United States v. Gussman

CCA 38048. On consideration of the petition for grant of review of the decision of the United States Air Force Court of Criminal Appeals, and Appellant’s motion for leave to file a supplemental issue, and motion to withdraw the petition for grant of review without prejudice, it is ordered that said motion to file a supplemental issue is hereby granted, that said [46] motion to withdraw the petition for grant of review is hereby denied as moot, and that said petition is hereby granted on the following issue: WHETHER THE AIR FORCE COURT’S DECISION MUST BE SET ASIDE BECAUSE ONE OF THE JUDGES WHO PARTICIPATED IN THE DECISION OF APPELLANT’S CASE WAS UNCONSTITUTIONALLY APPOINTED. In light of Ryder v. United States, 515 U.S. 177 (1995) and United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993), vacated, 515 U.S. 1138 (1995), the decision of the United States Air Force Court of Criminal Appeals is set aside. The record of trial is returned to the Judge Advocate General of the Air Force for further review under Article 66, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 866 (2006), by a properly appointed Court of Criminal Appeals. Thereafter, Article 67(a), UCMJ, 10 U.S.C. § 867(a) (2006) will apply.