Rodriguez and Gilbride deal with Mil. R. Evid. 304(h)(2) rule of completeness. Mil. R. Evid. 304(h)(2) is a longstanding rule of completeness pertaining to confessions introduced against an accused. See, United States v. Rodriguez, 56 M.J. 336, 341-42 (C.A.A.F. 2002), the rule applies to oral as well as written statements. United States v. Gilbride, 56 M.J. 425 (C.A.A.F. 2002). This is a different rule than Mil. R. Evid. 106.

In deciding the military judge erred in his application of Mil. R. Evid. 304(h)(2), NMCCA identified six non-exclusive factors to consider on the issue.

In deciding whether the military judge abused his discretion, the following non-exhaustive list of factors can be gleaned from Rodriguez: (1) Has the prosecution attempted to “pick out the incriminating words in the statement or discussion and put them in evidence while at the same time excluding the remainder of the statement or conversation, in which the appellant sought to explain the incriminating passages”? (2) Is the appellant’s subsequent statement separate and unrelated from the subject matter of the original confession, or is it part of or the product of the same transaction or course of action? (3) What is the elapsed time between the two statements, and were they made at different places and to a different set of persons? (4) Was the second statement made at the specific request of the appellant or the Government? (5) Was the defense invoking the rule of completeness as a matter of fairness, or merely attempting to present evidence of a defense without subjecting the appellant to cross-examination? (6) Did the appellant engage in a “pattern of deception with a variety of persons, and then argue that belated candor in a different setting justifies the introduction of otherwise inadmissible hearsay”?

The NMCCA took great pains to distinguish their ruling as “on the facts of this case.” Thus distinguishing the case from Rodriquez and Harvey. This being a non-constitutional error NMCCA evaluated the impact of the military judge’s error for prejudice.

After weighing the Kerr factors, we find that the Government has failed to demonstrate that the error did not have a substantial influence on the findings. On the contrary, we find that the exclusion of the initial statement, coupled with the admission of a “supplement” to that statement, substantially mislead the members as to the appellant’s actual admissions. Under these facts, while the 30 November 2008 statement may not have been necessary to reach an understanding as to what the appellant was saying in the 26 January 2009 statement, what the members would have understood based on the truncated 26 January statement standing alone was misleading. We therefore set aside the findings of guilty for aggravated sexual assault, Charge II, Specification 1.

The conviction of aggravated sexual assault was set-aside with the direction to hold a sentence rehearing if the CA decides not to pursue a new trial on the sexual assault charge.

In light of Bowles v. Russell, 127 S. Ct. 2360 (2007), we conclude that the congressionally-created statutory period within which an accused may file a petition for grant of review is jurisdictional [and may not be waived or extended regardless of cause].

The effect was to deny an opportunity for an appellatant to petition on meritorious issues or have access to the United States Supreme Court. Prior to Rodriguez it was not uncommon for appellate counsel and appellants to miss the CAAF petition filing deadline, sometimes by just a few days. The reasons for the missed filing generally came down to administrative error within the appellate defense divisions. For various reasons filing deadlines weren’t being tracked accurately. It’s my understanding that the divisions have taken measures to correct the problems. However, there were a series of cases post Rodriguez where the appellant was denied access to CAAF based on Rodriguez. While unfortunate, for those that had no seemingly meritorious issues to petition on there was likely no prejudice. But what about those cases where the appellant had a good issue (regardless of whether or not it was a winner)?

In Rittenhouse v. United States (an Army case) the petitioner thought he’d found the solution – file a petition for a writ of coram nobis with CAAF. (It does not appear that he has petitioned in the federal district court – any idea anyone). However, on 27 May 2010 the court in a split decision summarily denied the petition. Judge Baker dissented citing his position in Rodriguez. Chief Judge Effron also dissented in Rodriguez. In Rodriguez Judge Baker stated that:

Today the Court reverses more than fifty years of military justice precedent and practice based on Bowles v. Russell, 127 S. Ct. 2360 (2007), a Supreme Court case addressing the time for appeals under the federal habeas statute, 28 U.S.C. § 2107 (2000). Since the advent of the UCMJ, this Court has held that the time limits for filing a petition for appeal before this Court do not impose a jurisdictional bar to appeal where there is good cause shown for filing out of time.

Rodriguez, Slip op. at 12 (citations omitted).

What is most interesting from Rittenhouse is a possible solution proffered by Chief Judge Effron in his concurrence in the result?

As noted by the majority, an application for a writ of error coram nobis is “viewed as a belated extension of the original proceeding during which the error allegedly transpired.” United States v. Denedo, 129 S. Ct. 2213, 2221 (2009). In this case, because Petitioner’s counsel did not file a timely petition for review with this Court, the “proceeding” remained with the United States Army Court of Criminal Appeals during the sixty-day filing period. Therefore, the Army Court is the appropriate forum with which Petitioner should have filed his writ. After a Court of Criminal Appeals issues an opinion, a thirty-day period for reconsideration commences. United States v. Miller, 47 M.J. 352, 361 (C.A.A.F. 1997); C.C.A. R. 19. This Court has long held that the lower courts have jurisdiction over petitions for reconsideration of their decisions until a petition for review is filed in this Court. United States v. Sparks, 5 C.M.A. 453, 456-57, 18 C.M.R. 77, 80-81 (1955); see also United States v. Kraffa, 11 M.J. 453, 455 (C.M.A. 1981) (stating that the decisions of the lower court are inchoate until the possibility of reconsideration is removed). Pending such a filing in this Court, the lower courts permit extension of the reconsideration period for good cause shown. C.C.A. R. 19(d). As these authorities reflect, jurisdiction does not pass to this Court until a petition for review is filed.

Whether ACCA or any of the service courts of criminal appeal will agree to “extend” or take a “belated” request for reconsideration is a different matter. While missing deadlines is troubling from a professional perspective, I’m not too upset about the cases in which the appellant had no issues to petition. However, for a small number of appellant’s they have missed a chance to have CAAF rule on their meritorious issues. I would have hoped that the meritorious cases would have been petitioned to TJAG for certification to CAAF. I do not believe the TJAGs have certified any Rodriguez cases, a possibility raised in Rodriguez.