As previously discussed, in United States v. Dossey, 66 M.J. 619 (N-M. Ct. Crim. App. 2008) (Dossey II), a 2-1 NMCCA panel reversed its own earlier 3-0 decision about its jurisdiction to consider Article 62 appeals challenging mistrial rulings. Before Petty Officer Dossey’s counsel petitioned CAAF for review, they unsuccessfully sought reconsideration en banc before NMCCA. Here’s a link to NMCCA’s order denying en banc recon. United States v. Dossey, NMCCA No. 200700537 (N-M. Ct. Crim. App. June 11, 2008) (en banc) (order).
While this isn’t the point of this post, NMCCA first observes that “the court is unpersuaded the panel decision overrules or is inconsistent with prior precedents.” Id., slip op. at 1. Any argument that Dossey II isn’t inconsistent with the court’s previous case law, including United States v. Pearson, 33 M.J. 777 (N.M.C.M.R. 1991), is unpersuasive. The plain language of Article 62 doesn’t definitively indicate whether a mistrial ruling is susceptible to interlocutory appeal. Nor does Article 62’s legislative history address that issue. Pearson and other previous Navy-Marine Corps Court decisions held that Article 62 should be construed strictly. If so, then the statute’s failure to clearly bring mistrial rulings within its scope means they are excluded. Dossey II, on the other hand, read Article 62 broadly, so the statute’s failure to clearly exempt mistrial rulings means they are included. The latter approach may or may not be a better approach than that of Pearson, but it is certainly an inconsistent approach.
But here’s the point of this post. In the next paragraph of its en banc recon denial, NMCCA writes: “Further, the court notes that a decision to publish a case, and thereby establish a precedent, is, by long standing practice of the court, made en banc. Accord United States v. Coffin, 76 F.3d 494, 496 n.1 (2d Cir. 1996).” The cite to Coffin is followed by (with paragraph breaks omitted): “For the foregoing reasons, it is, by the Court, sitting en banc, this 11th day of June, 2008, ORDERED: That the appellee’s motion for reconsideration en banc is DENIED.”
Got that? Coffin is offered in support of denying reconsideration en banc. Let’s look at Coffin, shall we?
Here’s what the Second Circuit said in the very footnote that NMCCA cites: “Any other interpretation of Gambino would ignore our practice of not overruling circuit precedent without an in banc vote or at least a statement in the later opinion that it has been circulated to all the members of the Court and no member objects to the later decision.” Coffin, 76 F.3d at 496 n.1.
I’m sure you already see the problem. Dossey II was a 2-1 decision, which means that a member of the court did “object to the later decision.” So under Coffin itself, overruling Pearson (as well as United States v. Flores-Galarza, 40 M.J. 900 (N.M.C.M.R. 1994), and United States v. Santiago, 56 M.J. 610, (N-M. Ct. Crim. App. 2001)) would require en banc reconsideration. Yet NMCCA cites it for exactly the opposite proposition.