U.S. v. Dalmazzi, 76 M.J. 1

Trial Stages: Appeals: Courts of Criminal Appeals › Generally

1. the issue of whether a military officer who served on the CCA panel that affirmed appellant’s conviction was statutorily or constitutionally prohibited from simultaneously serving as an appellate military judge on the CCA and as a judge on the United States Court of Military Commission Review was moot, where although the military judge took the oath of office as a USCMCR appellate judge two weeks before release of the decision in appellant’s case, his appointment to the USCMCR only became effective when the President signed his commission, which occurred two weeks after the decision affirming appellant’s conviction; actions that the officer took as a judge on the USCMCR before the President issued his commission were not public acts that evidenced his appointment; it is the President who must perform some public act that evinces the appointment, not the purported appointee; other than the commission signed by the President two weeks after the CCA’s decision in this case, there was no evidence that the President had appointed this officer to the USCMCR; therefore, because the officer had not yet been appointed a judge of the USCMCR at the time the judgment in appellant’s case was released, the issue as to the judge’s qualifications was moot

Miscellaneous Matters: Statutes, Treaties, Regulations, Executive Orders, Directives, etc.: United States Code

1. (in the Military Commissions Act of 2009, Congress established the United States Court of Military Commission Review (10 USC § 950f(a)(2012)); the USCMCR is to consist of one or more panels, each composed of not less than three judges on the court; the Secretary of Defense is authorized to assign persons who are appellate military judges to the USCMCR as judges (10 USC § 950f(b)(2)); and the President is authorized to appoint, by and with the advice and consent of the Senate, additional judges to the USCMCR (10 USC § 950f(b)(3))
2. three separate actions are required for the President to appoint an “additional judge” to the United States Court of Military Commission Review under the terms of 10 USC § 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 public 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; while not necessary for the appointment, the commission is conclusive evidence of it; before the issuance of the commission, the President is free to change his mind and not make the appointment; afterwards, he is not