UNITED
STATES, Appellee
v.
David
E.
GILLEY, Technical Sergeant
No.
00-0559
Crim. App. No.
32877
Argued
Decided
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.
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
On
On
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
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 decision of the
DISCUSSION
At
issue in this case is the validity of
AFCCA Rule 2.2, which dictates that for cases upon further review
before the
[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
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
“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.”
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
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
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.
* 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