Page 285 - Trump Executive Orders 2017-2021

9988 Federal Register / Vol. 83, No. 46 / Thursday, March 8, 2018 / Presidential Documents

Rule 908. Appeal by the United States
(a) In general. The United States may appeal an order or ruling by a military judge that
terminates the proceedings with respect to a charge or specification, or excludes evidence that
is substantial proof of a fact material in the proceedings, or directs the disclosure of classified
information, or that imposes sanctions for nondisclosure of classified information. The United
States may also appeal a refusal by the military judge to issue a protective order sought by the
United States to prevent the disclosure of classified information or to enforce such an order
that has previously been issued by the appropriate authority. The United States may not appeal
an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or
specification except when the military judge enters a finding of not guilty with respect to a
charge or specification following the return of a finding of guilty by the members.
(b) Procedure.
(1) Delay. After an order or ruling which may be subject to an appeal by the United States,
the court-martial may not proceed, except as to matters unaffected by the ruling or order, if trial
counsel requests a delay to determine whether to file notice of appeal under this rule. Trial
counsel is entitled to no more than 72 hours under this subsection.
(2) Decision to appeal. The decision whether to file notice of appeal under this rule shall be
made within 72 hours of the ruling or order to be appealed. If the Secretary concerned so
prescribes, trial counsel shall not file notice of appeal unless authorized to do so by a person
designated by the Secretary concerned.
(3) Notice(?( appeal. If the United States elects to appeal, trial counsel shall provide the
military judge with written notice to this effect not later than 72 hours after the ruling or order.
Such notice shall identify the ruling or order to be appealed and the charges and specifications
atiected. Trial counsel shall certify 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.
(4) l:..ffect on the court-martial. Upon written notice to the military judge under paragraph
(b)(3) ofthis rule, the ruling or order that is the subject ofthe appeal is automatically stayed and
no session of the court-martial may proceed pending disposition by the Court of Criminal
Appeals of the appeal, except that solely as to charges and specifications not affected by the
ruling or order:
(A) Motions may be litigated, in the discretion of the military judge, at any point in the
proceedings;
(B) When trial on the merits has not begun,
(i) a severance may be granted upon request of all the parties;
(ii) a severance may be granted upon request of the accused and when appropriate
under R. C.M. 906(b )( 1 0); or
(C) When trial on the merits has begun but has not been completed, a party may, on that
party's request and in the discretion of the military judge, present further evidence on the merits.
(5) Record Upon written notice to the military judge under paragraph (b )(3), trial counsel
shall cause a record of the proceedings to be prepared. Such record shall be verbatim and
complete to the extent necessary to resolve the issues appealed. The record shall be certified in
accordance with RC.M. 1112, and shall be reduced to a written transcript if required under
R.C.M. 1114. The military judge or the Court of Criminal Appeals may direct that additional
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parts of the proceeding be included in the record.