PART 150—COURTS OF CRIMINAL APPEALS RULES OF PRACTICE AND PROCEDURE Authority: Article 66(f), Uniform Code of Military Justice (10 U.S.C. § 866(f) (1994)). Source: 62 FR 2017, Jan. 15, 1997, unless otherwise noted. § 150.1 Name and seal. (a) The titles of the Courts of Criminal Appeals of the respective services are: (1) “United States Army Court of Criminal Appeals.” (2) “United States Navy-Marine Corps Court of Criminal Appeals.” (3) “United States Air Force Court of Criminal Appeals.” (4) “United States Coast Guard Court of Criminal Appeals.” (b) Each Court is authorized a seal in the discretion of the Judge Advocate General concerned. The design of such seal shall include the title of the Court. § 150.2 Jurisdiction. (a) The jurisdiction of the Court is as follows: (1) Review under Article 66. (i) Death; or (ii) Dismissal of a commissioned officer, cadet or midshipman, dishonorable or bad-conduct discharge, or confinement for 1 year or longer; and in which the accused has not waived or withdrawn appellate review. (2) Review upon direction of the Judge Advocate General under Article 69. (i) For which Article 66 does not otherwise provide appellate review, and (ii) Which the Judge Advocate General forwards to the Court for review pursuant to Article 69(d), and (iii) In which the accused has not waived or withdrawn appellate review. (3) Review under Article 62. (4) Review under Article 73. (b) Extraordinary writs. (c) Effect of rules on jurisdiction. § 150.3 Scope of review. In cases referred to it for review pursuant to Article 66, the Court may act only with respect to the findings and sentence as approved by the convening authority. In reviewing a case or action under Article 69(d) or in determining an appeal under Article 62, the Court may act only with respect to matters of law. The Court may, in addition, review such other matters and take such other action as it determines to be proper under substantive law.e § 150.4 Quorum. (a) In panel. (b) En banc. § 150.5 Place for filing papers. When the filing of a notice of appearance, brief, or other paper in the office of a Judge Advocate General is required by this part, such papers shall be filed in the office of the Judge Advocate General of the appropriate armed force or in such other place as the Judge Advocate General or rule promulgated pursuant to § 150.26 may designate. If transmitted by mail or other means, they are not filed until received in such office. § 150.6 Signing of papers. All formal papers shall be signed and shall show, typewritten or printed, the signer's name, address, military grade (if any), and the capacity in which the paper is signed. Such signature constitutes a certification that the statements made therein are true and correct to the best of the knowledge, information, and belief of the persons signing the paper and that the paper is filed in good faith and not for purposes of unnecessary delay. § 150.7 Computation of time. In computing any period of time prescribed or allowed by this part, by order of the Court, or by any applicable statute, the day of the act, event or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, or, when the act to be done is the filing of a paper in court, a day on which the office of the Clerk of the Court is closed due to weather or other conditions or by order of the Chief Judge, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor a holiday. § 150.8 Qualification of counsel. (a) All counsel. (b) Military counsel. (c) Admission. (d) Suspension. § 150.9 Conduct of counsel. The conduct of counsel appearing before the Court shall be in accordance with rules of conduct prescribed pursuant to Rule for Courts-Martial 109 by the Judge Advocate General of the service concerned. However, the Court may exercise its inherent power to regulate counsel appearing before it, including the power to remove counsel from a particular case for misconduct in relation to that case. Conduct deemed by the Court to warrant consideration of suspension from practice or other professional discipline shall be reported by the Court to the Judge Advocate General concerned. § 150.10 Request for appellate defense counsel. An accused may be represented before the Court by appellate counsel detailed pursuant to Article 70(a) or by civilian counsel provided by the accused, or both. An accused who does not waive appellate review pursuant to Rule for Courts-Martial 1110 shall, within 10 days after service of a copy of the convening authority's action under Rule for Courts-Martial 1107(h), forward to the convening authority or the Judge Advocate General: (a) A request for representation by military appellate defense counsel, or (b) Notice that civilian counsel has been retained or that action has been taken to retain civilian counsel (must include name and address of civilian counsel), or (c) Both a request for representation by military appellate defense counsel under paragraph (a) for this section and notice regarding civilian counsel under paragraph (b) of this section, or (d) A waiver of representation by counsel. § 150.11 Assignment of counsel. (a) When a record of trial is referred to the court— (1) If the accused has requested representation by appellate defense counsel, pursuant to Article 70(c)(1), counsel detailed pursuant to Article 70(a) will be assigned to represented the accused; or (2) If the accused gives notice that he or she has retained or has taken action to retain civilian counsel, appellate defense counsel shall be assigned to represent the interests of the accused pending appearance of civilian counsel. Assigned defense counsel will continue to assist after appearance by civilian counsel unless excused by the accused; or (3) If the accused has neither requested appellate counsel nor given notice of action to retain civilian counsel, but has not waived representation by counsel, appellate defense counsel will be assigned to represent the accused, subject to excusal by the accused or by direction of the Court. (b) In any case— (1) The Court may request counsel when counsel have not been assigned. (2) Pursuant to Article 70(c)(2), and subject to paragraph (a)(2) of this section, appellate defense counsel will represent the accused when the United States is represented by counsel before the Court. § 150.12 Retention of civilian counsel. When civilian counsel represents an accused before the Court, the Court will notify counsel when the record of trial is received. If both civilian and assigned appellate defense counsel represent the accused, the Court will regard civilian counsel as primary counsel unless notified otherwise. Ordinarily, civilian counsel will use the accused's copy of the record. Civilian counsel may reproduce, at no expense to the government, appellate defense counsel's copy of the record. § 150.13 Notice of appearance of counsel. Military and civilian appellate counsel shall file a written notice of appearance with the Court. The filing of any pleading relative to a case which contains the signature of counsel constitutes notice of appearance of such counsel. § 150.14 Waiver or withdrawal of appellate review. Withdrawals from appellate review, and waivers of appellate review filed after expiration of the period prescribed by the Rule for Courts-Martial 1110(f)(1), will be referred to the Court for consideration. At its discretion, the Court may require the filing of a motion for withdrawal, issue a show cause order, or grant the withdrawal without further action, as may be appropriate. The Court will return the record of trial, in a case withdrawn from appellate review, to the Judge Advocate General for action pursuant to Rule for Courts-Martial 1112. § 150.15 Assignments of error and briefs. (a) General provisions. (b) Time for filing and number of briefs. (c) Appendix. infra, § 150.16 Oral arguments. Oral arguments may be heard in the discretion of the Court upon motion by either party or when otherwise ordered by the Court. The motion of a party for oral argument shall be made no later than 7 days after the filing of an answer to an appellant's brief. Such motion shall identify the issue(s) upon which counsel seek argument. The Court may, on its own motion, identify the issue(s) upon which it wishes argument. § 150.17 En banc proceedings. (a)(1) A party may suggest the appropriateness of consideration or reconsideration by the Court as a whole. Such consideration or reconsideration ordinarily will not be ordered except: (i) When consideration by the full Court is necessary to secure or maintain uniformity of decision, or (ii) When the proceedings involve a question of exceptional importance, or (iii) When a sentence being reviewed pursuant to Article 66 extends to death. (2) In cases being reviewed pursuant to Article 66, a party's suggestion that a matter be considered initially by the Court as a whole must be filed with the Court within 7 days after the government files its answer to the assignment of errors, or the appellant files a reply under § 150.15(b). In other proceedings, the suggestion must be filed with the party's initial petition or other initial pleading, or within 7 days after the response thereto is filed. A suggestion for reconsideration by the Court as a whole must be made within the time prescribed by § 150.19 for filing a motion for reconsideration. No response to a suggestion for consideration or reconsideration by the Court as a whole may be filed unless the Court shall so order. (b) The suggestion of a party for consideration or reconsideration by the Court as a whole shall be transmitted to each judge of the Court who is present for duty, but a vote need not be taken to determine whether the cause shall be considered or reconsidered by the Court as a whole on such a suggestion made by a party unless a judge requests a vote. (c) A majority of the judges present for duty may order that any appeal or other proceeding be considered or reconsidered by the Court sitting as a whole. However, en banc reconsideration of an en banc decision will not be held unless at least one member of the original majority concurs in a vote for reconsideration. (d) This rule does not affect the power of the Court sua sponte § 150.18 Orders and decisions of the Court. The Court shall give notice of its orders and decisions by immediately serving them, when rendered, on appellate defense counsel, including civilian counsel, if any, government counsel and the Judge Advocate General, or designee, as appropriate. § 150.19 Reconsideration. (a) The Court may, in its discretion and on its own motion, enter an order announcing its intent to reconsider its decision or order in any case not later than 30 days after service of such decision or order on appellate defense counsel or on the appellant, if the appellant is not represented by counsel, provided a petition for grant of review or certificate for review has not been filed with the United States Court of Appeals for the Armed Forces, or a record of trial for review under Article 67(b) has not been received by that Court. No briefs or arguments shall be received unless the order so directs. (b) Provided a petition for grant of review or certificate for review has not been filed with the United States Court of Appeals for the Armed Forces, or a record of trial for review under Article 67(b) or writ appeal has not been received by the United States Court of Appeals for the Armed Forces, the Court may, in its discretion, reconsider its decision or order in any case upon motion filed either: (1) By appellate defense counsel within 30 days after receipt by counsel, or by the appellant if the appellant is not represented by counsel, of a decision or order, or (2) By appellate government counsel within 30 days after the decision or order is received by counsel. (c) A motion for reconsideration shall briefly and directly state the grounds for reconsideration, including a statement of facts showing jurisdiction in the Court. A reply to the motion for reconsideration will be received by the Court only if filed within 7 days of receipt of a copy of the motion. Oral arguments shall not be heard on a motion for reconsideration unless ordered by the Court. The original of the motion filed with the Court shall indicate the date of receipt of a copy of the same by opposing counsel. (d) The time limitations prescribed by this part shall not be extended under the authority of §§ 150.24 or 150.25 beyond the expiration of the time for filing a petition for review or writ appeal with the United States Court of Appeals for the Armed Forces, except that the time for filing briefs by either party may be extended for good cause. § 150.20 Petitions for extraordinary relief, answer, and reply. (a) Petition for extraordinary relief. (1) A previous history of the case including whether prior actions have been filed or are pending for the same relief in this or any other court and the disposition or status of such actions; (2) A concise and objective statement of all facts relevant to the issue presented and of any pertinent opinion, order or ruling; (3) A copy of any pertinent parts of the record and all exhibits related to the petition if reasonably available and transmittable at or near the time the petition is filed; (4) A statement of the issue; (5) The specific relief sought; (6) Reasons for granting the writ; (7) The jurisdictional basis for relief sought and the reasons why the relief sought cannot be obtained during the ordinary course of appellate review; (8) If desired, a request for appointment of appellate counsel. (b) Format. (c) Electronic petitions. (d) Notice to the Judge Advocate General. (e) Briefs. (f) Initial action by the Court. (g) Oral argument and final action. § 150.21 Appeals by the United States. (a) Restricted filing. (b) Counsel. (c) Form of appeal. (d) Time for filing. (1) The representative of the government designated by the Judge Advocate General shall decide whether to file the appeal with the Court. The trial counsel shall have 20 days from the date written notice to appeal is filed with the trial court to forward the appeal, including an original and two copies of the record of trial, to the representative of the government designated by the Judge Advocate General. The person designated by the Judge Advocate General shall promptly file the original record with the Clerk of the Court and forward one copy to opposing counsel. Appellate government counsel shall have 20 days (or more upon a showing of good cause made by motion for enlargement within the 20 days) from the date the record is filed with the Court to file the appeal with supporting brief with the Court. Should the government decide to withdraw the appeal after the record is received by the Court, appellate government counsel shall notify the Court in writing. Appellate brief(s) shall be prepared in the manner prescribed by § 150.15. (2) Appellee shall prepare an answer in the manner prescribed by § 150.15 and shall file such answer within 20 days after any filing of the government brief. (e) The government shall diligently prosecute all appeals by the United States and the Court will give such appeals priority over all other proceedings where practicable. § 150.22 Petitions for new trial. (a) Whether submitted to the Judge Advocate General by the accused in propria persona or by counsel for the accused, a petition for new trial submitted while the accused's case is undergoing review by a Court of Criminal Appeals shall be filed with an original and two copies and shall comply with the requirements of Rule for Courts-Martial 1210(c). (b) Upon receipt of a petition for new trial submitted by other than appellate defense counsel, the Court will notify all counsel of record of such fact. (c) A brief in support of a petition for new trial, unless expressly incorporated in or filed with the petition, will be filed substantially in the format specified by § 150.15 no later than 30 days after the filing of the petition or receipt of the notice required by paragraph (b) of this section, whichever is later. An appellate's answer shall be filed no later than 30 days after the filing of an appellant's brief. A reply may be filed no later than 10 days after the filing of the appellee's answer. § 150.23 Motions. (a) Content. (b) Motions to attach documents. (c) Opposition. (d) Leave to file. (e) Oral argument. § 150.24 Continuances and interlocutory matters. Except as otherwise provided in § 150.19(d), the Court, in its discretion, may extend any time limits prescribed and may dispose of any interlocutory or other appropriate matter not specifically covered by this part, in such manner as may appear to be required for a full, fair, and expeditious consideration of the case. See § 150.4. § 150.25 Suspension of rules. For good cause shown, the Court acting as a whole or in panel may suspend the requirements or provisions of any of this part in a particular case on petition of a party or on its own motion and may order proceedings in accordance with its direction. § 150.26 Internal rules. The Chief Judge of the Court has the authority to prescribe internal rules for the Court. § 150.27 Recording, photographing, broadcasting, or telecasting of hearings. The recording, photographing, broadcasting, or televising of any session of the Court or other activity relating thereto is prohibited unless specifically authorized by the Court. § 150.28 Amendments. Proposed amendments to this part may be submitted to the Chief Judge of any Court named in § 150.1 or to a Judge Advocate General. Before acting on any proposed amendments not received from the Chief Judges, the Judge Advocates General shall refer them to the Chief Judges of the Courts for comment. The Chief Judges shall confer on any proposed changes, and shall report to the Judge Advocates General as to the suitability of proposed changes and their impact on the operation of the Courts and on appellate justice. Appendix A to Part 150—Format for Direction for Review in a Court of Criminal Appeals In the United States ____________ 1 United States v. (Full 1 Direction for Review Case No. ________ Tried at (location), on (date(s)) before a (type in court-martial) appointed by (convening authority) To the Honorable, the Judges of the United States ____________ Court of Criminal Appeals 1. Pursuant to Article 69 of the Uniform Code of Military Justice, 10 U.S.C. § 869 (1994) and the Rules of Practice and Procedure for Courts of Criminal Appeals, Rule 2(b), the record of trial in the above-entitled case is forwarded for review. 2. The accused was found guilty by a (type of court-martial) of a violation of Article(s) ________ of the Uniform Code of Military Justice, and was sentenced to (include entire adjudged sentence) on (insert trial date). The convening authority (approved the sentence as adjudged) (approved the following findings and sentence: ____________). The officer exercising general court-martial jurisdiction (where applicable) took the following action: ____________. The case was received for review pursuant to Article 69 on (date). 3. In review, pursuant to Uniform Code of Military Justice, Article 66, it is requested that action be taken with respect to the following issues: [set out issues here] The Judge Advocate General Received a copy of the foregoing Direction for Review this ____________ (date). Appellate Government Counsel Address and telephone number Appellate Defense Counsel Address and telephone number Appendix B to Part 150—Format for Assignment of Errors and Brief on Behalf of Accused (§ 150.15) In the United States ____________ 2 United States v. (Full 2 Assignment of Errors and Brief on Behalf of Accused Case No. ________ Tried at (location), on (date(s)) before a (type of court-martial) appointed by (convening authority) To the Honorable, the Judges of the United States ____________ Court of Criminal Appeals Statement of the Case [Set forth a concise summary of the chronology of the case, including the general nature of the charges, the pleas of the accused, the findings and sentence at trial, the action by the convening authority, and any other pertinent information regarding the proceedings.] Statement of Facts [Set forth those facts necessary to a disposition of the assigned errors, including specific page references and exhibit numbers. Answers may adopt appellant's or petitioner's statement of facts if there is no dispute, may state additional facts, or, if there is a dispute, may restate the facts as they appear from appellee's or respondent's viewpoint. The repetition of uncontroverted matters is not desired.] Errors and Argument [Set forth each error alleged in upper case letters, followed by separate arguments for each error. Arguments shall discuss briefly the question presented, citing and quoting such authorities as are deemed pertinent. Each argument shall include a statement of the applicable standard of review, and shall be followed by a specific prayer for the relief requested.] Appendix [The brief of either party may include an appendix containing copies of unpublished opinions cited in the brief, and extracts of statutes, rules or regulations pertinent to the assigned errors.] (Signature of counsel) Name (and rank) of counsel, address and telephone number Certificate of Filing and Service I certify that a copy of the foregoing was mailed or delivered to the Court and opposing counsel on (date). Name (rank) (and signature) Address and telephone number ____________________ (Date)