United States v. Smith

Opinion of the Court on Motion to Remand

GIERKE, Judge:

1. This Court previously reviewed this case, and we ordered a factfinding hearing in accordance with United States v. DuBay, 17 USCMA 147, 37 CMR 411 (1967), to resolve a question regarding defense counsel’s prior representation of a prosecution witness. 36 MJ 455 (1993). After the DuBay hearing was completed and the record submitted to the Court of Military Review ^* in accordance with our order, a new appellate defense counsel raised and briefed two additional assignments of error not previously filed and not expressly included within the scope of our remand. The Court of Military Review declined to consider these additional issues. 39 MJ 587, 592 ¶21.

2. Appellate defense counsel have filed a motion asking this Court to remand the case to the Court of Criminal Appeals and order that court to consider the additional issues. They argue that the new appellate defense counsel was ethically bound to raise additional issues when he noticed them and that his discovery of meritorious new issues constitutes good cause for an untimely filing of supplemental assignments of error.

3. Appellate government counsel argue that review by a Court of Criminal Appeals on remand should be limited to the remanded issue. They further argue that assignment of new counsel is not good cause for waiving the rules and that appellant waived the new issues by not raising them during his first plenary review by the then Court of Military Review.

4. We hold that the Court of Military Review did not err by refusing to permit filing supplemental assignments of error beyond the scope of the remand order. While appellant is entitled to plenary review under Article 66, Uniform Code of Military Justice, 10 USC § 866, he is only entitled to one such review. In United States v. Montesinos, 28 MJ 38, 44 ¶ 21 (1989), this Court said, “If this Court remands a case to the Court of Military Review, that court can only take action that conforms to the limitations and conditions prescribed by the remand.”

5. We remanded this case for a factfinding hearing regarding the possibility of multiple representation. Although we could have expressed the scope of the remand order with greater clarity, we conclude that the Court of Military Review correctly interpreted our order and that the court below did not err by refusing to consider issues outside the scope of our remand. Whether that court had discretion to consider additional issues is not before us. Cf United States v. Jordan, 38 MJ 346, 350, 352 ¶27 (CMA 1993) (Wiss, J., dissenting on other grounds) (appellate court to whom a case is remanded for reconsideration of a particular issue “must limit itself to that issue” and may consider “closely-related” issue where “record is adequately developed”), cert. denied, — U.S.-, 114 S.Ct. 1217, 127 L.Ed.2d 564 (1994).

Accordingly, appellant’s motion to remand this case to the United States Air Force Court of Criminal Appeals for consideration of additional assignments of error is denied.

Judges COX, CRAWFORD, and WISS concur.

* See 41 MJ 213, 229 n. * (1994).