UNITED STATES, Appellee 

v. 

Frank D. WUTERICH, Staff Sergeant 

U.S. Marine Corps, Appellant 

No. 08-6006 

Crim. App. No. 200800183 

AND 

CBS BROADCASTING INC., Petitioner 

v. 

NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS, 

THE UNITED STATES OF AMERICA, and 

Frank D. WUTERICH, Staff Sergeant, U.S. Marine Corps, 

Respondents 

No. 08-8020/MC 

AND 

In re Frank D. WUTERICH 

No. 08-8021/MC 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

United States Court of Appeals for the Armed Forces

Argued September 17, 2008 

Decided November 17, 2008 

EFFRON, C.J., delivered the opinion of the Court, in which BAKER 

and STUCKY, JJ., joined. RYAN, J., filed a separate dissenting 

opinion, in which ERDMANN, J., joined. 

Counsel

For Appellant/Petitioner Wuterich: Lieutenant Kathleen L. 

Kadlec, JAGC, USN (argued); Colonel Dwight H. Sullivan, USMCR, 

and Major Christian J. Broadston, USMC (on brief). 

For Petitioner CBS Broadcasting Inc.: Lee Levine, Esq. 

(argued); Seth D. Berlin, Esq. (on brief). 

For Appellee/Respondent United States: Lieutenant Timothy H. 

Delgado, JAGC, USN (argued). 

For Amicus Curiae in Support of Petitioner CBS Broadcasting 

Inc.: Clifford M. Sloan, Esq., Amy R. Sabin, Esq., and David W. 

Foster, Esq. (on brief), Skadden, Arps, Slate, Meagher & Flom 

LLP. 

Military Judge: Jeffrey G. Meeks 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

3 

Chief Judge EFFRON delivered the opinion of the Court. 

 The present case concerns three filings arising out of 

United States v. Wuterich, a pending court-martial convened at 

Camp Pendleton, California. United States v. Wuterich, No. 08-

6006, is a petition for grant of review under Article 67(a)(3), 

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 867(a)(3) 

(2000), filed by Staff Sergeant (SSgt) Frank D. Wuterich 

(Appellant), the accused in the pending court-martial. In re 

Wuterich, No. 08-8021, is a petition for extraordinary relief 

filed by SSgt Wuterich under the All Writs Act, 28 U.S.C. § 

1651(a) (2000). CBS Broadcasting Inc. v. United States, No. 08-

0820, is a petition for extraordinary relief filed by CBS 

Broadcasting Inc., the recipient of a subpoena in the pending 

court-martial. On September 17, 2008, we held a consolidated 

hearing on these three filings. 

 The consolidated cases involve a ruling by the military 

judge in the pending court-martial. See infra Part I. 

Appellant faces charges of voluntary manslaughter and other 

offenses related to the deaths of civilians in Haditha, Iraq. 

During the period in which the civilian deaths were under 

investigation, Appellant provided an interview to CBS 

Broadcasting Inc. regarding the events on the date of and in the 

place of the charged offenses. CBS subsequently broadcast a 

portion of the interview as part of the 60 Minutes television 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

4 

program. The Government issued a subpoena to CBS that included 

a request for the outtakes -- the portions of the interview 

given by Appellant that were not included in the broadcast. CBS 

declined to provide the outtakes and filed a motion to quash the 

subpoena. The military judge, without reviewing the content of 

the outtakes, granted the motion to quash the subpoena. The 

Government appealed under Article 62, UCMJ, 10 U.S.C. § 862 

(2000), which provides authority for interlocutory government 

appeals similar to the authority available in federal civilian 

criminal prosecutions under 18 U.S.C. § 3731 (2000). 

 The present appeal primarily involves two issues. First, 

whether the military judge’s ruling is subject to appeal under 

Article 62. Second, whether the military judge erred by 

granting the motion to quash the subpoena without first 

conducting an in camera review of the contents of the requested 

material. 

 This Court consistently has looked to the decisions of the 

federal courts under section 3731 for guidance in interpreting 

the parallel provisions of Article 62. See infra Part III.B.1. 

Under those decisions, which provide important guidance limiting 

such review, a ruling that quashes a subpoena is subject to 

interlocutory appellate review. See infra Part III.B.2. 

Likewise, those decisions provide guidance as to the 

circumstances in which it is appropriate for the trial court to 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

5 

conduct an in camera review. See infra Part III.D. For the 

reasons set forth below, we conclude that the ruling of the 

military judge was subject to appeal under Article 62. We 

further conclude that it was an abuse of discretion for the 

military judge to quash the subpoena without first conducting an 

in camera review of the requested materials. In our decretal 

paragraph, we order the military judge to review the requested 

material prior to ruling on the motion to quash the subpoena. 

 Part I summarizes the circumstances leading up to the 

current appeal. Part II describes the issues set forth in each 

of the filings. Part III discusses the procedural and 

substantive issues raised by the filings. Part IV sets forth 

our decision. 

I. BACKGROUND 

A. THE CHARGES AT THE PENDING COURT-MARTIAL 

 The trial of SSgt Wuterich concerns the alleged unlawful 

killing of civilians during military operations in Haditha, 

Iraq, on November 19, 2005. During an investigation into the 

events in Haditha, Appellant provided a statement on February 

21, 2006, concerning this incident and his role. 

 Following further investigation, charges against Appellant 

were referred for trial by court-martial on December 27, 2007. 

The pending charges allege dereliction of duty, voluntary 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

6 

manslaughter, aggravated assault, reckless endangerment, and 

obstruction of justice, offenses under Articles 92, 119, 128, 

and 134, UCMJ, 10 U.S.C. §§ 892, 919, 928, 934 (2000). 

B. STATEMENTS PROVIDED BY APPELLANT TO CBS REGARDING THE 

CHARGED OFFENSES 

 On March 18, 2007, the CBS television program 60 Minutes

broadcast a segment entitled “The Killings in Haditha; Staff 

Sergeant Frank Wuterich discusses what the Marines did the day 

24 Iraqi civilians were killed.” At the outset of the 

broadcast, the CBS correspondent offered the following 

introduction: 

On November 19th, 2005, a squad of United 

States Marines killed 24 apparently innocent 

civilians in an Iraqi town called Haditha. 

The dead included men, women and children as 

young as two. Iraqi witnesses say the 

Marines were on a rampage, slaughtering 

people in the street and in their homes. 

And in December, four Marines were charged 

with murder. Was it murder? Was Haditha a 

massacre? A military jury will decide, but 

there’s no question that Haditha is symbolic 

of a war that leaves American troops with 

terrible choices. The Marine making those 

choices in Haditha was a 25-year-old 

sergeant named Frank Wuterich. He’s charged 

with 18 murders, the most by far, and he’s 

accused of lying on the day that it 

happened. Wuterich faces life in prison. 

None of the Marines charged with murder has 

spoken publicly about this, but tonight 

Staff Sergeant Wuterich says he wants to 

tell the truth about the day he decided who 

would live and who would die in Haditha. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

7 

The segment included questions to Appellant by CBS correspondent 

Scott Pelley, statements by Appellant, observations by Mr. 

Pelley regarding Appellant’s statements, other commentary by Mr. 

Pelley, and statements by other individuals. The segment 

consisted of about one-half hour of broadcast time. 

 The statements broadcast by CBS were made during an oncamera interview with Appellant conducted by Mr. Pelley in 

October 2006. According to Mr. Pelley, “During our interview, 

Staff Sergeant Wuterich recounted the events of the incident at 

Haditha.” The precise length of Appellant’s interview with CBS 

is not set forth in the record. Defense counsel indicated on 

the record that the interview lasted for “hours,” and the 

military judge referred to representations that there were 

“several hours” of outtakes. These statements have not been 

challenged on appeal. Subsequent to Appellant’s meeting with 

Mr. Pelley, CBS selected portions of the interview for 

presentation during the broadcast. 

C. THE SUBPOENA FOR APPELLANT’S STATEMENTS TO CBS 

 The prosecution issued a subpoena to CBS, dated January 16, 

2008. See Rule for Courts-Martial (R.C.M.) 703. In pertinent 

part, the subpoena required CBS “to deliver any and all video 

and/or audio tape(s), to include out-takes and raw footage, of 

any and all interviews and/or statements, oral comments, and/or 

oral communications or nonverbal acts, actions, and/or 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

8 

acknowledgements made by Staff Sergeant Frank D. Wuterich, 

United States Marine Corps, recorded by or for, or in the 

possession of, CBS News.” The subpoena also noted that “SSgt 

Frank D. Wuterich is a criminal defendant and any/all statements 

made by him or his defense counsel concerning his actions could 

be deemed to be admissions and admissible at the trial of the 

facts . . . .” 

 CBS moved to quash the portion of the subpoena that sought 

production of the unaired footage. In support of the motion, 

CBS cited R.C.M. 703(f)(4)(C), which authorizes the military 

judge to require that a subpoena be withdrawn or modified if it 

is “unreasonable or oppressive.” CBS also contended that the 

subpoena should be quashed because the Government could not meet 

its burden of showing that production of the unaired footage was 

required under “a qualified reporter’s privilege that is rooted 

in both the First Amendment . . . and the common law.” As an 

alternative to the motion to quash the subpoena, CBS moved that 

the military judge issue “a protective order, pursuant to R.C.M. 

701(g)(2), precluding the Government from obtaining the 

materials sought by the subpoena.” CBS agreed to provide and 

authenticate a copy of the segment broadcast on 60 Minutes. 

 Responding to the CBS motion, the prosecution asserted that 

the subpoena reflected a good faith determination that the 

outtakes contained admissions from Appellant that were relevant, 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

9 

material, and necessary. The prosecution contended that the 

existence of a reporter’s privilege represented a minority view 

among the federal courts and that, even under the rulings of 

those courts that had found a qualified privilege, the subpoena 

should not be quashed. 

 The prosecution and CBS submitted detailed briefs to the 

military judge, including appendices directed to the question of 

whether the information sought in the outtakes was cumulative of 

evidence otherwise in the Government’s possession. The military 

judge reviewed the 60 Minutes broadcast, but he did not obtain 

and review the unaired outtakes that were the subject of the 

motion to quash. 

 The defense did not submit a brief on the CBS motion to 

quash. When the military judge asked whether the defense had a 

position on the motion to quash, defense counsel responded: 

“No, Your Honor.” 

 During a subsequent colloquy with trial counsel, the 

military judge commented to trial counsel that after viewing 

the 60 Minutes broadcast, “I’m having a hard time seeing what it 

is you think that’s there that’s not already there.” Trial 

counsel responded that the outtakes could provide the 

prosecution with the following information about Appellant’s 

broadcast statements: 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

10 

The background to those comments. The 

backdrop for his rational[e]. The incontext expressions of the accused in the 

context of the interview. Not the snippets. 

Not the sound bites. Not the portion that 

has been edited for broadcast. But the 

context. The totality of his expressions of 

his conduct, and his rational[e] for his 

conduct and the conduct on the part of his 

Marines. 

 

The military judge then asked defense counsel what position 

the defense would take at trial if the prosecution offered into 

evidence Appellant’s statements from the 60 Minutes broadcast. 

Defense counsel responded that he would object if the 

prosecution sought to admit only the broadcast portions of the 

interview: “I would assert the doctrine of completeness [under] 

M.R.E. 106 and ask that it all be there for context.” At that 

point, the military judge asked counsel for CBS what position 

CBS would take if the defense asked for the complete interview. 

Counsel for CBS responded that “we would, I suspect, file a 

similar motion to quash,” depending on the state of the record 

at the time, among other factors. He further noted that the 

burden to overcome the privilege asserted by CBS would rest with 

the defense, although the balance might be different in the 

context of a defense request. 

 Defense counsel requested permission to address the issue, 

noting that the defense was not “requesting that these outtakes 

be admitted [at] trial.” Defense counsel further emphasized 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

11 

that “we are not a party to the dispute that’s going on today. 

And we are also not required to assist the government in 

acquiring its evidence or the evidence it thinks it needs. 

That’s never our duty . . . .” 

 The military judge did not indicate how he might rule if 

the defense were to offer a motion to compel introduction of the 

interview outtakes under Military Rule of Evidence (M.R.E.) 106. 

Instead, he indicated that he would provide both the prosecution 

and counsel for CBS with the opportunity to brief that issue 

should it arise in the future. 

 At the conclusion of arguments on the motion, the military 

judge granted the motion to quash the subpoena on the grounds 

that “the requirement of necessity has not been met.” See

R.C.M. 703(f)(1) (“Each party is entitled to the production of 

evidence which is relevant and necessary.”). The military judge 

took note of “the representation that there are several hours of 

outtakes in the possession of CBS which contain information 

concerning the accused’s view of the events that occurred on the 

19th of November of 2005.” He also observed that the outtakes 

“could be admissible into the evidence as statements of the 

accused under Military Rule of Evidence 801(d) [admissibility of 

statements by a party-opponent].” The military judge concluded, 

however, that “with respect to the outtakes, the contents of the 

accused’s comments are speculative at this point and the court 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

12 

is concerned that the subpoena in this case likely qualifies as 

a fishing expedition.” 

 The military judge determined that production of the 

requested information was not necessary because “the information 

desired here by the government from CBS would be cumulative with 

what is already in the hands of the government.” See R.C.M. 

703(f)(1) Discussion (noting, in the nonbinding commentary 

accompanying the rule, that “[r]elevant evidence is necessary 

when it is not cumulative and when it would contribute to a 

party’s presentation of the case in some positive way on a 

matter in issue”). In the course of reaching his conclusion on 

cumulativeness, the military judge considered the availability 

to the prosecution of statements by Appellant broadcast in the 

60 Minutes segment; other statements made by Appellant prior to 

trial; statements made by members of his unit; and the forensic 

evidence, photographs, and other physical evidence obtained from 

the scene of the charged offenses. 

 The military judge also addressed the question of whether 

CBS could rely on a newsgathering privilege, stating that he was 

persuaded that such a privilege existed “under federal common 

law.” He added, however, that it was not necessary to base his 

decision on such a privilege because any motion to quash that 

met the “lower standard” of R.C.M. 703 would necessarily meet 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

13 

“the greater standard required for disclosure” under a qualified 

reporter’s privilege. 

 The prosecution asked the military judge to reconsider his 

ruling “and order an in camera inspection to determine whether 

or not the material in question is in fact cumulative . . . 

given the fact that the military judge had not had an 

opportunity to review” the material. See R.C.M. 703(f)(4)(C) 

(providing that when the recipient of a subpoena requests 

relief, “the military judge may direct that the evidence be 

submitted to the military judge for an in camera inspection to 

determine whether such relief should be granted”). The military 

judge denied the motion without explanation. The Government 

appealed the ruling to the Court of Criminal Appeals under 

Article 62, UCMJ, 10 U.S.C. § 862 (2000). The United States 

Navy-Marine Corps Court of Criminal Appeals vacated the ruling 

of the military judge and remanded the case for further 

proceedings. United States v. Wuterich, 66 M.J. 685, 691-92 (NM. Ct. Crim. App. 2008). 

 

II. THE PENDING PROCEEDINGS 

 The present consolidated case addresses three pending 

filings that seek review of the decision by the Court of 

Criminal Appeals. In United States v. Wuterich, No. 08-6006, 

Appellant has filed a petition for grant of review under Article 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

14 

67(a)(3), UCMJ. On Appellant’s petition, we have granted review 

of the following issues: 

I. Whether the lower court erred in 

holding that it has jurisdiction to 

entertain the Government’s challenge of 

a discovery ruling pursuant to Article 

62, UCMJ. 

II. Whether the lower court erred in 

holding that the Appellant did not have 

standing as petitioner/appellee and 

thereby violated Appellant’s statutory 

and constitutional right to counsel. 

 In a related case, In re Wuterich, No. 08-8021, Appellant 

filed a petition for extraordinary relief under 28 U.S.C. § 

1651(a), as an alternative, in the event that we determined 

Appellant lacks standing to appeal under Article 67(a)(3), UCMJ. 

In view of our determination, infra Part III.A., that Appellant 

has standing to appeal under Article 67(a)(3), UCMJ, we deny the 

writ petition as moot. 

 The third filing, CBS Broadcasting Inc. v. United States, 

No. 08-0820, is a petition for extraordinary relief to obtain 

review of the decision by the Court of Criminal Appeals. CBS 

filed this writ as an alternative to reliance on Appellant’s 

petition for grant of review under Article 67(a)(3), UCMJ, as 

the vehicle for reviewing the decision of the court below. In 

the writ petition, CBS suggested that the merits of the decision 

by the lower court could be addressed properly during 

consideration of Appellant’s petition for review under Article 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

15 

67(a)(3), UCMJ. We agree, and deny the CBS writ petition as 

moot. 

 The Government appeal under Article 62 automatically stayed 

the proceedings before the court-martial pending disposition by 

the Court of Criminal Appeals. See R.C.M. 908(b)(4). The Court 

of Criminal Appeals subsequently returned the case for further 

proceedings before the court-martial. 66 M.J. at 691-92. Our 

Court has not ordered a stay of the pending court-martial 

proceedings. See R.C.M. 908(c)(3). Neither party has asked us 

to issue a stay or otherwise take action with respect to the 

status of the court-martial. 

III. DISCUSSION 

 In the present case, Appellant -– knowing of the 

investigation into the events in Haditha -- granted an interview 

to CBS Broadcasting Inc. CBS, which was aware of the ongoing 

investigation, focused the interview on the events occurring on 

the date and in the place of the matters under investigation. 

CBS broadcast some, but not all, of the statements made by 

Appellant during the interview. In the nationally televised 60 

Minutes program, CBS stated that Appellant wanted “to tell the 

truth about the day he decided who would live and who would die 

in Haditha.” 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

16 

 At this stage in the appellate proceedings, Appellant 

neither contests the voluntariness of the statements made during 

his CBS interview about the events in Haditha nor claims any 

privilege that would preclude use of his statements to CBS in 

the pending court-martial. The majority of the statements made 

by Appellant during the CBS interview, however, are not now 

available for introduction into evidence at the court-martial. 

In response to a Government subpoena for tapes of Appellant’s 

entire interview, CBS produced only the broadcast portion. It 

declined to provide the court-martial with the outtakes, which 

contained the majority of Appellant’s interview statements. 

 On the record before us, only CBS has access to Appellant’s 

full interview regarding the events in Haditha. Only CBS -- an 

entity that is not a party to the pending court-martial -- is in 

a position to assess whether the statements in the outtakes are 

exculpatory, inculpatory, or otherwise necessary to enhance the 

significance of other statements made by Appellant. 

 The military judge ruled that the Government could not have 

access to the majority of statements made by the accused in his 

interview because the military judge concluded that those 

statements -- which he had not reviewed -- were cumulative in 

relationship to other evidence available to the Government. The 

military judge did not explain on the record how he was able to 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

17 

assess the content and quality of statements contained in the 

outtakes that he had not reviewed. 

 Appellant and Petitioner-CBS each contend that the military 

judge’s ruling was not appealable under Article 62, UCMJ, the 

statute governing prosecution appeals. Further, each contends 

that the ruling by the military judge, even if subject to 

appeal, did not constitute an abuse of discretion. In addition, 

Appellant contends that the lower court erred in ruling that he 

did not have standing to participate in the appellate 

proceedings. Section A of this discussion addresses standing. 

Section B discusses government appeals in criminal cases. 

Section C considers the Government appeal in the present case. 

Section D discusses the military judge’s decision that 

production of the outtakes was not necessary because the 

evidence therein was cumulative. Section E addresses further 

proceedings. 

A. STANDING 

 After the military judge quashed the Government’s subpoena, 

the Government filed an appeal under Article 62, UCMJ. 

Appellant filed a motion to dismiss on the grounds that the 

military judge’s ruling was not appealable under Article 62, 

UMCJ. 

 The Court of Criminal Appeals declined to consider 

Appellant’s filings on the grounds that Appellant had no 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

18 

standing to participate in the Government’s appeal under Article 

62, UCMJ. Wuterich, 66 M.J. at 688-89. The Court of Criminal 

Appeals noted that defense counsel had asserted at trial that 

SSgt Wuterich was not a party to the dispute between CBS and the 

Government. Id. at 688. The court primarily relied on cases 

involving the concept of standing under the Fourth Amendment, as 

well as cases involving privileges and third-party subpoenas. 

See id. at 688-89. 

 The jurisdictional concept of standing normally concerns 

the limitation of the judicial power of the United States to 

“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2. 

See, e.g., Sprint Communc’ns Co. v. APCC Servs., Inc., 128 S. 

Ct. 2531, 2535 (2008) (summarizing the requirements for a 

plaintiff in civil litigation to establish standing -- an injury 

in fact, causation, and redressability). This Court, which was 

established under Article I of the Constitution, has applied the 

principles from the “cases” and “controversies” limitation as a 

prudential matter. See United States v. Chisholm, 59 M.J. 151, 

152 (C.A.A.F. 2003). 

The evidentiary concept of standing in criminal cases 

concerns the issue of whether a defendant has a sufficient 

interest in the object of a search, a claim of privilege, or 

other evidentiary matter to prevail on the merits of the 

objection. See, e.g., Rakas v. Illinois, 439 U.S. 128, 134-40 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

19 

(1978); United States v. Johnson, 53 M.J. 459, 461-62 (C.A.A.F. 

2000); United States v. Jones, 52 M.J. 60, 63-64 (C.A.A.F. 

1999). These cases involve the criteria used to assess the 

merits of a criminal defendant’s evidentiary claims, not the 

right of a defendant to participate as a litigant in the 

assessment of those claims. 

 Appellant did not initiate the present litigation. He is a 

defendant in a criminal case brought by the United States. 

Trial defense counsel’s comment regarding the dispute between 

the Government and CBS was offered in the context of counsel’s 

position that the defense had no obligation to assist the 

Government in obtaining the evidence from CBS. Defense counsel 

expressly addressed the interest of Appellant in the requested 

material under the rule of completeness of M.R.E. 106. See

supra Part I.C. The position articulated by trial defense 

counsel before the military judge underscores the direct 

interest of Appellant in the scope of any ruling at trial or on 

appeal regarding the evidence that would be available for 

consideration at this trial. 

 Appellant sought to persuade the Court of Criminal Appeals 

that the military judge’s order was not subject to appeal under 

Article 62, and that the case should proceed with a trial on the 

merits. In so doing, Appellant invoked his direct interest in 

prompt disposition of the charges, a matter expressly addressed 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

20 

in Article 62, UCMJ. Although it would have been appropriate 

for the Court of Criminal Appeals to consider the relationship 

of Appellant to the requested material for purposes of assessing 

how much weight, if any, to accord Appellant’s views on the 

motion to quash the subpoena, it was not appropriate to deprive 

him altogether of the opportunity to participate in appellate 

litigation having direct consequences on the prompt disposition 

of criminal proceedings brought against him by the United 

States. 

 As a result of the lower court’s erroneous view of 

standing, Appellant did not have the opportunity to participate 

in the appellate proceedings before that court. Under these 

circumstances, we vacate the decision of the court below in our 

decretal paragraph. In view of the pending court-martial 

proceedings, and because this case involves an issue of law that 

does not pertain to the unique factfinding powers of the Court 

of Criminal Appeals, we shall review directly the decision of 

the military judge without remanding the case to the lower 

court. See United States v. Shelton, 64 M.J. 32, 37 (C.A.A.F. 

2006) (“When reviewing a decision of a Court of Criminal Appeals 

on a military judge’s ruling, we typically have pierced through 

that intermediate level and examined the military judge’s 

ruling, then decided whether the Court of Criminal Appeals was 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

21 

right or wrong in its examination of the military 

judge’s ruling.”) (citations and quotation marks omitted). 

 B. GOVERNMENT APPEALS IN CRIMINAL CASES 

 Federal courts, including courts in the military justice 

system established under Article I of the Constitution, are 

courts of limited jurisdiction. See United States v. Lopez de 

Victoria, 66 M.J. 67, 69 (C.A.A.F. 2008) (noting that such 

jurisdiction “is conferred ultimately by the Constitution, and 

immediately by statute”). In criminal cases, prosecution 

appeals are not favored and are available only upon specific 

statutory authorization. See 7 Wayne R. LaFave et al., Criminal 

Procedure § 27.3(a)-(b) (3d. ed. 2007); United States v. Watson, 

386 F.3d 304, 307 (1st Cir. 2004). The constitutional 

prohibition on double jeopardy and related statutory 

considerations severely limit post-trial appeals by the 

prosecution in contrast to the broad appellate rights of the 

defense following the conclusion of trial. See 7 LaFave, supra, 

§ 27.3(a). In view of these limitations, the prosecution as a 

general matter has a somewhat broader opportunity than the 

defense to file appeals during the trial. See id. § 27.3(c). 

Congress has authorized interlocutory government appeals in 

federal civilian criminal cases under 18 U.S.C. § 3731 (2000).1 

 

1 The current version of 18 U.S.C. § 3731 provides: 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

22 

Congress also has authorized interlocutory prosecution appeals 

in cases tried by courts-martial under Article 62, UCMJ, 10 

U.S.C. § 862.2

 

In a criminal case an appeal by the United States shall lie to a court 

of appeals from a decision, judgment, or order of a district court 

dismissing an indictment or information or granting a new trial after 

verdict or judgment, as to any one or more counts, or any part thereof, 

except that no appeal shall lie where the double jeopardy clause of the 

United States Constitution prohibits further prosecution. 

 

An appeal by the United States shall lie to a court of appeals from a 

decision or order of a district court suppressing or excluding evidence 

or requiring the return of seized property in a criminal proceeding, 

not made after the defendant has been put in jeopardy and before the 

verdict or finding on an indictment or information, if the United 

States attorney certifies to the district court that the appeal is not 

taken for purpose of delay and that the evidence is a substantial proof 

of a fact material in the proceeding. 

 

An appeal by the United States shall lie to a court of appeals from a 

decision or order, entered by a district court of the United States, 

granting the release of a person charged with or convicted of an 

offense, or denying a motion for revocation of, or modification of the 

conditions of, a decision or order granting release. 

 

The appeal in all such cases shall be taken within thirty days after 

the decision, judgment or order has been rendered and shall be 

diligently prosecuted. 

The provisions of this section shall be liberally construed to 

effectuate its purposes. 

2

 The current version of Article 62, UCMJ, provides: 

(a)(1) In a trial by court-martial in which a military judge presides 

and in which a punitive discharge may be adjudged, the United States 

may appeal the following (other than an order or ruling that is, or 

that amounts to, a finding of not guilty with respect to the charge or 

specification): 

 (A) An order or ruling of the military judge which terminates the 

proceedings with respect to a charge or specification. 

 (B) An order or ruling which excludes evidence that is substantial 

proof of a fact material in the proceeding. 

 (C) An order or ruling which directs the disclosure of classified 

information. 

 (D) An order or ruling which imposes sanctions for nondisclosure of 

classified information. 

 (E) A refusal of the military judge to issue a protective order 

sought by the United States to prevent the disclosure of classified 

information. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

23 

1. The relationship between Article 62, UCMJ, and 18 U.S.C. 

§ 3731

 Congress provided authority for interlocutory government 

appeals under Article 62, UCMJ, in the Military Justice Act of 

1983, Pub. L. No. 98-209, § 10, 97 Stat. 1393 (1983). Congress 

based the legislation on 18 U.S.C. § 3731, the statute 

applicable to the trial of criminal cases in the federal 

district courts. See S. Rep. No. 98-53, at 6 (1983) (stating 

that Article 62 “allows appeal by the government under 

procedures similar to an appeal by the United States in a 

federal civilian prosecution”); id. at 23 (stating that “[t]o 

the extent practicable, the proposal parallels 18 U.S.C. § 3731, 

 (F) A refusal by the military judge to enforce an order described in 

subparagraph (E) that has previously been issued by appropriate 

authority. 

 (2) An appeal of an order or ruling may not be taken unless the trial 

counsel provides the military judge with written notice of appeal from 

the order or ruling within 72 hours of the order or ruling. Such 

notice shall include a certification by the trial counsel that the 

appeal is not taken for the purpose of delay and (if the order or 

ruling appealed is one which excludes evidence) that the evidence 

excluded is substantial proof of a fact material in the proceeding. 

 (3) An appeal under this section shall be diligently prosecuted by 

appellate Government counsel. 

(b) An appeal under this section shall be forwarded by a means 

prescribed under regulations of the President directly to the Court of 

Criminal Appeals and shall, whenever practicable, have priority over 

all other proceedings before that court. In ruling on an appeal under 

this section, the Court of Criminal Appeals may act only with respect 

to matters of law, notwithstanding section 866(c) of this title [10 

U.S.C. § 866(c)] (article 66(c)). 

(c) Any period of delay resulting from an appeal under this section 

shall be excluded in deciding any issue regarding denial of a speedy 

trial unless an appropriate authority determines that the appeal was 

filed solely for the purpose of delay with the knowledge that it was 

totally frivolous and without merit. 

 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

24 

which permits appeals by the United States in federal 

prosecutions”). 

 As Chief Judge Everett noted in United States v. Browers: 

Because the legislative history makes clear 

that Congress intended for Article 62 

appeals to be conducted “under procedures 

similar to [those governing] an appeal by 

the United States in a federal civilian 

prosecution,” we look to federal precedent 

for guidance on this question. 

20 M.J. 356, 359 (C.M.A. 1985) (alteration in original) (quoting 

S. Rep. No. 98-53, at 6); accord Lopez de Victoria, 66 M.J. at 

70-71; United States v. Brooks, 42 M.J. 484, 486 (C.A.A.F. 

1995); United States v. Lincoln, 42 M.J. 315, 320 (C.A.A.F. 

1995); United States v. True, 28 M.J. 1, 3 (C.M.A. 1989). 

 Federal court decisions interpreting 18 U.S.C. § 3731 

constitute guidance, not binding precedent, in the 

interpretation of Article 62, UCMJ. When considering the import 

of cases arising under 18 U.S.C. § 3731, we bear in mind that 

“Congress, in enacting the revised Article 62, UCMJ, in 1983, 

clearly intended to afford the government a right to appeal 

which, ‘to the extent practicable . . . parallels 18 U.S.C. § 

3731 . . . .’” Lopez de Victoria, 66 M.J. at 70 (first ellipsis 

in original) (quoting S. Rep. No. 98-53, at 23). In that 

regard, we take into account the structural differences between 

courts-martial and trials in federal district court, as well as 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

25 

the textual similarities and differences with respect to Article 

62, UCMJ, and 18 U.S.C. § 3731. 

 Section 3731, for example, states: “The provisions of this 

section shall be liberally construed to effectuate its 

purposes.” The First Circuit, in United States v. Watson, 

described the legislative background of this provision. The 

court noted that the initial statute authorizing government 

appeals in federal criminal cases referred only to “motion[s] to 

suppress.” 386 F.3d at 308-10. Following a series of judicial 

decisions narrowly construing this provision, Congress expanded 

the statute to cover all orders suppressing or excluding 

evidence and added the language on liberal construction to 

“‘reverse[] the practice of narrowly interpreting’” the statute. 

See id. at 309 (quoting S. Rep. No. 91-1296, at 37 (1970), and 

citing Omnibus Crime Control Act of 1970, Pub. L. No. 91-642, § 

14, 84 Stat. 1880, 1890 (1971)). With respect to the guidance 

drawn from cases interpreting 18 U.S.C. § 3731, we note that 

those cases routinely cite the liberal construction admonition 

in the course of addressing the scope of section 3731. E.g., 

Watson, 386 F.3d at 310; In re Grand Jury Empanelled (Colucci), 

597 F.2d 851, 855-56 (3d Cir. 1979). 

Article 62, UCMJ, on the other hand, contains no language 

on statutory construction, and its legislative history does not 

demonstrate a rationale for the omission of this language. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

26 

Therefore, it would be inappropriate to apply the liberal 

construction mandate of section 3731 when interpreting Article 

62, UCMJ. This is consistent with our past practice. We have 

not previously applied an explicit liberal construction when 

interpreting Article 62, UCMJ. We treat cases interpreting 

parallel provisions of 18 U.S.C. § 3731 as guidance, not as 

mandates; and we apply that guidance only to the extent 

consistent with an interpretation of Article 62 that is not 

dependent upon the liberal construction admonition. 

2. Appeals under 18 U.S.C. § 3731

 The issues in the present appeal concern the meaning of the 

term “excludes evidence” in Article 62. The statute permits the 

government to appeal an “order or ruling which excludes evidence 

that is substantial proof of a fact material in the proceeding.” 

Article 62(a)(1)(B), UCMJ. Under this provision, trial counsel 

must file a certification with the military judge “that the 

appeal is not taken for the purpose of delay and (if the order 

or ruling appealed is one which excludes evidence) that the 

evidence excluded is substantial proof of a fact material in the 

proceeding.” Article 62(a)(2), UCMJ. 

 The related provision governing federal civilian criminal 

trials, 18 U.S.C. § 3731, permits the government to appeal an 

order by the trial court “suppressing or excluding evidence.” 

The United States Attorney must certify “that the appeal is not 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

27 

taken for purpose of delay and that the evidence is a 

substantial proof of a fact material in the proceeding.” Id. 

 The courts of appeals have addressed the meaning of the 

term “excluding evidence” under 18 U.S.C. § 3731 and have 

concluded that the term includes an order quashing a subpoena. 

See 25 James Wm. Moore et al., Moore’s Federal Practice 

¶ 617.08[4] (3d. ed. 2008); 7 LaFave, supra, § 27.3(c). The 

case law in this area, permitting appeal of an order quashing a 

subpoena, predates the enactment of Article 62, UCMJ. See, 

e.g., Colucci, 597 F.2d at 856. 

 In Watson, the First Circuit discussed the scope of the 

term “excluding evidence” under 18 U.S.C. § 3731. 386 F.3d at 

307. The appeal involved a trial court ruling that denied a 

government motion for a continuance. Prior to trial, the 

prosecution asked immigration officials to keep the prosecution 

informed of the status of a potential witness. The immigration 

officials neglected to do so, and deported the witness. The 

government moved for a continuance to conduct an overseas 

deposition. The trial court denied the motion, noting that the 

case was more than three years old, there were speedy trial 

issues, the problem was a result of government negligence, and 

it could take six to twelve months to obtain the testimony by 

deposition. The government renewed its motion, and the trial 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

28 

court denied the renewed motion for the same reasons. Id. at 

306-07. 

 The court of appeals concluded that the orders denying the 

motions were not appealable under 18 U.S.C. § 3731 because they 

were case-management orders, entered with the purpose of 

preventing delay: 

Although the orders appealed from will 

certainly hamper (and may effectively 

prevent) the obtaining and subsequent use of 

[the witness’s] testimony, those orders did 

not, either in substance or in form, limit 

the pool of potential evidence that would be 

admissible at the forthcoming trial. Rather, 

they were premised on, and accomplished, a 

more prosaic goal: the lower court’s 

determination to forestall further delay. 

That was why the court denied the requested 

continuance -- and the practical effect of 

that denial was to clear the way for the 

trial to proceed. That the orders had an 

incidental effect on the government’s 

evidence-gathering is too remote a 

consequence to support appellate 

jurisdiction under the second paragraph of 

section 3731. 

Id. at 313. 

In the course of its opinion, the court of appeals reviewed 

the development of 18 U.S.C. § 3731 as well as cases applying 

the provision to permit appeals of decisions “excluding 

evidence.” The court concluded that an interlocutory 

prosecution appeal under section 3731 is permitted when “the 

order itself is the practical equivalent of a suppression or 

exclusion order; that is, when the order has the direct effect 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

29 

of denying the government the right to use evidence. If such an 

effect is only incidental, then there can be no appeal.” Id. at 

311. The cases discussed in Watson in support of this test 

reflect a highly case-specific approach to the determination of 

whether the effect on the exclusion of evidence is direct or 

incidental. See id. at 310-12. Watson did not call into 

question any of the cases permitting government appeal of an 

order quashing a subpoena. 

Under Watson, the pertinent inquiry is not whether the 

court has issued a ruling on admissibility, but instead whether 

the ruling at issue “in substance or in form” has limited “the 

pool of potential evidence that would be admissible.” Id. at 

313. The distinction drawn by Watson between direct and 

incidental effects underscores that the inquiry concerns the 

impact of the ruling on the pool of potential evidence, not 

whether there has been a formal ruling on admissibility. See

id. at 311-12. 

3. Limitations on appeals under Article 62, UCMJ

 Appellant and Petitioner-CBS contend that the prosecution 

may not appeal an order quashing a subpoena under Article 62, 

UCMJ, irrespective of the authority for the prosecution to 

appeal such orders under 18 U.S.C. § 3731. According to 

Appellant, Chief Judge Everett’s opinion in Browers, 20 M.J. at 

356, “stands for the proposition that Article 62 authorizes 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

30 

prosecution appeals of orders excluding evidence only where a 

military judge rules that certain evidence ‘is inadmissible.’” 

Contrary to Appellant’s assertion, Chief Judge Everett did 

not state that such an Article 62 appeal could take place “only” 

if the military judge rules that evidence “is inadmissible.” 

Browers, like Watson, involved an appeal of a case-management 

ruling by the trial judge. The prosecution at trial moved for a 

continuance due to the absence of two witnesses. The military 

judge denied the motion, noting that the charges were old, one 

witness was not likely to be available in the near future, and 

the government had failed to keep track of the other witness. 

In Browers, Chief Judge Everett concluded that the order was not 

appealable because it involved the question of trial scheduling, 

not the exclusion of evidence. 20 M.J. at 356-60. 

 In the course of discussing this issue, Chief Judge Everett 

stated: 

Most lawyers think of exclusion of evidence 

as a ruling made at or before trial that 

certain testimony, documentary evidence, or 

real evidence is inadmissible. In short, 

“excludes” usually is a term of art; and we 

see no reason to believe that Congress had 

any different intention in drafting Article 

62(a)(1). 

Id. at 360. 

Chief Judge Everett referred generally to what “[m]ost 

lawyers think” and described “excludes” as a word that “usually 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

31 

is a term of art.” Id. The nonexclusive nature of these 

observations underscores that the opinion did not provide either 

a formal definition or a comprehensive description of the 

meaning of “excludes.” In context, Chief Judge Everett’s 

observations set the stage for his conclusion on the critical 

issue in the case: denial of a continuance, in a case that had 

languished, involved a scheduling matter that did not amount to 

an exclusion of evidence. Highlighting the case-management 

nature of an order denying a continuance, he stated: “Indeed, 

we suspect Congress believed that the scheduling of trials 

should be left primarily to trial judges and reliance should be 

placed on their judgment.” Id. at 360. His opinion did not 

establish a bright-line rule or a comprehensive definition of 

“excludes,” nor did it otherwise hold that an order is 

appealable under Article 62(a)(1)(B) “only” if there is a formal 

ruling that evidence is inadmissible. 

 Appellant’s argument suggests that the phrase “excludes 

evidence” means something different in military law than the 

term “excluding evidence” means in civilian criminal 

proceedings. In that regard, we note that in Browers, Chief 

Judge Everett did not state that we should disregard decisions 

under 18 U.S.C. § 3731 permitting appeal even without a formal 

ruling on admissibility. On the contrary, as noted above in 

Part III.B.1., he expressly stated that we “look to federal 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

32 

precedent for guidance” in the interpretation of Article 62. 20 

M.J. at 359. He specifically noted that the government had not 

identified any cases arising under 18 U.S.C. § 3731 in which 

denial of a continuance had been treated as an appealable order. 

Id. at 360. 

 In a subsequent dissent, Chief Judge Everett took the 

position that the Court in Browers “adopted a narrow 

construction of the statutory language.” United States v. True, 

28 M.J. 1, 5 (C.M.A. 1989) (Everett, C.J., dissenting). His 

view, however, was not joined by the other members of the Court. 

In that regard, we note that Browers was decided with the 

participation of only two Judges, Chief Judge Everett and Judge 

Cox. 20 M.J. at 360. Judge Cox -- who concurred separately in 

Browers -- did not endorse Chief Judge Everett’s suggestion in 

True that the Court in Browers had adopted a “narrow 

construction” of Article 62. Instead, he joined the majority 

opinion in True. 28 M.J. at 4. The majority in True rejected a 

narrow construction of the statute, noting: “Prudent advice 

concerning the use of [Article 62] should not be confused with 

an unjustified narrowing of the scope of this statute or 

deliberate frustration of the will of Congress.” 28 M.J. at 3. 

 In short, this Court’s decision in Browers does not support 

the proposition that the term “excludes” in Article 62 refers 

only to a ruling that evidence is inadmissible. Likewise, 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

33 

Browers does not support the proposition that the term 

“excludes” under Article 62 should be construed more narrowly 

than the term “excluding” under section 3731. On the contrary, 

Browers expressly identified case law under section 3731 as an 

important source of guidance in interpreting Article 62. The 

text of Article 62 does not reflect that Congress used the word 

“exclude” as a term of art limited to formal rulings on 

admissibility. Cf. Articles 43(d), 57(b), 120(s), UCMJ, 10 

U.S.C. §§ 843(d), 57(b), 120(s) (2000) (using the terms 

“excluded” and “excluding” in various legal contexts to convey 

descriptive meanings different from the concept of 

admissibility). Compare Watson, 386 F.3d at 313 (describing a 

ruling “excluding evidence” under section 3731 as one “that 

would, either in substance or in form, limit the pool of 

potential evidence that would be admissible”). We agree with 

the approach taken in Watson, which focused on the pool of 

potential evidence, not a formal ruling on admissibility. See

supra Part III.B.2. 

 The legislative history of Article 62, UCMJ, also does not 

reflect that Congress intended the word “exclude” to be a term 

of art limited to rulings on admissibility. Congress, in 

drafting Article 62, UCMJ, did not focus on the word “excludes” 

or “excluding.” To the extent that the state of the law at the 

time of enactment illuminates congressional intent, we note that 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

34 

the Colucci case applying 18 U.S.C. § 3731 to an order quashing 

a subpoena predated enactment of Article 62, UCMJ, by several 

years. See Colucci, 597 F.2d at 855-56. We need not rely on 

that point, however, but instead focus on the meaning of the 

word “exclude” in the context of the similar wording in section 

3731 (“excluding”) and Article 62 (“excludes”). We also focus 

on the purpose of Article 62, UCMJ, reflected in its structure 

and legislative history, to provide the government in military 

cases with the same interlocutory appeal authority as in 

civilian criminal cases, “to the extent practicable.” See S. 

Rep. No. 98-53, at 23 (1983); cf. Article 36, UCMJ, 10 U.S.C. § 

836 (2000) (authorizing the President to prescribe pretrial, 

trial, and post-trial procedural and evidentiary rules that 

follow the rules for trials in federal district courts insofar 

as the President deems practicable). 

We conclude that application of guidance from the federal 

court decisions under 18 U.S.C. § 3731 is both practicable and 

appropriate. Under that guidance, a ruling quashing a subpoena 

is appealable under Article 62, UCMJ. We have specifically 

taken into account, and apply, the guidance from cases under 18 

U.S.C. § 3731 restricting interlocutory government appeals to 

those rulings that have a direct rather than incidental effect 

on the exclusion of evidence. See supra Part III.B.2. In 

reaching this conclusion, we have considered the differences 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

35 

between courts-martial and civilian trials, particularly the 

emphasis in military law on prompt disposition of trials and 

appeals, and the accelerated time frames in Article 62. 

Compare, e.g., Article 62(a)(2), UCMJ, with 18 U.S.C. § 3731. 

See, e.g., Manual for Courts-Martial, United States, pt. I, 

para. 3 (2008 ed.); R.C.M. 908. Appellate courts in the 

military justice system are required to give priority to cases 

arising under Article 62 whenever practicable. See Article 

62(b); C.A.A.F. R. 19(a)(7)(A). In the present case, we note 

that this Court has not issued a stay of the court-martial 

proceedings. See R.C.M. 908(c)(3). Neither party has asked us 

to issue a stay or otherwise take action with respect to the 

status of the court-martial. See supra Part II. 

The experience in federal civilian courts underscores the 

infrequency of government appeals from orders quashing subpoenas 

and the effectiveness of judicial interpretations of 18 U.S.C. § 

3731 in that regard. In a section 3731 appeal, as in an appeal 

under Article 62, the prosecution must certify that the appeal 

is not taken for purposes of delay and that the evidence is a 

substantial proof of a fact material in the proceedings. 

Section 3731 has been interpreted to apply only to rulings that 

have a direct rather than an incidental effect of excluding 

evidence. See, e.g., Watson, 386 F.3d at 311-13. The 

interpretation set forth in Watson, which we apply in the 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

36 

context of Article 62, provides a significant limitation on the 

availability of government appeals. We have no reason to 

anticipate that application of that interpretation in the 

military justice system should differ with respect to the 

relative infrequency of government appeals. Application of that 

interpretation to review of the specific ruling at issue here -- 

the military judge’s decision to quash a subpoena requesting 

statements by the accused to the news media regarding events on 

the date of and in the place of the incident under investigation 

-- is not likely to have an appreciable effect on the volume of 

prosecution appeals under Article 62. In light of the text, the 

legislative history, the decisions and experiences of courts 

applying the parallel provisions of 18 U.S.C. § 3731, and 

considerations of practicability, we conclude that the term 

“excludes evidence” in military law is not different from the 

term “excluding evidence” in federal civilian proceedings with 

respect to an interlocutory appeal of a decision to quash a 

subpoena for the production of evidence. 

C. THE APPEAL IN THE PRESENT CASE 

 The question before us is not simply the generic question 

of whether Article 62, UCMJ, permits appeal of a motion quashing 

a subpoena, but whether the ruling at issue in this case had the 

direct effect of excluding evidence. In resolving that issue, 

we consider whether the military judge’s ruling directly limited 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

37 

the pool of potential evidence that would be admissible at the 

court-martial. See Watson, 386 F.3d at 313. Appellant contends 

that the prosecution cannot appeal because the prosecution has 

not demonstrated that the outtakes contain any relevant, 

admissible evidence, contending that “the Government’s 

assertions as to what might be contained in the CBS outtakes 

were mere speculation.” The record before us, however, 

demonstrates that the outtakes contain statements by Appellant 

about the charged crimes, focusing on the events that transpired 

on the day and in the place of the alleged offenses. See supra

Part I.B. Appellant also contends that the ruling is not 

appealable because “the ‘admissions’ that the Government 

speculates are in the outtakes are available from a number of 

other sources.” However, the question of whether the material 

in the outtakes is cumulative goes to the merits of the ruling 

by the military judge, not whether that ruling is appealable. 

See infra Part III.D. 

 According to Appellant, the military judge’s ruling did not 

exclude evidence from the court-martial: “If the government 

ultimately obtains these outtakes through negotiation with CBS 

News or alternative means, it [sic] may well be admissible.” On 

the record before us, CBS has sole possession and control of the 

outtakes. The record does not establish the existence of any 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

38 

negotiations or “alternative means” through which the Government 

could obtain the outtakes. 

The record reflects that CBS does not believe that it is 

appropriate to provide the outtakes to the prosecution. CBS has 

litigated vigorously a motion to quash the subpoena as well as 

the present appeal. As part of that litigation, CBS has 

submitted a declaration from its correspondent, Mr. Pelley, 

asserting a variety of negative consequences to the 

newsgathering function that would follow “if reporters were to 

become known as willing or unwilling investigative agents for 

the Government.” Under these circumstances, the record 

establishes that the military judge’s decision had the direct 

effect of excluding the outtakes from the pool of potential 

evidence that would be admissible at the court-martial. 

 In a related argument, Appellant and Petitioner-CBS suggest 

that the military judge’s decision to quash the subpoena is not 

appealable in this case because the military judge did not 

foreclose future consideration of the admissibility of the 

outtakes. The military judge, however, discussed that 

possibility in the context of a contingency under the control of 

the defense. During litigation of the motion to quash the 

subpoena at trial, the military judge asked trial defense 

counsel if he would object to introduction into evidence of the 

broadcast statements made by the accused. Defense counsel 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

39 

reserved the right to object under M.R.E. 106, the rule of 

completeness, which provides, “When a writing or recorded 

statement or part thereof is introduced by a party, an adverse 

party may require that party at that time to introduce any other 

part or any other writing or recorded statement which ought in 

fairness to be considered contemporaneously with it.” See also

M.R.E. 304(h)(2) (providing a rule of completeness in connection 

with an alleged admission or confession). 

 The rule of completeness is a rule that benefits the party 

opposing admission of evidence, not the party offering the 

evidence. Assuming that the prosecution moves to admit the 

broadcast statements, the defense would not be obligated to 

object under the rule of completeness. Defense counsel 

emphasized during discussion of the motion to quash the subpoena 

that the defense was “not required to assist the government in 

acquiring its evidence or the evidence it thinks it needs,” and 

that defense counsel was not “required to anticipate what the 

government might try to do and announce all of my objections.” 

Likewise, it is not possible to know at this stage whether the 

interests of Appellant in presenting the most effective defense 

in his trial by court-martial and the interests of CBS as a 

newsgathering entity will be similar or different during trial 

on the merits. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

40 

At this stage in the proceedings, the possibility of a 

future ruling on admissibility of the outtakes under the rule of 

completeness rests with the defense. Moreover, without having 

the content of the outtakes in the record, there is no way of 

knowing which parts, if any, of the outtakes would be covered by 

the rule of completeness. Under these circumstances, the 

contingent possibility that an opposing party might raise an 

objection that could resurrect the need for a subpoena, which is 

dependent on multiple variables, does not diminish the direct 

effect of the ruling excluding the outtakes. 

 In the present case, the military judge ruled that the 

evidence requested in the subpoena was cumulative with the 

evidence otherwise available to the prosecution. See supra Part 

I.C. In so doing, he focused specifically on the pool of 

potential evidence that would be admissible at the courtmartial. As such, his decision to quash the subpoena was 

appealable under Article 62, UCMJ, because it had a direct 

effect on whether the outtakes would be excluded from 

consideration at the court-martial. 

D. THE MILITARY JUDGE’S DECISION TO QUASH THE SUBPOENA 

 The question before us is whether the military judge in 

this case erred when he granted the motion to quash the subpoena 

on the grounds that it was unnecessary without reviewing in 

camera the evidence requested. See supra Part I.C.; R.C.M. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

41 

703(f)(1). We review the military judge’s decision under an 

abuse of discretion standard. See United States v. Reece, 25 

M.J. 93, 95 (C.M.A. 1987). 

 In trials by courts-martial, “[t]he trial counsel, the 

defense counsel, and the court-martial shall have equal 

opportunity to obtain witnesses and other evidence in accordance 

with such regulations as the President may prescribe.” Article 

46, UCMJ, 10 U.S.C. § 846 (2000). The President has provided 

that the parties and the court-martial “shall have equal 

opportunity to obtain witnesses and evidence, including the 

benefit of compulsory process.” R.C.M. 703(a). Under R.C.M. 

703(f)(1), “Each party is entitled to the production of evidence 

which is relevant and necessary.” M.R.E. 401 establishes “a low 

threshold of relevance.” Reece, 25 M.J. at 95 (quoting United 

States v. Tomlinson, 20 M.J. 897, 900 (A.C.M.R. 1985)). As 

noted in the nonbinding Discussion accompanying R.C.M. 

703(f)(1): “Relevant evidence is necessary when it is not 

cumulative and when it would contribute to a party’s 

presentation of the case in some positive way on a matter in 

issue.” See Reece, 25 M.J. at 95. 

 R.C.M. 703(f)(4)(C) provides: “If the person having 

custody of evidence requests relief on grounds that compliance 

with the subpoena or order of production is unreasonable or 

oppressive . . . the military judge may direct that the subpoena 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

42 

or order of production be withdrawn or modified.” Under the 

rule, “the military judge may direct that the evidence be 

submitted to the military judge for an in camera inspection in 

order to determine whether such relief should be granted.” 

 Reece considered these provisions on direct review of a 

case in which the military judge had declined to review in 

camera the social service and counseling records of two 

witnesses. 25 M.J. at 94-95. The defense at trial had asserted 

that records of drug and alcohol abuse, as well as behavioral 

problems, were relevant to the credibility of the witnesses. On 

appeal, this Court observed that the credibility of the two 

witnesses was a key issue at trial and that the appellant had 

“made as specific a showing of relevance as possible, given that 

he was denied all access to the documents.” Id. at 95. Under 

the circumstances of the case, Reece held that the military 

judge erred in not conducting an in camera review of the 

requested materials, and remanded the case for in camera 

inspection by a military judge under United States v. DuBay, 17 

C.M.A. 147, 37 C.M.R. 411 (1967). 25 M.J. at 95; cf. United 

States v. Cuthbertson, 630 F.2d 139, 145-46, 148-49 (3d Cir. 

1980) (holding that the trial judge did not err in requiring an 

in camera review of trial witness statements when there was a 

showing of relevancy, necessity, and specificity, but erred in 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

43 

requiring an in camera review of non-witness statements without 

such a showing). 

 In the present case, Appellant argues that the military 

judge did not err in quashing the subpoena because “[t]here is 

no reason to believe that there are material statements in 

excess of what CBS aired on March 17, 2007, as Petitioner’s 

[Appellant’s] statements are relatively uniform and indicative 

of his subjective intent.” Appellant further contends that -- 

the government also has a wealth of 

additional evidence that can be used to 

demonstrate [Appellant’s] specific intent, 

including forensic evidence, the testimony 

of all of [Appellant’s] squad members, and 

secondary evidence. The testimony of 

Appellant’s squad members is indicative of 

his specific intent, as he trained his squad 

on the rules of engagement and their 

understanding of the rules of engagement 

mirrors his. Appellant’s subjective intent 

is clear from his multiple statements -- he 

declared the buildings and anyone within 

hostile and authorized the use of force. He 

repeatedly admitted to telling them to 

“shoot first and ask questions later.” 

(citations omitted). In similar fashion, Petitioner-CBS notes 

that the record is replete with other evidence available to the 

Government on the contested issues in the court-martial. 

Petitioner-CBS further suggests that an in camera review of the 

outtakes is unnecessary because “it is typically the case that 

the most relevant and important information is included in the 

publicly disseminated news report.” 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

44 

 As we have noted earlier, Appellant granted an interview 

with CBS in which he specifically described events at the time 

and in the place of the charged offenses. CBS conducted the 

interview knowing that it involved matters then under 

investigation. The interview lasted for several hours, but only 

a portion of the interview was aired by CBS. The outtakes 

contain a majority of Appellant’s discussion of the charged 

offenses with CBS, and only CBS possesses those outtakes. See

supra Part I.B-C. 

 At this stage in the proceedings, Appellant has pled not 

guilty. Therefore, the issues of his specific intent and other 

key elements of the offenses remain in dispute. On the record 

before us, the case involves both direct and circumstantial 

evidence, including statements by Appellant. Both the 

prosecution and the defense will have the opportunity to 

demonstrate the inculpatory or exculpatory value of evidence 

that is introduced with respect to the charged offenses. Under 

those circumstances, the level of detail, the context, and the 

credibility of the evidence is likely to be at issue. 

 In that setting, the decisions made by CBS as to what was 

relevant and important to include in a nationally broadcast news 

story are not the same as the judgment by the parties to the 

court-martial of what might be relevant and necessary in the 

trial of the pending case, which includes both general crimes 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

45 

and unique military offenses. Likewise, Appellant’s assessment 

that his statements in the record reflect a consistent 

expression of intent is a matter that, at this stage in the 

proceedings, is likely to be subject to evaluation by the 

factfinder at trial. Moreover, Appellant’s assessment does not 

describe the content of the statements in the outtakes. 

 In Cuthbertson, the Third Circuit addressed similar 

considerations in a case where a news organization sought to 

resist a subpoena that requested, in part, material containing 

“verbatim and substantially verbatim statements . . . of 

witnesses that the government intends to call at trial.” 630 

F.2d at 148. In sustaining the decision of the trial judge to 

order production of that material for in camera inspection, the 

court observed: 

By their very nature, these statements are 

not obtainable from any other source. They 

are unique bits of evidence that are frozen 

at a particular place and time. Even if the 

defendants attempted to interview all of the 

government witnesses and the witnesses 

cooperated with them, the defendants would 

not obtain the particular statements that 

may be useful for impeachment purposes at 

trial. 

Id.; accord United States v. LaRouche, 841 F.2d 1176, 1180 (1st 

Cir. 1988) (sustaining the trial judge’s decision to order 

production of outtakes of a news media interview with a key 

trial witness). 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

46 

 The outtakes of the CBS interview of Appellant about the 

events in Haditha on the date of the charged offenses, like the 

material at issue in Cuthbertson and LaRouche, constitute a 

potentially unique source of evidence that is not necessarily 

duplicated by any other material. Under the circumstances of 

the present case, consideration of whether the outtakes are 

cumulative requires review of the requested material by the 

military judge. The military judge’s decision to quash the 

subpoena without conducting an in camera review of the requested 

material constituted an abuse of discretion. 

E. FURTHER PROCEEDINGS 

 Petitioner-CBS based the motion to quash the subpoena in 

part on the grounds that the outtakes were protected by a 

qualified newsgathering privilege. Petitioner-CBS relied on 

principles related to the newsgathering process and did not 

claim that Appellant’s statements were made under conditions of 

confidentiality. Although the military judge indicated 

agreement with the concept of a qualified newsgathering 

privilege, he found it unnecessary to base his decision on the 

privilege because he determined that the outtakes were 

cumulative. 

 Under M.R.E. 501(a)(4), a privilege may be claimed under 

“[t]he principles of common law generally recognized in the 

trial of criminal cases in the United States district courts 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

47 

pursuant to Rule 501 of the Federal Rules of Evidence insofar as 

the application of such principles in trials by courts-martial 

is practicable and not contrary to or inconsistent with the 

code, these rules, or this Manual.” In the past, this Court has 

considered but has not resolved the question of whether a 

newsgathering privilege applies in the military justice system. 

See United States v. Rodriguez, 50 M.J. 38, 38 (C.A.A.F. 1998) 

(summary disposition). On appeal, the parties have referred to 

the question of whether a newsgathering privilege should be 

recognized in the military justice system, but they have not 

asked this Court to resolve whether the subpoena in this case 

should have been quashed on a qualified newsgathering privilege. 

Under these circumstances, we do not decide here whether such a 

privilege should be recognized in the military justice system. 

 The issue of an in camera review is a separate matter. 

Even to the extent that a qualified privilege has been 

recognized by some courts in the trial of federal civilian 

cases, the application of such a privilege to an in camera 

review has been highly case specific. See, e.g., United States 

v. Burke, 700 F.2d 70, 76-78 (2d Cir. 1983); Cuthbertson, 630 

F.2d at 146-49. In that context, even if a qualified privilege 

applied to cases in the military justice system -- a matter that 

we do not decide here -- such a privilege would not preclude an 

in camera review pursuant to R.C.M. 703(f)(4)(C) under the 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

48 

circumstances of the present case. The description of the 

material at issue in the present case -- video outtakes from a 

specific interview in which Appellant discussed the events 

occurring on the date of and in the place of the charged 

offenses -- is sufficient to meet a threshold showing of 

necessity for an in camera review. The military judge could not 

make an evaluation of necessity under the specific circumstances 

of this case without reviewing the outtakes for content and 

context. See supra Part III.D. Accordingly, we conclude that 

the military judge in the present case must conduct an in camera 

review of the requested materials prior to ruling on the motion 

to quash the subpoena. 

 In any further hearing before the military judge on a 

motion to quash the subpoena, the military judge alone will 

inspect the requested materials in camera. Such a hearing, 

accompanied by inspection of the requested material in camera by 

the military judge alone, will provide the appropriate forum for 

consideration of issues pertinent to a motion to quash the 

subpoena, such as the existence, if any, of a qualified 

newsgathering privilege under M.R.E. 501(a)(4), the scope of any 

such privilege, and the application, if any, of such a privilege 

to the requested materials. 

 Our decision to order inspection in camera by the military 

judge alone pertains to the present case. We do not decide here 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC)

49 

whether, under other circumstances, inspection by the parties 

under an appropriate protective order would be warranted. See

Reece, 25 M.J. at 95 n.6. 

IV. DECISION 

 We vacate the decision of the United States Navy-Marine 

Corps Court of Criminal Appeals and the order of the military 

judge quashing the Government’s subpoena. We remand the record 

of trial to the Judge Advocate General of the Navy for return to 

the military judge for further consideration of whether relief 

should be granted to Petitioner-CBS under R.C.M. 703. Prior to 

ruling, the military judge shall order production of the 

requested material for in camera inspection by the military 

judge alone. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

 RYAN, Judge, with whom ERDMANN, Judge, joins (dissenting): 

I agree that Appellant has standing to litigate the 

Government’s appeal of the military judge’s ruling quashing a 

third-party subpoena. United States v. Wuterich, __ M.J. __ 

(19-21) (C.A.A.F. 2008). However, because the Government’s 

appeal in this case is an appeal of the military judge’s ruling 

on a discovery motion -- a ruling that expressly noted that the 

object of the discovery could be admissible1

 -- and not “[a]n 

order or ruling which excludes evidence,” I disagree that the 

United States Navy-Marine Corps Court of Criminal Appeals (CCA) 

had jurisdiction under Article 62 of the Uniform Code of 

Military Justice (UCMJ), 10 U.S.C. § 862 (2000), to hear the 

Government’s appeal. That the CCA had no jurisdiction under the 

facts of this case is supported both by the precedent of this 

Court and the precedent of the United States Court of Appeals 

for the First Circuit. See United States v. Browers, 20 M.J. 

356, 360 (C.M.A. 1985) (defining “exclusion” as used in Article 

62(a)(1)(B), UCMJ, as a ruling involving inadmissibility); 

United States v. Watson, 386 F.3d 304, 310 (1st Cir. 2004) 

(“[The Criminal Appeals Act] unarguably restricts government 

appeals to specific categories of district court orders. If an 

 

1

 Transcript of Record at 87, United States v. Wuterich (Feb. 22, 

2005) (Article 39(a), UCMJ, session) (“[T]he court clearly finds 

that this could be admissible into the evidence as statements of 

the accused under Military Rule of Evidence 801(d).”). 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

2 

order falls outside those categories, the government’s attempted 

appeal must be dismissed.”) (citation omitted). 

A. Statutory authorization for a government appeal 

In criminal cases, prosecution appeals are not favored and 

are available only upon specific statutory authorization. See

United States v. Wilson, 420 U.S. 332, 336 (1975); 7 Wayne R. 

LaFave et al., Criminal Procedure §27.3(a)-(b) (3d. ed. 2007). 

Specifically relevant to this case, Article 62(a)(1)(B), UCMJ, 

grants the Government the authority to appeal “[a]n order or 

ruling which excludes evidence that is substantial proof of a 

fact material in the proceeding.” Article 62(b), UCMJ, grants 

the CCA the jurisdiction to hear those appeals. 

B. “Order or ruling which excludes evidence” 

This Court previously adopted a narrow construction of the 

language in Article 62, UCMJ, permitting the government to 

appeal from an order or ruling “which excludes evidence that is 

substantial proof of a fact material in the proceeding.” 

Browers, 20 M.J. at 359-60. In Browers, the Court 

differentiated appealable decisions from unappealable ones by 

asking whether the military judge made a ruling involving the 

admissibility of the evidence. Writing for the Court, former 

Chief Judge Everett defined “excludes evidence” to mean “a 

ruling made at or before trial that certain testimony, 

documentary evidence, or real evidence is inadmissible.” Id. at 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

3 

360 (emphasis added). The Court acknowledged that this 

interpretation might result in a party being deprived of 

critical evidence, but expressed confidence in the “ability of 

military judges to make these delicate determinations.” Id.

Inexplicably, the majority dismisses former Chief Judge 

Everett’s definition in Browers, a decision of this Court, as 

mere “observations.” Wuterich, __ M.J. at __ (31). If the 

current majority has a different take on what the definition of 

“excludes” should be, as it is entitled to have, it should say 

so and explicitly overrule Browers rather than mischaracterize a 

holding of this Court.2

 

The majority suggests that Browers “concluded that the 

order was not appealable because it involved the question of 

trial scheduling, not the exclusion of evidence.” Wuterich, __ 

M.J. at __ (30). Browers made no such conclusion, as the 

Court’s language plainly demonstrates. Browers explicitly 

states that “the issue is whether denial of a continuance 

requested so that the Government may produce a material witness 

constitutes the exclusion of evidence.” Browers, 20 M.J. at 360 

(emphasis in original). The Browers Court concluded that the 

 

2

 Any relevance of the Court’s composition during Browers, which 

the majority appears to suggest weighs against the precedential 

value of the opinion, Wuterich, __ M.J. at __ (32), is unclear 

at best. Chief Judge Everett delivered the opinion of the 

Court; Judge Cox, while writing separately to concur in Browers, 

did not disagree with Judge Everett’s opinion in general or his 

definition of “excludes” in particular. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

4 

denial of a continuance was not an appealable ruling because it 

was not an order that “excludes evidence” despite the fact that 

the ruling prevented the government from presenting two material 

witnesses. The scheduling ruling in Browers, like the discovery 

ruling in this case, deprived the government of evidence, but 

did not “exclude” evidence for purposes of Article 62, UCMJ. 

If any doubt remained as to the Court’s intentions in 

Browers, former Chief Judge Everett later repeated the 

definition of “excludes evidence” as a ruling that “evidence is 

inadmissible,” and stated that, in Browers, this Court “adopted 

a narrow construction of the statutory language.” United States 

v. True, 28 M.J. 1, 5 (C.M.A. 1989) (Everett, C.J., dissenting) 

(citing Browers, 20 M.J. at 360).3

 

 

3

 The Court in True considered whether the ruling of the military 

judge, which abated the court-martial, was one “which terminates 

the proceedings,” not whether it was one “which excludes 

evidence.” 28 M.J. at 2. On that point Chief Judge Everett 

agreed. Id. at 5 (Everett, C.J., dissenting). While all 

federal circuits to have considered the issue agree that the 

analogous language in the first paragraph of 18 U.S.C. § 3731 

(“a decision, judgment, or order of a district court dismissing 

an indictment or information or granting a new trial after 

verdict or judgment”) should be construed broadly, see, e.g., 

Watson, 386 F.3d at 308 (crediting “Congress’s intent that all 

such orders would be appealable unless the Double Jeopardy 

Clause forbade that course of action”), only the Fifth Circuit 

reads “suppresses or excludes evidence” as broadly. See United 

States v. Smith, 135 F.3d 963, 967 (5th Cir. 1998) (holding that 

§ 3731 provides the government with as broad a right to appeal 

an order suppressing or excluding evidence as the Constitution 

will permit). Consequently the breadth of the language in True, 

applicable to statutory language regarding “terminates the 

proceedings,” is of doubtful weight when considering the 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

5 

One would think that Browers ends the inquiry as to the 

meaning of Article 62(a)(1)(B), UCMJ. This Court concluded that 

“excludes” was a term of art relating to admissibility of 

evidence and saw “no reason to believe that Congress had any 

different intention in drafting Article 62(a)(1).” Browers, 20 

M.J. at 360. This narrow view is consistent with the Supreme 

Court’s instruction that the government could only take an 

appeal in a criminal case if it had express statutory authority, 

Wilson, 420 U.S. at 336, and its policy against piecemeal 

appeals in criminal cases, “where the defendant is entitled to a 

speedy resolution of the charges against him.” Will v. United 

States, 389 U.S. 90, 96 (1967); see also U.S. Const. amend. VI 

(“In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial . . . .”). 

But despite Browers, the majority looks to the parallel 

federal statute, 18 U.S.C. § 3731, in search of a different 

definition of “an order or ruling which excludes evidence” as 

specified by Article 62, UCMJ. The majority states that it 

agrees with the First Circuit’s approach that defines rulings 

excluding evidence under § 3731 as ones that “‘either in 

substance or in form, limit the pool of potential evidence that 

would be admissible.’” Wuterich, __ M.J. at __ (33) (quoting 

 

different language “excludes evidence.” While the former 

directly implicates the Double Jeopardy Clause, Wilson, 420 U.S. 

at 336-37 (1975), the latter does not. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

6 

Watson, 386 F.3d at 313). I do not believe, however, that the 

precedent of the First Circuit supports the Court’s holding 

today. 

 The First Circuit, noting Congress’s instruction that § 

3731 should be construed liberally, concludes only that “the 

second paragraph of section 3731, in its present form, covers 

all pretrial orders that deny admissibility to virtually any 

evidence on virtually any ground.” Watson, 386 F.3d at 309 

(emphasis added). In Watson, a case with a fact pattern similar 

to that of Browers, the government attempted to appeal from a 

trial judge’s denial of a government motion requesting a 

continuance. Without the continuance, the government could not 

depose a key witness and would be forced to prosecute Watson 

without the benefit of the witness’s testimony. Id. at 307. 

The First Circuit held that it had no jurisdiction under § 3731 

to hear the government’s appeal because the trial court was not 

engaged in making an evidentiary ruling. Id. at 311. The court 

rejected the government’s argument that the trial court’s 

rulings were a but-for cause of the government’s inability to 

gather or present evidence at trial. Id. The court explicitly 

distinguished between available and admissible evidence, stating 

that “[a]lthough the orders appealed from will certainly hamper 

(and may effectively prevent) the obtaining and subsequent use

of [the witness’s] testimony, those orders did not, either in 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

7 

substance or in form, limit the pool of potential evidence that 

would be admissible at the forthcoming trial.” Id. at 313 

(emphasis added). For the First Circuit, admissibility, rather 

than availability, is the critical factor in determining when 

the government may appeal an order under § 3731. As in Browers, 

even though the trial court’s ruling would “certainly hamper 

(and may effectively prevent) the obtaining and subsequent use” 

of a witness’s testimony, the First Circuit still held that the 

ruling did not exclude evidence. Id. The First Circuit’s 

approach is consistent with this Court’s position in Browers, 

and different than today’s decision, which implies that any 

decision that limits the pool of available evidence would be 

appealable under Article 62, UCMJ. 

The majority’s decision is also contrary to the approach 

favored by the other federal courts of appeals, which reject the 

argument that any trial court order or ruling that hampers or 

effectively prevents the obtaining or use of evidence is 

appealable by the government under § 3731. See, e.g., United 

States v. Hickey, 185 F.3d 1064, 1066-67 (9th Cir. 1999) 

(finding no jurisdiction to hear appeal from order denying 

government’s request to unseal defendant’s financial 

affidavits); United States v. Camisa, 969 F.2d 1428, 1429 (2d 

Cir. 1992) (finding no jurisdiction to hear appeal from order 

denying government’s request to disqualify defendant’s counsel 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

8 

which possibly rendered a witness’s testimony inadmissible). As 

the First Circuit stated, “[w]hatever incidental effect those 

orders may have on evidentiary matters, they are simply not the 

proximate cause of the exclusion of any evidence.” Watson, 386 

F.3d at 312. 

C. The majority’s rule is not supported by the decisions 

of the federal courts of appeals 

The majority suggests that its approach, in the context of 

the facts of this case, is consistent with the approach of other 

federal circuits. See Wuterich, __ M.J. at __ (27-29) (“The 

courts of appeals have addressed the meaning of the term 

‘excluding evidence’ under 18 U.S.C. § 3731 and have concluded 

that the term includes an order quashing a subpoena.”). I 

disagree. In fairness, the federal courts of appeals have at 

times permitted appeals under 18 U.S.C. § 3731 in cases 

involving the quashing of subpoenas in the context of grand jury 

investigations. See, e.g., In re Grand Jury Subpoenas

(Kiefaber), 774 F.2d 969, 972-73 (9th Cir. 1985), vacated on 

other grounds, 823 F.2d 383 (9th Cir. 1987); In re Grand Jury 

Empanelled (Colucci), 597 F.2d 851, 856 (3d Cir. 1979). But 

each of those cases relied on the precise language -- “[t]he 

provisions of this section shall be liberally construed to 

effectuate its purposes” -- in § 3731 that is not present in 

Article 62, UCMJ. See Kiefaber, 774 F.2d at 972-73 (“Therefore, 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

9 

in light of the legislative direction to construe broadly the 

phrase ‘suppressing or excluding evidence,’ we conclude that the 

district court’s order quashing the grand jury subpoenas 

constitutes an order suppressing or excluding evidence.”) 

(footnote omitted); Colucci, 597 F.2d at 856 (“In light of this 

legislative direction to construe broadly the government’s right 

of appeal, this Court has held that orders which do not, 

‘strictly speaking,’ suppress evidence but which have the 

‘practical effect’ of excluding evidence from a proceeding, are 

within the ambit of [section] 3731.”). Yet this is the very 

language upon which the majority claims not to rely in 

construing Article 62, UCMJ. Wuterich, __ M.J. at __ (26) 

(“[I]t would be inappropriate to apply the liberal construction 

mandate of section 3731 when interpreting Article 62, UCMJ.”). 

And, of course, at the pre-indictment grand jury stage an 

individual is a target, not a defendant, so there is not yet any 

Sixth Amendment speedy trial concern. See United States v. 

Marion, 404 U.S. 307, 313 (1971) (“[The Sixth Amendment] would 

seem to afford no protection to those not yet accused, nor would 

[it] seem to require the Government to discover, investigate, 

and accuse any person within any particular period of time.”). 

D. The majority’s holding is overly broad 

The problems with the majority’s new position are twofold. 

First, it highlights that Browers is being overruled sub 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

10 

silentio. The military judge’s ruling at issue in Browers

clearly limited the pool of evidence that was available to the 

government to proffer at trial by preventing the government from 

presenting two material witnesses, yet this Court held that the 

ruling did not exclude evidence for the purposes of Article 62, 

UCMJ. One cannot reconcile today’s holding with the precedent 

of this Court in Browers. 

This highlights the second problem with the majority’s 

position. Although the majority expressly states that a liberal 

construction of Article 62, UCMJ, is not warranted, its holding 

is extraordinarily broad. See Wuterich, __ M.J. at __ (25-26) 

(stating that because Article 62, UCMJ, contains no language on 

statutory interpretation, it would be inappropriate to apply 

§ 3731’s liberal construction mandate when interpreting Article 

62). If one accepts that any order or ruling that limits the 

pool of evidence that is available to the government is 

appealable under Article 62(a)(2)(B), then any ruling by a 

military judge that impacts the availability, as opposed to the 

admissibility, of evidence would be a proper subject of a 

government appeal. Under the majority’s new rule there is no 

principled way to distinguish among: garden-variety scheduling 

orders, such as those at issue in Browers, which hindered the 

government’s ability to offer a witness’s testimony; discovery 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

11 

rulings of any sort that go against the government; and actual 

rulings on the admissibility of evidence. 

The majority relies heavily on the fact that Browers and 

Watson considered what it characterizes as case-management 

orders to distinguish the holdings in those cases from the 

majority’s broad interpretation of § 3731 and Article 62, UCMJ. 

See Wuterich, __ M.J. at __ (28-31). Presumably, the majority 

believes that trial scheduling orders may “limit the pool of 

potential evidence” without qualifying under Article 62, UCMJ, 

solely because trial scheduling falls within the sound 

discretion of the trial judge. Of course, neither case rested 

on that fact. Moreover, discovery rulings, as the one in the 

instant case undoubtedly is, may “limit the pool of potential 

evidence” and are also within the sound discretion of the trial 

court. See, e.g., Diamond Ventures, LLC v. Barreto, 452 F.3d 

892, 898 (D.C. Cir. 2006) (“[T]he district court has wide 

discretion in managing discovery.”); Faigin v. Kelly, 184 F.3d 

67, 84 (1st Cir. 1999) (“A district court’s case-management 

powers apply with particular force to the regulation of 

discovery and the reconciliation of discovery disputes.”); 

Trepel v. Roadway Express, Inc., 194 F.3d 708, 716 (6th Cir. 

1999) (“Matters of discovery are in the sound discretion of the 

district court.”). Both types of decisions being within the 

discretion of a trial court and potentially or actually limiting 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

12 

the pool of potential evidence, the only distinction available 

appears based on ad hoc decisions by this Court. This is a 

less-than-workable legal standard. 

E. Admissibility is the touchstone 

A military judge’s ruling quashing a subpoena duces tecum 

is a discovery ruling, which may impact the availability of 

evidence, but it neither denies the admissibility of the 

evidence nor excludes it. This distinction is an important one 

that should make a difference based on the explicit language of 

Article 62(a)(1)(B), UCMJ. Courts faced with a motion to quash 

a subpoena duces tecum in a criminal case consider more than 

admissibility -– they balance the general public’s duty to 

testify, Branzburg v. Hayes, 408 U.S. 665, 688 (1972), against 

other interests, such as the burden placed on the recipient of 

the subpoena, see United States v. Nixon, 418 U.S. 683, 698 

(1974), and the explicitly stated goal of expediting the 

defendant’s trial. See id. The balancing is contextual and 

uses a four-factor test articulated by Judge Weinfeld of the 

United States District Court for the Southern District of New 

York and adopted by the Supreme Court in Nixon, 418 U.S. at 699-

700 (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y. 

1952)).4

 The Weinfeld factors are important because they 

 

4

 The Drafters’ Analysis for Rule for Courts-Martial (R.C.M.) 

703(e) also cites Nixon in its discussion of the purpose of a 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

13 

illustrate the difference between discovery rulings and 

evidentiary orders, a difference the majority ignores. 

 Under the Weinfeld test, the moving party cannot require 

production of documents prior to trial unless that party shows: 

(1) that the documents are evidentiary and relevant; 

(2) that they are not otherwise procurable reasonably 

in advance of trial by exercise of due diligence; (3) 

that the party cannot properly prepare for trial 

without such production and inspection in advance of 

trial and that the failure to obtain such inspection 

may tend unreasonably to delay the trial; and (4) that 

the application is made in good faith and is not 

intended as a general “fishing expedition.” 

Id. 

It may be that a court quashes a subpoena based on the 

first Weinfeld factor –- lack of relevancy. If so, this would 

be a ruling on the admissibility of evidence and fall within 

Browers and Watson, even if styled a discovery order by the 

trial judge. In contrast, the other three Weinfeld factors do 

not weigh or consider whether the evidence is admissible. 

Rather, the second factor considers the burden placed on the 

party receiving the subpoena, the third factor considers the 

potential impact on the defendant’s right to a speedy trial, and 

the fourth factor protects parties from unwarranted requests. 

These factors address equitable considerations that protect the 

 

subpoena duces tecum. Manual for Courts-Martial, United States, 

Analysis of the Rules for Courts-Martial app. 21 at A21-37 (2008 

ed.). 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

14 

rights of third parties and the defendant, not evidentiary 

concerns. 

As the United States Court of Appeals for the District of 

Columbia Circuit stated in a case involving a government appeal, 

an order regarding a subpoena in no way finally decides that any 

of the subpoenaed material must be denied to the jury and 

“cannot be deemed an order ‘suppressing or excluding evidence,’ 

or otherwise within the contemplation of the Criminal Appeal 

Act, 18 U.S.C. § 3731.” Nixon v. Sirica, 487 F.2d 700, 707 n.23 

(D.C. Cir. 1973). Denials of discovery requests may ultimately 

make evidence unavailable, but not all such denials are –- or 

should be -- appealable under Article 62, UCMJ, because they 

usually do not address the admissibility of the evidence. 

F. No ruling that evidence is inadmissible in this case 

 In this case the ruling of the military judge did not 

exclude evidence in any evidentiary sense, although the ruling 

may have, or even will have, the effect of making the evidence 

unavailable. The military judge not only refrained from ruling 

that the subpoenaed tapes were inadmissible, he opined that they 

likely were. Transcript of Record at 87, Wuterich (Article 

39(a), UCMJ, session) (“[T]he court clearly finds that this 

could be admissible into the evidence as statements of the 

accused under Military Rule of Evidence 801(d).”). In his 

words, the order was a “discovery denial.” Transcript of Record 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

15 

at 93, Wuterich (Article 39(a), UCMJ, session). Although the 

military judge’s ruling “will certainly hamper (and may 

effectively prevent) the obtaining and use” of the outtakes by 

the Government, the ruling “did not, either in substance or in 

form, limit the pool of potential evidence that would be 

admissible at the forthcoming trial.” Watson, 386 F.3d at 3131 

(emphasis added). 

 As CBS acknowledged at oral argument, if the Government 

obtains possession of the outtakes, nothing in the military 

judge’s order would prevent the Government from proffering the 

outtakes as evidence. Transcript of Oral Argument at 00:35:25, 

Wuterich, Nos. 08-6006, 08-8020, 08-8021. This is because it 

was not an order “which excludes evidence.” The majority 

ignores this salient fact, and focuses instead on a straw man –- 

the possibility that the Government could obtain the outtakes 

through negotiation or other means, a possibility it then 

dismisses. Wuterich, __ M.J. at __ (37-38). 

Of course this goes to availability, not admissibility, and 

is not relevant for purposes of Article 62(b), UCMJ. Further, I 

note that CBS attempted to work with the Government by providing 

the 60 Minutes broadcast, offering to authenticate it, and 

requesting materials from the Government to help determine 

whether the outtakes were indeed cumulative. In response, the 

Government refused either to accept the broadcast or to provide 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

16 

CBS with the requested materials. CBS Broadcasting Inc.’s 

Petition for a Writ of Prohibition and/or Mandamus at 3-4, 5 

n.3, United States v. Wuterich, No. 08-8020 (C.A.A.F. July 10, 

2008); Transcript of Oral Argument at 00:27:54, Wuterich, Nos. 

08-6006, 08-8020, 08-8021. Given the fluid nature of thirdparty discovery in practice, there is no basis for concluding 

that absence of progress in light of the Government’s lack of 

cooperation is evidence of the futility of negotiations. 

 G. Appellant’s trial 

The previous construction of Article 62, UCMJ, by this 

Court in Browers was narrow, consistent with the precept that 

government appeals are disfavored and only permitted where 

expressly authorized by statute, and consonant with the policy 

against piecemeal appeals in criminal cases, “where the 

defendant is entitled to a speedy resolution of the charges 

against him.” Will, 389 U.S. at 96; see also U.S. Const. amend. 

VI (“In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial . . . .”); Watson, 386 F.3d 

at 310 (“Section 3731 was ‘carefully circumscribed by Congress 

out of a desire (among other reasons) to safeguard individuals 

from the special hazards inherent in prolonged litigation with 

the sovereign.’”) (quoting United States v. McVeigh, 106 F.3d 

325, 330 (10th Cir. 1997)); United States v. Kane, 646 F.2d 4, 7 

(1st Cir. 1981) (cautioning that if interlocutory orders related 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

17 

to discovery and other preliminary matters were appealable under 

the second paragraph of section 3731, “defendants’ rights to a 

speedy trial could be subverted”). 

As this case demonstrates, these principles, and the impact 

of expansive jurisdiction under Article 62, UCMJ, are of more 

than academic concern. This is especially true in the military 

justice system, where defendants’ detailed military counsels are 

subject to reassignment and retirement. Appellant’s trial was 

automatically stayed under R.C.M. 908 in February 2008 by the 

Government’s interlocutory appeal of the military judge’s 

granting of a motion to quash a third-party subpoena. See

R.C.M. 908(b)(4) (providing an automatic stay of a court-martial 

pending disposition by the CCA of an interlocutory government 

appeal).5

 During that period Appellant lost the representation 

of both of his detailed military counsel due to retirement. 

Appellant’s Reply at 1, United States v. Wuterich, No. 08-6006 

 

5

 The majority implies that the Government’s appeal to this Court 

has not delayed this case -- as if Appellant’s court-martial 

might somehow proceed in parallel to the appellate proceedings 

currently before this Court -- because this Court has not 

granted a stay. Of course the court-martial has not proceeded, 

and it seems strange to suggest that it would while the Court 

entertained this appeal. In any event, the dearth of statutory 

procedures relating to whether a proceeding after the appeal to 

the CCA is stayed illustrates the concerns I previously raised 

regarding this Court’s assumption of jurisdiction to hear 

Article 62, UCMJ, appeals –- the statute does not countenance 

the involvement of this Court. See United States v. Lopez de 

Victoria, 66 M.J. 67, 74-77 (C.A.A.F. 2008) (Ryan, J., joined by 

Erdmann, J., dissenting). 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

18 

(C.A.A.F. Sept. 2, 2008); Transcript of Oral Argument at 

00:46:41, Wuterich, Nos. 08-6006, 08-8020, 08-8021. The 

Government concedes that these losses may prejudice Appellant’s 

defense. Transcript of Oral Argument at 00:47:26, Wuterich, 

Nos. 08-6006, 08-8020, 08-8021. 

And to what end? Common sense suggests that CBS endeavored 

to make the 60 Minutes segment at issue as newsworthy as 

possible, which at least recommends the idea that to the extent 

Appellant made incriminating, shocking, or newsworthy 

statements, they are almost certainly in the broadcast, which 

CBS provided to the Government. Despite the absence of any 

support for the suggestion that the contested outtakes contain 

anything new, and despite the fact the Government conceded at 

argument that it has evidence on every element of every offense,6

the majority’s ruling allows the Government to continue to 

litigate this issue and further prejudice Appellant’s defense. 

Under the Browers construction, the CCA’s opinion would be 

vacated for lack of jurisdiction and Appellant’s trial would 

proceed apace. 

Conclusion 

 Appellant challenges the jurisdiction of the CCA to hear 

the Government’s appeal of a military judge’s ruling quashing a 

 

6

 Transcript of Oral Argument at 00:45:44, Wuterich, Nos. 08-

6006, 08-8020, 08-8021. 
United States v. Wuterich, No. 08-6006/MC (consolidated with No. 08-8020/MC and No. 08-8021/MC) 

19 

subpoena. This Court has previously stated that the 

“jurisdiction of courts is neither granted nor assumed by 

implication” and that “[t]hat maxim is particularly apt in the 

case of an Article I court whose jurisdiction must be strictly 

construed.” Loving v. United States, 62 M.J. 235, 244 n.60 

(C.A.A.F. 2005) (citations and quotation marks omitted). The 

majority concludes that the CCA has jurisdiction over a military 

judge’s order quashing a third-party subpoena, an order that did 

not rule that any evidence was inadmissible. I believe that 

this is an unwarranted expansion of the CCA’s jurisdiction that 

cannot be justified by the language of Article 62(a)(1)(B), 

UCMJ. Because the majority’s holding mischaracterizes this 

Court’s prior ruling in Browers, threatens defendants’ Sixth 

Amendment right to a speedy trial, and opens the door to 

interlocutory appeals from discovery rulings, I respectfully 

dissent.