                          UNITED STATES, Appellee


                                        v.


                  David E. GILLEY, Technical Sergeant
                       U.S. Air Force, Appellant


                                No. 00-0559

                            Crim. App. No. 32877


       United States Court of Appeals for the Armed Forces


                       Argued November 18, 2003

                       Decided February 18, 2004


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, BAKER, and ERDMANN, JJ., joined.


                                    Counsel

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.
United States v. Gilley, No. 00-0559/AF


     Chief Judge CRAWFORD delivered the opinion of the Court.

     Appellant was charged with eight specifications of

committing indecent acts on his three stepchildren, one

specification of indecent liberties on the stepchildren, and

four specifications involving assault and battery of the same

children, in violation of Articles 134 and 128, Uniform Code of

Military Justice [hereinafter UCMJ], 10 U.S.C. §§ 934, 928

(2000).    On April 23, 1997, Appellant was convicted, contrary to

his pleas, by a general court-martial consisting of officer and

enlisted members, of five specifications of indecent acts, one

specification of indecent liberties, and one specification of

assault and battery.   Appellant was sentenced to a dishonorable

discharge, confinement for ten years, total forfeiture of pay

and allowances, and reduction to E-1.   The convening authority

approved the adjudged sentence.

     On April 27, 2000, the Air Force Court of Criminal Appeals

(Air Force Court) affirmed the findings and sentence.   On

November 15, 2001, this Court set aside the decision of the Air

Force Court, holding that Appellant was denied effective

assistance of counsel during the post-trial phase of his court-

martial.   United States v. Gilley, 56 M.J. 113 (C.A.A.F. 2001).

This Court ordered that the record of trial be submitted to an

officer exercising general court-martial jurisdiction over

Appellant for consideration of a new staff judge advocate


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United States v. Gilley, No. 00-0559/AF


recommendation, petition for clemency, and action for the case.

Id. at 125.

     On June 26, 2002, the convening authority approved the

original sentence and denied the relief sought by Appellant’s

new clemency petition.   On August 5, 2002, the Air Force Court

affirmed the findings and sentence.   United States v. Gilley,

ACM No. 32877 (A.F. Ct. Crim. App. Aug. 5, 2002).   On August 4,

2003, this Court specified review of the following issue:

     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.

For the reasons set forth below, we hold that Air Force

Court of Criminal Appeals Rule (AFCCA Rule) 2.2, which

requires counsel to submit briefs for a remanded case

within seven days, which is less than the 60 days

prescribed by Courts of 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 Air Force Court.

                            FACTS

     As noted above, this case is before this Court for the

second time.   In our first review of the case, we set aside the


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United States v. Gilley, No. 00-0559/AF


decision of the Air Force Court and the convening authority’s

action, and returned the case for a new staff judge advocate

recommendation and convening authority action.    Following a new

action affirming the findings and sentence, the case was

forwarded to the Air Force Court for further review on July 25,

2002.    The court released its opinion affirming the findings and

sentence nine days later.    Appellate defense counsel did not

file a brief with assignments of error during those nine days,

and the Air Force Court reviewed the case on the merits.

                              DISCUSSION

        At issue in this case is the validity of AFCCA Rule 2.2,

which dictates that for cases upon further review before the Air

Force Court, including remanded cases,

        [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.

(Emphasis added.)    Because appellate defense counsel did not

file a brief with assignments of error within the seven days

required by this rule, the Air Force Court by default reviewed

Appellant’s case on the merits.    Appellant now claims that this

rule improperly varies from CCA Rule 15(b), which provides: “Any




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United States v. Gilley, No. 00-0559/AF


brief for an accused shall be filed within 60 days after

appellate counsel has been notified of the receipt of the record

in the Office of the Judge Advocate General.”   (Emphasis added.)

We agree with Appellant in this regard.

     Article 66(f) states: “The Judge Advocates General shall

prescribe uniform rules of procedure for Courts of Criminal

Appeals and shall meet periodically to formulate policies and

procedure in regard to review of court-martial cases in the

office of the Judge Advocates General and by Courts of Criminal

Appeals.”   (Emphasis added.)   Pursuant to Article 66(f), the

Judge Advocates General of the armed forces jointly enacted the

CCA Rules on May 1, 1996.   See 44 M.J. LXIII (1996).   Among

these rules is CCA Rule 15(b), which grants an accused 60 days

after counsel is notified of the receipt of the record to file

any brief before a Court of Criminal Appeals, as quoted above.

Also among these rules is CCA Rule 26, which notes that “[t]he

Chief Judge of [each service Court of Criminal Appeals] has the

authority to prescribe internal rules for the Court.”   See

Article 140, UCMJ, 10 U.S.C. § 940 (2000)(authorizing sub-

delegation of the Article 66(f) rulemaking power).   We note that

this case does not challenge the authority of a Court of

Criminal Appeals under CCA Rule 25 to suspend a rule in a

particular case.   The question before us is whether Article

66(f) permits an individual Court of Criminal Appeals to invoke


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United States v. Gilley, No. 00-0559/AF


CCA Rule 26 to create its own exclusive filing deadline which

varies from the general filing deadline put forth in CCA Rule

15(b).   Looking to the legislative intent behind Article 66(f),

we conclude that it does not.

     “In construing the language of a statute or rule, it is

generally understood that the words should be given their common

and approved usage.”   United States v. McCollum, 58 M.J. 323,

340 (C.A.A.F. 2003)(quoting United Scenic Artists v. NLRB, 762

F.2d 1027, 1032 n.15 (D.C. Cir. 1985)(internal quotation marks

omitted)).    The word “uniform” in legal parlance commonly means

“[c]haracterized by a lack of variation; identical or

consistent.”   Black’s Law Dictionary 1530 (7th ed. 1999).      The

term “procedure” is defined, in pertinent part, as “[a] specific

method or course of action.”    Id. at 1221 .   Finally, Black’s

Law Dictionary defines the applicable term “rule” as “a general

norm mandating or guiding conduct or action in a given type of

situation.”    Id. at 1330.   Employing these definitions, we

interpret Article 66(f) to require identical rules among all

Courts of Criminal Appeals regarding any course of action an

appellant may take in a case before such court – which includes




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United States v. Gilley, No. 00-0559/AF


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.

     The Government avers that CCA Rule 26 authorizes the Air

Force Court to create its own filing deadline for cases upon

further review, even if that deadline varies from the uniform

guidance of CCA Rule 15(b).   We disagree.   First, CCA Rule 26

authorizes the Courts of Criminal Appeals to create “internal”

court rules.   The dictionary defines “internal” in pertinent

part as “existing or situated within the limits.”   Merriam-

Webster Unabridged Dictionary 1180 (1986).   Thus, CCA Rule 26

authorizes the Courts of Criminal Appeals to create rules

applying to entities “existing or situated within [each court’s]

limits.”   By contrast, a rule governing filings or briefs, such



∗
 This interpretation is consistent with the opinion expressed by
the Senate Armed Services Committee in its report on the
creation of the UCMJ that “[u]nder [the 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 accordance
with the same procedures.” S. Rep. No. 81-486, at 2 (1949).
See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 43 (1989)(suggesting that congressional intent may inform
statutory interpretation).


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United States v. Gilley, No. 00-0559/AF


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).

     Notwithstanding the invalidity of AFCCA Rule 2.2, Appellant

fails to identify any assignments of error that appellate

defense counsel would have submitted even with the benefit of

CCA Rule 15(b).   Indeed, after the Air Force Court considered

Appellant’s case a second time, Appellant filed a merits

petition with this Court on October 2, 2002, with no errors

assigned.   It was only 28 days after this initial petition, on

October 30, that Appellant filed a supplemental brief raising

two issues, neither of which was granted by this Court.    See

Article 67(a)(3), UCMJ, 10 U.S.C. § 867(a)(3) (2000)(dictating


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United States v. Gilley, No. 00-0559/AF


that this Court may only grant review of a petitioned issue “on

good cause shown”).   Instead, we issued a show cause order for

the Government to explain “why the decision of the Air Force

Court of Criminal Appeals should not be set aside and the case

remanded to that court for further review in accordance with

Article 66,” given the impression that “the decision of the Air

Force Court of Criminal Appeals may have been premature.”

United States v. Gilley, 58 M.J. 278 (C.A.A.F. 2003).       The

Government’s response to the show cause order, which relied on

AFCCA Rule 2.2 to justify departure from the 60 day filing

deadline imposed by CCA Rule 15(b), led to the specified issue

now before us.

     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.




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