UNITED STATES v. JOHNSON (2023)

ORDER

On 5 December 2023, Appellant filed a Motion for En Banc Reconsideration of the Court's decision dated 7 November 2023. As a “basis” for reconsideration en banc, Appellant states,

[t]he panel's opinion misapprehended the law in two respects. First, it incorrectly applied the standard of review to the convening authority's decision to exclude delay from the Rule for Courts-Martial (R.C.M.) 707 speedy trial clock. Second, the Panel's opinion misapprehended what the law regards as relevant evidence.1

Rule 31 of this Court's rules governs reconsideration generally. Rule 31.2 provides the general standard for panel reconsideration, as follows:

A motion for reconsideration must state with particularity the points of law or fact which the moving party believes the Court has overlooked or misapprehended. A motion for reconsideration must contain substantially more than a restatement of arguments previously presented.2

But this Court's Rule governing en banc proceedings requires an additional showing and places a heavier burden on the movant. Rule 27(a) provides that,

En banc consideration or reconsideration is not favored and ordinarily will not be ordered unless: (1) necessary to secure or maintain uniformity of the Court's decisions; (2) the opinion overrules a binding precedent of the Court; (3) the proceeding involves a question of exceptional importance; or (4) a sentence being reviewed pursuant to Article 66, UCMJ, extends to death.3

Appellant's motion follows the general format of Appendix E of this Court's Rules. Confusingly, Appendix E, referenced in Rule 31.2(b) “Motion for En Banc Reconsideration of a Panel Decision” erroneously omits any mention of, or reference to, the standards governing en banc proceedings in Rule 27.⁴ We therefore issue this Order to clarify that at least one enumerated factor under Rule 27(a) must be met for the Court to grant en banc reconsideration of a panel decision.

Motions for en banc reconsideration before this Court are not rare. But Rule 27 could not be clearer in this respect: en banc reconsideration is not favored. Moreover, regarding reconsideration in general under Rule 31, this is a case where the purported misapprehension of the law is nothing more than Appellant's disagreement with the Court's rejection of Appellant's previously articulated legal position. Accordingly, Appellant's motion fails under both Rules: first, Appellant does not (and likely cannot) explain how en banc reconsideration is warranted under any of the four factors in Rule 27(a), supra; second, Appellant's arguments do not contain substantially more than a restatement of arguments previously presented to this Court, in violation of Rule 31.2. Therefore, the Court denies Appellant's Motion.

Having considered the Motion and Appellee's Opposition, the Record of Trial, and the Rules of this Court, accordingly, it is, by the Court, this 17th day of January 2024,

ORDERED:

1. That Appellant's Motion for En Banc Reconsideration is DENIED.

FOOTNOTES

1.   Appellant's Motion at 1-2.

2.   N-M. Ct. Crim. App. R. 31.2.

3.   N-M. Ct. Crim. App. R. 27(a).

4.   The Court will correct this omission in its next issuance of the Court's Rules.