United States v. Muwwakkil
2015 CAAF LEXIS 485
| C.A.A.F. | 2015Background
- Accused charged with rape and assault; complaining witness (GP) testified at an Article 32 hearing (~2h15m) that was audio-recorded on two devices; one recorder failed, the other later had its recording deleted due to Government paralegal negligence.
- Investigating officer’s Article 32 report recommended no referral, citing GP’s credibility problems and inconsistent testimony; convening authority nevertheless referred charges.
- Defense learned of the lost Article 32 recording pretrial and sought continuances and then sought the recording or related notes; Government produced only a three-page summarized transcript and declined to produce verbatim recording or additional notes.
- At trial, after GP testified on direct, defense moved under R.C.M. 914 and the Jencks Act to compel production; Government could not produce the recording because it had been lost. The military judge struck GP’s testimony as a remedy under R.C.M. 914(e).
- The Army CCA denied the Government’s Article 62 interlocutory appeal; TJAG certified two issues to the CAAF: (1) correctness of applying the Jencks Act and R.C.M. 914; (2) whether the military judge presumed harm instead of assessing prejudice.
- CAAF affirmed: R.C.M. 914 covers recorded Article 32 testimony; Government’s negligent loss amounted to an effective refusal to produce; striking testimony was within the rule’s mandated remedies and did not require a separate prejudice finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.C.M. 914 / Jencks Act required production of recorded Article 32 testimony | Accused: recorded Article 32 testimony is a "statement" and must be produced for impeachment | Government: Jencks/R.C.M. 914 inapplicable or satisfied by summary; recorded Article 32 testimony not a covered "statement" | Held: Recorded Article 32 testimony qualifies as a "statement" under Jencks and R.C.M. 914; Marsh affirmed this rule |
| Whether the Government’s loss of the recording removes R.C.M. 914 consequences | Accused: Government’s negligence in losing recording equates to an election not to comply, triggering R.C.M. 914(e) remedies | Government: It was not "in possession" at trial so could not "elect" to disobey; sanctions require bad faith | Held: Government negligence does not avoid R.C.M. 914; loss of previously possessed statement can trigger sanctions without proof of bad faith |
| Whether military judge needed to find bad faith before striking testimony | Accused: no bad-faith requirement; rule prescribes remedies when statements not produced | Government: striking testimony requires bad faith and prejudice findings | Held: Court rejects bad-faith prerequisite; good-faith-loss doctrine is narrow and fact-dependent—military judge could find negligence sufficient to deny good-faith excuse |
| Whether prejudice analysis was required before imposing remedy | Accused: R.C.M. 914(e) prescribes remedies; no separate prejudice finding necessary | Government: judge should assess prejudice and not presumptively strike testimony | Held: R.C.M. 914(e) contains no prejudice predicate; military judge was not required to perform a separate prejudice analysis though she effectively considered witness importance and credibility |
Key Cases Cited
- Killian v. United States, 368 U.S. 231 (recognizes good-faith loss doctrine under Jencks)
- Goldberg v. United States, 425 U.S. 94 (Jencks Act purpose: disclosure for impeachment)
- Augenblick v. United States, 393 U.S. 348 (Jencks Act materials include lost tapes; Jencks rulings reviewed for abuse of discretion)
- United States v. Marsh, 21 M.J. 445 (C.M.A. 1986) (Article 32 recorded testimony constitutes a Jencks "statement")
- United States v. Neal, 68 M.J. 289 (C.A.A.F. 2010) (interlocutory appeal principles; review of military judge’s ruling)
- United States v. Sanchez, 635 F.2d 47 (discusses preservation obligation for Jencks materials)
- United States v. Lieberman, 608 F.2d 889 (loss/destruction of recorded statements does not remove Jencks coverage)
- United States v. Ramirez, 174 F.3d 584 (application of Jencks Act to destroyed or lost statements)
- United States v. Riley, 189 F.3d 802 (consideration of witness importance and availability of equivalent material in harmlessness/prejudice context)