to say that we object to the mistrial at that point.12

After consulting with the Defense team, civilian defense counsel then stated that a mistrial without these “protective measures” was of no benefit to Appellant.¹³ Civilian defense counsel argued that a mistrial on its face without protective measures would not benefit Appellant and would leave “him exactly where he was, and leave[ ] the government more time to prepare themselves.”¹⁴ However, civilian defense counsel added, that if the trial court could “create a path” to prevent future issues and alleviate these prejudices created by a mistrial, then “a mistrial is satisfactory with the defense.”¹⁵

The military judge responded by first stating that in granting a mistrial, the military judge would not then be able to release Appellant from pretrial confinement – an act that was reserved for the convening authority and thus “outside [the military judge's] authority.”¹⁶ The military judge also stated that he was unable to disqualify trial counsel from sitting on Appellant's future court-martial, should one be convened by the convening authority.¹⁷ The military judge ordered a recess so that civilian defense counsel would have time to confer with the entire defense team. Before going off the record, the military judge stated, “I don't see how [the lesser forms of relief are] going to restore confidence in whatever verdict the members would return․At this point, absent hearing final word, I am prepared to declare a mistrial even over the objection of the defense.”¹⁸

When the court-martial reconvened, the military judge again sought the position of the parties. Trial counsel stated that the Government did not object to a mistrial, and, in an apparent response to earlier comment by the military judge, represented that the regional trial counsel would not detail a member of the then-current trial team to serve as trial counsel on a future court-martial convened to try Appellant. Civilian defense counsel then clarified the position of the Defense:

Our position on mistrial is this: we oppose a mistrial. We will revisit, just for a moment, before I sit down, the motion to dismiss, but absent a mistrial, I think the Court can – given the effect that a mistrial has, I think that the Court can mirror the essential remedy that it's finding – going through the mistrial route—could give if it fashions these appropriate remedies: You grant a continuance, that's declared to be the result of the government's conduct, a disqualification of this trial counsel; and, all legal officers from the Western region to act as new trial counsel, so a disqualification concern folks.”19

Civilian defense counsel then further clarified that the Defense was objecting to a mistrial and instead requesting “disqualification of all judge advocates from the Western region to act as new trial counsel,” a protective order that “limits the information that's passed onto new trial counsel, protecting them from the information that was disclosed by the defense regarding our theories of the case․,” and “a new motion's date to relitigate certain motions, giving the opportunity to the defense to do a new opening statement, re-open cross-examination and keep the same members.”²⁰ After the military judge suggested that the remedies requested by the Defense were a mistrial by another name – because, for example, there would be a new motions date, new examination of witnesses, etc. – civilian defense counsel articulated that a mistrial was not necessary because what the members heard “was not enough for [Defense] to ask for a mistrial”²¹ and could be easily rehabilitated.²²

The military judge issued his written ruling on 23 August 2017. In his ruling, LtCol Kasprzyk declined to grant a dismissal with prejudice because such a remedy would be a “windfall for the accused” and unnecessary because the “issues presented by the lack of discovery [could] be remedied by less drastic measures.”²³ However, the military judge concluded that mistrial was the only appropriate remedy remaining after consideration of all the alternatives suggested by the Defense in its filing and determined that no other remedy would “adequately restore confidence in any verdict from the members.”²⁴ Of the alternative remedies proposed by the Defense, the military judge reasoned that: (1) ordering the Government to permit further discovery would be insufficient because such an order would require trial counsel to fully appreciate discovery obligations in the first place; (2) because the discovery violations related to impeachment evidence of the victim, preventing the Government from introducing evidence related to the victim would result in the same injustice; (3) instructing the members to disregard all explanations related to the missing messages would limit an area of impeachment included by the Defense in its theory of the case presented to the members; (4) allowing the Defense to continue cross-examination would not remedy “any of the other prejudice suffered by the other discovery violations;” (5) a review of the Government's files likewise relied on the completeness of the materials submitted by trial counsel, and; (6) the military judge further concluded that the authority to disqualify trial counsel ²⁵ rested with the convening authority.

Ultimately, reasoning that a mistrial was the only remedy available to restore confidence in the verdict, LtCol Kasprzyk declared a mistrial pursuant “to RCM 915 and over the objection of [Appellant].”²⁶

B. Appellant's Second Court-Martial

On 25 August 2017, the convening authority re-referred the same charges to a second general court-martial where Col Kent presided as the military judge. At his second court-martial, the subject of the instant appeal, Appellant was convicted of both specifications alleged under Article 120, UCMJ, and sentenced to reduction to E-1, forfeiture of all pay and allowances, seven years of confinement, and a dishonorable discharge.

Appellant filed a pretrial motion in his second court-martial requesting a dismissal with prejudice, alleging that LtCol Kasprzyk abused his discretion by ordering a mistrial over defense objection. Col Kent denied Appellant's motion in a written ruling. In his written ruling, he noted that the Defense's initial motion to dismiss arising from the discovery violations listed “mistrial” as one of the proposed alternatives to dismissal with prejudice.²⁷ In his analysis, Col Kent briefly summarized the law he was applying in his decision:

In the previous trial on the charges that gave rise to the instant case, a mistrial was declared after jeopardy attached and before findings. As such, the current trial can proceed unless the previous trial judge abused his discretion and the mistrial was declared without the consent of the defense․.28

The military judge then provided a single paragraph of analysis for each of two issues – whether LtCol Kasprzyk abused his discretion by ordering a mistrial and whether the Defense consented to a mistrial. Colonel Kent's entire analysis regarding the abuse of discretion question is as follows:

The nineteen-page ruling of the previous trial judge demonstrates a thorough command of the law relating to mistrial in courts-martial. Citing Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), the Military Judge identified several failures on the part of the government to disclose information and described how that information could have been used to impeach a government witness. These items, and the haphazard manner in which they came to light, gave the Military Judge concern that additional items of discovery might not yet have been disclosed. The Military Judge decided these circumstances cast substantial doubt on the fairness of the proceedings and concluded that a mistrial was manifestly necessary in the interest of justice. This Court concludes that the previous Military Judge's decision was not arbitrary, fanciful, clearly unreasonable or clearly erroneous; as such, there was no abuse of discretion.29

Next, Col Kent turned his attention to the issue of whether the Defense consented to the mistrial:

Regarding the issue of whether the defense consented to the mistrial, during the litigation of this motion the Civilian Defense Counsel suggested that the defense did not want a mistrial and that the Accused was pleased with the selected members panel, the opening statement, and the cross-examination of the alleged victim. The loss of these, he argued, amounted to prejudice that could not be repaired. The Civilian Defense Counsel claimed to have argued a similar position during the hearing on the initial motion that gave rise to the mistrial. Why then, one wonders, would the defense have listed a demand for a mistrial as its first alternative to the motion to dismiss with prejudice it was pursuing? The discrepancy between these positions seems like disingenuous, opportunistic gamesmanship. This Court concludes that the defense consented to a mistrial by requesting a mistrial in its motion.30

Colonel Kent's analysis did not address the concession made by the Government that LtCol Kasprzyk ordered a mistrial over the objection of the defense.³¹ Nor did Col Kent's written ruling address whether LtCol Kasprzyk's finding that the mistrial was declared “over the objection” of Appellant was clearly erroneous or otherwise an abuse of discretion.³² We note, too, that Col Kent's analysis did not further address whether a mistrial was manifestly necessary, but rather simply stated that LtCol Kasprzyk “decided these circumstances cast substantial doubt on the fairness of the proceedings and concluded that a mistrial was manifestly necessary in the interest of justice.”³³

II. DISCUSSION

A. Standard of Review and the Law

The parties differ in their view of what should be the appropriate standard of review in this case. The issue before this Court is whether Appellant's second trial was prohibited by R.C.M. 915(c)(2)(A), Article 44, UCMJ, and the Double Jeopardy Clause of the Fifth Amendment. Thus, our review necessarily begins with the decision by Col Kent on Appellant's Motion to Dismiss for Violation of Double Jeopardy – filed in the second court-martial where he was ultimately convicted.

Appellant argues that this Court should review Col Kent's decision on Appellant's Double Jeopardy motion de novo, and thus step into the shoes of the second military judge to assess whether LtCol Kasprzyk abused his discretion by declaring a mistrial in Appellant's first court-martial.³⁴ The Government, in contrast, asks this Court to “review Col Kent's Ruling on the Motion to Dismiss, evaluating the legal issue of consent de novo, the mistrial declaration for abuse of discretion, and any underlying factual findings for clear error.”³⁵ The Government also asks this Court to review “the issue of consent – a question of law – de novo, not for an abuse of discretion.”³⁶ Abuse of discretion occurs when, inter alia, a military judge's “factual findings are clearly erroneous.”³⁷

There is an apparent discrepancy in the Government's position. On one hand, the Government asks this Court to review underlying factual findings for clear error – the standard under a review for abuse of discretion – but, on the other hand it asks this Court to review whether Appellant consented to a mistrial de novo. This apparent inconsistency arises from a point of disagreement between the parties: whether consent is a question of law, or a question of fact. R.C.M. 905(c)(2)(A), in relevant part, states:

A declaration of a mistrial shall not prevent trial by another court-martial on the affected charges and specifications except when the mistrial was declared after jeopardy attached and before findings, and the declaration was: An abuse of discretion and without the consent of the defense․38

As Appellant points out, whether the issue of “consent” is a question of fact or law in the R.C.M. 915 context has never been decided by any court.³⁹ To support its position that the consent issue is indeed a question of law, the Government cites to the United States Court of Appeals for the First Circuit's opinion in Toribio-Lugo.⁴⁰ There, the First Circuit wrote: “Here, the threshold determination that the appellant consented to the declaration of mistrial has both factual and legal components․ we review the district court's factual findings for clear error. Whether the facts as found add up to consent is a legal determination that we review de novo.”⁴¹ The Government would ask us to apply this standard to R.C.M. 915 for the first time. We decline to do so.⁴²

As an initial matter, the First Circuit articulated a baseline standard of review that departs from our precedents entirely, calling into question its usefulness in our interpretation of R.C.M. 915.⁴³ Second, in Toribio-Lugo, the First Circuit was reviewing a case where the trial judge refused to solicit input from the parties on whether a mistrial should be granted.⁴⁴ Under the UCMJ, a military judge “shall inquire into the views of the parties” on the matter of mistrial declarations.⁴⁵ The record before us indicates the military judge in Appellant's initial court-martial did just that. Where, as here, the military judge creates a record in which the parties articulate their view on the potential mistrial declaration, we simply cannot view the issue of consent as a legal, vice factual, determination. Although the First Circuit framed its legal question analysis in Toriboio-Lugo as examining whether the “facts as found add up to consent,” we believe on the record before us that no legal arithmetic is necessary: the facts show either that Appellant objected, or that Appellant did not object. Accordingly, we consider the issue of whether Appellant consented to the mistrial declaration to be a question of fact.⁴⁶ We find this approach to be most consistent with the President's Rule for Courts-Martial 915 and the precedents from our superior Court. Accordingly, we apply the following standard of review to the instant appeal.

Whether “a prosecution violates the Double Jeopardy Clause [is an] issue[ ] of law.”⁴⁷ “We review th[is] issue[ ] of law de novo.”⁴⁸ In the course of our de novo review, we step into the position of the military judge and review anew the motions and record that were before him at the time. In this case, we assume the position of Col Kent and review LtCol Kasprzyk's mistrial declaration through the lens of Appellant's double jeopardy motion. “A military judge's determination on a request for mistrial, or his own sua sponte consideration of a mistrial, will not be reversed ‘absent clear evidence of an abuse of discretion.’ ”⁴⁹

The Double Jeopardy Clause ensures that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”⁵⁰ Article 44, UCMJ, provides that “no person may, without his consent, be tried a second time for the same offense.”⁵¹ In the military justice system, jeopardy attaches “after the introduction of evidence.”⁵² One function of the Double Jeopardy Clause is to prevent the Government from gaining knowledge and advantage over the course of a series of prosecutions against an accused for the same offenses.⁵³

However, the prohibition against successive prosecutions is not an absolute guarantee. R.C.M. 915(a) provides that a military judge may declare a mistrial “when such action is manifestly necessary in the interest of justice because circumstances arose which cast substantial doubt upon the fairness of the proceedings.”⁵⁴ R.C.M. 915(c)(2)(A) provides that a mistrial declaration shall not “prevent another court-martial on the affected charges” except when the mistrial was declared after jeopardy attached, before findings, and the declaration was an “abuse of discretion and without the consent of the defense.”⁵⁵ The abuse of discretion standard recognizes that a military judge “has a range of choices and will not be reversed so long as the decision remains within that range.”⁵⁶ However, a military judge abuses his discretion “when his findings of fact are clearly erroneous, the court's decision is influenced by an erroneous view of the law, or the military judge's decision on the issue at hand is outside the range of choices reasonably arising from the applicable facts and the law.”⁵⁷

B. Declaring a Mistrial was an Abuse of Discretion.

We turn first to inquire whether manifest necessity existed. If a mistrial was required by manifest necessity, then the question of consent becomes irrelevant. If the military judge did abuse his discretion by ordering a mistrial without manifest necessity, then the double-jeopardy bar prevents subsequent prosecution for the offense, unless Appellant is found by this Court to have consented to the mistrial declaration.⁵⁸

1. Manifest Necessity

“Manifest necessity” is not a clearly defined concept in military jurisprudence. The Supreme Court enunciated this standard nearly two centuries ago:

In all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. The power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes․.59

No bright-line test exists to determine when there is manifest necessity to order a mistrial in a given prosecution. The federal circuit courts have identified a non-exhaustive list of factors to consider, including: (1) whether counsel were afforded an opportunity to be heard on the issue; (2) whether alternatives to a mistrial were explored, and; (3) whether the judge's decision was made after a sufficient reflection.⁶⁰ These factors are similar to the guidance from the C.A.A.F., which has also identified a non-exhaustive list of factors, including: “the timing of the incident leading to the question of mistrial, the identity of the factfinder, the reasons for a mistrial, and potential alternative remedies; but, most importantly, the desires of and the impact on the defendant.”⁶¹

Further, our superior Court has recognized that a mistrial is a tool of last resort, only to be used when the taint of the underlying error “is ineradicable, that is, only if the trial judge believes that jury's exposure to the evidence is likely to prove beyond realistic hope of repair.”⁶² Reading this guidance together, it is clear that LtCol Kasprzyk made his initial ruling on the mistrial declaration with these very factors in mind. He took action to clarify the Government's and Appellant's positions on the record with respect to a mistrial, and he examined several alternative remedies individually and considered whether they would each on their own repair the taint caused by the underlying discovery violations.

However, after reviewing the military judge's findings, we are nonetheless compelled to conclude that the declaration of a mistrial was an abuse of discretion. After accounting for the military judge's “considerable latitude in determining when to grant a mistrial,”⁶³ we conclude that LtCol Kasprzyk's mistrial declaration was a decision outside of “the range of choices reasonably arising from the applicable facts and the law.”⁶⁴

Clearly, there were less drastic remedies which could have been employed to “prevent a manifest injustice against the accused” and mitigate any prejudice resulting from the discovery violations.⁶⁵ The member panel in Appellant's first court-martial never heard any inadmissible testimony, and at all times was unaware that the discovery violations had taken place. The military judge correctly identified that the discovery violations related only to “impeachment evidence against the complaining witness.”⁶⁶ This tainted not the members’ panel or its ability to fairly and impartially try Appellant's case, but rather had an impact only on the trial defense strategy. There were several remedies available to the military judge which, when used in some combination, could have cured the prejudice in this case including: ordering a continuance to allow discovery to take place, disqualification of trial counsel, allowing the Defense to make a new opening statement, allowing the Defense liberal re-cross of the victim, instructing the members, etc.

In his written ruling, LtCol Kasprzyk discounted the list of remedies individually as each being insufficient alone to cure the prejudice caused by the discovery violations. Here, LtCol Kasprzyk misunderstood his authority and failed to consider the effect that multiple, vice single, alternative remedies would have on curing the prejudice at issue. For example, he concluded that ordering further discovery would be an “insufficient remedy” because the detailed trial counsel failed to “fully understand her discovery responsibilities.”⁶⁷ However, LtCol Kasprzyk failed to consider that he had the authority to disqualify the existing detailed trial counsel ⁶⁸ in addition to ordering other remedies, such as further discovery.

This Court's will not speculate on the exact combination or sequence of remedies that would have created the curative formula in Appellant's first court-martial. Indeed, a military judge at the trial level is best suited to fashion appropriate remedies for violations that occur. However, the military judge here misunderstood or misapplied the law as it related to his authority, and he failed to consider the full range of options available to him. Because less drastic remedies were available, the military judge abused his discretion by ordering a mistrial where there was not a manifest necessity for this extreme remedy.⁶⁹ Several alternative remedies would have allowed the merits of the charges against Appellant to be “resolved by the panel of members already sitting, given the Government one, and only one, opportunity to present its case, and lessened ‘the risk that an innocent defendant may be convicted.’ ”⁷⁰

2. Whether Appellant Consented to a Mistrial

Having found that the mistrial was declared in Appellant's first court-martial without manifest necessity, we now examine whether double-jeopardy prevents subsequent prosecution.

Due to the prejudice involved, military accused retain “primary control over the course to be followed” after an error is identified in the court-martial process.⁷¹ “Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error.”⁷² Lieutenant Colonel Kasprzyk concluded in his written ruling that the declaration of a mistrial was being made over the objection of Appellant.⁷³ Reviewing Col Kent's ruling on Appellant's double jeopardy motion de novo, we must examine whether LtCol Kaspryzk erred in finding that Appellant objected to a mistrial.⁷⁴ We find that Appellant clearly objected to, and did not consent to, the mistrial declaration.⁷⁵

In the instant case, LtCol Kasprzyk went through great lengths to allow civilian defense counsel to fully articulate the Defense's position with regard to a mistrial motion. It is abundantly clear that Appellant initially listed mistrial as one of six potential remedies in his initial motion to dismiss. The Government argues that “Appellant implicitly invited a second trial by listing his first alternative remedy in the Motion to Dismiss of ‘a mistrial.’ ”⁷⁶ For this proposition, the Government relies on Supreme Court precedent from United States v. Dinitz,⁷⁷ which was recently discussed, in dicta, in Currier v. Virginia.⁷⁸ There, the Court said of its prior holding,

In [Dinitz], ․ this Court held that a defendant's mistrial motion implicitly invited a second trial and was enough to foreclose any double jeopardy complaint about it ․ none of the prosecutorial or judicial overreaching forbidden by the Constitution can be found when a second trial follows thanks to the defendant's motion.79

Appellant's case is very different than Dinitz and Currier. In both cases, the appellants moved for a mistrial. In Dinitz, the appellant's attorney, after moving for a mistrial, confirmed orally that “after full consideration of the situation and an explanation of the alternatives before him, [the respondent] feels that he would move for a mistrial and that this would be in his best interest.”⁸⁰ At no time did the appellant in Dinitiz later articulate to the trial judge that he wished to clarify his position, modify his position, or that he objected to a mistrial. The appellant in Currier was indicted for burglary, grand larceny, and unlawful possession of a firearm by a felon.⁸¹ He sought to sever the charges and requested separate trials – one for the burglary and grand larceny, and a second subsequent trial for unlawful possession of a firearm.⁸² After he was acquitted in the first trial, he sought to bar his second trial as prohibited by double jeopardy.⁸³ At no time did the appellant in Currier supplement his request for severance with a statement that he, in fact, objected to severance of the charges.

The Government asks us to expand the holdings of Dinitz and Currier to forever bind a criminal defendant to the initial relief requested in a given motion. We decline to do so.

After requesting mistrial as one of several alternative remedies to his preferred remedy – dismissal with prejudice – the military judge indicated to Appellant that he was “not inclined” to grant dismissal with prejudice.⁸⁴ Civilian defense counsel then stated that a “mistrial would be more appropriate than continuing with this trial team” and stated that the Defense would agree that a mistrial is an appropriate remedy for the discovery violations only if the subsequent trial would have certain “conditions” imposed upon it.⁸⁵ The military judge then explained that he was unable to impose the requested protective conditions onto the second court-martial.⁸⁶ After a brief recess to consider the issue of mistrial, the military judge again solicited the Defense's position. Civilian defense counsel articulated, “[o]ur position on mistrial is this: we oppose a mistrial.”⁸⁷ The Defense then articulated that the trial court could achieve a similar remedy by “grant[ing] a continuance, that's declared to be the result of the government's conduct, a disqualification of this trial counsel; and, all legal officers from the Western region to act as new trial counsel.”⁸⁸ We do not think that the first statement, a clear objection to a mistrial declaration, is in any way conditioned on the second, a clear alternative to a mistrial.

The Government further asks this Court to consider that Appellant never formally withdrew his initial written motion to dismiss with prejudice where he listed a mistrial as a potential remedy. We find this unpersuasive. As an initial matter, holding a litigant to the initial articulation in the motion in this way would undermine the purpose of oral argument, as well as the colloquy between litigants and judges often used by courts to seek clarity. Further, requiring a rule that written motions be withdrawn, rewritten, and refiled anytime an initial filing contained an outdated or prior position would be an undue burden on the military justice system.

We find that the military judge in Appellant's first court-martial did not clearly err when he determined that Appellant did not consent to a mistrial. Appellant's counsel expressed a final and clear objection to the mistrial declaration, which was recognized by both LtCol Kasprzyk and conceded by the Government.⁸⁹

III. CONCLUSION

After careful consideration of the record and briefs of appellate counsel as well as the excellent oral argument, we, reviewing Col Kent's ruling de novo, have determined that LtCol Kasprzyk abused his discretion by declaring a mistrial absent manifest necessity in that the mistrial was declared over the objection of the Appellant. Article 44, UCMJ, provides that “no person may, without his consent, be tried a second time for the same offense.”⁹⁰ As Appellant did not consent to the mistrial, nor, under these facts, was the mistrial manifestly necessary, his second court-martial was prohibited by the Double Jeopardy Clause of the Fifth Amendment.⁹¹ Accordingly, the findings and sentence are SET ASIDE and the Charge and its Specifications are DISMISSED WITH PREJUDICE.

FOR THE COURT:

MARK K. JAMISON Clerk of Court

FOOTNOTES

3.   10 U.S.C. § 920.

4.   United States v. Cabrera, 80 M.J. 374 (C.A.A.F. 2020) (summary disposition).

5.   App. Ex. LXI at 575-577 (emphasis added).

6.   App Ex. LXI at 577 (emphasis added).

7.   M.T. at 852. Citations to the record from Appellant's first court-martial, resulting in a mistrial, are denoted as “M.T.” and citations to the record from the rehearing are denoted as “R.”

8.   M.T. at 855.

9.   M.T. at 855.

10.   M.T. at 855.

11.   M.T. at 855.

12.   M.T. at 856-57.

13.   M.T. at 858.

14.   M.T. at 858.

15.   M.T. at 858.

16.   M.T. at 860.

17.   M.T. at 861 (“And so, for me to say, ‘Here, now, mistrial granted. Trial counsel, you're disqualified. [Appellant] you're released from the brig pending decision of the convening authority,’ while that would make for great theater, I don't believe it's supported by anything in the law.”).

18.   M.T. at 864.

19.   M.T. at 867 (emphasis added).

20.   M.T. at 868.

21.   M.T. at 873.

22.   M.T. at 872-73.

23.   App. Ex. LXV at 21.

24.   App. Ex. LXV at 22.

25.   App. Ex. LXV at 22.

26.   App. Ex. LXV at 23. The military judge also noted in his written ruling that “[civilian defense counsel] clarified that in light of the fact the court was not inclined to find a rule of completeness violation as to Prosecution Exhibit-2, the defense's position on a mistrial was contingent on the court meeting certain conditions. The court declined that invitation.” App Ex. LXV at 21.

27.   App. Ex. LXV at 2.

28.   App. Ex. LXV at 3.

29.   App. Ex. LXV at 3.

30.   App. Ex. LXV at 3-4.

31.   App. Ex. XXII at 2 (“The defense is correct that the Military Judge during the first trial granted a mistrial over its objection.”).

32.   App. Ex. LXV at 23.

33.   App. Ex. LXV at 3.

34.   Appellant's Brief at 16-19.

35.   Appellee's Brief at 21.

36.   Appellee's Brief at 28.

37.   United States v. Hutchins, 78 M.J. 437, 444 (C.A.A.F. 2019).

38.   R.C.M. 905(c)(2)(A) (emphasis added).

39.   Appellant's Brief at 23 n.3.

40.   Appellee's Brief at 28.

41.   United States v. Toribio-Lugo, 376 F.3d 33, 38 (1st Cir. 2004).

42.   Had this Court adopted the standard of review articulated by the Government in its filings and at oral argument, our decision would remain unchanged. Even under the less deferential de novo standard of review, we would still conclude that Appellant ultimately articulated a clear, final, and non-conditional objection to mistrial as a remedy for the discovery violations in his first court-martial. See discussion infra Part II.B.1. This is a material fact in our analysis. Even though we ultimately conclude that a mistrial was not a manifest necessity, and thus an abuse of discretion, the Double Jeopardy question would still turn on the issue of whether Appellant consented. See discussion infra Part II.B.2. Under either standard of review articulated by the parties, we find that Appellant did not consent to a mistrial.

43.   Compare Toribio-Lugo, 376 F.3d at 38 (“The baseline standard of review applicable to a denial of a motion to dismiss on double jeopardy grounds following the declaration of a mistrial is abuse of discretion.”) (citation omitted) with Hutchins, 78 M.J. at 444 (“The question[ ] of ‘[w]hether a prosecution violates the Double Jeopardy Clause [is an] issue of law.’ ․ We review [this] issue[ ] of law de novo.”) (citation omitted).

44.   Toribio-Lugo, 376 F.3d at 40-42 (finding that the trial judge repeatedly “stopped counsel in her tracks, cutting her off” and “firmly rebuff[ing]” her attempts to be heard on the sua sponte mistrial decision).

45.   R.C.M. 915(b).

46.   Although we think resolution of this issue important, we note that, as applied to the instant case, this is a distinction without a difference. If we treated the issue of consent as a question of law subject to de novo review, we would still need to examine the military judge's factual findings to see if those facts “add up” to consent. Toribio-Lugo, 376 F.3d at 38. The Government would ask us to review “any underlying factual findings for clear error.” Appellee's Brief at 21. Under the abuse of discretion standard, where a military judge abuses his discretion when his factual findings are “clearly erroneous,” we end up in much the same place. United States v. Frost, 79 M.J. 104, 109 (C.A.A.F. 2019) (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).

47.   Hutchins, 78 M.J. at 444 (quoting United States v. Brown, 571 F.3d 492, 497 (5th Cir. 2009)).

48.   Id. (citing United States v. Paul, 73 M.J. 274, 277 (C.A.A.F. 2014); United States v. Cessa, 861 F.3d 121, 140 (5th Cir. 2017)).

49.   United States v. Harris, 51 M.J. 191, 196 (C.A.A.F. 1999) (citing United States v. Rushatz, 31 M.J. 450, 456 (C.M.A. 1990); United States v. Jeanbaptiste, 5 M.J. 374, 376 (C.M.A. 1978)).

50.   U.S. Const. amend. V.

51.   Article 44, UCMJ.

52.   Article 44, UCMJ. This is different than the civilian justice system where jeopardy attaches when the jury is empaneled and sworn. In the military justice system, “the accused does not have the same protected interest in retaining the panel of his choosing, and therefore jeopardy does not attach in a court-martial until evidence is introduced. The structure and purpose of the UCMJ and the Manual for Courts-Martial (MCM) also indicate a different intent on the part of Congress and the President, respectively.” United States v. Easton, 71 M.J. 168, 170 (C.A.A.F. 2012).

53.   See, e.g., Green v. United States, 355 U.S. 184, 218-19 (1957).

54.   R.C.M. 915(a).

55.   R.C.M. 915(c)(2)(A).

56.   United States v. Gore, 60 M.J. 178, 187 (C.A.A.F. 2004).

57.   Frost, 79 M.J. at 109 (quoting United States v. Kelly, 72 M.J. 237, 242 (C.A.A.F. 2013)).

58.   Burtt v. Schick, 23 M.J. 140, 142 (C.M.A. 1986); R.C.M. 915(a), (c)(1)(A).

59.   United States v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824).

60.   United States v. Simonetti, 998 F.2d 39, 41 (1st Cir. 1993) (citations omitted).

61.   Harris, 51 M.J. at 196 .

62.   United States v. Diaz, 59 M.J. 79, 90-1 (C.A.A.F. 2003) ( quoting United States v. Freeman, 208 F.3d 332, 339 (1st Cir. 2000) (internal quotation omitted)).

63.   United States v. Seward, 49 M.J. 369, 371 (C.A.A.F. 1998).

64.   Frost, 79 M.J. at 109.

65.   United States v. Rushatz, 31 M.J. 450, 456 (C.A.A.F. 1990).

66.   App. Ex. LXV at 22.

67.   App. Ex. LXV at 21.

68.   See R.C.M. 901(d)(3), discussion.

69.   R.C.M. 915(a).

70.   Burtt, 23 M.J. at 142-43 (quoting Arizona v. Washington, 434 U.S. 497, 504, (1978)).

71.   Harris, 51 M.J. at 196 (quotation omitted).

72.   United States v. Dinitz, 424 U.S. 600, 607 (1976); Article 44, UCMJ.

73.   App. Ex. LXV at 23. The military judge also noted in his written ruling that “[civilian defense counsel] clarified that in light of the fact the court was not inclined to find a rule of completeness violation as to Prosecution Exhibit-2, the defense's position on a mistrial was contingent on the court meeting certain conditions. The court declined that invitation.” App Ex. LXV at 21.

74.   With regard to Col Kent's ruling, we take note that his written motion takes the position that “the previous Military Judge's decision was not arbitrary, fanciful, clearly unreasonable or clearly erroneous; as such there was no abuse of discretion,” but also finds that “the defense consented to a mistrial by requesting a mistrial in its motion.” App. Ex. LXV at 3-4. We find this odd. First, Government conceded that the mistrial was granted over defense objection. Also, Col Kent's written ruling does not articulate any analysis to reach a different conclusion on the question of consent from the first military judge – it does not explain how the first military judge's factual finding was clearly erroneous, nor does it explain how he arrived at the opposite factual finding, but concluded there was no initial abuse of discretion. Although we review Col Kent's ruling de novo regardless, we note similar processes employed in other contexts, such as rulings on Military Rule of Evidence 404(b), would not afford the military judge any deference in this Court's review. See United States v. Manns, 54 M.J. 164, 166 (C.A.A.F. 2000).

75.   Burtt, 23 M.J. at 142 ; R.C.M. 915(a), (c)(1)(A).

76.   Appellee's Brief at 23.

77.   United States v. Dinitz, 424 U.S. 600 (1976).

78.   Currier v. Virginia, 138 S. Ct. 2144 (2018).

79.   Id., at 2151 .

80.   Dinitz, 424 U.S. 600, 604-05.

81.   Currier, 138 S. Ct. at 2148.

82.   Id.

83.   Id.

84.   M.T. at 855.

85.   M.T. at 856-57.

86.   M.T. at 860-61.

87.   M.T. at 867.

88.   M.T. at 867.

89.   App. Ex. XXII at 2.

90.   Article 44, UCMJ.

91.   U.S. Const. amend. V.

DEERWESTER, Senior Judge:

Judges HACKEL and KIRKBY concur.