Petition for Writ of Certiorari — United States, Petitioner v. Richard D. Collins

Supreme Court briefAug 9, 2019

Ask Donna

What actually matters in this document.

Text

No.

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

RICHARD D. COLLINS

UNITED STATES OF AMERICA, PETITIONER

HUMPHREY DANIELS III

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

JULIE L. PITVOREC

Col., USAF

Chief

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 (Hurlburt Field and Eglin Air

Force Base, Fla.):

United States v. MSgt. Richard D. Collins (Feb. 26,

2017) (no docket number assigned)

General Court-Martial (Joint Base Andrews Naval Air

Facility Washington):

United States v. Lt. Col. Humphrey Daniels, III

(June 14, 2017) (no docket number assigned)

United States Air Force Court of Criminal Appeals:

United States v. Richard D. Collins, MSgt. (E-7),

U.S. Air Force, No. ACM 39296 (July 23, 2018)

United States v. Humphrey Daniels, III, Lt. Col.

(O-5), U.S. Air Force, No. ACM 39407 (June 18,

2019)

United States Court of Appeals for the Armed Forces:

United States v. Richard D. Collins, No. 19-52 (Mar.

12, 2019)

United States v. Humphrey Daniels III, No. 19-345

(July 22, 2019)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 2

Statutory and constitutional provisions involved ...................... 2

Statement ...................................................................................... 3

A. Military prosecution and punishment of rape .............. 4

B. United States v. Collins .................................................. 6

C. United States v. Daniels ............................................... 10

Reasons for granting the petition ............................................. 13

Conclusion ................................................................................... 17

Appendix A — Order of the Court of Appeals for the

Armed Forces (Mar. 12, 2019) ................... 1a

Appendix B — Opinion of the Air Force Court of

Criminal Appeals (July 23, 2018) ............... 2a

Appendix C — Order of the Court of Appeals for the

Armed Forces (July 22, 2019) .................. 19a

Appendix D — Opinion of the Air Force Court of

Criminal Appeals (June 18, 2019) ............ 21a

Appendix E — Statutory provisions ..................................... 42a

TABLE OF AUTHORITIES

Cases:

Coker v. Georgia, 433 U.S. 584 (1977) ............................. 5, 13

Kennedy v. Louisiana, 554 U.S. 945 (2008).......................... 5

Stogner v. California, 539 U.S. 607 (2003) .................... 10, 15

United States v. Briggs, 78 M.J. 289 (C.A.A.F. 2019),

petition for cert. pending, No. 19-108 (filed July 22,

2019) ............................................................................... 10, 13

United States v. Mangahas, 77 M.J. 220

(C.A.A.F. 2018).......................................................... 9, 12, 13

United States v. Stebbins, 61 M.J. 366

(C.A.A.F. 2005)............................................................ 6, 9, 14

(III)

Case—Continued:

Page

Willenbring v. Neurauter, 48 M.J. 152

(C.A.A.F. 1998)........................................................ 5, 6, 9, 14

Constitution, statutes, and rule:

U.S. Const.:

Art. I, § 9 (Ex Post Facto Clause) ........................... 10, 14

Amend. VIII............................................................. 3, 5, 13

National Defense Authorization Act for Fiscal Year

2006, Pub. L. No. 109-163, § 553(a), 119 Stat. 3264 ........... 6

Uniform Code of Military Justice, 10 U.S.C. 801

et seq.:

10 U.S.C. 843(a) (1994) (Art. 43(a)).............2, 5, 9, 15, 42a

10 U.S.C. 843(a) (2000) (Art. 43(a)).......................... 13, 14

10 U.S.C. 843(a) (2012 & Supp. V 2017)

(Art. 43(a)) .............................................3, 6, 13, 14, 42a

10 U.S.C. 843(b) (1994) (Art. 43(b)) ................... 5, 12, 42a

10 U.S.C. 920(a) (1994)

(Art. 120(a)) ................................... 2, 3, 5, 9, 12, 15, 44a

10 U.S.C. 920(a) (2000) (Art. 120(a)) .............................. 14

10 U.S.C. 920(a)(1) (Art. 120(a)(1)) .......................... 3, 44a

18 U.S.C. 3281 .................................................................. 6, 45a

Sup. Ct. R. 12.4 ........................................................................ 1

Miscellaneous:

H.R. Conf. Rep. No. 360, 109th Cong., 1st Sess.

(2005) ...................................................................................... 6

H.R. Rep. No. 89, 109th Cong., 1st Sess. (2005) ................... 6

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 d004331-18res.pdf .................................................................................... 4

Miscellaneous—Continued:

Page

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 ....................................... 5

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

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.................................. 4

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

RICHARD D. COLLINS

UNITED STATES OF AMERICA, PETITIONER

HUMPHREY DANIELS III

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 judgments of the United States Court of Appeals for

the Armed Forces in these cases. Pursuant to this

Court’s Rule 12.4, the United States is filing a “single

petition for a writ of certiorari” because the “judgments

* * * sought to be reviewed” are from “the same court

and involve identical or closely related questions.”

OPINIONS BELOW

The order of the Court of Appeals for the Armed

Forces in United States v. Collins (App., infra, 1a) is

reported at 78 M.J. 415. The opinion of the Air Force

(1)

Court of Criminal Appeals (App., infra, 2a-18a) is reported at 78 M.J. 530.

The order of the Court of Appeals for the Armed

Forces in United States v. Daniels (App., infra, 19a20a) is not yet published in the Military Justice Reporter but is available at 2019 WL 3026956. The opinion

of the Air Force Court of Criminal Appeals (App., infra,

21a-41a) is not published in the Military Justice Reporter but is available at 2019 WL 2560041.

JURISDICTION

The judgment of the court of appeals in Collins was

entered on March 12, 2019. On June 6, 2019, the Chief

Justice extended the time within which to file a petition

for a writ of certiorari to and including July 10, 2019.

On July 3, 2019, the Chief Justice further extended the

time to and including August 9, 2019. The judgment of

the court of appeals in Daniels was entered on July 22,

2019. The jurisdiction of this Court is invoked under

28 U.S.C. 1259(2).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

At the times of respondents’ offenses in 1998 and

2000, 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) (1994). 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) (1994).

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, 42a-45a.

STATEMENT

Following a general court-martial by the United

States Air Force, respondent Collins was convicted of

rape, in violation of 10 U.S.C. 920(a) (1994). App., infra,

2a. The Air Force Court of Criminal Appeals (AFCCA)

reversed. Id. at 2a-18a. The Judge Advocate General

(JAG) of the Air Force certified the case to the Court of

Appeals for the Armed Forces (CAAF), which summarily affirmed. Id. at 1a.

Following a general court-martial by the United

States Air Force, respondent Daniels was convicted of

rape, in violation of 10 U.S.C. 920(a) (1994), and other

offenses. App., infra, 21a-22a. The AFCCA reversed

the rape conviction. Id. at 21a-41a. The Air Force JAG

certified the AFCCA’s decision on the rape count for review, and the CAAF summarily affirmed. Id. at 19a20a.

A. Military Prosecution and Punishment of Rape

1. 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/saapos 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), http://jpp.whs.mil/public/docs/03_TopicAreas/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), http://responsesystems

panel.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. From November 1986 to January 2006, Article 43

of the UCMJ provided a default five-year statute of limitations for most criminal offenses, 10 U.S.C. 843(b)

(1994), along with an exception under which “any offense punishable by death[] may be tried and punished

at any time without limitation,” 10 U.S.C. 843(a) (1994).

Article 120 provided that the offense of “rape * * *

shall be punished by death or such other punishment as

a court-martial may direct.” 10 U.S.C. 920(a) (1994).

Indeed, “the military death penalty for rape ha[d] been

the rule for more than a century.” Kennedy v. Louisiana, 554 U.S. 945, 946 (2008) (statement of Kennedy, J.,

respecting the denial of rehearing).

In Willenbring v. Neurauter, 48 M.J. 152 (1998), 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)); see 10 U.S.C. 920(a) (1994). The CAAF addi-

tionally observed that federal courts of appeals had uniformly interpreted a parallel provision of the federal

criminal code, which provides that offenses “ punishable

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. Willenbring, 48 M.J. at 180.

In United States v. Stebbins, 61 M.J. 366 (2005), the

CAAF reiterated its holding that rape was “punishable

by death” for purposes of Article 43— and therefore not

subject to a limitations period—because the UCMJ specifically authorized the death penalty for rape. Id. at

369. And in 2006, Congress amended Article 43 to provide expressly that “rape * * * may be tried and punished at any time without limitation.” 10 U.S.C. 843(a)

(2012 & Supp. V 2017); see National Defense Authorization Act for Fiscal Year 2006 (2006 NDAA), Pub. L. No.

109-163, § 553(a), 119 Stat. 3264. The accompanying

Conference Report 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);

see H.R. Rep. No. 89, 109th Cong., 1st Sess. 332 (2005)

(similar).

B. United States v. Collins

1. In August 2000, respondent Collins was a course

instructor at Sheppard Air Force Base (AFB) in Texas.

App., infra, 4a. One student in the course was a fellow

Air Force service member, HA. Ibid. One evening, HA

encountered Collins while she was “eating dinner alone

at a club on base.” Ibid. Collins “appeared to be intoxicated.” Ibid. HA suggested that he “take a taxi or

shuttle home,” but he “declined.” Ibid. HA then drove

Collins “to his on-base residence,” and helped him “out

of the vehicle and to his front door due to his apparently

impaired condition.” Ibid. “[O]nce inside,” Collins

“suddenly pushed HA against the wall and then threw

her onto the floor.” Ibid. “HA initially resisted,” but

Collins “struck her in the face.” Ibid. Collins “then

raped HA.” Ibid. HA suffered multiple injuries, including “a black eye,” ibid., “scratches on her face and

knuckles,” ibid., and “ trauma ” to her vaginal area, C.A.

App. 626-627.

Three days after the assault, HA “reluctantly admitted to a female instructor that she had been raped.”

App., infra, 4a. “As a result, HA was transported to a

hospital where she underwent a sexual assault forensic

exam,” and both the Air Force and civilian police initiated investigations. Ibid. At the time, HA feared that

Collins would “flunk [her] * * * or * * * kill [her]” if

she told anyone about the attack. C.A. App. 440. She

accordingly told investigators that “she was assaulted

by an unknown” man “in an off-base store parking lot.”

App., infra, 4a. When security-camera footage failed to

corroborate her account, HA admitted that she had

“made it up because she did not want to identify the attacker.” Ibid. She added that she “knew who the assailant was,” but she “refused to identify” him. Id. at 5a.

2. In April 2011, more than a decade after she was

raped, “HA made a restricted sexual assault report to

an Air Force mental health provider, stating that she

had previously been physically and sexually assaulted

by an instructor but ‘did not want to be involved.’ ”

App., infra, 5a. The provider “referred HA to a Sexual

Assault Response Coordinator, to whom HA also made

a restricted report that she had been sexually assaulted

by an active duty Air Force member at Sheppard AFB,

but she did not identify the assailant.” Ibid.

In March 2014, “HA made an unrestricted report to

the Chief of Military Justice at Sheppard AFB, this

time identifying [Collins] as having raped her at Sheppard AFB in 2000.” App., infra, 5a. The Air Force then

reopened its investigation. Ibid. Among other details

of the attack, HA told investigators that, during the

rape, she was “fixated” on a family portrait hanging on

the wall above the couch in the front room of Collins’s

home. C.A. App. 380; see id. at 437-439. HA described

in detail the individuals in the portrait: a biracial couple, a daughter, and a younger son. Id. at 541-542, 677678. She recalled where each member of the family was

sitting in the portrait and the respective hairstyles of

the mother and daughter. Ibid. She also provided Air

Force investigators with sketches of the portrait and

the room. Id. at 868-869.

Based on that information, Air Force investigators

obtained authorization to search Collins’s home at Eglin

AFB in Florida. C.A. App. 700-701, 865-867. There, in

a storage closet, they found a family portrait that

matched HA’s description. Id. at 701-706, 836, 887.

When investigators showed the portrait to HA, “she

placed her hands over her mouth,” “wip[ed] tears away

from her eyes,” and “stated [that] this photo was in [the]

house” the night she was raped. Id. at 706. During the

search, Air Force investigators also discovered a separate photograph taken in the front room of the house at

Sheppard AFB where Collins lived in 2000. Id. at 837,

888. That photograph showed the same family portrait,

hanging on the wall above the couch, just as HA had described. Id. at 888-891. Air Force authorities charged

Collins with raping HA in 2000, in violation of 10 U.S.C.

920(a) (1994). See App., infra, 5a.

3. At his 2016 court-martial, Collins “pleaded not

guilty” and “vigorously contested” the rape charge.

App., infra, 5a-6a. He did not, however, “object or move

to dismiss the charge and specification on the grounds

that they were barred by the statute of limitations in

effect at the time of the alleged offense.” Id. at 6a. Collins was found guilty of the rape charge and sentenced

to “a dishonorable discharge, confinement for 198

months, forfeiture of all pay and allowances, and [a] reduction” in grade. Id. at 3a.

Collins appealed to the AFCCA on various grounds.

While the appeal 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 id. at 225.

The AFCCA applied Mangahas to Collins’s case and

reversed his conviction. App., infra, 2a-18a. The court

reasoned that, under Mangahas, the 2000 rape for

which Collins was convicted was subject to a five-year

limitations period, which expired before the Air Force

charged him in 2016. Id. at 6a-9a. The court added that

the limitations period had also expired before Congress

expressly provided in 2006 that rape can be prosecuted

without a limitations period, and that the 2006 NDAA

accordingly could not render the prosecution timely.

Id. at 16a-18a; see Stogner v. California, 539 U.S. 607,

616-617 (2003) (holding that the Ex Post Facto Clause

barred the extension of an expired limitations period).

Although Collins had not raised a limitations objection

at trial, the AFCCA concluded he was entitled to relief

under the plain-error doctrine. App., infra, 9a-14a. The

court did not address any of Collins’s other challenges

to his conviction. See id. at 3a.

4. The Air Force JAG certified the limitations issue

to the CAAF for appellate review. See App., infra, 1a.

In its briefing, the Air Force expressly stated that “[t]o

preserve the possibility of further appellate litigation,

the United States does not concede that Mangahas was

correctly decided.” Gov’t C.A. Reply Br. 15 n.6.

While the appeal in Collins’s case was pending at the

CAAF, the CAAF decided United States v. Briggs,

78 M.J. 289 (2019), petition for cert. pending, No. 19-108

(filed July 22, 2019), in which the CAAF reiterated its

holding in Mangahas and concluded that the 2006

NDAA provision stating expressly that rape may be

prosecuted without a limitations period does not apply

to rapes committed before enactment of the statute, id.

at 292-295. The CAAF then summarily affirmed the

AFCCA’s decision in Collins’s case. App., infra, 1a.

C. United States v. Daniels

1. In July 1998, respondent Daniels was stationed at

Minot AFB in North Dakota. He met TS, a civilian, at

the gym, and they exchanged phone numbers. R. 840843. Late in the evening of July 14, 1998, Daniels called

TS at her home, where she lived with her two-year-old

son. R. 843-844. Daniels asked if he could come over to

TS’s home, and TS reluctantly agreed. Ibid. After the

two talked for some time, Daniels repeatedly asked to

stay the night. R. 847. TS told him that he could not,

because her son slept in her bed and she had nowhere

else for Daniels to sleep. Ibid. Daniels, however,

“wouldn’t take ‘no’ as an answer,” and TS eventually

“got tired of fighting the issue.” R. 847-848. The two

then went to TS’s bed, where her son was sleeping.

R. 849. Daniels kept “trying to touch” TS, and she “kept

pushing him off.” R. 850. Eventually, Daniels “pushed

[TS’s] shorts aside” and “entered [her] with his penis”

without consent. R. 852. Daniels left the next morning

and called TS later in the day as if “nothing happened.”

R. 854.

TS told a friend about the rape, who reported it to

the local police. R. 854-855. The Air Force also opened

an investigation. App., infra, 25a. TS ultimately “declined to participate in the investigation,” ibid., in part

because the police told her the crime “would be very

hard to prove,” R. 855. TS subsequently “ran away”

from Minot because she “wanted this to go away.”

R. 856.

2. Seventeen years later, in 2015, a police detective

in Fairfax County, Virginia, contacted TS about Daniels. App., infra, 24a-25a. The detective was investigating Daniels for stalking a woman with whom he had previously had a romantic relationship. Id. at 24a. In the

course of that investigation, the detective discovered

classified information at Daniels’s home, which led the

detective to contact Air Force investigators. Id. at 25a.

Air Force investigators told the detective that Daniels

had been investigated for raping TS in 1998. Ibid.

When the detective contacted TS, she “agreed to go

forward with the * * * rape allegation.” App., infra,

24a. Daniels was then charged with rape, in violation of

10 U.S.C. 920(a) (1994), and other violations of military

law, App., infra, 21a-26a. He was convicted by a courtmartial in 2017 and sentenced to “a dismissal, confinement for three years, and a reprimand.” Id. at 22a. The

convening authority approved the sentence with the period of confinement reduced to two years and 252 days.

Ibid.

Daniels appealed to the AFCCA. App., infra, 22-23a.

As in Collins’s case, the AFCCA reversed the conviction

in light of the CAAF’s recently issued decision in Mangahas, which abrogated prior decisions under which

military rapes could be prosecuted at any time. See

77 M.J. at 222-225. The AFCCA stated that the Air

Force’s 2017 prosecution of Daniels for a 1998 rape was

barred by the five-year statute of limitations in 10

U.S.C. 843(b) (1994), as interpreted by the CAAF in

Mangahas and Collins. App., infra, 26a-28a. The

AFCCA set aside an additional conviction and remanded for resentencing. Id. at 40a-41a.

3. The Air Force JAG certified to the CAAF the

AFCCA’s holding that Daniels’s rape charge was

barred by the statute of limitations. App., infra, 19a.

While maintaining that Mangahas and the CAAF’s subsequent decision in Briggs were “incorrectly decided,”

the government acknowledged that the AFCCA’s decision reversing Daniels’s rape conviction should be summarily affirmed if the CAAF were not willing to reconsider those recent precedents. Gov’t Mot. for Summ.

Disposition 1-2. The CAAF summarily affirmed the

AFCCA’s decision. App., infra, 19a-20a.

REASONS FOR GRANTING THE PETITION

This petition for a writ of certiorari presents the

same question of exceptional importance to military justice as the government’s recent petition in United

States v. Briggs, No. 19-108 (filed July 22, 2019). For

reasons explained below, the Court should grant this

petition and the petition in Briggs, and then consolidate

the cases for briefing, argument, and decision.

1. In Briggs, the Air Force brought a 2014 prosecution for a 2005 rape. United States v. Briggs, 78 M.J.

289, 290 (C.A.A.F. 2019). Relying on its recent decision

in United States v. Mangahas, 77 M.J. 220 (2018), which

overruled longstanding precedent that had allowed for

the prosecution of rape offenses at any time, the CAAF

concluded that the Air Force’s prosecution of Briggs

was barred by the statute of limitations in force at the

time of his 2005 offense, which (as relevant here) provided a five-year limitations period for all offenses except those “punishable by death,” 10 U.S.C. 843(a)

(2000). In the CAAF’s revised view, rape was not “punishable by death” for purposes of that statute, ibid., because this Court had held 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, see Briggs, 78 M.J. at

292; accord Mangahas, 77 M.J. at 222-225. The CAAF

in Briggs further concluded that Congress’s 2006 amendment to the UCMJ, which expressly provided that rape

could be punished without a time limitation, see

10 U.S.C. 843(a) (2012 & Supp. V 2017), could not be applied to pre-2006 rapes, because doing so would constitute an impermissible retroactive application of the law.

78 M.J. at 292-295.

As the government explained in its petition for a writ

of certiorari in Briggs, both of the CAAF’s conclusions

in that case are incorrect. See Pet. at 11-22, Briggs, supra (No. 19-108) (Briggs Pet.). First, rape was “punishable by death” for purposes of the statute of limitations

in force from 1986 to 2006, 10 U.S.C. 843(a) (2000), because the UCMJ at that time provided that rape could

be “punished by death,” 10 U.S.C. 920(a) (2000), and

that legislative determination controls the statute-oflimitations question. See Briggs Pet. 12-16. Moreover,

even if “punishable by death” in the statute of limitations meant constitutionally “punishable by death,”

10 U.S.C. 843(a) (2000), Congress has authority to determine that capital punishment should be available for

military rape, because crimes in the military context are

not subject to the same constitutional constraints as

punishments for assertedly analogous crimes in the civilian context, see Briggs Pet. 16-20.

Second, the Air Force’s prosecution of Briggs for a

2005 rape was permissible under Congress’s 2006

amendment to the statute of limitations, which provided

that “rape * * * may be tried and punished at any time

without limitation.” 10 U.S.C. 843(a) (2012 & Supp. V

2017). Because the 2006 amendment codified the

CAAF’s then-longstanding interpretation that rape

could be prosecuted without a time limitation, see

United States v. Stebbins, 61 M.J. 366, 369 (2005); Willenbring v. Neurauter, 48 M.J. 152, 178 (1998), Briggs

had fair notice in 2005 that he could be prosecuted for

rape without a time limitation, and the presumption

against retroactivity does not render it inapplicable.

See Briggs Pet. 20-22. Nor does application of the 2006

amendment to a 2005 rape create an Ex Post Facto

Clause difficulty, because that Clause does not bar a

legislature from extending an unexpired limitations period (i.e., the default five-year limitations period that

would otherwise apply). Ibid.; see Stogner v. California, 539 U.S. 607, 616-617 (2003).

2. The first of the government’s arguments in

Briggs applies with full force here. The rapes committed by respondent Collins in 2000 and respondent Daniels in 1998 were “punishable by death” and therefore

not subject to a time limitation under the statute of limitations then in effect. 10 U.S.C. 843(a) (1994). That is

true both because (1) the term “punishable by death”

refers only to the statutorily authorized punishment,

which for rape in 1998 and 2000 was death, see 10 U.S.C.

920(a) (1994), and (2) even if “punishable by death”

meant constitutionally punishable by death,” ibid.,

rape was constitutionally punishable by death in the

military at the time of respondents’ offenses in 1998 and

2000, see Briggs Pet. 11-20.

The government’s second argument in Briggs—that,

even if the CAAF were correct that the pre-2006 limitations period was only five years, a 2014 prosecution for

a 2005 rape was permissible under Congress’s 2006

amendment of the statute of limitations—would not in

itself be dispositive of respondents’ cases here. Unlike

in Briggs, respondents’ 1998 and 2000 rapes occurred

more than five years before the 2006 amendment, so a

five-year limitations period would have expired prior to

its enactment. As a result, a decision in Briggs premised solely on the second argument would implicate a

further issue of whether applying the 2006 amendment

to respondents’ cases should be viewed as an attempt to

extend an already-expired limitations period, which this

Court has held to be barred by the Ex Post Facto

Clause. See Stogner, 539 U.S. at 616-617.

3. This Court should grant both the petition in

Briggs and this petition. If the Court were to resolve

Briggs based on the government’s first argument—that

rape was “punishable by death” for purposes of the statute of limitations in force between 1986 and 2006—the

prosecutions of respondents here would be permissible

on the same grounds. But if the Court were to resolve

Briggs based on the government’s second argument (regarding the effect of the 2006 amendment on a prosecution for a 2005 rape), further questions would remain

about the validity of the prosecutions of respondents

Collins and Daniels. Granting both petitions (rather

than holding this petition for a decision in Briggs) therefore ensures that the Court will be able to efficiently resolve all the issues presented by these cases.

As discussed in the government’s petition in Briggs,

the question presented warrants this Court’s review.

See Briggs Pet. 22-26. Although the CAAF interpretation at issue involves only military rapes committed between 1986 and 2006, the military continues to receive

reports of such rapes, and Congress would not have

wanted the perpetrators to escape justice. As explained

above, rape is not only devastating to military discipline

and effectiveness, but is also difficult to uncover and

often reported only years after the fact. See pp. 4-5,

supra. These cases illustrate that dynamic. Respondent Collins violently raped a junior Air Force service

member who was a student in his course, but she did not

name her assailant for many years, in part out of fear

that he would retaliate. See p. 7, supra. Respondent

Daniels raped a victim living in a military community

who declined to pursue the case because she feared that

she would not be believed. See p. 11, supra. The military continues to investigate reports of similar crimes.

See Briggs Pet. 23. Even if the number of cases affected

by the CAAF’s decisions is not especially high, they are

exceptionally important to the victims, the military, and

Congress.

Reviewing the CAAF decisions underlying this petition in conjunction with Briggs would allow the Court to

consider the full range of cases—both those in which the

rape occurred more than five years before 2006 and

those in which it did not—that are affected by the

CAAF’s errors. At a minimum, however, the Court

should hold this petition pending its resolution of the

petition in Briggs and then dispose of this petition as

appropriate.

CONCLUSION

The petition for a writ of certiorari should be granted,

along with the petition for a writ of certiorari in United

States v. Briggs, No. 19-108 (filed July 22, 2019), and consolidated for briefing and argument. In the alternative,

this petition should be held pending the Court’s resolution of the petition in Briggs and then disposed of as appropriate.

Respectfully submitted.

JULIE L. PITVOREC

Col., USAF

Chief

MARY ELLEN PAYNE

Associate Chief

BRIAN C. MASON

Lt. Col., USAF

Deputy Chief

Government Trial and

Appellate Counsel Division

Department of the Air Force

AUGUST 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

DAILY JOURNAL

Tuesday, Mar. 12, 2019

Appeals—Summary Disposition

No. 19-0052/AF. U.S. v. Richard D. Collins.

CCA 39296.

On consideration of the three issues certified by the

Judge Advocate General of the Air Force, 78 M.J. 190

(C.A.A.F. 2018), the briefs of the parties, and Appellee’s

motion to summarily affirm filed on February 26, 2019,

and in light United States v. Briggs,

M.J.

(C.A.A.F. Feb. 22, 2019), it is ordered that the three certified issues are answered in the negative, and the decision of the United States Air Force Court of Criminal

Appeals is therefore affirmed. Appellee’s motion is denied as moot.

(1a)

APPENDIX B

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

No. ACM 39296

UNITED STATES, APPELLEE

RICHARD D. COLLINS

MASTER SERGEANT (E-7), U.S. AIR FORCE,

APPELLANT

Appeal from the United States Air Force Trial Judiciary

Decided: 23 July 2018 1

PUBLISHED OPINION OF THE COURT

Military Judge:

TIFFANY M. WAGNER.

Before: JOHNSON, MINK, and DENNIS, Appellate Military Judges.

Senior Judge JOHNSON delivered the opinion of the court,

in which Judge MINK and Judge DENNIS joined.

JOHNSON, Senior Judge:

Appellant was found guilty, contrary to his pleas, of

one specification of rape in violation of Article 120, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 920.

We heard oral argument in this case on 28 June 2018.

A general court-martial composed of officer and enlisted

members sentenced Appellant to a dishonorable discharge, confinement for 198 months, forfeiture of all pay

and allowances, and reduction to the grade of E-1. The

convening authority approved the adjudged sentence.

Appellant raises seven issues on appeal: (1) whether

the statute of limitations had run on the alleged offense

of rape; (2) whether the evidence is factually insufficient

to support the conviction; (3) whether Appellant was denied effective assistance of counsel guaranteed by the

Sixth Amendment 2 where his trial defense counsel failed

to present evidence of an alternative suspect; (4) whether

Appellant was subjected to unreasonable search and seizure in violation of the Fourth Amendment; 3 (5) whether

Appellant was denied his Sixth Amendment right to confrontation where the military judge permitted a prosecution witness to testify by remote means; (6) whether

Appellant’s Fifth Amendment 4 due process rights were

violated by the loss of exculpatory evidence in the 15 years

between the alleged offense and the court-martial; and

(7) whether the convening authority committed unlawful

command influence. 5 Because, as to the first issue, our

superior court’s holding in United States v. Mangahas,

77 M.J. 220, 225 (C.A.A.F. 2018), compels us to set aside

the findings and sentence and to dismiss the charge and

specification, we do not address the remaining issues.

U.S. CONST. amend. VI.

U.S. CONST. amend. IV.

U.S. CONST. amend. V.

Appellant personally asserts issues (6) and (7) pursuant to United

States v. Grostefon, 12 M.J. 431 (C.M.A. 1982).

BACKGROUND

In August 2000, HA was a young Airman attending

her initial training as a radiology technician at Sheppard

Air Force Base (AFB), Texas. Appellant was one of

her course instructors. At trial, HA testified that on

Friday, 25 August 2000, she encountered Appellant

when she was eating dinner alone at a club on base.

Appellant appeared to be intoxicated. After Appellant

declined HA’s suggestion that he take a taxi or shuttle

home, HA drove Appellant to his on-base residence.

HA helped Appellant out of the vehicle and to his front

door due to his apparently impaired condition. However, once inside the door, Appellant suddenly pushed

HA against the wall and then threw her onto the floor.

HA initially resisted until Appellant struck her in the

face. Appellant then raped HA.

On the morning of Monday, 28 August 2000, HA arrived for class with a black eye and scratches on her face

and knuckles. HA reluctantly admitted to a female instructor that she had been raped. As a result, HA was

transported to a hospital where she underwent a sexual

assault forensic exam (SAFE), and the Air Force Office

of Special Investigations (AFOSI) and civilian police initiated investigations.

Initially, HA told AFOSI she was assaulted by an

unknown male who digitally penetrated her in an offbase store parking lot the preceding weekend. When

security camera video from the store HA identified

failed to corroborate HA’s statements, AFOSI agents

confronted her. HA admitted her account of the assault was not true. She told the agents she made it up

because she did not want to identify the attacker, but

she had been pressured at the hospital to say what had

happened. HA admitted she knew who the assailant

was, but she said she did not want to “ruin a family.”

She denied that it had been one of her course instructors. Because HA refused to identify the perpetrator,

AFOSI and the civilian police eventually dropped their

investigations. Civilian authorities destroyed the SAFE

kit in 2002.

HA separated from the military in 2003 and then

later returned to active duty in 2007. In April 2011, HA

made a restricted sexual assault report to an Air Force

mental health provider, stating that she had previously

been physically and sexually assaulted by an instructor

but “did not want to be involved.” The provider referred

HA to a Sexual Assault Response Coordinator, to whom

HA also made a restricted report that she had been sexually assaulted by an active duty Air Force member at

Sheppard AFB, but she did not identify the assailant.

These restricted reports were not referred to law enforcement or investigated. HA separated from the Air

Force again in 2011.

In March 2014, HA made an unrestricted report to

the Chief of Military Justice at Sheppard AFB, this time

identifying Appellant as having raped her at Sheppard

AFB in 2000. This report led AFOSI to reinitiate the

investigation. A single charge and specification of rape

were preferred against Appellant and received by the

summary court-martial convening authority on 17 March

2016. On 6 September 2016, the charge and specification were referred for trial by a general court-martial.

Appellant’s court-martial took place at Hurlburt Field,

Florida, on 17 November 2016, and at Eglin AFB, Florida, on 21-26 February 2017. At trial, Appellant pleaded

not guilty and the Defense vigorously contested the

charge and specification. However, the Defense did

not object or move to dismiss the charge and specification on the grounds that they were barred by the statute

of limitations in effect at the time of the alleged offense.

II.

DISCUSSION

Law

The applicable statute of limitations is a question of

law that we review de novo. Mangahas, 77 M.J. at 222

(citing United States v. Lopez de Victoria, 66 M.J. 67, 73

(C.A.A.F. 2008)). “An accused is subject to the statute

of limitations in force at the time of the offense.” Id. (citing Toussie v. United States, 397 U.S. 112, 115 (1970)).

However, “failure to make the timely assertion of a

right” constitutes forfeiture, whereas the “intentional

relinquishment or abandonment of a known right” constitutes waiver. United States v. Ahern, 76 M.J. 194,

197 (C.A.A.F. 2017). Where an appellant forfeits a right

by failing to make a timely assertion at trial, appellate

courts will review the forfeited issue for plain error.

Id. (citing United States v. Gladue, 67 M.J. 311, 313

(C.A.A.F. 2009)). In a plain error analysis the appellant “has the burden of demonstrating that: (1) there

was error; (2) the error was plain or obvious; and (3) the

error materially prejudiced a substantial right of the

accused.” United States v. Girouard, 70 M.J. 5, 11

(C.A.A.F. 2011). Waiver, by contrast, “leaves no error

to correct on appeal.” Ahern, 76 M.J. at 197 (citing

United States v. Campos, 67 M.J. 330, 332 (C.A.A.F.

2009)).

Article 43, UCMJ, 10 U.S.C. § 843, provides the statute of limitations for offenses under the Code. The version of Article 43 in effect in August 2000 stated, inter

alia, “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).

Otherwise, the general rule was that “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” by a summary court-martial

convening authority. 10 U.S.C. § 843(b)(1) (2000).

In Coker v. Georgia, 433 U.S. 584, 592 (1977), the

United States Supreme Court held that the Eighth

Amendment 6 forbids imposing the death penalty for the

crime of rape of an adult woman. Coker is binding

precedent for Air Force courts-martial. United States

v. McReynolds, 9 M.J. 881, 882 (A.F.C.M.R. 1980) (per

curiam); see Mangahas, 77 M.J. at 223; see also United

States v. Hickson, 22 M.J. 146, 154 n.10 (C.M.A. 1986)

(stating that in light of Coker, the death penalty for rape

may not be constitutionally inflicted in absence of aggravating circumstances). However, in August 2000, the

Manual for Courts-Martial continued to provide that

death was an authorized punishment for the crime of rape

under Article 120, UCMJ. Manual for Court-Martial,

United States (2000 ed.), pt. IV, ¶ 45.e.(1).

In Willenbring v. Neurauter, 48 M.J. 152, 180

(C.A.A.F. 1998), the United States Court of Appeals for

the Armed Forces (CAAF) unanimously held that, Coker

notwithstanding, as a matter of statutory interpretation

“rape is an ‘offense punishable by death’ for purposes of

exempting it from the 5-year statute of limitations of Article 43(b)(1).” See also United States v. Stebbins,

U.S. CONST. amend. VIII.

61 M.J. 366, 369 (C.A.A.F. 2005) (quoting Willenbring,

48 M.J. at 178) (“[T]he question of whether the death

penalty may be imposed, given the facts and circumstances of any particular case, does not control the statute of limitations issue.”)

In 2006, Congress amended Article 43, UCMJ, to provide that “[a] person charged with . . . rape or rape

of a child . . . may be tried or punished at any time

without limitation.” 10 U.S.C. § 843(a) (2006). 7

However, the CAAF’s recent decision in Mangahas

explicitly overruled its holding in Willenbring that under the pre-2006 version of Article 43, UCMJ, the offense of rape was exempt from the general five-year

statute of limitations. 77 M.J. at 223-25. Finding that

Willenbring was “badly-reasoned” and risked “ ‘undermining public confidence in the law,’ ” the CAAF unanimously held “where the death penalty could never be imposed for the offense charged, the offense is not punishable by death for purposes of Article 43, UCMJ.” Id.

at 224-25 (quoting United States v. Quick, 74 M.J. 332,

336 (C.A.A.F. 2015)). Therefore, because the alleged

rape of an adult woman in Mangahas occurred in 1997,

18 years before the charge and specification were received by the summary court-martial convening authority, the CAAF dismissed the charge and specification.

Id. at 225.

In 2013, Congress again amended Article 43, UCMJ, to additionally exclude the offenses of sexual assault and sexual assault of a

child from the five-year statute of limitations. National Defense

Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1703,

127 Stat. 672, 958 (2013) (codified as 10 U.S.C. § 843(a)).

Rule for Courts-Martial (R.C.M.) 907 provides that

the running of the statute of limitations under Article

43, UCMJ, is waivable grounds for a motion to dismiss a

charge and specification without trial. R.C.M. 907(b)(2)(B)

further provides “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.” “ ‘[W]henever it appears that the

statute of limitations has run against an offense,’ that

fact will be brought to the attention of the accused by

the court.” United States v. Salter, 20 M.J. 116, 117

(C.M.A. 1985) (quoting United States v. Rodgers,

24 C.M.R. 36, 38 (C.M.A. 1957)).

“[O]n direct review, we apply the clear law at the time

of appeal, not the time of trial.” United States v. Mullins, 69 M.J. 113, 116 (C.A.A.F. 2010) (citing United

States v. Harcrow, 66 M.J. 154, 159 (C.A.A.F. 2008)).

Analysis

Appellant contends that in light of Mangahas, the

military judge committed plain error which requires this

court to set aside the findings and sentence and to dismiss the charge and specification. We agree.

Under Mullins and Harcrow, we must apply the

clear law at the time of appeal to cases that, like Appellant’s, are pending direct review. Mullins, 69 M.J. at

116. In light of Mangahas, the statute of limitations

applicable to the charged offense of rape in violation of

Article 120, UCMJ, committed on or about 25 August

2000 was five years. See Mangahas, 77 M.J. at 225.

Therefore, the statute of limitations in Appellant’s case

expired in August 2005, more than ten years before the

charge and specification were preferred and delivered

10a

to the summary court-martial convening authority in

March 2016. Accordingly, we must evaluate the events

at trial in this light.

R.C.M. 907(b)(2)(B) required the military judge to

inform Appellant at trial of Appellant’s apparent right

to assert the statute of limitations defense to bar the

only charge and specification against him. See Salter,

20 M.J. at 117. The military judge’s failure to do so,

like trial defense counsel’s failure to assert the defense,

was understandable in light of the CAAF’s holding in

Willenbring. Nevertheless, applying the CAAF’s clear

holding in Mangahas that the five-year statute of limitations had long since run, the military judge’s failure to

comply with R.C.M. 907(b)(2)(B) was an error that was

plain and obvious. 8 See Girouard, 70 M.J. at 11. Moreover, the error was plainly materially prejudicial to Appellant’s substantial rights because the statute of limitations was a complete defense to the only charge and

specification in the case. Id. Although the statute of

Appellant contends the applicable standard of review is plain error. This is the standard the CAAF applied in both Mullins,

69 M.J. at 116, and Harcrow, 66 M.J. at 159. Each of those cases

dealt with changes to applicable precedent arising after trial but

during the course of direct appellate review, where the appellants

had failed to make evidentiary objections at trial. Mullins, 69 M.J.

at 116-17 (applying United States v. Brooks, 64 M.J. 325 (C.A.A.F.

2007)); Harcrow, 66 M.J. at 159 (applying Crawford v. Washington,

541 U.S. 36 (2004)). Appellant’s case, in contrast, involves the military judge’s failure to perform an affirmative duty imposed by

R.C.M. 907(b)(2)(B), regardless of Appellant’s failure to raise the issue. It might be argued that the plain error standard applicable to

forfeited issues is inapposite, and that de novo is the appropriate

standard of review. However, we need not resolve this question because we agree with Appellant that the military judge committed

plain error in light of Mangahas.

11a

limitations is waivable, at oral argument the Government conceded it could articulate no plausible reason why

Appellant would have knowingly waived the defense had

he understood it was available in this contested trial.

Nor can we discern any such reason.

The Government attempts to distinguish Mangahas

on the basis that, in that case, the accused moved to dismiss the charge and specification of rape based on the

statute of limitations in spite of Willenbring, whereas in

the instant case Appellant did not. The Government

relies heavily on the United States Supreme Court’s decision in Musacchio v. United States, 136 S. Ct. 709

(2016). In Musacchio, the petitioner failed to invoke

the statute of limitations bar in 18 U.S.C. § 3282(a) 9 at

trial but attempted to do so on appeal. Id. at 713. The

Court first found the statute “provides a nonjurisdictional defense, not a jurisdictional limit” on prosecution.

Id. at 718. The Court then held:

Because § 3282(a) does not impose a jurisdictional

limit, the failure to raise it at or before trial means

that it is reviewable on appeal—if at all—only for

plain error. . . . We conclude, however, that a

district court’s failure to enforce an unraised limitations defense under § 3282(a) cannot be a plain error.

. . .

When a defendant fails to press a limitations defense,

the defense does not become part of the case and the

18 U.S.C. § 3282(a) provides that “[e]xcept as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or

the information is instituted within five years next after such offense

shall have been committed.”

12a

Government does not otherwise have the burden of

proving that it filed a timely indictment. When a defendant does not press the defense, then, there is no

error for an appellate court to correct—and certainly

no plain error.

A defendant thus cannot successfully raise the statuteof-limitations defense in § 3282(a) for the first time

on appeal.

Id. The Government contends the statute of limitations in Article 43, UCMJ, like that in 18 U.S.C. § 3282,

is a nonjurisdictional, available defense that an accused

must assert in order to make it part of the case. The

Government argues that, where an accused fails to assert the defense for any reason—including, as in Appellant’s case, the apparent unavailability of the defense in

light of clear existing precedent—under Musacchio a

plain error analysis is unnecessary because the defense

is simply not “part of the case.”

The Government appears to essentially argue that

Musacchio created a new standard of review, or rather

a standard of non-review, apparently unique to statute

of limitations jurisprudence. The Government does

not argue Appellant waived the statute of limitation bar,

which involves the “intentional relinquishment or abandonment of a known right.” Ahern, 76 M.J. at 197.

Indeed, it is apparent that Appellant, like the military

judge and other trial participants, was understandably

unaware such a defense was available. See United States

v. Hoffmann,

M.J.

, No. 18-0002/AR, 2018 CAAF

LEXIS 226 (C.A.A.F. 7 May 2018) (mem.) (“[W]e do not

construe the failure to object to what was the settled law

at the time as an intentional relinquishment of a known

right. . . . ”) Similarly, the Government cannot

13a

prevail under the plain error standard of review applicable to forfeited issues because the combination of

Mangahas, Mullins/Harcrow, R.C.M. 907(b)(2)(B), and

Salter make it apparent the military judge plainly erred

by failing to inform Appellant at trial that the statute

had run on the charge of rape. However, the Government seizes on the strong language in Musacchio that

an unraised statute of limitations defense does not become part of the case and cannot be successfully raised

on appeal to mean some principle other than waiver or

forfeiture is at work. We are not persuaded.

To begin with, Musacchio may be distinguished from

the instant case on multiple grounds. Musacchio did

not interpret Article 43, UCMJ, which governs trials by

courts-martial; rather, it addressed the operation of

18 U.S.C. § 3282, applicable to civilian prosecutions.

By design, the civilian and military justice systems employ different rules of procedure. In particular, our superior court has recognized “that Congress, in drafting

Article 43, did not intend to create, in sections (b) and

(c), a mirror image of the rule then and now extant in

federal [civilian] law.” United States v. Tunnell, 23 M.J.

110, 113 (C.M.A. 1986). In addition, Musacchio did not

address a situation where the statute of limitations defense was apparently unavailable at the time of trial

based on clear existing precedent that was subsequently

overruled during the pendency of the appeal. It is not

clear to us that the Court’s analysis would be the same

in such a situation. Furthermore, Musacchio did not

address the affirmative duty to bring the statutory bar

to the attention of the accused imposed on the trial judge

by R.C.M. 907(b)(2)(B), which has no civilian equivalent.

14a

Even setting these distinctions aside, the Government

misconstrues the Court’s approach to the applicable

standard of review in Musacchio. It is true that, as

the Government states, the Court expressly did not decide whether Musacchio’s failure to raise the statute of

limitations constituted waiver or forfeiture. Musacchio,

136 S. Ct. at 718 n.3. However, this was not because it

found neither applied; it was because, even assuming a

plain error standard of review, the trial judge’s failure

to raise 18 U.S.C. § 3282 sua sponte in a civilian trial

would never meet the criteria for relief under the plain

error standard of review. The Court found a defendant

“cannot successfully raise the statute-of-limitations defense in § 3282(a) for the first time on appeal” not because plain error was not the applicable standard of review, but by evaluating the alleged error in light of the

plain error standard and finding it could never be met.

Id. at 718.

In light of the military judge’s affirmative obligation

under R.C.M. 907(b)(2)(B) to raise the statute of limitations issue, Appellant’s situation is clearly different.

Again, there is no indication Appellant “intentionally relinquished” an available statute of limitations defense,

and therefore waiver is inapplicable. Ahern, 76 M.J. at

197. Under Mangahas, Mullins, R.C.M. 907(b)(2)(B),

and Salter, the military judge was required to inform

Appellant the statutory bar was available, and she

plainly erred to the material prejudice of Appellant’s

substantial rights by failing to do so. See Girouard,

70 M.J. at 11. Therefore, we cannot affirm the conviction.

The Government advances a second argument, inspired by the CAAF’s recent decision in United States

M.J.

, No. 17-0285, 2018 CAAF

v. Williams,

15a

LEXIS 365 (C.A.A.F. 27 Jun. 2018), to the effect that

the 2006 amendment to Article 43, UCMJ, retroactively

applied to the August 2000 rape charge, and therefore

the statute of limitations never actually expired, Mangahas notwithstanding. In Williams, the CAAF set

aside findings of guilty with respect to four specifications of sexual offenses based upon an erroneous propensity instruction that was not harmless beyond a reasonable doubt. Williams, 2018 CAAF LEXIS 365, at

*7-14; see United States v. Hills, 75 M.J. 350, 356

(C.A.A.F. 2016). Apparently, one set-aside specification alleged rape on divers occasions between late 2000

and early 2003. Williams, 2018 CAAF LEXIS 365, at

*3-4. In its decretal paragraph, the CAAF stated,

inter alia:

The record is returned to the Judge Advocate General of the Army with a rehearing as to the Specification of Charge I authorized to the extent that the

charge and specification are not barred by the statute

of limitations. See United States v. Mangahas,

77 M.J. 220 (C.A.A.F. 2018); United States v. Grimes,

142 F.3d 1342, 1351 (11th Cir. 1998) (recognizing that

the federal circuits are in agreement “that extending

a limitations period before the prosecution is barred

does not violate the Ex Post Facto Clause”). But

see United States v. Lopez de Victoria, 66 M.J. 67, 7374 (C.A.A.F. 2008) (holding that the 2003 amendment

to Article 43, UCMJ, 10 U.S.C. § 843, 10 did not retroactively extend the statute of limitations due to statutory construction).

This change to Article 43, UCMJ, modified the statute of limitations with respect to certain offenses against children and did not

16a

Williams, 2018 CAAF LEXIS 365, at *15 (footnote inserted). In a footnote, the CAAF commented “[t]he

parties may address any potential retroactivity issues

concerning the statute of limitations on remand or at the

rehearing.” Id. at *15 n.5.

Taking its cue from Williams, the Government cites

Grimes and a series of other federal circuit decisions for

the principle that extending the applicable statute of

limitations before the existing statute of limitations

has expired on a particular offense does not violate the

Ex Post Facto Clause. 11 Grimes, 142 F.3d at 1351; see

United States v. Taliaferro, 979 F.2d 1399, 1402 (10th Cir.

1992); United States v. Knipp, 963 F.2d 839, 843-44

(6th Cir. 1992); United States v. Madia, 955 F.2d 538,

540 (8th Cir. 1992); United States v. Richardson, 512 F.2d

105, 106 (3d Cir. 1975); Clements v. United States,

266 F.2d 397, 398-99 (9th Cir. 1959). The Government

goes on to distinguish the 2003 amendment to Article 43

addressed in Lopez de Victoria from the 2006 amendment as a matter of statutory construction, and concludes the latter unlike the former was intended to apply

to earlier offenses for which the statutory period had not

yet run.

We acknowledge there is an unresolved question of

whether and to what extent the 2006 amendment to Article 43 extended the statute of limitations period for

rapes occurring within the five years preceding the

amendment’s effective date. One day this court may be

called upon to address that question. But today is not

affect the statute of limitations applicable to Appellant’s case.

Lopez de Victoria, 66 M.J. at 71.

U.S. CONST. art. I, § 9, cl. 3.

See

17a

that day. It is unnecessary for us to reach those aspects of the Government’s argument because the fiveyear statute of limitations on the August 2000 rape

charged in Appellant’s case did run before the 2006

amendment.

The Government attempts to address this manifest

flaw in its position by arguing that at the time of both

the alleged offense in August 2000 and the 2006 amendment to Article 43, there was no statute of limitations for

rape under the existing precedent of Willenbring. The

Government argues Mangahas did “not reach the question of retroactivity,” and that “[e]ven if Mangahas

means that Willenbring is no longer good law in 2018,

Willenbring was good law at the time of the 2006 amendment.” However, the Government fundamentally misconceives the import of the CAAF’s decision in Mangahas. The meaning of Mangahas is that under Article 43, UCMJ, the statute of limitations for rape in 1997,

as well as in August 2000, was and always has been five

years. Any pronouncements to the contrary in Willenbring or elsewhere were simply wrong. See Mangahas,

77 M.J. at 223-25. As discussed above, there remains

an open question as to whether rapes committed prior

to but within five years of the 2006 amendment were

taken out of the statute of limitations. However, the

offense Appellant was charged with, unlike the specification at issue in Williams, is entirely outside that window. See Williams, 2018 CAAF LEXIS 365, at *3-4.

If we were to accept the Government’s argument, the

outcome of Mangahas would appear nonsensical. There,

the CAAF interpreted identical language in Article 43,

UCMJ, as applied in Appellant’s case. Finding Willenbring was “badly-reasoned” and explicitly overruling its

18a

interpretation of Article 43, the CAAF held the applicable statute of limitations for an alleged rape in 1997 was

five years, and dismissed the charge and specification.

Mangahas, 77 M.J. at 223-25. The same reasoning applies to an alleged rape that occurred in August 2000.

We are compelled to follow our superior court’s precedent and take similar action.

III.

CONCLUSION

The findings of guilt and the sentence are SET ASIDE.

The Charge and its Specification are DISMISSED. Article 66(c), (d), UCMJ, 10 U.S.C. § 866(c), (d).

FOR THE COURT

/s/

CAROL K. JOYCE

Clerk of the Court

19a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

WASHINGTON, D.C.

USCA Dkt. No. 19-0345/AF

Crim. App. No. 39407

UNITED STATES, APPELLANT

HUMPHREY DANIELS III, APPELLEE

ORDER

On consideration of the issue certified by the Judge

Advocate General of the Air Force,

M.J.

(C.A.A.F. Jun. 19, 2019), Appellant’s brief, and Appellant’s motion for a summary disposition, motion to suspend this Court’s rules, and motion to dispense with the

requirement to file a joint appendix all filed June 19,

2019, and in light of United States v. Mangahas, 77 M.J.

220 (C.A.A.F. 2018), it is, this 22nd day of July, 2019,

ORDERED:

That the motions are hereby granted; and

That the certified issue is answered in the affirmative, and the decision of the United States Air Force

Court of Criminal Appeals is therefore affirmed.

20a

For the Court,

/s/

Joseph R. Perlak

Clerk of the Court

cc: The Judge Advocate General of the Air Force

Appellate Defense Counsel (Schwartz)

Appellate Government Counsel (Payne)

21a

APPENDIX D

UNITED STATES AIR FORCE

COURT OF CRIMINAL APPEALS

No. ACM 39407

UNITED STATES, APPELLEE

HUMPHREY DANIELS, III

LIEUTENANT COLONEL (O-5), U.S. AIR FORCE,

APPELLANT

Appeal from the United States Air Force Trial Judiciary

Decided: 18 June 2019

THIS IS AN UNPUBLISHED OPINION AND,

AS SUCH, DOES NOT SERVE AS PRECEDENT

UNDER AFCCA RULE OF PRACTICE AND

PROCEDURE 18.4

Before: HUYGEN, MINK, and LEWIS, Appellate Military

Judges.

Senior Judge HUYGEN delivered the opinion of the court,

in which Judge MINK and Judge LEWIS joined.

HUYGEN, Senior Judge:

A general court-martial composed of officer members

convicted Appellant, contrary to his pleas, of one specification of negligent dereliction of duty, one specifica-

22a

tion of rape, and four specifications of conduct unbecoming an officer and gentleman in violation of Articles 92,

120, and 133, Uniform Code of Military Justice (UCMJ),

10 U.S.C. §§ 892, 920, 933 1, 2 The members adjudged a

sentence of a dismissal, confinement for three years, and

a reprimand. The convening authority approved 2 years

and 252 days of confinement but otherwise approved the

sentence as adjudged. The convening authority also

deferred the mandatory forfeiture of pay and allowances

from the effective date of the forfeiture until the date of

action.

Appellant raises through counsel seven assignments

of error (AOE): (1) Appellant’s conviction for rape

(Charge II) must be set aside under United States v.

Mangahas, 77 M.J. 220 (C.A.A.F. 2018); (2) his convictions for negligent dereliction of duty (Charge I) and

conduct unbecoming an officer and gentleman (Charge

III) are factually and legally insufficient; (3) Charge III

and its specifications fail to state an offense; (4) the military judge erred in admitting a transcript of Appellant’s testimony from his criminal trial in civilian court;

(5) the trial counsel engaged in prosecutorial misconduct

during closing and rebuttal argument; (6) the courtmartial panel members failed to comply with the military judge’s instructions; and (7) Appellant is entitled to

relief under United States v. Moreno, 63 M.J. 129

All references in this opinion to the Uniform Code of Military

Justice (UCMJ) are to the Manual for Courts-Martial, United

States (2016 ed.) (MCM), unless indicated otherwise. The version

of Article 120, UCMJ, at issue in Appellant’s case is found in the 1998

MCM.

The members found Appellant not guilty of one specification of

conduct unbecoming an officer and gentleman in violation of Article

133, UCMJ (Specification 4 of Charge III).

23a

(C.A.A.F. 2006), for the delay from the date his trial concluded until the date the convening authority took action. Pursuant to United States v. Grostefon, 12 M.J.

431 (C.M.A. 1982), Appellant raises an additional seven

AOE: (8) his conviction for rape is factually and legally

insufficient; (9) his trial defense counsel were ineffective

for failing to move to dismiss Charge III and its specifications for failure to state an offense; (10) the Government failed to disclose evidence as required under

Brady v. Maryland, 373 U.S. 83 (1963); (11) the military

judge erred in admitting a “911 phone call” into evidence; (12) the cumulative effect of errors substantially

impaired the fairness of Appellant’s trial; (13) the reference in the court-martial transcript to Appellant being

arraigned by a special court-martial means that the general court-martial that tried him lacked jurisdiction or

his sentence to confinement and a dismissal is unlawful;

and (14) the staff judge advocate (SJA) misadvised the

convening authority that the maximum punishment in

Appellant’s case was death.

We address below AOE (1), (2), (3), and (7). AOE (8)

is rendered moot by our resolution of AOE (1). We

have considered AOE (4)-(6) and (9)-(14); they warrant

no further discussion or relief. See United States v.

Matias, 25 M.J. 356, 361 (C.M.A. 1987). We find prejudicial error with regard to AOE (1) and set aside Appellant’s conviction for rape and the sentence. We also

set aside the finding of guilty for Specification 2 of

Charge III (conduct unbecoming an officer and gentleman).

24a

BACKGROUND

In November 2014, Appellant and Major (Maj) DU

ended their romantic relationship. On or about 5 December 2014, Maj DU contacted the Fairfax County

(Virginia) Police Department (FCPD) and reported that

Appellant was “stalking” her. 3 FCPD Detective EM,

the lead investigator of Maj DU’s allegation against Appellant, had cameras set up outside Maj DU’s house.

On the night of 9 December 2014, the cameras photographed Appellant in the house’s fenced-in backyard.

On the morning of 16 December 2014, Maj DU was

driving in her neighborhood and called “911” from her

car to report that Appellant was following her in his car.

Detective EM had a warrant issued for Appellant’s arrest and contacted Appellant’s chain of command at

Joint Base Andrews Naval Air Facility Washington,

Maryland. When Appellant arrived at the base’s main

gate, security forces detained him. After Appellant’s

first sergeant came to the gate and talked with him, Appellant agreed to have the first sergeant drive him to an

FCPD station in Alexandria, Virginia.

Appellant arrived at the FCPD station around 1400

hours, and Detective EM placed him under arrest. After escorting Appellant to an interview room, Detective

EM advised him of his rights, which he acknowledged

before he agreed to answer questions. Detective EM

and another FCPD detective interviewed Appellant for

the next couple of hours. Appellant’s answers to their

questions formed the basis of four of the five specifications of conduct unbecoming an officer and gentleman

In 2015, Appellant was convicted in Fairfax County circuit court

of misdemeanor stalking.

25a

with which Appellant was charged and tried at courtmartial.

On 17 December 2014, Detective EM and other

FCPD personnel conducted a search of Appellant’s offbase residence. During the search, FCPD personnel

found documents indicating they contained classified information and contacted the Air Force Office of Special

Investigations (AFOSI). Several days after the search,

AFOSI agents went to Appellant’s apartment and seized

the documents, which became the subject of the single

specification of negligent dereliction of duty with which

Appellant was charged and tried at court-martial.

On 18 December 2014, Appellant called his friend,

SM, from the Fairfax County Detention Center and

asked her to call his supervisor, Colonel (Col) KB, and

request 10 days of emergency leave so that Appellant

could take care of a “personal” and “medical” situation.

SM wanted to include Appellant in a three-way call but

was unable to do so. She was able to contact Appellant’s office and submit his leave request, which Col KB

denied. Appellant’s request for SM to contact Col KB

formed the basis of the fifth specification of conduct

unbecoming an officer and gentleman with which Appellant was charged and tried at court-martial.

During Detective EM’s investigation of the stalking

allegation, AFOSI provided a 1998 report of an investigation by AFOSI and Minot (North Dakota) police into

an allegation by TS that Appellant raped her on or about

14 July 1998. In September 1998, TS declined to participate in the investigation, which was then closed with

no action. In 2015, Detective EM contacted TS, who

agreed to go forward with the original rape allegation,

26a

which became the single specification of rape with which

Appellant was charged and tried at court-martial.

II.

DISCUSSION

Statute of Limitations

Appellant asserts that, because the statute of limitations had run, his conviction for a rape in 1998 must be

set aside under United States v. Mangahas, 77 M.J. 220

(C.A.A.F. 2018). We agree.

Prior to the findings portion of Appellant’s trial, the

Defense moved for the dismissal of the rape charge on

two bases: that the Government had violated Appellant’s right to a speedy trial and that the five-year statute of limitations set by Article 43, UCMJ, 10 U.S.C.

§ 843, 4 had tolled. The Government opposed the motion and, with regard to the statute of limitations, cited

precedent, including Willenbring v. Neurater, 48 M.J.

152 (C.A.A.F. 1998). 5

“The applicable statute of limitations is a question of

law, which we review de novo. An accused is subject to

The version of Article 43, UCMJ, at issue in Appellant’s case is

found in the 1998 MCM.

The military judge who presided during motions practice on

1 December 2016 heard oral argument on the Defense motion to

dismiss and then indicated he would make a written ruling. There

is no written or oral ruling on the motion in the record of trial, but

there is also no mention of a “missing” ruling by either party at

trial or on appeal. In addition, all the appellate exhibits offered

and admitted at trial are in the record. The application of Mangahas resolves the issue of the statute of limitations in Appellant’s

case and requires us to set aside his rape conviction. As a result,

we need not address the absence of a ruling on the motion.

27a

the statute of limitations in force at the time of the offense.” Mangahas, 77 M.J. at 222 (citations omitted).

At the time of the charged rape that allegedly occurred

in 1998, the UCMJ’s statute of limitations stated, “A

person charged . . . with any offense punishable by

death, may be tried and punished at any time without

limitation.” Article 43(a), UCMJ, 10 U.S.C. § 843(a).

Otherwise, the statute of limitations for trial by courtmartial was generally five years before the receipt of

sworn charges. Article 43(b)(1), UCMJ, 10 U.S.C.

§ 834(b)(1). The 1998 Manual for Courts-Martial

set death as the maximum punishment for rape. Manual for Courts-Martial, United States (1998 ed.), pt. IV,

¶ 45.e.(1).

As the court clearly and concisely explained in

United States v. Collins, 78 M.J. 530, 532-33 (A.F. Ct.

Crim. App. 2018), aff ’d,

M.J.

, No. 19-0052,

2019 CAAF LEXIS 231, at *1 (C.A.A.F. 12 Mar. 2019),

Mangahas overruled Willenbring and operates to apply

a five-year statute of limitations to a rape that is charged

as occurring before 2006, when the limitation was lifted.

See Article 43(a), UCMJ, 10 U.S.C. § 843(a). 6 The result in Appellant’s case is that time expired on the 1998

rape charge in 2003, 13 years before Appellant was

charged and three years before Article 43, UCMJ, was

amended. Because we apply the law at the time of appeal, not at the time of trial, United States v. Mullins,

69 M.J. 113, 116 (C.A.A.F. 2010) (citation omitted), we

find that the military judge erred by denying the Defense’s motion to dismiss Charge II and its Specifica-

The version of Article 43, UCMJ, as changed in 2006 is found in

the 2008 MCM.

28a

tion. The statute of limitations had run by the time Appellant was charged in 2016 with committing rape in

1998. 7 Therefore, we set aside Appellant’s conviction

for rape and the sentence.

Because we set aside the findings of guilty of rape

and the sentence and dismiss with prejudice Charge II

and its Specification, we consider whether to reassess a

sentence or order a rehearing. See United States v.

Winckelmann, 73 M.J. 11, 12 (C.A.A.F. 2013). We are

setting aside the most serious charge of which Appellant

was convicted. As a result, the penalty landscape has

changed dramatically, particularly regarding the maximum possible confinement that was confinement for life

and is now 15 months, 8 and the remaining offenses—

negligent dereliction of duty and conduct unbecoming an

officer and gentleman—do not capture the gravamen of

criminal conduct of the original charges. See id. at 1516 (citations omitted). We thus exercise our broad discretion and authorize a rehearing on sentence. See id.

at 12.

As the court did in Collins, we acknowledge the “unresolved

question” of whether the 2006 amendment of Article 43, UCMJ, extended the statute of limitations for rape occurring between 2001

and 2006. 78 M.J. at 536. But, as in Collins’ case, it is unnecessary

for us to answer the question in Appellant’s case because the fiveyear statute of limitations on the 1998 rape had run before the 2006

amendment. See id.

The military judge merged Specifications 1, 2, 3, and 5 of Charge

III, of which Appellant was found guilty, and the members were instructed to consider them as one offense for sentencing purposes.

29a

Legal and Factual Sufficiency

Appellant next contends that his convictions of negligent dereliction of duty (Charge I and its Specification) and conduct unbecoming an officer and gentleman

(Charge III and its Specifications 1, 2, 3, and 5) are factually and legally insufficient. We disagree except for,

in part, the Specification of Charge I and, in toto, Specification 2 of Charge III.

Law

We review issues of legal and factual sufficiency de

novo. Article 66(c), UCMJ, 10 U.S.C. § 866(c); United

States v. Washington, 57 M.J. 394, 399 (C.A.A.F. 2002)

(citation omitted). Our assessment of legal and factual

sufficiency is limited to the evidence produced at trial.

United States v. Dykes, 38 M.J. 270, 272 (C.M.A. 1993)

(citations omitted). The test for legal sufficiency of

the evidence is “whether, considering the evidence in

the light most favorable to the prosecution, a reasonable factfinder could have found all the essential elements 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)).

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, [we are] convinced of the [appellant]’s guilt beyond a reasonable doubt.” Id. at 325. “In conducting

this unique appellate role, we take ‘a fresh, impartial

look at the evidence,’ applying ‘neither a presumption of

innocence nor a presumption of guilt’ to ‘make [our] own

independent determination as to whether the evidence

30a

constitutes proof of each required element beyond a reasonable doubt.’ ” United States v. Wheeler, 76 M.J. 564,

568 (A.F. Ct. Crim. App. 2017) (alteration in original)

(quoting Washington, 57 M.J. at 399), aff ’d, 77 M.J. 289

(C.A.A.F. 2018).

In order for Appellant to be found guilty as charged

of negligent dereliction of duty under Article 92, UCMJ,

the Government was required to prove beyond a reasonable doubt that (1) Appellant had a duty to protect classified information; (2) he reasonably should have known

of the duty; and (3) at or near Camp Springs, Maryland,

on or about 17 December 2014, he was, through neglect,

derelict in the performance of the duty by taking classified materials to his residence and leaving them unattended. See Manual for Courts-Martial, United States,

pt. IV, ¶ 16.b.(3) (2016 ed.) (MCM). A duty may be imposed by, inter alia, regulation.

Id. ¶ 16.c.(3)(a).

“Actual knowledge of duties may be proved by circumstantial evidence. Actual knowledge need not be shown

if the individual reasonably should have known of the

duties. This may be demonstrated by[, inter alia,] regulations [or] training.

. . .

”

Id. ¶ 16.c.(3)(b).

“ ‘Negligently’ means an act or omission of a person who

is under a duty to use due care which exhibits a lack of

that degree of care which a reasonably prudent person

would have exercised under the same or similar circumstances.” Id. ¶ 16.c.(3)(c).

In order for Appellant to be found guilty as charged

of conduct unbecoming an officer and gentleman under

Article 133, UCMJ, the Government was required to

prove beyond a reasonable doubt that (1) Appellant did

a certain act and (2) under the circumstances, the act

31a

constituted conduct unbecoming an officer and gentleman. See MCM, pt. IV, ¶ 59.b.

The “certain act” charged in Specification 1 of Charge

III (and instructed by the military judge) was that (a) at

or near Alexandria, Virginia, on or about 16 December

2014, Appellant misled FCPD detectives by falsely

claiming he did not go into the backyard of Maj DU’s

residence, on or about 9 December 2014; (b) he “did so

in the case of himself against whom [he] had reason to

believe there were or would be criminal proceedings

pending;” and (c) he did so with the intent to impede the

due administration of justice. The “certain act” charged

in Specification 2 was that, at or near Alexandria, Virginia, on or about 16 December 2014, Appellant misled

FCPD detectives by falsely claiming he could not provide his official email address to the detectives under the

same circumstances charged in Specification 1. The

“certain act” charged in Specification 3 was that, at or

near Alexandria, Virginia, on or about 16 December

2014, Appellant misled FCPD detectives by falsely

claiming he was not in Maj DU’s neighborhood on 16 December 2014 under the same circumstances charged in

Specification 1. The “certain act” charged in Specification 5 was that, at or near Alexandria, Virginia, on or

about 18 December 2014, Appellant asked SM to misrepresent to Col KB the basis of Appellant’s request

that he be placed in an emergency leave status. Conduct in violation of Article 133, UCMJ, is, inter alia, action “in an unofficial or private capacity which, in dishonoring or disgracing the officer personally, seriously

compromises the person’s standing as an officer. There

are certain moral attributes common to the ideal officer

and the perfect gentleman, a lack of which is indicated

by acts of [, inter alia,] dishonesty. . . . ” Id. ¶ 59.c.(2).

32a

Analysis

At the outset, we declare legally and factually sufficient Specifications 1, 3, and 5 of Charge III. For Specifications 1 and 3, the Government proved beyond a

reasonable doubt the falsity of Appellant’s claims that

he was not in Maj DU’s backyard on 9 December 2014

and not in her neighborhood on 16 December 2014.

Moreover, Appellant made these false claims after being

detained on his way in to work by Air Force personnel

at the request of Fairfax County authorities and then

placed under arrest and advised of his rights by FCPD

detectives. While wearing his Air Force uniform, he

agreed to answer questions from FCPD detectives who

knew that he was an Air Force officer and that his claims

were false when he made them with the obvious intent

to impede the investigation of the stalking allegation

against him. For Specification 5, the Government

proved beyond a reasonable doubt that Appellant asked

SM to “misrepresent” to Col KB the basis for Appellant’s emergency leave request and hide the fact that

Appellant was in jail. Considering the evidence in the

light most favorable to the prosecution, a reasonable

factfinder could have found all the essential elements of

Specifications 1, 3, and 5 of Charge III beyond a reasonable doubt and been convinced that Appellant committed the charged acts, that his conduct was unbecoming

an officer and gentleman, and that he was guilty beyond

a reasonable doubt. After weighing the evidence in the

record and making allowances for not having personally

observed the witnesses, we are so convinced.

Conversely, we determine legally and factually insufficient particular language of the Specification of Charge

I, which alleged that Appellant was negligently derelict

33a

in his duty to protect classified information by “taking

classified materials to his residence and leaving said materials unattended” on or about 17 December 2014.

The Government presented no evidence that Appellant

took the classified materials found at his residence on

17 December 2014 to his residence on or about that date.

However, the Government did prove beyond a reasonable doubt that, on or about 17 December 2014, Appellant

left the classified materials unattended at his residence

when he left his residence on the morning of 16 December 2014. We therefore except from the Specification

of Charge I the language (1) “taking classified materials

to,” (2) the “and” before “leaving,” and (3) “said” and set

aside the finding of guilty of the excepted language.

We substitute “at” for “to” and “classified” for “said”

and find legally and factually sufficient the finding of

guilty of the substituted language. 9

We also determine factually insufficient Specification

2 of Charge III. Taking a fresh, impartial look at the

evidence, we are convinced of the falsity of Appellant’s

claim that he could not provide his official email address

to the FCPD detectives interviewing him. However,

we are not convinced that he made the false claim endeavoring to impede the investigation of the stalking allegation against him. Instead, we find it clear from the

evidence (and the briefs of both parties on appeal) that

Appellant’s intent was to hide from his chain of command and supervision the fact that he was under criminal

With excepted and substituted language, the specification reads,

in relevant part, that Appellant was, through neglect, derelict in the

performance of his duty by “at his residence leaving classified materials unattended.”

34a

investigation and under arrest. As a result, we set aside

the finding of guilty of Specification 2 of Charge III.

Failure to State an Offense

Appellant also challenges Charge III and its specifications, of which Specifications 1, 3, and 5 remain, for

failure to state an offense. We are not persuaded.

Law

Whether a specification states an offense is a question of law we review de novo. United States v. Crafter,

64 M.J. 209, 211 (C.A.A.F. 2006) (citations omitted).

We also consider Appellant’s failure to object at trial

and review for plain error. United States v. Tunstall,

72 M.J. 191, 196 (C.A.A.F. 2013). To establish plain error, an appellant has the burden to demonstrate (1) error, (2) that the error was plain or obvious, and (3) that

the error materially prejudiced a substantial right of the

appellant. Id. (citation omitted).

There are only two elements for the offense of conduct unbecoming an officer and gentleman under Article

133, UCMJ: (1) an act of the accused and (2) that, under the circumstances, the act constituted conduct unbecoming an officer and gentleman. MCM, pt. IV, ¶ 59.b.

“This article includes acts made punishable by any other

article, provided these acts amount to conduct unbecoming an officer and a gentleman.” Id. ¶ 59.c.(2). Using

an example of stealing property in violation of Articles

121 and 133, UCMJ, the MCM explains:

Whenever the offense charged is the same as a specific offense set forth in this Manual, the elements of

proof are the same as those set forth in the paragraph

which treats that specific offense, with the additional

35a

requirement that the act or omission constitutes conduct unbecoming an officer and gentleman.

Id.

Analysis

At trial, the Defense did not move for dismissal of any

charge or specification for failure to state an offense

pursuant to Rule for Courts-Martial 907(b)(2)(E) or object to the military judge’s instructions to the court

members on the elements of the Charge III offenses.

Specifications 1 and 3 of Charge III

Appellant argues on appeal that it was plain or obvious error for Specifications 1 and 3 of Charge III to fail

to allege Appellant’s conduct was prejudicial to good order and discipline or service-discrediting. The argument is based on a reading of Specifications 1 and 3 as

charges for obstructing justice. Obstructing justice is

a specified offense under Article 134, UCMJ. Conduct

constitutes obstructing justice if the conduct at issue

satisfies all four elements of the offense, including the

“terminal element” of conduct prejudicial to good order

and discipline or service-discrediting. MCM, pt. IV,

¶ 96.b.(4). Appellant’s argument is understandable not

least because of the military judge’s instructions on the

elements of Specifications 1 and 3 of Charge III for conduct unbecoming an officer and gentleman in violation

of Article 133, UCMJ. As the military judge instructed, the elements were that Appellant wrongfully misled

FCPD detectives by making false claims; he “did so in

the case of himself against whom [he] had reason to believe there were or would be criminal proceedings pending;” he did so “with the intent to impede the due administration of justice;” and his conduct was unbecoming an

36a

officer and gentleman. Except for the fourth and final

element—“conduct unbecoming” instead of the terminal

element—the elements as instructed were identical to

the elements for obstructing justice.

Nonetheless, Appellant’s argument fails. Not only

did the Defense at trial not object to the elements of

Specifications 1 and 3, but it employed a deliberate

strategy to treat Specifications 1 and 3 (and 2 and 4) as

“general Article 133 violation[s]” and not charges of obstructing justice in order to limit Appellant’s confinement risk. 10 The strategy ultimately operated to Appellant’s distinct benefit when the military judge

merged all four of the Article 133, UCMJ, specifications

of which Appellant was found guilty and instructed the

members to consider them as one offense for sentencing

purposes. Even if we were to assume arguendo that

the omission of the terminal element from Specifications

1 and 3 was error, the error was not plain or obvious,

and, even if it was, it did not materially prejudice a substantial right of Appellant. See Tunstall, 72 M.J. at 196.

Specification 5 of Charge III

Appellant also argues on appeal that Specification 5

of Charge III fails to state an offense “because it is

vague, lacks words of criminality,” and did not put Appellant on notice “that it was a crime to ask his civilian

Obstructing justice in violation of Article 134, UCMJ, has a maximum punishment including confinement for five years. MCM,

pt. IV, ¶ 96.e. Conduct unbecoming an officer and gentleman in violation of Article 133, UCMJ, has a maximum punishment including

confinement “for a period not in excess of that authorized for the

most analogous offense for which a punishment is prescribed in this

Manual, or, if none is prescribed, for 1 year.” Id. ¶ 59.e.

37a

friend to call his supervisor to inform his supervisor Appellant was requesting emergency leave.” We are unpersuaded and instead find that Specification 5 did state

an offense.

An officer’s conduct need not violate other provisions

of the UCMJ or even be otherwise criminal to violate

Article 133, UCMJ. The gravamen of the offense is

that the officer’s conduct disgraces him personally.

. . . Clearly, then, the appropriate standard for assessing criminality under Article 133 is whether the

conduct or act charged is dishonorable and compromising as hereinbefore spelled out—this notwithstanding whether or not the act otherwise amounts to

a crime.

United States v. Lof ton, 69 M.J. 386, 388-89 (C.A.A.F.

2011) (quoting United States v. Schweitzer, 68 M.J. 133,

137 (C.A.A.F. 2009)). Applying Schweitzer, we determine that Specification 5 put Appellant on notice that his

conduct was criminal. But the crime at issue was not,

as Appellant now contends, to “ask a civilian friend to

call his supervisor to request ‘emergency leave’ ” on Appellant’s behalf. Instead, Appellant was charged with

and convicted of conduct unbecoming an officer and gentleman because he asked SM to misrepresent to Col KB

the basis for his emergency-leave request as a “personal” and “medical” situation instead of what it actually

was: arrest and detention by civilian authorities for a

criminal charge. Correspondingly, the specification

was not vague and did not lack words of criminality. As

with Specifications 1 and 3, we review Specification 5 for

plain error and find none.

38a

Post-Trial Processing Delay

Appellant claims that he is entitled to relief for the

delay from the date his trial concluded until the date the

convening authority took action. While we find that

the delay in the post-trial processing of his court-martial

was unreasonable, we grant no further relief than Appellant has already received.

We review de novo whether an appellant has been denied the due process right to a speedy post-trial review.

United States v. Moreno, 63 M.J. 129, 135 (C.A.A.F.

2006) (citations omitted). A presumption of unreasonable delay arises when the convening authority does not

take action within 120 days of the end of trial. Id. at

142. A presumptively unreasonable delay triggers an

analysis of the four factors laid out in Barker v. Wingo,

407 U.S. 514, 530 (1972): “(1) the length of the delay;

(2) the reasons for the delay; (3) the appellant’s assertion

of the right to timely review and appeal; and (4) prejudice.” Moreno, 63 M.J. at 135 (citations omitted).

Appellant’s trial ended on 14 June 2017. The convening authority took action on 2 February 2018, 233 days

after the end of trial and 113 days beyond the 120-day

standard.

Appellant’s trial took place on 20 September 2016,

1 December 2016, 5-9 June 2017, and 12-14 June 2017

and required a 1,123-page trial transcript and 12 volumes, including a classified volume. Except for the classified volume, Appellant received a copy of the record of

trial on 10 October 2017. The staff judge advocate’s

recommendation (SJAR) is dated 25 September 2017;

the SJAR addendum with the victim’s statement is

dated 12 October 2017. Appellant requested and was

39a

granted delays to submit clemency matters until 6 November 2017, 6 December 2017, and 11 December 2017.

His seven-volume, 1,400-page clemency matters are

dated 7 December 2017. However, they were not all

submitted by that date, and, at some point after 9 December 2017, Appellant’s original military defense counsel was replaced by a new military defense counsel. On

5 January 2018, Appellant indicated his clemency submission was complete. The second addendum to the

SJAR with Appellant’s clemency submission is dated

11 January 2018. The SJAR and both addenda recommended that the convening authority approve the sentence as adjudged.

Appellant cited the post-trial processing delay in

his clemency submission dated 7 December 2017 and

asserted his right to speedy post-trial processing on

17 January 2018. 11

Appellant claims to have suffered prejudice in the

form of oppressive incarceration and excessive anxiety

related to his purportedly wrongful convictions for rape,

conduct unbecoming an officer and gentleman, and negligent dereliction of duty. See Moreno, 63 M.J. at 138

(citations omitted). But we note, as the Government

points out, that Mangahas is the basis of Appellant’s

Appellant has twice moved the court for an expedited review of

his case, and the court has treated both motions as demands for

speedy appellate review. This opinion is being issued two months

before the 18-month standard for a presumptively unreasonable delay in appellate review set in United States v. Moreno, 63 M.J. 129,

142 (C.A.A.F. 2006). Appellant also petitioned the United States

Court of Appeals for the Armed Forces for a writ of habeas corpus,

which petition was denied, but did not file any such petition with us.

See Daniels v. Brobst,

M.J.

, No. 19-0223, 2019 CAAF

LEXIS 215 (C.A.A.F. 2 Apr. 2019) (mem.).

40a

most significant relief—the set-aside of his rape conviction and sentence—and the case was not decided until

6 February 2018, or four days after the convening authority took action in his case.

We weigh the Barker factors and conclude that Appellant is entitled to relief for the presumptively unreasonable 113-day delay in the post-trial processing of his

case. The sentence adjudged by the court members included three years of confinement. The convening authority approved a sentence including two years and

252 days of confinement. While there is no explanation

in the record for the difference in confinement between

the adjudged and approved sentences, we do not chalk

up to mere coincidence the fact that the convening authority reduced the confinement by exactly 113 days.

But, even if the precise measure of relief was purely coincidental, we find that it satisfies Appellant’s entitlement. We decline to grant further relief pursuant to

Moreno or any other discretionary authority we may exercise. See United States v. Tardif, 57 M.J. 219, 22324 (C.A.A.F. 2002); United States v. Gay, 74 M.J. 736,

744 (A.F. Ct. Crim. App. 2015), aff ’d, 75 M.J. 264

(C.A.A.F. 2016).

III.

CONCLUSION

The findings of guilt of Charge II and its Specification and of Specification 2 of Charge III are SET ASIDE

and Charge II and its Specification and Specification 2

of Charge III are DISMISSED WITH PREJUDICE.

The sentence is SET ASIDE. The finding of guilt of the

excepted language of the Specification of Charge I is

also SET ASIDE. The case is returned to The Judge

Advocate General for further processing consistent

41a

with this opinion. 12 A rehearing on sentence is authorized. Article 66(e), UCMJ, 10 U.S.C. § 866(e).

FOR THE COURT

/s/

CAROL K. JOYCE

Clerk of the Court

We direct a corrected court-martial order to remedy the following errors: (1) none of the specifications include “United States Air

Force” after Appellant’s name; (2) the Specification of Charge II

lists the wrong date of the charged offense; (3) Specification 1 of

Charge III is missing the word “falsely” before “claiming”; and

(4) Specification 5 of Charge III lists the wrong date of the charged

offense and does not reflect the minor change to the spelling of SM’s

last name that the military judge allowed the Government to make.

Yet again, we are dismayed at the lack of attention to detail in courtmartial processing and compelled to remind Air Force personnel to

exercise care in the execution of their duties.

42a

APPENDIX E

10 U.S.C. 843(a) and (b) (1994) 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

43a

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).

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.

44a

(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.

10 U.S.C. 920(a) (1994) 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.

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;

(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

45a

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.

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.