917 on steroids

In 1988 the Court of Military Appeals decided Griffith.  I have used the case from time to time, not often successfully.  But here is a recent example of what I call 917-on-steroids.  I was pleasantly surprised that it was the judge who first raised the Griffith possibility.

R.C.M. 917 allows the defense to make a motion (or the MJ sua sponte) for a finding of not guilty at the close of the prosecution case or at the close of the evidence.  I have just completed one of the infamous Army TCS/Reserve TDY cases.  The E-8 accused was charged with conspiracy with two others to steal using fraudulent rent receipts, false official statement, theft of funds in excess of $500.00, and two specifications of fraud under Article 132, UCMJ.  The standard or amount of evidence is so low that it is hard to obtain an R.C.M. 917 dismissal.

At the close of the prosecution case they had not introduced evidence of a delta between the amount alleged to have been stolen and that to what the accused would have been entitled, and had not introduced evidence that the travel claim vouchers were actually signed and submitted by the accused.  Rather than grant a 917 motion, the judge allowed the prosecution time to rethink their case and potentially request they be allowed to reopen.  After the interlude the judge kicked the can and referenced Griffith, again giving the prosecution more opportunity to reopen.  The military judge is permitted to take such a course of action.  See e.g. United States v. Ray, 26 M.J.  468 (C.M.A. 1988).

I asked for reconsideration after the defense case, and again the judge indicated he was going to wait until after findings.  Interestingly, the judge’s view was that to grant a 917 motion to most of the charges may prejudice the members against the client.  His idea being that the perception to the members would be that the judge thought the accused guilty of what was left.  The members found the client guilty of all of the charges and specifications – go figure.  Overnight the judge gave the prosecution time to find case law and arguments on a Griffith motion.  See Ray, supra.

The next day, the military judge excepted and dismissed one of the co-conspirators and the “act” from the conspiracy specification, the false official statement, and the Article 132, UCMJ, offenses, but left the theft and remaining conspirator.  He did except and substitute “some amount” for “in excess of $500.00.”  (You should have seen the members faces when he said all of this.)  Now he did say he was making the dismissal of the frauds without prejudice.  But that’s a fight for another day.

The standard under R.C.M. 917 is quite low — “some evidence” is all that is needed.  And the military judge must view the evidence in the light most favorable to the prosecution.  Frankly for my case the prosecution case didn’t get any better and I think the judge should have granted the 917 motion then and there, but  . . .

There are many things a military judge may do post-trial in accordance with R.C.M. 1102 and before authentication of the record.  (I’ve commented elsewhere about my standard post-trial Article 39(a), UCMJ, motion for release pending appeal, a speedy post-trial review, and immediate production of a record of trial.)  In United States v. Griffith, 27 M.J. 42 (C.M.A. 1988), the court addressed a judge’s power and responsibility post-trial.

Appellate defense counsel argue that the military judge not only has the power to rule after trial on the legal sufficiency of the evidence — as is permitted in Federal trials by Fed.R.Crim.P. 29 — but also may set aside findings of guilty after trial if he determines that they are against the weight of the evidence. Although Fed.R.Crim.P. 33 apparently allows Federal District judges to take such action, we are unconvinced that a military judge may become the "thirteenth juror" in this manner. Instead, as we interpret the military judge’s responsibilities under the Code, he may determine only whether the rights of an accused have been prejudiced by legal error — such as legal insufficiency of the government evidence — and may not decide the credibility of the witnesses.

United States v. Griffith, 27 M.J. 42, 48 (C.M.A. 1988).

Note that the military judge’s power is not that of a court of criminal appeals panel.  A panel acting in accordance with Article 66, UCMJ, is more like the thirteenth juror.  Rather it is more similar to that of CAAF.

[I]f, before authenticating the record of trial, a military judge becomes aware of an error which has prejudiced the rights of the accused — whether this error involves jury misconduct, misleading instructions, or insufficient evidence — he may take remedial action on behalf of the accused without awaiting an order therefor by an appellate court. This result is predicated on our interpretation of congressional intent.

United States v. Griffith, 27 M.J. 42, 47 (C.M.A. 1988).

Take a look at Griffith.  I’m not advocating that you make a Griffith motion every time you raise and lose a 917 motion.  But there are certainly cases where it is worthwhile making and pressing the motion.  For example where the judge says that there is enough evidence – barely, or some other statement indicating that the judge isn’t impressed with the amount of evidence, but that it’s good enough for government work.

Additional thoughts on some tactical or strategic considerations.  R.C.M. 917 and Griffith are tools in the defense toolbox, but should you use them?

When you make a 917 motion or are thinking of a Griffith motion, you have a problem.  What to do about a defense case?  What if you put on a defense case, do you risk filling in the blanks, holes, or deficiencies in the prosecution case?

If you make a 917 motion you have to be careful.  You have to be honest with the court and if the judge asks you to point out the deficiency you have to consider what to say and how to say it.  I think it’s acceptable to give a general comment which clues the judge in to your thinking but not the prosecution.  Most judges have already identified the deficiency anyway.  Some will then take you down the path to educating the prosecution, some will educate the prosecution without your help, some will let the prosecution swing.  Be careful of the judge who crosses the line to helping the prosecution put on a re-opened case and becomes a second or third trial counsel.

You do not have to make a 917 motion.  I well remember a UA (AWOL) case I did where I didn’t make a 917 motion because it would alert the prosecution to it’s evidentiary deficiency.  Rather I waited and argued the lack of proof beyond reasonable doubt.

Good luck, and be creative.

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