United States v. Gilley , 59 M.J. 245 ( 2004 )

UNITED STATES, Appellee
v.
David E. GILLEY, Technical Sergeant
U.S. Air Force, Appellant
No. 00-0559
Crim. App. No. 32877
United States Court of Appeals for the Armed Forces
Argued November 18, 2003
Decided February 18, 2004
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
Counsel
For Appellant: Captain James M. Winner (argued); Colonel Beverly
B. Knott and Major Terry L. McElyea (on brief).
For Appellee: Captain C. Taylor Smith (argued); Colonel LeEllen
Coacher and Lieutenant Colonel Robert V. Combs (on brief).
Military Judge: Howard R. Altschwager
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Gilley, No. 00-0559/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Appellant was charged with eight specifications of
committing indecent acts on his three stepchildren, one
specification of indecent liberties on the stepchildren, and
four specifications involving assault and battery of the same
children, in violation of Articles 134 and 128, Uniform Code of
Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 934, 928
(2000). On April 23, 1997, Appellant was convicted, contrary to
his pleas, by a general court-martial consisting of officer and
enlisted members, of five specifications of indecent acts, one
specification of indecent liberties, and one specification of
assault and battery. Appellant was sentenced to a dishonorable
discharge, confinement for ten years, total forfeiture of pay
and allowances, and reduction to E-1. The convening authority
approved the adjudged sentence.
On April 27, 2000, the Air Force Court of Criminal Appeals
(Air Force Court) affirmed the findings and sentence. On
November 15, 2001, this Court set aside the decision of the Air
Force Court, holding that Appellant was denied effective
assistance of counsel during the post-trial phase of his court-
martial. United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001).
This Court ordered that the record of trial be submitted to an
officer exercising general court-martial jurisdiction over
Appellant for consideration of a new staff judge advocate
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recommendation, petition for clemency, and action for the case.
Id. at 125.
On June 26, 2002, the convening authority approved the
original sentence and denied the relief sought by Appellant’s
new clemency petition. On August 5, 2002, the Air Force Court
affirmed the findings and sentence. United States v. Gilley,
ACM No. 32877 (A.F. Ct. Crim. App. Aug. 5, 2002). On August 4,
2003, this Court specified review of the following issue:
WHETHER RULE 26 OF THE COURTS OF CRIMINAL APPEALS
RULES OF PRACTICE AND PROCEDURE, PROMULGATED PURSUANT
TO ARTICLE 66(f), UNIFORM CODE OF MILITARY JUSTICE, 10
U.S.C. § 866(f) (2000), ALLOWS THE CHIEF JUDGE OF A
COURT OF CRIMINAL APPEALS TO REQUIRE THE PARTIES IN A
CASE REMANDED TO A COURT OF CRIMINAL APPEALS BY THIS
COURT TO SUBMIT BRIEFS AND OTHER FILINGS IN LESS THAN
THE 60 DAYS PRESCRIBED BY RULE 15 OF THE COURTS OF
CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE.
For the reasons set forth below, we hold that Air Force
Court of Criminal Appeals Rule (AFCCA Rule) 2.2, which
requires counsel to submit briefs for a remanded case
within seven days, which is less than the 60 days
prescribed by Courts of Criminal Appeals Rule of Practice
and Procedure (CCA Rule) 15, is invalid. Nevertheless,
because Appellant has failed to demonstrate prejudice, we
affirm the decision of the Air Force Court.
FACTS
As noted above, this case is before this Court for the
second time. In our first review of the case, we set aside the
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decision of the Air Force Court and the convening authority’s
action, and returned the case for a new staff judge advocate
recommendation and convening authority action. Following a new
action affirming the findings and sentence, the case was
forwarded to the Air Force Court for further review on July 25,
2002. The court released its opinion affirming the findings and
sentence nine days later. Appellate defense counsel did not
file a brief with assignments of error during those nine days,
and the Air Force Court reviewed the case on the merits.
DISCUSSION
At issue in this case is the validity of AFCCA Rule 2.2,
which dictates that for cases upon further review before the Air
Force Court, including remanded cases,
[t]he parties must present any filings regarding the
case within 7 days of notification that the record was
received by the Appellate Records Branch of the
Military Justice Division (AFLSA/JAJM). For good
cause shown, the Court may extend the 7-day time
limit. . . .
. . . If no filings are received by the Court within 7
days, the Court will treat the case as a “merits”
case.
(Emphasis added.) Because appellate defense counsel did not
file a brief with assignments of error within the seven days
required by this rule, the Air Force Court by default reviewed
Appellant’s case on the merits. Appellant now claims that this
rule improperly varies from CCA Rule 15(b), which provides: “Any
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brief for an accused shall be filed within 60 days after
appellate counsel has been notified of the receipt of the record
in the Office of the Judge Advocate General.” (Emphasis added.)
We agree with Appellant in this regard.
Article 66(f) states: “The Judge Advocates General shall
prescribe uniform rules of procedure for Courts of Criminal
Appeals and shall meet periodically to formulate policies and
procedure in regard to review of court-martial cases in the
office of the Judge Advocates General and by Courts of Criminal
Appeals.” (Emphasis added.) Pursuant to Article 66(f), the
Judge Advocates General of the armed forces jointly enacted the
CCA Rules on May 1, 1996. See 44 M.J. LXIII (1996). Among
these rules is CCA Rule 15(b), which grants an accused 60 days
after counsel is notified of the receipt of the record to file
any brief before a Court of Criminal Appeals, as quoted above.
Also among these rules is CCA Rule 26, which notes that “[t]he
Chief Judge of [each service Court of Criminal Appeals] has the
authority to prescribe internal rules for the Court.” See
Article 140, UCMJ, 10 U.S.C. § 940 (2000)(authorizing sub-
delegation of the Article 66(f) rulemaking power). We note that
this case does not challenge the authority of a Court of
Criminal Appeals under CCA Rule 25 to suspend a rule in a
particular case. The question before us is whether Article
66(f) permits an individual Court of Criminal Appeals to invoke
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CCA Rule 26 to create its own exclusive filing deadline which
varies from the general filing deadline put forth in CCA Rule
15(b). Looking to the legislative intent behind Article 66(f),
we conclude that it does not.
“In construing the language of a statute or rule, it is
generally understood that the words should be given their common
and approved usage.” United States v. McCollum, 58 M.J. 323,
340 (C.A.A.F. 2003)(quoting United Scenic Artists v. NLRB, 762
F.2d 1027, 1032 n.15 (D.C. Cir. 1985)(internal quotation marks
omitted)). The word “uniform” in legal parlance commonly means
“[c]haracterized by a lack of variation; identical or
consistent.” Black’s Law Dictionary 1530 (7th ed. 1999). The
term “procedure” is defined, in pertinent part, as “[a] specific
method or course of action.” Id. at 1221 . Finally, Black’s
Law Dictionary defines the applicable term “rule” as “a general
norm mandating or guiding conduct or action in a given type of
situation.” Id. at 1330. Employing these definitions, we
interpret Article 66(f) to require identical rules among all
Courts of Criminal Appeals regarding any course of action an
appellant may take in a case before such court – which includes
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filing a brief.∗ Article 66(f) therefore requires the Courts of
Criminal Appeals to enforce identical deadlines for filing
briefs. In this vein, CCA Rule 15(b) provides one deadline for
the filing of any brief before all Courts of Criminal Appeals.
Because the seven-day deadline for filing briefs in cases on
remand under AFCCA Rule 2.2 varies from the 60-day timeline in
the uniform rule, it is invalid.
The Government avers that CCA Rule 26 authorizes the Air
Force Court to create its own filing deadline for cases upon
further review, even if that deadline varies from the uniform
guidance of CCA Rule 15(b). We disagree. First, CCA Rule 26
authorizes the Courts of Criminal Appeals to create “internal”
court rules. The dictionary defines “internal” in pertinent
part as “existing or situated within the limits.” Merriam-
Webster Unabridged Dictionary 1180 (1986). Thus, CCA Rule 26
authorizes the Courts of Criminal Appeals to create rules
applying to entities “existing or situated within [each court’s]
limits.” By contrast, a rule governing filings or briefs, such
∗
This interpretation is consistent with the opinion expressed by
the Senate Armed Services Committee in its report on the
creation of the UCMJ that “[u]nder [the UCMJ], personnel of the
armed forces, regardless of the Department in which they serve,
will be subject to the same law and will be tried in accordance
with the same procedures.” S. Rep. No. 81-486, at 2 (1949).
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 43 (1989)(suggesting that congressional intent may inform
statutory interpretation).
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as AFCCA Rule 2.2, applies to entities external to the court,
i.e., the parties. Moreover, an internal rule created under CCA
Rule 26 logically cannot conflict with a uniform rule of
procedure already adopted by the Judge Advocates General.
Indeed, a subject deemed appropriate by the Judge Advocates
General for a uniform rule cannot also be an appropriate subject
for a different, internal rule. Because AFCCA Rule 2.2 applies
to external, not internal, entities, and because it logically
conflicts with the uniform guidance of CCA Rule 15(b), it is
outside the scope of CCA Rule 26. Further background on the
Court’s Rules is set forth in Eugene R. Fidell et al., Rules of
Practice and Procedure and Citation-—United States Armed
Services Courts of Criminal Appeals—United States Courts-Martial
(2003).
Notwithstanding the invalidity of AFCCA Rule 2.2, Appellant
fails to identify any assignments of error that appellate
defense counsel would have submitted even with the benefit of
CCA Rule 15(b). Indeed, after the Air Force Court considered
Appellant’s case a second time, Appellant filed a merits
petition with this Court on October 2, 2002, with no errors
assigned. It was only 28 days after this initial petition, on
October 30, that Appellant filed a supplemental brief raising
two issues, neither of which was granted by this Court. See
Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000)(dictating
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that this Court may only grant review of a petitioned issue “on
good cause shown”). Instead, we issued a show cause order for
the Government to explain “why the decision of the Air Force
Court of Criminal Appeals should not be set aside and the case
remanded to that court for further review in accordance with
Article 66,” given the impression that “the decision of the Air
Force Court of Criminal Appeals may have been premature.”
United States v. Gilley, 58 M.J. 278 (C.A.A.F. 2003). The
Government’s response to the show cause order, which relied on
AFCCA Rule 2.2 to justify departure from the 60 day filing
deadline imposed by CCA Rule 15(b), led to the specified issue
now before us.
Thus, at no point has Appellant alleged or demonstrated
that he was unable to submit a brief with assignments of error
within the seven day time limit. Consequently, Appellant has
not identified any prejudice resulting from the application of
AFCCA Rule 2.2 to his case. See Article 59(a), UCMJ, 10 U.S.C.
§ 859(a) (2000)(“A finding or sentence of court-martial may not
be held incorrect on the ground of an error of law unless the
error materially prejudices the substantial rights of the
accused.”).
For these reasons, the decision of the United States Air
Force Court of Criminal Appeals is affirmed.
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