# Petition for Writ of Certiorari — Toro v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0432%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1091 ## Text 93-447 —meme No. 93- SEP 22 1993 —— Where, in the appendices the individual orders of the Court of Military Appeals refer to a particular issue number, that issue represents the judicial appointnient question a . - - @s ——_ > f - 7 — , - M ° — . y, = - 14. ‘ ; j Vil . , ’ + ¢ ‘ tive +} t Mid ‘ ivi 4} i +? YL! iv ’ ) SSL » * ' i il An ili a ; » it oS Gas {ean } tL y ’ ’ } LOK r thy, i iv " ; . pUR ' rT? i bias ry fa. 1 Yy . y / ' ae : 3 ~ ) a , \ y ‘ . Y ’ ? , ; . ; . . ; ; . i il SLR . y t | , t Ay ' { net ' \ 4 \ } y i \ i } 4 . S v ai +} + ¢ ‘ + . ; : » + { . rt ‘4 : : 4 ' ) } ie ; | i\ 4 i ‘ h \ A J I APPENDICES APPENDIX A U.S. COURT OF MILITARY APPEALS No. 67,869 NMCM 89 4189 UNITED STATES, Appellee, V. Eric A. WEISS, Private U.S. Marine Corps, Appellant. Argued Oct. 6, 1992 Decided Dec. 21, 1992 For appellant: Commander Philip D. Cave, JAGC, USN (argued) ; Captain Dwight H. Sullivan, USMC and Lieu- tenant Franklin J. Foil, JAGC, USNR (on brief). For appellee: Lieutenant Commander Lawrence W. Muschamp, JAGC, USN (argued); Colonel T.G. Hess, USMC (on brief). Amici Curiae on behalf of appellant: Colonel Malcolm H. Squires, Lieutenant Colonel James H. Weise, Major James M. Heaton (on brief )—-For Defense Appellate Di- vision, USA. Robert B. Weintraub, Joan EB. Goldherg, Todd Gaziano (on brief)-—For the Committee on Mili- (la) 2a tary Justice and Military Affairs, Association of the Bar of the City of New York. Amici Curiae on behalf of appellee: Thomas E. Booth (argued); Robert S. Mueller (on brief)—For the United States Department of Justice. Lieutenant Commander Charles J. Bennardini (argued)—For Appellate Govern- ment Division, USCG. Colonel Richard L. Purdon, Lieu- tenant Colonel Jeffery T. Infelise, Captain Jane M.E. Peterson (on brief)—For Appellate Government Divi- sion, USAF. Colonel Dayton M. Cramer, Major Joseph C. Swetnam, Captain Donna L. Barlett, Captain Samuel J. Smith, Jr. (on brief) —For Government Appellate . Division, USA. Opinion GIERKE. Judge: A military judge sitting as a special court-martial con- cicted appellant, consistent with his pleas, of stealing a acquetball glove from the base exehange, in violation of 121, Uniform Code of Military Justice, 10 USC The approved sentence provides for a bad-conduct discharge. confinement and partial forfeitures for 3 months. The Court of Military Review affirmed the find- ings and sentence in an unpublished opinion dated Janu- ary 31, 1992. ( : Daw This Court granted review of the following issue: ’ 1 We also granted review of the following issue : WHETHER THE COURT-MARTIAL WHICH TRIED THIS CASE HAD JURISDICTION WHERE THE MILITARY JUDGE WAS NOT APPOINTED TO A FIXED TERM OF OFFICE, AND WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW HAD POWER TO REVIEW AND AFFIRM THIS CASE WHERE ITS JUDGES WERE NOT APPOINTED TOA FIXED TERM OF OFFICE. This issue was resolved adversely to appellant in United States v. Graf, 35 MJ 450 (CMA 1992). é 3a WHETHER APPELLANT’S COURT-MARTIAL LACKED JURISDICTION WHERE THE MILI- TARY JUDGE WAS DESIGNATED IN VIOLA- TION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION, AND WHETHER THE NAVY-MARINE CORPS COURT OF MILITARY REVIEW WAS WITHOUT POWER TO REVIEW THIS CASE WHERE ITS JUDGES WERE DES- IGNATED IN VIOLATION OF THE APPOINT- MENTS CLAUSE OF THE CONSTITUTION. Appellant argues that military judges must be nomi- nated by the President and confirmed by the Senate as military judges. The Government argues that military judges already have been nominated and confirmed as military officers, that military officers traditionally have performed judicial duties, and that military officers need not receive an aaditional appointment to perform judicial duties. We hold that the Constitution does not require that a military officer who meets the qualifications of Article 26, UCMJ, 10 USC § 826, receive a second ap- pointment to perform the duties of a military judge. Likewise, we hold tha: a military officer meeting the qualifications of Article 66, UCMJ, 10 USC § 866, need not receive a second appointment to perform the duties of an appellate military judge. I. Appointment of Officers of the United States ‘ Article II, § 2, para. 2, clause 2 of the Constitution— the Appointments Clause—provides that the President shall nominate, and by and with the Advice and Con- sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro- vided for, and which shall be established by Law; but the Congress may by Law vest the Appointment 4a of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The purpose of the Appointments Clause is twofold: (1) it protects the prerogative of the President from congressional encroachment on his power to appoint his subordinates; and (2) “it limits the universe of eligible recipients of the power to appoint.” Freytag v. Commis- sioner of Internal Revenue, 501 U.S. ; , 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991). Appellant argues that this second purpose, a limitation on the power to ap- point, is violated by Articles 26 and 66 because they vest the appointment power in the Judge Advocate General rather than the President, the Courts of Law, or the head of a department. The first question we must address is whether the Ap- nointments Clause is applicable to the military justice , | " i Loo Sine Lit \ me ' ' y ‘ ‘ ‘ ; and ad es tron ne Nicla 7 | 7 { } nel , » YY b 43 Cl Li { oe | ine P ’ it £y A | é \ ne Supreme ( l) sa ‘ la | ‘ nal ( hnyvres a increase t T y y y ‘ , I iTi} . ] i 41 . 1 , , , , ne iIncumbderit si! 1 pe ag l ~ 7 ‘ , ‘ Ss af { n 2 ¢ 14% a } id ».( i ov 1 The Military Justice Act of , | | 7 , lb, UCM, 10 US S 1 ) ‘ | 4 ] ~ ) ¢ i «! ) aa c? {Ue li DD a ( 1) lal ‘ ( | *? ] 2 \V *t iw i ie } yvnen I | ’ | De} ne n i) idge sits ++ | a martia A one-member cout 4 ’ A 4 military justice. See Art. 16 = : ' . | ‘ I yt) PeCcoalied ] lt) Li ‘ ‘ ] A VI 7 ry : il if \ COUTrL- alvidl fi. Vy f martial); Art. 64(b), Article XT ‘ » 1 ¢ ING ty.\ ius ie C} ( Orie f ‘ i ) Y { ) -~VY ry yt +} ] ‘ 4 { , Ing a> . ‘ ‘ ‘ le ‘make all laws that are... . necessar 18). The rationale fo. th approacn bY found in Alexander Hamilton’s Federalist NN +p) ANU, 2oO T] -)11+} 1th ] . i1¢ aucnorl IPS @CSsSSseOTl_ lal LO lf Ca i'¢ QO] y ' ita ‘45 ‘ "40 ra | , : : mon ar fence Ale Nest O Valse ArmMIeéES to CY il}) flee . oO presser pe yules ror tne ov — ' . () ) tr 7 : , ‘ ‘ [ i) I) O alyre Nel} w~ralions pie +} 1 ‘ TIV\NV +t ry [ie ! pul ine f 1) t’) Ou! > BASS ‘ : , of F ) 4 . llmitation: Because it 3 dm pousstbhle— fe } / j . de lL jleé Lilie ( CH aad adrieti of wa é / P , aid thie COTES Pi pade) r 4 f st) meet hy ] } WCQ, IMHLICIL Wier bye perce “pu 10 | rif nN IycumMmstances Nat endange) ne ire ? } ’ ’ ] ‘ + | MOMs are INnlinilte: and to) Nis ye )} ! on ( ( ( nv { )¢ } (j a 0 Whniecl L] ( \*¢ OT ecomn r i 1(rT () Lit (*(j¢ () i rit ) y ‘ + | ] | INallon ()] ICN Clye ) n«i } ' ec - (je ]} ne (LV e¢ ! | al { ne ~ —— } 4 . ’ } pol) eC] ( re (ie f tne common dete} Ay | +] | ] W ne nes ner { {)] Li be : rede vo i cA4 ~ ’ ’ ] ; +} } ; Y) ! ] ed ‘yi lr it { t )] at \ mm n (ie If ‘ ra | , a U it On, a { n iT)( I (i) but the moment it led Dut tne moment it is decided in the affirn 1) £17 ) 1 | + | ‘ + lL + ; vill follow, that that government ought to b : 1} on | ‘ | WILD al] the powers requisite f ne comple , ; * os 4 } . . lon of its trust Ln niess it can be she +} Tt yt 46 " . Re = ] ‘ ty | Ilf CiIPCUulNsltances WiliCh nia AlLCC Wud Ora Fa 11/0) +} ale reducible Witnin ce) n determinate lin 4 | ] e ne contrary of this position can be { { oy l}y , ‘ ‘ ] bal nat) dis ) eC ] } L Ne i ttecd a add ia an’ nee ne nere can be n mit ri, Spey “ws ; | ] ; 48 : ) { ror the Rall } Met | } | protection of the community. in any mi: 28a sential to its efficacy; that Is, in any matter essen- tial to the formation, direction or support of the NATIONAL FORCES. MeL. ra added n. supra, vol. I at 144-45 (some emphasis This view was underscored by James Madison in The Federalist No. 41: But was it necessary to give an INDEFINITE POWER of raising TROOPS, as well as providing fleets; and of maintaining both in PEACE, as well as in WAR? The answer to these questions has been too far anticipated, in another. piace, to admit an extensive discussion of them in this place. The answer indeed | discussion in any place. With what c » of propriety could the force necessary for de- nited by those who cannot limit the force offence? If a federal Constitution could chain the ition, or set bounds to the exertions of all other cems to be so obvious and conclusive as secareely to hoa ; ~10¢*) > ‘ ; Cll G ence pe |}? nations, then indeed might it prudently chain the ejon of its own government, and set bounds to 7’ sat ra | P : it ] , + , 1+ ’ ane : yet the Framers, mindful of the new nation’s fears regarding establishment of a standing armed foree in y rye ’ ryvy > } _ ore ve * ( > Padover, lo SECT These Blessings 202-08 (1962). did not prepose to give the new executive and lecislature this great authority without some limitation. \iticle I, Seetion 8, Clause 12, gives Congress the au- y to “raise and support Armies” but also provides “no Appropriation of Money to that Use shall be longer Term than two Years.” In The Federalist No. 26, Alexander Hamilton puts forth a spirited defense of this clause that limits appropriations for military purposes to tWo Years: 29a The legislature of the United States wil! be ob/iqed by this provision, once at least in every two years, to deliberate upon the propriety of keeping a mili- tary force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal voie in the face of their constituents. They are not at liber/y to vest in the executive de- partment permanent finds for the support of an army; if they were even incautious enough to be willing to repose in it so impr; au confidence. As the spirit of party, in different degrees, must be expected to infect all political bodies, there will be no doubt persons in the national legislature wil enough to arraign the micastres and criminate thi views of the majority. The provision for the sup- port of a military force will always be a favourable topic for declamation, Av cilen us the question comes forward, the publ:ie attention wi:l be roused and attracted to the subjeci:, by the party in opposi- tion: And if the majority shceld » exceed the Proper iMiits, the conm nity will be ’ . , “8 } 1] } ; 24 warned of the danger, and wal! have an opportun of taking measures to euara against it. Indenend. f »)*) ' ina } } if t en 2 i} ( 'T} ‘ sla il ¢ Cll { ? oiten as hi ( { ( Mn al el ne stace legislatur sar! i ol we I spelen estates. Vesad CY Isic ins Gee WO Will diweatl Ie? no (sil \ Vaigsian e i ‘ Uspiclous and lO Pealraians O} ne vieneus O11 LNne CiliZens, A@AaAiNse MNCVOACHiVE: a m he Leer ae ernment, Wiil Con otrtil Phos \ f= cl (’y} Nn ciW tg the conduct of the : ar and Bos ' ‘ ) lé oe od 95 U.S. 258. 89 S.f 1683. 23 L.Ed.2d 291 11969) . ‘ ’ ’ lave aiso emnpnas 7e¢] na (onare has primary re- . we ; , DO rsahilita ror Thre Cericdate tash of balancing the , ’ , , hts OT ) (me) “da af ain need Ort Th a - avi \ we re ! yore aced, a citi ear ( = f f : power wnen legisiative a n : . . , . nae) e congressional aulno! O Yalse and l}- ’ “2 oe ‘ ort armies and make rule and regulations for then rover! nce Ss enailenvget } Emphasis added and citations omitted. ) Ww and “econeclude tnet Congress, In !legisiating tor tne ne i } ‘ rorces, n , 1) vide ror tne des gnation i * ] . . + + ‘7 + " . f coves within ne n ar’ istice systen na man- 36a SULLIVAN, Chief Judge (dissenting) : I respectfully disagree with the lead opinion and Judge Crawford’s separate opinion in this case. In my view the Constitution speaks clearly on the granted issue, and we are duty-bound to follow its supreme command. U.S. Const. art. VI. Military judges, both trial and appellate, are “inferior Officers” of the United States and must be appointed to their offices by “the President alone,” or by this Court or one of the other “Courts of Law,” or by the Secretary of Defense or one of the other “Heads of De- partments.” Art. II, § 2, para. 2, cl. 2. See Freytag v. Commissioner of Internal Revenue, 501 USS. , 1ll S.Ct. 2631, 115 L.Ed.2d 764 (1991). Appellant’s mili- tary judges were not so appointed, but their status as de facto appointees might preclude reversal of his convic- tion. See Northern Pipeline Construction Co. v. Mara- thon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982); Buckley v. Valeo, 424 U.S. 1, 142-43, 96 S.Ct. 612, 693, 46 L.Ed.2d 659 (1976): Nevertheless, I must dissent to the majority’s simple affirmance of this case. Id. More particularly, I do not believe that Congress’ broad power to make rules for the land and naval forces under Article I, § 8, clause 14 of the Constitution is unlimited such that the Appointments Clause can be considered per se inapplicable to military justice legislation. See gen- erally Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714 (1989). (Even Congress’ primary duty to make laws is limited by the constitutional prohibition against an ex post facto Law- e.g., Art. I, $9, para. 3). A contrary opinion in my view is extremely dangerous in that it upsets the deli- cate system of checks and balances provided in our Con- stitution to ensure the American way of government. I also would hold that commissioning and promoting military officers by the President by and with the advice 87a and consent of the Senate does not obviate the need for additional constitutional appointments of such persons for higher or more responsible offices both within and without the military department (i.e., military trial judge or appellate judge). There is no blanket “com- missioned officer” exception to the Appointments Clause written in the Constitution, and the decision of the Su- preme Court in Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), should not be broadly extended to create one for military officers who are simply “legally trained.” In sum, consistent with my judicial philosophy of spurning judicial legisiation, I also must reject the judicial constitution-making accomplished by the lead opinion in this case. I The Granted Issue The issue raised by appellate defense counsel and granted review by this Court is as follows: WHETHER APPELLANT'S COURT-MARTIAL LACKED JURISDICTION WHERE THE MILI- TARY JUDGE WAS DESIGNATED IN VIOLA- TION OF THE APPOINTMENTS CLAUSE OF THE CONSTITUTION, AND WHETHER THs NAVY-MARINE CORPS COURT OF MILITARY REVIEW WAS WITHOUT POWER TO REVIEW THIS CASE WHERE ITS JUDGES WERE DES- IGNATED IN VIOLATION OF THE APPOINT- MENTS CLAUSE OF THE CONSTITUTION. In this regard, I note that the judge in this trial was Major Edward F. Pesik, Jr., United States Marine Corps. He was certified in accordance with Article 26 (b), Uniform Code of Military Justice, 10 USC § 826 (b): sworn in accordance with Article 42(a), UCMJ, 38a 10 USC § 842(a); and detailed to this case.’ The ap- pellate military judges in this case were Senior Judge James A. Freyer, a Navy Captain; Senior Judge Richard A. Strickland, a Marine Colonel; and Judge James E. Orr, a Navy Captain. These judges constituted Panel No. 1 of the Court of Military Review, and they re- viewed appellant's case in accordance with that court’s internal rules. The issue of law raised by appellate defense counsel and granted by this Court focuses on the “designat[ion]”’ of the military judge who tried his case and the “de- signat{ion]” of the military appellate judges who heard his appeal. Appellant does not contend that these desig- nations were accomplished in violation of the Uniform Code of Military Justice. Instead, he contends that they were not accomplished in accordance wih the Appoint- ments Clause of the United States Constitution. Art. I], $2. para. 2, cl. 2. Relying heavily on the recent Supreme Court decision in Freytag v. C..R., supra, he asserts that military judges “are ‘Officers of the United States’”’ who must be “appointed as such by the President, the Courts of Law, or the Head of a Department.” Final Brief at 10. Finally, he asserts that the designation of these mili- tary judges by the Judge Advocate General of the Navy fails to satisfy this constitutional appointment standard. I] The Statutes Establishing The Military Judge A necessary step in resolving the granted issue is to understand the statutes which create the military trial and appellate judges and provide for persons to fill these judicial positions. At the outset I note that Congress has not expressly provided that a person be “appointed” 1 Appellant represents without opposition that Major Pesik was a “General Court-Martial qualified” judge and the Sierra Judicial Circuit's Chief Military Judge. 39a a military trial judge or appellate judge. However, in the version of the Uniform Code of Military Justice en- acted in 1950, Congress did provide for “appoint{ment]” of a law officer, the statutory predecessor of the military judge, by appropriate convening authorities. See Art. °%ia’. UCMJ. 50 USC $590(a), recodified in 10 USC © 296/a) (1956). Furthermore, in the 1950 Code, Con- gress provided for “appoint!ment|” of judges of this Court “by the President, by and with the advice and consent of the Senate.” Art 67(a), UCMJ, 50 USC §654(a), recodified in 10 USC $867(a) (1956); see Art. 142(b) (1), UCMJ, 10 USC § 942(b) (1) (1989). Despite Congress’ obvious familiarity with the appoint- ment terminology, it chose to create the military judge and provide for filling this government position with somewhat less direct language.- I first note that, since 1969, Article 26(b) had pro- vided that “!a] military judge shall be a commissioned officer of the armed forces.” 10 USC $531 further pro- vides: £531. Original appointments of commissioned of- ficers (a) Original appointments in the grades of second lieutenant through colonel in the Regular Army, 2What is an “appointment’ for purposes of the Appointments Clause is a substantial constitutional question concerning separa- tion of powers which implicates all three branches of our Govern- ment. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 155, 2 L.Ed. 60 (1803). See generally Buckley v. Valeo, 424 U.S. 1, 122-24, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Moreover, in Auffmordt v. Hed- den, 187 U.S. 310, 327, 11 S.Ct. 103, 108, 34 L.Ed. 674 (1890), the Supreme Court clearly held that Congress’ use of the word “select” rather than “appoint” was but one factor to be considered in deter- mining whether the Appointments Clause applied. Finally, in Shoe- maker v. United States, 147 U.S. 282, 12 S.Ct. 361, 37 L.Ed. 170 (1893), the Supreme Court impliedly held that designation of officers for additional duty requires compliance in some manner with the Appointments Clause. 40a Regular Air Force, and Regular Marine~Corps and in the grades of ensign through captain in the Regu- lar Navy shall be made by the President, by and with the advice and consent of the Senate. (Emphasis added.) See also 10 USC § 593 (appointment in reserves in commissioned grades below lieutenant col- onel and commander by President alone). The qualifications for original appointment are also statutorily established: $552. Qualifications for original appointment as a commissioned officer (a) Under regulations prescribed by the Secretary of Defense, an original appointment as a commis- sioned officer (other than as a commissioned warrant officer) in the Regular Army, Regular Navy, Regu- lar Air Foree, or Regular Marine Corps may be given only to a person who— (1) is a citizen of the United States; (2) is able to complete 20 years of active commis- sioned service before his fifty-fifth birthday; (3) is of good moral character; (4) is physically qualified for active service; and (5) has such other special qualifications as the See- retary of the military department concerned may prescribe by regulation. Article 26:b) (1969) also provides that a military judge must be “a member of the bar of a Federal court or a member of the bar of the highest court of a State.” This requirement for legal training is somewhat less stringent than the requirement for detail as trial counsel or defense counsel at a general court-martial. See Art. 27(b), UCMJ, 10 USC § 827(b), which states: (b) Tria] counsel or defense counsel detailed for a general court-martial— Eo 4la (1) must be a judge advocate who is a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; or must be a member of the bar of a Federal court or of the highest court of a State; and (2) must be certified as competent to perform such duties by the Judge Advocate General of the armed force of which he is a member. (Emphasis added. ) I next note that Article 26(b) (1969) provides that a military judge must be “certified to be qualified for duty as a military judge by the Judge Advocate Genera! of the armed force of which such military judge is a member.” The standards for certification are not pro- vided by statute, and there is no statutory requirement that a military judge be designated a member of the Judge Advocate General’s Corps or a Marine Corps judge advocate. However, as a_ practical matter, military judges to be certified as qualified normally would have experience as a trial or defense counsel under Article 27(by. This statute alternatively requires designation as a “judge advocate,” In fact, the military judge who presided over this court-martial was a Marine judge advocate. See NAVMC P-1005, Officers on Active Duty in the Marine Corps at 1-43 (1 Oct.1989, 48th Rev.). 10 USC § 5587a provides: §5587a. Regular Marine Corns: judge advocates With the approval of the Se cretary of the Navy, any regular officer on the active-duty list of the Marine Corps who is qualified under section7827 (b) of this title may, upon his application, be designated as a judge advocate, (Emphasis added. ) 42a Moreover, two of the appellate military judges who heard his appeal before the Court of Military Review were members of the Navy Judge Advocate General’s Corps. 10 USC § 5150 provides: $5150. Staff corps of the Navy (a) The staff corps of the Navy are— (1) the Medical Corps; (2) the Dental Corps; (3) the Judge Advocate General's Corps; (4) the Chaplain Corps; and (5) such other staff corps as may be established by the Secretary of the Navy under subsection (b). (b) (1) The Secretary of the Navy may establish staff corps of the Navy in addition to the Medical Corps, the Dental Corps, the Judge Advocate Gen- eral’s Corps, and the Chaplain Corps. The Secretary may designate commissioned officers im, and may as- sign members to, any such staff corps. (Emphasis added. ) As indicated above, designation as a judge advocate does not determine where or when a commissioned officer serves this duty. Article 6, UCMJ, 10 USC § 806 (1984), further comments on the assignment for duty of judge advocates, as follows: £906. Art. 6. Judge advocates and legal officers (a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge ad- vocates of the Marine Corps shall be made by direc- 43a tion of the Commandant of the Marine Corps. The Judge Advocate General or senior members of his staff shall make frequent inspections in the field in supervision of the administration of military justice. (Emphasis added.) The legislative history makes clear that Congress intended the Judge Advocate General of each service to play a substantial initiating role in the assignment process while reserving to military personnel authorities the final say.* See Hearings on H.R. 2498 Before a Subcomm. of the House Armed Services Comm., 8ist Cong., Ist Sess. 898-901 (1949), reprinted in Index and Legislative History, Uniform Code of Military Jus- tice (1950). 310 USC §5013(g) provides: (g) The Secretary of the Navy may— (1) assign, detail, and prescribe the duties of members of the Navy and Marine Corps and civilian personnel of the De- partment of the Navy; (2) change the title of any officer or activity of the Depart- ment of the Navy not prescribed by law; and (3) prescribe regulations to carry out his functions, powers, and duties under this title. 10 USC § 5131 creates the Bureau of Naval Personnel and 10 USC § 5132 empowers it as follows: § 5132. Bureaus: distribution of business; orders; records; expenses (a) Except as otherwise provided by law, the business of the executive part of the Department of the Navy shall be dis- tributed among the bureaus as the Secretary of the Navy con- siders expedient and proper. (b) Each bureau shall perform its duties under the authority of the Secretary, and its orders are considered as coming from the Secretary. (c) Under the Secretary, each bureau has custody and charge of its records and accounts. (d) Each bureau shall furnish to the Secretary estimates for its specific, general, and contingent expenses. For members of the Marine Corps, these powers are vested in the Commandant of the Marine Corps. See 10 USC § 5043(e)(3). 44a Article 26(c} (1969) also provides that a “military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations prescribed under subsec- tion (a).” (Emphasis added.) The language of desig- nation is not new (10 USC § 8067) and generally refers to “a special duty classification.” See 1967 U.S.Code Cong. & Admin. News 2118, 2114. Again the actual assignment of a designated military judge to Navy- Marine Corps Trial Judiciary is impliedly left to mili- tary personnel authorities. See SECNAVINST 5813.60 (13 April 1979). Finally, Article 26(a) (1969), in providing for de- tailing military judges to hear particular cases, states: (a) A military judge shall be detailed to each general court-martial. Subject to regulations of the Secretary concerned, a military judge may be de- 4 6. Organization. The Navy-Marine Corps Trial Judiciary is a naval activity as that term is defined in [U.S. Navy Regula- tions, 1973]. It is composed of the Office of the Chief Judge of the Navy-Marine Corps Trial Judiciary and such Judicial Circuits and their Branch Offices as may be established by the Judge Advocate General. The Judge Advocate General may also establish Judicial Areas, each consisting of two or more Judicial Circuits, for the purpose of providing an intermediate level of supervision within the Trial Judiciary. Expansion of the Navy-Marine Corps Trial Judiciary will come from cur- rent manpower resources as determined by the Chief of Naval Operations, the Commandant of the Marine Corps, and the Judge Advocate General, acting in coordination. The Marine Corps Special Court-Martial Judiciary is disestablished, and its members are members of the Navy-Marine Corps Trial Ju- diciary. — * ca * 8. Authority Over Organization, Functions «and Administra- tion. The Judge Advocate General is authorized to organize, administer, assign, and reassign functions to the Navy-Marine Corps Trial Judiciary and personnel attached thereto in accord- ance with [10 USC § 826 et. seq.]. 45a tailed to any special court-martial. The Secretary concerned shall prescribe regulations providing for the manner in which military judges are detailed for such courts-martial and for the persons who are au- thorized to detail military judges for such courts- martial. The military judge shal! preside over each open session of the court-martial to which he has been detailed. (Emphasis added.) As noted in United States v. Graf, 35 MJ 450 (CMA 1992), these regulations provide that detailing will be accomplished by the Chief Judge, the circuit military judge, or the circuit military judge's designee. See §§0120a(1) (1987); 0130a(1) (1990), Manual of the Judge Advocate General of the Navy. In sum, the President and the Senate make a person a commissioned officer; the Secretary of the Navy makes that commissioned officer a judge advocate; the Judge Advocate General qualifies and classifies that judge ad- vocate as a military judge; the Chief of Naval Personnel or the Commandant of the Marine Corps assigns him a duty station; and the Secretary of the Navy provides regulations for his detail to a particular case within that duty assignment. Ill Constitutional Tension In view of these empowering statutes, it is now ap- propriate to turn to the United States Constitution. Sce Dynes v. Hoover, 61 U.S. (20 How.) 65, 61 U.S. 65, 15 L.Ed. 838 (1858). Article I, §8 of the Constitution provides: The Congress shall have Power . . * + To raise and support Armies, but no Appropria- tion of Money to that Use shall be for a longer Term than two years; 46a To provide and maintain a Navy; To make Rules for the Government and Regula- tion of the land and naval Forces|{.| In addition, I note that this same section of the Con- stitution further provides: The Congress shall have Power a ~ * « To constitute Tribunals inferior to the supreme Court; . . . * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and al! other Powers vested by this Con- stitution in the Government of the United States, or in any Department or Officer thereof. Clearly, these constitutional grants of authority are suf- ficient to provide for the above-noted statutory establish- ment of a military justice system with military trial and appellate judges. See Solorio v. United Siates, 483 U.S. 435, 441, 107 S.Ct. 2924, 2928, 97 L.Ed.2d 364 (1987); Schlesinger v. Councilman, 420 U.S. 738, 757- 58, 95 S.Ct. 1300, 1313, 43 L.Ed.2d 591 (1975). See also Rostker v. Goldberg, 453 U.S. 57, 65-66, 101 7. Ct. 2646, 2652, 69 L.Ed.2d 478 (1981). { also note the operative provisions of the Constitu- tion which appellant asserts are applicable to the ap- pointment of military judges. Article II states in per- tinent part: ») Section 2. The T’resident shall be Commander in Chief of the Army and Navy of the United States. . (Hie shall nominate, and by and with the Advice dl Consent of the Senate, shall appoint Ambas- suders, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the tii 47a United States, whose Appointments are not herein otherwise provided for and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. (Emphasis added.) Article II further states: Section 3. He shall... take Care that the Laws be faithfully executed, and shall Commission all the O flicers of the United States. (Emphasis added. ) In view of these provisions of the Constitution, three distinct but nonetheless related issues are raised which this Court must decide. First, can Congress create the position of military judge and provide for its filling un- der Article I, § 8 of the Constitution without regard to the Appointment Clause of Article II, §2 of the Con- stitution? (See Parts IV and V, below.) Assuming it cannot, what does Article II, § 2 of the Constituion re- quire for a proper constitutional appointment to the office of military judge? (See Part VI below.) Finally, does the statutory system of designation detail provided by Congress for military judges meet the above constitu- tional requirements? (See Part VII below.) IV The Scope of the Constitutional Power of Congress in Military Justice It is beyond cavil that Congress has extremely broad powers to legislate in military matters generally and military justice matters in particular. Moreover, it is also quite clear that the Supreme Court has afforded great deference to Congress’ decisions in this regard. The Coast Guard Court of Military Review has exhaus- tivel ryt 4a y summarized the relevant Supreme Court cases sup- ing these assertions in its decision in United States v. Prive. 35 MJ 569, 573-75 (1992). Des pite these pronouncements, the Supreme Court has made ve) clear that its deference to Congress in farv matte | not ab olute Reostker M Goldbe rq, 1. $53 | ~s at 67-68. 10] ~~ ea at PHD3, states: None of th | LO Say Lnat (‘ongress is free to dis- regard the Constit ition when it acts in the area of litarv affairs. In that area, as any other, Con- rie remains ipject to tne limitations of the Due Process Clause, sce Ex parte Milligan, [71 U.S. () 1 Wall 2 18 L.Ed. 281 (1866); Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 [40 S.Ct. 106, 108, 64 L.Ed, 194] (1919). but the tests and limitations to be applied may differ hecause of the mi! tary ce ntext. We of course, do not abdicate our ultimate res onsibility to decide the con- utional question, but simply recognize that the con U1 elf requi such deference to con- gressional choice. See Columbia Broadcasting Sys- tem. Ine. v. Democratic National Committee, 412 U.S. [94] at 103 [93 S.Ct. 2080, 2087, 36 L.Ed.2d 772 (1973 In deciding the question before us we must be particularly careful not to substitute ow ] yrimen. f what is desirable for that of (- moress or ou wn evaluation of evidence for a reasonable evaluation b\ the Legislative Branch. oreover. in Middeinds yt i’. le uri, 195 1; Ss 95 Qf 1281, 47 L.Ed.2d 556 (1976), the Supreme Court " ’ 4} ’ ’ les . 4 earlier held that Congress’ military justice powers not totally independent of the rest of the Constitu- According { » then-Justice Rehnquist: We recognize hat laintiffs, who have eithe r been convicted or are due to appear before a summary court-martial. may he subjected to loss of liberty 49a or property, and consequently are entitled to the due process of law guaranteed by the Fifth Amendment. However, whether this process embodies a right to counsel depends upon an analysis of the interests of the individual and those of the regime to which he is subject. Wolff ve MeDonnell, 118 US. D359, 556, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974). In making such an analysis, we must give par- ticular deference to the determination of Congress, made under its authority to regulate the land and naval forces, U.S. Const., Art. I, §8, that counsel should not be provided in summary courts-martial. As we held in Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1047, 97 L.Ed. 1508 (1953) : “(T]he rights of men in the armed forces must perforce be conditioned to meet certain overrid- ing demands of discipline and duty, and the civil courts are not the agencies which must deter- mine the precise balance to be struck in this adjustment. The Framers especially entrusted that task to Congress.” (Footnote omitted. ) 425 U.S. at 43, 96 S.Ct. at 1291. See also Solorio v. United States, 483 U.S. at 451 n.18, 107 S.Ct. at 2933 n.18. A question remains, however, whether Congress’ power to make rules for the government and regulation of the Army and Navy is also limited or restricted by Article II, §2, paragraph 2, clause 2 of the Constitution. The Coast Guard Court of Military Review in United States v. Prive, supra, has held that the Framers of the Con- stitution did not intend to include Congress’ military justice power within the scope of the appointment clause. Relying on Northern Pipeline Construction Co. v. Mara- thon Pipe Line Co., 458 U.S. at 63-70, 102 S.Ct. at 2867- 71, it asserts that the military justice system is one of those “narrow situations . . . in which the grant of 50a power to the Legislative and Executive Branches was historically and constitutionally so exceptional that the congressional assertion of a power to create legislative courts was consistent with, rather than threatening to, the constitutional mandate of separation of powers.” Id. at 64, 102 S.Ct. at 2868 (plurality opinion). See 35 MJ at 575-76. I disagree with the Coast Guard Court of Military Re- view for several reasons. First, the Supreme Court in Northern Pipeline held that the bankruptcy courts were not legislative courts properly excepted from compliance with the requirements of Article III of the Constitu- tion. While it stated that courts-martial created by Con- gress under Article I, § 8 of the Constitution were legis- lative courts, and thus were not affected by Article III] of the Constitution, it went no further. The additional leap taken by the Coast Guard Court of Military Review in extending this decision into the area of Article II and the Appointments Clause in disregard of the plain lan- guage of the Constitution is simply not justified. See Mimmack v. United States, 97 U.S. 426, 4387, 24 L.Ed. 1067 (1878): see also Wood v. United States, 107 U.S. 114, 417, 2 S.Ct. 551, 554, 27 L.Ed. 542 (1883); Blake ». United States, 108 U.S. 227, 232, 26 L.Ed. 462 (1881); 30 Op.Atty.Gen. 177, 180 (1913); 4 Op.Atty. Gen. 603, 610 (1847). See generally 4 P. Kurland and R. Lerner, The Founders’ Constitution 31-38, 98 (1987). Second, the principle of separation of powers disputed in Northern Pipeline was between the congressional and judicial branches of our government. However, the Su- preme Court in Northern Pipeline clearly recognized that the Constitution’s exceptional plenary grant of power over the Nation’s armed forces was to both the Legisla- tive and Executive Branches of our Government. /d. 58 U.S. at 71, 102 S.Ct. at 2871. Accordingly, the ratio decidendi employed by the Supreme Court in Northern Pipeline cannot be logically applied to a dispute between a Bla branches of the government which both historically and constitutionally share that very power. See generally E. Corwin, The President: Office and Powers (1787-1984) at 296 (5th rev. ed. 1984). Finally, the Supreme Court in Freytag v. C.LR., 501 U.S. , 111 S.Ct. 2631, clearly recognized two con- cerns of the Framers of the Constitution in adopting the Appointments Clause of the Constitution. Justice Black- mun said: The roots of the separation-of-powers concept em- bedded in the Appointments Clause are structural and political. Our separation-of-powers jurisprudence generally focuses on the danger of one Branch’s ag- grandizing its power at the expense of another Branch. See Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 659, 102 L.Ed. 2d 714 (1989). The Appointments Clause not only guards against this encroachment but also preserves another aspect of the Constitution’s structural integrity by preventing the diffusion of the appointment power. Id. 501 U.S. at ——, 111 S.Ct. at 2638 (emphasis added). More particularly, he later said: We cannot accept the Commissioner’s assumption that every part of the Executive Branch is a depart- ment the head of which is eligible to receive the ap- pointment power. The Appointments Clause pre- vents Congress from distributing power too widely hy limiting the actors in whom Congress may v st the power to appoint. The Clause reflects our Fram- ers’ conclusion that widely distributed appointment power subverts democratic government. Given the inexorable presences of the administrative state, a holding that evers organ in the Executive Branch 1s a department would multipiy indefinitely the number 52a of actors eligible to appoint. The Framers recog- nized the dangers posed by an excessively diffuse appointment power and re Ve cted efforts to expand that power. See Wood, at 79-80. So do we. For the chief judge of the Tax Court to qualify as a “Head ff a Department,” the Commissioner must demon- strate not only that the Tax Court is a part of the Executive Branch but also that it is a department. Id. at 111 S.Ct. at 2642 (‘emphasis added). This constitutional concern with Congress’ excessive diffusion of the Executive’s appointing power is simply not ad- dressed by the Northern Pipeline rationale. V The Scope « f the Constitutional Power of the BE vecutive to Appoint Infenror O fhicers of the [’nited States The next inquiry concerns the actual scope of the Presidential appointment power. The general adage is Congress creates the offices and the President ap- ints the necessary officers to fill them. See generally L.. Tribe, American Constitutional Law 244 (2d ed. 1988) However, the words of the Constitution more particularly narrow the positions in the Federal government which are included within the constitutional appointment process. Article II of the Constitution states: Section 1. The executive Power shall be vested in + President of the United States of America.... Section 2. The President shall be Commander in — Chief of the Army and Navy of the United States. .. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Con- 58a sent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, ’udges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise pro- vided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Va- cancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall... take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. (Emphasis added. } In light of these provisions, the first question which arises is who are “all other Officers of the United States” or “such inferior Officers, as they think proper” within the meaning of Article II of the Constitution. The Su- preme Court in United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879), defined such officers as “all persons who can be said to hold an office under the gov- ernment about to be established under the Constitution. . 2’ (Emphasis added.) More recently, the Supreme Court spoke particularly on the office holders who could be considered “Officers of the United States,” as follows: We think that the term “Officers of the United States” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. Germaine, supra, is a term intended to have substantive meaning. We think its fair import is that any appointee exercising significant authority pursuant to the laws of the 54a United States is an “Officer of the United States,” and must, therefore, be appointed in the manner pre- scribed by § 2, cl. 2, of that Article. Buckley v. Valeo, 424 U.S. at 125-26, 96 S.Ct. at 685 (emphasis added). See Freytag v. C.1.R., 501 U.S. at » 111 S.Ct. at 2640. In this light, a critical question in this case is whether a military judge is an Officer of the United States. I note that this Court most recently in United States v. Graf, 35 MJ 450, 465 (CMA 1992), and United States v. Mabe, 33 MJ 200 (CMA 1991), analyzed the statutes and regulations concerning the military judge and con- cluded that “the Uniform Code of Military Justice con- templates that a military judge be a real judge as com- monly understood in the American legal tradition.” 35 MJ at 465. In addition, I note that in Freytag v. C.LR., supra, the Supreme Court expressly held that a special trial judge established by Congress “as an aide to [a] Tax Court judge” is “an ‘inferior Officer’ whose ap- pointment must conform to the Appointments Clause.” o01 U.S. at -—~-, 111 S.Ct. at 2640. The Supreme Court in Freytag articulated its reason- ing for reaching this conclusion, as follows: The Commissioner reasons that special trial judges may be deemed employees in subsection (b) (4) eases because they lack authority to enter a final decision. But this argument ignores the significance of the duties and discretion that special trial judges possess. The office of special trial judge is “established by Law.” Art. II. $2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute. See Burnap v. United States, 252 U.S. 912, 516-517, 40 S.Ct. 374, 376-377, 64 L.Ed. 692 (19201: United States +. Germaine, 99 U.S. 508, 911-512, 25 L.Ed. 482 (1879). These characteristics distinguish special trial judges from special masters, 55a who are hired by Article III courts on a temporary, episodic basis, whose positions are not established by law, and whose duties and functions are not delin- eated in a statute. Furthermore, special trial judges perform more than ministerial tasks. They take tes- timony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders. In the course of carrying out these important functions, the special trial judges erercise significant discretion, Even if the duties of special trial judges under subsection (b) (4) were not as significant as we and the two courts have found them to be, our conelusion would be unchanged. Under §§ 7443A(b)(1), (2), and (3), and (ec), the chief judge may assign special trial judges to render the decisions of the Tax Court in declaratory judgment proceedings and limited- amount tax cases. The Commissioner concedes that in cases governed by subsections (b) (1), (2), and (3), special trial judges act as inferior officers who exercise independent authority. 501 U.S. at ——, 111 S.Ct. at 2640 (emphasis added). The position of military judge is established by law. See Arts. 26 and 66, UCMJ, 10 USC §§ 826 and &66, respectively. The duties and functions of a person in this position are also established by statute. See Arts. 26, 39. 51, and 66, UCMJ, 10 USC §§ 826, 839, 851, and 866, respectively. The Code authorizes military judges to hear and determine motions on various pretrial, trial, and posttrial matters (see Art. 39/a)); rule on all ques- tions of law and interlocutory questions at courts-martial (Art. 51(b)); and impose Federal convictions up to and including life in prison, punitive separations from the service, and substantial financial penalties (Arts. 16/1) (B) and 18, UCMJ, 10 USC §§ 816/1)(B) and 818, re- spectively). A judge sitting with court members also in- 56a structs them on the various matters necessary to reach appropriate findings and sentences, even in capital cases where a servicemember’s life is at stake. (Art. 51(c)). These are not ministerial tasks but judicial ones calling for the exercise of significant discretion. See United States v. Graf, 35 MJ 450; United States v. Cole, 31 MJ 270, 272 (CMA 1990). Finally, judges exercise in- dependent authority. Art. 37, UCMJ, 10 USC § 837. See United States v. Graf, supra. In my view, the mili- tary judges and appellate military judges are “Officers of the United States,” as provided for in Article II, §2 of the Constitution. VI The Constitutional Requirements for a Valid Appointment My next inquiry concerns the particular requirements provided in the Constitution for a valid appointment of “Officers of the United States.” The answer to this ques- tion in large part depends on whether a military judge is one of “all other Officers of the United States” or is one of the “inferior Officers” generally denominated in Article II, §2. See United States v. Germaine, 99 U.S. 908, 509-10. 25 L.Ed. 482 (1879). See generally R. Rotunda, J. Nowak, and J. Young, Treatise on Constitu- tional Law: Substance and Procedure §9.4 at 504-05 (1986). In light of the Supreme Court’s characterization of a special tax court judge as an inferior officer in Freytag v. C.LR., supra, I have no reservation in con- cluding that a military trial judge and military appellate judge are “inferior Officers” of the United States within the meaning of Article II, § 2. See also Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612. In this light a military judge need not be appointed by the President by and with the Advice and Consent of the Senate. However, it is required that he be appointed by “the President alone,” a Court of Law, or a Head peeetateentnns DS A a, PEP et he _ SS a eae: 57a of a Department. Freytag v. C.I.R., supra, Nevertheless, the lead opinion and the Navy-Marine Corps Court of Military Review in United States v. Coffman, 35 MJ 591 (1992), have held that this constitutional requirement is satisfied by a military officer’s earlier commission and succeeding promotions by the President with the Advice and Consent of the Senate. Relying on Shoemaker v. United States, supra, they assert that no further appoint- ment by the President, a Court of Law, or a Head of a Department is required to permit a “legally trained” military officer to constitutionally assume the office of military trial or appellate judge.° The Navy-Marine Corps Court of Military Review ar- ticulated its rationale for its holding in Coffman as follows: Assuming arguendo that [the Appointments Clause] applies to military judges, the fact is that all mili- tary judges must be commissioned officers of the armed forces of the United States and, as such, have by law already been appointed by the President. Art. 26(b), UCMJ, 10 U.S.C. § 826(b); 10 U.S.C. §§ 101 (4), 101(15), 531, 593, 624, 5001(6), 5912. De- pending upon grade, component, and presence on the active-duty list, some of these commissioned officers by law must also have had their appointments con- firmed by and with the advice and consent of the Senate. 10 U.S.C. §§ 531, 593, 624, 5912. All mili- tary judges must be lawyers. Art. 26(b), UCMJ, 10 U.S.C. § 826(b). The duties these commissioned officers are detailed to perform as military judges are within the sphere of their official duties and are germane to the office they already hold. A second appointment from the President to a commissioned 5 This argument on its face fails to justify appointment of civilians to the Court of Military Review as authorized by Article 66, Uni- form Code of Military Justice, 10 USC § 866. 58a officer to perform the duties of a military judge is simply not required. Cf. Shoemaker v. United States, 147 U.S. 282, 299-301, 13 S.Ct. 361, 390-391, 37 L.Ed. 170, 185 (1892) (Army officers (engineers) were not required to obtain a second appointment to perform duties on a commission created by Con- gress to acquire lands for a park). Accordingly, we conclude the appellant’s first assignment of error is also without merit. 35 MJ at 592. The lead opinion more particularly posits two reasons why no further constitutional appointment of military judges is required by the Appointments Clause. First, it concludes that the office of military judge is not a “new office,’ so no additional appointment is required under Shoemaker v. United States, supra. Assuming it is a new office, the opinion holds that the germaneness of its duties to those duties previously performed by “legally trained military officers” also precludes the need for a second appointment under Shoemaker. I disagree. The lead opinion concedes that a military judge is an Officer of the United States. Moreover, it notes that the new powers of this officer were previously shared by the members of a court-martial, its president, and its law officer. Thus, Congress did not increase the power and duties of “an existing office’ but created a new office to which these powers were transferred. It is the re- moval of these powers and duties from commissioned military officers, not their addition thereto, which renders inapposite the lead opinion’s no-“new-office” argument. I also find that the lead opinion grossly misapprehends the nature of the duties of a military judge and his con- tribution to military justice. The creation of the military judge in 1969 was a watershed event because it intro- duced for the first time, statutorily, @ professional ju- ~ 59a diciary at courts-martial.’ S.Rep. No. 1601, 90th Cong., 2d Sess. 3, 14 (1968). See Ervin, The Military Justice Act of 1968, 45 Mil.L.Rev. 77, 83, 88-91 (1969). See ¢ The establishment of the military judge was not the only change accomplished by the legislation of 1968. Also, for the first time in the history of American military justice, a service-member could be tried and sentenced by a single military officer without court members in serious non-capital cases. Art. 16(1)(B), UCMJ, 10 USC § 816(1)(B). See H. Moyer, Justice and The Military § 2-620 at 536 (1972); Douglass, The Judicialization of Military Courts, 22 Hast. L.J. 213, 220 (1971). Representative Philbin commented on the reason for this bill as follows: The need for this bill has become acute because of the in- creased size of our Armed Forces resulting from the military activity in Southeast Asia. Besides the savings in time and manpower afforded by the bill, the bill provides meaningful benefits and protections to the accused. The enactment of this legislation will permit the procedure for trials by special and general courts-martial to conform more closely with the procedure used in the trial of criminal cases in the U.S. district courts and will enhance the prestige and effectiveness of the law officer, whose name is changed by the bill to “military judge,” so that his judicial stature and author- ity in the courtroom will more closely approximate that of a civilian trial judge. The bill allows the military judge to rule finally on certain procedural matters, such as motions for finc- ings of not guilty, on which he now may be overruled by the court members who are untrained in the law. The bill provides for pretrial and posttrial sessions to be held by the military judge without the presence of the court panel for the purpose of deciding procedural questions. The bill provides for trial in special and general court-martial by a military judge alone without court members if the accused requests and the request is approved by the military judge. These last two provisions are expected to save innumerable man-hours of line officers who would otherwise be required to be in attendance at courts- martial, as well as improving the internal efficiency of the jus- tice system. * 7 = * [Continued ] 60a generally Ross, The Military Justice Act of 1968: His- torical Background, 23 JAG.J. 125 (1969). In this con- text, a holding that this office is new is an understate- ment. ® [Continued } The enactment of this bill will be the most significant advance in the field of military justice since the enactment of the Uni- form Code of Military Justice in 1951. 114 Cong.Rec. 30563-64 (1968) (emphasis added). ~ Representative Bennett, a central figure in the development of this legislation, made this statement regarding the 1968 legislation: The need for this bill has become acute because of the in- creased size of our Armed Forces resulting from our present military activity in Vietnam. The bill provides meaningful benefits and protections to the accused, as well as streamlining procedures. The bill contains the following provisions, which are designed to increase the fairness of the military justice system: First, the accused must be afforded the right to be defended by a qualified lawyer at special courts-martial—here- tofore such a right only existed in the case of general courts- martial; second, before a bad conduct discharge can be adjudged at a special court-martial, the accused must be represented by a qualified lawyer and the proceedings must be conducted by a “military judge’—a term I will discuss below—except where physical conditions or military exigencies prevent one from being obtained; third, the bill extends the time in which the accused can petition for a new trial from 1 to 2 vears: and fourth, an accused faced with trial at summary court-martial can object to such an informal trial, at which time the con- vening authority must bring charges at a special or general court-martial or dismiss them. The enactment of H.R. 15971 will permit the procedure for trials in the military to conform more closely to the procedures used in the Federal courts. The bill also enhances the prestige and effectiveness of the law officer, whose name is changed to “military judge.” The role of the “military judge” will closely approrimate that of a civilian trial judge: he will rule finally on certain procedural matters and will hold open pretrial and posttrial sessions without the presence of the court for the purpose of deciding procedural questions. An accused can re- 6la Turning to the lead opinion’s “germane duties” ration- ale, I also find its application in the present case unac- ceptable. Shoemaker v. United States, supra, is an ex- ception to normal Appointments Clause practice, and a very narrow one at that. The lead opinion’s extension of that case beyond its facts to permit the blanket in- vesting of “legally trained” military officers with the office of military judge without compliance with the Ap- yointments Clause is simply unprecedented. Strictly speaking, such an approach might be appropriate only if the “legally trained” military officers also held a spe- cific presidentially appointed military justice office such as the Judge Advocate General of the Navy. See 10 USC $ 5148.7 Otherwise, the lead opinion’s general-duties an- alysis, at least in my view, constitutes judicial activism. quest a special and general court-martial by a “military judge” alone. The bill changes the name of the intermediate appellate agencies in the military from boards of review to courts of military review. The bill requires that the judges of these courts and of courts-martial be part of an independent ju- diciary. In addition, the bill authorizes a military form of release on bail pending appeal, the need for which has been pointed out in several recent cases. The importance of this legislation cannot be overstated. It is particularly needed in Vietnam, as has been pointed out by General Westmoreland; for under the bill line officers will be free from the necessity of serving as court members in many cases; and many previously wasted man-hours will be saved because of streamlined procedures. I think it is most significant that the House of Representa- tives, which fathered the Uniform Code of Military Justice, also initiated the action on this legislation and now has the oppor- tunity to put the capstone on it. The enactment of H.R, 15971 will be the most significant advance in the field of military justice since enactment of the Uniform Code of Military Justice. I heartily recommend the House approve the Senate amend- ments. 114 Cong.Rec. 30565 (1968) (emphasis added). 7 Neither of the two cases cited in Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), supports 62a In Shoemaker, the Supreme Court considered the de- volution of additional duties not on commissioned mili- tary officers in general or on commisisoned military en- gineering officers. Instead, they devolved on military of- ficers already holding a specific military or civilian office requiring a presidential appointment. See Thain, Legis- lative History of General Staff of the Army of the United States 8, 485 (1901). See generally Hoeppel v. United States, 85 F.2d 237, 241 (D.C.Cir.1936). One Rock Park Creek Commission member who was a military officer had been previously appointed by the President to the Office of the Chief of Engineers of the United States Army. See RS. §§ 1094, 1151, and 1198 (1878), and 17 Op. Atty. Gen. 2, 3 (1881); see generally 1 Stat. 749 (1799) and 20 Stat. 151, $13 +1878); see also 10 USC § 5036 (1956). The second, also a military officer, had pre- viously been “detailed” by the President as the Engineer Commissioner for the District of Columbia. See Ch. 150 £2. 20 Stat. 103 11878); 26 Stat. 1113 (1890); see also a “commissioned officer” exception to the Appointments Clause or its general-military-duty rationale as created by the lead opinion. The petitioner in Smith vo Whitney, 116 U.S. 167, 6 S.Ct. 570, % |, bd. 601 © iss860, was an officer of the Navy who was later appointed hu the Peeedent be and with the consent of the Senate, a~ the “ehict of the bureau of jrovisions and clothing and pay- master peseral in the department of the navy, with the relative rank of commouore.” Jd. at 168, 6 S.Ct. at 570 The petitioner in Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29 L.Ed. 577 (1885), was an officer in the Navy who was later appointed by the President, bu and with the consent of the Senate as “chief of the bureau of medicine and surgery in the department of the navy.” which offic. carried the additional tithe of “surgeon general of the navy.” Jd. at 569, 5 S.Ct. at 1052. See 10 USC §5127, Historical and Revision Notes, R.S. 421 and 426. The Supreme Court's holding that these military officers could be court-martialed for offenses under the Articles for the Government of the Navy docs not logically suggest that an additional presi- dential appointment was not required for their assumption of their more particular civil or military offices. 63a 10 USC $3534 (1956). Thus, the additional “germane” duty of membership on the Rock Creek Park Commission cannot be simply said to have generally devolved on a diffused pool of commissioned officers or commissioned officers with engineering training. Second, the Shoemaker decision makes clear that this extraordinary application of the Appointments Clause rests on a conclusion that the new additional duties are “germane to the offices already held by them.” 147 USS. at 301, 13 SCt. at 391. More particlularly, the Supreme Court there said: It is true that it may be sometimes difficult to say whether a given duty, devolved by statute upon a named officer, has regard to the civil or military service of the United States. Wales v. Whitney, 114 U.S. 564, 569, 5 S.Ct. 1050 [1052]; Smith v. Whit- ney, 116 U.S. 167, 179, 181, 6 S.Ct. 570 (576, 577). But, in the present case, the duty which the military officers in question were called upon to perform can- not fairly be said to have been dissimilar to, or out- side of the sphere of, their official duties. 147 U.S. at 301, 13 S.Ct. at 391 (emphasis added). The additional duties as a member of the Rock Creek Park Commission were particularly related to the military officers’ office as Chief of Engineers of the United States Army and office as Engineer Commissioner for the Dis- trict of Columbia. Clearly neither duty as engineer 1or training as an engineer sufficed. Appellate government counsel and various amici have also asserted that the duties of a military judge are “cermane” to the various powers of a commissioned officer under the Uniform Code of Military Justice. These in- clude the power to “quell quarrels, frays, and disorders” (Art. 7(e), UCMJ, 10 USC § 807(c))}; make arrests (Art. 9(b), UCMJ, 10 USC § 809(b)); serve as an investigating officer (Art. 32, UCMJ, 10 USC § 882); ee— 64a impose non-judicial punishments (Art. 15, UCMJ, 10 USC § 815); and serve as court-martial members at special courts-martial without a military judge (Art. 25(a), UCMJ, 10 USC § 825(a)). I do not consider a military judge’s judicial duties similar to or within the sphere of the general military justice responsibilities of a line officer. Moreover, the latter duties are collateral and irregular and, therefore, also lack the specificity-of-office considered in Shoemaker. Finally, the available lower court decisions applying Shoemaker simply do not support a broad military com- mission-promotion exception to the Appointments Clause for legally trained officers. The Court of Appeals for the Eleventh Circuit applied Shoemaker in the context of the “Investigating Committee of the Judicial Council of Eleventh Circuit.” See In the Matter of Certain Com- plaints Under Investigation, 783 F.2d 1488 (11th Cir. 1986), It noted that the members of this committee were sitting federal judges already appointed by the President who were later selected for service on this judicial com- mittee by the Chief Judge of the Cireuit. It held: Their selection for service on the Committee does not gain them new positions in any meaningful sense: to the contrary, service on a committee of the judicial council, when called upon, is merely an outgrowth of their existing responsibilities. See Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 87 L.Ed. 170 11893) (a statutory expansion of the functions of an existing position does not create a now office requiring re-appointment, at least where the newly-added dutics are “germane” to existing functions). See also 28 U.S.C. $$ 291, 292 (the Chief Justice may designate and temporarily assign any circuit judge to act as a circuit judge in another circuit if necessary; chief judges of circuit courts may make similar designations and temporary as- ai get oe aii mea. ee ee - eo ts ne ee 65a signments with respect to district judges and dis- tricts within their circuits) ; id. §§ 293-96. 783 F.2d at 1515 (emphasis added). A previously ap- pointed judge is not the same as a previously commis- sioned officer who is simply “legally trained.” Judge Lamberth of the United States Distriet Court for the District of Columbia also impliedly rejected the “legally trained” military-officer interpretation of Shoe- maker. He said: The [Supreme] Court rejected this argument [that a commission member could not serve absent Senate approval], holding that: As, however, the two persons whose eligibility is questioned were at the time of the passage of the act and of their action under it officers of the United States who had been theretofore appointed by the President and confirmed by the Senate, we do not think that, because addi- tional duties, germane to the offices already held by them, were devolved upon them by the act, it was necessary that they should be again ap- pointed by the President and confirmed by the Senate. It cannot be doubted, and it has fre- quently been the case, that Congress may in- erease the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and ap- pointed. Id. at 301, 13 S.Ct. at 391 (emphasis added). The Shoemaker ease is distinguishable from this case in two important respects. First, the provision challenged in Shoemaker added certain duties to two offices; it did not confer additional responsibilities on any particular officer. Had the Chief of Engineers of the United States Army or the Engineer Com- missioner of the District of Columbia resigned from 66a office after the commission was established, he would no longer have served on the commission—the new Chief of Engineers or Engineer Commissioner would have taken over those duties. Here, however, Mr. Wall was designated the new Director of OTS. Al- though the position was given to him by virtue of his prior position, it was given to him. Olympic Fy de ral S we iP Assn. v. Director, O flice of Thrift Supervision, 732 F.Supp. 1188, 1192-93 (D.D.C.19990) some emphasis added}. Again, no mention whatsoever was made concerning their remaining status as military ++ “ : their general training as engineers. Lastly, Gila River Pima-Maricopa Indian Community United States, 8 Cl.Ct. 700 (1985), provides an ex- ample of Congress’ recognition and treatment of the Sioe- malker problem, That decision notes that Congress, in ‘onstituting the United States Claims Court in 1982 by ising trial judges from the old Court of Claims, expressly confronted a Shoemaker problem. Judge Merow provided he following footnote in his opinion: lus, in discussing the constitutionality of the pro- vision of Pub.L. No. 97-164 reconstituting the trial division of the Court of Claims into a United States (Claims Court comprised of the trial judges of the Court of Claims, H.R.Rep. No. 96-1300, 96th Cong., 2d Sess. 23, n.25, states as follows: “Article III, section 1, of the Constitution explicitly empowers the Congress to ordain and establish in- ferior courts. Consequently, the only questions con- cern the relation between the power of Congress, under Article I, section &, cl. 18, of the Constitution to alter, enlarge, or restrict the functions of existing federal officers and the requirement of the Appoint- ments Clause, Article IT, section 2, cl. 2, that appoint- ments as officers of the United States be made in the manner prescribed by that clause. Stated differently, 67a this involves a reconciliation of the Supreme Court’s decisions in Shoemaker v. United States, 147 U.S. 282, 301, 13 S.Ct. 361, 391, 37 L.Ed. 170 (1893), and Buckley v. Valeo, 424 U.S. 1, 118-86, 96 S.Ct. 612, 681-90, 46 L.Ed.2d 659 (1976). The earlier case stated the principle that Congress may, by statute, confer new duties on officers of the United States, at least where the new duties are ‘germane’ to their existing functions, without the necessity of reap- portionment under the Appointments Clause. The lat{tler holds that Congress may not itself appoint officers of the United States. “The Committee has concluded that the carry-over of the trial judges into the Claims Court is a modifi- cation of an existing position rather than a legisla- tive appeintment to a new one, governed by Buckley. The bill merely would confer ‘germane’ new duties and extend the tenure of the existing trial judges as permitted by Shoemaker, rather than create a new office.” 8 Cl.Ct. at 702. Examination of the legislative history of Article 26 especially since 1968 reveals no similar statements by Congress concerning Shoemaker’s applica- bility to “legal trained” or untrained commissioned officers and the newly created position of military judge. VII Application to the Present Case Finding the Shoemaker decision inapplicable, my final concern is whether the system of appointment of a mili- tary judge provided in the Uniform Code of Military Justice nonetheless meets the standards of Article II, § 2 of the Constitution. I have noted earlier that military judges are not technically “appointed” under the Code, and their being invested with office is a more complicated process than represented in the granted issue. In addi- 68a tion, I note that Major Pesik, the military judge who presided at appellant’s court-martial, was a Marine, and the appellate court panel for this case was composed of both Navy and Marine officers. Turning first to Major Pesik, he was commissioned an officer in the United States Marine Corps by appointment of the President, by and with the Advice and Consent of the Senate. 10 USC § 531(a); see 10 USC § 582 or § 593. In accordance with the normal course of events, he rose to the grade of major in the Marine Corps, some of his promotions requiring appointment by the President alone and some also requiring the Advice and Consent of the Senate. 10 USC § 624(c). At some point, with the ap- proval of the Secretary of the Navy, he was designated ‘a judge advocate.” 10 USC § 5587a. His assignment for duty as a judge advocate of the Marine Corps was made by direction of the Commandant of the Marine Corps. Art. 6'a!. Moreover, he was certified by the Judge Advoeate General of the Navy to perform the duties of trial and defense counsel detailed for a general ‘ourt-martial. Art. 27(b!. Later, he was certified as qualified to be a military judge and designated for detail wh hy the Judge Advocate General of the Navy. Art. Zoibi. Finally, he was assigned to duty at the Sierra idicial Circuit by the Commandant of the Marine Corps n the recommendation of the Judge Advocate General The Marine Colonel and Navy Captains on the Court of Military Review were also commissioned officers who were pointed by the President with the Advice and Consent of the Senate. Their promotions to these distinguished grades were accomplished by appointment of the Presi- dent with the Advice and Consent of the Senate. They were constituted a court by the Judge Advocate General of the Navy and designated for detail to it by that same The bottom line Is that none of these n Li 1u ars )) in¢ ] lL, 4 4 1+) . . ‘ ‘ Was appomeed O tha osition or a germal } On 7} the President alone, the Cour of Law, « he Hlead o In summary, s my view atan y jude ! onlv a military officer but an “inferior Officer’ of the ['nited States as provided for in Article II, $2 of the Constitution. Congress under Article I, § & of the Cor stitution was fully compete 0 create such a milita judicial position and dispense justice to servicemembers at courts-martial. H;: Sa : : . £3 5s aeoed val ; ine done so. however, it was further required by Articie TY e ¢ } ’ 1 y [| ys to provide that the Heprsgy] VW ( | | lice } : , ' ' ot ‘ ointed py tne res qen a | 1 { \ e ra | + , of a Denartme! ry’) 5 | ’ ’ The reason that Congress has not p) | | + . 4 ] )¢ r appotincmen TO) lta) ore ] f en } ’ . } j ren { rye PAC yt? ())) ~ ‘ a { ? J ( U.S. 282, 18 S.Ct. 861, 37 L.Ed. 170 made a ¢ .* « : ’ , lecision that a second appointment by thi Lye . ’ } ( YY) VY * { ne (| offies } t BY | } , r y A ( ) } : ure) } YY " | ? ) y t es W no necess. n tra . t an | i Opvien i — ~ r ? the Juc among Ut! cers \° +35 11iC€ ) i ¢ t C " i y YT | r ( r en) ' ri¢ ? i t ) { y / ( { yiT ( y 1 r)? a e-Tiee? | -” = i4a gress in its regulation of military affairs. See United States v. Prive, 35 MJ 569, 573-77 (CGCMR 1992). The Supreme Court has instructed that “judicial deference _.. is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is chal- lenged.”” Rostker v. Goldberg, 453 U.S. 57, 70, 101 8.Ct. 2646, 2655, 69 L.Ed.2d 478 (1981), quoted in Solorio v. United States, supra, 483 U.S. at 447, 107 5.Ct. at 2931. Sec also Goldman v. Weinherger, 475 U.S. 508, 508, 106 S.Ct. 1310, 13813, 89 L.Ed.2d 478 (1986). Deference, however, does not equate to abdication. The Supreme Court has recognized that, in light of Con- gress’ regulatory powers over the military, constitutional rights might have application and meaning in the mili- tary different from the civilian community, see, @.@., Solorio uv. United States, supra 483 U.S. at 447, 107 S.Ct. at 2931. The Court, however, has never instructed that Congress’ regulatory power is a talisman, in the face of which the remainder of the Constitution withers. Indeed. quite to the contrary, the Court stated in Rostker Goldberg, supra, 453 U.S. at 67, 101 S.Ct. at 2653: None of this is to say that Congress is free to dis- regard the Constitution when it acts in the area of military affairs. In that area, as any other, Con- gress remains subject to the limitations of the Due Process Clause, but the tests and limitations to be applied may differ because of the military context. We of course do not abdicate our ultimate respon- sibility to decide the constitutional question, but sim- ply recognize that the Constitution itself requires such deference to congressional choice. ‘Citations omitted. ) The Constitution’s grant of regulatory power to Con- press over military affairs is no more plenary than, for instance, its grant of power to Congress in Article I 0... provide for the... general Welfare of the United States” (§&, cl.l); or over Federal elections ($4); or “|tlo make all Laws which shall be necessary and proper for carrying into Execution” these and other powers specifically set out elsewhere in the Constitution ($8, cl. 18). When the ere Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. ¢ 46 L.Ed.2d 659 (1976), Was presented with the argument that appointment of members of the Federal Election Commission was pur- 1 suant to these plenary powers of Congress and, thus, no i ibject to the Appointments Clause, the Court responded: But Congress has plenary authority in all areas in Which it has substantive legislative jurisdiction, Mc- Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 [4 L.Ed. 579| (1819), so long as the exercise of that authority does not offend some other constitutional restriction. We see no reason to believe that the ithority of Congress over federal election practices is of such a wholly different nature from the other grants of authority to Congress that it may be em- ployed in such a manner as to offend well-established constitutional restrictions stemming from the separs- tion of powers. The position 1 that beeause Congress has been given explicit and plenary authority to regulate a field of activity, it must therefore have the power to ap- point those who are to administer the regulatory statute is both novel and contrary to the language of the Appointments Clause. Unless their selection Is elsewhere provided for, all officers of the United aie to be appointed in accordance with the Clause... . No class or type of officer is ex-iuded hecause of its special functions. Id. 424 U.S. at 132. 96 S.Ct. at 688 76a I agree. There is nothing anywhere in the Constitu- tion of the United States or in decisions of the Supreme Court that supports the notion that mandates of the Con- stitution do not penetrate the walls of the military en- clave. Further, unlike application of certain individual rights to service-members, there is nothing about the Appointments Clause that requires a different applica- tion in a military context than it does in the rest of the United States.' Nothing could be plainer than that the Appointments Clause, by its own terms, does not except appointment to offices created under Congress’ power to regulate the military any more than it excepts appoint- ment to offices created under any of Congress’ other numerous, plenary powers. In short, as the Supreme Court succinctly stated in Freyiag v. C.ILR., 501 U.S. at ——, 111 S.Ct. at 2639, ‘Neither Congress nor the Executive can agree to waive this structural protection” of the Appointments Clause.’ % Judge Crawrtord’s attempt to distinguish between civilian and lilitary judiciaries based on ‘military exigencies” is a strawman. Nothing in any of the other opinions in this case would have any untoward impact whatsoever on the ability of the Judge Advocate General to tactically move and reassign military judges or to meet the operational realities of a military in the field, as well as in the garrison. At the same time, there was no occasion of which this Court has been made aware that required any sort of emergency appointment of military judges resulting from deployment of our armed forces. Simply stated, Judge Crawford’s implied alarm—that appointment of military judges by, say, the Secretary of Defense see Opinion, infra) somehow undermines the response capability of our armed forces in some manner that appointment by the Judge Advocate General does not—is a false alarm. * Judge Crawford's constricted focus on the nurpose of the Ap- pointments Clause is a misstep off the cleared path of the law. As the Supreme Court of the United States unequivocally instructed in Freytag v. Commissioner of Internal Revenue, 501 US. 111 S.Ct. 2631, 2639, 115 L.Ed.2d 764 (1991), the Appoint- ments Clause not only involves the constitutional tug-of-war be- tween the Executive and Legislative Branches but also ensures that 77a Accordingly, if the Uniform Code of Military Justice established a distinct office of military judge, appoint- ments to fill that office must comport with the Appoint- ments Clause. II In an effort to identify who are included as “Officers of the United States” and other “inferior Officers” within the meaning of the Appointments Clause, the Supreme Court has said: We think that the term “Officers of the United States” as used in Art. II, defined to include “all persons who can be said to hold an office under the government” in United States v. Germaine [, 99 U.S. 508, 510, 25 L.Ed. 482 (1879) |, is a term intended to have substantive meaning. We think its fair im- port is that any appointee exercising significant au- thority pursuant to the laws of the United States is an “Officer of the United States.” and must, there- fore, be appointed in the manner prescribed by § 2, cl. 2, of that Article. Buckley v. Valeo, supra, 424 U.S. at 126, 96 S.Ct. at 685 (emphasis added), cited with approval in Freytag v. C.LLR., supra, 501 US. at , 111 S.Ct. at 2640.5 responsibility to make appointments to offices in the Executive Branch will not be delegated and diffused to a level below the very highest, responsive level of “the President alone,” “Courts of Law,” or “Heads of Departments.” 5 As the Chief Judge points out, Buckley v. Valeo, 424 U-S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), marked the first time that the Supreme Court used this approach of examining the functions and duties of a purported office to determine whether it was an Office of the United States. Prior to that decision, the approach was one that could fairly be characterized as rather circular: A posi- tion was an Office only if Congress required that the position be filled by the President, a Court of Law, or a Head of a Department. In other words, this “mode of appointment” approach essentially ' = ———— 78a Military judges are “established by Law,” and their “duties and functions are ... delineated in a statute’— specifically, Articles 26 and 66 of the Code. See 501 U.S. at , 111 S.Ct. at 2640. Further, their functions and responsibilities, as fully reflected in the Chief Judge’s opinion, 36 MJ at 249-250, and prescribed in the statute and in the decisions of this Court, are leaps and bounds more than “ministerial tasks”; and “[i]Jn the course of carrying out these important functions, [military judges] exercise significant discretion.” 501 U.S. at , lll S.Ct. at 2640; see Criminal Law Note: An Ongoing Trend: Expanding the Status and Power of the Military Judge, The Army Lawyer 23 (Dept. of the Army Pamplet 27-50-239, October 1992). In my view, application of the Supreme Court’s functional-duiy analysis compels the con- clusion that there is a distinct office of military judge. The lead opinion concludes otherwise, after tracing the evolution of the law member to the law officer to the military judge. As to the final stage in this process. the plurality opines: The Military Justice Act of 1968 changed the title or the law officer to military judge, in order to in- crease his stature, and transferred more duties from the president of the court-martial to the military judge. See Art. 26, 82 Stat. 1336. Since the Ac? merely transferred authority and duties from one official of the court-martial to another and renamed the law officer, it did not create a new office. 36 MJ at 229-230 (emphasis added). This casual view of the functions and duties of military judges is not only demeaning; it is inaccurate. concluded that an Office was an Office when Congress said it was an Office by providing for appointment thereto consistent with the Appointments Clause. The functional-duty approach followed since Buckley, of course, is more consistent with the principle that even Congress cannot legislate in violation of the Appointments Clause, see Freytag v. C.I.R., supra. i 79a First, the lead opinion itself acknowledges an incredibly important addition to the functions and discretion of the military judge over any other single official that previ- ously sat at a court-martial: To sit, alone. as a court- martial and determine, alone, the issue of guilt and the sentence of a convicted accused in serious non-capital cases. This extraordinary power extends to convicting servicemembers of such serious felonies as murder and espionage and imposing any sentence other than death— including life imprisonment. Never before did any single member of the armed forces—the president of a court- martial or anyone else—have the statutory authority to perform this function.® Second, the lead opinion omits to notice other impor- tant additions to the duties and responsibilities of a mili- tary judge that were not mere transfers from a president of a court-martial. For instance, prior to 1969, challenges for cause against a law officer or members of a court- martial were determined by the members collectively, see Arts. 4l(a) and 51(b), UCMJ, 50 USC §§ 616(a! and 626(b) (1950), respectively, recodified as 10 USC §§ &41 (a) and &851(b) (1956), respectively; by contrast, after 1969, a military judge rules finally on all such challenges, see Art. 41(a) (1968). Additionally, as footnote 6 of the Chief Judge’s opinion makes clear, Congress was aware of other important duties that were given to a military judge that, before, had not rested with any single official, e.g., “* to rule finally on certain procedural matters, such as motions for findings of not guilty. on which he now may be overruled by the court members who are untrained in the law,’”’ and “ ‘for pretrial and posttrial sessions to ® The plurality’s effort to minimize the remarkable nature of this change, by referring to the long history of ‘‘one-member” summary courts-martial, is off the mark. After all, the Supreme Court has held that a summary court-martial is not even a criminal proceeding. Middendorf v. Henry, 425 U.S. 25, 36-42, 96 S.Ct. 1281, 1288-91, 47 L.Ed.2d 656 (1976). r , is 4 17 ~~ Lid yr inge a } . ‘ cm ry | oH “tt il y ? ‘ 1] ~ ( f bead } ‘¥ } i444 ” : | lf) { QO { i ’ R 7 to ne 7 ipe ares ed if 1 OT ' ; aa it’s approximate that Of a civillan trial judge. 30564 (1968). “y 7 a | CULT 1 « *( LH 1s r tr Hh x67 re f { irt , ee 4 ’ } ‘ ’ ; ‘ \ ‘ i i ’ . i x()] ; : 4 ( } t t if ’ y * ‘ ; . , gageimMea nm my , . . t ? ; na al miiilt ” rne TY) T aiid ova ary judge without the presence of the purpose of deciding procedural ques- will | on) P a] 4 ay 4 se 4 he role of the military judge ” See re (tag v, C.IL.R.. 501 U.S. at 2640. It is an Office that involves a . . f ; 4 \ n Ul iudici: run¢ lO] » ind du 1es ] ; . ; ine " »] did repose in any other individual - 71 : } : ter) tant} ‘ ‘ ot 1 ce system." This factual analogy is qué LIOT oO! r t} y there i d Tl? ret | Tl ibtiet le oT word!) (y : ‘ ; } t sive ‘ i ‘ it | ’ ) +} , 4 ; ‘ ‘ . | l n followed the funct1 + ; + ’ ; ; I rit MbuvleS ana LUNCLIONS Mmneatced l ; ; A oi } ) a a4 ‘ nel A! it | and 0d a i pl { f ‘ } . ; e oY law 1 Con il I fry , t | Bye g ‘ ica ‘A + tt ’ | y 7 ! ( ’ ‘ — : ‘ ; : ‘ Sa ‘ iV? . } it | r 7 y > il ! j . Lf { ( la ye l nt . ¢ ( I i} I pecia rial ik ) ’ ) y y | T ’ ry , f i regula a Ma ‘ - ‘ 4] 4 + ‘ ia \ i { / \1 { 1(10 ‘ * | ; . +} I vi pe meal i! ( ; ; ; I j ’ et rdance wit! ) ‘ 9 ‘ e Zi ‘ le 2o(D A milita) } rt-emart _ os al b COU altia Alld i! Cl ; } 4 e G hall establish a Court ¢ ) r ‘ ? re I pai " 1 ‘ ; ( i ft th i nree apt } . + . hed, how r, the real heart of the test ' ] ; ‘ +} ‘ y ; , t ‘ | il \¢ Lum { ind ¢ ea | the t rovisilons tnat Inqulr mor 34 T pra : + + +} + . 4 4 + ints oul na ome I ne ful Tt and ( ( + + +1 li . ] eC! 1969 res Vi I iit MmMiil il sti t ariiel Sla consistent with the plain language of the UCMJ. which expressly defines the military judge as “an official.” Art. 1(10) (1969). — At the appellate level, the functions and duties of mili- tary Judges are similarly imposing. A Court of Military veview exercises “awe ome, plenary ... powers.” United States v. Cole, 31 MJ 270, 272 (CMA 1990). It is charged In every case it considers to “weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact,” and it may in a given case “affirm only such findings of guilty. and the sentence or such part or amount of the sentence, as it finds correct in law and fact and determines, on the basis of the entire record. should be approved.” Art. 66(c¢ In other words, appellate military judges sitting on a Court of Military Review in each case hear and decide all legal issues arising from the proceedings below, satisfy themselves that the evidence is factvallu sufficient to sustain the findings, assure that the sentence is egally imposable, and determine anew whether the sentence is an approprute one. In addition to these functions during the usual course of appellate review of a court-martial ‘onviction, Courts of Military Review possess and have exercised extraordinary-writ powers where appropriate. See Dettinger v. United States, 7 MJ 216 (CMA 1979). All this is done without any second-guessing by any mili- had been those collectively of the members of a court-martial. Without charting here the source of each of a military judge’s duties, suffice to say that some earlier had belonged to members; some earlier had belonged to the president of a court-martial; and some earlier were non-existent—they were reposited for the first time in the office of military judg Accordingly, I rhetorically ask the plurality: Does the fact that some (even assuming most, for this purpose) of the responsibility and discretion that now is lodged in one source actually came from several various sources in any way change the equation as to whether that one source now is an “office” under the functional-duty approach, see n.5, supra? 82a tary superior and is subject to review only within the judicial system, by this Court. By any view, in my opinion, the functions of military judges at the appellate level, like those of military judges at the trial level, are substantially “more than ministerial tasks”; rather, they reflect the exercise of “significant discretion” as well as fina] judgment subject only to judi- cial review by a superior appellate court. See Freytag v. C..R., supra, 501 U.S. at ——, 111 S.Ct. at 2640. Just as surely as I said earlier about military judges at the trial level, these functions and duties of appellate military judges leave no doubt in my mind that Congress created an office of military judge. II] Relying on Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170 (1893), the plurality concludes that [a|ssuming, arquendo, that a new office was created at some time during the evolution of the military judge, the result is the same, because the duties cf the military judge are the same as those traditionally performed by military officers serving as members of courts-martial. As such, they are germane to the duties of a legally trained military officer detailed as a military judge. Thus, the plurality reasons, a new appointment is not required. 36 MJ at 246. I join the Chief Judge’s reason- ing in Part VI of his opinion that rejects both this reason- ing and its reliance on Shoemaker. Simply stated, Shoemaker was a situation in which the Supreme Court looked at the duties of two particular, high-level military engineers—the Chief of Engineers and the Engineer Commissioner fer the District of Columbia —and concluded that the additional duties that Congress | 83a purported to give them as members of the Rock Creek Park Commission were germane to their particular offices, so that a second appointment was not necessary. That is a far cry from the extrapolation that the lead opinion now makes: That devolution of specific and highly re- sponsible judicial duties as a milit: iry judge is “germane” to some nebulous notion of duties of “legally trained mili- tary officers” in general. Cf. Criminal Law Note, supra, 36 MJ at 242. Analogizing in reverse back to Shoe- maker, what the plurality affirms here would be akin to concluding that the responsible and discretionary func- tions and duties of the commissioners on the Rock Creek -ark Commission were “germane” to duties of any mili- tary officer trained as an engineer. Shoemaker may not be read that broadly. Finally, I view two significant provisions in the Uni- form Code of Military Justice as contr: adicting the plural- ity’s conclusion that duties of a military judge are val mane to the duties of a military officer. First, as Article 26(b) and 66(a) expressly require that a military judge at both the trial and appellate levels be “a member of the bar of a Federal court or... of the highest court of a State,” military authorities do not have complete control over whether a military officer meets the statutory qualifi- cations to be a military judge. Admission to the practice of law is controlled or regulated by state statute, court rule, or both, and requires comprehensive legal training not provided by the military atid a determination of legal competence by the civilian authority. See 7 Am Jur 2d, Attorneys At Law § 12; American Bar Association. Com- prehensive Guide to Bar Admission Requirements (1992- 93). Because a service-member’s admission to the inde- pendent bar by civilian authority is a statutory qualifica- tion for a military judge, I cannot conclude that duties of a military judge are germane to the general duties of a military officer, even a “legally trained” one. 84a Second, as the lead opinion acknowledges, Article 66 (a) authorizes appointment of civilians as appellate military judges on the Courts of Military Review. The plurality purports to preclude the difficulty that this statutory pro- vision creates with its germaneness theory, but it cannot be evaded. Whether civilians sat as judges in this case is not the point; rather, the pertinent inquiry is: What impact does this statutory authorization have on the interpretation of that statute as a whole relevant to whether the duties and functions of an appellate military judge are “germane” to duties generally of a military officer, even one “legally trained’? The express statutory provision for civilians on the appellate court is incon- sistent with the plurality’s germaneness theory. The plurality disregards this inconsistency; I cannot do so. CONCLUSION In summary, I conclude that Congress is not exempt from the strictures of the Appointments Clause of Article II, $2, clause 2 of the Constitution when it exercises its powers under Article I. § 8, clause 14 of the Constitution to regulate the land and naval forces. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612. Considering the functions and duties of military judges, I conclude that Congress established a distinct office of military judge in Articles 26 and 66 of the Uniform Code of Military Justice, so the Appointments Clause must be complied with in filling that office. See Freytag v. CU.R., 501 U.S. , 111 §8.Ct. 2631. Finally, I conclude that a prior general appoint- ment as a military officer will not satisfy the Appoint- ments Clause in this regard because the specific judicial duties required of the office of military judge—as opposed to duty as a military officer—are not “germane” to duties of a “legally trained” military officer in general. See Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 36]. Jecause a majority of this Court, on the other hand, is of the view that the present method of appointing military 85a judges meets constitutional] requirements, I need not de- cide whether these appointments can be affirmed under the de facto-appointee rationale of Buckle y, as discussed by the Chief Judge. 36 MJ at 256-257. 1 point out though, that even that rationale has certain logical and legal limitations.° *The Chief Judge touches on some of these issues in Part VIII ' his opinion in which he suggests the possibility of interim Presidential direction on appointments through the Secretary of + Defense. In addition, th appropriate time for effecting statutory For instance, in implementing emedial action would be at issue. the de facto-appointee rationale in Buckle y v. Valeo, supra, 424 U.S. at 142-43, 96 S.Ct. at 693, the Supreme Court stayed its judgment for a period of 30 days to afford Congress an oppor tunity to reconstitute the Federal Election Commission and, in the interim, allowed the commission to function de facto. Also. by analogy, in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 90, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982 which involved a jurisdictional void created by a ruling that a system of bankruptcy courts was unconstitutional, the Supreme Court delayed its mandate for several months to permit Congress an opportunity to implement remedial action. After the initia] delay, 458 U.S. at 88, 102 S.Ct. at 2880, the Court granted a fur- ther delay of some 21% months. 459 U.S. 818, 103 S.Ct, 199, 74 L.Ed.2d 160 (1982). Cf. United States v. Matthews, 16 MJ 354 (CMA 1983) (in decision finding court-martial death-penalty sen- tencing procedures unconstitutional, mandate withheld for 90 days to allow opportunity to change those procedures in time for appel- lant’s resentencing). 86a APPENDIX B IN THE U.S. NAVY-MARINE CORPS COURT OF MILITARY REVIEW BEFORE J. A. FREYER R. A. STRICKLANI JAMES E. ORR UNITED STATES Eric A. WEISS, 080 62 5296 Private (E-1), U.S. Marine Corps Reserve NMCM 89 4189 Decided 31 January 1992 Sentence adjudged 19 September 1989. Military Judge: I. F. Pesik Jr. Review pursuant to Article 66(¢c), UCMJ, of Special Court-Martial convened by Commanding Offi- cer, Schools Battalion, Marine Corps Communication- 7 Mlectronics School, MCAGCC, Twentynine Palms, CA GP278-5020. LT ROBERT E. WALLACE, JAGC, USNR, Appellate Defense Counsel. LT MARY ANNE RAZIM, JAGC, USNR, Appellate De- fense Counsel. LCDR LAWRENCE W. MUSCHAMP, JAGC, USN aN, Appellate Government Counsel, APPENDIX ¢ U.S. COURT OF MILITARY APPEALS No. 68,432 NM ¢ Vi Q] 2766 UNITED STATI APPELLEL Submitted Nov. 17, 1992 Decided lan. 15, 1993 For Appellant: Lieutenant James R. Crisfield, J IAGC, USNR. For Appellee: Colone’ T.G. Hess, USMC and Captain Laurie S. Powell, USM¢ PER CURIAM: [his case is one of more than 200 cases now pending before this Court wherein an appellant has challenged the trial and appellate military judges who took action in his case because they were not appointed in accordance with the United States Constitution, Art. II, § 2, cl. 2, and the decision of the United States Supreme Court in Freylag v. Commissioner of Internal Revenue, ts Se ee 2631, 115 L.Ed.2d 764 (1991). This Court has resolved this ssa same issue in the Government’s favor in United States v. Weiss, 36 MJ 224 (CMA 1992). The mandate in that case was issued on January 6, 1993. In accordance with this Court's practice and in the interest of judicial economy, we will deny all petitions for review based solely on this issue When the petition supplement has been filed after the date of the mandate We turther note the prevalence of the issue in previously vranted cases and the possibility for further review by the United States Supreme Court. If certiorari is granted by he Supreme Court and some relief 1s afforded in those cases, this Court will accept out-of-time requests for ap propriate relief in cases where the above denial orders have been issued [he decision of the United States Navy-Marine Corps Court of Military Review 1s attirmed. SYa APPENDIX D U.S. COURT OF MILITARY APPEALS No. 67.811 CMR No. 28653 UNITED STATES, APPELLEE ROBERTO TORO, JR., SERGEANI U.S. AIR FORCE, APPELLANI Argued April 6, 1993 Decided Aug. 3, 1993 Accused was convicted by general court-martial, Clifton .. Daniel. J., of three specifications of using metham- phetamines, one specification of introducing metham- phetamines onto military facility, and two specifications of distributing methamphetamines. The United States Ai Force Court of Military Review affirmed, 34 M.J. 506. Review was granted. The United States Court of Military Appeals, Crawford, J., held that: (1) admission of prior consistent statements of prosecution witnesses was nol plain error; (2) special agent's testimony that informants were among “very best sources” he had worked with was not plain error; and (3) prosecutor's sentencing argument that accused never acknowledged finding of guilty was not plain error. Affirmed. Oa Wiss. J.. tiled separate opinion concurring in part and } I I irring in result Sullivan, C.J., tiled separate opinion concurring tn For Appellant: Eugene R. Fidell (argued); Paul M lendler, Colonel Terry J. Woodhouse, Captain Gilbert J India, Jr. (on briet); Colonel Jeffrey R. Owens, Mayor lice M. Kottmyer, Captain Richard W. Aldrich. lor Appellee: Captain Jane M.E. Peterson (argued); Colonel Richard L. Purdon and Lieutenant Colonel Jef ry IT. Infelise (on briet); Lieutenant Colonel Brenda J Ilo Opinion of the Court ( Te \ppellant was convicted by court members, contrary to pleas, of three specifications of using methampheta On) pecification of introducing methampheta I onto a military facility, and two specifications ot ributing methamphetamines, in violation of Article a4, Unitorm Code of Military Justice, 10 USC § 9l2a Hle wa ntenced to a dishonorable discharge, conting nt for 7 years, total forfeitures, and reduction to the owest enlisted grade. The convening authority approved ic adjudged sentence. The Court of Military Review al tirmed the tindings and sentence. 34 MJ 506 (1991). We ire granted review of three issues, which are listed below the order they are treated in this opinion: WHETHER IT WAS ERROR TO ADMIT PROS IFCUTION EXHIBITS 8-12, 14-16, AND 18-28, [HE PRIOR STATEMENTS OF PROSECUTION WITNESSES. WHETHER APPELLANT WAS UNFAIRLY PREJUDICED BY “HUMAN LIE-DETECTOR TESTIMONY OF AN OSI SPECIAL AGENT WHETHER TRIAL COUNSEI V\RGUMENT ON SENTENCE WAS UNFAIR BECAUSE IT IMPROPER LY PENALIZED APPELLANT FOR NOT ADMIT LING HIS GUILT We hold that appellant wa la objecting at trial and that th isan ab ()T See eenerally ( niled Sfale OLTILAL 3.Ct. 1720, 123 L.Ed.2d S08 (1993) Fisher. 21 MII 327 (CMA 1986) DISC LSSION \ . mel redibil | rormal Cy ronment a | [| h n nth ! libil npeachmen ind nat Bolstering occurs betore impeach: proponent seeks to enhance the credib before the witness is attacked. Laughl (/nited § 385 F.2d 287 (D.C.Cir.1967). cert. denied. 390 U.S. 100 B® S.Ct. 12458, 20 L.Ed.2d 103 (1968): United S Dunlap, 25 MJ 89 (CMA 1987) Q2a Impeachment occurs after a witness testifies. The methods of impeachment include: character trait for un- truthfulness — Mil.R.Evid 608(a), Manual for Courts- Martial, United States, 1984; prior convictions — Mil.R. Evid. 609(a); instances Of misconduct not resulting in a conviction — Mil.R.Evid. 608(b); prior inconsistent state- ments —Mil.R.Evid. 613; prior inconsistent acts—c/. Dovle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); bias— United States v. Abel, 469 U.S. 45, 105 S.Ct. 468, 83 L.Ed.2d 450 (1984), and Mil.R. Evid. 608(c): and specific contradiction. Rehabilitation occurs atter a witness’ credibility has been attacked. Rehabilitation can take many forms, in cluding explanations on redirect examination, corrobora lion, a character trait for truthfulness, or prior consistent statements — Mil.R. Evid. 8O1(d)(1)(B). Issues | and II concern rehabilitation of the informants by prior consistent statements and by presenting evidence ot a character trait tor truthfulness, respectively. During redirect examination the Government sought to rehabili tate Its witnesses by introducing their prior consistent statements. The Government also sought to introduce evt- dence as to their character traits for truthfulness. - I Prior Consistent Statements Prior to enactment of the Federal Rules of Evidence, which are the source of the Military Rules of Evidence, courts generally allowed consisient statements to be admit- ted tor rehabilitative purposes only and not as substantive evidence. 4 J. Weinstein and M. Berger, Weinstein’s Evi dence © 801(d)(1)(B)[OL] at 801-187 (1992). Indeed, at common law, even consistent statements were not general- ly admiited unless the statements were made before the 93a existence of a motive to fabricate. /d. at 801-185 to 801-187. Enactment of the Federal Rules of Evidence did not change the common law rule concerning receipt of consistent statements. Cf. United States v. Abel, 469 U.S. at 49 and 51, 105 S.Ct. 467 and 468 (1984) (recognized bias as method of impeachment even though not in Fed.R. Evid.). In United States v. McCaskey, 30 MJ 188, 192 (CMA 1990), this Court stated that “Mil.R.Evid. 801(d)(1)(B) generally was intended to be limited to prior consistent Statements made before the alleged recent fabrication o1 improper influence or motive occurred.” In applying this rule, the military judge must determine, with the aid of counsel, when the motive to fabricate occurred, @.g., at trial or before trial; whether the statement sought to be ad- mitted rebuts the recent fabrication, improper influence or motive; and whether the prior statement is relevant. See United States v. Montague, 958 F.2d 1094, 1098 (D.C.Cir. 1992).° Even if these prerequisites are satisfied, the judge should apply the balancing test under Mil.R.Evid. 403. /d. Here the defense objected only to a redacted version of One statement going to the members iristead of the com- plete statement. Had the defense objected to the state- ments in their entirety, the prosecution would have been asked to prove whether the motive to fabricate occurred at [here is a split in the circuits, see United States v. Montague, 958 F.2d 1094, 1099 (D.C.Cir.1992), and the differences in individual cases can be reconciled by collapsing the authorities into one principle that would be consistent with the goals of the Federal Rules of Evidence and common law precedents. Any Statement, even one made after a motive to falsify has arisen, may be used under Rule 861(d)(1)(B) if it tends to disprove a sug gestion that a witness is not telling the truth, S. Saltzburg and M. Martin, 2 Federal Rules of Evidence Manual 144 (Sth ed. 1990) Y4da trial or at the time the witnesses were hopeful of seeking le- niency trom agents of the Air Force Office of Special In- vestigations (OSI). It appears trom the opening statements and throughout the record of trial that the defense strategy was to portray the undercover informants as untruthful witnesses who were Skimming drugs trom their buys and stealing some of the controlled money. Indeed, the defense was also inter- ested in the members’ receiving the pretrial statements because many of those statements were inconsistent with the witnesses’ testimony. That defense strategy was to por- tray each of the tive informants as anxious to please the OSI in return for leniency. The defense argued that the names they gave to the OSI were based upon the personnel roster, but were not sufficient alone to the investigators. [he agents wanted more intormation including the prover- bial who, what, when, where, why, and how. Each of the informants was strongly encouraged to cooperate and describe the alleged incidents more tully. The defense argued that the witnesses thought this cooperation meant pleasing the agents by fabricating what they saw. The defense further argued that this attitude to please resulted in innumerable inconsistencies in the informants’ state ments which are irreconcilable with their testimony given at trial. Thus the defense did not object when the Govern- ment introduced the prior consistent statements of the in- formants. This tailure to object constitutes waiver of any error in the absence of plain error. United States v. Olano, U.S. , 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Fisher, 21 MJ 327 (CMA 1986). In reviewing for plain error we can draw parallels be- tween Fed. R.Crim.P. §2(b)* and similar provisions in the Fed.R.Crim.P. 52(b) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” YSa Uniform Code of Military Justice and the Military Rules of Evidence. Mil.R.Evid. 103(d) provides: “Nothing in this rule precludes taking notice of plain errors that materially prejudice substantial rights although they were not brought to the attention of the military judge.” Article $9(a), UCMJ, 10 USC § 859(a), provides: “A finding o1 sentence of a 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.” In analyzing Fed.R.Crim.P. 52(b) the Supreme Court in United States v. Olano, U.S , 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), asserted a conviction should not be overturned unless three factors are satisfied: First, there must be an “error.” /d. U.S. at , StS SAL a Second, the error must “be ‘plain.’ ‘Plain’ is synonymous with ‘clear’ or, equivalently, ‘obvious.’ ” /d. U.S. at —.. 113 S.Ct. at 1777. And, third, the error must “atfec{t] substantial rights.” /d. U.S. al , 493 SAA. at 1777-78. Even when these factors are satisfied, Fed.R.Crim.P. 52(b) is “permissive, not mandatory. If the fortetted errot is ‘plain’ and ‘affec[ts] substantial rights,’ the Court of Ap peals has authority to order correct, but is not required to do so.” Id. U.S. at __, 113 S.Ct. at 1778. The Court has previously “explained that the discretion” unde Fed.R.Crim.P. 52(b) “should be employed ‘in those cir- cumstances in which a miscarriage of justice would other- wise result.” ” /d. U.S. at __, 113 S.Ct. at 1779, quoting United States v. Frady, 456 U.S. 152, 163 n.14, 102 S.Ct. 1584, 1592 n.14, 71 L.Ed.2d 816 (1982). “The Court of Appeals should no doubt correct a plain forfeited erroi that causes the conviction or sentencing of an actually in- nocent defendant, but we have never held that a Rule 52(b) remedy is on/y warranted in cases of actual innocence.” U.S. at _, 113 S.Ct. at 1779. Y6a \ssuming arguendo that the military judge erred by ad mutting the prior consistent statements of the informants, the error did not constitute plain error. Admission of the tatements was clearly part of the defense strategy, and it did not affect a substantial right of appellant. The power ure of the evidence from the witnesses was demon rated by the summary chart used before the members.’ See Appendix. Thus we conclude that introduction of the rnment informants’ prior consistent statements did t amount to plain erro (huracter Evidence for Truthtulness ssue Il also revolves around the testimony of the tive ndercover sources. To rehabilitate their credibility on ré examination, the Government called OSI Special \gent Wayne Keller. He testified, based on his contacts ith five of the undercover sources, that he was of the pinion that they were reliable, credible and trustworthy. He also indicated that they were among the “very best sources” that he had worked with in over 10 years. The detense argues that this testimony is prohibited. See, e.g. United States v. Harrison, 31 MJ 330 (CMA 1990). Vil. R. Evid. 608(a) provides that a witness may testify as to the reputation or opinion of an individual for truth fulness when the witness’ character “for truthfulness has been attacked by opinion or reputation evidence or other [he detense argues that there are two limitations on Nii RoEvid. 608(a). First. the character of the witness for 97a truthfulness must have been “attacked by opinion or repu tation evidence or otherwise.” /d. Second, the evidence sought to be admitted is limited to character evidence fo: “truthfulness or untruthfulness.” /d. There is a third limitation. Opinion-or-reputation-type evidence may only be introduced when a proper founda- tion has been laid. The proponent must show that the character witness who will testify as to the witness’ reputa tion resides or works in the same community as the witness and has lived or worked in the community long enough to have become familiar with the witness’ reputation in the community. Cf. Michelson v. United States, 335 U.S. 469. 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Tom chek, 4 MJ 66, 77 (CMA 1977) (Cook, J.. dissenting). The term “community in which he lives” is not subject to an ex act geographical location, but means an area where a per- son is well Known and has established the reputation. See also United States v. Crawell, 6 MJ 944 (ACMR). pet. denied, 7 MJ 249 (1979). To lay a proper foundation fo1 opinion evidence, the proponent must show that the char- acter witness personally knows the witness and is acquaint ed with the witness well enough to have had an oppor- tunity to form an opinion of the witness’ character for truthfulness. In United States v. Perner, 14 MJ 181. 184-85 (CMA 1982), this Court held that an enlisted DSY- chiatric technician who “had seen” the accused’s “wife pro- fessionally” on three occasions did not enjoy a sufficiently close relationship to express an opinion as to truthfulness. The defense concedes, Final Brief at 16, that the first limitation has been satisfied, recognizing that this Court has indicated that when there is a “slashing cross-examina- tion,” the term “or otherwise” has been met. United States v. Everage, 19 MJ 189, 192 (CMA 1985). Cf. Uviller, Credence, Character, and the Rules of Evidence: Seeing through the Liar’s Tale, 42 Duke L.J. 776, 795 n. 36 (1993) YSa (“But rather than intensity, the key factor is the implica- tion of bad character in the substance of the cross- examination.”). Also, rehabilitation has been permitted when the cross-examination was done in such a manner as to induce the belief of untruthfulness. United States vy. i/lard, 19 MJ 346 (CMA 1985). We need not decide whether there was a slashing cross- eXamination or an examination conducted to induce a belief of untruthfulness because the defense failed to ob- ject. The testimony that the informants were the “very best sources” appears to violate the rules because it does not in- volve traditional veracity evidence. Moreover, the prose- cutor did not seek to lay a proper foundation for reputa- tion or opinion evidence as to the witnesses’ truthfulness. Had an objection been made to the lack of a proper foun- dation or to the testimony that they were the “very best sources” the judge could have taken curative measures. However, the defense did not object and thereby waived the error absent a tinding of plain error. Mil.R.Evid. 103(d). Here the “best source” statement “did not affect a substantial right” of appellant. United States v. Olano, U.S. at . 113 S.Ct. at 1777. The military judge in- structed the members that it was for them “to determine the credibility of the witnesses; that is their worthiness of belief.” This includes an examination of the witness’ char- acter for honesty. Appropriately, the instruction did not reference the “best source,” because such testimony does not relate to a character trait for truthfulness and could not have affected a substantial right of appellant. Sentencing Argument During the prosecutor’s sentencing argument, he rhetorically asked, Do you see “[a]nywhere [in appellant’s 99a unsworn statement] that he acknowledges your finding of guilty? No.” Despite the lack of any objection to this com- ment, appellate defense counsel now argues that this is an improper argument because it penalizes appellant for not admitting his guilt. [he military defendant has three options during sen tencing. The defendant may testify under oath. make an unsSWworn statement, Or not give any statement at all. RCM lOOT(e)(2)(A), Manual, supra. The defendant also has the right to have live witnesses testify during pre-sentence pro cedures. RCM L001 (e). After evidence is presented by the prosecution and the defense, both the prosecutor and the defense counsel have a chance to argue before the factfinder. RCM LOO1(a)(1) (D) and (E). It is axiomatic that the prosecution may not comment on the defendant’s right to remain silent Griffin v. California, 380 U.S. 609. 85 S.Ct. 1229, 14 L..Ed.2d 106 (1965); mischaracterize the evidence — United States v. Carroll, 678 F.2d 1208 (4th Cir.1982): or refer to the bias and prejudices of the court members — see. C.2., United States v. Begley, 38 CMR 488. 495 (ABR 1967). While the prosecutor “may strike hard blows. . . . they must be fair” blows. United States vy. Doctor, 7 USCMA 126, 133, 21 CMR 252, 259 (1956). It is proper for the prosecutor tO cOMment On appellant’s refusal to admit guilt after the “accused has either testified or has made an unsworn statement and has either expressed no remorse o1 his expressions of remorse can be arguably construed as being shallow, artificial, or contrived.” United States vy. Edwards, 35 MJ 351, 355 (CMA 1992). In Edwards we did not find error based on a second comment by the prose- cutor: “When you consider . . . his lack of remorse. As Judge Cox said, “It is the duty of this advocate [defense counsel] to ferret out improper argument, object thereto, and seek corrective action in the nature of instructions 1O0a for a mistrial if the argument is so outlandish that it ts in capable of being cured.” /d. at 354. During his unsworn statement, appellant expressed no remorse. When viewed in context and not in isolation, assuming any error, there was no plain error which precludes waiver from the failure to object. See United States v. Causey, 37 MJ 308 (CMA 1993). Phe decision of the United States Air Force Court ol Nlilitarvy Review is afttirmed. Judges Cox and GIFRKE concur. Wiss, Judge (concurring in part and in the result): | concur in the majority opinion except tor its reliance on the plain-error test announced by the Supreme Court of the United States in United States v. Olano, SD 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This Court's plain-error standard set out in United States v. Fisher, 21 NIJ) 327, 328 (CMA 1986), substantively parallels the Oluno tormulation except in one respect: Even if all three prongs of the standard are met, Olano does not require, but only permits, remedial action by the appellate court | know of no case in our precedent in which this Court has found that an error was obvious, substantial, and hand an unfair prejudicial impact on the accused and, yet, did not afford the accused a remedy. See Art. 59(a), Uniform Code of Military Justice, 10 USC § 859(a). Inas much as the question whether our steadfast precedent that is reflected in Fisher can (see Art. 59(a)) and should give way to the Olano articulation is not squarely presented and developed by the parties for decision, I decline to make that step. Applying the Fisher test, though, I agree with the majority’s conclusion of no plain error in this Lasc. lOla SULLIVAN, Chief Judge (concurring in the result): Since | concur only in the result reached in the majority opinion, | must write separately to briefly address three issues. First, to the extent that Part I of the opinion sug vests that prior consistent Statements made after the al leged motive to fabricate are admissible under Mil.R.Evid 8O1(d)(1)(B), Manual for Courts-Martial, United States, 1984, 37 MJ at 315-316 n.2, In interpret this to be incon sistent with current military law. See United States v. Me Caskey, 30 MJ 188, 192-93 (CMA 1990). A prior consis tent statement may be admitted under Mil.R.Evid. 8O1(d) (1)(B) only if made prior to when the alleged motive to fabricate arose. /¢. Second, the failure of defense counsel to object when the Government introduced the prior consistent state ments of the informants constitutes “forfeiture” of the et ror, not “waiver,” 37 MJ at 316. See United States vy. Olano, U.S »>—» 113 S.Ct. 1770, 1777, 123 L.Ed.2d SOS (1993) (“Waiver is different from forfeiture. Whereas torteiture 1s the tailure to make t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0432%3A1. Public record. Not legal advice.