United States v. Daly

                        UNITED STATES, Appellant

                                         v.

          Andrew L. DALY, Boatswain’s Mate First Class
                   U.S. Coast Guard, Appellee

                                  No. 10-6010
                        Crim. App. No. 001-62-10

       United States Court of Appeals for the Armed Forces

                         Argued February 7, 2011

                          Decided March 28, 2011

                                   PER CURIAM

                                     Counsel


For Appellant: Lieutenant Herbert Claiborne Pell (argued);
Captain Stephen P. McCleary and Lieutenant Commander Douglas K.
Daniels (on brief).


For Appellee:   Lieutenant Eric J. Lobsinger (argued).


Military Judge:    Richard E. Batson


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Daly, No. 10-6010/CG


     PER CURIAM:

     Appellee was originally charged with engaging in romantic

relationships with four subordinates contrary to a Coast Guard

regulation, in violation of Article 134, Uniform Code of

Military Justice (UCMJ), 10 U.S.C. § 934 (2006).   Before trial,

the four specifications were amended by deleting references to

the regulation.    On motion by the defense, the military judge

dismissed the charge and specifications on March 5, 2010,

concluding that Appellee did not have “due process ‘fair notice’

that [his] conduct was . . . subject to criminal sanction”

because the relevant Coast Guard regulation -- viz., the Coast

Guard Personnel Manual (COMDTINST M1000.6A) -- “[is] clear that

such conduct subjects a member to administrative -- but not

criminal -- resolution.”

     Twelve days later, on March 17, 2010, the Government moved

for reconsideration.   The military judge denied the request on

March 26, 2010, and the Government filed its notice of appeal,

pursuant to Article 62, UCMJ, 10 U.S.C. § 862 (2006), on March

29, 2010.   The United States Coast Guard Court of Criminal

Appeals (CCA) denied the Government’s appeal on the merits.

United States v. Daly, 69 M.J. 549, 553 (C.G. Ct. Crim. App.

2010).   Pursuant to Article 67(a)(2), UCMJ, 10 U.S.C. §

867(a)(2) (2006), the Acting Judge Advocate General of the Coast

Guard certified three issues to this Court.


                                  2
United States v. Daly, No. 10-6010/CG


     Before this Court, for the first time, Appellee asserted

that this Court was without jurisdiction to hear the appeal

because Appellant failed to file notice of the Article 62 appeal

within seventy-two hours of the original decision of the

military judge.    On November 18, 2010, this Court ordered the

Government to show cause why the “appeal should not be dismissed

for lack of jurisdiction as untimely filed in view of the date

trial counsel provided written notice of appeal.”

     Jurisdiction is a question of law that we review de novo.

United States v. Davis, 63 M.J. 171, 173 (C.A.A.F. 2006).      A

question of jurisdiction is not subject to waiver and may be

raised at any time.   Rule for Courts-Martial 905(e); United

States v. Long, 5 C.M.A. 572, 574, 18 C.M.R. 196, 198 (1955).

“Federal courts are courts of limited jurisdiction.   They

possess only that power authorized by Constitution and

statute . . . .”    Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994).

     The United States may appeal “[a]n order or ruling of the

military judge which terminates the proceedings with respect to

a charge or specification.”   Article 62(a)(1)(A), UCMJ.   “An

appeal of an order or ruling may not be taken unless the trial

counsel provides the military judge with written notice of

appeal from the order or ruling within 72 hours of the order or

ruling.”   Article 62(a)(2), UCMJ.


                                  3
United States v. Daly, No. 10-6010/CG


     The Government argues that the appeal was timely because it

was filed within seventy-two hours after the military judge

denied the motion for reconsideration.   We disagree.

     The Government failed to file either a motion for

reconsideration of the order to dismiss or a notice of appeal

within the seventy-two-hour period for government appeals

authorized in Article 62(a)(2).   Instead, the Government took

twelve days to finalize and submit a brief to the military judge

asking for reconsideration of the order to dismiss.     The

Government’s action was untimely under the explicit limitation

of Article 62.

     Because the Government’s notice of appeal was not timely

filed, the CCA was without jurisdiction to consider the

Government’s appeal.   Accordingly, the judgment of the United

States Coast Guard Court of Criminal Appeals is set aside, and

the appeal is, hereby, dismissed.1




1
  The Government’s motion to supplement the record is denied as
moot.

                                  4