United States v. Jacobsen
77 M.J. 81
C.A.A.F.2017Background
- Appellee (Sergeant First Class Erik P. Jacobsen) was charged with rape and sexual assault under Article 120, UCMJ.
- At trial the military judge excluded testimony from Army CID Special Agent Reed Van Wagoner as rebuttal evidence and denied reconsideration.
- The Government filed an interlocutory appeal under Article 62, UCMJ, certifying the excluded evidence was "substantial proof of a fact material in the proceeding."
- The Army Court of Criminal Appeals (ACCA) dismissed the appeal for lack of jurisdiction, concluding the military judge’s ruling did not meet Article 62(a)(1)(B)’s requirements.
- The Judge Advocate General certified to the CAAF the narrow legal question whether trial counsel’s Article 62(a)(2) certification is conclusive for establishing appellate jurisdiction.
- The CAAF held the certification is not conclusive, affirmed the ACCA, and returned the case for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prosecutor's Article 62(a)(2) certification that excluded evidence is “substantial proof of a fact material in the proceeding” conclusively establishes appellate jurisdiction | Certification by trial counsel is conclusive and therefore the ACCA had jurisdiction to decide the appeal | Certification is not conclusive; the ACCA must independently determine whether the statutory criteria are met before exercising jurisdiction | The certification is not conclusive; ACCA must satisfy itself that Article 62(a)(1)(B)’s two prongs are actually met before reaching the merits |
Key Cases Cited
- United States v. Wilson, 420 U.S. 332 (government appeals in criminal cases are disfavored)
- Will v. United States, 389 U.S. 90 (limits on government appeals)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (presumption against subject-matter jurisdiction)
- Denedo v. United States, 556 U.S. 904 (Article I tribunals’ jurisdiction defined by statute)
- United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008) (Article 62 appealability analysis and comparison to 18 U.S.C. § 3731)
- United States v. Vargas, 74 M.J. 1 (C.A.A.F. 2014) (dismissing government interlocutory appeal where ruling did not exclude evidence)
- United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010) (no Article 62 jurisdiction when preadmission ruling was not exclusion of evidence)
- United States v. Browers, 20 M.J. 356 (C.M.A. 1985) (dismissal where ruling was not exclusion of evidence)
- United States v. Moskowitz, 702 F.3d 731 (2d Cir. 2012) (construing 18 U.S.C. § 3731 certification as conclusive under that statute)
- United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) (same, interpreting 18 U.S.C. § 3731)