United States v. Lee

UNITED STATES, Appellee
v.
Phillip K. LEE, Staff Sergeant
U.S. Air Force, Appellant
No. 99-0002
Crim. App. No. 32773
United States Court of Appeals for the Armed Forces
Argued October 11, 2000
Decided December 11, 2000
GIERKE, J., delivered the opinion of the Court, in which
CRAWFORD, C.J., SULLIVAN, EFFRON, and BAKER, JJ., joined.
Counsel
For Appellant: Captain Patience E. Schermer (argued); Lieutenant
Colonel James R. Wise and Major Stephen P. Kelly (on brief);
Colonel Jeanne M. Rueth.
For Appellee: Major Lance B. Sigmon (argued); Colonel Anthony P.
Dattilo, Lieutenant Colonel Ronald A. Rodgers, Major Harold
M. Vaught, and Captain Suzanne Sumner (on brief).
Amicus Curiae Urging Remand: Philip D. Cave (argued); Eugene R.
Fidell, Kevin J. Barry, Stephen A. Saltzburg, and Dwight H.
Sullivan (on brief) -- For National Institute of Military
Justice.
Military Judge: Mary M. Boone
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Lee, No. 99-0002/AF
Judge GIERKE delivered the opinion of the Court.
A military judge sitting as a general court-martial
convicted appellant, pursuant to his pleas, of carnal knowledge,
sodomy with a child, and committing an indecent act on a female
under the age of 16 years, in violation of Articles 120, 125, and
134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and
934, respectively. The military judge sentenced appellant to a
dishonorable discharge, confinement for 18 years, total
forfeitures, and reduction to the lowest enlisted grade. The
convening authority reduced the confinement to 15 years in
accordance with a pretrial agreement but approved the remainder
of the sentence as adjudged.
When appellant’s case was first reviewed by the Court of
Criminal Appeals, he raised legal issues involving ex post facto
punishment under United States v. Gorski, 47 M.J. 370 (1997);
errors in the staff judge advocate’s recommendation (SJAR);
illegal pretrial confinement credit; and propriety of the
prosecutor’s sentencing argument. The court below returned the
case to the Judge Advocate General of the Air Force for Gorski
relief, set out the confinement credit ordered by the judge,
which had been omitted from the action, and affirmed the findings
and the approved sentence.
This Court granted appellant’s petition for review and
ordered a new SJAR and convening authority’s action. 50 M.J. 296
(1999). After the new recommendation and action were completed
with no relief being granted, the court below again reviewed the
case. On this further review, no new issues were before the
court. The court below affirmed the findings and sentence in a
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short per curiam opinion, noting, “Judge HEAD did not participate
in the decision.” No reason for Judge Head’s absence is stated
or apparent from the record.
Appellant requested the court below to reconsider its
decision, alleging that the court erred by affirming his
conviction with only two judges participating. The Court of
Criminal Appeals sitting en banc (including Judge Head) denied
reconsideration by an order, holding that “[t]he panel that
decided the appellant’s case was ‘composed’ of three appellate
military judges, properly appointed” and that “[a] proper quorum
of the panel heard and determined the appellant’s case.” The
issue now before this Court arises from these last two decisions
of the court below.1 For the reasons set out below, we hold that
the Court of Criminal Appeals did not err.
Appellant argues that he “has a statutory right to have his
case reviewed . . . by a service Court of Criminal Appeals
properly constituted and lawfully operating with not less than
three appellate judges per panel, as Congress intended and
mandates in Article 66(a), UCMJ.” Defense Brief at 5. He points
out that Congress specifically gave this Court and the civilian
federal courts of appeals the power to act by quorum in Article
144, UCMJ, 10 USC § 944, and 28 USC § 46(d), respectively, but it
did not expressly grant this power to the Courts of Criminal
Appeals in Article 66, UCMJ, 10 USC § 866 (1994). Defense Brief
1
This Court granted appellant’s petition for review of the following issue:
WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN THEIR DUTY
UNDER ARTICLE 66(a) AND 66(c), UCMJ, TO PROPERLY REVIEW APPELLANT’S CASE
WHEN ONLY TWO JUDGES PARTICIPATED IN THE DECISION.
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United States v. Lee, No. 99-0002/AF
at 10-12. Appellant calls our attention to the Supreme Court’s
decision in Ayrshire Collieries Corp. v. United States, 331 U.S.
132 (1947), which voided a decision of a three-judge district
court involving an injunction against enforcement of a Federal
administrative ruling because only two of the required three
judges participated in the decision. Defense Brief at 13.
Finally, appellant argues alternatively that even if a two-judge
quorum has authority to decide a case, the absence of a judge
must be for good cause. Defense Brief at 22.
Amicus curiae argue that this Court should treat Judge
Head’s absence as a recusal and review it for abuse of
discretion. Brief at 5-6. Amicus curiae further argue that,
because the record in this case provides no information from
which this Court can determine whether Judge Head abused his
discretion by failing to participate in appellant’s case, a
remand is necessary. Brief at 7-8.
The Government argues that it has long been established that
two judges of a panel may hear and decide any case properly
referred to it. The Government relies on this Court’s decision
in United States v. Petroff-Tachomakoff, 5 USCMA 824, 19 CMR 120
(1955).
Article 66(a) requires each Judge Advocate General to
“establish a Court of Criminal Appeals which shall be composed of
one or more panels, and each such panel shall be composed of not
less than three appellate military judges.” Article 66(f)
requires the Judge Advocates General to “prescribe uniform rules
of procedure for Courts of Criminal Appeals.” Pursuant to that
statutory mandate, they have promulgated Rule 4(a), which
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United States v. Lee, No. 99-0002/AF
provides: “When sitting in panel, a majority of the judges
assigned to that panel constitutes a quorum for the purpose of
hearing or determining any matter referred to the panel.” 44 M.J.
at LXV.
In United States v. Petroff-Tachomakoff, supra, this Court
rejected an argument almost identical to appellant’s. This Court
held that a board of review composed of three members had
jurisdiction to hear and decide cases with only two members
participating in the decision, that “fixing of the number of
members necessary to constitute a quorum is a procedural act,”
and that the Judge Advocates General acted within their authority
when they promulgated the quorum rule allowing two members of a
three-member panel to decide cases. 5 USCMA at 829, 19 CMR at
125. Finally, this Court distinguished Ayrshire Collieries,
cited by appellant and amicus curiae in this case, on the ground
that Ayrshire Collieries involved a lawsuit “to enjoin
enforcement of Federal administrative rulings” and that Congress
had specifically required in a predecessor statute to 28 USC
§ 2284 (28 USC § 47 (1913)) that such applications “shall be
heard and determined by three judges.” 5 USCMA at 828, 19 CMR at
124; 331 U.S. at 135.
In Petroff-Tachomakoff, this Court took specific note of 28
USC § 46(d), which allows civilian courts of appeals to decide
cases when only a majority of the judges authorized to constitute
a court or panel participate. 5 USCMA at 828, 19 CMR at 124.
Finally, this Court declined to analogize Article 66 to Articles
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United States v. Lee, No. 99-0002/AF
16 and 29,2 noting that Congress had specifically provided that a
court-martial was not authorized to decide cases in the absence
of a stated number of members, but that Congress had not imposed
a similar numerical requirement in Article 66. 5 USCMA at 829-
30, 19 CMR at 125-26. The Petroff-Tachomakoff holding was
reiterated in United States v. Hurt, 9 USCMA 735, 755, 27 CMR 3,
23 (1958), and most recently in United States v. Parker, 22 USCMA
358, 360, 47 CMR 10, 12 (1973).
In United States v. Elliott, 15 M.J. 347 (1983), this Court
held that a panel of the Navy-Marine Corps Court of Military
Review was not authorized to decide a case where the third member
of the panel was absent on leave when he was detailed to the
panel, had not been sworn in as an appellate military judge, and
was still absent on leave when the case was decided. This Court
distinguished Petroff-Tachomakoff, noting that it dealt with a
case where three members were actually “serving on a panel, even
though one of them had not participated in the decision.” Id. at
350. In Elliott, this Court held that the third judge’s
connection with the panel “was so attenuated that the three-judge
requirement imposed by Article 66(a) was not satisfied.” 15 M.J.
at 350.
In our view, Petroff-Tachomakoff is still the controlling
legal authority. It was decided shortly after enactment of the
2
Article 16 states that general courts-martial consist of “not less than
five” members and special courts-martial of “not less than three” members.
Article 29(b) provides:
Whenever a general court-martial, other than a general court-martial
composed of a military judge only, is reduced below five members, the
trial may not proceed unless the convening authority details new members
sufficient in number to provide for not less than five members.
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United States v. Lee, No. 99-0002/AF
UCMJ, by a Court intimately familiar with the legislative history
of the UCMJ, particularly Articles 66 and 67, as well as the
longstanding practice of the Boards of Review to operate under a
quorum rule that permitted fewer than three sitting judges to
decide a case under a statute similar to Article 66. See 5 USCMA
at 831, 19 CMR at 127.
Appellant and amicus curiae have advanced sound policy
reasons for requiring three judges to participate in every
decision, but they have not convinced us that there is any legal
authority requiring it. Appellant has not demonstrated that our
longstanding precedent in Petroff-Tachomakoff is “unworkable or
. . . badly reasoned.” Payne v. Tennessee, 501 U.S. 808, 827
(1991). By allowing the Courts of Criminal Appeals to operate by
quorum, Rule 4 and our decision in Petroff-Tachomakoff conform
military practice to current federal civilian practice.
Even though several decades have passed since the decision
in Petroff-Tachomakoff, there have been no changes to the
military justice system that require us to interpret Article 66
differently. If Congress wanted to require three judges to
participate in every decision, it could have modified Article 66
after the Petroff-Tachomakoff decision in 1955. Although
Congress has imposed a minimum numerical requirement in Articles
16 and 29 (members of courts-martial) and in 28 USC § 2284
(1976), it has not modified Article 66 in response to Petroff-
Tachomakoff. Similarly, the President could have included a
three-judge requirement in RCM 1203, Manual for Courts-Martial,
United States (2000 ed.), but he did not.
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Appellant does not assert and the record does not reflect
that the panel in appellant’s case was subject to the infirmities
that existed in Elliott. Accordingly, we hold that Elliott is
inapposite and that Petroff-Tachomakoff controls in this case.
The decision of the United States Air Force Court of
Criminal Appeals on further review is affirmed.
8