CAAF seems poised to decide whether an Article 62 appeal is timely filed where the prosecution lets the 72-hour window for a government appeal lapse, then seeks reconsideration from the military judge, and then notices a prosecution appeal.

In United States v. Daly, the Coast Guard Court provides the following procedural synopsis:

On 5 March 2010, the military judge dismissed the single charge under Article 134, UCMJ, and its four specifications. The Government requested reconsideration on17 March 2010, which the military judge summarily denied on 26 March 2010. The Government gave notice of appeal on 29 March 2010. On 17 May 2010, the Government filed with this Court the record of trial, which had been authenticated on 2 May 2010. The Government filed its brief on 7 June 2010.

United States v. Daly, 69 M.J. 549, 549 (C.G. Ct. Crim. App. 2010).

The Coast Guard Court proceeded to reach the merits of the government’s appeal and, as we discussed here, denied it.  But upon certification from the Judge Advocate General of the Coast Guard, CAAF’s reaction was, Not so fast.  CAAF questions whether the Coast Guard Court even had jurisdiction to hear the prosecution appeal.  On Thursday, CAAF ordered “that [the government] show cause on or before December 3, 2010, why [the government’s] appeal should not be dismissed for lack of jurisdiction as untimely filed in view of the date trial counsel provided written notice of appeal.  See Article 62(a) (2), UCMJ.  [The defense] may file a reply to [the government’s] response no later than December 17, 2010.”  United States v. Daly, __ M.J. __, No. 10-6010/CG (C.A.A.F. Nov. 18, 2010).”

In United States v. Santiago, 56 M.J. 610 (N-M. Ct. Crim. App. 2001), NMCCA held that where the government doesn’t seek reconsideration from a military judge until after more than 72 hours had passed, the military judge’s ruling on that reconsideration ruling doesn’t reset the 72-hour clock for noticing a prosecution appeal.  The Judge Advocate General of the Navy didn’t certify Santiago to CAAF.  Daly will likely settle the question for all of the services.

8 Responses to “Is an Article 62 appeal timely filed where government sought reconsideration from the military judge beyond the 72-hour window for a prosecution appeal?”

  1. John O'Connor says:

    I think the Government’s out of luck.

    Does an order on a motion for reconsideration “terminate[] the proceedings with respect to a charge or specification”? I would have to say no, that the original order terminated he proceedings with respect to the spec at issue, and an order on reconsideration merely refused to revive the proceedings with respect to such spec.

    Maybe someone will point me to something obvious that I’m missing, but I’m not even sure that filing a motion for reconsideration within the three days ought to allow for an Article 62 appeal once the reconsideration motion is ultimately denied. I read the statute as saying once the order dismissing the spec issues, you’ve got three days, period.

  2. Cloudesley Shovell says:

    Totally concur w/JO’C. The Gov benefits from a strict interpretation of time limits and clock-starting events, and has advocated successfully in favor of such strict interpretation in other contexts.

    Plenty of administrative remedies available that can be done in one day instead of dragging the case out for a year or more . . . issue him a letter, give him a bad eval, recommend against promotion or reenlistment, or admin sep. Lots of useful tools in that toolbox.

    Speaking of Coast Guard sex cases, will they ever top the sex and frat circus aboard the Sweetgum? That was a heck of a thing, and the library of Stirewalt opinions just doesn’t do full justice to the facts.

  3. MJW2 says:

    So Article 62(a)(2) sets a statutory 72-hour time for filing a notice of appeal that is not waived by a motion for reconsideration. Why, then, does the 60-day statuory timeline in Article 67(b) for filing a petition fo review @ CAAF get tolled by a motion for reconsideration to the CCA? See US v. Rodriguez; but see US v. Webster Smith.

  4. Brien Le Chien says:

    While I agree with your interpretation of Article 62, it is not an enthusiastic agreement.

    Our system should encourage issues to be resolved at the lowest level. The strict 72 hour window does not allow this. Say, for example, a trial judge hands down an outrageous decision based on objectively false reading of current law (it happens on occasion). The government shouldn’t have to choose between requesting reconsideration, and going to the service court (or being forced to do both simultaneously). Ideally, our system should refrain from forcing such a choice on the Government, while still requiring that the Government act quickly to protect its interests.

    Optimally, a request for reconsideration would toll the 72 hours. This would allow issues to be handled at the lowest level, and still not allow the Government to sit on its hands. (Again, not saying I disagree with your interpretation of the law, just saying it is not optimal).

    If, on the other hand, the Government is allowed a new 72 hour clock anytime they file for reconsideration (as the Navy is asking for here), that would strip the 72 hour limit of all meaning. That might be a good thing, or bad, but would seem outside the spirit and letter of the article.

  5. John O'Connor says:

    I don’t know enough about the tolling of the 60 days to answer fully, but interlocutory appeals are generally disfavored (because they slow down the resolution of trial proceedings). So if the rule re tolling is different, that might be a reasonable explanation why.

  6. Nancy Truax says:

    On 7 December1793, Third Mate Sylvanus Coleman of the Revenue Cutter Massachusetts had the distinction of being the first member of the Revenue Cutter Service (the predecessor agency to the Coast Guard) to face court-martial.  He was charged, among other things, with  “keeping bad women on board the cutter in Boston and setting a bad example to the men by ordering them to bring the women on board at night and carrying them ashore in the morning. . . .”  Two hundred-some-odd years later we had the White Lupine courts-martial back in the ‘1990’s (Duckworth and Padgett, if memory serves), only the problem there wasn’t so much that the women they snuck onto the ship were “bad” as it was that they were “under-age” (and not by a just few months).  So the Coast Guard does seem to have a rich tradition, and all that frat on the Sweetgum seems a little mundane compared to some of the other stuff that’s gone on.

  7. Cloudesley Shovell says:

    Ms Truax,

    Thanks much for enlightening me on this history of USCG sexcapades. I knew many of the players in the Stirewalt retrial, which is why I picked on the Sweetgum. Many humble thanks for the interesting additional information.

    Yrs,
    CS

  8. Anonymous says:

    Seems a plain reading of the statute leads to the only obvious answer – no. But look at what CAAF did to Art 31b.