United States v. Rice

This 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, 11 2, cl. 2, and the decision of the United States Supreme Court in Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991). This Court has resolved this 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 further note the prevalence of this issue in previously granted cases and the possibility for further review by the United States Supreme Court. If certiorari is granted by the Supreme Court and some relief is afforded in those cases, this Court will accept out-of-time requests for appropriate relief in cases where the above denial orders have been issued.

The decision of the United States Navy-Marine Corps Court of Military Review is affirmed.