United States v. Dalmazzi
76 M.J. 1
C.A.A.F.2016Background
- Appellant, 2nd Lt. Nicole A. Dalmazzi, pleaded guilty and was convicted by a military judge of wrongful use of ecstasy; convening authority approved dismissal and one month confinement; the Air Force CCA affirmed.
- Colonel Martin T. Mitchell, an appellate military judge on the Air Force CCA, was later assigned and nominated to serve as a judge on the U.S. Court of Military Commission Review (USCMCR).
- Mitchell took the oath as a USCMCR appellate judge on May 2, 2016; the CCA opinion in Dalmazzi issued May 12, 2016; the President signed Mitchell’s commission on May 25, 2016.
- Dalmazzi moved to vacate the CCA decision because Mitchell’s participation allegedly conflicted with 10 U.S.C. § 973(b)(2)(A)(ii) and violated the Appointments Clause; the CCA dismissed the motion for lack of jurisdiction after Dalmazzi sought review in CAAF.
- The central dispute: whether an officer may simultaneously serve on a service court of criminal appeals and as a USCMCR judge, and whether such dual service without Presidential appointment violated the Appointments Clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statutory law (10 U.S.C. § 973) barred Mitchell from sitting on the CCA while a USCMCR judge | Mitchell’s USCMCR status barred him from CCA under § 973(b)(2)(A)(ii) | Mitchell had not been validly appointed to USCMCR at time of CCA decision, so § 973 did not bar his participation | Moot: Mitchell was not appointed to USCMCR when CCA judgment issued, so statutory bar did not apply |
| Whether Mitchell’s dual service violated the Appointments Clause | Mitchell’s participation as a USCMCR judge without Presidential appointment violated the Appointments Clause | The Appointments Clause requires nomination, Senate consent, and Presidential appointment; Mitchell’s commission date controls appointment | Moot: Mitchell’s presidential appointment occurred after the CCA judgment, so Appointments Clause issue not reached |
Key Cases Cited
- Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (commission is conclusive evidence of appointment; President’s signing creates the appointment)
- Dysart v. United States, 369 F.3d 1303 (Fed. Cir. 2004) (appointment is not finalized until the appointing act—e.g., commission—occurs)
- In re Al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015) (raised Appointments Clause concerns about assigning military appellate judges to the USCMCR)