United States v. Pierce

40 M.J. 584, 1994 CMR LEXIS 180, 1994 WL 245602

• Court: U.S. Army Court of Military Review
• Decided: June 8, 1994
• Docket: ACMR 9202428
• Status: Published

Opinions

OPINION OF THE COURT ON MOTION FOR RECONSIDERATION EN BANC

CREAN, Senior Judge:

Contrary to his pleas, the appellant was convicted by a military judge sitting as a general court-martial of rape, in violation of Article 120, Uniform Code of Military Justice, 10 U.S.C. § 920 (1988) [hereinafter UCMJ]. The convening authority approved the adjudged sentence to a dishonorable discharge, confinement for four years, forfeiture of all pay and allowances, and reduction to Private E1.

In a unanimous opinion dated 10 December 1993, and served on counsel 3 January 1994, a panel of this court set aside the findings and sentence because of factual insufficiency and dismissed the charge. On 24 January 1994, appellate government counsel moved for reconsideration en banc of the panel’s decision. On 7 February 1994, this court decided that it would reconsider the ease en banc and issued an order granting the request for reconsideration. On 17 February 1994, the court issued a second order specifying the issues to be briefed and argued by counsel.¹ Oral argument was heard on 22 April 1994.²

During the court’s deliberations on Specified Issue I, we determined that the question of whether the court should exercise its authority to reconsider the decision of the panel had also been raised. This court holds that we have the authority to consider en banc the panel’s decision. However, we are split as to whether we should exercise that authority in this case.³ Since a majority of the judges are not in favor of en banc reconsideration, we now conclude that the request for reconsideration en banc was improvidently granted and return the case to the original panel.⁴

1. Authority For En Banc Reconsideration

The Courts of Military Review originally did not have the authority to reconsider a panel’s decision en banc. United States v. Wheeler, 20 U.S.C.M.A. 595, 44 C.M.R. 25, 1971 WL 12437 (1971); United States v. Chilcote, 20 U.S.C.M.A. 283, 43 C.M.R. 123, 1971 WL 12735 (1971). To overcome these precedents,⁵ Article 66(a), UCMJ, was amended by adding the sentence, “[a]ny decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules.”⁶ Pub.L. No. 98-209, § 7(b), 97 Stat. 1402 (1983). This authority was upheld by the United States Court of Military Appeals. United States v. Flowers, 26 M.J. 463 (C.M.A.1988). Chief Judge Everett, in his concurring opinion in Flowers, expressed the narrow interpretation that the purpose for the change to Article 66(a), UCMJ, was to resolve differences as to legal issues and that the Courts of Military Review do not have the power to reconsider en banc a factual finding or a determination of sentence appropriateness. Flowers, 26 M.J. at 466 (Everett, C.J., concurring). However, we find little in the legislative history of the Military Justice Act of 1983, including the statement and testimony of Chief Judge Everett, that mentions limiting en banc consideration to only legal matters. We find nothing that would modify the plain meaning of the words of the statute that “any” decision of the court can be considered en banc. Accordingly, we hold that a Court of Military Review has the power to reconsider any of its decisions en banc.

Judge Johnston, in his concurring opinion, finds that the authority for en banc consideration in Article 66, UCMJ, is limited by the legislative history of that statutory authority to consideration of legal issues only. We disagree with this view. The issue that was considered by Congress in the 1949 hearings promulgating the Uniform Code concerned the authority of The Judge Advocate General to send a case to a Board of Review because he did not like an opinion rendered in that case by a different Board of Review. At the time, each Board of Review was separate and there was not one Board of Review that heard cases by panels. The issue considered by Congress in 1983 to give the Courts of Military Review authority to reconsider any decision of one of its panels is a difference in kind and not a difference in degree from the 1949 issue. By 1983, there was only one Court of Military Review for each military service and that court sat in panels. The 1983 amendment to Article 66(e), UCMJ, dealt with the court as a whole exercising discretion and not with The Judge Advocate General ordering a different board to consider an action taken by another board.

II. Exercise of En Banc Authority

Article 66(a), UCMJ, provides in pertinent part:

Each Judge Advocate General shall establish a Court of Military Review which shall be composed of one or more panels, and each such panel shall be composed of not less than three appellate military judges. For the purpose of reviewing court-martial cases, the court may sit in panels or as a whole in accordance with rules prescribed under subsection (f). Any decision of a panel may be reconsidered by the court sitting as a whole in accordance with such rules.

Article 66(f), UCMJ, provides: “The Judge Advocates General shall prescribe uniform rules of procedure for Courts of Military Review and shall meet periodically to formulate policies and procedure in regard to review of court-martial cases ... by Courts of Military Review.”

Pursuant to the authority and mandate of Article 66(f), UCMJ, The Judge Advocates General established, on 1 March 1985, the Joint Court of Military Review Rules [hereinafter C.M.R.R.].⁷

En banc proceedings are provided for in C.M.R. R. 17:

A majority of the judges present for duty may order that any appeal or other proceeding be considered or reconsidered, except as indicated in section (c) below [not pertinent to this case], by the Court sitting as a whole. Such consideration or reconsideration ordinarily will not be ordered except (1) when consideration by the full Court is necessary to secure or maintain uniformity of decision, or (2) when the proceedings involve a question of exceptional importance, or (3) when a sentence being reviewed pursuant to Article 66 extends to death.

C.M.R. R. 17(a) (emphasis added).

The Chief Judge, United States Army Court of Military Review, under authority of C.M.R. R. 26, has promulgated internal rules for the Army Court of Military Review [hereinafter A.C.M.R. RJ. Rule 19.1 concerns reconsideration, including reconsideration en banc, and states in pertinent part:

(b) Reconsideration ordinarily will not be granted except upon a showing that one of the following grounds exists:

(1) A material legal or factual matter was overlooked or misapplied in the decision;

(2) A change in the law occurring after the case was submitted was overlooked or misapplied by the Court;

(3) The decision conflicts with a decision of the Supreme Court of the United States, the United States Court of Military Appeals, or this Court.

A.C.M.R. R. 19.1(b).

The United States Supreme Court considers en banc proceedings to be the exception rather than the rule and that en banc proceedings should be convened only when extraordinary circumstances exist that call for authoritative consideration and decision. United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689, 80 S.Ct. 1336, 1339, 4 L.Ed.2d 1491 (1960). In the Federal Circuit Courts of Appeal, en banc proceedings are not favored and not ordinarily granted unless necessary to secure or maintain uniformity of circuit decisions, or the issue involves a question of exceptional importance. Federal Rule of Appellate Procedure 35. Joint Rule 17 is taken almost verbatim from the federal rule.

We hold that our standards for determining if a case should be heard en banc are ordinarily those three specified in C.M.R. R. 17: (1) necessary to maintain uniformity within the panels, (2) the ease is a death penalty ease, or (3) the issue is a matter of exceptional importance. In deciding if a matter is of exceptional importance or if decisions of the panels are uniform, we will consider the reasons specified in A.C.M.R. R. 19.1. Based on these standards, the requests for this court to consider en banc a panel’s decision should be very rare. This court, as a whole, does not sit as an intermediate appellate court between the panels and the Court of Military Appeals. In submitting a suggestion for consideration en banc, counsel should specify, pursuant to C.M.R. R. 17, the reasons why the ease should be considered by the court as a whole.

First, this is not a death penalty case. Second, as a case decided on factual sufficiency grounds, it is fact specific and therefore, by definition, need not achieve uniformity with other cases. Inasmuch as the first two situations listed in C.M.R. R. 17 are not present in this case, we are left to consider whether this is a case of exceptional importance.

This case is not a case of exceptional importance. The rape of one soldier by another soldier from the same unit in the barracks is serious criminal misconduct that is extremely harmful to the victim and highly prejudicial to good order and discipline. However “exceptional importance” for purposes of identifying those cases that require en banc consideration derives from the enduring significance of the legal issues raised by the case, not from victim impact or the seriousness of the charge. So-called “date” or “acquaintance” rape does not differ in a legal perspective from any other alleged rape. The question for courts has always been, and continues to be, whether the factual circumstances prove rape beyond a reasonable doubt. Thus, inasmuch as this case was decided on the basis of factual sufficiency, it has no precedential value. Moreover, the time-honored legal standards applicable to the analysis of rape are well understood and perfectly suitable to resolve the issue at hand.

The legal standards for rape under circumstances similar to this case are set forth in numerous precedents and were applied by the panel in rendering its decision.⁸ See United States v. Moore, 5 C.M.R. 438, 1952 WL 2177 (A.F.B.R.1952);. United States v. Kernan, 11 C.M.R. 314, 1953 WL 2032 (A.B.R.1953); United States v. Robertson, 33 C.M.R. 828, 1963 WL 4957 (A.F.B.R.1963); United States v. Stegar, 16 U.S.C.M.A. 569, 37 C.M.R. 189, 1967 WL 4218 (1967); United States v. Ruggiero, 1 M.J. 1089 (N.C.M.R.1977), pet. denied, 3 M.J. 117 (C.M.A.1977); United States v. Allen, 3 M.J. 986 (A.C.M.R.1977), aff'd, 7 M.J. 345 (C.M.A.1979); United States v. Steward, 18 M.J. 506 (A.F.C.M.R.1984).

In recent years with the influx of more women in the Armed Forces, the cases of “date” or “acquaintance” rape have been more frequent, but the issues are still the same. United States v. Houser, 36 M.J. 392 (C.M.A.1993), cert. denied, — U.S. -, 114 S.Ct. 182, 126 L.Ed.2d 141 (1993); United States v. Polk, 32 M.J. 150 (C.M.A.1991); United States v. Bonano-Torres, 31 M.J. 175 (C.M.A.1990); United States v. Reynolds, 29 M.J. 105 (C.M.A.1989); United States v. Barboza, 39 M.J. 596 (A.C.M.R.1994); United States v. Webster, 37 M.J. 670 (C.G.C.M.R.1993); United States v. Carroll, 30 M.J. 598 (C.G.C.M.R.1990).

The increase in the number of rape cases is a matter of great concern to the leadership and command of the Army. The criminality of the acts, on a case-by-case basis, is the concern of this court. The issues of criminality have not changed or increased. This case neither adds nor subtracts anything from this body of law. It does not involve a question of military jurisprudence of first impression that is likely to recur. This issue will not cause great concern within the military legal community if not resolved by an authoritative directive from this court. It is not a case, therefore, of exceptional importance.

This case will have little, if any, effect on the Armed Forces. It will not, any more than the cases cited above, affect the conduct of male and female soldiers in the barracks. It will not affect the decision making of commanders .in dealing with conduct between male and female soldiers.

The judges who would hear this case en banc want to do so because they believe that the case was wrongly decided by the original panel. In other words, they wish to substitute their judgment, as fact finders, for that of the panel. The basic tenor of their opinion is that the panel’s decision is wrong and a wrong decision affects the Armed Forces, and is therefore, a matter of extreme importance. Their opinion would create a fourth ground for en banc reconsideration, that is, if a panel opinion may be wrong, it should be reconsidered by the court as a whole. Their view would place the court, sitting as a whole, as an intermediate appellate court between the panels and the Court of Military Appeals. Counsel for the party not prevailing in a panel decision would be within their right to ask for en banc reconsideration of almost any case by arguing that the panel opinion is wrong and if that wrong opinion goes out it will be a matter of extreme importance to the armed service. If we followed the dissenters’ logic, this court, as any appellate court, would become bogged down in consideration of en banc petitions and would become totally ineffective.

The motion for reconsideration en banc is not adopted. The case is returned to the original panel for such action as it deems appropriate.

Senior Judge GRAVELLE and Judge BAKER concur.

1 . The court ordered oral argument on the following five specified issues:

I.

WHETHER THE COURT OF MILITARY REVIEW SITTING AS A WHOLE HAS THE AUTHORITY UNDER ARTICLE 66(a), UNIFORM CODE OF MILITARY JUSTICE, 10 U.S.C. § 866(a), TO RECONSIDER A FINDING BY THE COURT SITTING AS A PANEL THAT THE EVIDENCE OF RECORD WAS FACTUALLY INSUFFICIENT TO SUSTAIN A CONVICTION. See United States v. Flowers, 26 M.J. 463, 466 (C.M.A.1988) (Everett, C.J., concurring in result) and United States v. Turner, 25 M.J. 324 (C.M.A.1987).

II.

WHETHER THE EVIDENCE OF RECORD WAS LEGALLY AND FACTUALLY SUFFICIENT TO PROVE THE ELEMENT OF FORCE AND LACK OF CONSENT FOR RAPE.

III.

WHETHER THE APPELLANT, WHO REFRAINED FROM TESTIFYING AT TRIAL, RAISED THE MISTAKE OF FACT DEFENSE TO THE CHARGE OF RAPE.

IV.

ASSUMING ARGUENDO THAT THE FACTS ARE INSUFFICIENT TO SUSTAIN THE FINDINGS OF GUILTY FOR RAPE, WHETHER EVIDENCE WAS PRESENTED AT TRIAL SUFFICIENT TO SUPPORT A FINDING OF GUILTY FOR ANY LESSER INCLUDED OFFENSES.

V.

WHETHER THE APPELLANT REMAINS PROPERLY IN CONFINEMENT, IN LIGHT OF THE FINDING OF THE COURT SITTING AS A PANEL THAT THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE FINDINGS OF GUILT.

2 . On 21 March 1994, the appellant petitioned the United States Court of Military Appeals for a writ of habeas corpus, seeking his immediate release from confinement, for review of this court's order granting en banc reconsideration of his case, vacation of this court’s order granting reconsideration, and prohibiting this court from reconsidering his case en banc. Pierce v. Lowe, 39 M.J. 435 (C.M.A.1994). On 5 April 1994, the United States Court of Military Appeals denied the appellant's petition “without prejudice to the petitioner’s right to raise the issues asserted in the petition for extraordinary relief before the United States Army Court of Military Review.” Pierce v. Lowe, USCMA MISC. 94-8101/AR 40 M.J. 11 (C.M.A.1994) (order).

3 . Judge Russell and I are joined in the decision not to reconsider en banc the three-judge panel’s decision. Judge Russell and I decide only the narrow issue of en banc consideration and take no position on whether we would have decided the case the same way that the original panel decided the case. It should be perfectly clear that since the case is not before the court for consideration, Judge Russell and I do not decide the issue of the factual sufficiency of the evidence.

4 . On 22 April 1994, the court ordered that the appellant be released from confinement pending a written opinion of the court. The appellant was released from confinement at the United States Disciplinary Barracks, Fort Leavenworth, Kansas, on the afternoon of 22 April 1994.

5 . Military Justice Act of 1983, S.Rep. No. 53, 98th Cong., 1st Sess. 28 (1983), reprinted in Index and Legislative History: Uniform Code of Military Justice 1983, at 555 (1983).

6 . The rules referred to were those uniform rules prescribed by The Judge Advocates General in accordance with Article 66(f), UCMJ.

7 . These rules are published in 22 M.J. at CXXVII.

8 . The normal sequence of citing cases is the superior court first in chronological order starting with the most recent decision followed by cases of the inferior courts in the same chronological order. These cases are cited in chronological order from the oldest to the newest to emphasize the development of the law on the area of “rape”.