                          UNITED STATES, Appellee

                                          v.

                     Phillip K. LEE, Staff Sergeant
                        U.S. Air Force, Appellant


                                   No. 99-0002


                            Crim. App. No. 32773



       United States Court of Appeals for the Armed Forces

                          Argued October 11, 2000

                        Decided December 11, 2000

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

                                      Counsel
For Appellant: Captain Patience E. Schermer (argued); Lieutenant
   Colonel James R. Wise and Major Stephen P. Kelly (on brief);
   Colonel Jeanne M. Rueth.

For Appellee: Major Lance B. Sigmon (argued); Colonel Anthony P.
   Dattilo, Lieutenant Colonel Ronald A. Rodgers, Major Harold
   M. Vaught, and Captain Suzanne Sumner (on brief).

Amicus Curiae Urging Remand: Philip D. Cave (argued); Eugene R.
   Fidell, Kevin J. Barry, Stephen A. Saltzburg, and Dwight H.
   Sullivan (on brief) -- For National Institute of Military
   Justice.

Military Judge:     Mary M. Boone


          THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE PUBLICATION.
United States v. Lee, No. 99-0002/AF


      Judge GIERKE delivered the opinion of the Court.

      A military judge sitting as a general court-martial

convicted appellant, pursuant to his pleas, of carnal knowledge,

sodomy with a child, and committing an indecent act on a female

under the age of 16 years, in violation of Articles 120, 125, and

134, Uniform Code of Military Justice, 10 USC §§ 920, 925, and

934, respectively.      The military judge sentenced appellant to a

dishonorable discharge, confinement for 18 years, total

forfeitures, and reduction to the lowest enlisted grade.         The

convening authority reduced the confinement to 15 years in

accordance with a pretrial agreement but approved the remainder

of the sentence as adjudged.

      When appellant’s case was first reviewed by the Court of

Criminal Appeals, he raised legal issues involving ex post facto
punishment under United States v. Gorski, 47 MJ 370 (1997);

errors in the staff judge advocate’s recommendation (SJAR);

illegal pretrial confinement credit; and propriety of the

prosecutor’s sentencing argument.          The court below returned the

case to the Judge Advocate General of the Air Force for Gorski
relief, set out the confinement credit ordered by the judge,

which had been omitted from the action, and affirmed the findings

and the approved sentence.

      This Court granted appellant’s petition for review and

ordered a new SJAR and convening authority’s action.         50 MJ 296

(1999).    After the new recommendation and action were completed

with no relief being granted, the court below again reviewed the

case.    On this further review, no new issues were before the

court.    The court below affirmed the findings and sentence in a


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United States v. Lee, No. 99-0002/AF


short per curiam opinion, noting, “Judge HEAD did not participate

in the decision.”        No reason for Judge Head’s absence is stated

or apparent from the record.

        Appellant requested the court below to reconsider its

decision, alleging that the court erred by affirming his

conviction with only two judges participating.             The Court of

Criminal Appeals sitting en banc (including Judge Head) denied

reconsideration by an order, holding that “[t]he panel that

decided the appellant’s case was ‘composed’ of three appellate

military judges, properly appointed” and that “[a] proper quorum

of the panel heard and determined the appellant’s case.”               The

issue now before this Court arises from these last two decisions

of the court below.1        For the reasons set out below, we hold that

the Court of Criminal Appeals did not err.

        Appellant argues that he “has a statutory right to have his

case reviewed . . . by a service Court of Criminal Appeals

properly constituted and lawfully operating with not less than

three appellate judges per panel, as Congress intended and

mandates in Article 66(a), UCMJ.”           Defense Brief at 5.      He points
out that Congress specifically gave this Court and the civilian

federal courts of appeals the power to act by quorum in Article

144, UCMJ, 10 USC § 944, and 28 USC § 46(d), respectively, but it

did not expressly grant this power to the Courts of Criminal

Appeals in Article 66, UCMJ, 10 USC § 866 (1994).              Defense Brief


1
    This Court granted appellant’s petition for review of the following issue:

        WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED IN THEIR DUTY
        UNDER ARTICLE 66(a) AND 66(c), UCMJ, TO PROPERLY REVIEW APPELLANT’S CASE
        WHEN ONLY TWO JUDGES PARTICIPATED IN THE DECISION.



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United States v. Lee, No. 99-0002/AF


at 10-12.    Appellant calls our attention to the Supreme Court’s

decision in Ayrshire Collieries Corp. v. United States, 331 U.S.

132 (1947), which voided a decision of a three-judge district

court involving an injunction against enforcement of a Federal

administrative ruling because only two of the required three

judges participated in the decision.       Defense Brief at 13.

Finally, appellant argues alternatively that even if a two-judge

quorum has authority to decide a case, the absence of a judge

must be for good cause.       Defense Brief at 22.

      Amicus curiae argue that this Court should treat Judge
Head’s absence as a recusal and review it for abuse of

discretion.    Brief at 5-6.     Amicus curiae further argue that,

because the record in this case provides no information from

which this Court can determine whether Judge Head abused his

discretion by failing to participate in appellant’s case, a

remand is necessary.      Brief at 7-8.

      The Government argues that it has long been established that

two judges of a panel may hear and decide any case properly

referred to it.     The Government relies on this Court’s decision
in United States v. Petroff-Tachomakoff, 5 USCMA 824, 19 CMR 120

(1955).

      Article 66(a) requires each Judge Advocate General to

“establish a Court of Criminal Appeals which shall be composed of

one or more panels, and each such panel shall be composed of not

less than three appellate military judges.”       Article 66(f)

requires the Judge Advocates General to “prescribe uniform rules

of procedure for Courts of Criminal Appeals.”        Pursuant to that

statutory mandate, they have promulgated Rule 4(a), which


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United States v. Lee, No. 99-0002/AF


provides:    “When sitting in panel, a majority of the judges

assigned to that panel constitutes a quorum for the purpose of

hearing or determining any matter referred to the panel.”          44 MJ

at LXV.

       In United States v. Petroff-Tachomakoff, supra, this Court

rejected an argument almost identical to appellant’s.          This Court

held that a board of review composed of three members had

jurisdiction to hear and decide cases with only two members

participating in the decision, that “fixing of the number of

members necessary to constitute a quorum is a procedural act,”

and that the Judge Advocates General acted within their authority

when they promulgated the quorum rule allowing two members of a

three-member panel to decide cases.          5 USCMA at 829, 19 CMR at

125.    Finally, this Court distinguished Ayrshire Collieries,
cited by appellant and amicus curiae in this case, on the ground

that Ayrshire Collieries involved a lawsuit “to enjoin

enforcement of Federal administrative rulings” and that Congress

had specifically required in a predecessor statute to 28 USC

§ 2284 (28 USC § 47 (1913)) that such applications “shall be
heard and determined by three judges.”          5 USCMA at 828, 19 CMR at

124; 331 U.S. at 135.

       In Petroff-Tachomakoff, this Court took specific note of 28

USC § 46(d), which allows civilian courts of appeals to decide

cases when only a majority of the judges authorized to constitute

a court or panel participate.          5 USCMA at 828, 19 CMR at 124.

Finally, this Court declined to analogize Article 66 to Articles




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United States v. Lee, No. 99-0002/AF


16 and 29,2 noting that Congress had specifically provided that a

court-martial was not authorized to decide cases in the absence

of a stated number of members, but that Congress had not imposed

a similar numerical requirement in Article 66.            5 USCMA at 829-

30, 19 CMR at 125-26.       The Petroff-Tachomakoff holding was

reiterated in United States v. Hurt, 9 USCMA 735, 755, 27 CMR 3,

23 (1958), and most recently in United States v. Parker, 22 USCMA

358, 360, 47 CMR 10, 12 (1973).

       In United States v. Elliott, 15 MJ 347 (1983), this Court
held that a panel of the Navy-Marine Corps Court of Military

Review was not authorized to decide a case where the third member

of the panel was absent on leave when he was detailed to the

panel, had not been sworn in as an appellate military judge, and

was still absent on leave when the case was decided.             This Court

distinguished Petroff-Tachomakoff, noting that it dealt with a

case where three members were actually “serving on a panel, even

though one of them had not participated in the decision.”              Id. at

350.    In Elliott, this Court held that the third judge’s

connection with the panel “was so attenuated that the three-judge
requirement imposed by Article 66(a) was not satisfied.”              15 MJ

at 350.

       In our view, Petroff-Tachomakoff is still the controlling

legal authority.      It was decided shortly after enactment of the


2
  Article 16 states that general courts-martial consist of “not less than
five” members and special courts-martial of “not less than three” members.
Article 29(b) provides:
       Whenever a general court-martial, other than a general court-martial
       composed of a military judge only, is reduced below five members, the
       trial may not proceed unless the convening authority details new members
       sufficient in number to provide for not less than five members.



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United States v. Lee, No. 99-0002/AF


UCMJ, by a Court intimately familiar with the legislative history

of the UCMJ, particularly Articles 66 and 67, as well as the

longstanding practice of the Boards of Review to operate under a

quorum rule that permitted fewer than three sitting judges to

decide a case under a statute similar to Article 66.      See 5 USCMA

at 831, 19 CMR at 127.

      Appellant and amicus curiae have advanced sound policy

reasons for requiring three judges to participate in every

decision, but they have not convinced us that there is any legal

authority requiring it.       Appellant has not demonstrated that our

longstanding precedent in Petroff-Tachomakoff is “unworkable or
. . . badly reasoned.”      Payne v. Tennessee, 501 U.S. 808, 827

(1991).   By allowing the Courts of Criminal Appeals to operate by

quorum, Rule 4 and our decision in Petroff-Tachomakoff conform

military practice to current federal civilian practice.

      Even though several decades have passed since the decision

in Petroff-Tachomakoff, there have been no changes to the

military justice system that require us to interpret Article 66

differently.    If Congress wanted to require three judges to
participate in every decision, it could have modified Article 66

after the Petroff-Tachomakoff decision in 1955.      Although

Congress has imposed a minimum numerical requirement in Articles

16 and 29 (members of courts-martial) and in 28 USC § 2284

(1976), it has not modified Article 66 in response to Petroff-

Tachomakoff.    Similarly, the President could have included a

three-judge requirement in RCM 1203, Manual for Courts-Martial,

United States (2000 ed.), but he did not.




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United States v. Lee, No. 99-0002/AF


      Appellant does not assert and the record does not reflect

that the panel in appellant’s case was subject to the infirmities

that existed in Elliott.       Accordingly, we hold that Elliott is

inapposite and that Petroff-Tachomakoff controls in this case.

      The decision of the United States Air Force Court of

Criminal Appeals on further review is affirmed.




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