United States v. Vargas, 2014 CAAF LEXIS 1156

Background

S Sgt. Ruben Vargas was charged with assault consummated by a battery; trial set and repeatedly continued at parties’ requests; by October 22, 2013 the military judge had granted multiple continuances and warned parties to be ready for trial.
On Oct. 22, after voir dire and at lunch recess, trial counsel said three government witnesses needed to testify the next day (two government employees and an NCIS special agent); government had not subpoenaed them.
The military judge denied the government’s request for a one‑day continuance based on repeated prior delays, case‑management concerns, and the government’s failure to compel witness attendance.
The government indicated it had no further evidence available at that moment and said it intended to appeal; the military judge treated the government as having rested its case.
The government filed an interlocutory appeal under Article 62, UCMJ, to the NMCCA, which found the rulings appealable and an abuse of discretion. The CAAF granted review on whether those rulings constituted an exclusion of evidence under Article 62.
CAAF reversed the NMCCA, holding the denials were case‑management orders that did not “exclude evidence” within Article 62 and thus were not appealable; it reinstated the military judge’s orders.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of a continuance and the military judge’s resting of the government’s case constitute an "order or ruling which excludes evidence" under Article 62(a)(1)(B), UCMJ	Govt: denial effectively prevented presentation of three witnesses and thereby excluded substantial, material evidence (appealable)	Vargas: denial was case management; military judge did not rule evidence inadmissible and so no Article 62 jurisdiction	Held: No Article 62 jurisdiction — the rulings were case‑management orders that did not in substance or form exclude evidence; NMCCA reversed
Whether Wuterich/Watson test (does order limit pool of potential admissible evidence) makes continuance denials appealable	Govt: Wuterich’s ‘‘limit the pool’’ test supports appeal because the rulings limited prosecution’s ability to offer testimony	Defense: Watson/Wuterich distinguish true exclusions (e.g., quashing subpoenas) from scheduling orders; denial of continuance is case management	Held: Applied Watson/Wuterich — denial here was like scheduling order (incidental effect), not a ruling that limited pool of admissible evidence
Whether government’s pretrial conduct (failure to subpoena, multiple continuances) affects appealability	Govt: preparedness issues do not negate Article 62 rights to appeal exclusion of material evidence	Vargas: government’s own failures caused any limitation; judge acted within case‑management authority	Held: Court emphasized government’s self‑inflicted unavailability and judge’s broad trial‑control authority; supports nonappealable classification
Whether interlocutory government appeals are to be liberally construed	Govt: analogous federal statute construed liberally (Watson) supports appealability	Defense: Article 62 must be narrowly construed; prosecution appeals disfavored	Held: Article 62 construed narrowly; prosecution appeals are exceptional and limited to true exclusions of evidence

Key Cases Cited

United States v. Browers, 20 M.J. 356 (C.M.A. 1985) (denial of continuance is not an Article 62 appealable exclusion of evidence)
United States v. Wuterich, 67 M.J. 63 (C.A.A.F. 2008) (test: whether the ruling in substance or form limited the pool of potentially admissible evidence)
United States v. Watson, 386 F.3d 304 (1st Cir. 2004) (denials of continuance are case management and do not limit the pool of admissible evidence)
United States v. Bradford, 68 M.J. 371 (C.A.A.F. 2010) (prosecution appeals are disfavored and permitted only by specific statutory authorization)
United States v. Daly, 69 M.J. 485 (C.A.A.F. 2011) (jurisdiction and statutory interpretation reviewed de novo)