United States v. Dalmazzi , 76 M.J. 1 ( 2016 )

This opinion is subject to revision before publication
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
_______________
UNITED STATES
Appellee
v.
Nicole A. Dalmazzi, Second Lieutenant
United States Air Force, Appellant
No. 16-0651
Crim. App. No. 38808
Argued December 7, 2016—Decided December 15, 2016
Military Judge: L. Martin Powell
For Appellant: Major Johnathan D. Legg (argued), Brian
L. Mizer, Esq. (on brief); Major Thomas A. Smith.
For Appellee: Major G. Matt Osborn (argued); Colonel
Katherine E. Oler and Gerald R. Bruce, Esq. (on brief).
Amici Curiae for Appellee: Colonel Mark H. Sydenham,
Lieutenant Colonel A. G. Courie III, Major Anne C.
Hsieh, Captain Carling M. Dunham, and Captain Sam-
uel E. Landes (on brief)—for Army Government Appel-
late Division. Colonel Valerie C. Danyluk, USMC, Lieu-
tenant Commander Justin C. Henderson, JAGC, USN,
Lieutenant James M. Belforti, JAGC, USN, and Brian K.
Keller, Esq. (on brief)—for Navy-Marine Corps Appel-
late Government Division.
Amicus Curiae in Support of Neither Party: Brigadier Gen-
eral John G. Baker, USMC, Captain Brent G. Filbert,
JAGC, USN, and Philip Sundel, Esq. (on brief)—for Mili-
tary Commissions Defense Organization.
_______________
PER CURIAM:
The issues presented are whether a military officer is
statutorily or constitutionally prohibited from simultaneous-
ly serving as an appellate military judge on a service court of
criminal appeals and as a judge on the United States Court
of Military Commission Review (USCMCR). As the appellate
military judge who participated in deciding Appellant’s case
had not yet been appointed a USCMCR judge, we hold that
the case is moot as to these issues.
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I. Procedural History
A military judge sitting alone convicted Appellant, in ac-
cordance with her pleas, of wrongfully using ecstasy, a
Schedule I, controlled substance. The convening authority
approved the adjudged sentence: a dismissal and confine-
ment for one month. The United States Air Force Court of
Criminal Appeals (CCA) affirmed the approved findings and
sentence. United States v. Dalmazzi, ACM No. 38808, 2016
CCA LEXIS 307, at *7–8, 2016 WL 3193181, at *3 (A.F. Ct.
Crim. App. May 12, 2016).
On May 27, 2016, Appellant moved the CCA to vacate its
decision because of the participation of USCMCR Judge
Martin T. Mitchell on the panel. On July 11, 2016, before the
CCA ruled on this motion, Appellant filed a petition for
grant of review at this Court. United States v. Dalmazzi,
75 M.J. 399 (C.A.A.F. 2016). As a result, the CCA dismissed
the motion to vacate for lack of jurisdiction.
II. Background
In the Military Commissions Act of 2009, Pub. L. No.
111-84, div. A., tit. XVIII, § 1802, 123 Stat. 2190, 2603
(2009), Congress established the United States Court of Mil-
itary Commission Review (USCMCR). 10 U.S.C. § 950f(a)
(2012). As amended in 2011, Pub. L. No. 112-81, § 1034(c),
125 Stat. 1573 (2011), the USCMCR was to consist of “one or
more panels, each composed of not less than three judges on
the Court.” 10 U.S.C. § 950f(a) (2012). The Secretary of De-
fense was authorized to “assign persons who are appellate
military judges” to the USCMCR as “judges.” § 950f(b)(2).
The President was authorized to “appoint, by and with the
advice and consent of the Senate, additional judges to the
[USCMCR].” § 950f(b)(3).
In June 2013, the Judge Advocate General of the Air
Force detailed Lieutenant Colonel Martin T. Mitchell to
serve as an appellate military judge on the CCA. Judge
Mitchell was promoted to the rank of colonel in June 2014.
The Secretary of Defense assigned Colonel Mitchell to be a
judge on the USCMCR on October 28, 2014.
In In re Al-Nashiri, the U.S. Court of Appeals for the Dis-
trict of Columbia Circuit expressed concern over whether
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judges on the USCMCR were principal officers, in which
case the assignment of appellate military judges to that po-
sition by the Secretary of Defense would violate the Ap-
pointments Clause of the Constitution. 791 F.3d 71, 82 (D.C.
Cir. 2015) (citing U.S. Const. art. II, § 2, cl. 2). The court
suggested that “the President and the Senate could decide to
put to rest any Appointments Clause questions regarding
the [US]CMCR’s military judges by … re-nominating and re-
confirming the military judges to be [US]CMCR judges.” Id.
at 86.
Apparently in response to In re al-Nashiri, the President
nominated Colonel Mitchell for appointment as an appellate
military judge on the USCMCR. The Senate received the
President’s nomination on March 14, 2016. 162 Cong. Rec.
S1474 (daily ed. Mar. 14, 2016). The Senate gave its advice
and consent to the appointment of Martin T. Mitchell as
colonel on April 28, 2016. 162 Cong. Rec. S2600 (daily ed.
Apr. 28, 2016). Colonel Mitchell took the oath of office of
“Appellate Judge” of the USCMCR on May 2, 2016. On May
25, 2016, President Obama signed Colonel Mitchell’s com-
mission appointing him to be “an Appellate Military Judge
of the United States Court of Military Commission Review.”
Judge Mitchell was one of three appellate military judges
to participate in the Article 66(c), UCMJ, 10 U.S.C. § 866(c)
(2012), review of Appellant’s court-martial. The CCA’s opin-
ion was issued on May 12, 2016, ten days after Colonel
Mitchell took the oath of office as a USCMCR appellate
judge but two weeks before the President signed his com-
mission.
Appellant asserts that: (1) as a USCMCR judge, Colonel
Mitchell was prohibited by 10 U.S.C. § 973(b)(2)(A)(ii) from
sitting on the CCA; and (2) his service on both the USCMCR
and the CCA violated the Appointments Clause of the Con-
stitution.
III. Discussion
The Appointments Clause of the Constitution provides
that:
[The President] shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls,
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Judges of the [S]upreme Court, and all other Offic-
ers of the United States, whose Appointments are
not herein otherwise provided for, and which shall
be established by Law: but the Congress may by
Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the
Courts of Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2. Thus, three separate actions are
required for the President to appoint an “additional judge” to
the USCMCR under the terms of 10 U.S.C. § 950f: (1) the
President nominates a person for the position and sends his
name to the Senate for confirmation; (2) the Senate confirms
the nominee; and (3) the President appoints the confirmed
nominee to the position.
Normally, the President signs a commission as evidence
of the appointment. But
if an appointment was to be evidenced by any pub-
lic act, other than the commission, the performance
of such public act would create the officer; and if he
was not removable at the will of the President,
would either give him a right to his commission, or
enable him to perform the duties without it.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 156 (1803).
While not necessary for the appointment, the commission is
“conclusive evidence of it.” Id. at 157. Before the issuance of
the commission, the President is free to change his mind and
not make the appointment; afterwards, he is not. See Dysart
v. United States, 369 F.3d 1303, 1311 (Fed. Cir. 2004).
Appellant argues that actions Colonel Mitchell took as a
judge on the USCMCR before the President issued the com-
mission were public acts that evidenced his appointment.
We disagree. It is the President who must perform some
public act that evinces the appointment, not the purported
appointee. See, e.g., Dysart, 369 F.3d at 1306, 1312. Other
than the commission, issued on May 25, 2016, there is no
evidence that the President appointed Colonel Mitchell to
the USCMCR. Therefore, that is the date of his presidential
appointment as judge to the USCMCR.
As Colonel Mitchell had not yet been appointed a judge of
the USCMCR at the time the judgment in Appellant’s case
was released, the case is moot as to these issues.
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IV. Judgment
The order of August 18, 2016, granting review is hereby
vacated, and Appellant’s petition for grant of review is de-
nied.
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