UNITED STATES, Appellee
David E. GILLEY, Technical Sergeant
Crim. App. No. 32877
CRAWFORD, C.J., delivered the opinion of the Court, in which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.
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.
was charged with eight
specifications of committing indecent acts on his three stepchildren,
specification of indecent liberties on the stepchildren, and four
specifications involving assault and battery of the same children, in
of Articles 134 and 128, Uniform Code of Military Justice [hereinafter
10 U.S.C. §§ 934, 928 (2000). 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.
the reasons set forth below, we hold that Air Force Court of Criminal
Rule (AFCCA Rule) 2.2, which requires counsel to submit briefs for a
case within seven days, which is less than the 60 days prescribed by
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
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
issue in this case is the validity of
AFCCA Rule 2.2, which dictates that for cases upon further review
[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.
added.) Because appellate defense
counsel did not file a brief with assignments of error within the seven
required by this rule, the
66(f) states: “The Judge Advocates
General shall prescribe uniform rules of procedure for Courts of
Appeals and shall meet periodically to formulate policies and
regard to review of court-martial cases in the office of the Judge
General and by Courts of Criminal Appeals.”
(Emphasis added.) Pursuant to
Article 66(f), the Judge Advocates General of the armed forces jointly
the CCA Rules on
construing the language of a statute or
rule, it is generally understood that the words should be given their
and approved usage.” United States v.
McCollum, 58 M.J. 323, 340 (C.A.A.F. 2003)(quoting
, 762 F.2d 1027,
(D.C. Cir. 1985)(internal quotation marks omitted)). The word
“uniform” in legal parlance commonly
means “[c]haracterized by a lack of
identical or consistent.” Black’s Law
Dictionary 1530 (7th ed. 1999). The term
“procedure” is defined, in pertinent part, as “[a] specific method or
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.
Government avers that CCA Rule 26
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).
the invalidity of AFCCA Rule 2.2, Appellant fails to identify any
of error that appellate defense counsel would have submitted even with
benefit of CCA Rule 15(b). Indeed, after
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.
interpretation is consistent with the opinion expressed by the Senate
Services Committee in its report on the creation
of the UCMJ that “[u]nder
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
with the same procedures.”
S. Rep. No. 81-486, at 2 (1949).
See Mississippi Band of Choctaw Indians v. Holyfield,