Petition for Writ of Certiorari — United States, Petitioner v. Michael J. D. Briggs
Supreme Court briefJul 22, 2019
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No.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, PETITIONER
v.
MICHAEL J.D. BRIGGS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
PETITION FOR A WRIT OF CERTIORARI
MARY ELLEN PAYNE
Associate Chief
BRIAN C. MASON
Lt. Col., USAF
Deputy Chief
Government Trial and
Appellate Counsel Division
Department of the Air Force
Joint Base Andrews-NAF,
MD 20762
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
CHRISTOPHER G. MICHEL
Assistants to the Solicitor
General
PAUL T. CRANE
Attorney
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the Court of Appeals for the Armed Forces
erred in concluding—contrary to its own longstanding
precedent—that the Uniform Code of Military Justice
allows prosecution of a rape that occurred between 1986
and 2006 only if it was discovered and charged within
five years.
(I)
RELATED PROCEEDINGS
General Court-Martial (Joint Base Andrews Naval Air
Facility Washington):
United States v. Lt. Col. Michael J.D. Briggs (Aug.
7, 2014) (no docket number assigned)
United States Air Force Court of Criminal Appeals:
United States v. Lt. Col. Michael J.D. Briggs, No.
ACM 38730 (June 23, 2016)
United States Court of Appeals for the Armed Forces:
United States v. Michael J.D. Briggs, No. 16-711
(May 3, 2017)
United States v. Michael J.D. Briggs, No. 16-711
(Feb. 22, 2019)
Supreme Court of the United States:
Liban H. Abdirahman v. United States, No. 17-243
(Sept. 7, 2018)
(II)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statutory and constitutional provisions involved ...................... 2
Statement ...................................................................................... 3
Reasons for granting the petition ............................................. 10
A. The CAAF erred in holding that the Air Force’s
prosecution of respondent for rape was time-barred .... 11
1. Respondent’s 2005 rape offense was “punishable
by death” under Article 43 as then in force and
therefore not subject to a limitations period ........... 11
a. Article 43(a) allowed prosecution without a
time limitation for crimes statutorily
“punishable by death,” as rape was under
the UCMJ in 2005 ................................................ 12
b. Rape was constitutionally “punishable by
death” in the military-justice system in 2005 ..... 16
2. Respondent’s rape offense can be prosecuted
without a time limitation under the 2006 NDAA ...... 20
B. The question presented warrants this Court’s
review ............................................................................... 22
Conclusion ................................................................................... 26
Appendix A — Opinion of the Court of Appeals for
the Armed Forces (Feb. 22, 2019)........ 1a
Appendix B — Opinion of the Air Force Court of
Criminal Appeals (June 23, 2016) ...... 16a
Appendix C — Statutory provisions ............................... 41a
TABLE OF AUTHORITIES
Cases:
Brown v. Glines, 444 U.S. 348 (1980) .................................. 18
Burns v. Wilson, 346 U.S. 137 (1953) .................................. 18
Chappell v. Wallace, 462 U.S. 296 (1983) ...................... 18, 19
(III)
IV
Cases—Continued:
Page
Clinton v. Goldsmith, 526 U.S. 529 (1999) .......................... 24
Coker v. Georgia, 433 U.S. 584 (1977) ....................... 5, 14, 15
Coon v. United States, 411 F.2d 422 (8th Cir. 1969) .... 16, 25
Davis v. United States, 512 U.S. 452 (1994) ....................... 25
Dickey v. Florida, 398 U.S. 30 (1970) .................................. 12
Doggett v. United States, 505 U.S. 647 (1992) .................... 12
Dynes v. Hoover, 61 U.S. (20 How.) 65 (1858) .................... 17
Greer v. Spock, 424 U.S. 828 (1976) ..................................... 18
Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich L.P.A., 559 U.S. 573 (2010) .................................... 16
Kahn v. Anderson, 255 U.S. 1 (1921) ................................... 17
Kennedy v. Louisiana, 554 U.S. 945 (2008).....5, 8, 17, 18, 19
Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ........... 21
Lebron v. National R.R. Passenger Corp.,
513 U.S. 374 (1995).............................................................. 15
Loving v. United States, 517 U.S. 748 (1996) ......... 18, 20, 24
Mar tin v. Hadix, 527 U.S. 343 (1999) ................................. 21
Middendorf v. Henry, 425 U.S. 25 (1976) ..................... 17, 22
Ortiz v. United States, 138 S. Ct. 2165 (2018)..................... 10
Parker v. Levy, 417 U.S. 733 (1974) ..................................... 18
Rostker v. Goldberg, 453 U.S. 57 (1981) .............................. 19
Rust v. Sullivan, 500 U.S. 173 (1991) .................................. 14
Schick v. Reed, 419 U.S. 256 (1974) ..................................... 18
Smith v. United States, 568 U.S. 106 (2013) ................. 12, 13
Stogner v. California, 539 U.S. 607 (2003) .................... 12, 20
Toussie v. United States, 397 U.S. 112 (1970) .............. 12, 13
United States v. Collins, 78 M.J. 415 (C.A.A.F. 2019) ....... 23
United States v. Daniels, No. ACM 39407, 2019 WL
2560041 (A.F.C.C.A. June 18, 2019), appeal pending, No. 19-0345/AF (C.A.A.F. June 19, 2019) ................. 23
United States v. Denedo, 556 U.S. 904 (2009)..................... 24
V
Cases—Continued:
Page
United States v. Ealy, 363 F.3d 292 (4th Cir.),
cert. denied, 543 U.S. 862 (2004) ................................. 24, 25
United States v. Edwards, 159 F.3d 1117
(8th Cir. 1998), cert. denied, 528 U.S. 825 (1999)............. 24
United States v. Gallaher, 624 F.3d 934
(9th Cir. 2010), cert. denied, 564 U.S. 1005 (2011)........... 25
United States v. Kebodeaux, 570 U.S. 387 (2013) .............. 24
United States v. Kennedy, 618 F.2d 557
(9th Cir. 1980) ...................................................................... 16
United States v. Kubrick, 444 U.S. 111 (1979) ............. 12, 13
United States v. Mangahas, 77 M.J. 220
(C.A.A.F. 2018)......................................... 9, 11, 14, 19, 23, 25
United States v. Manning, 56 F.3d 1188
(9th Cir. 1995) ...................................................................... 25
United States v. Marion, 404 U.S. 307 (1971) .............. 12, 13
United States v. Payne, 591 F.3d 46 (2d Cir.),
cert. denied, 562 U.S. 950 (2010) ................................. 16, 24
United States v. Scheffer, 523 U.S. 303 (1998) .............. 24, 25
United States v. Seale, 558 U.S. 985 (2009) ........................ 24
United States v. Stebbins, 61 M.J. 366
(C.A.A.F. 2005)............................................................ 4, 9, 11
United States v. Thompson, No. 20140974, 2018 WL
1092097 (A. Ct. Crim. App. Feb. 26, 2018) ....................... 23
United States v. Vonn, 535 U.S. 55 (2002) .......................... 26
United States v. Williams, 504 U.S. 36 (1992) ................... 26
Weiss v. United States, 510 U.S. 163 (1994) ....................... 17
Willenbring v. Neurauter, 48 M.J. 152
(C.A.A.F. 1998)........................................................... passim
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952).............................................................. 20
VI
Constitution and statutes:
Page
U.S. Const.:
Art. I ................................................................................. 17
§ 8, Cl. 14 .................................................................... 17
§ 9 (Ex Post Facto Clause) ....................................... 20
Art. II, § 2......................................................................... 20
Amend. V .......................................................................... 17
Amend. VIII..................................................2, 5, 16, 17, 18
Act of Mar. 3, 1863, § 30, 12 Stat. 736 .................................... 5
National Defense Authorization Act for Fiscal Year
2006, Pub. L. No. 109-163, 119 Stat. 3136:
§ 552(a), 119 Stat. 3256-3257 ............................................ 7
§ 552(a), 119 Stat. 3257...................................................... 8
§ 552(b), 119 Stat. 3263 ............................................... 8, 19
§ 553(a), 119 Stat. 3264...................................................... 6
National Defense Authorization Act for Fiscal Year
2012, Pub. L. No. 112-81, § 541, 125 Stat. 1405-1407 ........ 8
Ronald W. Reagan National Defense Authorization
Act for Fiscal Year 2005, Pub. L. No. 108-375,
Div. A, Tit. V, § 571(a), 118 Stat. 1920 ................................ 7
Sexual Abuse Act of 1986, Pub. L. No. 99-654,
§ 3(a)(1), 100 Stat. 3663 ...................................................... 15
Uniform Code of Military Justice, 10 U.S.C. 801
et seq.:
Art. 120, 64 Stat. 140 ......................................................... 5
10 U.S.C. 843(a) (1994) (Art. 43(a)).................................. 5
10 U.S.C. 843(a) (2000) (Art. 43(a))................ passim, 41a
10 U.S.C. 843(a) (2012 & Supp. V 2017)
(Art. 43(a)) ..................................................... 2, 6, 20, 41a
10 U.S.C. 843(b) (2000) (Art. 43(b)) ...............passim, 41a
10 U.S.C. 920(a) (2000) (Art. 120(a)) ..............passim, 43a
10 U.S.C. 920(a)(1) (Art. 120(a)(1)) .......................... 2, 43a
18 U.S.C. 2031 (1982)............................................................. 15
VII
Statutes—Continued:
Page
18 U.S.C. 3148 (1976)............................................................. 16
18 U.S.C. 3281 ...................................................... 6, 16, 24, 44a
Miscellaneous:
Exec. Order No. 13,447, 72 Fed. Reg. 56,214
(Oct. 2, 2007) .......................................................................... 8
H.R. Conf. Rep. No. 360, 109th Cong., 1st Sess.
(2005) ................................................................................ 6, 22
H.R. Rep. No. 89, 109th Cong., 1st Sess. (2005) ............. 6, 22
Manual for Courts-Martial (2019) ........................................ 8
Memorandum from James N. Mattis, Secretary of
Defense, to All Members of the Department of Defense: Sexual Assault Prevention and Awareness
(Apr. 18, 2018), https://dod.defense.gov/portals/1/
features/2018/0418_sapr/saap-osd004331-18-res.pdf ........ 3
S. Rep. No. 331, 99th Cong., 2d Sess. (1986)................. 15, 16
U.S. Dep’t of Defense:
Judicial Proceedings Panel: Report on Retaliation Related to Sexual Assault Offenses
(Feb. 2016), http://jpp.whs.mil/Public/docs/
08-Panel_Reports/04_JPP_Retaliation_
Report_Final_20160211.pdf ....................................... 4
Report of the Response Systems to Adult Sexual
Assault Crimes Panel (June 2014), http://
responsesystemspanel.whs.mil/Public/docs/
Reports/00_Final/RSP_Report_Final_
20140627.pdf ........................................................... 4, 24
Sex Crimes and the UCMJ: A Report for the
Joint Service Comm. on Military Justice
(2005), http://jpp.whs.mil/public/docs/
03_Topic-Areas/02-Article_120/20150116/
58_Report_SexCrimes_UCMJ.
pdf ............................................................3, 7, 18, 22, 23
VIII
Miscellaneous—Continued:
Page
Earl Warren, The Bill of Rights and the Military,
37 N.Y.U. L. Rev. 181 (1962) ............................................. 19
In the Supreme Court of the United States
No.
UNITED STATES OF AMERICA, PETITIONER
v.
MICHAEL J.D. BRIGGS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States,
respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals for
the Armed Forces in this case.
OPINIONS BELOW
The opinion of the Court of Appeals for the Armed
Forces (App., infra, 1a-15a) is reported at 78 M.J. 289.
The opinion of the Air Force Court of Criminal Appeals
(App., infra, 16a-40a) is not published in the Military
Justice Reporter but is available at 2016 WL 3682568.
JURISDICTION
The judgment of the court of appeals was entered on
February 22, 2019. On May 14, 2019, the Chief Justice
extended the time within which to file a petition for a
writ of certiorari to and including June 22, 2019. On
June 12, 2019, the Chief Justice further extended the
(1)
2
time to and including July 22, 2019. The jurisdiction of
this Court is invoked under 28 U.S.C. 1259(3).
STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED
In 2005, Article 43(a) of the Uniform Code of Military
Justice (UCMJ) provided that a “person charged with
absence without leave or missing movement in time of
war, or with any offense punishable by death, may be
tried and punished at any time without limitation.”
10 U.S.C. 843(a) (2000). Article 120(a) of the UCMJ provided that any “person subject to [the UCMJ] who commits an act of sexual intercourse, by force and without
consent, is guilty of rape and shall be punished by death
or such other punishment as a court-martial may direct.” 10 U.S.C. 920(a) (2000).
The current version of Article 43(a) of the UCMJ
provides that a “person charged with absence without
leave or missing movement in time of war, with murder,
rape or sexual assault, or rape or sexual assault of a
child, or with any other offense punishable by death,
may be tried and punished at any time without limitation.” 10 U.S.C. 843(a) (2012 & Supp. V 2017). The current version of Article 120(a) of the UCMJ provides in
relevant part that any “person subject to [the UCMJ]
who commits a sexual act upon another person by * * *
using unlawful force against that other person * * * is
guilty of rape and shall be punished as a court-martial
may direct.” 10 U.S.C. 920(a)(1).
The Eighth Amendment to the United States Constitution provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. Amend. VIII.
Other pertinent statutory provisions are reprinted in
the appendix to this petition. App., infra, 41a-44a.
3
STATEMENT
Following a general court-martial by the United
States Air Force, respondent was convicted of rape, in
violation of 10 U.S.C. 920(a) (2000). The Air Force
Court of Criminal Appeals (AFCCA) affirmed. App., infra, 16a-40a. The Court of Appeals for the Armed
Forces (CAAF) summarily affirmed in part and denied
review in part. 76 M.J. 36; 76 M.J. 338. This Court
granted a petition for a writ of certiorari, vacated the
CAAF’s judgment, and remanded. 139 S. Ct. 38. On
remand, the CAAF reversed the AFCCA and dismissed
the charge against respondent. App., infra, 1a-15a.
1. In May 2005, respondent was a captain and F-16
instructor pilot in the Air Force. App., infra, 2a. “Following an evening of heavy drinking,” respondent “went
to [the] room” of a member of his squadron (DK) and
“forced her to have sex with him even though she said
‘no’ and ‘stop’ and tried to roll away.” Ibid. “DK did not
immediately report the incident to law enforcement authorities, but she did tell others about it.” Ibid.
Sexual assault is “one of the most destructive factors
in building a mission-focused military.” Memorandum
from James N. Mattis, Secretary of Defense, to All Members of the Department of Defense: Sexual Assault Prevention and Awareness (Apr. 18, 2018), https://dod.
defense.gov/portals/1/features/2018/0418_sapr/saap-os
d004331-18-res.pdf. In addition to their “devastating
impact on victims,” sexual assaults by one military service member against another “negatively affect morale,
good order and discipline and the unit cohesion
and combat effectiveness of military personnel and
units.” United States Dep’t of Defense, Sex Crimes and
the UCMJ: A Report for the Joint Service Comm. on Military Justice 2-3 (2005) (UCMJ Sex Crimes Report),
4
http://jpp.whs.mil/public/docs/03_Topic-Areas/02-Article_
120/20150116/58_Report_SexCrimes_UCMJ.pdf.
Compounding the problem, military victims “chronically underreport” sexual assaults for a number of
“unique” reasons, including the “hierarchical structure
of military service and its focus on obedience, order, and
mission before self.” United States Dep’t of Defense, Report of the Response Systems to Adult Sexual Assault
Crimes Panel 59-60 (June 2014) (RSP Report), http://
responsesystemspanel.whs.mil/Public/docs/Reports/00_
Final/RSP_Report_Final_20140627.pdf.
Some victims
fear “reprisal or retaliation” and believe that “ ‘nothing
will happen to the[] perpetrator.’ ” Id. at 60 (citation
omitted). Such concerns “erode trust” in military organizations, “violate[] fundamental military values,”
and “undermine[] a commander’s ability to maintain
good order and discipline.” United States Dep’t of Defense, Judicial Proceedings Panel: Report on Retaliation Related to Sexual Assault Offenses 17 (Feb. 2016),
http://jpp.whs.mil/Public/docs/08-Panel_Reports/04_
JPP_Retaliation_Report_Final_20160211.pdf. Investigating and prosecuting sexual assault is accordingly a
top priority for the United States military.
2. When respondent raped DK in 2005, the CAAF’s
binding precedent in Willenbring v. Neurauter, 48 M.J.
152 (1998), made clear that the UCMJ allowed prosecution for rape at any time, without limitation. See id. at
178; see also United States v. Stebbins, 61 M.J. 366, 369
(C.A.A.F. 2005) (reaffirming Willenbring shortly after
respondent’s crime occurred).
Willenbring interpreted Article 43 of the UCMJ.
From November 1986 to January 2006, Article 43 included a default five-year criminal statute of limitations
for most offenses, 10 U.S.C. 843(b) (2000), along with an
5
exception under which a “person charged * * * with
any offense punishable by death, may be tried and punished at any time without limitation,” 10 U.S.C. 843(a)
(2000).
For “more than a century,” Congress had expressly
authorized the death penalty for rape under military
law. Kennedy v. Louisiana, 554 U.S. 945, 946 (2008)
(statement of Kennedy, J., respecting the denial of rehearing). Since at least 1863, Congress had authorized
the military to impose the death penalty for rapes committed during wartime. See ibid. (citing Act of Mar. 3,
1863, § 30, 12 Stat. 736). And since 1950, the UCMJ had
authorized the death penalty for military rapes committed during peacetime. See ibid. (citing Art. 120, 64 Stat.
140). In particular, from 1986 to 2006, Article 120(a) of
the UCMJ provided that any “person subject to [the
UCMJ] who commits an act of sexual intercourse, by
force and without consent, is guilty of rape and shall be
punished by death or such other punishment as a courtmartial may direct.” 10 U.S.C. 920(a) (2000).
In Willenbring, the CAAF addressed whether rape
was “punishable by death” for purposes of Article 43,
notwithstanding this Court’s holding in Coker v. Georgia, 433 U.S. 584 (1977), that the Eighth Amendment
prohibits imposition of the death penalty on a civilian
defendant convicted of raping an adult woman. The
CAAF determined that rape was “punishable by death”
under Article 43—and therefore not subject to a limitations period—because the UCMJ expressly authorized
the death penalty for rape. Willenbring, 48 M.J. at 178
(quoting 10 U.S.C. 843(a) (1994)). The CAAF additionally observed that federal courts of appeals had uniformly interpreted a parallel provision of the federal
criminal code, which provides that offenses “ punishable
6
by death ” may be prosecuted without a limitations period, 18 U.S.C. 3281, to likewise apply to any crime for
which the death penalty is authorized by statute, regardless of whether the death penalty could be constitutionally imposed. Willenbring, 48 M.J. at 180.
3. Although DK did not report respondent’s rape to
law enforcement at the time, she obtained proof of the
rape, sufficient to enable prosecution, eight years later.
In July 2013, DK called respondent and, “[w]ithout [his]
knowledge, * * * recorded their conversation.” App.,
infra, 2a. In that conversation, respondent “acknowledged his misconduct.” Ibid. Specifically, respondent
told DK, “I will always be sorry for raping you.” Ibid.;
see id. at 18a-22a (reproducing partial transcript of the
recording). In 2014, respondent was charged on one
count of raping DK, in violation of 10 U.S.C. 920(a)
(2000). See App., infra, 3a.
At the time of respondent’s court-martial, the UCMJ
provided (as it does today) that a “person charged with
* * * murder, rape or sexual assault, or rape or sexual
assault of a child, or with any other offense punishable
by death, may be tried and punished at any time without
limitation.” 10 U.S.C. 843(a) (2012 & Supp. V 2017).
The explicit reference to rape had been added to the
UCMJ statute-of-limitations exception by the National
Defense Authorization Act for Fiscal Year 2006 (2006
NDAA), Pub. L. No. 109-163, § 553(a), 119 Stat. 3264.
The Conference Report accompanying the 2006 NDAA
had explained that the amended limitations provision
would “clarify” the continuing vitality of the CAAF’s
longstanding position that “rape is * * * an offense
with an unlimited statute of limitations.” H.R. Conf.
Rep. No. 360, 109th Cong., 1st Sess. 703 (2005) (Conference Report); see H.R. Rep. No. 89, 109th Cong., 1st
7
Sess. 332 (2005) (House Report) (similar); Willenbring,
48 M.J. at 178-180.
The 2006 NDAA was enacted after Congress received a report that it had commissioned from the Department of Defense, which had reviewed military law
“with the objective of determining what changes are required to improve the ability of the military justice system to address issues relating to sexual assault and to
conform” military law “more closely to other Federal
laws and regulations that address such issues.” Ronald
W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Div. A, Tit. V,
§ 571(a), 118 Stat. 1920. The Defense Department’s report had recommended (among other things) that the
UCMJ expressly codify the CAAF’s determination that
no statute of limitations applies to rape. UCMJ Sex
Crimes Report 285. The report approvingly cited the
CAAF’s determination in Willenbring that rape is
“punishable by death,” 48 M.J. at 178, and therefore not
subject to a limitations period under Article 43 “[n]otwithstanding [Coker’s] prohibition against the death
penalty for rape,” UCMJ Sex Crimes Report 285. The
report stated that the “military statute of limitations for
rape of an adult female should continue to be unlimited”
and that “[a]dding ‘rape’ * * * to [Article 43] clarifies
that the holding of [Willenbring] is still good law and
that there is an unlimited statute of limitations for all
offenses that list death as a statutorily potential
sentence—even if death is not a Constitutionally permitted punishment.” Ibid.
In addition to adding “rape” to Article 43, the 2006
NDAA also revised Article 120’s prohibition of rape and
removed the express directive that capital punishment
be available for that offense. § 552(a), 119 Stat. 3256-
8
3257. The revised provision instead states that rape
“shall be punished as a court-martial may direct.”
§ 552(a), 119 Stat. 3257. The 2006 NDAA specified, however, that “[u]ntil the President otherwise provides * * * , the punishment which a court-martial may
direct for” rape includes “death.” § 552(b), 119 Stat.
3263. In 2007, President George W. Bush issued an Executive Order providing that the death penalty would
remain available for rape. Exec. Order No. 13,447,
72 Fed. Reg. 56,214 (Oct. 2, 2007); see Kennedy, 554
U.S. at 947 (statement of Kennedy, J.). *
4. At his court-martial, respondent was found guilty
of raping DK, and sentenced to “a dismissal, confinement for five months, and a reprimand.” App., infra,
3a. On appeal to the AFCCA, respondent argued that
his 2005 rape was subject to the UCMJ’s default fiveyear statute of limitations, which had expired before he
was charged in 2014. Ibid. The AFCCA declined to consider that argument because respondent had failed to
raise it at trial. Ibid. And the court affirmed his conviction, emphasizing that respondent’s “own words
to * * * DK are highly persuasive in convincing us that
he committed the offense.” Id. at 39a.
Respondent sought review in the CAAF. He alleged
ineffective assistance of counsel based on his trial counsel’s failure to assert a statute-of-limitations defense,
Congress amended portions of Article 120 again in the National
Defense Authorization Act for Fiscal Year 2012 (2012 NDAA), Pub.
L. No. 112-81, § 541, 125 Stat. 1405-1407. Unlike the 2006 NDAA,
the 2012 NDAA did not expressly address whether the death penalty remains available for rape. The current version of the Manual
for Courts-Martial states that the maximum punishment for rape
committed after June 28, 2012, is “confinement for life without eligibility for parole.” Pt. IV ¶ 60.d(1) (2019).
*
9
and he also challenged the judicial composition of the
AFCCA. App., infra, 3a-4a. The CAAF denied review
with respect to the limitations issue and summarily affirmed as to the AFCCA’s judicial composition. Id. at
4a; see 76 M.J. 36; 76 M.J. 338. In July 2017, petitioner
and 164 other service members filed a petition for a writ
of certiorari seeking review of CAAF decisions upholding the composition of the AFCCA. Abdirahman v.
United States, 138 S. Ct. 2702 (2018) (No. 17-243).
5. While that petition was pending, the CAAF decided United States v. Mangahas, 77 M.J. 220 (2018),
which involved a 2015 prosecution for a rape committed
in 1997. Id. at 221. Without holding argument on the
issue, the CAAF overruled its prior decisions in Willenbring and Stebbins, supra, “to the extent that they hold
that rape was punishable by death” and therefore not
subject to a limitations period under the UCMJ. Mangahas, 77 M.J. at 222. The CAAF took the view that
Coker was controlling in the military context, id. at 223;
stated that “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of ” Article 43(a), id. at 224225; and thus concluded that the UCMJ’s default fiveyear statute of limitations applied to the 1997 rape at
issue in that case, see ibid. The court did not address
the 2006 NDAA provision that expressly authorized
rape prosecutions without a limitations period.
Following the CAAF’s decision in Mangahas, respondent filed a supplemental brief in this Court requesting that, if the Court declined to grant review on
the AFCCA composition question, it nevertheless grant
his petition, vacate the CAAF’s judgment, and remand
so that the CAAF could consider the effect of Mangahas on his case. Pet. Supp. Br. at 1-2, Abdirahman,
10
supra (No. 17-243). After upholding the composition of
the AFCCA in Ortiz v. United States, 138 S. Ct. 2165
(2018), this Court ultimately granted respondent’s request to remand his case to the CAAF to address the
limitations issue. 139 S. Ct. 38.
6. On remand, the CAAF ordered dismissal of the
rape charge against respondent on statute-of-limitations
grounds. App., infra, 1a-15a. The CAAF stated that,
under its decision in Mangahas, the UCMJ at the time
of respondent’s 2005 offense “established a five-year period of limitations,” which had run before the 2014 prosecution. Id. at 7a. The CAAF also concluded that the
2006 NDAA provision expressly providing that rape
could be prosecuted without a limitations period did not
apply to respondent’s offense. Id. at 7a-12a. In the
court’s view, even though the 2006 NDAA was consistent with the CAAF’s own interpretation of the
UCMJ’s limitations provision at the time of respondent’s offense and the time of his court-martial, applying
the amendment to respondent’s case would constitute
an improper retroactive application of the law. Ibid.
REASONS FOR GRANTING THE PETITION
The CAAF erred in reversing course and interpreting the UCMJ to bar the Air Force’s prosecution of respondent for raping DK. Recognizing that sexual assault within the military is devastating to the morale,
discipline, and effectiveness of our Armed Forces, but
also difficult to uncover, Congress long made rape a capital offense and has enabled rape to be prosecuted whenever it is discovered. Now, however, the CAAF has
closed the door on prosecuting rapes that occurred before 2006—even admitted rapes like the one at issue
here—unless the rape was reported and charged within
11
five years (i.e., by 2011 at the latest). That result contravenes the statutory text, Congress’s evident intent
to root out and punish military rape, and the military’s
constitutional latitude to punish military crimes more
strictly than civilian ones. And it will prevent the military from holding rapists accountable in a number of
cases. This Court should grant review on this important
issue and reverse the CAAF’s misunderstanding of the
law.
A. The CAAF Erred In Holding That The Air Force’s Prosecution Of Respondent For Rape Was Time-Barred
The CAAF had it right the first two times: under the
version of the UCMJ in effect when respondent raped
DK, rape was “punishable by death,” 10 U.S.C. 843(a)
(2000), and therefore not subject to a limitations period.
See Willenbring v. Neurauter, 48 M.J. 152, 178-180
(C.A.A.F. 1998); see also United States v. Stebbins, 61
M.J. 366, 369 (C.A.A.F. 2005). The CAAF erred in
United States v. Mangahas, 77 M.J. 220 (2018), by abandoning that longstanding construction. And it compounded that error in this case by refusing to give effect
to Congress’s codification of its earlier precedent.
1. Respondent’s 2005 rape offense was “punishable by
death” under Article 43 as then in force and therefore
not subject to a limitations period
Respondent’s 2005 rape offense was not subject to a
limitations period under Article 43 of the UCMJ as then
in force for two independent reasons. First, Article 43’s
provision that offenses “punishable by death,” 10 U.S.C.
843(a) (2000), may be prosecuted without a time
limitation refers to offenses statutorily punishable by
death—as rape undisputedly was under the UCMJ in
12
2005, see 10 U.S.C. 920(a) (2000). Second, even assuming that Congress intended to import constitutional
death-penalty jurisprudence into the UCMJ statute of
limitations, the Constitution does not preclude capital
punishment for rape in the military context.
a. Article 43(a) allowed prosecution without a time
limitation for crimes statutorily “punishable by
death,” as rape was under the UCMJ in 2005
A statute of limitations “reflects a policy judgment
by the legislature that the lapse of time may render
criminal acts ill suited for prosecution.” Smith v.
United States, 568 U.S. 106, 112 (2013). For some
crimes, the legislature may conclude that evidentiary
considerations or interests in repose justify a bar on
prosecution after a certain “passage of time.” Toussie
v. United States, 397 U.S. 112, 114 (1970). For other
crimes, the legislature may determine that “no statute
of limitations” is justified. Dickey v. Florida, 398 U.S.
30, 47 (1970) (Brennan, J., concurring). “In general, the
graver the offense, the longer the limitations period; indeed, many serious offenses, such as murder, typically
carry no limitations period.” Doggett v. United States,
505 U.S. 647, 668 (1992) (Thomas, J., dissenting). Because statutes of limitations represent an exclusively
“legislative judgment,” they must be given “effect in accordance with what [courts] can ascertain the legislative
intent to have been.” United States v. Kubrick, 444 U.S.
111, 117, 125 (1979); see, e.g., Stogner v. California,
539 U.S. 607, 615 (2003) (stating that a criminal statute
of limitations “reflects a legislative judgment”); United
States v. Marion, 404 U.S. 307, 322 (1971) (similar).
Here, Congress’s plainly expressed intent was to allow
for prosecution of rapes within the military at any time.
13
i. At the time of respondent’s 2005 rape offense, Article 43(a) of the UCMJ provided that “[a] person
charged * * * with any offense punishable by death,
may be tried and punished at any time without limitation.” 10 U.S.C. 843(a) (2000). Article 120(a) of the
UCMJ, in turn, provided that “rape * * * shall be punished by death or such other punishment as a courtmartial may direct.” 10 U.S.C. 920(a) (2000). Under a
straightforward reading of those interlocking provisions, respondent’s 2005 rape offense was not subject to
a limitations period. Because no limitations period applied to an “offense punishable by death,” 10 U.S.C.
843(a) (2000), and the UCMJ provided that rape could
be “punished by death,” 10 U.S.C. 920(a) (2000), Congress’s “legislative judgment” was that no limitations
period applied to a prosecution for military rape, Kubrick, 444 U.S. at 117.
As the CAAF originally recognized, Article 43’s directive that offenses “punishable by death” may be
prosecuted without a time limitation was Congress’s
way of ensuring that “the most serious offenses” could
be prosecuted at any time “without listing each one” of
those offenses “in the statute.” Willenbring, 48 M.J. at
178, 180. Article 43(a) thus reflected Congress’s “policy
judgment” that any offense sufficiently serious to be
deemed punishable by death was also sufficiently serious to warrant punishment without a time limitation.
Smith, 568 U.S. at 112. That type of judgment is well
within Congress’s authority to define crimes and available defenses. See ibid.; Marion, 404 U.S. at 322; Toussie, 397 U.S. at 115.
ii. It makes little sense to interpret the language of
former Article 43 to make the timeliness of a rape
charge contingent on future judicial decisions about the
14
constitutionality of capital punishment for military
rape. Whatever a court might ultimately conclude
about the constitutional permissibility of capital punishment for rape in the military, Congress’s express authorization of such punishment made clear its own classification of rape in the tier of offenses so serious as to
warrant prosecution at any time.
Congress itself evidently did not believe that capital
punishment for military rape is constitutionally impermissible, or it would not have prescribed such punishment. Cf. Rust v. Sullivan, 500 U.S. 173, 191 (1991)
(“assum[ing]” that Congress “legislates in the light of
constitutional limitations”). A contrary conclusion by a
court on that constitutional question would not undermine Congress’s own judgment that rape is among the
few particularly “serious offenses” for which prosecution at any time is warranted. Willenbring, 48 M.J. at
180. And Congress had no sound reason to permit such
a judicial conclusion to affect the statute of limitations.
By doing so, Congress would have allowed an adverse
decision on the constitutional question to preclude not
only the imposition of capital punishment, but the imposition of any punishment, for military rapes that occurred more than five years before charges were
brought. Congress would not have intended that result.
The CAAF’s reliance on Coker v. Georgia, 433 U.S.
584 (1977), to curtail the limitations period for military
rape prosecutions, see Mangahas, 77 M.J. at 223-224,
was especially misplaced. Coker, which was decided in
1977, predated the 1986 enactment at issue here, and
Congress was aware of Coker’s holding that the death
penalty for rape is unconstitutional in the civilian context. Indeed, Congress in 1986 repealed the federal
15
criminal statute, 18 U.S.C. 2031 (1982), that had previously authorized the death penalty for rape in the civilian system. Sexual Abuse Act of 1986, Pub. L. No. 99654, § 3(a)(1), 100 Stat. 3663; see Coker, 433 U.S. at 593
n.6 (plurality opinion) (noting that former Section 2031
authorized the death penalty for rape under federal
criminal law). Congress nevertheless retained capital
punishment for military rape long after Coker, reflecting its view that such a crime is “punishable by death,”
10 U.S.C. 843(a) (2000), notwithstanding Coker’s holding. That view should be controlling for purposes of interpreting the statute of limitations at issue here. See
Lebron v. National R.R. Passenger Corp., 513 U.S. 374,
392 (1995) (explaining that congressional labels are
“dispositive * * * for purposes of matters that are
within Congress’s control”).
iii. The circumstances surrounding Congress’s enactment of the UCMJ limitations provision in force at
the time of respondent’s offense confirm that Congress
did not make the military’s ability to prosecute late-discovered rapes contingent on judicial agreement about
the constitutionally permissible punishments for such
rapes. The Senate Report accompanying the 1986 revision of Article 43 explained that, under the provision’s
text, “no statute of limitations would exist in prosecution of offenses for which the death penalty is a punishment prescribed by or pursuant to the UCMJ.” S. Rep.
No. 331, 99th Cong., 2d Sess. 249 (1986) (emphasis
added) (Senate Report). And as explained above, rape
could be punished by death “pursuant to the UCMJ” at
the time of respondent’s offense. Ibid.; see 10 U.S.C.
920(a) (2000).
The Senate Report accompanying the 1986 revision
of Article 43 illustrates that the provision’s “punishable
16
by death” language was copied from language that
courts had uniformly construed to refer solely to punishments authorized by statute. The report explains
that the 1986 amendment was designed to bring the
UCMJ limitations provision “more in line with federal
criminal code provisions.” Senate Report 249. The
principal relevant federal criminal code provision provides that “[a]n indictment for any offense punishable
by death may be found at any time without limitation.”
18 U.S.C. 3281. In construing that provision and parallel federal statutes, courts of appeals had determined
that an offense was “punishable by death” so long as the
death penalty was statutorily authorized for the offense. See Coon v. United States, 411 F.2d 422, 425 (8th
Cir. 1969) (“[I]n deciding which limitation is applicable
[under Section 3281], we must look directly to the statute.”); see also United States v. Kennedy, 618 F.2d 557,
557 (9th Cir. 1980) (per curiam) (adopting the same
reading of “punishable by death” in the federal bail statute, 18 U.S.C. 3148 (1976)); cf. United States v. Payne,
591 F.3d 46, 59 (2d Cir.) (observing that federal courts
of appeals continue to uniformly interpret Section 3281
in the same way today), cert. denied, 562 U.S. 950
(2010). If Congress in fact intended to inject a novel
incorporation of the Eighth Amendment into a statute
of limitations, it chose its words poorly. See Jerman v.
Carlisle, McNellie, Rini, Kramer & Ulrich L.P.A., 559
U.S. 573, 590 (2010) (presuming that Congress intended
to incorporate circuits’ preexisting interpretation of
identical language).
b. Rape was constitutionally “punishable by death” in
the military-justice system in 2005
In any event, even assuming that Congress designed
a statute of limitations for military rape that turns on
17
whether capital punishment for that crime is constitutionally permissible, Congress correctly determined
that the Constitution does not foreclose capital punishment for rape in the military context. The crime of military rape was therefore “punishable by death,”
10 U.S.C. 843(a) (2000), at the time of respondent’s offense under any plausible understanding of that phrase.
This Court has long recognized that the Constitution
imposes fewer restrictions on military prosecutions
than it does on civilian ones. Article I of the Constitution empowers Congress to “make Rules for the Government and Regulation of the land and naval Forces,”
U.S. Const. Art. I, § 8, Cl. 14, and the Fifth Amendment
exempts “cases arising in the land or naval forces” from
the grand-jury requirement, U.S. Const. Amend. V.
This Court has thus long held that the military may try
service members by court-martial without a grand jury.
See, e.g., Kahn v. Anderson, 255 U.S. 1, 8 (1921); Dynes
v. Hoover, 61 U.S. (20 How.) 65, 78-79 (1858). And despite the absence of a similarly express textual exemption, this Court has likewise held that the jury-trial requirement does not apply to courts-martial. See Anderson, 255 U.S. at 8-9. The Court has also explained that
it will enforce procedures adopted by Congress for military prosecutions unless the “factors militating in favor” of broader due-process protections “are so extraordinarily weighty as to overcome the balance struck by
Congress.” Middendorf v. Henry, 425 U.S. 25, 44 (1976)
(concluding that right to counsel does not apply to summary courts-martial); see Weiss v. United States,
510 U.S. 163, 177-178 (1994) (holding that military
judges need not have fixed terms of office).
The Court has never determined whether—and, if
so, how—the Eighth Amendment might apply to courts-
18
martial. See Kennedy v. Louisiana, 554 U.S. 945, 946947 (2008) (statement of Kennedy, J., respecting the denial of rehearing) (reserving the question); Loving v.
United States, 517 U.S. 748, 755 (1996) (same); Schick
v. Reed, 419 U.S. 256, 260 (1974) (same). But the Court
has repeatedly recognized the “need for special regulations in relation to military discipline” that make distinctive “demands on [military] personnel ‘without
counterpart in civilian life.’ ” Chappell v. Wallace,
462 U.S. 296, 300 (1983) (citation omitted); see ibid. (describing the imperative of military discipline as “wholly
different” from that in civilian life). And the Court has
resolved constitutional challenges to such regulations
with a focus on the “very significant differences between military law and civilian law and between the military community and the civilian community.” Parker
v. Levy, 417 U.S. 733, 752 (1974); see, e.g., Chappell,
462 U.S. at 300-305; Brown v. Glines, 444 U.S. 348, 360
(1980); Greer v. Spock, 424 U.S. 828, 840 (1976); Burns
v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion).
Here, those significant differences show that the military may impose capital punishment for rape, even if
civilian jurisdictions may not. In explaining its Eighth
Amendment holding, Coker “made no mention of the
military penalty” for rape, Kennedy, 554 U.S. at 947
(statement of Kennedy, J.), and its reasoning with respect to civilian rape offenses does not account for the
distinctive concerns of rape within the military. As explained above, military rapes create unique dangers not
present in the civilian community, including subversion
of “morale, good order and discipline and the unit cohesion and combat effectiveness of military personnel and
units.” UCMJ Sex Crimes Report 2-3; see pp. 3-4, supra. As harmful and destructive as rapes within civilian
19
society are, “the fact of the malefactor’s membership in
the Armed Forces makes the offense [even] more grievous.” Kennedy, 554 U.S. at 949 (statement of Scalia, J.,
respecting the denial of rehearing). Those distinctive
harms explain why Congress authorized capital punishment for rape under military law “for more than a century,” including long after this Court’s decision
in Coker. Id. at 946 (statement of Kennedy, J.); see
10 U.S.C. 920(a) (2000); 2006 NDAA § 552(b), 119 Stat.
3263.
The CAAF in Mangahas gave short shrift to Congress’s determination that rape is constitutionally punishable by death in the military context, dismissing that
position in a footnote. See 77 M.J. at 223 n.3 (“The argument that the Supreme Court’s modified opinion in
Kennedy v. Louisiana forges a constitutional distinction between the civilian and military spheres on the issue of the death penalty for rape is unfounded.”). But
Congress’s judgment that rape within the military creates such distinctive harms that it may be punished by
death falls squarely within its “plenary” authority to determine “regulations, procedures, and remedies related
to military discipline.” Chappell, 462 U.S. at 301. “[I]n
no other area has the Court accorded Congress greater
deference.” Ibid. (quoting Rostker v. Goldberg, 453 U.S.
57, 64-65 (1981)). “The most obvious reason is that
courts are ill-equipped to determine the impact upon
discipline that any particular intrusion upon military
authority might have.” Id. at 305 (quoting Earl Warren,
The Bill of Rights and the Military, 37 N.Y.U. L. Rev.
181, 187 (1962)).
And it is not only Congress but also the President—
the “Commander in Chief of the Army and Navy of the
20
United States,” U.S. Const. Art. II, § 2—that has recognized a need for capital punishment for military rape.
See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.
579, 635 (1952) (Jackson, J., concurring in the judgment
and opinion of the Court) (explaining that an action “by
the President pursuant to an Act of Congress would be
supported by the strongest of presumptions and the
widest latitude of judicial interpretation”); see also Loving, 517 U.S. at 760-761, 769 (discussing the President’s
longstanding role in setting punishments for military
crimes). Even after Congress in 2006 gave the President discretion to set the maximum punishment for
rape, President Bush provided that the death penalty
should remain available. See pp. 7-8, supra. Although
current law does not expressly authorize that penalty,
see p. 8 n.*, supra, the Constitution should not be interpreted to preclude both Congress and the President
from determining that it is warranted.
2. Respondent’s rape offense can be prosecuted without
a time limitation under the 2006 NDAA
Even assuming that military rapes were not “punishable by death” for purposes of the pre-2006 statute of
limitations, Congress’s 2006 amendment to that statute
would independently allow for prosecution of respondent’s 2005 rape offense without a time limitation.
By its plain terms, the 2006 amendment provides
that “rape * * * may be tried and punished at any time
without limitation.” 10 U.S.C. 843(a) (2012 & Supp. V
2017). The CAAF identified no constitutional impediment to the application of that amendment to respondent, as to whom even the default five-year statute of limitations, see 10 U.S.C. 843(b) (2000), would not yet have
expired at the time the amendment was enacted, see
21
Stogner, 539 U.S. at 616-617 (distinguishing “resurrection of a time-barred prosecution,” which is impermissible under the Ex Post Facto Clause, from “a law extending unexpired limitations periods”). The CAAF instead
relied on the “presumption against retroactive legislation” to conclude that Congress would not have intended an unlimited limitations period for defendants
like respondent. App., infra, 8a. The CAAF’s reliance
on that presumption was misplaced.
The “presumption against retroactive legislation” is
based on the principle “that individuals should have an
opportunity to know what the law is and to conform
their conduct accordingly”—i.e., that “settled expectations should not be lightly disrupted.” Landgraf v. USI
Film Prods., 511 U.S. 244, 265 (1994); see Martin v.
Hadix, 527 U.S. 343, 358 (1999) (recognizing that retroactivity analysis “should be informed and guided by ‘familiar considerations of fair notice, reasonable reliance,
and settled expectations’ ”) (citation omitted). That
principle has no application where, as here, no settled
expectations were disrupted. As previously discussed,
when respondent raped DK, he had clear notice that,
under the CAAF’s then-binding decision in Willenbring, the UCMJ did not limit the timing of prosecutions for rape. See 48 M.J. at 178. Even if that reading
of the statute were wrong, application of a lifetime statute of limitations should not have surprised respondent;
it was instead exactly what he would have expected.
A lifetime statute of limitations is also plainly what
Congress—whose intent controls the applicability of its
enactments, see Landgraf, 511 U.S. at 280—would have
expected. As previously discussed, see p. 7, supra, Congress’s 2006 amendment responded to a report from the
Department of Defense recommending that Congress
22
“clarif [y] that the holding of [Willenbring] is still good
law and that there is an unlimited statute of limitations
for all offenses that list death as a statutorily potential
sentence—even if death is not a Constitutionally permitted punishment.” UCMJ Sex Crimes Report 285;
see ibid. (stating that the “military statute of limitations
for rape of an adult female should continue to be unlimited”) (emphasis added). Accordingly, both the Conference Report and the House Report explained that the
2006 amendment was adopted to “clarify that rape is
* * * an offense with an unlimited statute of limitations.” Conference Report 703 (emphasis added); see
House Report 332. Given its awareness, and approval,
of Willenbring, Congress would have understood and
intended that no limitations period would apply to a military officer, like respondent, who had raped another
service member just a year before.
B. The Question Presented Warrants This Court’s Review
The CAAF’s decisions interpreting the current and
former versions of Article 43 will undermine military
discipline and should be addressed by this Court. While
the military continues to discover previously unreported pre-2006 rapes of the kind at issue here, the
CAAF’s reading of the UCMJ bars prosecution of any
of them. That reading is, moreover, inconsistent with
the interpretation uniformly adopted by civilian courts
of appeals of identical statutory language in the federal
criminal statute of limitations. This Court should grant
certiorari and correct the CAAF’s error.
1. The CAAF’s flipped interpretation of the UCMJ
upsets settled expectations about the availability of
prosecutions for military rapes and undermines the
Nation’s “overriding” interest in maintaining military
morale, discipline, and effectiveness. Middendorf,
23
425 U.S. at 43 (citation omitted). As explained above,
sexual assaults in the military “negatively affect morale, good order and discipline and the unit cohesion and
combat effectiveness of military personnel and units.”
UCMJ Sex Crimes Report 2-3; see pp. 3-4, supra. Because of reporting delays, however, many sexual assaults cannot be prosecuted within the five-year limitations period that the CAAF has deemed applicable. See
Mangahas, 77 M.J. at 225; App., infra, 7a.
Although the CAAF’s decisions affect only a closed
set of crimes committed before 2006, the Department of
Defense informs this Office that the military continues
to receive reports of such crimes. Indeed, as a result of
the CAAF’s 2018 decision in Mangahas, the Air Force,
the Army, and the Coast Guard have in the last 18
months collectively dismissed or declined to prosecute
at least ten rape cases that they otherwise would have
pursued. The CAAF also recently relied on Mangahas
and the decision below to vacate a rape conviction obtained by the Air Force. See United States v. Collins,
78 M.J. 415 (2019). The AFCCA has done the same. See
United States v. Daniels, No. ACM 39407, 2019 WL
2560041 (June 18, 2019), appeal pending, No. 19-345/AF
(C.A.A.F. June 19, 2019). And the Army Court of Criminal Appeals relied on Mangahas to vacate a conviction
for multiple rapes obtained by the Army. See United
States v. Thompson, No. 20140974, 2018 WL 1092097
(A. Ct. Crim. App. Feb. 26, 2018).
Allowing the CAAF’s flawed construction of Article
43 to remain in place would subvert the military’s concerted effort to eradicate sexual assault, erode confidence in the military-justice system, and fuel the impression that “nothing will happen to the[] perpetrator”
of military rapes, all of which could further deter
24
sexual-assault reporting and ultimately undermine military effectiveness. RSP Report 60 (citation omitted).
This Court has intervened on similar issues “of central
importance for military courts.” United States v.
Denedo, 556 U.S. 904, 917 (2009); see, e.g., Clinton v.
Goldsmith, 526 U.S. 529 (1999); United States v.
Scheffer, 523 U.S. 303 (1998); Loving, 517 U.S. at 751;
cf. United States v. Kebodeaux, 570 U.S. 387 (2013) (reviewing whether a former service member convicted by
court-martial was subject to sex-offender registration
requirement). This Court should likewise intervene on
the question presented here.
2. The Court’s intervention is all the more warranted in light of the inconsistency between the CAAF’s
interpretation of the phrase “punishable by death” and
the civilian courts of appeals’ interpretation of identical
statutory language in a parallel statutory context.
As previously noted, the federal criminal code provides that “any offense punishable by death” may be
prosecuted “at any time without limitation.” 18 U.S.C.
3281. This Court has not squarely addressed the “important” question of how to interpret “ ‘punishable by
death’ ” in Section 3281. United States v. Seale, 558 U.S.
985, 986 (2009) (statement of Stevens, J.) (citation omitted). But civilian courts of appeals have agreed for 50
years that an offense is “ ‘punishable by death’ ” under
Section 3281 if “the statute authorizes death as a punishment, regardless of whether the death penalty” can
be constitutionally imposed. Payne, 591 F.3d at 59 (citation omitted); see ibid. (collecting cases); see, e.g.,
United States v. Ealy, 363 F.3d 292, 296 (4th Cir.), cert.
denied, 543 U.S. 862 (2004); United States v. Edwards,
159 F.3d 1117, 1128 (8th Cir. 1998), cert. denied,
25
528 U.S. 825 (1999); United States v. Manning, 56 F.3d
1188, 1196 (9th Cir. 1995); Coon, 411 F.2d at 425.
The CAAF sought to distinguish some civilian appellate decisions on the theory that “the death penalty was,
in fact, at least a potentially available punishment for
the respective charges at the time the offenses [in the
relevant cases] were committed.” Mangahas, 77 M.J.
at 224. But none of the decisions cited by the CAAF
relied on that distinction. And other decisions make
clear that such a distinction is irrelevant. The Fourth
Circuit, for example, has reasoned that “[e]ven assuming * * * that the death penalty could not have been
constitutionally imposed for [particular] crimes * * *
whether a crime is ‘punishable by death’ under
§ 3281 * * * depends on whether the death penalty may
be imposed for the crime under the enabling statute.”
Ealy, 363 F.3d at 296 (emphasis added); see, e.g.,
United States v. Gallaher, 624 F.3d 934, 940 (9th Cir.
2010), cert. denied, 564 U.S. 1005 (2011) (similar). The
CAAF’s position is irreconcilable with that reasoning.
This Court has previously granted review of CAAF
decisions whose reasoning is out of step with the reasoning of civilian courts of appeals. See, e.g., Scheffer,
523 U.S. at 311-312; Davis v. United States, 512 U.S.
452, 456 (1994). It should do the same here.
3. This case is a good vehicle for resolving the question presented. The CAAF ordered dismissal of the
rape charge solely on limitations grounds, and the Air
Force contended throughout the litigation that its prosecution of respondent was timely. Although the Air
Force in this case did not expressly ask the CAAF to
overrule its recent decision in Mangahas, its brief reiterated the consistent position that “Congress intended
26
for rape[s]” of the kind at issue here “to have an unlimited statute of limitations.” Gov’t C.A. Br. 23 n.9; see
United States v. Vonn, 535 U.S. 55, 58 n.1 (2002) (concluding that argument was adequately preserved
in similar circumstances); United States v. Williams,
504 U.S. 36, 44-45 (1992) (same).
Furthermore, because the effect of Mangahas and
the decision below is to foreclose future prosecutions,
additional vehicles for deciding the question presented
will not be readily available. As discussed above, see
p. 23, supra, the military branches are now declining to
bring prosecutions that would be barred under the
CAAF’s interpretation of the UCMJ limitations provision, meaning that the question presented will become
effectively unreviewable in this Court unless it grants
certiorari in either this case or one of the very small
number of other still-pending cases that may present it.
Granting certiorari in this particular case would allow the Court to address not only the correctness of
Mangahas, but also, if necessary, the CAAF’s interpretation of the 2006 NDAA. The Court should do so.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
MARY ELLEN PAYNE
Associate Chief
BRIAN C. MASON
Lt. Col., USAF
Deputy Chief
Government Trial and
Appellate Counsel Division
Department of the Air Force
JULY 2019
NOEL J. FRANCISCO
Solicitor General
BRIAN A. BENCZKOWSKI
Assistant Attorney General
ERIC J. FEIGIN
CHRISTOPHER G. MICHEL
Assistants to the Solicitor
General
PAUL T. CRANE
Attorney
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE ARMED FORCES
No. 16-0771
Crim. App. No. 38370
UNITED STATES, APPELLEE
v.
MICHAEL J. D. BRIGGS, LIEUTENANT COLONEL,
UNITED STATES AIR FORCE, APPELLANT
Argued: Dec. 4, 2018
Decided: Feb. 22, 2019
Military Judges: DAWN R. EFLEIN (arraignment)
and DONALD R. ELLER (trial)
Judge MAGGS delivered the opinion of the Court, in
which Chief Judge STUCKY, and Judges RYAN, OHLSON, and SPARKS, joined.
Judge MAGGS delivered the opinion of the Court.
In 2014, a general court-martial composed of a military judge alone found Appellant guilty, contrary to his
plea, of one charge and one specification of rape in violation of Article 120(a), Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 920(a) (2000), for conduct that occurred in 2005. For reasons set out below, we conclude
that the applicable statute of limitations requires the
finding and sentence to be set aside and the charge and
specification to be dismissed.
(1a)
2a
I.
Factual and Procedural Background
In May 2005, Appellant was a Captain and an F-16
instructor pilot. Airman First Class (A1C) DK was assigned to the aircrew life support equipment section of
Appellant’s squadron. Following an evening of heavy
drinking at or near Mountain Home Air Force Base in
Idaho, Appellant went to A1C DK’s room and forced her
to have sex with him even though she said “no” and
“stop” and tried to roll away. A1C DK did not immediately report the incident to law enforcement authorities,
but she did tell others about it.
Both Appellant and A1C DK remained in the Air
Force after their 2005 encounter. By July 2013, Appellant had become a Lieutenant Colonel, and DK had become a Staff Sergeant (SSgt). SSgt DK telephoned
Appellant to discuss the incident. Without Appellant’s
knowledge, SSgt DK recorded their conversation. During the telephone call, Appellant acknowledged his misconduct. He specifically told SSgt DK: “I will always
be sorry for raping you.”
The recording of the telephone call and other information led to the preparation of a sworn charge and
specification of rape, which was received by the summary court-martial convening authority on February 18,
2014, more than eight years after the rape occurred. 1
The case was subsequently referred to a general court-
For offenses that have a period of limitations, the accused has a
defense if the period of limitations expires before the “receipt of
sworn charges and specifications by an officer exercising summary
court-martial jurisdiction over the command.” Article 43(b)(1),
(2)(A), 10 U.S.C. §§ 843(b)(1), (2)(A).
1
3a
martial. Appellant did not raise the statute of limitations before or during the trial, and the military judge
did not advise Appellant that the statute of limitations
might provide a basis for dismissing the charge and
specification. 2 Contrary to his plea, the military judge
found Appellant guilty of the charge and specification
and sentenced him to a dismissal, confinement for five
months, and a reprimand. The convening authority approved the sentence as adjudged.
Appellant first attempted to raise the statute of limitations when he appealed to the United States Air Force
Court of Criminal Appeals (AFCCA). After initially
asserting several unrelated assignments of error, Appellant sought leave to file a supplemental assignment
of error asserting the statute of limitations.
The
AFCCA, however, denied leave to file the supplemental
assignment of error because Appellant had not raised
the statute of limitations at trial. The AFCCA subsequently rejected Appellant’s other assignments of error
and affirmed the adjudged and approved findings and
sentence. United States v. Briggs, No. ACM 38730,
2016 CCA LEXIS 385, 2016 WL 3682568 (A.F. Ct. Crim.
App. June 23, 2016).
Appellant then filed a petition for grant of review in
this Court. The assignments of error in the petition’s
supplement did not address the statute of limitations,
but pursuant to United States v. Grostefon, 12 M.J. 431
(C.M.A. 1982), Appellant personally asserted that his
As discussed further below, Rule for Courts-Martial (R.C.M.)
907(b)(2)(B) requires the military judge to inform the accused of the
right to assert the statute of limitations as a defense “if it appears
that the accused is unaware of [this] right.”
2
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trial counsel was ineffective for failing to raise and litigate a statute of limitations defense. We granted review of one assignment of error concerning the judicial
composition of the AFCCA. United States v. Briggs,
75 M.J. 467 (C.A.A.F. 2016). We denied review of the
ineffective assistance of counsel issue concerning counsel’s
failure to raise the statute of limitations. United States
v. Briggs, 76 M.J. 36 (C.A.A.F. 2016). We then affirmed
the decision of the AFCCA by summary disposition. 3
United States v. Briggs, 76 M.J. 338 (C.A.A.F. 2017).
Appellant next petitioned the Supreme Court of the
United States for a writ of certiorari. The Supreme
Court initially denied Appellant’s petition along with
others presenting the judicial composition issue. Abdirahman v. United States, 138 S. Ct. 2702 (2018)
(mem.). But on reconsideration, the Supreme Court
granted the petition as to Appellant, vacated our judgment affirming the AFCCA, and remanded the case to
us for further consideration in light of our decision in
United States v. Mangahas, 77 M.J. 220 (C.A.A.F. 2018).
Abdirahman v. United States, 139 S. Ct. 38 (2018).
Mangahas is a case concerning the statute of limitations for rape that we decided while Appellant’s petition
for certiorari was pending. In Mangahas, we corrected our interpretation of the version of Article 43(a),
UCMJ, 10 U.S.C. § 843(a), that was in force from 1986
Appellant contended that one judge on the AFCCA was disqualified because he was also assigned as a judge on the United States
Court of Military Commission Review. We rejected the argument because we previously had rejected the same argument in
United States v. Ortiz, 76 M.J. 189 (C.A.A.F. 2017). The Supreme
Court subsequently affirmed our judgment. United States v. Ortiz,
138 S. Ct. 2165 (2018).
3
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until 2006. 77 M.J. at 222. That version of Article
43(a), UCMJ, provided that “any offense punishable by
death, may be tried and punished at any time without
limitation.” 10 U.S.C. § 843(a) (1994). Two precedents
of this Court, United States v. Stebbins, 61 M.J. 366, 369
(C.A.A.F. 2005), and Willenbring v. Neurauter, 48 M.J.
152, 178 (C.A.A.F. 1998), had interpreted this language
to mean that the offense of rape did not have a period of
limitations because at the time those cases were decided, Article 120(a), UCMJ, provided that rape may “be
punished by death or such other punishment as a courtmartial may direct.” In Stebbins and Willenbring, we
recognized that the Supreme Court had earlier held in
Coker v. Georgia, 433 U.S. 584, 598 (1977), that imposing
capital punishment for the offense of rape of an adult
woman would violate the Eighth Amendment of the
United States Constitution. Stebbins, 61 M.J. at 369;
Willenbring, 48 M.J. at 178. But in both cases we concluded that the Coker decision did not affect the application of Article 43(a) to the offense of rape as defined in
Article 120(a). Stebbins, 61 M.J. at 369; Willenbring,
48 M.J. at 178. In Mangahas, however, we reconsidered
this view because there is, in fact, no set of circumstances
under which anyone could constitutionally be punished
by death for the rape of an adult woman. 77 M.J. at
223-24. Accordingly, we overruled Stebbins and Willenbring to the extent that they held that rape was punishable by death at the time of the charged offenses.
Id. at 222. We then concluded that the period of limitations for rape of an adult woman under the version of
Article 43(a), UCMJ, in force from 1986 until 2006, was
five years. Id.
Reconsidering Appellant’s statute of limitation defense in light of Mangahas in this remand also requires
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us to address whether a 2006 amendment to Article 43,
UCMJ, made by the National Defense Authorization
Act for Fiscal Year 2006 (NDAA FY 2006), Pub. L. No.
109-163, §§ 552-53, 119 Stat. 3136, 3264 (2006), applies to
an offense that occurred before its enactment. The relevant amendment, as discussed further below, provides
that the offense of rape “may be tried and punished
at any time without limitation.” Article 43(a), UCMJ,
10 U.S.C. § 843(a) (2012) (as amended by NDAA FY
2006 § 553). The Court in Mangahas noted the existence of the 2006 amendment to Article 43, UCMJ, but
concluded that the amendment did not affect the issues
before it. See generally Mangahas, 77 M.J. at 222 n.2. 4
To determine the effect, if any, of the 2006 amendment
to Article 43, UCMJ, on this case, we asked the parties
to brief and argue two issues:
I. DOES THE 2006 AMENDMENT TO ARTICLE
43, UCMJ, CLARIFYING THAT RAPE IS AN
OFFENSE WITH NO STATUTE OF LIMITATIONS, APPLY RETROACTIVELY TO OFFENSES COMMITTED BEFORE ENACTMENT OF THE AMENDMENT BUT FOR
WHICH THE THEN EXTANT STATUTE OF
LIMITATIONS HAD NOT EXPIRED?
II. CAN APPELLANT SUCCESSFULLY RAISE
A STATUTE OF LIMITATIONS DEFENSE
FOR THE FIRST TIME ON APPEAL?
In Mangahas, the statute of limitations had run prior to the enactment of the 2006 amendment. The Supreme Court has held that
applying a new statute of limitations to revive a previously timebarred prosecution violates the Constitution’s Ex Post Facto Clause.
Stogner v. California, 539 U.S. 607, 610 (2003). The 2006 amendment therefore could not apply to the case.
4
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United States v. Briggs, 78 M.J. 106 (C.A.A.F. 2018).
We turn now to these issues.
II.
Effect of the 2006 Amendment to Article 43, UCMJ
In light of our decision in Mangahas, the parties
agree that the version of Article 43, UCMJ, that existed
at the time of Appellant’s charged offense in 2005 established a five-year period of limitations. They further
agree that, if Congress had not amended Article 43,
UCMJ, in 2006, the period of limitations would have run
in 2010, long before the charges in this case were received by the convening authority in 2014. What they
disagree about is whether the 2006 amendment to Article 43, UCMJ, applies retroactively to a rape that occurred in 2005, thereby eliminating the statute of limitations for that offense. In other words, if the 2006
amendment does not apply retroactively, the finding of
guilt in this case should be set aside and the charge and
specification of this case should be dismissed. But if
the 2006 amendment does apply retroactively, the conviction may stand.
The relevant portion of the 2006 amendment is as follows:
SEC. 553. EXTENSION OF STATUTE OF LIMITATIONS FOR MURDER, RAPE, AND CHILD
ABUSE OFFENSES UNDER THE UNIFORM
CODE OF MILITARY JUSTICE.
(a) NO LIMITATION FOR MURDER OR RAPE.
—Subsection (a) of section 843 of title 10, United
States Code (article 43 of the Uniform Code of
Military Justice), is amended by striking “or
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with any offense punishable by death” and inserting “with murder or rape, or with any other
offense punishable by death”.
NDAA FY 2006 § 553(a).
Appellant contends that the 2006 amendment applies
only to conduct occurring after its enactment, and that
the period of limitations applicable to his conduct is five
years based on the statute of limitations in effect when
the rape occurred. The Government takes the opposite
position, asserting that the 2006 amendment applies and
permits Appellant to be tried and punished for a rape
that occurred in 2005, before the enactment of the 2006
amendment.
We generally apply the statute of limitations that was
in effect at the time of the offense. Mangahas, 77 M.J.
at 222 (citing Toussie v. United States, 397 U.S. 112, 115
(1970)). We generally presume that subsequent amendments do not apply because there is both a presumption
against retroactive legislation, see INS v. St. Cyr, 533 U.S.
289, 316 (2001), and a presumption in favor of repose,
United States v. Habig, 390 U.S. 222, 227 (1968). The
Supreme Court, moreover, has instructed that “congressional enactments . . . will not be construed to have
retroactive effect unless their language requires this result.” Bowen v. Georgetown Univ. Hospital, 488 U.S.
204, 208 (1988).
We followed these principles in United States v. Lopez
de Victoria, 66 M.J. 67, 73-74 (C.A.A.F. 2008). In that
case, the accused was charged in 2006 with committing
indecent acts with a child between 1998 and 1999. Id.
at 68. At the time of the offense, the period of limitations for this offense under Article 43(b), UCMJ, was
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five years. Id. at 71. But in 2003, Congress amended
Article 43(b), UCMJ, establishing a new period of limitations for indecent liberties with a child that expires
when the child turns twenty-five years old. Id. at 72 (citing Article 43(b)(2)(A), UCMJ, 10 U.S.C. § 843(b)(2)(A)).
The question was whether the amended statute of limitations governed the case. We concluded that the 2003
amendment did not apply based on the general presumption against retroactive legislation, the general
presumption in favor of liberal construction of criminal
statutes of limitation in favor of repose, and the absence
of any indication of congressional intent to apply the
2003 amendment retrospectively. Id. at 74.
Appellant argues that we should apply the same analysis to this case that we applied in Lopez de Victoria and
that we should similarly conclude that the 2006 amendment to Article 43, UCMJ, does not apply to his case.
We agree. The presumption against retroactive legislation and the presumption in favor of liberal construction of criminal statutes of limitation in favor of repose
apply with equal force because we see nothing in the text
of the 2006 amendment that indicates that the amendment should have a retroactive effect. Section 553(a)
does not distinguish between offenses that have already
occurred and those that have not and does not specify an
effective date. In Lopez de Victoria, we concluded that
similar silence in the text of the 2003 amendment was
ineffective to overcome the presumption against retroactivity and the presumption in favor of repose. Id. at
73-74.
10a
To the extent that legislative history might be relevant, 5 we also see nothing that indicates any intention
for the 2006 amendment to apply retroactively. The
NDAA FY 2006 was introduced in Congress in 2005 as
H.R. 1815. No version of this bill as it worked its way
through the House and Senate contained any provision
indicating that the amendment would apply retroactively.
See National Defense Authorization Act for Fiscal Year
2006, H.R. 1815, 109th Cong. (2005), https://www.congress.
gov/bill/109th-congress/house-bill/1815/text (providing the
text of H.R. 1815 as introduced, reported, and engrossed
in the House, as referred and engrossed in the Senate,
and as an enrolled bill). The discussions of the amendment in the House Report and the Conference Report
also say nothing about retroactivity. See H.R. Rep.
No. 109-89, at 314, 342 (2005) (House Report); H.R. No.
109-360, at 703 (2005) (Conference Report). In Lopez
de Victoria, we recognized a similar absence of evidence
in the legislative history as a key factor in concluding
that the 2003 amendment did not establish the period
of limitations for offenses that had already occurred.
66 M.J. at 73.
We considered legislative history in Lopez de Victoria, 66 M.J.
at 73. Since that decision, the Supreme Court has explained that
“legislative history is not the law” and that courts “do not inquire
what the legislature meant” but instead “ask only what the statute
means.” Epic Systems Corp. v. Lewis, 138 S. Ct. 1612, 1631 (2018)
(internal quotation marks omitted) (citations omitted). In the matter before us, however, no party has asked us to reconsider the approach of Lopez de Victoria and whether relying on legislative history is appropriate when determining whether statutory amendments apply retroactively. We therefore leave that question for another case.
5
11a
The Government, however, argues that Congress intended the 2006 amendment to apply retroactively because the context of the 2006 amendment is different
from the context of the 2003 amendment that we considered in Lopez de Victoria. In 2003, Congress clearly
intended to change the period of limitations applicable
to the offense of indecent liberties. But in 2006, the
Stebbins and Willenbring precedents had established
that rape had no period of limitations. Thus, according
to the Government, Congress must have believed that it
was merely codifying this Court’s precedent, not changing the law. In such circumstances, the Government
asserts, Congress would have intended to maintain the
status quo and would have wanted the amendment to apply to offenses occurring both before and after the effective date of the amendment.
We reject this argument for two reasons urged by
Appellant. First, the 2006 amendment to Article 43(a),
UCMJ, was not limited to rape; it also eliminated the
previous five-year period of limitations for unpremeditated murder. 6 Congress therefore did not intend the
2006 amendment simply to maintain the status quo. Second, even if Congress believed that the amendment was
From 1986 until 2006, Article 43(a), UCMJ, provided no period
of limitations for “offenses punishable by death” and a five-year period of limitations for other offenses. See National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, § 805(a),
100 Stat. 3816, 3908 (1986) (subsequently amended by NDAA FY
2006 §§ 552-53). Unpremeditated murder in violation of Article
118(2), UCMJ, is not an offense punishable by death. Article 118(2),
(4), UCMJ, 10 U.S.C. § 918(2), (4). Accordingly, any unpremeditated murder committed between 1986 and 2006 had only a five-year
period of limitations. See Willenbring, 48 M.J. at 178-79 (discussing the history of amendments to Article 43, UCMJ).
6
12a
codifying existing law with respect to the statute of limitations for rape, that belief alone would not imply that
Congress intended for the amendment to apply retroactively. In such circumstances, Congress would have
had no reason to consider the issue of retroactivity.
And if Congress did not actually decide to make the statute apply retroactively, then the presumption of nonretroactivity should control. See Lopez de Victoria,
66 M.J. at 74.
The Government alternatively argues that applying
the 2006 amendment to Appellant’s conduct is not truly
a “retroactive” application of the law because the 2006
amendment did not attach any new legal obligations on
Appellant. The Government explains that the 1998 Willenbring precedent put Appellant on notice that his offense might not have a period of limitations. The 2006
amendment merely confirmed what Willenbring already
said.
We recognize that not all changes to a statute that
affect conduct that occurred prior to its enactment have
a “retroactive effect.” Landgraf v. USI Film Products,
511 U.S. 244, 270 (1994). But the Government’s argument that the 2006 amendment did not have a retroactive effect is foreclosed by our analysis in Lopez de Victoria. In Lopez de Victoria, we held that applying an
extended statute of limitations to conduct that had already occurred attached new legal consequences to that
conduct and thus was a retroactive application of the
law. 66 M.J. at 73. On the basis of this precedent, we
conclude that applying the 2006 amendment to Appellant’s conduct, which occurred in 2005 and prior to the
amendment, has an impermissible retroactive effect.
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III.
Waiver, Forfeiture, and Related Arguments
R.C.M. 907(b)(2)(B) addresses the procedure for asserting the statute of limitations. It provides:
A charge or specification shall be dismissed upon motion made by the accused before the final adjournment of the court-martial in that case if:
. . . .
(B) The statute of limitations (Article 43) has
run, provided that, if it appears that the accused is
unaware of the right to assert the statute of limitations in bar of trial, the military judge shall inform
the accused of this right. . . .
The parties agree on two points about the meaning of
this complex provision. First, the accused has a right
before final adjournment of the case to assert the statute of limitations as a ground for dismissing a charge or
specification. Second, the military judge must inform
the accused of this right if it appears that the accused is
unaware of it. They disagree, however, about what
should happen in a case like this in which (1) the accused
did not raise the statute of limitations before or at trial,
(2) the military judge did not inform the accused of the
right to raise the statute of limitations, and (3) raising
the statute of limitations most likely would have been
futile because precedents in effect at the time of trial
held that there was no period of limitations for the offense of rape.
In the Government’s view, R.C.M. 907(b)(2)(B) merely
prevents a reviewing court from concluding that the accused knowingly and intentionally waived the statute
of limitations as a defense. The Government asserts
that the reviewing court still must treat the defense as
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forfeited, and may reverse a finding of guilt only if it
finds plain error. See United States v. Jones, 78 M.J.
37, 44 (C.A.A.F. 2018) (forfeited issues are reviewed for
plain error). In this case, the Government contends that
the Court cannot find plain error because the Supreme
Court held in Musacchio v. United States, 136 S. Ct. 709,
718 (2016), that an accused’s failure to assert the statute
of limitations is not plain error.
We disagree. In Musacchio, the Supreme Court reasoned that a statute of limitations defense is not jurisdictional and therefore the “defense becomes part of a
case only if the defendant puts the defense in issue.”
Id. Accordingly, “[w]hen a defendant does not press
the defense, then, there is no error for an appellate court
to correct—and certainly no plain error.” Id. The
Supreme Court, however, made this decision in the context of a federal criminal prosecution governed by the
Federal Rules of Criminal Procedure. We think that
cases under the Rules for Courts-Martial are distinguishable. As indicated above, R.C.M. 907(b)(2)(B) requires
the military judge to inform the accused of the right to
assert the statute of limitations. The Federal Rules of
Criminal Procedure have no analogous provision. Accordingly, in a court-martial, R.C.M. 907(b)(2)(B) makes
the statute of limitations “part of a case” whenever the
accused has a statute of limitations defense and does not
appear to know it. We therefore can review Appellant’s
failure to raise the statute of limitations for plain error.
To establish plain error, Appellant must show “(1) error that is (2) clear or obvious and (3) results in material
prejudice to his substantial rights.” United States v.
Armstrong, 77 M.J. 465, 469 (C.A.A.F. 2018) (internal
15a
quotation marks omitted) (citation omitted). Plain error is assessed at the time of appeal. United States v.
Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008) (“where the
law at the time of trial was settled and clearly contrary
to the law at the time of appeal—it is enough that an error be plain at the time of appellate consideration” (internal quotation marks omitted) (citation omitted)). Our
decision in Mangahas has now established that the period of limitations for a rape committed in 2005 was five
years. Accordingly, it was clear and obvious error—at
least as assessed in hindsight on appeal, entertaining
the fiction that Mangahas had been decided at the time
of Appellant’s court-martial—for the military judge not
to inform Appellant of the five-year period of limitation
when the sworn charges against him were received by
the summary court-martial convening authority in 2014.
This clear and obvious error warrants relief because
the error “results in material prejudice to [Appellant’s]
substantial rights.” Armstrong, 77 M.J. at 469. If the
military judge had informed Appellant of a possible statute of limitations defense, it requires no speculation to
believe that Appellant would have sought dismissal. Indeed, Appellant testified that after being confronted by
the victim eight years after the offense, he researched
the statute of limitations to see if it provided a defense.
IV.
Judgment
The judgment of the United States Air Force Court
of Criminal Appeals is reversed. The finding and sentence are set aside. The charge and specification are
dismissed.
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APPENDIX B
UNITED STATES AIR FORCE
COURT OF CRIMINAL APPEALS
ACM 38730
UNITED STATES
v.
LIEUTENANT COLONEL MICHAEL J.D. BRIGGS
UNITED STATES AIR FORCE
23 June 2016
OPINION OF THE COURT
Sentence adjudged 7 August 2014 by GCM convened
at Spangdahlem Air Base, Germany. Military Judge:
DAWN R. EFLEIN (arraignment) and DONALD R.
ELLER, JR. (sitting alone).
Approved Sentence:
Dismissal, confinement for
5 months, and a reprimand.
Before: ALLRED, MITCHELL, and MAYBERRY,
Appellate Military Judges
This opinion is issued as an unpublished opinion and,
as such, does not serve as precedent under Rule of
Practice and Procedure 18.4.
MAYBERRY, Judge:
At a general court-martial composed of a judge alone,
Appellant was convicted, contrary to his plea, of rape in
17a
violation of Article 120, UCMJ, 10 U.S.C. § 920. 1 The
court sentenced Appellant to a dismissal, confinement
for 5 months, and a reprimand. The convening authority approved the sentence as adjudged.
On appeal, Appellant raises four issues: (1) his trial
defense counsel provided ineffective assistance of counsel, (2) the military judge erred in failing to disclose all
of SSgt DK’s mental health records, (3) the convening
authority erred by denying a request for rehearing, and
(4) the evidence is factually insufficient.
Background
In 2005, Appellant was a Captain stationed at Luke
Air Force Base (AFB) as an F-16 instructor pilot and
DK was an A1C also assigned at Luke AFB in aircrew
life-support. In May of 2005, both of them, along with
other members from Luke, went TDY to Mountain Home
AFB for a two-week exercise. According to SSgt DK
they had never engaged in sexual contact prior to the
rape. Appellant testified they had two consensual sexual encounters. The event that gives rise to the charge
occurred during the last few days of the TDY.
SSgt DK did not formally report the incident until
3 July 2013, when she was a SSgt stationed at RAF
Lakenheath and Appellant was a Lieutenant Colonel (Lt
Col) stationed at Spangdahlem Air Base. During the intervening eight years, SSgt DK had “reported” a sexual
encounter without naming Appellant to five individuals.
Of those individuals, her mother and one other witness
Because the offense occurred in 2005, Appellant was charged
with a violation of Article 120, UCMJ, 10 U.S.C. § 920, for offenses
committed prior to 1 October 2017. Manual for Courts-Martial,
United States, app. 27 at A27-1 (2012 ed.).
1
18a
testified that she characterized it as rape. On 12 July
2013, SSgt DK participated in a pretext phone call with
Appellant. The call lasted approximately 20 minutes.
The relevant portions of the phone call follows:
[Appellant]:
Lieutenant Colonel Briggs.
[SSgt DK]: Hi, this is Sergeant [K]. Actually, you
probably remember me as Airman [W] from when we
were stationed at Luke together.
[Appellant]:
Yes.
[SSgt DK]: I was wondering if I could have a few
minutes of your time to talk to you about something.
[Appellant]:
Sure.
[SSgt DK]: Um, I wanted to talk to you about when
we were TDY to Mountain Home together.
[Appellant]:
Yeah.
[SSgt DK]: I’ve been going to counseling for a
while. Um, my counselor thought that it would be a
good idea if I could call you to get closure for what
happened the last night—
[Appellant]:
Okay.
[SSgt DK]:
—of our TDY.
[Appellant]:
Sure.
[SSgt DK]: I wanted to know why you had sex with
me when I was so drunk?
[Appellant]: Well, I was pretty drunk as well. That’s
not an excuse. Um, you know, we were both really
into each other. Um, I don’t know if there was any,
you know, off-duty stress in my life or whatever.
I’m sure there was, but that’s not an excuse either.
19a
I’ve thought about that a lot, um, over the years at
various functions or various, you know, training or
whatever. Um, you know,—yeah, so we were both
really drunk. I think you were much more drunk
than I was. And, um, I think neither one of us—you
know, in hindsight neither one of us wanted that to
happen. Um, that night it seemed like both of us
wanted it to happen. Um, neither one of us—I mean,
both of us were coherent throughout the whole evening and then it was—I mean, the next day it was, um,
you know, a tremendous amount of regret, um, remorse. “Oh, my God, what happened? How did I
do this?” Um, and I’m—and that was from my state
of drunkenness. From yours I don’t know what happened. I assume you passed out after—afterwards.
But, you know, I have relived that decision-making
and how did we—how did it get to that point. And,
um, I never—I blame myself certainly, um, just based
on my position, you know, and being less drunk than
you were. Um, it’s not like I didn’t know what was
happening. Uh, I honestly—I honestly don’t think
that—um, I honestly don’t think that—I honestly
don’t think that we did anything that right at that moment we didn’t want to do. Certainly afterwards neither one of us wanted to have done that. Certainly we
both regret that. Um, and, you know, our—obviously
I haven’t had any contact with you since, but I can
only imagine that it has affected you in a way as it has
affected me, um, in different ways for each of the two
of us. Um, it was definitely a turning point or definitely a significant point, but, um,—and it is something I’ve learned a lot from, but when you asked me
why did it happen or why did I do that I didn’t—um,
I didn’t make the—I didn’t make the determination
20a
that neither one of us were in our right mind to make
decisions and I wasn’t really thinking about that.
[SSgt DK]: I told you “no”. I said to “stop”. I tried
to roll away from you and you pulled me back. Why?
[Appellant]:
[No response].
[SSgt DK]: Why didn’t you just quit?
how drunk I was.
You knew
[Appellant]: I did. I did. I mean, we could hardly
stand when we were getting checked at the front gate.
I did.
[SSgt DK]:
Why didn’t you just—
[Appellant]:
Um.
[SSgt DK]: —let [E] take me back to my room?
Why did you come with?
[Appellant]: I did. She did take you back to your
room. I went back to mine and then I came back
over. Um, yeah, we went into each of our buildings
or whatever and then after I got to my room and I
assume you had gotten to yours that’s when I came
back over. I think I was—um, well, I was young and
immature and, um, younger—um, younger and immature and, um, had a—didn’t have an appreciation
for, uh, everyone as human beings or everyone as—
um, I guess—I don’t know. I didn’t—I didn’t respect people in the way that I should have. I didn’t
respect everyone as individuals and equals as I should
have. Um, you know, I think I told you this, you
know, in the week or two before that you’re like a little sister. I was really fond of you; really into you.
I think that was obvious. I didn’t—and, uh, maybe
I used your—you know, your—how you reacted to me
21a
when we were, you know, sober when we were at
work, when we were not drunk, um, as like what you
really, really wanted instead of listening to you when
I needed to; when I should have, and doing the responsible and appropriate thing, which would have
been probably just not even to go over to your room,
you know, in the first place. . . .
But it certainly—I mean, I’m sorry.
[SSgt DK]: I bled for days afterwards.
sit down. I was so bruised and swollen.
[Appellant]:
Oh, my God.
[SSgt DK]:
What did you do to me?
I couldn’t
What—
[Appellant]: I—I don’t know what to say. I didn’t—
I didn’t know you were—I didn’t know you were
physically hurt like that. I didn’t know. I mean,
not no idea; I have no idea. Um—
[SSgt DK]: I told you it hurt. I tried to get away
from you. I told you to stop. Why didn’t you listen
to me?
[Appellant]:
Um—
[SSgt DK]:
Why didn’t you stop?
[Appellant]:
I didn’t—
[SSgt DK]:
Did you use a condom?
[Appellant]:
Yeah.
[SSgt DK]: I want—I need to hear you apologize
for what you did.
[Appellant]: I am so, so sorry for being selfish, for
disrespecting you, for not listening to you, for not be-
22a
ing your—not just your friend, but not being professional and being a human being when you needed it.
I’m so sorry for pushing myself on you; for putting
my selfish, distorted needs and subjecting you to
that; for not respecting you as a person and listening
to you and stopping.
[SSgt DK]: You raped me. You destroyed me. For
eight years, I have had to live with this by myself. I
can’t talk about it; I can’t tell anybody. You took
everything from me. Why?
[Appellant]: I didn’t know the repercussions and
even if I did I wasn’t—I was selfish. I was—
[SSgt DK]:
raping me.
I need to hear you say you are sorry for
[Appellant]: I am sorry. I have been sorry.
always be sorry for raping you.
[SSgt DK]:
I will
Thank you.
[Appellant]: If there is anything I could do or can
do—if there is any way I can make amends or help
you heal or ease your suffering or pain, either let me
know or have someone let me know, or whatever.
[SSgt DK]: Just hearing you admit it and say that
you did it is enough for right now. Thank you. I—I
have to go now.
[Appellant]:
Okay.
[SSgt DK]:
Bye.
Additional facts necessary to resolve Appellant’s assignments of error are provided below.
23a
Ineffective Assistance of Counsel
In reviewing claims of ineffective assistance of counsel, we look at the questions of deficient performance and
prejudice de novo. United States v. Datavs, 71 M.J.
420, 424 (C.A.A.F. 2012); United States v. Gutierrez, 66
M.J. 329, 330-31 (C.A.A.F. 2008).
To establish ineffective assistance of counsel, “an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice.” United States v. Green, 68 M.J. 360,
361 (C.A.A.F. 2010) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). Under the first prong, the appellant has the burden to show that his “counsel’s performance fell below an objective standard of reasonableness
—that counsel was not functioning as counsel within the
meaning of the Sixth Amendment.” United States v. Edmond, 63 M.J. 343, 351 (C.A.A.F. 2006) (quoting United
States v. Davis, 60 M.J. 469, 473 (C.A.A.F. 2005)). The
question is therefore did “the level of advocacy ‘fall[]
measurably below the performance . . . [ordinarily
expected] of fallible lawyers?’ ” United States v. Haney,
64 M.J. 101, 106 (C.A.A.F. 2006) (quoting United States
v. Polk, 32 M.J. 150, 153 (C.M.A. 1991)) (alterations in
original). Under the second prong, the deficient performance must prejudice the accused through errors “so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” United States v. Tippit, 65 M.J.
69, 76 (C.A.A.F. 2007) (quoting Strickland, 466 U.S. at
687). Counsel is presumed competent until proven otherwise. Strickland, 466 U.S. at 689.
Trial defense counsel’s strategy was to show that
SSgt DK “had a regrettable sexual experience with a
married officer who was a jerk and after eight years she
24a
reconstructed her memory of the event through the lens
of Sexual Assault Prevention and Response (SAPR) training, guilt, and emotional instability.” As a tactical choice,
trial defense counsel decided not to try to portray SSgt
DK as a liar. This strategy was largely driven by the
fact that Appellant’s statements during the pretext
phone call essentially corroborated every aspect of the
sexual encounter except for the issue of consent.
Appellant asserts trial defense counsel’s decision not
to introduce evidence of Appellant’s character for truthfulness and non-violence as well as evidence of SSgt
DK’s character for untruthfulness constituted ineffective assistance of counsel. While appellate counsel may
have chosen a different strategy, it does not mean that
the strategy used at trial was not reasonable. Trial defense counsel did interview potential character witnesses and made the decision that attacking SSgt DK
did not provide them with the best strategy to win.
“Defense counsel do not perform deficiently when they
make a strategic decision to accept a risk or forego a potential benefit, where it is objectively reasonable to do so.”
Datavs, 71 M.J. at 424 (citing United States v. Gooch,
69 M.J. 353, 362-63 (C.A.A.F. 2011)).
Appellant also alleges his trial defense counsel were
ineffective by failing to file a motion to exclude the evidence obtained from his government computer or failing
to object to its admission.
Mil. R. Evid. 314(d) states:
Government property may be searched under this
rule unless the person to whom the property is issued
or assigned has a reasonable expectation of privacy
25a
therein at the time of the search. Under normal circumstances, a person does not have a reasonable expectation of privacy in government property that is
not issued for personal use. . . .
(Emphasis added.) The analysis to this rule recognizes
that the presumption that there is no reasonable expectation of privacy in government property is rebuttable.
Manual for Courts-Martial, United States, app. 22 at A2226 (2012 ed.).
Whether there is a reasonable expectation of privacy
in government property is determined under the totality
of the circumstances, which includes the rebuttable presumption that an accused has no reasonable expectation
of privacy in government property. See, e.g., Samson
v. California, 547 U.S. 843, 848 (2006); Mil. R. Evid.
314(d). In United States v. Long, 64 M.J. 57, 63 (C.A.A.F.
2006), our superior court held that the accused had a
subjective expectation of privacy in emails sent on her
government computer, but this decision was based on
the facts of that case, primarily the compelling testimony of the command’s network administrator asserting the agency practice of recognizing the privacy interests of users in their email. A short time later, in United
States v. Larson, 66 M.J. 212, 216, (C.A.A.F. 2008), the
court reiterated that its decision in Long was rooted in
the “particular facts of that case,” and held that there
was no expectation of privacy when the facts established
that when the appellant logged on to the computer, he
was required to click a button accepting conditions listed
in a banner, which stated that the computer was Department of Defense property, was for official use, and that
he consented to monitoring.
26a
Appellant’s case is more analogous to Larson in that
to log on to his computer Appellant had to click on a banner acknowledging he was aware his computer activity
could be monitored. Moreover, none of the evidence
presented was password protected beyond standard
system security protocols. The only evidence before us
is that the evidence offered and admitted consisted of a
history of Appellant’s Internet usage immediately prior
to and after the pretext phone call on 12 July 2013.
Trial defense counsel’s decision not to file a motion to
exclude the computer evidence and their decision not to
object to its admission was not deficient. As clearly
stated in their supporting affidavits, they made the decision based on their understanding of the law as well as
the facts and circumstances surrounding a military member’s use of government furnished computer equipment.
“When an appellant argues that counsel was ineffective
for erroneously waiving a motion, it makes sense to deny
the claim if the appellant would not be entitled to relief
on the erroneously waived motion, because the accused
cannot show he was harmed by not preserving the issue.” United States v. Bradley, 71 M.J. 13 (C.A.A.F.
2012) (citing United States v. Cornelius, 37 M.J. 622, 626
(A.C.M.R. 1993)).
After considering the totality of the evidence presented at trial, we find Appellant failed to meet his burden of demonstrating that his trial defense counsel’s
conduct resulted in prejudice. See Green, 68 M.J. at
361. The trial defense counsel made tactical decisions
regarding the appropriate strategy they believed would
be most successful in light of the totality of the evidence,
including admissions by Appellant. This was an “ob-
27a
jectively reasonable choice in strategy from the alternatives available at the time” to the defense. United States
v. Dewrell, 55 M.J. 131, 136 (C.A.A.F. 2001). We decline
to second-guess those reasonable decisions made at trial
by defense counsel. See United States v. Perez, 64 M.J.
239, 243 (C.A.A.F. 2006). In light of these conclusions
and applying the applicable standards, we find Appellant has failed to meet his burden of demonstrating that
any deficiency in his defense counsel’s conduct resulted
in prejudice.
Failure by Military Judge to Disclose SSgt DK’s
Mental Health Records 2
Prior to trial, the defense requested, pursuant to Mil.
R. Evid. 513, the mental health records of SSgt DK. The
bases for the request were to determine what she may
have said regarding the charged offense to her providers, what any diagnosis was, what treatment techniques
were used, and what the effects of her treatment were
on her ability to accurately recall the events in question
and truthfully testify nine years later. The military
judge held the required hearing where SSgt DK acknowledged seeing mental health providers at three duty stations but only speaking about the rape at one of those
locations. SSgt DK’s special victims’ counsel (SVC) was
present at the hearing and indicated to the military
judge that he possessed what he believed to be all of
SSgt DK’s mental health records from those locations.
These briefs were filed under seal and oral argument on this issue was conducted in a closed court proceeding based on the sensitive
nature of the evidence. Our opinion excludes any direct references
to the contents of the records except as necessary for this holding.
2
28a
He provided those records, totaling 96 pages, to the military judge.
The military judge performed an in camera review of
the records. During that review, he determined that
they were incomplete because one page indicated it was
“page 1 of 2” but the next page was not in the records.
The military judge informed counsel, including the SVC,
and signed an order requesting the records be sent directly to him from the facility in question. In response,
the military judge received 67 pages by email, some of
which were duplicates, some were “new,” and the “missing” page was still not provided. 3 After his review, he
released 83 pages (out of 127 4 ), including all but one
page from the facility where she discussed the rape, 5 to
the trial and defense counsel. The military judge announced that he reviewed the records with a “did she
talk about this case” filter. After reviewing those documents, civilian trial defense counsel indicated that his expert opined that there were some records disclosed that
Our review of the record confirms that there is a page in both
Appellate Exhibit XXI and Appellate Exhibit XXXI that states it is
page 1 of 2 and the page following is not page 2 of 2. However, a
thorough comparison of the records reveals that there is a page 2 of
2 located in the records which follows what is marked as page 1 of 1.
Furthermore, our review of the content of the page marked 1 of 2
and comparison to similar documents within the same set of records
supports that page 1 contains all of the substantive records associated with that date’s visit, including the signature of the provider.
We do not believe this “missing” page, if it is in fact not contained
elsewhere, affects the content of the records for that date.
4
Although there were 163 total pages reviewed by the military
judge, 36 pages were exact duplicates.
5
One page, the General Instructions for completing the DD Form
2870 (Authorization for Disclosure of Medical or Dental Information)
was not provided.
3
29a
should have generated additional records (questionnaires that typically result in notes when provider discussing those with patient). The consultant further asserted that there was nothing that caused him to ask for
the notes, he was really just asking to see if they were
present. The military judge indicated that those notes
did in fact exist in what he had reviewed, but he did not
find them relevant. After SSgt DK testified during
sentencing, the military judge released all of her mental
health records to both parties.
We review a military judge’s ruling on a discovery
request for abuse of discretion. United States v. Roberts,
59 M.J. 323, 326 (C.A.A.F. 2004). “A military judge
abuses his discretion when his findings of fact are clearly
erroneous, when he is incorrect about the applicable law,
or when he improperly applies the law.” Id. In the
case before us, like Roberts, we are reviewing the military judge’s determination of whether this requested evidence was “material to the preparation of the defense”
for purposes of the Government’s obligation to disclose
under Rule for Courts-Martial (R.C.M.) 701(a)(2)(A).
“The military judge’s determination of materiality in
this respect is a question of law that we review de novo.”
Id. “Our review of discovery/disclosure issues utilizes
a two-step analysis: first, we determine whether the
information or evidence at issue was subject to disclosure or discovery; second, if there was nondisclosure of
such information, we test the effect of that nondisclosure on the appellant’s trial.” Id. at 325.
Appellant now argues that the records are incomplete because there are no in-patient records despite the
fact that a box was checked requesting both in and out
patient records and that he should have received all of
30a
the mental health records as discovery, pursuant to
R.C.M. 701. He asserts these records were material to
the preparation of the defense in that they could have
assisted the defense in the development of strategies,
cross-examination, and argument on findings as well as
sentencing. R.C.M. 701(a)(2)(B) entitles the defense,
upon request, “to inspect . . . [a]ny results or reports
of physical or mental examinations . . . which are
within the possession, custody, or control of military authorities, the existence of which is known or by the exercise of due diligence may become known to the trial
counsel, and which are material to the preparation of the
defense. . . . ” R.C.M. 701(g) places responsibility
for regulating discovery on the military judge. R.C.M.
703(a) gives the prosecution and the defense “equal opportunity to obtain witnesses and evidence, including
the benefit of compulsory process.” However, because
the information being sought is privileged, the articulated basis for materiality must first justify piercing the
privilege.
With regard to the “missing” in-patient records, there
is no showing that any actually exist. There is nothing
more than a request for records which resulted in the
production of only out-patient records. Additionally,
when the records were provided to counsel after SSgt
DK testified on sentencing, there was no inquiry or request for additional records by any party. Under Mil.
R. Evid. 513(a), and in accordance with R.C.M. 701(f ),
records of psychotherapist-patient communication are
generally protected from release during discovery.
Among the enumerated exceptions permitting release,
only Mil. R. Evid. 513(d)(8)—authorizing disclosure when
31a
“constitutionally required”—applies to the present case.6
Appellant categorizes the withheld evidence as Brady evidence under Brady v. Maryland, 373 U.S. 83, 87, (1963)
and Giglio v. United States, 405 U.S. 150, 154, (1972).
Appellant’s reliance on a due process right to compulsory discovery was addressed by the United States Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39
(1987). The court held that the Confrontation Clause 7
does not amount to a constitutionally compelled rule of
pretrial discovery. Id at 52. Moreover, the holding explicitly stated that the Supreme Court “has never held—
even in the absence of a statute restricting disclosures—
that a defendant alone may make the determination as
to the materiality of the information.” Id. at 59. “There
is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford
v. Bursey, 429 U.S. 545, 559 (1977). The Court in Ritchie
held that in camera review by the judge, guided by a
specific request by the defense for information alleged
to be material ensures a fair trial. Ritchie, 480 U.S. at
60. In camera review balances the need to protect the
privilege and the right to discovery of material information. The Ritchie ruling indicates that an evidentiary privilege may constitutionally prevent disclosure
based on policy reasons, as Mil. R. Evid. 513 does.
Among the records not disclosed to the Defense was
a two-page intake form, prepared in 2006, wherein SSgt
DK denies being hurt within the last 12 months and does
In 2015, Mil. R. Evid. 513 was amended, eliminating the “constitutionally required” exception.
7
U.S. CONST. amend. VI.
6
32a
not circle the options “sexual abuse” or “victim of violence.” Appellant argues before us that the comments
on the form were inconsistent with SSgt DK’s testimony
and should have been released. We note, however, that
the cross-examination of SSgt DK at trial repeatedly
covered the fact that she had not reported the sexual assault to her providers prior to 2013, so while the intake
form is inconsistent with her testimony that she was
raped by Appellant in 2005, it is consistent with her testimony that she did not report the rape until years later.
We recognize that SSgt DK’s “statements” when filling
out that intake form could constitute an inconsistent
statement. We find that the judge abused his discretion by not disclosing these pages in discovery.
In Roberts, our superior court clarified the respective
tests and burdens articulated in a number of their decisions dealing with materiality of undisclosed, discoverable evidence. They adopted two appellate tests for determining materiality with respect to the erroneous nondisclosure of discoverable evidence; the first test applies
to those cases in which the defense either did not make
a discovery request or made only a general request for
discovery. Roberts, 59 M.J. at 326. In those instances,
once the appellant demonstrates wrongful nondisclosure,
“the appellant will be entitled to relief only by showing
that there is a ‘reasonable probability’ of a different result at trial had the evidence been disclosed.” Id at
326-27. “The second test is unique to our military practice and reflects the broad nature of discovery rights
granted the military accused under Article 46. Where
an appellant demonstrates that the Government failed
to disclose discoverable evidence in response to a specific request or as a result of prosecutorial misconduct.”
Id. at 327. In those situations, “the appellant will be
33a
entitled to relief unless the Government can show that
nondisclosure was harmless beyond a reasonable doubt.”
In the case before us, the military judge reviewed the
evidence under Mil. R. Evid. 513 and R.C.M 701.
These facts distinguish the issue before us from a direct
application of the process set forth in Roberts because
there, our superior court held that it was not reviewing
any trial level decision. Roberts, 59 M.J. at 327 n.3.
Here, the military judge’s decision to even conduct an in
camera review must be given deference because it is a
prerequisite to any further consideration of the evidence
at issue.
The Defense rationale for piercing the Mil. R. Evid.
513 privilege was the need to consider prior inconsistent
statements and possible memory reconstruction techniques. Based on Appellant’s assertion that trial defense counsel’s strategy was deficient, counsel now urge
that we not only review the military judge’s decision to
conduct an in camera review and subsequent disclosure
but also to substitute a completely different rationale for
doing an in camera review focusing on SSgt DK’s motive
to lie. We give deference to the military judge’s decision to conduct the in camera review based on the justification provided by trial defense counsel. Using that
factual scenario, we will review the military judge’s erroneous failure to provide those two pages using the
“harmless beyond a reasonable doubt” standard.
SSgt DK’s responses on the intake form, that she had
not been raped or been a victim of violence, were both
relevant to cross-examination. However, Appellant’s
counsel extensively cross-examined SSgt DK on her failure to report the sexual assault; the fact that while she
did seek counseling for a number of issues, she never
34a
mentioned the sexual assault until 2013; her inability to
recall details; and how her memory gained more specificity over the course of her interviews with OSI. Disclosure of the additional evidence from the mental health
records regarding “untruthfulness by omission” by SSgt
DK would not have created reasonable doubt that did
not otherwise exist. The undisclosed information might
have weakened the reliability of SSgt DK’s testimony
somewhat, but the fact that she had failed to report the
rape for many years despite repeated counseling was
before the factfinder. However, in light of the evidence
of Appellant’s guilt, much of it coming from his own admissions, any argument Appellant could have made
would have been minimally effective, at best. This nondisclosure prior to sentencing was harmless beyond a
reasonable doubt.
The remainder of the records that Appellant now cites
as being impermissibly withheld by the military judge deal
with evidence that he asserts could have been used to formulate strategy, investigation, and cross-examination.
Primarily, Appellant asserts that if his trial defense
counsel had known about the full extent of SSgt DK’s
insecurities, it could have changed their investigative
and strategic decisions, to include conducting a stronger
cross-examination and arguing this point to the factfinder.
The only specific reference as to how these records would
have been used comes from the declaration of the area
defense counsel which says that it might have provided
the “missing link they needed to substantiate their theory that SSgt DK had reconstructed her memory.”
We review the military judge’s decision not to disclose these matters using the “reasonable probability of
35a
a different result at trial if the evidence had been disclosed” standard. Roberts, 59 M.J. at 326-27. Impeachment evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. United States v. Bagley, 473 U.S. 667, 682
(1985). “The determination of materiality ‘calls for assessment of the omission in light of the evidence in the
entire record.’ ” United States v. Morris, 52 M.J. 193,
197 (C.A.A.F. 1999).
While it is true that SSgt DK’s credibility as to whether
or not she consented was an issue, the only issue after
Appellant’s admissions on the pretext phone call, there
is not a reasonable probability that the result would
have been different had the evidence been disclosed to
the Defense during findings.
Convening Authority’s Denial of a Rehearing
We review a convening authority’s decision not to
grant a post-trial hearing for an abuse of discretion.
United States v. Lofton, 69 M.J. 386, 391 (C.A.A.F.
2011). A convening authority has discretion to order a
post-trial Article 39a, UCMJ, session after authentication of the record, but before action under R.C.M. 1102.
The purpose of a post-trial Article 39a session is to “resolve a matter that arises after trial and that substantially affects the legal sufficiency of any findings of
guilty or the sentence.” R.C.M. 1102(b)(2). As such,
in United States v. Scaff, this court observed, “We view
the purpose of R.C.M. 1102 as a vehicle for precluding a
miscarriage of justice from occurring.” 26 M.J. 985,
988 (A.F.C.M.R. 1988), rev’d on other grounds, 29 M.J.
60 (C.M.A. 1989). When taking action, the convening
authority may order a rehearing under R.C.M. 1107(e).
36a
“A rehearing may be appropriate when an error substantially affecting the finding or sentence is noticed by
the convening authority.” R.C.M. 1107(e), Discussion.
While there is interplay and similarities between a posttrial Article 39a session under R.C.M. 1102 and a rehearing under R.C.M. 1107, these options, and requests
for them, are distinct and separate. See United States
v. Hull, 70 M.J. 145, 151 (C.A.A.F. 2011).
In this case, Appellant requested both a post-trial Article 39a session under R.C.M. 1102 and a rehearing under R.C.M. 1107, but these separate requests were processed simultaneously as attachments to the addendum
to the staff judge advocate’s recommendation dated
20 November 2014. Both of Appellant’s requests were
primarily based on two types of evidence not introduced
at trial—“Lt Col Brigg’s Character” and “SSgt [DK]’s
Character” as discussed earlier in the allegation of ineffective assistance of counsel. In the request for a posttrial Article 39a session, appellate defense counsel requested that the convening authority return the record
to the military judge to consider the additional evidence
(various statements regarding the character of both Appellant and SSgt DK) obtained since the court-martial
adjourned that could affect the sufficiency of any findings of guilty or the sentence. In the request for rehearing, appellate defense counsel admitted the evidence “could and should have been found” by trial defense counsel and therefore was not “newly discovered
evidence” and asked the convening authority to order a
full or partial rehearing if he elected not to disapprove
the findings. On Appeal, Appellant only challenges the
failure to order a rehearing.
37a
In this case, a rehearing on the single specification of
rape would have involved all of the trial stage procedures as a new trial under R.C.M 1210 and Article 73,
UCMJ. While the convening authority is not obligated
to apply the criteria for a new trial under R.C.M. 1210
and Article 73 when deciding on a request for rehearing,
our superior court has indicated that a convening authority may find it useful to do so as a means of addressing such information early in the post-trial process, emphasizing “that ‘requests for a new trial, and thus rehearings and reopenings of trial proceedings, are generally disfavored,’ and are granted only if a manifest injustice would result absent a new trial, rehearing, or reopening based on proffered newly discovered evidence.
Hull, 70 M.J. at 151-52 (quoting United States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993)).
The concession by appellate defense counsel that the
character evidence they now rely on is not “newly discovered” is significant to the resolution of error because
evidence which could have been discovered through due
diligence cannot form the basis for a request for new trial.
See R.C.M. 1210(f ), United States v. Hecker, 42, M.J.
640, 646 (A.F.C.C.A. 1995) and United States v. Williams, 37 M.J. 352, 356 (C.M.A. 1993). Furthermore, new
evidence which is merely cumulative or impeaching is
not an adequate basis for the basis of a new trial. See
United States v. Thomas, 11 M.J. 135, 138 (C.M.A. 1981).
Furthermore, because trial defense counsel made a tactical decision not to use character evidence, this petition
for a new trial is nothing more than a “new tactic, not new
evidence. This alone is sufficient to deny the petition.”
See United States v. Day, 14 C.M.A. 186, 33 C.M.R. 398,
401 (C.M.A. 1963).
38a
While appellate defense counsel believes that the evidence of SSgt DK’s character for untruthfulness would
have been sufficient to alter the findings in this case, the
evidence of Appellant’s multiple adulterous relationships is equally relevant as to his credibility, not only for
the relationships themselves, but also as to his efforts to
conceal those relationships from his wife, friends, and
co-workers. We are confident that in a judge alone
trial, calling character witnesses whose testimony would
have included their total ignorance as to Appellant’s
“other life” would not have altered the finding of guilty
or the sentence. As such, the convening authority did
not abuse his discretion when he denied a rehearing, and
the denial of a rehearing was not manifestly unjust.
Factual Sufficiency
Appellant contends the evidence is factually insufficient to support his conviction in this case. We disagree.
Under Article 66(c), UCMJ, 10 U.S.C. § 866(c), we review issues of factual sufficiency de novo. United States
v. Lane, 64 M.J. 1, 2 (C.A.A.F. 2006). Article 66(c),
UCMJ, 10 U.S.C. § 866(c), requires that we approve only
those findings of guilty that we determine to be correct
in both law and fact. The test for legal sufficiency is
whether, when the evidence is viewed in the light most
favorable to the government, a reasonable fact finder
could have found Appellant guilty of all elements of the
offense, beyond a reasonable doubt. United States v.
Turner, 25 M.J. 324, 324 (C.M.A. 1987) (citing Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). “[I]n resolving
questions of legal sufficiency, [this court is] bound to
draw every reasonable inference from the evidence of
record in favor of the prosecution.” United States v.
Barner, 56 M.J. 131, 134 (C.A.A.F. 2001).
39a
The test for factual sufficiency is “whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses,”
this court is convinced of Appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324,
325 (C.M.A. 1987). Review of the evidence is limited to
the entire record, which includes only the evidence admitted at trial and exposed to the crucible of crossexamination. Article 66(c), UCMJ; United States v.
Bethea, 46 C.M.R. 223, 224-25 (C.M.A. 1973).
The issue here is solely whether the sexual intercourse between Appellant and SSgt DK was by force
and without consent. The testimony of Appellant and
SSgt DK conflict as to the details of the sexual encounter and both had significant memory gaps. Their recollections are in accord regarding their mutual consumption of alcohol, the location of the event, and the
fact that it occurred the night before they were scheduled to return home from the TDY.
Factual sufficiency does not require that the evidence
be free of conflict. While there are inconsistencies in
the description of what took place between Appellant
and SSgt DK that night in 2005, Appellant’s own words
to SSgt DK are highly persuasive in convincing us
that he committed the offense: “I am so, so sorry for
being selfish, for disrespecting you, for not listening to
you. . . . I’m so sorry for pushing myself on you
. . . and subjecting you to that; for not respecting you
as a person and listening to you and stopping.” Similarly persuasive, during his interview with the Air Force
Office of Special Investigations he said, “[W]as I so selfish and immature and young and just ready to go that
I—did I ever disregard what she said, did I ever do
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something that she did not want[?] . . . [I’ve] asked
[myself ] if rape happened and [my] answer . . . was
‘I’m not sure, no’ . . . that night altered [my] selfimage.”
This court is convinced beyond a reasonable doubt
that the totality of the evidence is sufficient to support
the findings of the military judge that Appellant raped
SSgt DK.
Conclusion
The approved findings and sentence are correct in law
and fact, and no error materially prejudicial to the substantial rights of Appellant occurred. Articles 59(a) and
66(c), UCMJ, 10 U.S.C. §§ 859(a), 866(c). Accordingly,
the approved findings and sentence are AFFIRMED.
/s/
FOR THE COURT
LEAH M. CALAHAN
LEAH M. CALAHAN
Clerk of the Court
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APPENDIX C
1.
10 U.S.C. 843(a) and (b) (2000) provides:
Art. 43.
Statute of limitations
(a) A person charged with absence without leave or
missing movement in time of war, or with any offense
punishable by death, may be tried and punished at any
time without limitation.
(b)(1) Except as otherwise provided in this section
(article), a person charged with an offense is not liable
to be tried by court-martial if the offense was committed
more than five years before the receipt of sworn charges
and specifications by an officer exercising summary
court-martial jurisdiction over the command.
(2) A person charged with an offense is not liable to
be punished under section 815 of this title (article 15) if
the offense was committed more than two years before
the imposition of punishment.
2. 10 U.S.C. 843(a) and (b) (2012 & Supp. V 2017)
provides:
Art. 43.
Statute of limitations
(a) A person charged with absence without leave or
missing movement in time of war, with murder, rape or
sexual assault, or rape or sexual assault of a child, or
with any other offense punishable by death, may be tried
and punished at any time without limitation.
(b)(1) Except as otherwise provided in this section
(article), a person charged with an offense is not liable
to be tried by court-martial if the offense was committed
more than five years before the receipt of sworn charges
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and specifications by an officer exercising summary
court-martial jurisdiction over the command.
(2)(A) A person charged with having committed a
child abuse offense against a child is liable to be tried by
court-martial if the sworn charges and specifications are
received during the life of the child or within ten years
after the date on which the offense was committed,
whichever provides a longer period, by an officer exercising summary court-martial jurisdiction with respect
to that person.
(B) In subparagraph (A), the term “child abuse offense” means an act that involves abuse of a person who
has not attained the age of 16 years and constitutes any
of the following offenses:
(i) Any offense in violation of section 920, 920a,
920b, 920c, or 930 of this title (article 120, 120a, 120b,
120c, or 130), unless the offense is covered by subsection (a).
(ii) Maiming in violation of section 928a of this title (article 128a).
(iii) Aggravated assault, assault consummated by
a battery, or assault with intent to commit specified
offenses in violation of section 928 of this title (article
128).
(iv) Kidnapping in violation of section 925 of this
title (article 125).
(C) In subparagraph (A), the term “child abuse offense” includes an act that involves abuse of a person
who has not attained the age of 18 years and would constitute an offense under chapter 110 or 117 of title 18 or
under section 1591 of that title.
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(3) A person charged with an offense is not liable to
be punished under section 815 of this title (article 15) if
the offense was committed more than two years before
the imposition of punishment.
3.
10 U.S.C. 920(a) (2000) provides:
Art. 120.
Rape and carnal knowledge
(a) Any person subject to this chapter who commits
an act of sexual intercourse, by force and without consent, is guilty of rape and shall be punished by death or
such other punishment as a court-martial may direct.
4.
10 U.S.C. 920(a) provides:
Art. 120.
Rape and sexual assault generally
(a) RAPE.—Any person subject to this chapter who
commits a sexual act upon another person by—
(1)
using unlawful force against that other person;
(2) using force causing or likely to cause death
or grievous bodily harm to any person;
(3) threatening or placing that other person in
fear that any person will be subjected to death, grievous bodily harm, or kidnapping;
or
(4)
first rendering that other person unconscious;
(5) administering to that other person by force
or threat of force, or without the knowledge or consent of that person, a drug, intoxicant, or other similar substance and thereby substantially impairing
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the ability of that other person to appraise or control
conduct;
is guilty of rape and shall be punished as a court-martial
may direct.
5.
18 U.S.C. 3281 provides:
Capital offenses
An indictment for any offense punishable by death
may be found at any time without limitation.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.